Phil's Fed State Outline _kmiec_

THE DIVISION OF GOVERNMENT POWER – THE JUDICIAL POWER I. II. Separation: What ensures the separation of the judicial branch from the other branches? - Life tenure or ―so long as they maintain good behavior‖ Federal Convention – who should appoint the judges? a. Article II, Sec. 2 of the Constitution - President has the power to nominate judges subject to the ―consent‖ or approval of the majority of the Senate III. Should there be lower federal courts? a. Note: the only federal court that must exist according to the Constitution is the Supreme Court i. ―and such other inferior courts as Congress may from time to time ordain and establish‖ b. Congress created lower fed courts for two reasons i. To promote the uniformity of law ii. To prevent state bias: A state court could give a biased interpretation of the federal interest and if so, the only thing to do is to remand it to the same state court IV. The Justiciable Case (3 doctrines) a. The Standing Requirement – Who Can Litigate? i. Constitutional Standing 1. Injury in Fact: Any significant factual injury, economic, aesthetic, etc., will suffice. The injury must be "concrete and particularized and actual or imminent, not conjectural or hypothetical." 2. Fairly Traceable to Defendant: but for test; you must be challenging the action that caused your injury in fact. 3. Redress: Plaintiffs must also demonstrate a "substantial likelihood" that the injury is "redressable" if the court grants the requested relief. The focus is on the relation of the injury and the remedy. Example - unmarried father who failed to pay child support. If put in jail, there would be no redress. Thus no standing ii. Prudential Standing 1. Assert your right not as a 3rd party: A litigant usually lacks standing to raise the rights of others 2. No generalized grievances a. Generally No Standing as a Taxpayer: generally, federal taxpayers have no standing to challenge federal spending i. Establishment Clause Exception: a taxpayer may have standing on establishment clause grounds (congress should make no law…) to challenge a violation of the spending power (i.e. that the taxes are being misspent or being spent in favor of a religious society). b. Congressional standing Exception i. Adam Clayton Powell case 1. Court allowed Powell to challenge his exclusion from the House on the theory that he had been duly elected and was personally entitled to his seat in the House 1 2. Rule: a congressmen can challenge his personally entitled right to his seat ii. Coleman v. Miller 1. As a group, congress has the power to defeat or enact specific legislation c. Citizen Standing: generally, a citizen lacks a sufficient personal interest to raise the constitutional claim. 3. Must Be Within the Zone of Intent of the Statute b. The Ripeness Requirement - Is There a Present Injury or an Imminent Threat of Injury? i. First Prong: hardship to the parties of withholding court consideration 1. Inquiries: has prosecution been threatened, is it imminent?; has the defendant refrained from action b/c of fear of being prosecuted?; are there collateral injuries? ii. Second Prong: fitness of the issues and record for judicial review c. Mootness: A case must be dismissed when, because of changes, the court's determination of the legal issue cannot have any practical effect in achieving the desired result i. Exceptions: (1) voluntary cessation of the allegedly illegal conduct; (2) there is a reasonable likelihood that the constitutional issue is "capable of repetition, yet evading review." V. Federal Court Jurisdiction a. Subject Matter Jurisdiction i. Two kinds of jurisdiction for the SC – original and appellate ii. Two most common forms of appellate jurisdiction (90% of cases): (1) federal question; and (2) diversity jurisdiction – complete diversity and amount in controversy b. The Exception Power of Congress i. Rule: Although S. Ct. derives appellate jurisdiction from the Constitution, the Constitution also gives Congress the express power to make exceptions to that appellate jurisdiction. 1. Thus: S. Ct. SMJ is defined by both the Constitution and through congressional decision. ii. Ex parte McCardle 1. Supreme Court appellate jurisdiction is conferred by the Constitution in Art. III, Sec. 2. 2. However, this jurisdiction is conferred ―with such Exceptions, and under such Regulations as the Congress shall make.‖ Art. III, Sec. 2 iii. District Court Jurisdiction: b/c congress had the power to create the ―lower courts‖ themselves, it follows that it has the ―lesser‖ power to take away jurisdiction at the district level. VI. The Essence of Judicial Review a. The Federalist No. 78 – Hamilton 2 i. The courts are needed to keep legislature w/in limits; the Constitution is fundamental law and up to the courts to ascertain; the people keep the court w/in its reservation, they are superior – the Constitution is the ratification of the people. b. Check of Executive: there is a check in that the executive must enforce the decisions of the courts. c. Marbury v. Madison i. Rule: Here, the Court sets itself up as the measure of constitutionality; it is the function of the SC to be the final arbiter as to what the law is. d. Martin v. Hunter’s Lessee i. Issue: Does Marbury answer the question of whether the SC can force lower state courts to follow their judgments? 1. Marbury stands for the proposition that the SC is the final arbiter of the law 2. Martin stands for the proposition that the SC has the final say and state courts must conform to its interpretation of federal law according to the Supremacy Clause (Art VI). a. The Constitution is the supreme law of the land. The SC says what the law is and state courts must conform to this. ii. Question: if the Supremacy clause doesn‘t win this case, what does? 1. Article III ―in all other cases, the SC should have appellate jurisdiction‖ 2. If congress did not create lower federal courts, questions of federal law would be determined, at least initially, in state court. Article III says that ―in all cases the SC shall have appellate jurisdiction.‖ Thus, the SC must be binding on state courts. THE DIVISION OF GOVERNMENT POWER – THE LEGISLATIVE POWER I. Bicameralism - INS v. Chadha a. Rule: A ―legislative veto‖ is unconstitutional b/c it violates the presentment and bicameralism provisions of Art. I, § 7. i. The House cannot act without its resolution being submitted to Senate (bicameralism) and without presenting it to President for signature (presentment) b. Exception to Presentment: no presidential approval needed for a proposed constitutional amendment which has passes both Houses of Congress by the requisite two-thirds majority and three-fourths of the states ratify the amendment. Hollingsworth c. White Advocates the Functional Test in His Dissent i. Three questions under the functional test: Nixon v. Administrator of Gen. Servs 1. Does the president have a function explicitly given to him by the Constitution? 2. Does the action that congress has taken usurp or interfere with that function? 3. Even if it does, is there some overriding or compelling need to vindicate that action? II. Delegation of Powers - Intelligible Standard Principle (note 5, p. 167) 3 a. Substantial delegation of legislative power via broad laws: Laws given to president, president gives them to agencies, agencies make their own regulations. b. Intelligible Standard Principle Congress must delegate supplying an adequate and intelligible standard for the agencies to follow c. Whitman Rule: All that is needed is an intelligible principle for agencies to follow III. Political Questions Doctrine: a. Rule: political questions are non-justiciable b. Political Question: issue that is textually committed to another branch that is not reviewable by the others c. Origins: Political questions, which are non-justiciable, have their origin in classic, functional, and prudential considerations: (1) Constitutional commitment to another branch; (2) lack of judicial resources and capabilities; (3) prudential or policy considerations relating to the proper use of judicial power. Examples: presidential nomination, use of veto power IV. Line Item Veto Act of 1996 a. The Line Item Veto Act violates the Presentment Clause of Art. I, § 7. It allows the President to cancel or repeal particular spending provisions thus changing the signed law. This is inconsistent with the constitutionally prescribed Veto Power because the President is making new law and sharing in Congress‘ power of the purse. V. Severability a. A provision is presumed severable if: (1) what remains is workable and fully operative as a law; and (2) it is that what congress would have intended under the circumstances. i. In Chadha the Court found that the power given to the AG via the Immigration and Nationality Act was severable. This is b/c congress included a severability clause in the Act. THE DIVISION OF GOVERNMENT POWER – THE EXECUTIVE POWER I. II. The Energetic Executive: The Framers wanted to create an office so that someone would have the authority to take steps in a short period of time. Source of Domestic Authority: Youngstown a. 3 Sources of Presidential Authority: Truman argues that the President‘s authority to act alone comes from three sources: i. Article II: the executive power shall be vested in the President of the U.S. ii. Take care clause (Art II): executive is to take care that the laws are executed. iii. Commander in chief of military: president ―shall be Commander in Chief of the Army…‖ b. President’s powers fall into three categories (from Jackson’s concurring opinion) i. Category one: President acts with Congress (maximum authority) 1. Article II – president gets power from being the commander in chief, the ―take care‖ clause, and the ―vesting clause.‖ 2. Article I – Congress gets power from article I 4 ii. Category two: President acts but Congress is silent 1. Twilight zone; Court will have to balance the competing interests of the President and Congress iii. Category three: President acts alone and Congress has denied the authority 1. President can only rely on his constitutionally granted power minus the constitutionally granted power of Congress. III. The Power of Appointment a. General Rule: Art. II, § 2, cl. 2, vests the power to appoint federal officials, subject to the Senate's advice and consent, in the President. Congress may vest appointment of inferior officers in the President, courts of law, or heads of departments, but not in the Congress itself b. Preliminary Materials i. The framers placed the power of appointment in the President so that there would be accountability. ii. The Senate has the power to check but has no role in choosing (yet power to reject is unlimited). c. Appointment Clause i. Principal officers: Ambassadors, Public Ministers, Justices, and all other officers of the U.S. (cabinet members) 1. If Congress creates a position subject to nomination and confirmation by the senate, then, by their terms, they will be principal officers ii. Inferior Officers: appointed by heads of cabinets, the President alone, or the courts. IV. The Power of Removal – Humphrey’s Executor & Myers a. Myers Rule: it is unconstitutional for Congress, even pursuant to bicameral legislation, to fetter or encumber the President‘s ability to remove purely executive officers. b. Humphrey’s Executor Rule: the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers. With respect to independent agencies that perform quasi-judicial tasks, the president can remove only for cause. i. Example: independent counsel and independent agencies c. Note: there are two distinct classes of individuals. Those who are purely executive officers (and have no limitation on the President‘s power of removal; (see Myers) and those who are quasi judicial officers and thus have more independence (President can only remove for cause; see Humphrey’s). V. Presidential Impeachment a. Johnson – was impeached because he removed a cabinet member w/o Congress‘s approval. Ultimately, Johnson was correct under the holding of Myers. i. ―the President has no duty to execute a statute that ‗directly attacks and impairs the executive power confided to him by the Constitution.‖ b. Clinton – impeached for obstruction of justice; whether the President was truthful in his civil deposition in the Jones case i. Starr’s tasks: Whether or not there was a federal statute that had been violated; whether there had be lying to a grand jury 5 ii. Ultimately, this wasn‘t the type of ―high crime and misdemeanor‖ and thus, there was no removal of office. VI. The Executive Bounded by Statutory Meaning: Brown v. Williamson a. Chevron i. When congress writes a statute and delegates authority to an admin agency, and someone contests the agency‘s rule making authority there are two steps 1. Step 1: Are the words of the statute plain in meaning on their own terms? If so, then it is the court‘s duty to say what the law is. Marbury 2. Step 2: If the statute is ambiguous or silent on the topic, then there is nothing to interpret and therefore the role of the court is merely to decide whether the interpretation of the agency was a reasonable one. b. Mead – Note the modification of Chevron (p. 266 n.5) i. Holding: Ruling letters should not be treated like Customs regulations, which receive the highest level of deference under Chevron, because ruling letters are not preceded by notice and comment as under the Administrative Procedure Act, do not carry the force of law, and are not intended to clarify importers‘ rights and obligations beyond the specific case ii. Skidmore Deference: A lesser form of deference, Skidmore deference, depends upon a judicial evaluation upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. iii. Theory: administrative agencies are more accountable than the courts. iv. Scalia’s dissent: Mead provides a further form of that transfer of power from accountable administrative agencies to unaccountable courts. Once the courts say what the law is, the law is fixed to that interpretation and can only be changed by congress. VII. Executive Privilege a. United States v. Nixon i. Executive Privilege 1. Nixon claims that he as absolute privilege of confidentiality with regard to conversations between a President and his close advisors. Nixon argues that this is necessary in order to preserve candor and objective advice. 2. The Court decides that they agree that executive privilege exists and is rooted in the separation of powers. However, it is not an absolute privilege. The Court said that the privilege is outweighed by both the responsibility of the judiciary to address the question and the individual due process rights of the defendants ii. Hierarchy of executive privileges 1. Military subject matter 2. Law enforcement or open litigation files 3. The right to receive complete, honest, and unfettered advice iii. Court’s ruling: At the level of materials that are general conversations, there was no showing that they involved an open litigation proceeding where parties may be 6 jeopardized, or involved military or national security concerns. Thus, they did not rise to the level such that they were protected by the executive privilege. b. Presidential immunity from civil lawsuit i. Nixon v. Fitzgerald: For decisions w/in the scope of official functions or all actions that are taken w/in the outer perimeter of his official duties, the President has immunity from civil suit. 1. Presidential aids: Official actions are immune from civil liab. so long as they do not violate clearly established statutory or constitutional rights that should have been reasonably known. Thus, the president has absolute immunity while his aids have qualified immunity VIII. The Independent Counsel - Morrison v. Olson a. Attorney General i. The AG is not obligated to call for an independent counsel but he must if there are ―reasonable grounds for further investigation.‖ ii. Note the substantial political consequences when the AG finds ―reasonable grounds for further investigation.‖ b. Dismissal of the IC i. The AG can dismiss the IC but only for good cause c. Appointments Clause Issue i. Argument: Olson argues that a court should not be able to appoint a principle officer ii. Principal officer definition: appointed by the president w/ congressional confirmation. iii. Held: Court decides that the IC is not a principal officer, but rather an inferior officer not subject to appointment by president and confirmation by Congress. 1. He doesn‘t make policy; He is subject to removal by a higher officer (AG for good cause); Limited tenure; limited duties; Must follow the dept of justice‘s guidelines if possible d. Separation of powers issue i. Olson/Scalia’s argument: All the executive power is assigned to the President and his subordinates, investigation and prosecution is the quintessential executive function. ii. Rehnquist: sets aside the text of the Constitution and sets up a different test: whether the President is functionally impaired from performing his executive functions by appointing an IC iii. Note how Scalia points out the role of law enforcement 1. There must be enough evidence of a crime and then see if the person has violated the law. 2. IC statute flips that: let‘s pick a person and then see if he committed a crime 3. Jackson ―In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.‖ 7 e. Dean Starr and a former AG think that the position of independent counsel was antagonistic to the Constitution. The Framers gave us a system of hierarchy and through hierarchy came accountability. In the case of independent counsel, there is no hierarchy and an independent counsel can only be removed for cause. IX. The President and Foreign Policy a. Curtiss-Wright i. President’s ability to revoke his proclamation 1. Joint resolution vs. Concurrent resolution a. Joint resolution is bicameral passage and presented to the president b. Concurrent resolution is by bicameral passage but not presented to the president. A concurrent resolution has no legal value but it does have political power. 2. How can you distinguish the line-item veto (which is unconstitutional) from the revoke of the proclamation here? a. The President revoked his proclamation, he did not repeal the Joint Resolution which was still law. b. The President still had the power to make another proclamation; in the line-item veto case, if Clinton was allowed to repeal it would not be reinstated. ii. Functional Argument - President needs to act in a hurry (energy and dispatch; not a lot of deliberation). iii. Extra-Constitutional Argument - Source of President‘s authority in foreign affairs is extra-constitutional. iv. Sutherland’s Theory of Sovereign Power 1. The authority that goes to the president in international matters is extraconstitutional. It comes from the fact that we are a sovereign nation via the declaration of independence. Sovereignty is ―never held in suspense.‖ If the Constitution does not specifically allocate power to someone else, the President has the power as a matter of residual grant. Thus, the President is the sole organ or representative of the U.S. in foreign relations. a. The power to acquire territory by discovery and occupation is not expressed in the text of the Constitution. The power is inherent by virtue of the international law and the concept of nationality b. International agreements also fall under the scope of the sovereign power 2. ―Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens….‖ v. Note how Curtiss-Wright is popular with presidents 1. ―the President alone has the power to speak or listen as a representative of the nation.‖ 2. ―The President is the sole organ of the nation in its external relations…‖ 3. Secrecy issues 8 vi. Other Grants of Power: Note that there are provisions in the Constitution that grant power to those other than the executive 1. Congress has the power of the purse, power to declare war, power to regulate foreign commerce 2. Senate has the power to ratify treaties b. Rasul v. Bush i. Argument: Solicitor General argued that there was no jurisdiction over Guantanamo Bay pursuant to the sentence in Curtiss-Wright. ii. Held: The Court found, as a matter of statutory interpretation, that the habeas statute was broad enough to include even aliens held outside the sovereign territory of the US; 1. the Court declared Guantanamo Bay as the equivalent of the U.S. Thus, the issue became what rights to foreign nationals have on U.S. soil. Because the word ―person‖ and not citizen was used in the statute, the foreign nationals had some rights. 2. Because it addressed the issue as a statutory matter, the Court did not address the constitutional grounds. c. Treaties i. 3 components: 1. President negotiates the treaty and accepts no unwanted consultation from Congress to negotiate in a certain way; president has plenary control; 2. 2/3 approval from Senate; 3. President himself exchanges ratification documents with the foreign party thereby affirming that the treaty is in effect. (Note that if the Senate modifies the treaty and the President doesn‘t like the modifications, he does not have to exchange it with the other party). ii. Preemption: Treaties, once in effect, are law and repeal any existing federal or state law that is contradictory; if the treaty contradicts a statute in the U.S. Code, it, in effect, preempts that law. iii. How do you repeal treaties? 1. Have the Senate pass a treaty to repeal the existing treaty or have a full Congress act to repeal the treaty 2. Can the President alone repeal a treaty? a. The answer to this question remains unclear. b. Goldwater v. Carter: SC treated the issues as a non-justicible question iv. Can a treaty create a source of power that would otherwise not exist under the Constitution? 1. Missouori v. Holland, n.8, p. 279. a. Holding: The treaty created a separate source or authority for the federal government to act over state authority. 2. Reid v. Covert 9 a. Holding: No treaty can authorize actions that are contrary to the Bill of Rights provisions in the Constitution; can‘t use a treaty to contradict the individual rights in the Constitution. d. Executive Agreements (n.9 p. 279) i. What is the legal effect of an un-ratified executive agreement? 1. Issue: Is there a previous treaty or previous statute upon which the executive agreement is based? Or is it simply based on the President‘s own constitutional authority? 2. Belmont – example of an executive agreement based on the President‘s own constitutional authority (power to receive ambassadors) 3. Preemption: If an executive agreement is based upon a treaty or statute and the executive agreement is later in time than a conflicting federal statute, the executive agreement will, by virtue that it is authorized by a previous statute or treaty, preempt the conflicting federal statute. In effect, this will have the same effect of a treaty. a. But if the executive agreement is done only pursuant to the President‘s inherent authority, it is more doubtful in effect. b. If the inherent power claimed is one that is checked by legislative power, than it is argued that the executive agreement would not have the preemptive effect. 4. What is the effect of an executive agreement on a conflicting state law? a. Agreement will have preemptive effect if it is anchored in a prior statute or treaty. 5. What if it is based on simply presidential inherent power? a. Accepted view – An executive agreement based solely on the President‘s inherent power will preempt state law (based on the principle that states are incompetent when it comes to foreign affairs). e. War Powers (n.10, p. 280) i. Congressional Power: Congress is given the power to declare war in Article I, Section 8, Clause 11. ii. Presidential Actions: Presidents, however, have always maintained the right to enact military actions in defense of the country. iii. War Powers Resolution 1. Requires the President to report to Congress before sending troops into hostilities or, if this is impossible, w/in 48 hours of introduction of troops into hostilities. Also, if Congress does not agree, it should issue a concurrent resolution (only political value) giving the President 60 days to withdraw the troops. 2. No president has complied with the War Powers Resolution a. Clinton – introduced troops into Bosnia and informed Congress but he didn‘t recite that he was reporting pursuant to the War Powers Resolution. i. This is the typical ―dance‖ that all presidents have followed. 3. Can Congress challenge an unauthorized introduction of troops? 10 a. Congress was given the power to declare war and not to declare war and chose to do neither. However, it did authorize over $13 billion for the expenses of the military b. There are many scholars that say that Congress uses its control over the purse to check misbegotten military missions by a misguided or misinformed executive. 4. Can individual members of Congress go to court? a. They can but they will face standing problems. Individual members of Congress do not represent the body (unless there is some joint resolution that designates an individual as a representative). b. There are also problems with a lack of manageable judicial standards to determine the outcome. Thus, this is viewed as a nonjusticiable political question. f. Iran Contra i. Facts: President gave oral approval for Israel to ship armaments it had acquired from the U.S. to Iran. Some of the funds collected by Israel went to arms dealers who gave some proceeds to contras in Nicaragua. Legislation required that notice of such shipments be made to Congress ―in a timely fashion,‖ and that the President find the shipment ―important to national security.‖ ii. Issue: Why did they think that they could disregard the timely notice provision, and not notify Congress of their actions? 1. They relied on Curtiss-Wright, ―that the President is the sole organ of the U.S. in international affairs.‖ 2. North‘s argument was that the timely notice provision could not be construed in such a way that it would undercut the President‘s power. 3. Constitutional Question: To what degree can Congress pass statutes that undermine the President‘s inherent authority as the sole organ of foreign affairs and matters? a. Thus far, there is no good answer to this question. b. Note the argument of whether the President‘s inherent authority or the anti-torture convention is currently under debate. g. Hamdi v. Rumsfeld i. O’Connor’s Plurality 1. Issue: whether the executive has the authority to detain American citizens who qualify as enemy combatants 2. Enemy combatant: a person who was part of or supporting forces hostile to the U.S. or one of the U.S.‘s coalition partners. 3. Didn‘t address whether President has his own inherent authority to detain b/c she relied on the authorization given by Congress after 9/11 4. The authorization to use military force satisfies §4001 5. Holding: in the narrow context of enemy combatants, you can detain for the duration of the conflict in which the enemy combatant was involved. 11 a. Troops are still in Afghanistan and in harm‘s way. 6. Indefinite detention, however, for purposes of interrogation is not authorized. 7. Due Process: Some evidence standard is not enough. Credible evidence standard a. This standard allows for the testing by a third party of the government‘s evidence; third party – court, but not in a trial context; hamdi given notice and opportunity to defend himself and have counsel; hamdi, however, would have to overcome the presumption in favor of the government and would have to deal with the fact that heresay is allowed. ii. What process is due? – sliding scale / 3 factors 1. What is the nature of the interest asserted by the private individual? 2. What is the countervailing government‘s interest? 3. Whether or not there is an alternative form of process that can better harmonize or reconciles the above two factors. A LIMITED GOVERNMENT OF ENUMERATED POWER I. Legislative Power a. Express Powers: Article I, Section 8 lists the powers given to the legislature b. Implied Powers: Under the Necessary and Proper Clause of Art. I, § 8, Congress can enact laws which are reasonably designed to achieve its delegated powers. c. Federalists No. 33 (Alexander Hamilton) i. Aspects Inherent in a Federal Government: The supremacy clause and the necessary and proper clause are merely stating the obvious and are already inherent in a federal government. ii. Who will check the power to pass all laws necessary and proper? 1. First, the federal government will check in implementing the laws 2. Second, if the federal government goes too far, the people will object. II. The Implied Powers of Congress Through the Necessary & Proper and Supremacy Clauses a. The National Bank: The convention chose not to put a national bank on list of enumerated powers. Nevertheless, the National Bank was created. This bank expired on its own terms b. McCulloch v. Maryland i. What gave rise to the dispute in McCulloch?: Maryland levied a substantial tax on the National Bank. The Bank refused to pay the tax ii. Marshall’s opinion 1. Reasoning: A national bank is not enumerated but it is necessary as a reasonable means to execute the enumerated powers. 2. Broad Scope of Constitutional Interpretation a. A constitution necessarily has only its great outlines marked in contrast to a statutory code and, thus, must be given a greater scope. 3. What is the meaning of the term ―necessary‖? 12 a. Necessary, in keeping with the broad scope of constitutional interpretation, is to be construed as a broad term. 4. What is national and what is local? Why is the distinction important? a. Responsiveness - States, by virtue of being a smaller body, can be more responsible to the state‘s needs. b. Diversity – different states have different needs c. Rights – same sex marriages, abortion, affirmative action; it is better to have more than one answer on these types of issues so that people can be accommodated by states where they are more comfortable d. Liberty – the supposition is that state courts are more astute to protect individual liberties b/c they are more in connection with their own residents. 5. Rule: (1) Where the constitution has assigned to the federal government a specific responsibility, the state government will defer to the specific means that the federal government uses. (2) But if the fed gov is acting in pretext and invades an area that it has not been given, it is the duty of the court to second guess these actions. a. The Court will be deferential if the federal government is within its assigned space, but if the federal government is not w/in its space, the court will tell the federal government when it is overstepping. c. Preemption – Note 5, p. 305 i. Rule: For preemption to be operative, the federal government must be w/in its assigned space. If you say that a federal law preempts a state law, you are implicitly saying that the federal government was w/in its assigned space. ii. Two types of preemption 1. Express preemption: Congress explicitly states that it is its intent to preempt state laws in a certain area; this is effective so long as congress is acting pursuant to a valid grant of power of its own 2. Implied preemption a. Field preemption: Congress is legislating in a field where 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; congress has created such an elaborate scheme that there is no room for the states b. Conflict preemption: either frustration of purpose (even though it is possible for an individual to physically comply with both the state and federal requirements, having that individual comply would frustrate the federal government‘s goals) or impossibility (not possible for the individual to comply with both state and fed) iii. Touchstone: in a preemption issue, the intent of Congress is the touchstone; the question is whether Congress has said that there is no room for the states. iv. Narrow Interpretation of Express Preemption: When congress legislates expressly to preempt, the Court construes this express preemption narrowly and not broadly. Cipolone 1. This means that the Court wants to leave the states room 13 v. Note: The court will find implied field preemption more readily when it is abundantly clear that the federal government is acting w/in an assigned sphere where it has the expertise (eg. Maritime law, foreign affairs, immigration). d. The Savings Clause - Note 7 i. Under the ―savings clause,‖ Congress used express words to save state authority. Nevertheless, the Court reasoned that the savings clause did not bar implied conflict preemption, b/c nothing in the language of the savings clause suggested an intent to save state law tort actions that, in fact, conflicted with federal regulations. The savings clause was construed by the Court as saving only a portion of state authority. III. The Federal and State Governments in Foreign Affairs a. Garamendi / Crosby i. Difference between Crosby and Garamendi: In Crosby the federal government was operating pursuant to statute and in Garamendi they were acting pursuant to executive authority. In both cases, however the Court found a conflict ii. Open Issue: whether there should be a presumption against preemption and that it was not interfering with federal power over foreign commerce or foreign affairs since it was merely exercising its role as a purchaser or ―market participation‖; see p. 304 1. Note that this issue is addressed with regards to domestic issues IV. Is There a Federal Common Law? (pp. 306-10) a. Rule from McCulloch: Any convenient means that will advance one of the enumerated ends can be exercised by the federal government; this is an implied legislative power. b. Issues: Is there a federal common law? Is there an implied judicial power? Is there an implied judicial power to legislate and make law in a common law sense? c. Worrall: the court had to determine whether there was a federal CL for bribery i. Prevailing view: There was a power to declare the common law as an aspect of sovereignty d. Hudson & Goodwin i. This cases superseded Worall; The SC repudiated the federal common law of crimes e. Swift v. Tyson i. found that there was a federal common law in civil matters ii. to reach this result, Justice Story had to deal with the judiciary act of 1789—which required federal courts to treat the ―laws of the several states‖ as rules of decision in cases where they apply, assuming that there is no applicable federal law. 1. Story said that ―laws‖ in this federal statute meant state statutory laws, or at most, state common law principles that were inherently local in character. f. Erie i. Overruled Swift holding that federal courts must look to the general common law principles that a state court in the state in which they are situated would use. g. Sosa v. Alvarez-Machain (2004). i. Facts: Alvarez sued under the 1789 ATS statute 14 ii. Held: SC said that district courts should not recognize other private cause of action for torts in violation of the law of nations. 1. Souter said that the ATS is largely jurisdiction with only a few causes of action permitted; Alvarez‘s claim did not fall under one of these few COAs 2. Souter said that the SC had no congressional mandate to seek out and define new and debatable violation of the law of nations, and modern indications of congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity a. Congress should make the law 3. Yet Souter left the door open: the cause must be founded on an international law norm. a. Argument against this theory: congress, not judges, should make the law; the law should be made by Americans‘ democratically elected representatives. b. Argument for this theory: one and the same law should hold for all people and for all time; natural law THE COMMERCE POWER – WHAT IS ―COMMERCE‖? I. Gibbons v. Ogden a. Marshall’s opinion i. Liberal Reading of the Commerce Clause: Marshall rejects a strict construction of the constitution; the words of the commerce clause must be construed in relation to the purposes for which they were conferred. ii. ―Among‖: includes trade across state boarders and also into the interior of the state. 1. ―… action is to be applied to all external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely w/in a particular State, which do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government…” iii. Does Marshall anticipate anything being outside the scope of the commerce power? 1. Won‘t reach those things which are completely within one state, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. iv. Preemption-conflict 1. Two kinds—frustration of purpose or direct conflict—can’t meet both: this was direct …therefore this case can be viewed as a straightforward preemption case. v. Question: What if congress decides that it wants to allow state/local regulations in an area that the courts have deemed belongs to congress and the states can‘t act because they‘re burdening interstate commerce? 1. Marshall says congress can allow the states to have a role by adopting state regulations but that doesn‘t give them commerce power, its just adopting their 15 standards as their own but its still the congress acting. Congress can‘t override the courts on a constitutional issue. But here‘s an area where the court can say, no we don‘t like this state regulation, it should belong to congress and congress can come back and say, its okay, we like this regulation, the states know more about such and such then we do… IS THE COMMERCE POWER A FEDERAL POLICE POWER? – DISTINGUISHING THE COMMERCE AND POLICE POWERS I. United States v. E.C. Knight Co. (1895) a. Holding: Regulation of interstate commerce applies to subjects of commerce and not to internal police powers of the state; Manufacturing a product is not part of commerce even though selling it involves commerce. b. Why is the court mistaken? II. Lottery Case (Champion v. Ames) a. Holding: this was commerce b/c Congress has a large discretion as to the means that may be employed in executing a given power; it doesn‘t matter if it is a prohibition or a regulation. b. Ultimate reason for the Court’s holding: immoralities of the lottery c. Does the Court give any hints as to where Congress’s power stops? – there must be interstate commerce. d. Dissent i. Cohens v. Virginia 1. If lottery tickets were an article of commerce, the Virginia convictions could not be upheld; a lottery cannot be an ―article of commerce‖ because had it been so, Virginia‘s attempt to impose its criminal statute on the sale of Washing DC lottery tickets would have been struck down under the dormant commerce clause; thus, the Court has previously held in the Cohens case that lottery tickets were not an article of commerce. 2. In light of past precedent, a lottery ticket is not an article of commerce; this is a definitional approach a. If the transaction takes place solely w/in one state, it doesn‘t matter if the party if from another state. e. Pro commerce clause: the Commerce Clause includes… i. Interstate - Crossing of state line ii. Commercial in nature iii. Use of channels of commerce (roads, waterways, mail, etc.) f. Anti-Commerce Clause arguments i. The Court‘s reliance on the commerce clause is mere pretext, the real reason for the holding was morality. ii. Prohibition is not regulating unless it is for the greater good of interstate commerce. 16 iii. 10th Amendment: the question of morality is to be decided by state and local governments, not by the federal government. III. Three considerations a. Original intent embodied in the Virginia resolution i. Congress‘s power was (1) to vindicate national interests, (2) promote harmony (3) and regulate where states are incompetent b. Definitional Efforts i. Commerce ii. Interstate iii. Substantially affecting commerce c. Morality/health/safety – Police Power i. 10th Amendment. THE COMMERCE POWER AND THE INTERSTATE NEXUS – WHAT IS INTERSTATE? I. Wickard v. Filburn a. U.S. v. Darby – sustained the federal power to regulate the production of goods for commerce rather than commerce itself. b. Aggregation Theory of the Substantial effects test – an activity that is substantially effecting interstate commerce is w/in the commerce clause event if it is merely a trivial drop in the bucket. This theory operates on an aggregation theory. c. Rule: Even if activity is local in nature, it may still be reached by Commerce Clause if it exerts a substantial economic effect on interstate commerce, irrespective of whether such effect is direct or indirect. d. Is there any limit to the Commerce power? Where is the limit found? i. Wickard stands for the proposition that the limit is with Congress and not to be decided by the courts. II. Child Labor Hypo: a. Where are we on the regulation of something like child labor? Is it within the scope of the federal commerce power to stop the shipment of goods made by child labor? Yes, the shipment of goods affects the travel of goods interstate. b. What if it happens wholly intrastate? Under Wickard‘s cumulative effects analysis, a wholly intrastate purchase and sale of goods made with child labor could be regulated by fed. c. What about the prohibition of employers hiring children? It has a substantial effect on the market in that child labor is cheap, making cheaper products in one state would affect the market as a whole. d. Is there a difference between telling an employer that he cannot hire a child v. telling an employer that the minimum wage he can pay is --? Same affect on the overall economy? Yes. What about a national prohibition on the conduct of lotteries? Does this cross over into morality which is reserved to the states? Yes. III. Note 2, p. 345: struck down regulation that was trying to control things that were wholly intrastate, but by 37 the seed of the wickard opinion was already taking hold and the court had switched from 17 narrow to broader wickard-like standard allowing regulation of the manner in which employees could conduct a strike. IV. Discrimination a. The 14th Amendment applies only to states and not individuals. Thus, the Congress had to use the commerce clause to address civil rights cases. b. The 1875 Civil Rights act was struck down by the SC b/c it was promulgated under the 14th Amendment c. 13th Amendment: involuntary servitude is unlawful (note how there is no ―state‖ hinge in this amendment). d. The Court had to decide civil rights cases under the commerce clause i. Private business purchase good from other states ii. Denying customers deters interstate travel V. Why the switch from the decision in Schechter Poultry to the decision in National Labor Relations Board? a. Court Packing Plan – FDR wanted to appoint additional justices (up to 15) to the Supreme Court. This blatant attempt to undermine the concept of independence of the Court was stuck down by the Senate judiciary committee. b. Although this plan failed, it nevertheless had an effect on the Court‘s position on the Commerce Clause as a broader power c. i.e. bootstrap sale of ketchup to a restaurant is commerce, which congress can regulate, thereby controlling the discrimination occurring at the restaurant IS THERE A LIMIT? – MAKING SENSE OF THE ―SUBSTANTIAL EFFECTS‖ PRONG I. U.S. v. Lopez a. Jones & Laughlin – There are dual sovereignties and there is a line somewhere defining what is national and what is local; the commerce power cannot interfere with the dual system of government b. Rule: Something is outside of the commerce power if its ffects may be so indirect and remote that to embrace them would obliterate the distinction between what is national and what is local c. 3 Broad categories of power i. Power over channels of interstate commerce ii. Power over instrumentalities or persons or things in interstate commerce iii. Power over those activities that have a substantial relation to interstate commerce d. Qualification: Court qualifies the substantial relation test by stating that it has to be an essential part of a larger economic enterprise i. Wickard is the most far reaching example of commerce power; the limit is on economic activity; Wickard was w/in the commerce power b/c it affected commerce e. Analysis i. The regulation of the possession of a gun is not the regulation of an economic activity; guns are prohibited b/c they may do bad moral things. 18 ii. There must be a jurisdiction element written into the statute that would ensure through a case by case inquiry that the firearm in possession does in fact affect interstate commerce. iii. The Act did not come with legislative findings on the impact of interstate commerce 1. Legislative findings not required but are helpful iv. If you rely on the essential effects prong, there must be a logical stopping point; it cannot rely on inference piled upon inference. v. Legal Uncertainty: it is the judiciary‘s duty to say what the law is f. Thomas’s Concurrence i. Substantial effects prong is not in the Constitution ii. If Congress could regulate matters that substantial effect interstate commerce, then there would have been no reason to specify that congress has certain types of legislative power g. Note that the lower federal courts have not used the Lopez logic. II. U.S. v. Morrison (n. 4, p. 367) a. Court found no commercial activity, no interstate activity, and no substantial economic effect on commerce. III. Jones v. United States - Note 5, p. 368 a. Jones did not ―use‖ his home to obtain an out of state mortgage, did not ―use‖ his home to obtain out of state casualty insurance, etc. b. One of the obligations of the SC is to construe statutes in a way so as to avoid unnecessary constitutional questions IV. Solid Waste Agency - Note 6 a. Holding: The gravel pit did not constitute a channel of interstate commerce nor was it an instrumentality of interstate commerce b. Issue: Does the activity that is being proposed for this pit, substantially affect interstate commerce? i. Dissent: the activity could have affected bird hunting / bird watching and, thus, interstate commerce. Migratory birds were something of an industry. ii. Chief Justice: What do you care about, the migratory birds or the gravel pit? c. Alternate argument: look to see whether the matter is the subject to an executive agreement or a treaty. This can be a separate source of authority that can be used by the federal government to accomplish their objectives. d. Alternate argument: necessary and proper clause e. Alternative source of authority: the federal government can essentially bribe the states by offering them money to undertake certain federal programs that are not otherwise under the federal government‘s power. f. Note: Notes 5-6 demonstrate that while the Court has not followed a perfect line, it has allowed Lopez to affect its reasoning. THE DORMANT COMMERCE POWER 19 I. Introduction a. General Rule: States may regulate where federal government has not, but subject to judicially grated limit that such state and local laws may not unduly burden interstate commerce b. Note: Dormant Commerce Power is a claim by the Court that the grant of affirmative power to Congress is also a negative or dormant limitation to the States c. Question: When do you know when you have a dormant or affirmative commerce clause issue? i. Dormant issue: is the state w/in the scope of its power? ii. Affirmative issue: is the federal government w/in the scope of its power? II. Dormant Commerce Clause Analysis a. First: decide whether the law facially discriminates against interstate commerce or whether it is evenhanded with only incidental effects on interstate commerce. 1. Note: the purpose of, or justification for, a law has no bearing on whether it is facially discriminatory 2. Evenhandedness: Evenhanded if the distinction is based not on state residency but on some other justifiable factor ii. If evenhanded, then apply the balancing Pike test: nondiscriminatory regulation that have only incidental effects on interstate commerce are presumed valid unless ―the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.‖ iii. If facially discriminatory: the statute is per se invalid. b. Second: the statute is per se invalid unless it can be shown that it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives. Note that justifications must pass a strict scrutiny standard. i. Economic protectionism is generally not a valid state interest ii. The Court, in Oregon Waste, rejected resource protectionism as a valid state interest. iii. Look for health and safety goals. III. Cooley v. Board of Wardens a. Facts: Federal statute of 1789 adopted the pilot laws of the states making them valid until Congress found it necessary to legislate. The state statutes addressed safety as well as had an effect on interstate commerce. b. Issue: can the states legislate on these safety concerns? c. Can Congress legislate on interstate commerce? i. Majority: ―Some aspects of commerce are national and some are local‖ ii. Implied in the majority opinion: In the absence of a Congressional statute, the courts will decide what is national and what is local in nature. If Congress speaks, however, then Congress gets to decide whether the court has a different view of it or not. iii. Anomaly: Congress can take a different view than the Court on a constitutional question d. Judicial / Congressional Power i. Congressional silence and states regulate: Court decides what is local and what is national 20 ii. Congress disagrees with the Court and approves state regulation: Congress decides iii. Congress disapproves of a state regulation: it is the Court who decides whether it is w/in the commerce clause e. Majority’s Holding: This is a matter that is local in nature. Note that the Court expressed that its holding was applicable only to this case. These situations are case-by-case adjudications. f. McLean’s Concurrence i. Congress incorporated the state law by reference and thus the state law became federal law. The commerce power cannot be shared with the states. Congress can adopt state laws that then become federal laws; the commerce power is wholly national. The state had no power to enact the law because states never have the power to regulate interstate commerce. The state pilotage laws would have no force unless adopted by Congress. ii. The ―hereinafter‖ portion of the 1789 statute allowed states to repeal federal law, this cannot be. 1. The Pennsylvania law materially modified the act of congress. This state law was held to be constitutional. Thus, the Court‘s holding allows the state to repeal an act of congress. g. Daniel’s Concurrence i. This is wholly state power ii. This is the state‘s business, it is a health/safety question that is committed to the states IV. Oregon Waste Systems v. Department Environmental Quality a. Fact: Oregon statute called for a surcharge for out-of-state waste b. Note: Congress could have legislated and allowed Oregon to enact this law. Congress is silent, however, and thus the court must decide whether this is local or whether it is national c. Analysis i. Step One: Majority finds a facial discrimination. Thus, it is per se unconstitutional ii. Step Two: legitimate local purpose? 1. Oregon claims that the tax is compensatory and necessary for out-of-state shippers to pay their fair share of the taxes that in state residents must pay. 2. Majority rejects this argument because: a. Oregon failed to identify a specific charge on intrastate commerce equal to or exceeding the surcharge b. There is no showing that the general tax payments made by Oregonians actually explains the difference in higher rates for out-of-state shippers c. Not the same taxable events 3. Majority gives an example of an acceptable discriminatory statute a. Sales tax is allowable because it is directly complementary 4. Majority rejects resource protectionism argument a. ―A state may not accord its own inhabitants a preferred right to access over consumers in other states to natural resources located w/in its boarders.‖; states cannot hoard its own natural resources. 21 b. The Sporhase water case is confined only to water. d. Rehnquist’s Dissent i. The dormant commerce clause should be focused on striking down the efforts of the states being ―economic protectionists.‖ ii. This isn‘t a question of the state using its taxing power to give an advantage to local producers, this is merely Oregon having a valuable resource and the ―commerce clause does not require a state to abide this outcome where the natural resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage.‖ V. Camps Newfound v. Town of Harrison - Note 2, p. 389 a. Facts: Maine gave state tax break to charities who primarily served Maine citizens. b. Holding: Court found facial discrimination. Thus, the tax scheme was per se unconstitutional. c. Scalia’s Dissent: says that this isn‘t a case of a state being an economic protectionist, it is merely a matter of domestic charitable institutions, and not a matter relating to interstate commerce d. Thomas’s Dissent: says that the dormant commerce clause is a ―failed jurisprudence.‖ i. Note that three years earlier he wrote the majority opinion in Oregon Waste. ii. Thomas argues that there is no dormant commerce clause. Instead, Thomas would substitute the import/export clause from article I section 10 of the constitution. iii. The essential purpose of the dormant commerce clause can be fulfilled simply by paying attention to the textual words of the import/export clause. 1. In other words, outside of the prohibited form of taxation, states could favor their local economies, unless the elected national legislature disagreed. VI. The Market Place Exception a. General Rule: If a State is acting as a market participant, rather than a market regulator, the dormant commerce clause places no restrictions on its activities b. South-Central Timber v. Wunnicke i. State Requirment: Alaska required that its timber be primarily manufactured w/in the state prior to exportation. ii. Issue: Whether Alaska‘s restrictions on export of unprocessed timber from state-owned lands are exempt from Commerce Clause scrutiny under the ―market-participant doctrine.‖ iii. Finding: This is a mixed case; Alaska is a market participant and also a regulator because it imposes a restraint on the use of the product. iv. Holding: This second aspect is seen by the Court as regulatory and discriminatory against out of state processors. Thus it is subject to the per se test. The state had no compelling justification to survive the per se analysis. v. Rhenquit’s Dissent 1. Rhenquist‘s argument is substantially similar to his dissent in Oregon Waste 2. The case should be seen more as a market case and not as a regulatory case. The state is simply acting as a seller of goods and to use the dormant commerce clause 22 power in this instance is to use it in a manner not intended by the founding fathers. c. Question: Why should we give the state more latitude if it is a market participant? i. They must compete for the good; the same rules apply to the state as they do to ordinary individuals; they are not acting w/in their sovereign power; a state‘s power is less as a market participant, thus there is less concern over any distorting effect on the interstate or national market. d. Reeves v. State i. The state has latitude to favor its residence when the ―natural resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage.‖ STATE LAW AND FEDERAL ELECTIONS – THE QUESTION OF TERM LIMITS I. Generally a. Constitutional Provisions i. Article 1 section 2 clause 1: elector (who could vote) requirements are set by the states even though it is a national election ii. Article 1, section 4, clause 1: Times, places, and manner of elections should be decided by the states; but congress has an overriding power. iii. These provisions show that the founders‘ design of the constitution was to give the states an essential role in determining who could vote in federal elections and the time, place, and manner of elections. b. Why have term limits? i. They create more opportunity for others to serve; it breaks down some of the natural advantages of incumbency. II. U.S. Term Limits v. Thornton a. Majority Opinion i. The power to add qualifications is not w/in the ―original powers‖ of the States, and thus it is not reserved to the States by the 10th Amendment. 1. Before the federal government was formed, there was no voting of representatives to the federal government. ii. Even if the States possessed some original power in this area, the Framers intended the Constitution to be the exclusive source of qualifications for members of Congress iii. Powel v. McCormick 1. The House adopted a resolution excluding Powell from taking his seat in the House because of his conviction for tax fraud 2. This resolution was found to be unconstitutional. The house did not have any power to exclude a person who was duly elected by his constituents. 3. Powell met the age, citizenship, and residency requirements and the House could not go beyond the Qualifications Clause of the Constitution 23 iv. Basic principles of our democratic system: people should choose whom they please to govern them. 1. Stevens argues that if you can‘t run because you are term limited, you are denied that choice to vote for the incumbent. 2. Note the opposing argument: term limits promote more choices by allowing for the opportunity for others to serve. b. Kennedy’s concurring opinion i. Federalism was our nations own discovery ii. ―The Founders split the atom of sovereignty‖ iii. Citizens have two identities at all times: state identity and national identity iv. The concept of federalism doesn‘t exist as a synonym of state rights, federalism is a system that respects the sovereignty of both the federal and state governments. v. The federal government is one of enumerated, limited powers. However, when acting w/in these powers, the federal government has supreme power. vi. The power that is allocated to the federal government must be recognized by the states and vice versa. c. Dissent i. ―Where the Constitution is silent, it raises no bar to action by the States or the people.‖ ii. The majority pointed to nothing in the Constitution that expressly deprives the states of the power to set term limits. 1. Powell applied to the federal House, not the states. iii. ―The Constitution derives its authority from the consent of the people of the States. Given the fundamental principal 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.‖ Although there were no preexisting national governments, there have always been people of the states. 1. The 10th Amendment not only reserves power in the federal government, it also reserves power in the states. iv. Stevens’ argument: why did the Constitution expressly grant the states power to set the time, place, and manner if they already had the power? v. Thomas’s argument: the time place and manner clause does not delegate any authority to the States. Instead, it simply imposes a duty upon them to conduct the elections. This is why Congress is reserved their overriding power. vi. If the qualifications clause precludes adding term limits, what about the existing qualifications regarding mental incompetent, prisoners, and fraud convictions? d. Cook v. Gralike n. 7 i. Justice Story: ―the states can exercise no powers whatsoever which exclusively spring out of the existence of the national government, which the constitution did not delegate to them.‖ ii. What kind of instructions can the people give? 1. Kennedy: if you bar instructions, aren‘t you censoring the people? 24 iii. As a matter of history, the first amendment has always protected suggestions, but it has always avoided a binding direction because this would undermine the deliberations that representatives exercise. DEFINING TRADITIONAL STATE FUNCTIONS I. National League of Cities v. Usery a. Fair Labor Standards Act (minimum wage/time and a half) is extended to include state and local governments. b. Step 1: does Congress have the authority to pass such legislation? i. Yes, under the commerce clause c. Step 2: is the legislation limited? i. Yes, by the 10th Amendment d. Issue: the conflict between the power granted to Congress through the Commerce Clause to regulate commerce among the several states and the Tenth Amendment that reserves undelegated powers for the States e. Holding: In this case, the Court concluded in a sharply divided vote that although the regulation of wages and hours of certain enterprises fell within the power of the Commerce Clause, the 1974 amendments to Fair Labor Standards Act extending the minimum wage and maximum hour provisions to almost all employees of states and their political subdivisions were not within authority granted Congress by the Commerce Clause as they were "in areas of traditional governmental functions." In this case the amended FLSA operated directly to displace the States ability to structure employer-employee relationships in areas of ―traditional government functions‖ and Congress had sought to wield its power in fashion that did not comport with the federal system embodied in Constitution. f. Rule: state immunity from federal regulation turns on a judicial appraisal of whether a particular governmental function is "traditional.‖ g. Majority Opinion (Rehnquist) i. There is a fundamental difference between congressional authority directed towards the states and congressional authority directed towards private individuals ii. The Act has a significant impact on the functioning of local governments by increasing their costs. 1. This theory applies to both the state governments and private businesses. So how can this justify a state exemption? a. Private employers can make up for it by being more productive; private businesses are less important than the collective sovereignty of a state. b. ―The difference is that a State is not merely a factor in 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.‖ iii. Rule: 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 [the Commerce Clause]. 25 h. 4 Part Test i. The federal statute at issue must regulate the ―states as states‖ ii. The statute must ―address matters that are indisputably attributes of state sovereignty.‖ iii. State compliance with the federal obligation must directly impair the states‘ ability to structure integral operations in areas of traditional governmental functions iv. The relation of state and federal interests must not be such that the nature of the federal interest justifies state submission. II. Garcia v. San Antonio MTA a. District court: held that local public mass transit systems are a form of traditional governmental function. b. Why? – this is the issue in this case c. Rule: the Court ruled that the judiciary does not have a role in determining the scope of federal commerce power as it is applied to state and local government activity unless Congress takes actions that totally eliminate the sovereign existence of those governments. d. Holding: In this case the Court ruled concluding that in affording state employees the protection of the wage and hour provisions of the FLSA, Congress had not contravened the limit on its power under the Commerce Clause. In this case, the local public transit authority was not immune from minimum wage and overtime requirements of the FLSA because there was nothing in those requirements that was destructive of state sovereignty. e. Blackmun’s Majority Opinion i. Minimum wage and max hours is clearly w/in the commerce clause ii. Implicit notion of public goods being uniquely governmental is a plausible theory but courts are not very good at applying economic theory (governments can contract public goods out to private entities). iii. Policy argument: unelected federal judges are not good at making state policy decisions iv. The sovereignty of the States is limited by the Constitution itself 1. e.g. 14th Amendment (―no state shall‖); Supremacy Clause (federal government can preempt when states regulate individuals); Article III (federal courts supervise state courts when dealing with federal constitutional matters). v. Structural Controls reserved in the states: States have a role in the executive and legislative branches of the federal governments. 1. States are given the power to set the voters‘ qualifications for electing people to the legislature 2. States have power to, under the electoral college, to elect the president. vi. Holding: If the states are going object, they must do it in the political process or not at all. f. Dissent i. Some states would not have ratified the constitution at all if they were not given the guarantees found in the 10th Amendment. ii. It is possible to maintain state sovereignty but only if judicial review is preserved. 26 iii. The balancing test overruled in this case is no different than a hundred balancing test that the Court regularly applies. NO COMMANDEERING OF THE STATES I. Printz v. United States a. Rule: the federal government may not compel the states to enact or administer a federal regulatory program. i. Although the Commerce Clause authorizes Congress to regulate interstate commerce directly, it does not, pursuant to Necessary and Proper Clause, authorize Congress to regulate state governments' regulation of interstate commerce. ii. Note: the federal government can regulate state and private activities under Garcia. You can regulate the states just as you can any other private individual. However, if an act is seeking to regulate the state as a regulator of private individuals, this is prohibited by Printz. b. Majority Opinion – Scalia i. Even if there is nothing textually in the Constitution, we are given clues in early history that state officials are volunteers and have not been commanded to act. 1. State judges enforcing federal law a. It is common place for states to instruct state judges that they are bound by federal law and specifically mentioned in the text of the Constitution. b. Lower courts are totally optional. Thus, it was contemplated by the founders that state courts would hear matters of federal law. c. Very few early examples where Congress directed a state officer to do anything 2. Federalist 27 a. All this says is that state and local officers will be bound by the proper laws under the Constitution b. Proper reading: ―duty owed to the National Government on the part of all state officials, to enact, enforce, and interpret state law in such a fashion as not to obstruct the operation of federal law.‖ i. The Supremacy Clause is necessarily related to the preemption c. Federalist 27 is not referring to the government simply telling the states that they must enforce a certain regulation, it is based on the concept of preemption 3. Selective Service Laws a. president Wilson requested the assistance of the governors, obtained consent, and left it to the governors to issue the orders to subordinate state officers ii. The Articles sought to govern the federal government through the states. The power of Congress is that of regulating individuals and not sates 27 iii. Policy argument: avoidance of tyranny take place in two ways (1) through the division of power at the federal level and (2) at the vertical division of power between the federal and state governments. iv. The Brady Act transfers the federal executive power to the states, thus weakening the President‘s power. 1. Myers and Humphreys: if congress had the power to place the appointment and removal powers outside of the president‘s grasp, he cannot take care to ensure that the laws were duly executed. 2. Thus, the Brady Act would circumvent the President‘s executive power. v. Necessary & Proper Clause argument 1. You can use the N&P clause to carry out a proper function, but until you know what is a proper function, this clause is merely window dressing. (same argument as the supremacy clause) vi. EPA regulations 1. The regulations were effectively commands to the states. However, when regulations were challenged in the Supreme Court in EPA v. Brown, the government conceded the invalidity of the regulations. 2. What about federal clean air standards that states enforce? a. State compliance with EPA regulations is there because the states essentially have contracts with the federal government (accept federal money if they comply). The theory is that this compliance is voluntary b. Thus, the federal government uses money to get states to comply with federal regulations vii. Hodel & FERC 1. Looked like the fed gov was ordering the states. 2. However, the federal acts merely made compliance a precondition to continued state regulation in an otherwise pre-empted field. 3. Note that this alternative does not work in the instant case. There is nothing that the states are doing that the federal government had the power to preempt. There was nothing for the government to trade viii. Two things that threaten democracy 1. The effect of the federal government ordering state governments around basically subtracts their service to the residents of the states. 2. Also, the state official will be the one held accountable even though he has no authority to change the law. You are basically blaming the messenger. c. Stevens’ Dissent i. Federalism argument 1. The Supremacy Clause allows for commandeering 2. If states don‘t like this, they must change this through the political process ii. If the states don‘t want to comply with the federal government, the federal government will create vast national bureaucracies to implement its policies. 28 d. Reno, note 3, p. 459 i. Facts: The act applied to both states and private individuals b/c it limited the states from selling the information to private marketers. The act was challenged in two ways (1) it exceeds the commerce power and (2) Printz prohibits this type of regulation. ii. Supreme Court’s analysis 1. A car is an instrumentality of commerce (Lopez) 2. Prinz does not apply because here, the law regulated state activities rather than seeking to control or influence the manner in which states regulate private parties. 3. The federal government can regulate state and private activities under Garcia. You can regulate the states just as you can any other private individual. 4. If an act is seeking to regulate the state as a regulator of private individuals, this is prohibited by Printz. IN LIGHT OF THE SPENDING POWERS, DOES THE COMMERCE CLAUSE MATTER? I. South Dakota v. Dole a. Spending power – art 1 §8: i. Is there any limitation of what the federal government can spend its money on? 1. Congress is not limited to spending in areas of its enumerated powers. Thus, Congress does not have the power to do certain things directly, but it can do it indirectly as a condition on federal spending. b. Facts: Congress threatened to withhold highway funds if SD did not raise its minimum drinking age. c. 21st Amendment: the Court did not decide whether the 21st amendment would prohibit Congress from directly passing a national drinking age. d. Assuming there was no 21st Amendment, could Congress pass a law setting a national drinking age? Yes, via the interstate commerce clause e. Issue: Is the condition on spending constitutional, independent of the issue of whether Congress could directly pass a national drinking age pursuant to the commerce power? f. Limitations to Congressional Spending i. Must be for the ―general welfare‖ ii. Must be a clear, unambiguous statement that Congress is binding the states if the states accept the money. See Barnes iii. Conditions must relate to a federal interest in particular national projects or programs. See Sabri iv. Cannot go against an independent constitutional bar to the conditional grant of federal funds. g. Issue: Only the last independent constitutional bar limitation is at issue in this case. h. Isn’t the 21st Amendment an independent constitutional bar? i. Spending power may not be used to induce the States to engage in activities that would themselves be unconstitutional. 29 ii. The 21st A is a grant of power, not a limitation of the states. Thus, it cannot be an independent constitutional bar. i. Note: Spending power cannot be so coercive as to pass the point at which ―pressure turns into compulsion‖ i. ―Here Congress has offered relatively mild encouragement…‖ j. Brennan’s dissent i. Congress should not be able to regulate either directly or indirectly b/c of the 21st A. k. O’Connor’s dissent i. The attempt to regulate liquor is an attempt that lies outside Congress‘ power to regulate commerce because it falls within the ambit of the 21st A ii. O‘Conner nevertheless puts the 21st A aside and considers the limitations on congressional spending iii. The condition imposes is not reasonably related to the purpose of the funds. iv. Test: whether the spending requirement or prohibition is a condition on a grant or whether it is regulation. 1. The condition must pertain to how the money is going to be applied by the states, anything beyond this is simply regulation that is attached to the money; you can‘t build into a condition a regulation that has nothing to do with the condition itself. 2. The only possible connection, highway safety, has nothing to do with how the funds Congress has appropriated are expended. 3. Note how this is analogous to the marketplace participant doctrine l. Note 5, p. 468 i. Barnes v. Gorman 1. Issue: Whether or not the states were aware that if they violated someone‘s civil rights they could be subject to liability for punitive damages 2. This case is really a condition that a spending limitation must be clear and unambiguous. The states must be aware of what they are getting themselves into when they accept the funding. m. Note 6 i. Sabri v. United States 1. Facts: Sabri was charged with three counts of bribery 2. Exercise of the spending power: If a state political entity receives 10k or more a year in federal funds, §666 makes it illegal for an agent of such an entity to receive a bribe of more than 5k. 3. Question: Could congress regulate directly and pass an anti-bribery statute? a. Doubtful, thus Congress decided to regulate indirectly through its spending power. 4. Argued: Sabri argued that in the prosecution of this statute, the government is not required to prove a nexus between the offense conduct and a federal interest. This was based on O‘Connor‘s dissent in Dole. 30 5. Souter’s unanimous opinion: The relationship requirement is loose, it only has to relate to a general federal government interest. DUAL SOVEREIGNTY IN COURT – HEREIN ELEVENTH AMENDMENT SOVEREIGN IMMUNITY I. Simonle Tribe v. Florida a. Facts: IGRA imposes a duty on States to negotiate in good faith and authorizes a tribe to bring suit in federal court against a State. b. Issues: Does the 11th Amendment prevent suits by Indian tribes against the states? Does ex parte Young permit the suit? c. IGRA: congress passes this Act pursuant to the Indian Commerce Clause, a valid congressional power. This act provided for a private citizen to sue a state. d. 11th Amendment: tells you how to construe Article III (the judicial power) i. By its plain terms, the 11th Amendment only applies to diversity cases. It doesn‘t seem to say anything at all regarding federal question cases. ii. The dissent points this out: the 11th A doesn‘t apply to this case e. Two prior cases (this is the basis for the disagreement between the majority and dissent) i. Chisholm 1. Out of state citizen relying on diversity jurisdiction to collect a debt from the state of Georgia 2. SC allows the cause of action and brings judgment against Georgia 3. There was public outcry over this decision which spurred the passing of the 11th Amendment just a year later ii. Hans 1. This was a federal question case; Louisiana issued bonds and reniged on their bond agreement; bond agreements are contracts; Hans, an intrastate citizen, brings a suit pursuant to the contract clause in the constitution. 2. SC decides that the 11th Amendment precludes the cause of action. f. Rehnquist’s Majority Opinion i. Believes that the 11th amendment is broader than its text, and thus it agrees with Hans 1. Rehnquist argues that this case is not governed by the text of the 11th amendment, but by its lingering background of suppositions. ii. Context Argument: the 11th amendment was reacting to a particular situation of particular facts; 1789 Judiciary act granted diversity jurisdiction but left out federal question jurisdiction. Federal courts had no federal question jurisdiction until 1870. Thus the federal questions were being heard in state courts. Thus, at the time Chisholm was decided, it is not surprising that the 11th amendment was targeted towards federal diversity cases. There was no federal question jurisdiction until 1870. 1. Furthermore, the 11th A must stand for the broad supposition of sovereign immunity that was behind its purpose; in other words, had the federal courts had federal question jurisdiction at the time the 11th was drafted, it would have been mentioned in the 11th amendment 31 iii. Union Gas 1. Issue: whether Congress has the power to abrogate state sovereign immunity under its commerce power. 2. Holding: congress can pass a statute pursuant to the commerce power that can abrogate state sovereign immunity. iv. State sovereign immunity: according to the majority of this Court, State sovereign immunity is the presupposition that a state cannot be sued w/o its consent unless congress has some other power by which it can abrogate the state‘s immunity claim v. Overruling Union Gas 1. Why does the majority believe that the commerce power is not sufficient for abrogating state sovereign immunity? a. Congress cannot expand the scope of the federal courts‘ jurisdiction found in Article III. b. Congress can limit the courts‘ jurisdiction but cannot add to the constitutional list of jurisdiction in Article III. c. Note: for this rationale to make sense, you have to be convinced that the 11th Amendment, notwithstanding its text, applies to both diversity and federal question cases. vi. Other than the commerce power, how can Congress abrogate state sovereignty immunity? 1. The 14th Amendment, which was ratified after the 11th Amendment. It was specifically conceived to place constraints on the states. Section 5 gives the power 2. Congress can pass legislation pursuant to section 5 and can abrogate state sovereignty 3. The 14th Amendment, however is unavailable here because there is no issue of due process, equal protection, etc. vii. Ex parte Young: Alternative way to get an effective remedy against a state officer; exception to the 11th Amendment. 1. The 11th immunity provides only for state immunity a. State officers can thus be sued even in their official capacity 2. Rule: Ex parte Young is a judicially crafted exception allowing for prospective injunctive relief whenever there is a need to remedy a continuing violation of federal law by a state officer. a. However, the majority says that ex parte Young is not applicable because ―it does not appear to us that Congress‖ intended this judicially created exception to apply here b. Because ex parte Young is created by the court, when Congress has provided a detail remedial scheme it does not apply. g. Souter’s Dissent i. Two 11th Amendments: the one ratified in 1795 (covers only diversity cases) and the other invented by the Court in Hans v. Louisiana (covers both diversity and federal question cases). 32 ii. Souter responds to the context argument of the 11th amendment 1. the Court, in Hans, ―rested its opinion on avoiding the supposed anomaly of recognizing jurisdiction to entertain a citizen‘s federal question suit, but not one brought by a noncitizen.‖ The Hans court assumed that a citizen could still bring a federal question case but a non-citizen could not. 2. Rehnquist believes the context argument of the narrow 11th amendment 3. Souter says that the 11th amendment was written only to cover diversity lawsuits and it was not intended to cover federal question lawsuits at all. h. Abrogation i. Majority: abrogation can only be done by the 14th A ii. Minority: abrogation can be done by the 14th A and the commerce power II. Three propositions of state immunity a. You cannot sue the state in federal court for either a diversity action or a federal question action w/o its consent b. The state can consent to the suit c. Even if the state does not consent, congress has a limited ability under an appropriate source of power to abrogate states immunity i. Seminole tribe – says that commerce power is not an appropriate source of power for abrogation 1. Acceptable source of power is §5 of the 14th A III. Exceptions to State immunity a. Article I exceptions that allows Congress to create liability on behalf of private parties against the states i. Liability may result by virtue of state participation in an interstate compact ii. The spending clause – congress can condition its grant of funds to the state upon their taking certain actions that Congress could not require them to take b. What about state immunity in its own courts from federal causes of action? i. Alden v. Maine 1. Holding: if plaintiffs are precluded from bringing suit in a federal court b/c of the state‘s immunity under the 11th Amendment, plaintiffs cannot avoid this immunity by bringing the suit in a state court. c. 14th Amendment Power - §5; this is an acceptable source of power i. Congress may authorize a private cause of action but only… see n. 9, p 498 ii. Kimel 1. Issue: age discrimination iii. Florida Prepaid 1. Issue: state infringement on private patents (depravation of property w/o due process of the law) iv. Garrett 33 1. Issue: violation of ADA v. All these cases were found (5-4) by the SC to be inadequate to abrogate state‘s immunity because in each case the Court found that congresses power was exercised in a way ―that was not congruent and proportional to its object…‖ d. Note 10, p. 499 – deals with the application of the 11th A in federal agency adjudication, i.e. administrative proceedings i. Facts – cruise company brought an agency COA for violation of the maritime laws ii. Holding: the 11th A precluded holing states liable because the proceeding, walks, talks, and squaks, like a lawsuit; if immunity in federal court and state courts, then you should have immunity here also. e. Federal Government can always sue i. State immunity is not a defense from federal government suits, it is only a defense against private causes of actions. f. Private citizens can sue state officials under ex parte Young. Yet the remedy is merely for injunctive relief and not for damages. IV. Nevada Dept. of Human Resources v. Hibbs a. Issue: can a private individual sue a State; does the court have jurisdiction or does the 11th A bar jurisdiction b. Holding: congress got its power to pass the FMLA from a combination of the Commerce power and §5 of the 14th Amendment. c. §5 of the 14th Amendment i. ―it falls to this Court, not Congress, to define the substance of constitutional guarantees.‖ ii. Congress‘s job under §5 is to remedy and to deter violations of rights guaranteed there under. iii. Congress is allowed by the Court‘s cases to go somewhat beyond, but not too far beyond, the scope of the constitutional guarantee 1. Example: voting rights a. The Court has determined that, in and of themselves, literacy test are not a violation of the equal protections clause or the right to vote. However, Congress has banned literacy tests in certain contexts and the Court has approved this. b. Congress can deter violations if they have the proper context – i.e. prophylactic legislation. d. Equal protection violation – different treatment based on gender. i. There are certain individual rights that are subjected to heightened scrutiny ii. Age, disability, are not held to more suspicion iii. Gender is held in some suspicion iv. Any ―gender-based classification must ‗serv[e] important governmental objectives,‘ and ‗the discriminatory means employed [must be] substantially related to the achievement of those objectives 34 e. Issue: was Congress seeking to use the power under §5 of the 14th A to prevent gender-based discrimination? f. Where did the Court find gender discrimination? i. Parental leave for fathers is rare ii. Not all states provide for family leave, and when they are provided, they usually only apply to women. iii. ―the States‘ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic § 5 legislation g. Rule:? Congress must identify, not just the existence of age- or disability-based state decisions, but a widespread, solid record of state intrusion of constitutional rights h. Teaching of this Case: Congress can abrogate if it is acting under §5. Their actions must be congruent and proportionate to a violation that is w/in the scope of §5. Congress is given more deference when it is legislating with respect to suspect classes of discrimination such as gender. i. Dissent – Kennedy i. Congress does not have authority to define the substantive content of the Equal Protection Clause; it may only shape remedies warranted by the violation of that guarantee. ii. Most of the evidence that the Court uses to show discrimination is private discrimination and not state discrimination iii. A state does not violate the Equal Protection Clause by granting pregnancy disability leave to women w/out providing for a grant of parenting leave to men. 1. Men and women are not similarly situated w/ regard to pregnancy. j. Core teaching of this case: This case is an example of how the 11th Amendment trend of Rehnquist has slowed down with respect to suspect cases of discrimination. i. This is seen in Tennessee v. Lane 1. Disability is not a suspect case of classification but we have its parallel – a fundamental right. 2. The Court uses the same principal used in Hibbs that Congress has wider latitude to legislation with respect to a fundamental right the same way it does with suspect cases. INDIVIDUAL RIGHTS LIMITATIONS ON THE POWERS OF THE STATES I. City of Boerne v. Flores a. The scope of the 14th Amendment and Congress’s ability under §5 to abrogate i. SC said that congress can remedy and deter ii. How is this not a remedy or deterrence? 1. It must remedy something that the Court has said is a constitutional violation 2. SC said that neutral laws are ok as long as they are not aimed at the free exercise of religion. 3. Congress cannot redefine the constitutional guarantee itself 35 b. Congress’s Intentions: Congress attempted to say that it was going to be more sensitive to the free exercise of religion than the court had been when defining the constitutional protection of the free exercise of religion in the Smith case. i. Congress disagreed with the Court‘s view that a neutral statute was constitutional even though it had the effect of discriminating based on religion. c. Congress’s Contention: Congress contends that it was passing prophylactic, deterring legislation under §5 of the 14th A. i. Why can Congress get at the disparate effect of literacy tests under the voting act but not at the zoning laws in this case? 1. The Court says ―In contrast to the record which confronted Congress and the judiciary in the voting rights cases, RFRA‘s legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry.‖ a. Instead of being an effort to defer, this is more an effort to redefine; i.e., substituting Congress‘s definition for the Court‘s d. Why can’t Congress redefine? i. Constitutional rights embodied in something higher than written laws. ii. Systems of checks and balances e. Note: In this case, unlike Hibbs and Lane, the Court does not give Congress latitude with respect to a fundamental right when it is trying to redefine that right. f. Note 3, p. 551 i. Katzenbach – theory was proposed that congress can redefine only when they are increasing liberty; i.e., the ―one way ratchet‖ 1. Problem – when you increase the liberty of one group of people you intrude on another group. Example – boy scouts believe that gays should not be scout leaders in their organizations. 2. This Congressional redefinition was rejected by the courts. And in Bourne, Congress can go beyond deterrence only when there is a solid record of state intrusion of constitutional rights ? II. Barron v. Mayor of Baltimore a. Issue: does the 5th A taking clause apply to the states? b. Marshall’s Opinion i. The Bill of Rights, were intended to protect against intrusions by the Federal government, not State governments. c. Note: This dynamic changed after the civil war and the passage of the 14th Amendment III. Palko v. Connecticut a. Facts: The State wanted to retry the defendant for 1st degree murder and to seek the death penalty b. Issue: does the federal double jeopardy clause apply to the states? c. Holding: No. The Bill of Rights do not apply in their totality to the states. Instead they are going to apply selectively to the states through a process of judicial incorporation. 36 d. Judicial Incorporation Doctrine: i. Judges should incorporate things that are ―implicit in the concept of ordered liberty.‖ 1. ―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.‘‖ IV. Adamson v. California a. Facts: California Law allowed courts and the jury to consider the fact that a criminal defendant refused to testify; if the defendant decided to testify, then all his/her priors could come in as evidence to impeach the defendant‘s credibility b. Issue: Is this a matter of something that is ―implicit in the concept of ordered liberty.‖ c. Court’s Opinion i. The only thing that Due process prohibits is fear of hurt, torture, or exhaustion but it does not require the freedom from compulsory testimony. ii. ―The purpose of due process is not to protect an accused against a property conviction but against an unfair conviction.‖ iii. This court affirms that those rights that are ―implicit in the concept of ordered liberty‖ will be incorporated. d. Frankfurter’s Opinion i. ―It would be extraordinarily strange for a Constitution to convey such specific commands in such a round about and inexplicit way.‖ ii. If you want to apply the bill of rights to the states, say so explicitly. iii. However, the founders did not use such language. The Constitution should be understood in its ordinary meaning. Otherwise you have subjective judicial interpretations of what is fundamental and what is not fundamental. e. Black’s Dissent i. The entire bill of rights was incorporated to the states by the 14th Amendment. ii. The history of the drafting of the 14th Amendment proves that the drafters wanted to incorporate the bill of rights. 1. Bingham said that he did intend to incorporate the Bill of Rights when he drafted the first section of the 14th Amendment. f. Examples of rights that have not been incorporated to the states: Right to indictment and right to jury V. Exam Tips a. One main fact pattern with 6 mandatory subparts b. Pay close attention to the commerce power as Congress‘s default power. c. The historical materials i. Re-read: the Prohibitions del Rey 1. Once you go through a modern analysis, go through an analysis based on the early historical materials for bonus points d. Pay close attention to the branches of government and especially to the dimensions of the tension between the executive and legislative branches. 37