Con Law – Fed/State – Kmiec – 2005 Powers assigned to the Federal Government vs. powers assigned to the States. Jay, Hamilton and Madison wrote Federalist Papers. They are opinion pieces directed at the people of New York, trying to get them to adopt the constitution. Most broad power given to congress is the commerce clause. Preemption -- Congress takes action preventing the states from taking action. Horizontal division of power – Checks and balances. Divided and overlapping powers between Executive/Legislative/Judicial branches of the govt. 8/24/05 8/29/05 The English Bill of Rights is largely what the U.S. constitution will provide the U.S., plus we add the declaration of indulgence which provides for freedom of religion. 8/31/05 Article III of constitution: § 1 – Constitution vests all power in Supreme Court and gives Congress power to make inferior courts. § 2 – Judicial power shall extend to all cases, in Law and Equity. 4 elements of jurisdiction are: Standing, ripeness, mootness, and political question. Standing – The Constitutional minimum requirements for Standing are: Injury Causation Redressible Standing maintains boundaries. You have to show basic things to be in court. What kind of injuries count? Violations of constitutional rights, statutory rights, common law rights. There are other prudential requirements as well: Must assert your own right, not the right of a 3rd party. The exception is when there is a close relationship between parties (doctor/patient, son/father). Must be within the zone of interest of the statute No generalized grievances (eg. taxpayer can‟t just come in and say I am unhappy with the way govt. is spending my money so I want to object). The exception is that taxpayers can object if govt. money is being spent on religion.
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Members of Congress lack standing if they are merely disappointed, if they are representing the institution. They must have personal harm just like everyone else. Ripeness – when can a case be brought P must actually be threatened or be refraining from otherwise action due to imposed hardship 2 main considerations: (1) hardship, (2) fitness of judicial review, has all judicial review been exhausted. Mootness – Drops a case when it is moot, like when a party dies or when the statute has been repealed, etc. Article III § 2 – Defines subject matter of Federal Courts and allocates it to being either trial or appellate jurisdiction. 9/7/05 Marbury v. Madison – Constitution does not allow this type of case to be heard by the Supreme Court as an original matter, can only be heard as an appellate matter. What is the scope of the exception power of Congress? 9/12/05 What was wrong with the Chada holding in terms of empowering a single house of congress? It bypasses the specific formula of bicameralism and presentment. Congress can delegate power to agencies that can pass regulations. This is ok because the agencies can only act within the scope of the power that Congress authorized. This is a check and balance. Where is the line item veto power of the president? Article I Section 7 It is unclear if it is a power to line item veto or only veto the whole bill. After Reagan, Congress passes a line item veto act. It is challenged by other members of Congress and the court first throws it out because there is no standing by other members of Congress. Then Congress passed a bill that gave tax cuts but also gave the President to cut out some of those tax cuts, and some co-op farmers lost tax benefits because of it. The co-op farmers said it was unconstitutional and the courts heard the case. They said unconstitutional because President is taking away existing law by taking away tax cuts that were passed by Congress. The last point of Justiciability was Political Question. Some questions are so political that there is no Constitutional answer and the courts should not be the ones to answer it.
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A political question is one where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department, or . . . p. 162 9/14/05 Powers of president 1. Vesting clause 2. Take care of the laws that are faithfully created 3. The president is commander of army and navy 4. President should make nominations and appointments 5. President has a primary role in the drafting of treaties 6. Pardons 7. State of Union address 8. Propose legislation 9. Receive foreign ambassadors What inherent power does the president have? President tried to declare neutrality between England and France. Can he do that? Nothing says he can‟t do that. Hamilton says then he can. Madison says he can not, he must seek the judgment of congress before he can do that. Youngstown President can act 3 ways. 1. With Congress 2. Without Congress 3. Against Congress
-- This is the easiest, Zenith -- Twilight
This case talks about the limitations of the President‟s domestic power. What about his being commander and chief? APPOINTMENT POWERS 2 ways to be appointed 1. Principle officers are nominated by president and congress consents 2. Inferior officers can be appointed by the president alone, a court of law, or a head of department (Congress can place the power in their hands) What about removing people? Court says that principle or inferior subordinate executive officer should be able to be fired by President unilaterally. President and executive power is to be unitary. Needs to get the job done. This holding goes only to purely executive officers. 9/19/05 Art II Sec 4 gives power to remove Executive officers including president through impeachment. IN Meyers Taft says that purely executive officers can be removed by the president without approval of the senate, but other officers that may be quasi-legislative or quasi-judicial can not be.
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Taft suggests that when congress vests the power of appointment in a department head they can limit the removal. But he also says that when congress vests the power of appointment in the president directly then they can not limit removal. Congress can not reserve for itself the removal of executive officers or even independent officers. Congress can not retain the power of executing the law itself because that would be the equivalent of a legislative veto power. Independent agents can only be removed for cause. Also they frequently serve for a term, they have some separate litigating authority. 9/21/05 Question in FDA v. Williamson was to determine the intent of the legislative assembly that authored the bill. Chevron analysis is to say, if Congress has spoken clearly then the court gets to say what goes, presumably faithfully to what Congress has spoken to. If Congress has not spoken clearly then the agency that handles is gets to say what goes as long as it is reasonable. Executive agencies are an extension of the presidency. U.S. v. Mead Corp. Mead was importing day planners under a policy that exempted them from tariffs. A new customs administrator came along and through a private letter ruling they subjected these day planners to tariffs. To grant Chevron deference, first it must be clear that Congress gave the agency rule making ability and that authority would have the force of law, second, the agency interpretation claiming that deference must have been promulgated in exercise of that authority. 9/26/05 Nixon v. Fitzgerald stands for the proposition that the president has absolute civil immunity from claims that arise from outer perimeter of presidential duties. What about if congress makes law that says no one can talk to terrorist nation? What if president talks to terrorist nation? Not governed under Nixon v. Fitzgerald, the argument here is that the law may be unconstitutional to prevent president from talking to nations. What is the difference between criminal prosecution and impeachment? The constitution tells us to impeach the president for high crimes or misdemeanors (Article II Section 4) President may subject to impeachment and then subject to criminal prosecution after the impeachment, whether or not he was convicted in the impeachment proceeding (but watch the exact words of Article I Section 3 Clause 7, may have to be convicted in the impeachment). Three Options – (1) Impeachment; (2) Crime; (3) Civil Liability
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Text says inferior officers can be appointed by the president alone, courts alone, or the head of a department. 9/28/05 Looking at Morrison v. Olson What about the notion that you can not limit the removal of a purely executive officer. Look at pages 242-43. In Humphries Executor says there can be a for cause removal provision because the FTC commissioner was quasi-legislative and quasi-judicial, performs multiple functions. But here, the Independent Counsel is purely executive. The court upholds the for cause removal provision and changes the test to see if the removal restrictions are of such a nature that they impede the President‟s ability to perform his constitutional duty. Congress gets power of being able to trigger a prosecution, and the Court gets to decide if that trigger of prosecution impedes the ability of the president to perform his duties. Congress writes a 3000 page report and gives it to the AG and asks him to look to see if anything in there is worthy of investigation. What is the point of the independent counsel statute? To keep the president on his toes. Basically it says high ranking executives can not investigate himself. The problem is that the only person who has the power to conduct investigations is the executive. Scalia says no need for independent counsel statute because ultimately the people will not reelect bad people. Scalia says there are similar problems in other branches, congress passes laws and can even pass a law that they are exempt from their own laws. The judiciary determines itself if it has jurisdiction in a case. Curtiss-Wright Export Corp. There is a conflict in Bolivia and Congress gives president the authority to say, I don‟t want arms to be sold to Bolivia. The president does say that. Then the president revokes his proclamation. Some dude sold arms when the proclamation was in effect and he is on trial. The dude says the president can‟t make a law, only Congress can. Can Congress delegate law making ability to president? Note 5 on page 167. Congress can delegate rule making authority to federal agencies as long as they accompany that delegation with an intelligible standard. If there is no intelligible standard then it is unconstitutional. “Regulate in a just manner, or in the public interest” has been found to be good enough. This is not a domestic matter, this is a foreign matter and foreign matters the executive has total power. Certain powers are inherent in the president: Pg. 270
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*”the power to acquire territory by discovery and occupation” -nothing in the text that says this, this is the “Customary international law” *”the power to make such international agreements as do not constitute treaties in the constitutional sense” -not ratified by the senate, extra-constitutional power and they are simply agreements by the President but may be treated as law *”…inherently inseparable from the conception of nationality” Note 3 on page 275, Congress does have some powers: declare war, foreign commerce, senate has power to ratify treaties IRAN CONTRA Congress has declared Iran a terrorist country and said we can not have dealings with them. Congress did give president authority to deal with them as long as he timely disclosed his dealings. President shipped arms to them and does not control. Treaty Power on page 278. Treaties are negotiated by the executive and then presented to senate for ratification of 2/3 vote. Senate can make changes and if so, then president must ratify. The treaty can either be a self-executing treaty or it could require additional legislation. Any treaty that require additional appropriations is not self-executing, the appropriations need to be approved by the house as well. Treaties that are self-executing and that conflict with statutes prevail. A self-executing treaty has the same effect as a federal statute. Executive agreements (agreements that are not treaties, just made by president alone) that are premised on a statute will have more effect on conflicting prior law. Look to see where he got the power to negotiate the executive agreement, did he get it from a statute or is he just using his inherent Curtiss-Wright power. 10/3/05 Treaty power. Treaties are binding internationally. But enforcement internationally is not simple. Treaties also become part of domestic law. If they are self-executing then they are the governing law of the United States. Executive agreements are negotiated by the President alone and to see how powerful they are look to see where President got power to negotiate the executive agreement. That is for Federal Law vs. and executive agreement. Most say that state law falls to an executive agreement regardless of whether the agreement was formed pursuant to inherent Curtis power or pursuant to grant from Congress. Can presidents terminate treaties at will? You couldn‟t just terminate a statute at will. In Goldwater v. Carter, Jimmy Carter wanted to terminate a treaty unilaterally. No resolution in that case. Treaties are agreements with nations you recognize, the president has the ability to recognize or not-recognize any nations. Therefore, the president can just not recognize the nation that the treaty is with, then it disappears.
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First look to the treaty itself, some treaties say in the treaty that the president can withdraw unilaterally. Then argue that the president can terminate treaties because of his recognition power and it is the president‟s sole judgment to deal with recognizing foreign nations. Only Congress has the ability to declare war. The president has sent troops into battle 200 times but only 5 wars have been declared. How can this happen? The president has emergency power and uses it when there is an attack or a threat on America. The president can also claim implied Congressional consent by relying on UN resolutions and other treaties. If Congress authorized a treaty that says we come to the defense of country X, then president can say Congress has authorized it. On p. 281 it talks about the War Powers Resolution that has been passed by Congress. It authorizes the termination of the use of armed forces in hostilities by concurrent resolution. Every president has declared the War Powers Resolution to be unconstitutional and non-binding. So the president will write a note to Congress saying, by the way, this is not meant to comply with the War Powers Resolution, but the army will be dropping bombs on Cosavo tomorrow, let me know if there is a problem. 10/5/05 Historical Origins Natural Law promise; Constitutional Fulfillment Immediately Preceding English History The Structural Constitution – Separation of Powers The Judicial Power Case or controversy Justiciability: Standing, Ripeness, Mootness, Political Q Subject Matter: Diversity/Federal Q Judicial Review/Judicial Supremacy? Executive Power Legislative Usurp – Chada Limits of domestic authority Oversight of Bureaucracy Prosecuting the Executive/Independent Counsel Foreign Affairs Holding in Hamdi – The question is can we detain? The question wants to first know who we are trying to detain. In this case it is an enemy combatant (part of or supporting forces hostile to the United States and engaged in armed contact with the United States, and had been on the battle field). The court says, yes we can detain an enemy combatant. This is because there is a statute called the non-detention act, it says no citizen shall be detained except pursuant to law, and there is a law here that says take all necessary force to get those bad guys. The Court says that‟s a law sufficient. Concurrence says that law is not enough, there should be a clear statement in the law that the president has power to detain American citizens. 3 Points in satisfying 4001 (1) Purpose of detention is to keep enemy combatants from returning to battle 7
Argument: but this is not conventional and they could be held indefinitely. Court responds that you can come back later. This is an asymmetric war. Court limits the detention to the length of the hostilities, not for excess interrogation. Lower court says the affidavit from Mobbs is enough for some evidence. Supreme Court says the affidavit is not enough to detain someone for an extended time. Court looks to Matthews test:
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?
(2)
In applying this test Hamdi gets notice of proceeding, opportunity to present countervailing evidence of his behalf, opportunity to be represented by counsel. In the end the govt. just let Hamdi go, told him to denounce his American Citizenship and go back to Saudi Arabia.
NEW SECTION – LEGISLATIVE POWER This is a government of enumerated power. The state govt. should be general and of numerous powers. Federalist 33 says that the primary advocates of state sovereignty were concerned about 2 provision in the constitution: (1) the supremacy clause, and (2) the necessary and proper clause at the end of article I. Hamilton says not to worry because the federal govt. will not go beyond the enumerated powers. Draft: Congress should have authority to legislate where the singular states are incompetent. States are incompetent where singular legislation can be easily defeated by competing regulation of surrounding states In addition, states should not have the power to frustrate important national interests (war, immigration, environment, civil rights). This is what got sent to the drafting committee, but the drafting committee came back with the list in Article I. In addition to the list there is the necessary and proper clause. McCulloch v Maryland Creating of federal bank. States say banking is power reserved to the states. Maryland does not like the national bank so they impose a huge tax on the second national bank that is located in Maryland. The issue is whether or not Congress has the power to create a national bank. 10/12/05 Pre-emption deals with what is national and what is local? American Insurance v. Garamendi
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California is seeking disclosure from insurance companies. Once the disclosure occurs CA says there is a cause of action that may arise out of this disclosure. California also extended the statute of limitations with regard to those types of suits. The premise of the federal govt. argument for pre-emption is that the President has the power to enter executive agreements. Where there is an executive agreement, it may supercede state laws. The easiest case of pre-emption is where Congress explicitly says state law is pre-empted. In this case they did not do that so the Supreme Court says that Congress made their life harder. First look to see if there is an expressed pre-emption clause. If not, then you are not done yet. You must ask if there is an implied basis for pre-emption. Two basis of implied pre-emption: 1) field and conflict. Conflict is when it is impossible to comply with both state and federal or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Field is when the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it (immigration, foreign policy). On page 302 it talks about how when Congress has expressly discussed the scope of preemption, then courts should not go to field pre-emption to determine scope of state power. Congress said states could not regulate rates, routes, or services of air carriers. States passed laws regulating advertisements of the air carriers. Courts said that was pre-empted, but up for interpretation. Majority says that this is a case of conflict pre-emption. THE COMMERCE CLAUSE The commerce clause is the federal govt. main engine of authority. This is about what is federal and what is state? Gibbons v. Ogden NY gave Ogden exclusive license to operate steamboats in NY, to run boats between NY and NJ. Gibbons has a competing federal license to run boats in the same territory. NY state licensing board says state gets to regulate navigation, federal govt. says we regulate it as an aspect of interstate commerce. Marshall says that navigation is definitely included in commerce. It says commerce, not navigation. Marshall says look to the reason why we have this clause. Marshall proves the existence of a federal power over navigation by looking at other parts of the constitution, in Article I Section 9 the constitution provides that there should be no preference given to the ports of one state or another. Marshall is saying that says that feds don‟t have the power to give preference to one state‟s ports over another, so then we must have the power to regulate navigation in other ways. 10/17/05 What is left out of the commerce powers of the federal government? What about something that is completely intrastate. Marshall defines commerce as commercial intercourse. Commerce is the buying, selling, bartering of products and services among the several states.
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US v. E.C. Knight 1890 Sherman act is the first major legislation passed by congress under the commerce clause. For the first hundred years, the commerce power was dormant but applied by the court in its dormancy, meaning that when a state passed a law, the court would take it upon itself to asses whether that law was an undue burden on interstate commerce. E.C. Knight attempted to obtain a near monopoly on the manufacture of refined sugar in the United States. Congress wants to strike down the monopoly, but the courts say that Congress can‟t reach the monopoly. Court says that manufacture is not commerce, it comes before commerce. Court also says that in this case the monopoly is totally within one state. Dissent says that the ultimate purpose of eliminating all your competition for manufacture of sugar is so that you can then charge anything you want for sugar, not only in Philadelphia, but all across the USA. Champion v. Ames: Federal statute does not allow bringing lottery or chance tickets from abroad into the states. This was a law to prevent the sale of Irish sweepstakes lottery tickets. Is this within the commerce power? It is among the several states. Is it commerce? Is a prohibition of lottery tickets from aboard a form of commerce? The reason the federal government wants to regulate lotteries is that it goes to the moral fabric of our country. Does the commerce power include the power to prohibit commerce? Majority says that the word regulate is broad enough to include promoting and prohibiting commerce. Dissent says this is a power reserved to the state. States should protect us from moral ills. 10/19/05 WICKARD Case Congress trying to control the volume of wheat entering the market. Court starts with talking about Darby case. Darby was about goods produced by workers paid less than minimum wage. Court held that they could block the distribution of those goods. Darby superseded E.C. Knight, in terms of whether an activity that is wholly intrastate can be regulated. WICKARD asks what if you have someone that is acing wholly intrastate who has no intent to market his product in interstate commerce.
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Wickard court says yes, if the consumption of the product has substantial effect on interstate commerce. The next cases are Swift and Shreveport. In Shriveport, the interstate commerce commission was able to regulate wholly intrastate rates because of the effect on interstate commerce. In Wickard, Court says that it looking if the act substantially effects interstate commerce, it doesn‟t matter if the act is trivial, because one aggregates and looks at the cumulative effect. After Wickard, what is the scope of Congress‟ commerce power? Does it depend on any substantive definition of commerce? Under the modern definition of the commerce power, the subject regulated can be something other than commerce. It can be anything. Even a small activity such as the consumption of wheat for home use can be aggregated to find that substantial effect on commerce. Must have a substantial economic effect on interstate commerce under the aggregation principle. What is then left to the powers reserved to the states. In US. v. Darby, the court relegated the powers reserved to the state by the 10th amendment to that of but a truism. The original understanding is the Virginia resolution that gave rise to a list of powers but did not start out as a list, it started out saying that you can regulate where the states are incompetent. After Wickard, the supreme court basically gets out of interpreting the commerce clause. 10/24/05 US v. Lopez Law that says you can not have a gun in a school zone. Lopez was a student found with a gun. This law is just about possession of a gun. State charges were dropped when the federal prosecutor decided to go forward. The 5th circuit held that there were insufficient congressional findings and legislative history to find that Congress acted in their power. So the 5th circuit found the act unconstitutional. Court starts with analysis of original intent in Federalist 45. The federal govt. has enumerated powers that are few and defined. The Court then goes through a history of cases. With the Knight case we tried to do it substantively. Some things were commerce and some things were manufacturing. Then that line weakened and the line shifted. Then we used some adverbs, did the activity directly or indirectly effect interstate commerce? The line was between direct and indirect effects. That line was then changed. The next question was, is the activity being regulated in close and substantial relation to interstate commerce? In Darby they end up saying that the power of Congress over instate commerce is not confined to commerce. Wickard then said that anything with a substantial effect could be regulated, and that included trivial noncommercial activities that when aggregated are said to have a substantial effect on interstate commerce.
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When the Court goes through the history, they are not satisfied with where they are at. The dual system of government is lost because Congress has such broad power to preempt state rule. The Court has to inquire whether there is a rational basis for concluding that the regulated activity substantially effects interstate commerce. You have to ask if there is a match between the regulatory method and the govt. objective. Rehnquist says where we end up is with a rational basis inquiry where Congress could have believed what they were regulating had a substantial effect on interstate commerce. The Court does not disavow the rational basis theory, but they do talk about 3 or categories. 1) Channels of IC 2) Instrumentalities of IC 3) Activities having a substantial relation to IC The first two categories are obviously interstate commerce. Channels are roads, bridges, etc. Instrumentalities are trucks, planes, etc. Points #1, 2, and 3 – The gun act is not a essential part of a larger regulation of economic activity. Congress may lack a rational basis to conclude that this activity substantially effects interstate commerce because this act is not economic. It wasn‟t about selling the gun, or murder for hire, it was just about possession. Next the Court says that there is no jurisdictional element. A jurisdictional element is that the prosecutor must show the particular act substantially effects interstate commerce. There is no requirement that the prosecutor show in this case the defendant‟s act effects interstate commerce. The Court also looks at the legislative findings, there are none regarding what the effect on interstate commerce is. The findings are not required by they would be helpful. Lopez was a landmark opinion because it was the first time in 60 years where the Supreme Court has stuck down and act of Congress and going beyond the commerce power. In the concurrence, Justice Thomas doesn‟t like the substantial effect test. He thinks it is too broad. If the test was substantial effect, then why do we have enumerated powers like Bankruptcy, power to coin money, etc. Those are obviously in the substantial effect of interstate commerce, so why enumerate them. The test must be too broad. Thomas does not seem to offer a solution. He wants to go back to a substantive definition of commerce. If you are regulating sale, or barter, or transportation for the purpose of those things then you are within your power. Thomas also does not like the aggregation concept. Would rather look at the specific activity. Breyer writes the dissent. He says think of the word substantial and the word significant. Look to see if Congress could have had a rational basis for finding a significant or substantial connection between gun-related school violence and interstate commerce. Breyer says we need to look at empirical evidence to determine if the act falls in the proper zone. Why would Thomas‟s definition be difficult to carry out? See note 3. This talks about civil rights cases and discrimination cases that are regulated under the commerce power. Can‟t regulate this stuff under the 14th amendment because that says the state must not deprive us of
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equal protection under the law. What about regulating this stuff under the 13th amendment that abolishes slavery? Is denying someone a seat at a restaurant slavery? It could be a remnant of slavery. Morrison v. US: Good example of Rehnquist court effort to cavern the commerce power. Violence against women act – where is it economic activity? How does Congress reach the crime of rape occurring in the State of Virginia? What was different was that Congress held months of legislative hearings and decided that gender violence would be a drag on economic activity. Congress gave some empirical evidence. The Court said that was not enough and overturned that. Page 552: under § 5 of the 14th Amendment, private behavior can be reached as a way of sanctioning the failure of states. That argument did not work. At the end Lopez and Morrison we are left w/ judicially enforceable definition. Channels, instrumentalities and SEE RECORDING. 10/26/05 Gonzalez v. Raich In the majority Justice Stevens says he would be all for marijuana. O‟Connor is exactly the opposite. In this case they are not challenging the act on its face but challenging this application of the act. This is clearly not commerce, the question is whether this substantially effects interstate commerce. Congress does not need to have proof. It can regulate so long as it has a rational basis for believing that in the aggregate it will have a substantial effect on interstate commerce. Distinctions with Wickard. Wickard made a record of how the consumption of home grown wheat would effect the market price of wheat, but that is about evidence and no evidence is needed. The real distinction is that Wickard involved an economic activity, the farm was growing wheat for home consumption and for sale. The whole crop could have gone to the market, there was nothing that would have mandated some of it be used for home consumption. In this case it is different because the respondents are clearly not involved in commercial activity, and the California law says that it can‟t be commercial. Any surplus would be unusable because anything outside of personal use would be prosecutable both under state law and federal law. They say Morrison and Lopez are different because they were facial challenges, and there was no possible claim that the activity was economic in character. Scalia writes a concurrence. He says they can regulate it under the necessary and proper clause. On p. 17 he says regulation of an intrastate activity may be comprehensive to the regulation of interstate commerce even though the activity itself may not effect interstate commerce.
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He is basically saying that one can regulate where there is no interstate activity, no commercial activity, and even where there is no showing of substantial effect, as long as you have a rationale that regulation of the activity is necessary and proper to the regulation of another regulation of interstate commerce. 10/31/05 What is the dormant commerce clause? Power of the court to place limits on state authority when it comes to interstate commerce. This is not in the constitution. Cooley Case: Ships coming into Pennsylvania were required to take on a local pilot. This was a state law. Is the power to regulate navigation left to Congress under the commerce clause? This was passed in 1803. What federal law is at issue here? In 1789 Congress passed a law that says states have been regulating and to that extent we adopt the existing state laws as federal law. That part is ok, because it is an affirmative exercise of the commerce power. The next part of that 1789 act says that any future law that the states enact become federal law as well. But they can‟t do this, to have a new federal law there needs to be bicameral passage and presentment to the president. The federal statute is giving the states some of the commerce power, but constitutionally can they do this. Majority says that part of the commerce power can be exercised by the states so long as Congress does not choose to displace it. And in this particular instance Congress has indicated (by the act of 1789) that it does not choose to displace the action of the states. If Congress did not indicate that it was ok for the states to exercise the local part (if there was no 1789 act), could the Court preclude the states from acting? Could they say pilot regulation by states is too burdensome and we strike it down? Raich said so long as the court could conceive of a rational basis connecting this activity to a substantial affect on IC, then the court could not second guess Congress‟ decision. It seems to follow that if it is not for the court to second guess Congress when they are exercising the national aspect of the commerce power, then fair is fair and the courts should not second guess the states on their exercise of the local aspect of the commerce power. But that not the case, the courts say they can second guess the states. Courts will read Congress‟ mind and say what would they do if they could consider the matter. Courts say it is constitutionally permissible for Congress to authorize states to regulate an aspect of IC or burden IC in their judgment that is ok. Burden is worth cost of safety of ships navigating the harbor. The 1789 act says two things, the first thing is that pre-existing state law is now federal law. Concurrence by Mclean says that this means that those laws are now federal laws, so that if states repealed a law then it would not matter because it would still be a federal law, because the only way to repeal a federal law was bicameral passage and presentment. Dissent says that this is an area of local authority and only the states can act so the law is good.
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Commerce power via Cooley: If Congress wants to displace state rule on national aspects, they have the power to do so. If Congress has not displaced state and is silent, then states may legislate, subject to judicial review that the state legislation improperly discriminates against commerce or unduly burdens it. States may regulate in a way that discriminates against IC or burdens it if they receive congressional approval to do so. Oregon Waste Case: Oregon charging higher fee for out of state waste being dumped in Oregon. Thomas holding on discrimination: Step 1 – If state legislation is facially discriminatory then per se un-constitutional Step 2 – Is there a legitimate local purpose that cannot be adequately served by reasonable non-discriminatory means (Strict Scrutiny) Step 3 – Oregon asks if there is discriminatory intent or is there just a discriminatory affect? Court will say that facially neutral state law is subject to he Pike-Bruce balancing test. Note that state regulation is not as strictly scrutinized. It is presumed valid unless burden imposed on commerce is clearly excessive to local benefit. Notes on 388. 11/2/05 Granholm – Court held that states could not discriminate against out of state liquor. Laws that give preference to instate wineries violates the dormant commerce clause. Court says that principal of non-discrimination in interstate commerce was so ingrained prior to enactment to Wilson –Act that in so far as Web-Kenyon and the 21st Amendment does not expressly authorize discrimination, it can not be permitted. Hypo: What if the state decided that it was going to put private liquor business out of business? State was going to open its own shops and sell liquor. 11/7/05 11/9/05 10th Amendment reserves power not given to federal govt., to the states. This was a very important amendment. National League v. Usery Fair Labor Standards Act set forth minimum wage and hours for employees across the nation. Question is whether this act applies to State employees. There is an argument that the 10th Amendment is an affirmative protection of state sovereignty, and it is a limit on what the Congress can do under the commerce power. Rehnquist cites to a case that says Congress could not tax State governments. State govt. are immune from property tax and income tax. So he says that there should also be an immunity from regulation also. Both
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the power to tax and regulate are in Article I. If there is immunity from one, there should be from the other. The other argument is that the States were here first, so their sovereignty is superior to the federal. Moreover, the federal govt. can‟t dictate to the states where the state should put its capital. Another argument is that this intrusive law imposes higher costs on the State govt. This is a practical argument. The opinion needs to say what this opinion applies to? Some universe of traditional state activities that will be immunized from federal regulation. It applies to integral operations in areas of traditional governmental functions (fire prevention, police protection, sanitation, public health, parks and recs., etc.). What about precedent? This case was overturned in 9 years. Must look at workability. What should be exempt? Public goods? When a good is jointly consumed by the public but can‟t get everyone to pay on their own. On p.431 Blackmun says it is unworkable. Says states lost. First off, there is a supremacy clause. States can be preempted. The federal courts have jurisdiction to review the judgment of the states. The Bill of rights have been incorporated by the courts to limit the actions of the state. He sees this trend line where state authority is not expanding, it is getting more constrained. These are considered doctrinal arguments. So where are the states protected? Blackmun says they can lobby at Congress to get legislation that is favorable to them. States can also elect who they want to represent them. Choose the members of Congress that you want. State interests are protected in the executive branch because the state legislators can choose electors in the electoral college that will vote for president in a fashion that will protect state rights. But that is really not the way the electoral college works. The holding is that the 10th amendment is not enforceable as a limit on the commerce power. 11/16/05 Printz Case: Federal Govt. passed the Brady Act and that requires State Law Enforcement to check gun registration. Question is can Federal Govt. use State executive branch to enforce its laws. Congress can regulate individuals, and can regulate state and local govt. under the commerce
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power, but it can not mandate that state and local officials regulate individuals in a particular way. But state courts implement federal law all the time? State courts would be open to the enforcement of federal laws at all times. That was the political deal in the constitution. No similar political deal was made to either state legislatures or state executive officers. Congress can tell state and local officers that they have to observe federal laws, and tell local citizens that they have to obey federal laws, but can not tell state and local officials to enforce federal laws against local private individuals. Congress could have said, we are going to preempt your regulatory possibilities all-together, we are going to occupy the field with regard to gun regulation. So that states, you can‟t say anything to your citizens about the manner in which guns can be required, we are going to take over the whole thing. But, if you like, you can continue to have regulatory control if you perform this ministerial background check. Congress can also say, here is some money to use for the prevention of crime, we‟ll give you the money but you have to do these ministerial things as a condition of receiving the money. Note 3 on page 459. 11/21/05 Spending Power is in Art I, Sec 8, Clause 1. Congress says to South Dakota that if you want to get your full share of highway funds, then you need to make the drinking age 21. State says you can‟t regulate alcohol under 21 amendment. Congress says they can make a national minimum drinking age under the Commerce Clause. Court does not decide that, instead says that the spending power was proper and doesn‟t decide whether the commerce power would authorize that. In the Wine case, the court already decided that the dormant commerce power (negative commerce power) trumps the 21 amendment. In that the states have this extra ability to regulate alcohol but that is subject to non-discrimination. What is the relationship between the enumerated powers and the spending power. It seems like they are not limited to the list of enumerated powers in their application of the spending power. This is because it is not really a regulatory power, the States don‟t have to follow, they just don‟t have to accept the money and maintain their sovereignty. US v. Butler -- through the Agricultural Adjustment Act Congress sought to raise farm prices by limiting production. Tax was raised on the 1st processor of each farm commodity and those revenues were paid to farmers to limit their production. This case said that Congress could spend for the general welfare, just as Hamilton had argued
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Limitations on exercising the spending power: 1) must be for the general welfare – this is hard to define, almost anything can be said to be for the general welfare 2) must be unambiguous – States can not be surprised, can‟t throw it into the fine print. Must be clear and unequivocal. This point was elaborated in Barnes v Gorman: Court held punitive damages were unavailable to Plaintiffs suing the States because gov‟t did not expressly tell states they would be subject to punitive damages. (And the cause of action was a contract case which does not usually have punitive damages available). Any condition that States are alleged to accept with the federal funding must be unambiguous. 3) must be related to a federal interest, national project, or program 4) other constitutional provisions are a bar The dispute is in elements 3 and 4. For element 3, Congress says that they are trying to make interstate travel safe. O‟Connor says you can‟t use spending conditions to legislate. She thinks that the condition has to relate to the money itself. Can condition the way that particular money can be used. Here that highway money has nothing to do with the drinking age. She says the difference between being a condition on a grant (good) and a regulation (bad) is whether the caveat deals with how the particular money can be spent. How did the Rehnquist Court influence the balance of federal and state governments? Narrowing of the commerce power -- failure The attempt to define traditional state functions – failure The effort to stop commandeering – bunt single The revival of the 11th amendment – this turns out to be the biggest thing going for this court These are all direct connections between Fed and State. But now in Dole, we see that Congress can do indirectly what it could not do directly. 4th limitation on the spending power – States say that 21st amendment and 10th amendment are both independent constitutional bars. Congress says that what that means is that the spending power can not be used to induce the states to do something unconstitutional. Sabri v. U.S. local property developer didn‟t think he could get all the permits, he offered a city council member a bribe, he was charged with 3 counts of violating a Federal statute that makes it a federal crime to offer a bribe to any state official in a state that receives $10,000 or more Congress could not have directly made this a federal crime under the commerce power b/c it is completely intrastate, so….they had to use the Spending Power Here, you would think that the Justices would agree with Sabri b/c the federal gov‟t is not required to prove a connection between the offense and a federal interest and that it therefore exceeds Congress‟ power under the Spending Clause
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The Court says that the relationship requirement is only that it has to be related to a generalized national interest and that the statute did NOT have to be written in a way that forced the prosecutor to prove that the actual federal dollars given were the ones being misappropriated, (unlike what they said in Lopez where the prosecutor, when using a federal statute based on the commerce clause, would have to show that the crime actually had an affect on interstate commerce)
In Sabri, he said that you must show that my bride tainted the actual federal money, otherwise you can not regulate me. That argument did not work. 11/21/05 11th Amendment – Deals with jurisdiction. No jurisdiction over money damages or injunctive suit prosecuted by citizens of one state v. another state. This is a limit on diversity jurisdiction. It says nothing about suits against a state by citizens of that very state. Federal Act imposes duties on a state to bargain with Indian Tribes for purposes of casinos. The suit claims that Florida was not living up to their good faith bargaining power. Here citizens of Florida are suing the state of Florida. Based on the text of the Constitution the 11th amendment does not apply. Court says that Congress could not authorize this lawsuit. Alternative remedy would be to sue a representative of the state. Court says that alternative remedy is not available here either. So a state can be regulated by Congress, but individuals do not have the authority to enforce those statutes by bringing lawsuits. Who enforces the regulations then? The federal govt. can file suit and then they enforce the regulations. The 11th amendment is only a restriction with regard federal jurisdiction in suits between citizens and states. The Court says that the 11th amendment restricts the jurisdiction of the Court to not just diversity cases, but also Federal question cases. Hans Case – This amendment applies to both federal question and diversity jurisdiction because at that time there was only diversity J. Rehnquist says each state is a sovereign entity in our federal system it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. States can consent to being sued, or Congress can abrogate in some circumstances the states sovereign immunity under the 11th amendment with the commerce power. The first thing Congress needs to abrogate immunity, is to be clear about it. It has to be a clear statement that States are going to be subject to suit. In this case it was clear that States were to be subject to suits. The next question is whether the act was passed pursuant to a Constitutional provision allowing abrogation. This can be § 5 of the 14th amendment. Court says commerce
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power can not be used to abrogate sovereign immunity. This is because the amendment came after the commerce power so the amendment amends the power. Lifting immunity (which is what abrogation does) is interpreted by the courts as expanding the court‟s jurisdiction. Rehnquist sees this like Marbury Case. 11th amendment restricts courts power, this act tries to expand the court‟s power so it is no good. Bottom line is that unless Congress is acting under § 5 of the 14th amendment then it can not abrogate states sovereign immunity. Ex Parte Young exception. Can the tribe bring the suit against a govt. official. You could bring an action against a state official if that official continually disregarded federal mandates. Here it would be the state governor who is continually violating the act, he is not negotiating in good faith. Rehnquist says this situation is different because Congress has proscribed a detailed remedial scheme. Ex Parte Young applies when ever there is a need to remedy a violation of federal law by a state officer. After Seminole, lawsuits by individuals against a State shifted to State courts. States can also be sued under an act of Congress abrogating sovereign immunity under § 5 of the 14 amendment. In order for Congress to use this power it must legislate in a congruent and proportional way. In order to exercise the power it must compile a record that state and local govt. have been discriminating irrationally against people on the basis of age or disability. Note 10 – If a state is brought before an administrative regulatory body for sanction, it can assert its immunity in the context of that administrative hearing as well. States can still be sued where they consent, 11/23/05 11th Amendment is a jurisdictional limitation. It says there is state sovereign immunity in federal and state court from suit on an individual, unless it is abrogated by an exercise of power under § 5 of the 14th amendment. States may be sued due to a compact agreement, or as a condition of the spending power, or can pull an ex-parte young (sue individual officer of the state). The Federal govt. therefore is supposed to enforce federal law. p. 478 – Souter‟s dissent in Seminole tribe. He says the 11th amendment doesn‟t mean that. He things Hans was wrongly decided. He says there is no such immunity. He says that the notion of sovereign immunity does not fit the notion of immunity of the king. He also says that the concept of sovereign immunity is against the rule of law.
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Souter things that both citizens and non-citizens could have sued states on a federal question. And that the 11th amendment was only to preclude non-citizens suing on non-federal questions on the basis of diversity jurisdiction alone, where federal law is not even implicated. Souter‟s second argument – It is wrong because it is premised on a natural law conception of state sovereignty. Kennedy‟s dissent in Hibbs, 11th amendment protects a state fiscal integrity from federal intrusion by vesting a state with immunity from private actions for damages pursuant to federal law. Souter believes that there are no background principles to the Constitution. Nevada v. Hibbs Constitution says disability is not a suspect class, meaning that legislatures can take disability into account as long as they do it in a rational way. The American with Disabilities Act says you must accommodate disabilities unless it will be an undue burden. In other words, a higher standard. Can Congress legislate under this higher standard? FMLA allows for unpaid leave. Mr. Hibbs believes he was short changed. What was due him under this act was not provided. Did Congress appropriately abrogate state sovereign immunity. First things that is necessary is 1) Clear statement of Congresses intent – Court has no problem with this. The theory is that the FMLA was enacted under Congress‟ power to enforce the equal protection clause. And that the equal protection clause has been construed to protect against inappropriate gender discrimination. Gender can be used if it accomplishes an important governmental interest. This is different than Garrett because Garrett dealt with a disability, a class that is not suspect at all, so States just need to be reasonable to use disability as a factor. The Court says it is easier for Congress to abrogate in this case because they are discussing a form of discrimination that is illicit. This discusses that states are allowing leave to women and not thinking that the same leave should apply to men. The Court says that the failure to provide leave is an equal protection violation, they are saying however, that Congress can mandate these things in a prophylactic way that goes beyond what the 14 amendment requires in Section 1 of the equal protection clause. Meaning that Congress can remedy an actual violation of the equal protection clause and to deter violations.
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Scalia says this is improper because there has been no showing that Nevada has been discriminating on the basis of gender. Says you have to show that Nevada actually discriminated. Dissent says to compare it with the voting rights act. Before Congress passed the voting rights act it was clear that literacy tests in voting was not a Constitutional violation. The voting rights act outlawed literacy tests and Court said that individual could sue based on this. Because it was a nexus that voting rights tests were being used to keep blacks from voting. 11/28/05 Tennessee v. Lane Disabled person could not get to his hearing unless he was carried up the steps. He refused and was cited for failing to appear. He wants to sue the state for not complying with title II of the American with Disabilities Act. Title II imposes an obligation to make public programs accessible to the disabled. He says that the court system is a public programs and he should have equal access. If sovereign immunity is going to be abrogated it cannot be abrogated under an Article I power, namely the commerce power. How can congress abrogate state sovereign immunity? 1) Under the spending power – Here is some money, and the condition of taking this money is that you can be sued 2) Interstate Compacts – When two states enter into an agreement, the Congress must approve the agreement 3) The bankruptcy power is being argued by Congress to allow them to abrogate state sovereign immunity. This has not been decided yet. 4) § 5 of the 14th amendment. The enforcement power of the 14th amendment. The 14th amendment protects, privileges and immunities, it protects equal protection of the law, and due process of the law. Congress is defending its passage of the American with disabilities act as saying it is protecting one of those rights. When it requires equal access to a court house, it is vindicating due process of the law. The court says this is a prophylactic remedy under § 5 of the 14th amendment. The dissent is that Congress failed to identify a pattern of actual discrimination by the states. Be have one example of Lane crawling up the stairs, but where are the other examples. Dissent says Congress can‟t abrogate state sovereign immunity without evidence that there is a pattern of violation.
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Hibbs and Lane show that where you can state that Congress is seeking to vindicate the rights of a suspect class, or vindicating a fundamental right, then Court will give considerable defference to Congress. In Garrett, they did not demonstrate a pattern of violations with regard to a fundamental right or a suspect class because disability is not a suspect class. City of Boerne v. Flores There is a church that wants to expand because it is too small for its congregation. There was a state law that protects historic structures in Boerne, Texas. Why didn‟t the Church just argue that not allowing them to expand was a restriction on the exercise of free religion? This is because the law was facially neutral, it does not single out any religion. The RFRA prohibited govt. from substantially burdening the free exercise of religion even if it was a facially neutral law that did it. If they did burden the free exercise, they must show that the particular law accomplished a compelling governmental interest and it was the least restrictive way of furthering that compelling governmental interest. The issue is whether the RFRA was within the scope of Congress‟ 14th amendment § 5 power. There is a mismatch between what it says in § 1 of the 14th amendment and what Congress is saying is the burden on free exercise of religion. Court says § 1 requires rational basis when burdening religion, Congress is requiring more, they require compelling governmental interest. Congress says this is prophylactic, and that in using § 5 to protect the rights of § 1 we can be more broad to be prophylactic. Where is free exercise of religion in § 1. The court chooses to read into the 14th amendment that when the amendment limited the states in terms of these 3 great protections, that they were using that language in a way to allow the courts to selectively apply the privileges in the bill of rights (through the word liberty of the due process clause of the 14th amendment). The bill of rights did no apply against the states in the original constitution. The 1st amendment says Congress can‟t impede the free exercise of religion, says nothing about the states. Not until the 14th amendment did the bill of rights apply to the states. In this case the Court says that § 5 does not justify the passing of the 14th amendment. Congress does not enforce a constitutional right by changing that right. The power to enforce is not the power to redefine. The court says religious right is A, Congress says it is B, and Court says you can not enforce B.
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Court says, while preventive rules are sometimes ok, there must be a congruence between the means used and the ends to achieve. Strong measures to prevent one harm, may be unwarranted to protect another harm. There is no evidence that people are passing zoning laws because they have a hidden desire to prohibit free exercise of religion. Congress is gong to be given more latitude to pick on the states and abrogate their immunity, than when Congress is seeking to re-define the settled meaning of a constitutional provision as already defined by the Court. 1130/05 3 hours, 3 questions, closed book Cicero is going to be on the exam. Separation of Power and the definition of the power. Concentrate on the matter of the executive. The Commerce power as the main engine of legislative power. Limitations on the commerce power, especially limitations that flow out of the 10th and 11th amendments. 11/30/05 Started the course by saying there is a relationship between the declaration of independence and the Constitution. The Decl. is the promise and the Cons. is the fulfillment of the promise. England was stepping on our rights and we found a way to protect those rights. Those rights come from natural law, as aspect of human nature. The point of the Declaration was to point out that rights began outside of the government and that government was a means to preserve the rights. The whole point of setting up our system the way we did was to preserve these inalienable rights. Lord Cook says to James I that he is not the source of law, law originated outside of him. Baron v. Major of Baltimore Statement is that the first 8 amendments (bill or rights) does not apply to states, only applies to federal government. So is that the end? Make the argument that we have more rights than just those listed in the Constitution, we have inalienable rights. Also look to the State Constitution. Look at State Constitutions through the lens of common law/natural law and understanding that those law were not capable of being infringed by the govt. Palko v. Connecticut (has been overruled) How does the Court decide which right is fundamental? Justice Cardozo says, “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.‟” “Implicit in the concept of ordered liberty.” “Neither liberty nor
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justice would exist if they were sacrificed.” “A hardship so acute and shocking that our policy would not endure.” The same standard was used later on to overrule this case. Adamson v. California Adamson was on trial for murder and he was given the option of testifying where he would be cross-examined on other crimes he committed, or if he didn‟t testify then the prosecutor would be able to tell the jury that he was basically admitting guilt. He says that violates the 5th amendment, right against self-incrimination. Uses due process clause of the 14th amendment and the court says you do have the right to due process but commenting on your not-testifying is not a violation of due process. Franfurter says: We are left in the dark what rights are fundamental and which are not. He says that Congress and States should speak clearly Black says all 8 amendments are incorporated in the 14th amendment. Black says we should look at the intent of the writers of the 14th amendment. He says they intended to incorporate the first 8 amendments as against the states. Black says that the natural law guarantees of life, liberty and the pursuit of happiness are made concrete against the federal govt. by the first 8 amendments, are now incorporated fully against the states by virtue of the 14th amendment. Black says this is good for the separation of powers because now legislatures know what the guidelines are, and Judges can‟t be subjective on every issue in determining if it is fundamental or not. Frankfurter says this would be too constraining on the states, we would have one standard of due process. If the Feds say conviction must be unanimous jury of 12 then every state must have that. Can‟t states experiment with smaller juries, etc.? Frankfurter thinks natural law is not that subjective. LAW -- TOTAL INCORPORATION HAS NOT BEEN ACCEPTED. Selective incorporation was used to incorporate virtually all of the bill of rights under the phraseologies of Palko. Not incorporated: Grand Jury indictment, No state equivalent to the 7th amendment right to jury trial, No state requirement of a unanimous jury to convict. Beyond that the bill of rights has been incorporated. States seem to interpret the federal rights all the same. They all have the same interpretation of the federal protections. But occasionally they enjoy the ability to have a different state interpretation as to their obligations and to expand their protection of rights, but they all seem to agree on the interpretation of what the federal obligations are. Now what if the judges choose to go off the list of the 8 amendments, then can they find additional rights and by what authority?
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12/9/05 REVIEW SESSION Court and Congress has the authority to waive prudential standing requirements. Congress can pass a law saying that the Court shall not considered prudential requirements in these cases. Congress can not bypass Constitutional requirements. Abbot Labs -- Ripeness 1) how realistic is the harm or threat. 2) fit for judicial review, the decision maker that you are complaining about has reach a final judgment. Nothing further to be done by an administrative body. Raise this issue only if there is something on the fact pattern that suggests it. Marbury shows us that the original jurisdiction can not be expanded Page 128-9 there is a list of original and appellate jurisdiction. 131 talks about state courts. EXCEPTION Power – There is an implied limit to congress‟ exception power, what are the implied limits? Where the court has acknowledged an individual right, like free speech or abortion, congress can‟t use its power to effectively defeat the role of the court. Analyze whether Congress‟ move is so intrusive on the role of the Courts that they have crossed that line. McCardle says that Congress has this exceptions power, but notes that there are avenues to refile the petition. REMOVAL POWER For the Quasi-people, Congress can place limits on the president‟s removal, but can not play an actual role in the removal. Can not say you need our approval. How limited will the applicability of Morrison be? First talked about appointment. Argument is that IC must be a superior officer. Court says no, this is ok to be an inferior officer, because the authority is limited, limited amount of time, and limited scope. But, under a different set of facts, where the tenure is not that limited, where investigating more than one person, and where the scope of crimes is the entire U.S. code, that person has to be a principle officer. If you are a principle officer, you have to be removable at will per Meyers. Perkins says that inferior officers can have restrictions on removal. Meyers dicta says if this inferior officer was appointed purely by the president, then no restrictions. Morrison was appointed by a three judge panel. If Morrison was a principle officer then Meyers doesn‟t say that there can be restrictions on his removal. Meyers says no restriction on principle officers.
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Morrison also talks about separation of power, in that a Judicial body appointed an executive officer. Anyone involved with the appointing of the officer can‟t interfere with their work, and must recuse themselves. If there were other conflicts then may not be able to appoint cross body. Also argument that executive power is fully vested in the president, not partially as long as he can do most of his job. Chada, the veto was done by one house. This violates bicameralism and presentment. POWER OF EXECUTIVE AGENCIES Under Chevron, if it is a reasonable choice, then must grant deference to the agency‟s interpretation. If agency has only gone through private letter ruling, then court can second guess them, unless agency can show Skidmore deference rule that because agency has special expertise, and applied special care, they are entitled to interpret the statute. Hamdi is interrelated with Executive privilege, can‟t just say military secret for American citizen. Rasual v. Bush says that non-citizens are entitled to Habeus relief. Habeus allows them to come into court. But, now what? Garamendi illustrates the power of executive agreement to preempt state law. Goldwater – Carter terminated a treaty with Taiwan, but the treaty itself gives power to president to terminate the treaty. So can he do it in all cases? Unsettled. Stevens writes majority in Raich. Lopez says you need more than Raich (remember Lopez came first). Lopez gives the 4 steps. Raich is distinguished from Lopez, Raich is a case of application, it is an as applied challenge. In an as applied challege is all you need is justice stevens rational basis test. IF you have a facial challege then you must go throught the Lopez test. O‟Connor dissents in Raich, your definition of economic activity is too broad, there were not adequate legislative findings (nothing specific on medical marijuana). Most important is the lesson of Gibbons – The commerce power was an implementation of the 6th Virginia resolution, that said what the CP was attempting to do was to empower the national govt. to deal with q‟s that had to be dealt with nationally. Because they were of overriding importance and there was a desire to have one national uniform standard, or because states were incompetent to deal severally. They can‟t practically regulate the matter because of competing interests. That is the lesson of Gibbons. Raich – Lopez and Morrison, IF you still have time then go to Wickard.
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Thomas does not think manufacturing is capable of regulation. Cooley – Congress is saying to states, we have approved the states to be here, so throw them out. Oregon waste – On it‟s face, Watch for compensatory tax. Compensatory tax is ok, but in order to qualify for a compensatory tax must meet certain test. Pike Bruce balancing test – Scalia says it is like asking whether or not a rock is as heavy as a line is long. Law that excludes manufactured housing from residential neighborhoods. “Trailers” It turns out that the particular state has no manufacturers of manufactured housing. Spending must be related to general welfare. Spending must be related to national welfare/project. Look at the last paragraph, that says in some circumstances the amount of the funds might be such that it would be coercive. Florez takes you out of the 11th amendment, but keeps you in § 5 of the 14th amendment. Florez talks about the scope of Congress under § 5 of the 14th amendment. If want to grant more rights to someone, then need another power for doing that. Cicero – There is a law behind the law. The most foolish thing is to say that the edict of prices are the sole determinant of the validity of law.
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