Con Law Fed-State Outline

CONSTITUTIONAL LAW – FED/STATE Here is the forest, before examining the trees… This course is designed to highlight the structure of the Con. - Structure of the Con has two primary features: 1. Horizontal – What are the relations between the branches? - What’s the SC’s scope of power as to judicial review? - What’s the scope of the legislative power, in particular the commerce clause – does it have a limit? - Can the executive do anything apart from enforcing the laws created by Congress? What may he do in foreign affairs? Relationship b/t President and subordinates? The essence of executive office is who you can fire. Independent agencies are the fourth branch – not entirely answerable to any of the 3 branches. 2. Vertical – What are the relations between the fed gov’t and state gov’ts? - Federalist 45: the federal powers are few and defined. State and local powers are numerous and indefinite. The lack of definition makes state powers weaker. - A line of cases say that fed powers can’t boss state officers around – in particular, they cannot create a program and make the states enforce it. This leads to theory that we can constrain the methods by which the feds regulate the states. - There is a “dormant” or negative commerce power. This is the Court pinch-hitting for Congress when a state law is asserted to be deliberately discriminating against or burdening interstate commerce (i.e. restraints against buying another state’s wine). Thus, the Court invokes the clause even though Congress hasn’t legislated in the area – making the power “negative.” What the Con means depends upon the default view of political power. Federalists thought all power resided in the people and if the Con didn’t take some aspect of that power away, it necessarily remained with the people. The Antis feared that the default would be understood as all unenumerated powers residing in the government. Winthrop – Civil society is ordered under God so that by obeying Him the society will flourish. Law and order are merely the mechanisms by which the people obey their duties to God – piety. Obedience to the law is merely the outgrowth of moral behavior. The Hebrews brought to humanity the notion that law has its origin above us – that it reflects the divine will and exists apart from any human promulgation in conformity to or against its edicts. Aristotle suggests that the people must govern because they embody the middle ground. Cicero makes sure to remind us that the people don’t always know best and will make bad laws (or no laws at all) if their morality is corrupt. NOTE that positive law is an attempt to codify justice, proper understanding of which is formed through right reason, which emerges from an understanding of human nature. 08.21.03 Chief Justice Roy Moore of the Alabama supreme court enshrined the 10 commandments in the rotunda of the Justice building without notice to the court. The ACLU brought suit claiming uncon establishment of religion. Moore has lost at every level and the SC has declined to review the order of the Alabama supreme court to remove the monument. Are we free to practice religion or are we free from any imposition of religion? - Does the case change once a federal injunction is ordered? Does the violation of positive law mean more or something different than the violation of a natural law? Article VI of the Con proclaims that the decisions of the SC are binding on state courts - the “supremacy clause.” But the authority for the Con itself is a higher law and, as such, it is subject to it. Further, obedience to the higher law is required over obedience to the Con which rests on it. - Does consideration of the D of I change anything? The framers were violating positive law in revolting. They claimed natural law principles as preeminent to the English positive law. If the D of I is true, a federal injunction is irrelevant to the fundamental correctness or incorrectness of the Alabama order. - Why is the monument any different than proclamations of “In God We Trust” or requiring swearing in under oath, etc.? The courts are split on this. Is the constitution a means or an end to itself? What is the gov’t designed to do? The founders established the gov’t to secure the preexisting rights of all human beings. 3 Elements to Common Law Reasoning 1. God’s law 2. Natural law 3. Positive law - Ex.: Suicide. It violates the law of God that “thou shalt not kill.” It violates the law of nature in favor of self-preservation. It violates positive law which prohibits suicide because it hurts the society in general. - The common law assumed that the positive law ought to reflect, not contradict, the higher laws. - Common law begins in a judge’s reasoning from human nature. These decisions form precedent, from which later judges can draw. When certain decisions become nearly universally accepted, legislatures codify them so that judges need only look to statutes. - The D of I refers to “laws of nature and nature’s God” to ground its claim to universal rights. - Thomas More said that he could not be liable for refusing to affirm the king as pope because the common law held that silence cannot be construed as either admission or denial. By this, he held the authority of the common law above the authority of the king where the two conflict. Roy Moore, to follow the same example, must make every argument in favor of an interpretation of the Establishment Clause that allows freedom TO practice religion, not freedom FROM seeing another practice it. - The last words of Thomas More: “I die the king’s servant, but God’s first.” *NOTE: Rep. Schumer (NY) questioned Bill Pryor’s ability to fulfill his oath as judge because of his “deeply held religious beliefs.” Pryor said no because the appellate judge is to follow precedent regardless of personal beliefs and would not be complicit in any wrong resulting. 2 - Kmiec notes that other judicial duties would make one culpable and one would have to make a choice between duties and beliefs at that point. Justice Scalia makes clear that he believes justices are merely to reflect majority opinion. A questioner says German laws exterminating Jews would be approved by a majority. Scalia then admitted that the Bill of Rights was a bar to such behavior, but none created by justices would fly. IN SHORT: Is a Constitutional law unreachable? Or is it susceptible to appeals to a higher law? What higher law? How can we tell what it says? 08.26.03 SEPARATION OF POWERS Montesquieu – Original collector and promulgator of the doctrine of the separation of powers. His premise is that the collection of the executive, legislative, and judicial powers in one person leads to (or is) tyranny and impedes liberty. The separation of powers is necessary to protect liberty. - NOTE that M and the Federalists thought the judiciary was barely on the radar. Why is that no longer the case? Judicial review was anticipated by the framers, so that’s not entirely it. TWO THINGS: 1. The sheer volume of law has increased greatly; 2. The Court has become politicized as interest groups have willingly brought the judiciary into play by asking it to review nearly every case adverse to those groups. Note also that the Court has largely been a willing accomplice to this. ASIDE: The dilemma that arises regarding national security where laws are promulgated by the executive, enforced by the executive, and interpreted by the executive resulting in US citizens (captured on the field of battle) being held in military brigs indefinitely until “something” happens. Courts asked to review this problem have washed their hands of the powers delegated to the executive in prosecution of a war. NOTE the various ways Montesquieu’s ideas found their way into the Constitution. Can’t serve in Senate and Judiciary (incompatibility clause), etc. - Note M’s idea that executive power is held in one hand not for deliberation, but for dispatch. - Note M’s ideas that legislature should perpetually be turning over and should not always be in session. - The constitution embodies two contrary positions in England 1. Human government needs only the separation of powers to allow the virtuous to operate unimpeded. 2. Human government needs to take into account that ambition drives human nature and that good government must oppose ambition with ambition – resulting in a general inaction broken only by the agreement by nearly all parties that something must happen. - “Separation of powers” does not mean that functions never cross, but only that powers are blended, requiring (in most cases) the combination of powers to get anything done. 3 The Judicial Branch Who should nominate/confirm judges? - Executive is subject to partiality, but also may be better able to judge judicial character and can act with dispatch. Also, responsibility is clear because only one person nominated. - Legislative groups better reflect the people, but are subject to cabals, vote trading, etc. and no clarity on responsibility. SO, the framers decided to give the power to nominate AND confirm judges to the president CONTINGENT UPON the advice and consent of the Senate. - There is nothing to prevents the Senate collectively or individually from partiality. What kind of courts should exist? - Constitution created a Supreme Court, but inferior federal courts were optional – the power to create them reserved to the legislature; thus inferior federal courts exist by statute, not constitution. - Inferior federal courts were created prudentially to guard against state courts interpreting federal law differently and thus creating forum shopping for the same law interpreted differently. Justiciability In general, this is about the scope of the judicial role – what cases and litigants should be subject to the power of the court? NOTE that Art. III says nothing about standing. The entire concept is a judicially-created constitutional gloss on the actual text. Usually, this is a policy choice, which sometimes leads to inconsistent decisions. Standing Standing is a crucial gloss on the “case and controversy” requirements of the Constitution to maintain separation of powers – that is, to prevent the courts from redeciding every law. - Note the way the ACLU et al have attempted to overcome this. Constitutional standing requires: 1. An injury in fact 2. caused by the D 3. capable of redress by the judiciary Injury 1. Violations of constitutional rights, statutory rights, and rights recognized at common law are injuries sufficient to confer standing. Beyond this, the Court’s outcomes do not always follow a consistent principle. 2. The injury must be personal and concrete/actual or imminent – there cannot be a generalized grievance shared by all (such as taxpayer grievance where you don’t like the way the gov’t is spending money – although there is an exception for taxpayers litigating a potential violation of 4 the Establishment Clause). Nor can there be a general assertion of environmental damage unless the litigant can show personal impact - Lujan. Neither can a member of Congress assert a general standing because they can merely continue their quest through the courts because they have “standing” to every loser legislative bill. - 2 Exceptions to Ban on Legislative Standing: 1. Where legislator suffered personal injury in being denied his right to sit in Congress (Powell) 2. Where legislators allege that their votes were insufficiently counted and, as a result, a bill failed. Causation - In general, your injury must be fairly traceable to the challenged actions of the D; no injury “but for” the D’s conduct is the preferred standard. The further you get away from “but for,” the harder it is to prove standing. - Ex.: Where looser IRS standards for “charitable organizations” caused orgs to reduce services because they didn’t have to offer them to maintain “charitable” status, the Court held that it wasn’t truly “but for” causation because the IRS didn’t require the reduction of services, but merely allowed it. This is an indirect cause, fatal here, but not always. Redressability - In general, is the court capable of dispensing lawfully the type of relief the P is seeking? I.e., is it likely, as opposed to merely possible, that relief will redress P’s injury? - Ex.: Linda RS - TX had statute allowing jailing of deadbeat dads for nonsupport. P said TX failed to jail deadbeat to whom she was not married. Court held that jailing the dad would not provide her the relief of renewed child support. Prudential Limits to Standing: 1. P can only assert his own rights. - Exceptions: 1. If 3rd party cannot bring his own claim AND litigant is reasonably likely to effectively represent the interests of that 3 rd party. 2. If 3rd party has a “close relationship” with litigant (i.e., doctor/patient, vendor/customer, etc.) 3. “Overbreadth Doctrine” – Allows a party to challenge a statute on the ground that it violates the First Amendment political speech rights of parties not present even if it’s constitutional as to litigant. - Needs to be substantial overbreadth - Only applies to political, not commercial speech 2. P can only assert violation of statutory rights that fall within the “zone of interest” which the Congress had in mind when it passed the statute. - Zone of interest is an inquiry into Congressional intent: Did Congress anticipate that you would be the type of person affected so that you can bring a claim? - E.g., the Endangered Species Act is argued to include economic interests affected by the protection it affords  if not, someone whose livelihood is affected would be unable to bring suit to overrule because Congress simply didn’t intend to reach his interests. 5 3. An association can bring suit on behalf of its members if: 1. its members have standing individually 2. the interests at state are germane to the organization’s purpose 3. neither the claim nor the relief requires the participation of the members in the suit Ripeness - Ripeness turns on: 1. hardship to the parties of withholding court consideration and 2. fitness of the issues for judicial decision - Hardship situations are: 1. P is faced with foregoing action he contends is lawful or risking prosecution, 2. where actual prosecution hasn’t commenced if such is certain and imminent, and 3. where there are collateral injuries - i.e. suit against nuclear plant under statute limiting its liability; ct allowed suit even though no event of disaster because of the collateral damage of living near a reactor. - Fitness of issues includes questions that are heavily dependent upon facts, cases where the factual record is insufficiently developed, etc. Mootness - Requires that a particular P have a personal interest in the litigation from commencement to termination. If interest disappears, the case is “moot.” - Exceptions 1. If there’s a fully developed record on an issue in need of resolution, secondary or collateral injuries may be sufficient to continue. E.g., D released from prison, but still wants to appeal conviction to regain voting rights, remove conviction from record, etc. 2. If there are wrongs capable of repetition yet evading review (i.e., abortion cases where standing disappears before the case goes to trial). - There must be rx expectation that complaining party will be subject to injury again AND injury is of inherently limited duration so that it won’t extend through review. 3. If D voluntarily ceases injury but is free to resume activity at any time. - Promise not to resume is insufficient. 4. If the claims of a named P in a class action are rendered moot. - This is because the class members acquire separate legal status from that of P. 08.28.03 Supreme Court Subject Matter Jurisdiction (goes hand-in-hand with standing to meet the case and controversy requirement) Four main types of appellate jurisdiction 1. Question of Constitutional law of interpretation of a federal statute (federal question jurisdiction) 2. Controversies between citizens of different states (diversity jurisdiction) 3. Admiralty or maritime law 6 4. Controversies naming US as a party 4 Types of original jurisdiction 1. Controversies between two or more states - exclusive 2. Actions involving ambassadors, public ministers, etc. 3. Controversies between US and a state 4. Actions by a state against the citizens of another state or against aliens NOTE: 4 Justices must agree to grant cert. Exceptions to Appellate Jurisdiction Ex parte McCardle Rule: Congress CANNOT modify SC’s original jurisdiction. Rule: Art. III Sec. 2 of the Const. gives the SC general appellate jurisdiction except that Congress has the power to regulate or except the appellate jurisdiction of the SC. McCardle held that the affirmative grants of appellate jurisdiction in the Judiciary Act negated all other jurisdictions by implication. Rule: Congress cannot restrict jurisdiction in ways that undermine the “core functions” of the SC. Article II Section 2 gives appellate jurisdiction to SC in all matters with such exceptions and under such Regulations as the Congress shall make. Here, the SC had jurisdiction under the Judiciary Act of 1789, but a subsequent statute repealed jurisdiction. The SC held that it had no jurisdiction because it was removed lawfully pursuant to Art. III Sec. 2. - Is there any limit to the Congress’ power to restrict? What if Congress passes a statute keeping SC from deciding the constitutionality of the ten commandments case? It can’t do things that undermine “the core functions” of the SC. When Congress passed a statute extending the statute of limitations for a particular case, the SC struck it down as too much of an invasion into the judicial function. The key is the attempt to influence a specific case. When a general statute is passed that changes a particular party’s rights, this is the legislative function and must be accommodated. - Hamilton’s advice to the people in the event of a renegade judiciary is to reconstitute or at least amend the constitution/gov’t – after sufficient deliberation. Rule: Congress can modify lower federal court jurisdiction at will BUT it cannot change jurisdiction to get a particular result (i.e. Kline and denial of indemnification against Southerners). Note, though, that change in jurisdiction during suit is not considered an attempt to change the result if the change applies to all similar cases. Marbury v. Madison Rule: Acts of Congress which are repugnant to the Constitution are unconstitutional and thus not law at all. Marbury is appointed by Adams as a justice in DC. Adams forgets to convey the commission to Marbury and Jefferson comes into power. Jefferson’s Sect. of State Madison refuses to convey the commission to Marbury and Marbury brought suit against Madison in the SC based upon Judiciary Act which provides the SC may issue a writ of mandamus (command to official to perform a non-discretionary duty). But the Con only grants federal question appellate 7 jurisdiction, whereas Marbury is invoking a statute granting the jurisdiction to issue a writ of mandamus (note that there is factual argument over whether the Congress mean that jurisdiction to extend only to appellate jurisdiction or original). Thus, Marshall says he can’t grant mandamus because the Con says he can’t issue writs of mandamus in original jurisdiction and this overrides the Congressionally granted, but unconstitutional, power to the contrary. - Marshall argues for judicial review thusly: 1. The con is paramount and fundamental 2. Judiciary is limited and not omnipotent 3. SC’s jurisdiction extends to cases under the con - He ultimately relies on the Supremacy Clause – if an act of Congress is substantively opposed to the Con, the SC gets to say that. - Note that judicial review was extended to substantive issues, i.e., whether the law is reconcilable with the text of the Con. Judicial review used to be narrowly construed to reach only the procedural aspects of a law, i.e, if the law was passed according to the Con, it was Con. - NOTE that Jefferson said the case was obiter dicta because, if Marshall was right that the SC had no jurisdiction over the issue, the Court had no right to pronounce on it at all and the rule of judicial review is dicta. 09.02.03 RECAP: Our gov’t was designed to encompass both the good and bad aspects of the human nature. This understanding is comprehended in the library the Founders had access to in forming the Con. Our gov’t formed to secure inalienable rights. Founders understood the law to conform to the hierarchy of God’s law, natural law, and man’s law, by which human law was judged. Specifically, the separation of powers was implemented to secure the people’s rights. Judicial power deals with justiciability, what cases fall within the jurisdiction of courts. Note that appellate review of SC is limited by Congress’s legislative power. Marbury stands for the prop that the SC is the final arbiter of the meaning of the Con. BUT . . . To what extent can the Congress/President implement a different understanding of the Constitution? - Can a President disagree with SC’s interp of the Con? Does he have latitude to implement that understanding? He can exercise his veto on legislation. While traditionally he must explain himself, the reason can be good, bad, or nonexistent. - What if the President merely refused to enforce statutes he felt unconstitutional? He has constitutional duty (Art. II) to enforce legitimate statutes legislated by Congress. - SO, president has some discretion in using his powers to implement different understanding of constitution, but he can’t do other than he is mandated by the constitution because he must “take care that the laws are faithfully executed.” - Can Congress do similar things? In Texas v. Johnson, the SC said flag burning was constitutionally protected. Congress then tweaked the statute to ban it again without appearing to discriminate against viewpoints – and it claimed its constitutionality. SC struck it down 8 again. But Congress can write laws creating greater protections than the SC’s understanding of constitutionality. - SO, Congress has some discretion in using its power, but within the baseline of constitutionality established by the SC Martin v. Hunter’s Lessee (pg. 212) Rule: State courts are bound by the federal constitution. But lower federal courts exist at pleasure of the legislature. Without them, the final word on federal questions on the constitution would rest with the state courts in violation of the Art. III power of appellate jurisdiction in all cases. VA confiscated Martin’s land after a treaty (federal law) signed promising not to do so to English citizens. VA claimed it was pursuant to VA law. SC says that treaty (as federal law) supercedes state law by virtue of the Art. VI supremacy clause. NOTE, VA says it can interpret the federal constitution as to what the supremacy clause means. But the SC says that Art. III places the ultimate interpretation of the constitution in the hands of the SC. J. Story held that the reason the SC had jurisdiction was the TYPE OF CASE, not where it originated. If the SC couldn’t decide ALL cases, it would not be exercising its full appellate jurisdiction. Cooper v. Aaron Rule: Case has come to mean not that the SC is the sole interpreter of the constitution, but that it has the power to establish a constitutional minimum. SC unanimously required that Arkansas governor abide with federal court order to desegregate. Governor claimed that Arkansas was exempt from compliance because case from which the order arose didn’t include Arkansas. These cases make the Court very powerful, but not all powerful. What other methods may be used to restrain the Court? 1. Impeachment power – although it’s never been used on a SC justice 2. Presidential appointment/Senate approval - ensure different ideological stances as Presidents and Senate cycle through 3. Standing – keeps Court from making policy (sometimes) 4. The distinction between the Constitution and constitutional law. That is, the SC can change its mind and reverse itself as to what the Con says – and it can ONLY cite the Constitution itself as proof. 5. Deference – by the SC to the Congress and the states 6. Presidential veto – despite contrary ruling of the SC (subject to 2/3 Congressional overrule) 7. Levels of scrutiny – the SC voluntarily limits its power by determining how close it reviews a case by the issues involved. The more constitutional issues involved and the less a policy issue is involved, the more the SC is involved. 8. State issues are insulated – where state and federal issues are intertwined, but state issues can be decided independently of federal LEGISLATIVE POWER INS v. Chadha 9 Rule: Legislature hands over enforcement power to the executive and can (although not here) delegate oversight power to independent agencies, but it CANNOT delegate oversight power to a subpart of itself because any action of that subpart would be legislative without conforming to the constitutional requirements. Provision of the INS Act delegated to the AG the legislative power to suspend deportations by virtue of an administrative process. BUT the provision reserved to the House ONLY the power to veto the AG’s determination without submission to the Senate or presentment to the President. SC held Constitution provides very specific process for legitimate legislative acts, with only four exceptions to it. Because this “veto” didn’t follow that formula, it was an unconstitutional delegation of legislative power. This means that the legislature has oversight of the executive, can delegate the execution of its law to the executive (AG), but CANNOT delegate a portion of that oversight to a subpart of itself because any action by that subpart would be without conformance to Con requirements as to legislative action. - NOTE: Legislation is defined as “actions that have the purpose and effect of altering the legal rights, duties and relations of persons outside the legislative branch.” - NOTE: There are 400 cases in which a legislative veto has been included in legislation and passed, notwithstanding Chadha. 09.04.03 FURTHER NOTES ON LEGISLATIVE FUNCTION Chadha: Congress cannot ignore the Con. requirements for “legislative action” including bicameralism and presentment. NOTE: President signed the law in Chadha. He didn’t exercise veto. Why is he allowed to bring suit challenging its constitutionality after signing it into law? Because the constitutionality of legislation isn’t contingent upon presidential approval and he can bring suit as legally as anyone else. NOTE: Line item veto is “necessary” because of legislative bundling which incorporates substantive/administrative bills and sometimes substantive/substantive bills. - It appears that the president does NOT have an “inherent” line item veto to separate out the substantively different bills. - Beyond this, two schools of thought: 1. Congress could allocate the line item veto to the president. 2. Only a constitutional amendment would allow a line item veto. - Clinton v. City of N.Y.: Line item veto was passed to allow the president to veto direct spending bills if doing so would reduce the deficit, not impair gov’t functions, and not harm the national interest. Is this sufficient guidance to be implemented nonarbitrarily? Remember that Whitman v. American Trucking in which the EPA was directed to “protect the public from harm with an adequate margin for safety.” This case was allowed by the SC as a constitutional delegation of authority because it was an “intelligible principle.” Only something that gives “literally no guidance” or gives huge authority with only a “vague aphorism” (such as “regulate the economy”) would be unintelligible. - SO Congress can delegate authority to interpret laws to other entities, which will show 10 up as administrative “rules and regulations” which have the force of law upon the average citizen. - WHY CAN CONGRESS DELEGATE HUGE AMOUNTS OF “LEGISLATIVE” POWER TO ADMINISTRATIVE AGENCIES BUT CAN’T DELEGATE ITS OWN AUTHORITY TO A SUBUNIT OF ITSELF? - In part because even administrative regulations are subject to judicial oversight, whereas one-house vetos, etc. are without oversight because they are outside the legislative process. - NOTE, though, that Congress cannot delegate to the President the effective ability to sign into law legislation that was never approved by either house of Congress (because the Congress passed a particular package of bills and the president signed a different package of bills – at his will). - Why can’t the executive line item veto be justified under the broad power of Congress to delegate its power? Because it almost makes the president the sole legislator. He can choose (admittedly amongst only the bills brought to him) whichever combination of bills he wants – which is simply too much power and looks just like legislation by the president. So the Court held in Clinton. - NOTE that Thomas felt it was just like any other delegation of congressional power to the president and should have been allowed. When is there a political question beyond the justiciability of the court? 1. A textually demonstrable constitutional commitment of the issue to a coordinate political department; 2. A lack of judicially discoverable and manageable standards for resolving the issue; 3. The impossibility of deciding without an initial policy determination of a kind clearly beyond non-judicial discretion; 4. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; 5. An unusual need for unquestioning adherence to a political decision already made; 6. The potential for embarrassment of multifarious pronouncements make by various departments on one issue. - Potential examples include: who is a military detainee, who is an armed combatant, when is a war declared, etc. 09.09.03 Class Notes re Eldred v. Ashcroft What, if any, limits did the Constitution impose upon Congress in the exercise of its copyright granting power? - How did “science and the arts” get promoted by extending the existing copyrights? - How does an extension of duration for existing/new copyrights reconcile with the express grant of authority to grant a “limited” duration monopoly power. - What standard of scrutiny should the SC use? - The SC did use rational basis. 11 - Lessig argued that the 1 st amendment was implicated because the extension hindered the ability of the public to speak on matters now continuing under copyright. Kmiec says he could have argued for heightened scrutiny apart from 1 st amendment because it is an unusual clause that indicates its goals and thus a tight nexus could exist between means and end. NOTE: Copyright is 90 years for corporations; lifetime plus 70 years for humans. NOTE: The SC uses strict scrutiny for issues implicating constitutional rights, but only rational basis for matters implicating “economic issues/choices.” The SC rationalized its use of rational basis by claiming that the copyright power only implicates economic issues/choices. It didn’t recognize the exceptions that exist to this. These exceptions involve economic issues that coalesce around constitutional issues – land use regulations, etc. Usually, rational basis prevails, but certain areas, such as the takings clause, require – according to the SC – heightened scrutiny. - Lawyers against regs prohibiting Internet purchase of wine from other states invoked (successfully at lower courts) the negative commerce power, claiming that if the Federal government acts in a way that impinges on interstate commerce, it must provide a rationale that will withstand heightened scrutiny. Executive Power What were the Founders concerned about when they articulated the executive power? - They needed someone limited in his powers, so as not to be a king. - They desired to separate out the legislative function from the executive power. - They kept service of the executive to limited terms. - They were subject to removal according to law (although there are now exceptions for some acts in the “scope of office.” - Ideologically, monarchy violates the idea that all men are created equal. - They also, however, needed someone capable of acting with “energy, dispatch, and secrecy.” Thus, the Constitutional powers of the President begin with Art. II is called the “vesting clause” by which “the executive power shall be vested in the President.” - This differs from Art. I, which is essentially a list of exactly what the Congress may do. - Sec. 2 begins a list, but it is first a list of what the President IS, not what he can DO. It then moves on to what he can do: make treaties, appointments, address Congress, and receive heads of state. - Note the reception power is, in effect, the plenary power to decide who the head of a state is. It also makes him the “sole organ” of foreign affairs. - Sec. 3 mandates that he “take care to ensure that the laws be faithfully executed.” This implies that the President alone decides how the law is to be implemented. How does this translate to Presidential action? - TR said he could act in any situation unless there was a Congressional mandate that said otherwise. - Taft said he had to have a mandate before he could act. 12 - Lincoln recognized that he could not, for example, suspend the writ of habeas corpus as a matter of official action under the Presidency, BUT he believed there was a distinction between official acts and those indispensable to the preservation of the nation – a consideration prior to “constitutionality.” This is, essentially, Locke’s concept of executive prerogative. - Lincoln’s implied justification was an “emergency power.” Is the president allowed not only emergency powers, but the right to decide when an emergency has arisen? Limits of the Executive Power Youngstown Sheet & Tube Co. v. Sawyer Rule: Presidential authority derives from statute and the few constitutional places where presidential authority is plenary (such as receipt of Ambassadors). Emergency powers must arise from congressional enactment. In the face of an impending labor strike in the entire steel industry during a war effort in Korea, and after exhausting administrative remedies (referral to the Wage Stabilization Board), President Truman issued an executive order to the Secretary of Commerce to take possession of and operate most of the nation’s steel mills. The order relies for his authority upon “the whole shooting match:” vesting clause, “take care” clause, and commander-in-chief clause. The owners of the steel firms sued to get their plants back. Note that the “concurring” opinions actually give much more latitude to the executive authority than does the “court’s” opinion. - Justice Black’s majority opinion says, essentially, there is no express constitutional or statutory authority for the president to act and thus he cannot legitimately do so. - Law making power inheres in the Congress in good and bad times. - Justice Jackson’s concurring opinion says the president can act in the absence of Congressional mandate if they haven’t passed on a particular issue. There may well be emergency powers, but they are controlled by Congress and must be granted before exercised in the particular. He posits three situations implicating conflicting powers: 1. President acts pursuant to express or implied authorization of Congress, 2. President acts in absence of either congressional grant or denial of authority; in a “twilight zone”, 3. President acts against express or implied will of Congress. - Justice Douglas says President has authority to do what he will in condemning property, but Congress must ratify the seizure because it holds the purse strings. - Justice Frankfurter says the President can act if not in violation of a statute or the Constitution. Here the Taft-Hartley Act specifically laid out what the President was supposed to do in event of national emergency and Truman didn’t follow it. Thus, it was unconstitutional. NOTE he did not like Jackson’s attempt to delineate the President’s authority in all situations. - Chief Justice Vinson is different from all other members in saying that there is some inherent authority in the President that cannot be limited by Congress. He notes many instances in which Presidents acted unilaterally to “enforce the laws and protect the country.” 09.11.03 Presidential Removal Power Myers v. United States Rule: With regard to a principal or presidential officer that is subject to Senate confirmation, they are removable at will by the President. (They implement his policy, so 13 he can remove at will.) Congress can limit removal of inferior officers who are appointed by the Head of a Department or Courts of Law. It is an open question whether Congress can limit the removal of an officer the appointment of whom is granted solely to the President. This is doubtful because such people are usually his direct staff – that he can’t remove them at will means the Congress can reach into the Oval Office. President appointed Meyers to postmaster general in Portland, with the advice and consent of the Senate. He was then removed by the President without the advice or consent of the Senate. Statute required removal with the advice and consent of the Senate. Constitution says nothing about removal power. Is the statute unconstitutional? “Decision of 1789” was made that no explicit power of removal would be included – rather any clause was left out, choosing to imply that the removal power was implied in the power to appoint. SC thought this obvious because officers are executive and responsible to the President and, if he is responsible for their actions, he must have the power to remove them when he can no longer be responsible for their actions. Note that the Senate check on appointment power was a bone to the smaller states. While the big states hold sway over the presidential election (more representation in Congress), the smaller states will have equal say in “filling out” the personnel requirements of the executive. NOTE: This case includes the beginning of independent agencies – brought full force by Humphrey’s Executor. The president maintains control over executive officers, but there may be quasi judicial or legislative officers who are beyond the president’s control. In such cases, they may only be removed for cause. This is because they are “independent experts” who are, theoretically, nonpolitical and above the particular policies of particular administrations. Because they are not implementing presidential policy, they are not answerable to the president nor is he responsible for them, thus he should not be able to remove them for any reason – only if they are objectively not doing their job (“for cause”). See the problem here with administrative agencies as the “fourth branch.” They are effectively answerable to no one in the promulgation of regulations (law) and policy. Realize, though, that extraordinary legislative (hearings) and judicial (injunctions/dispositions) remedies are available if they do something What’s the difference between “principal” & “inferior” officers? - Principal officers are those who “must” be presidentially nominated and subject to the advice and consent of the Senate. - Other officers may be made “principal” by the law under which the Senate creates the position. - Inferior officers are those subject to appointment by the “fallback” position, under which Congress may by law vest appointment of such officers in the President, Courts of law, or Heads of departments. What kind of officer is “independent counsel?” - Independent counsel is appointed by the judiciary. Thus, judges are appointed executive officials to carry out prosecutorial authority. - Cross reference this case with Morrison v. Olson. Humphrey’s Executor v. United States 14 Rule: Officers of “independent agencies” do not implement the president’s agenda and are thus not responsible to him nor is he responsible for them. They are experts regulating for the public good. As a result, they are deemed “above” the political process and are only removable “for cause.” NOTE: Dicta seem to indicate that Congress cannot limit the removal power of a president in regard to appointees for which he alone is responsible to appoint. On the flipside, what rules govern the president when there is misconduct in his executive action? What is necessary to impeach a president? - What are the relevant constitutional provisions? - Art. 2 § 4: Pres, VP, and all civil officers shall be removed on impeachment for conviction of treason, bribery, or other high crimes and misdemeanors. - Treason is defined in Art. III, § 3 and bribery is defined in Title 18 of the US Code. - What is a “high crime/misdemeanor?” Prof. Presser suggests it is an injury to the commonwealth and/or constitution; a breach of trust. - What standard of proof does the House use to impeach? - No higher than “clear and convincing evidence” and in some cases it was actually less than that. - But there is no definitive ruling and it was all given to the discretion of the House. - Senate has to vote to convict by 2/3 majority. - Can the Senate convict the president but not remove him? - Art. I § 3: “Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold office in the future” but convicted party is still liable at law. UNRESOLVED QUESTION: How strongly can a President “direct” an independent agency’s effort? 09.16.03 Executive Bounded by Statutory Meaning FDA v. Brown & Williamson Rule: An administrative agency may not exercise its authority in a manner inconsistent with the administrative structure that Congress enacted into law; it must give effect to the unambiguously expressed intent of Congress. Absent such intent, deference to agency’s construction of statute is appropriate. Clinton encouraged FDA to treat tobacco as a drug and thus under its jurisdiction. SC held that this was beyond scope of FDA’s power because, if FDA treated tobacco as a drug or device, it would have to ban it completely under its own rules. But Congress had legislated to the effect that tobacco marketing was a necessary element in the economy and was to be regulated according to congressional intent. Thus, the FDA couldn’t regulate tobacco without contravening Congress’ express intent and such regulation was beyond the FDA’s authority. 15 NOTE: It is controversial that the SC used subsequent statutes to interpret the original statute. Chevron v. Natural Resources Defense Council Rule: Courts may not substitute their judgment for that of an agency unless the agency has misconstrued the statutory language and overridden the explicit intent of Congress. Reasonable agency interpretations of a statute in absence of overriding and explicit congressional intent are entitled to deference. NOTE: This is a two part analysis – 1. Is the statute clear on its face or ambiguous? 2. If ambiguous, agency gets deference in the exercise of its regulatory power. NOTE: The theory underlying Chevron is that the executive is more responsible to the people in choosing policy and thus has the prerogative to establish policy – more so than the judiciary. Chevron was the general rule: If the agency said what the rule was, the courts had to give deference unless blatantly against explicit congressional intent. But Mead further circumscribed agency authority by dividing its authority into official and unofficial disposition of questions in regulation. United States v. Mead Corporation Rule: Agency rulings that are NOT based upon Congressionally delegated rule-making authority and procedures (notice and hearing, etc. – “formal”) are only entitled to deference according to its persuasiveness – where persuasiveness is judged by 1. thoroughness evident in its consideration, 2. validity of its reasoning, 3. consistency with earlier and later pronouncements, 4. all factors giving it power to persuade. The Customs agency issued a “letter ruling” reclassifying Mead notebooks from “duty free” to subject to tariff. Mead challenged it as an unlawful exercise of agency authority. Circuit court gave letter rulings no deference. SC said “non official” or “informal” decisions are to be given deference according to their persuasiveness. Scalia argued that Mead meant administrative law will be “less dynamic” because considerations of “consistency” will render toothless agency decisions that depart from former decisions. 09.16.03 Executive Privilege, the President, & Judicial Review United States v. Nixon Rule: Executive privilege based upon a generalized interest in confidentiality is insufficient to overcome demonstrated, specific need for evidence in a pending criminal trial. Matters involving military/diplomatic secrets or open prosecutorial cases under Presidential control, (implicating Art. II duties) are given “utmost” deference. Nixon moved to quash third party subpoena demanding presidential tapes relating to criminal investigation of Watergate. President contended 1. dispute between executive officials wasn’t a case or controversy for adjudication in federal courts. SC held that mere claim of “intrabranch dispute” does not defeat federal jurisdiction. It was a legitimate federal action under law and, 16 without more, did not yield to intrabranch dispute. President also contended 2. separation of powers precludes judicial review of Presidential claims of privilege. SC held that neither separation of powers nor need for confidentiality can, without more, sustain an absolute and unqualified claim of immunity. In camera examination of produced documents is sufficient to protect confidentiality absent national security secrets. Absolute privilege would unnecessarily impede judicial function. NOTES on Executive Privilege - There is no constitutional basis for the privilege; it is a matter of custom. - Difficulty with privilege is that, if president decides what qualifies as privileged, he is acting as a judge in his own case. If SC decides what is privileged, however, the efficacy of the privilege is put in peril. - Justiciability argument: Bork fired special prosecutor in violation of his department’s regulations limiting removal of the prosecutor only for cause after consultation with Congress. President argued this was simply an intrabranch dispute. Court held that, although prosecutor could be fired after “consultation,” he was “functionally independent” and thus there was - NOTE that Court noted a “meticulous” deference to the Executive in subpoenaing his documents – so that there is a higher standard of evidence as to relevance, specificity, and admissibility before subpoena will issue. - Hierarchy of privilege: 1. Military Secrets; 2. Open Prosecutorial Matters (would lead to foreknowledge by targets of prosecution and possible besmirchment of innocent parties – different, though, when President himself is target); 3. Consultative Confidentiality (would lead to uncandid advice for fear of disclosure). - SC held that, because President was asserting low-level privilege matter and because the burden on the judicial process (protection of 5 th and 6th amendment rights) was high (and probably because privilege applied to himself was untoward), the privilege was overcome by considerations of judicial process. - Presidential Immunity: Nixon v. Fitzgerald created absolute immunity against suit for civil damages for decisions made within the “outer perimeter” of his official duties. Clinton v. Jones, though, proved that a sitting president could be prosecuted for unofficial conduct. - Presidential Advisor’s Immunity: They have immunity from suits for civil damages regarding official acts UNLESS actions “clearly violate a statutory or clearly established constitutional right.” - Congressional Immunity: Art. I § 6, clause 1 provides immunity for legislative acts (debate, voting, etc.). 09.23.03 ASIDE: What happened in Bush v. Gore? Bush had 1% majority and asked for machine recount, after which he still had a majority. Gore then asked for a hand recount of punchcards in selected counties. Hand recounting is hard to do in general, especially when there’s no standard for what a “real” hole is. SC held that, unless all FL agreed on a standard, it was a violation of equal protection. It had no standard in advance for counting punchcard ballots – so doing so was unconstitutional. 17 In California, there is a standard, but not all counties use the same system – electronic v. punchcards. Argument was that punchcards had a higher “failure” rate than electronic voting. Factually, experts are split as to whether this is true. Opinion, however, hinged on the extraordinary remedy that an injunction is during an election cycle. It was the dispassionate application of preexisting law to a legal issue. The Independent Counsel – “Prosecuting the Executive” Morrison v. Olson Rule: Impingements on “strictly construed” executive powers may be acceptable where they do not interfere with the President’s exercise of executive power and his duty to take care that laws are faithfully executed. Rule: Exercise of executive power in removal of officers hinges on whether the officer is carrying out the President’s instructions (regardless of whether that officer is within an independent agency). Rule: Interbranch appointments are allowable where they don’t fundamentally inhibit separation of powers. SC will not second guess Congress’s delegation of appointments unless – in the balancing test – they burden the President’s fundamental executive powers. Legislature was investigating EPA for administration of the “Superfund” law. Subpoenaed the EPA which, upon advice from the President, declined to comply on the basis of open law enforcement privilege. Congress was ticked off at Justice’s role in advising invocation of privilege and investigated it, culminating in a 2000 page report. Congress required Olson to testify as to what he told the President as to privilege. This raises questions as to Olson’s relation to president  attorney-client privilege? Olson was understandably reticent. This ticked off Congress. Chairman of Judiciary Committee forwarded to AG with request for appointment of IC on the basis that Olson perjured himself by not disclosing directly requested information. AG refers to IC if there are “any further grounds to investigate”  not the normal PC requirement. IC is appointed by 3-judge panel of the Special Division. He is removable only for cause by the AG, subject to review by the DC district court. He is “sort of” bound by normal Justice Dept. procedures. Olson raised three constitutional violations: 1. IC violates the Appointment Clause of Art. II - IC is a principal officer, who was appointed as an inferior officer by the special court - SC held that IC was an “inferior” officer because he was removable for cause by the AG and was limited in scope, jurisdiction, and tenure. NOTE this moves beyond manner of appointment in determining principal/inferior distinction 2. IC violates the limitation on the judiciary to “cases or controversies” - Special Division, a judicial body, is appointing an executive official  an executive function. - SC held that there was no incongruity between the “executive” duty and judicial duty because the Division was excluded by statute from involving itself in the IC’s subsequent duties. 3. IC violates separation of powers - Executive has the power to remove officers under it. 18 - SC held that Humphrey’s Executive allowed appointed officials to be restricted in their removal by the President if their duties are not directly related to carrying out his instructions. Thus, the limitation to removal by the AG for cause is OK because it doesn’t impinge on the President’s duties. As to whether the statute violates the separation of powers as a whole, the SC held that the legislature did nothing to secure more power to itself, nor did it affect the judiciary’s power  Thus it was not violative of the Constitution. NOTE Scalia in dissent. He basically says the statute denies the President the exercise of power of executing the laws because 1. the IC is executing the laws and 2. the President can’t fully exercise his power over the IC. The problem with this argument is that this leaves the President to prosecute himself. 09.26.03 The Executive and Congress in Matters of Foreign Affairs United States v. Curtiss-Wright Export Corp. Rule: The President’s power to conduct foreign affairs derives from the inherent sovereignty of the nation and the president’s role as “representative of the US as to foreign relations,” so that legislative grants of “authority” to the president to do certain things in foreign affairs are not overbroad. Joint resolution (passed by both houses and given to President for ratification; different from concurrent resolution passed by both houses and just sits there) was passed giving the President the authority to prohibit sales of arms to countries at war in Chaco, if, in his estimation, such a proclamation would help reestablish peace among the nations. [NOTE that Whitman (76 in supp) and other cases support “non delegation” doctrine by which the legislative cannot delegate its power to another branch without giving a clear mandate or “intelligible principle.” But note that only “literally no guidance” would be held an unclear mandate.] Curtiss claimed that this was an unlawful delegation of legislative authority to the President. Under modern cases, this was certainly an “intelligible standard.” At that point, though, this could have been an over-delegation. The SC turned to the nature of the delegation to distinguish. Because it deals with foreign affairs, the SC says the president’s power in foreign affairs comes NOT from the constitution, but from the nature of the nation’s sovereignty. Someone has to be in charge as to other nations at all times: the president. Thus, the president was simply exercising his own power, not the legislative power overbroadly delegated. Executive Foreign Affairs Power in re Iran/Contra Col. North arranged an arms deal with Israel, who sold them to Iran, the proceeds of which went to the Contras in Nicaragua. This was without knowledge by the Congress and directly opposed to 12 passages of a law banning aid to such countries without timely notice to Congress. North 19 invoked Curtiss-Wright for the proposition that the executive has broad power to conduct foreign affairs without advice or consent of the Congress. Executive Foreign Affairs Power in re Undeclared Wars Presidents often commit troops to foreign conflicts without declaring war. Founders provided for this by vesting power to “declare” war in the legislature. Rationale for this was ability to move quickly when attacked. Thus the wars in Kosovo, Afghanistan, and Iraq were all argued by the President’s counsel as a response to a sudden attack. Got around this in Kosovo by utilizing NATO as the body attacked – thus “we” were attacked. Congress appropriated funds to Kosovo  is that the same as “declaring war”? How does the “War Powers Act” take this behavior into account? President must make action known to Congress within 48 hours of commencement. If Congress then disapproves, President has 60 days to remove troops. Nixon argued that this was unconstitutional as a dangerous fettering of the president’s ability to “repel” attack and command the troops. WPA also provided for a concurrent resolution demanding troops be returned immediately. This attempt to introduce a “legislative veto” was presidentially vetoed by Nixon. Executive Foreign Affairs Power in re Treaties President negotiates treaty and submits it to Congress. Congress must ratify by 2/3. If Congress ratifies, the President then can put it into effect by exchanging papers with the other countries. NOTE he arguably does not have to exchange the papers  thus implementing a sort of presidential veto in light of changed circumstances or legislative tampering. Is a treaty self-executing? Look to the language. If it hinges on further action, probably not. If it says, “X is hereby done,” probably. Some treaties can’t be self executing if they require spending money. Art. I, § 9 mandates that no money be drawn from Treasury except through the appropriations process. There was an attempt to create a federal “violence against women” act. A case held such a thing was invalid  violated the commerce power. If Congress lacks the power, can it get additional boost of power by entering into a treaty that says the same thing? Reid says it would be “manifestly contrary to the Constitution to allow the US to exercise power under an international agreement without observing constitutional prohibitions.” BUT Holland (pg. 337) allowed a treaty to exceed constitutional limits placed on Congress’ legislative power and has never been overturned. THUS there appear to be some constitutional limits on treaty power to override the Constitution  what they are is not well defined. Treaty Rules: Once treaty is in effect, it overrides state law. IF it contradicts federal law, last in time prevails. In short, treaty has character of federal statute. Thus, it can be overridden by subsequent federal statute. CLEAN UP: - Again, a treaty ratified and accepted has the same status as a law (if self-executing). Preemption requires that it overrides conflicting federal statutes. - But what if a treaty is passed and a subsequent statute conflict with it? FOR DOMESTIC 20 PURPOSES, the subsequent statute overrides. But what about foreign nations relying upon the treaty? They have no cause of action for “breach of treaty.” They mostly have to make political noise. Even if they brought suit in an international court, any punitive action must be acceded to by the breaching party – not likely. - Termination of treaties is not settled by SC precedent. In Goldwater v. Carter, Carter tried to abrogate mutual defense treaty with Taiwan unilaterally. Lower court held that Carter could do so based upon statutory language and also based upon Carter’s foreign affairs power. SC thought it was not justiciable because it was a “political question” – one without workable legal standards, etc. (see Baker). - Executive Agreement Power: Not found in the Const. but the president points to the “vesting clause” as power to enter into agreements with other nations. Further authorizations help the president’s case. Legislation may authorize him (perhaps in a commerce bill) to enter into an agreement to further the trade purposes of the bill. A Senate ratified treaty may be asserted to authorize further agreement. - QUERY: Is an executive agreement of equal force with a conflicting federal statute. Argued – if president has inherent authority to make an agreement, it should hold the same power as a treaty and should supercede conflicting previous statutes. IF executive agreement is based upon legislative authorization or in furtherance of an existing treaty, it appears from lower court opinions that it has the force of law and supercedes. The question revolves around bare executive agreement. - QUERY: Does a bare executive agreement supercede state law? Iranian hostage settlement banned relatives of/hostages from bringing suits for damages against Iran or its holding in the US pursuant to state tort law? Court held it was helpful that agreement Rule on Executive Agreements: Same status as treaties if they are based on statute or a pre-existing treaty. IF only based on a president’s bare authority, they probably supercede state law. No one knows if they supercede federal law. 09.30.03 Limited Government & Enumerated Powers Robert Novak wrote a story suggesting that Ambassador Wilson was sent to Africa because Wilson’s wife was an undercover CIA agent with special knowledge on the issue and suggested him. This violates a 1982 statute prohibiting disclosure of the names of undercover CIA agents. This also implicates Novak’s source – widely thought to be Carl Rove. A “special prosecutor” has been suggested. DOJ rules for appointment process govern because IC statute expired. QUERY: Is the executive power wholly bound up in the executive? If so, IC is unconstitutional and the president cannot be investigated by anyone else. If not, IC is constitutional but the president is subject to second guessing from an executive office “beyond” his control. QUERY: Does the IC law lead to the criminalization of the political process? Are all executive judgments subject to criminal investigation upon legislative request? 21 Introduction to Limited Gov’t & Enumerated Powers: Limited government has much to do with the division between federal and state gov’t. Where does the federal gov’t end and the state gov’t begin? Beginning point is the Supremacy Clause: Laws made pursuant to the Constitution are the supreme law of the land. State laws contrary to the constitution are either unconstitutional or “preempted.” Next point is question as to whether the federal gov’t has strictly enumerated powers or spheres of power within which it may act as it will if its act furthers its mandates. General theorem was that federal gov’t should act where states are incompetent and should invalidate state laws that interfere with the federal gov’t’s duties. To put this into force, an enumeration of powers is required  this is what Art. I, § 8 does. BUT it also says the federal gov’t can “make all laws that are necessary and proper for carrying into execution all its powers. Is this supplemental grant of unlimited authority to Congress? Hamilton says it is almost redundant because it only makes explicit the logic necessary to interpret the powers granted to Congress through the enumerated powers. He didn’t address how the logic would work itself out as to enumerated powers or whether the same logic applied to unenumerated powers. McCulloch v. Maryland Rule: Under the “necessary and proper” clause, Congress may legislate any acts which are direct modes of fulfilling its enumerated duties. The acts need not be “convenient” nor the most simple. Rule: 3 Part Test for Necessary and Proper 1. Legitimate End – somehow related to an enumerated power 2. Appropriate or Reasonably Related Means – well suited/reasonably linked to legit end. 3. No Prohibited to Congress – by specific text OR by virtue of various structural concerns (taking into account the Tenth Amendment (what fed can’t order the states to do) and the Eleventh Amendment (what states are immune to suit for)). In other words, what the Court determines the duties of the various branches to be determines what is “necessary or proper” for the legislature to do. Principle issue: Does Congress have the power to charter a national bank even though it is not one of the enumerated powers? Marshall concludes that it does in an opinion based upon historical precedent. (“We did it before, why not now?”). Marshall noted that the people delegated authority to the federal gov’t. The states did not delegate authority to the same. Thus, Maryland doesn’t have the standing to withdraw its grant. He also noted a constitution cannot but be a broad grant with specifics to be worked out later. Tenth Amendment reserving all unenumerated powers to the states is not dispositive because it didn’t grant all non-explicitly enumerated powers to the states. He further noted that “necessary” must be construed in context. His conclusion is that the bank is a facilitating means to the legitimate end of laying and collecting taxes, regulating interstate commerce, etc. NOTE: Marshall’s tips to interpreting the constitution: 1. Take the document as a whole; don’t nitpick. 2. The constitution is an attempt to paint with broad strokes the nature of the government – it is an attempt to accommodate the needs of future generations and, as such, is necessarily broad. Certain amounts of supplementary interpretation are required, but according to the principle expressed in the text. 22 10.02.03 Constitutional Interpretation 2 sides of the debate: originalists and activists. Recognize that constitutional law historically takes its cue from STATE law, rather than directly from international sources (see Lawrence). Note also, though, that state laws take international law into account (at least in the early years) in determining, for example, what a contract is. American Insurance Association v. Garamendi Rule: State actions cannot undercut the President’s diplomatic discretion in foreign affairs and the choice he makes in exercising it. This stands regardless of Congress’ silence as to the President’s authority. Rule: Presidential agreements can override existing state laws without explicitly stating so. NOTE: The SC has NOT applied a “field exception” negating any state law that has other than incidental effects on foreign affairs. Rather, it continues to find CONFLICTS between state laws and federal foreign affairs efforts. NOTE: The similar case of Crosby dealt with Massachusetts’ spending power in refusing to do business with Burma. The SC held this policy in conflict with federal foreign affairs because it dealt with FOREIGN interstate commerce. In DOMESTIC interstate commerce, the SC gives greater deference to states’ exercise of spending power – less deference to regulatory power. AIA v. Garamendi dealt with California’s exercise of its REGULATORY power and its effects on foreign interstate commerce and was thus looked upon unfavorably. 10.07.03 General Federal Preemption of State Law - Preemption grows out of Art. VI “supremacy clause.” - Administrative law, federal treaties, and federal common law, as well as legislative activity, are all potential sources of preemption. Express v. Implied Preemption - Express preemption arises out of language in federal law – but this language still must be construed and its intent determined as to scope, etc. - There are various types of implied preemption 1. Conflict Preemption - Actual Impossibility - Ex: Federal law mandates use of a certain preservative, whereas state law prohibits use of that preservative. - Frustration of Purpose - Analysis of this preemption has to parts: First determine the federal objective behind the law. Second determine the degree of interference with that objective by the state enactment. - NOTE: Savings clause is a statement of non-preemption 23 Geier v. American Honda Corp. Rule: State law that frustrates the purpose of federal law is preempted notwithstanding a savings clause specifically allowing continuing liability under state statutes because the clause did not specifically allow liability where it would conflict with the federal statute. Driver injured in an accident in a 1987 Honda without an airbag. She brought suit in state tort law alleging that Honda violated its duty to equip their cars with airbags. SC held that the basis for her claim in federal law, 1984 statute requiring that some cars be outfitted with airbags, was enacted with purpose of implementing a wide variety of passive restraint devices over an extended period of time. Thus, state tort of negligence that assumes duty to outfit all cars with airbags would “frustrate the purpose” of the federal statute: long term implementation of many types of devices. NOTE that savings clause did not prevent SC’s holding because it said the federal law would not preempt liability under state law but it DIDN’T say that there was no preemption where the state law conflicted with the federal statute’s purpose. NOTE the dissent argued for implied presumption AGAINST preemption as to implied preemption for frustration of purpose because this allows for the states to regulate what traditionally has been their domain. NOTE that underlying preemption debates are assumptions as to which party is in better position to determine the rule and who should be making rules in the first place. United States v. Locke Rule: In areas of traditional federal concern, where national uniformity is of great importance, only state regulations that do not frustrate the federal statutes’ purpose will survive preemption. OR Rule: Presumption AGAINST preemption if in an area traditionally under state control / Presumption FOR preemption if an area traditionally under federal control. 2. Field Preemption - Federal statute requiring warning on cigarettes and mandating that no other warnings could be required is a “field preemption.” - Rule: Field preemption doesn’t even allow state regulations that support or advance federal regulations. Field preemption absolutely bars state regulations in the field. Examples: Burbank passed statute banning aircraft from flying into the Burbank Airport from 11p to 7a. This statute was preempted by federal regulations (FAA) because the of far-flung effect of flights backing up while the ban was in effect and because of the federal interest in a uniform regulation of airlines. A couple of clean-up rules … Rule: There is a general federal immunity from local regulation unless consented to. - Ex.: Post office drivers do not have to get state driver’s licenses unless Congress says 24 so. Rule: There is a general federal immunity from state and local taxes unless consented to. - This does NOT mean that federal postal workers are immune from these taxes. - Ex.: A state cannot impose a property tax on federal land BUT the park ranger given a free cabin on federal park land is still subject to state income tax for “imputed income” of free house from federal government. NOTE: Before starting a preemption analysis, ask whether the federal body has the right to issue the law. 10.09.03 A Federal Common Law? State common law was explicitly received from England as various states passed laws saying that the common law would be the law of the state – but modified according to preexistent, conflicting state laws. So the states have a common law, but the federal government never passed such a law. Is there, then, a federal common law? If not, is the federal government without power to enforce general crimes against itself? If so, what does it look like? United States v. Worrall Rule: There is no federal common law because the 10 th amendment reserves all unenumerated law-making powers to the states. Thus, absent a law expressed in the Constitution or the acts of the Congress, the federal courts have no law upon which they may pass judgment. D was charged in federal circuit court of the crime of bribery, but without reference to a specific statute. Court held that there was no federal common law due to the 10 th amendment, etc., but they did render judgment in the case because they were concerned that the SC wouldn’t or couldn’t hear the case. Why does the existence or a non-existence of a federal common law matter? - In the 18th century, it mattered because the existence of a federal common law would allow the federal government to prosecute people for “seditious libel” and thereby control dissenting speech. And, in fact, the congress enacted a law (constitutional under Marshall’s “necessary and proper” clause) making seditious libel a crime. - Note that it matters now because of the fed/state power balance. United States v. Hudson & Goodwin Rule: There is no CRIMINAL federal common law. Friends of Jefferson brought a contrived charge of “seditious libel” before the SC to secure a ruling that there was no federal common law allowing prosecution at common law of “seditious libel.” No one argued; there may not have been any briefs. Nevertheless, the court held that Congress must enact a law and give the SC jurisdiction before it can exercise jurisdiction. This 25 is because the 10th amendment reserves all powers to the states except for those specifically enumerated to the federal government. Swift v. Tyson Rule: Federal courts sitting in diversity may create their own federal common law by picking and choosing from among the states. OVERRULED by Erie v. Tompkins. The SC here ruled that § 34 mandates that federal courts are bound by the law of the forum state in a diversity action BUT it took a narrow view of “law” – excluding the “common law” of states, and deferring only when the state law is a statute. This allows for the creation of a federal common law – at least in civil matters – because the court can pick and choose its common law from among the states. In other words, it can create a general common law. This common law as not binding on the states themselves; it was only binding as federal precedent in the federal common law. NOTE: Swift was overruled by Erie, which states: When sitting in diversity, a federal court must use the law of the forum state – including common law – when deciding the case. NOTE: Federal court interpretation of state law after Erie is not binding upon the states as precedent. It is the interpretation of the law by federal courts for that particular case, but no more. - NOTE that this means that Ninth Circuit opinions are not binding authority on California courts EVEN when they are interpreting California law. NOTE: There is such a thing as federal common law, but only in areas in which the federal judiciary has exclusive jurisdiction  admiralty, copyright, etc. There is no parallel state role. Also includes boundary disputes between states, native American property rights, and scope of property interests owned by the states. There is a push to expand the federal common law into other areas. Primarily, this includes “customary international law.” The argument runs that customary international law is implied in federal common law and federal courts must enforce it. It is a general and consistent practice among sovereign states that has been followed for a substantial period of time and is held to create obligation among them. Generally, slavery, torture, and genocide are prohibited by customary international law. - What’s the relationship between customary international law and American federal law? Art. I allows Congress to expressly act to implement the law of nations into the domestic sphere. Some argue that this is the ONLY way that customary international law may be enforced  rather than reading it into the federal common law. This is to protect against the possibility that customary international law, embodied in federal common law, would supercede state law even though the 10 th amendment reserves that power to them. Also, it would be interpreted by the courts which, because it deals with foreign affairs, steps on the toes of the President and, to a lesser extent, Congress. NOTE also that if CIL is implied after Erie, the state law has the final say over federal common law in international matters – which is backwards. - Payoff here is that Gitmo prisoners can sue in American courts because their holding without trial is a violation of international common law which is incorporated into federal common law and is therefore a case/controversy ripe for resolution by the federal courts. 26 10.14.03 The Commerce Clause - Art. I, § 8: “Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” Gibbons v. Ogden Rule: Congress has the power to regulate “commercial intercourse” between states and such laws will override concurrent state regulations that overlap. It does NOT have the power to regulate commerce that is completely internal – which does not affect other states. That power would be “inconvenient and unnecessary.” Gibbons was operating a boat in NY waters under a license from the federal gov’t. Ogden was operating a boat in NY waters under an exclusive license from the NY state gov’t. Thus, federal power appears to be conflicting with state power but ONLY if the federal power here is to regulate commerce and ONLY if navigation falls under the term “commerce.” If so, the supremacy clause resolves the conflict. What is commerce? Marshall held that it was “commercial intercourse” in an interstate setting. Where’s the limit? Purely intrastate commerce is beyond the scope of Congress’ power. NOTE: The whole body of commerce clause law is caught up in trying to delineate what is intrastate commerce and what is interstate commerce. NOTE: What if states are regulating interstate commerce in absence of Congressional legislation? First, Congress’ power to regulate interstate commerce is plenary. But Marshall says the sole question is if the state can regulate commerce while Congress is regulating it. He also says states may have legitimate reasons (health of citizens) to regulate interstate commerce – but it must give way to existing federal statutes if they conflict. Also, Congress may choose to affirm the state rules regarding interstate commerce. Rule: States may regulate interstate commerce pursuant to state police power but this regulation may be overridden by federal regulation of interstate commerce. However, state regulation of interstate commerce that is not pursuant to the state police power is facially invalid as a preemption of the exclusively federal power to regulate interstate commerce. - In other words, states can regulate their own affairs in manners that affect interstate commerce so long as their laws do not conflict with federal regulation of the same. They may not regulate interstate commerce as such. - Bottom line according to Kmiec: Marshall is inclined to believe the federal regulation is exclusive, but he doesn’t say it. He does hint at the proposition that the Court itself, without Congressional action, could rule that the state action is too intrusive of federal authority (too burdensome on interstate commerce) and thus invalid. THIS IS THE DORMANT / NEGATIVE COMMERCE POWER. - Congress can decide before or after such a SC decision, that it’s OK for them to share regulation with the states. In other words, Congress has the final say on this issue – not the courts. From an interpretation standpoint, this means that the regulatory power is so plenary that the SC is willing to be second-guessed as to what will, actually, further interstate commerce by Congress. The following case deals with the interstate commerce power in view of the Sherman Act. 27 United States v. E.C. Knight Co. Rule: Manufacture of goods precedes sale of goods and thus is beyond the reach of Congress through the interstate commerce clause. Knight bought nearly all the sugar refineries in the US. Feds tried to apply Sherman Antitrust Act to prevent Knight. SC question: Is the acquisition of these sugar refineries a question of “interstate commerce” sufficient to involve the commerce clause power. SC held that manufacturing precedes sale of goods in an interstate manner. Thus, the application of the Sherman Act is unconstitutional because it lacks basis in the interstate commerce clause. Harlan dissented by saying that these combinations were done to restrain trade and, as such, despite the fact that the consolidation doesn’t reach outside the state, its effects will extend beyond the state and thus is properly subject to Congressional control. 10.21.03 Champion v. Ames Rule: Congress can regulate items that are in commerce for reasons other than economic – i.e. Congress can use its power to impose certain police powers  lotteries are bad so you can’t transport tickets interstate. Harlan writes the majority in this case, holding that the interstate carriage of lottery paraphernalia is “commerce” and thus can be banned. This contradicts his Knight opinion, which admitted that the Congress could not ban the manufacture of sugar – only regulate its sale. But he admits that Congress’ intent here is to ban something they view as pernicious. This sounds like a police power. And Fuller says the Court allowed a police power (which rightly belongs to the states) here by calling lottery tickets commerce when, in fact, they are just like insurance policies – which are not “commerce.” Wickard v. Filburn Rule: Any regulation that actions that have “substantial effects” on interstate commerce falls within the commerce clause. Rule: Actions have “substantial effects” even if, by itself, it was negligible – as long as it is an action that would have substantial effects if “everyone did it.” Farmer was simply told that he couldn’t use his own land to grow wheat for his own consumption. Court held this was proper because, while he did nothing to put too much wheat on the market, his use of his own wheat is an activity that has substantial effects on the prices of wheat because if everyone did it, the price of market wheat would fluctuate. United States v. Lopez Note that the following rules are summaries of the preceding cases – not new. Rule: Where a regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under the statute is of no consequence. Rule: Congress may regulate 3 distinct areas under the commerce power: 28 1. the use of channels of interstate commerce 2. the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities 3. those activities having a “substantial relation” to interstate commerce. Rule: Under the third, the proper test is whether the regulated activity “substantially affects” interstate commerce. Rule of Lopez: Legitimate federal regulation of activities that “substantially affect” interstate commerce in the aggregate is determined by looking to: 1. An economic endeavor that substantially affects interstate commerce. 2. An express jurisdictional element that limits the reach of the statute to actions with a nexus in interstate commerce 3. A congressional finding regarding the effects upon interstate commerce 4. A sufficiently unattenuated link between the regulated activity and a substantial effect on interstate commerce. In holding that ban on guns in school zones based on commerce clause, SC begins with principle that fed powers are few and limited, state powers are numerous and indefinite. SC then quotes Gibbons for proposition that commerce power is limited in the constitution from reaching to intrastate commerce that doesn’t affect other states. SC says it used to hold that “substantive categories” of things were beyond the commerce power: production, manufacturing, mining, etc. It also used to distinguish between “direct” and “indirect” effects (indirect effects not enough under Schecter Poultry). New Deal changed all this. Jones & Laughlin Steel substituted direct/indirect distinction with “substantial relation” test. 10.28.03 United States v. Morrison Rule: The commerce clause does not authorize congressional regulation of noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. Rule: Congressional findings alone are insufficient to justify regulation. The SC exercises the judicial duty to define local and federal in determining whether the findings are sufficient to justify federal regulation. NOTE: This case provided only a civil remedy. It does not intrude into the criminal arena traditionally reserved for the states. NOTE: Civil rights cases were brought under the commerce clause because § 5 doesn’t reach to private actors. That these cases used the commerce power renders commerce clause power something of a third rail because SC can’t trim back the scope without compromising the legitimacy of the civil rights laws. NOTE: Congress COULD regulate private activity by interpreting the “privileges and immunities” clause as an affirmative duty on states to ensure that this exists for all citizens. It could also look at the 13 th amendment which authorizes Congress to enact laws that further the goal of abolishing involuntary servitude. Under this argument, discrimination based upon race would be a vestige of slavery and therefore reachable under the Constitution. This is probably a better basis than the commerce clause because it is tidy and restricted – it would thus allow the commerce clause to be interpreted narrowly. 29 NOTE: Dissent in this case says determination of what “interstate commerce” is belongs rightfully to Congress as a “political question” subject only to “rational basis” scrutiny. NOTE: Is there a better rationale than Lopez to define “interstate commerce.” Distinction between manufacture and commerce fell. Distinction between direct and indirect effects fell. Distinction between substantial and insubstantial fell. DID IT? - Kmiec’s view: Modernly, commerce means any “market-oriented, gainful activity.” This includes preparatory activities, labor, insurance/financing. Does it leave anything out? Surely criminal statutes are outside its purvue. Statements of “morality” are outside as well. Keep in mind, the commerce power emerged out of Article 6 of the Virginia resolutions – a template for the Constitution. It is a deduction by the Framers from the Virginia resolution. It provided that the national legislature should legislate for the general interests of the union and for those matters to which the states separately are incompetent or if the states’ legislation would create unworkable national systems. - NOTE that a commerce argument is strengthened by tying the regulation to one of the general interests implicated by the Founders. Solid Waste v. Army Corps of Engineers Rule: If Congress is seeking to displace local government, it has to explicitly state that, or the statute will be construed as trying to fit within local government. Dealt with an isolated, intrastate pond (resulting from an abandoned gravel pit) and whether it could be regulated under the commerce clause as a “navigable waterway” or as a sanctuary for observing/hunting migratory birds. The SC said the navigable waterway argument failed because it was not a navigable waterway nor a body of water that fed into one. The bird argument failed because if Congress is seeking to displace local government, it has to explicitly state that, or the statute will be construed as trying to fit within local government. Pierce County, WA v. Gillen Rule: Even ridiculously attenuated exercises of federal power in local jurisdictions are allowable if they deal with the two “clear-cut” areas of federal commerce jurisdiction. Dealt with a federal statute that allowed Congress to dictate the evidentiary rules that govern in state court. (Statute allowed counties with bad designs to take federal money and work with federal gov’t without fear that design flaws disclosed would be used in later litigation). SC held that it dealt with “channels” (roads) and “instrumentalities” (cars) and thus was a legitimate exercise of the commerce power. The negative commerce power allows the SC, absent any enactment of Congress, to say that a state enactment is unconstitutional under the commerce clause. This situation will arise in two types of state statutes: 1) Statutes that are discriminatory on their face - if you’re from California, you pay $1 for trash service; if from Nevada, $4. - These statutes are per se invalid unless the state can show it furthers a substantial local purpose that cannot be advanced by nondiscriminatory means. No state has met this burden. 2) Statutes that don’t overtly discriminate, but they have that effect. - Here SC does a balancing test (Pike test): A facially nondiscriminatory statute 30 will be valid notwithstanding its discriminatory effect unless the burden it imposes on interstate commerce is clearly excessive in relation to the putative local benefits advanced by the regulation. 10.30.03 Negative Commerce Power Cooley v. Board of Wardens Rule: Commerce power is not exclusively federal and Congress may share it with states IF Congress explicitly so chooses  this is because 1. “exclusive” power is never mentioned in the Constitution, 2. initial statute assumed states could and would regulate, and 3. there are commercial regulations that demand diversity best apprehended by states. 3 statutes at play. 1789 federal statute saying that, as to river pilots, existing or subsequently adopted local law will govern, unless Congress acts to intervene. 1837 federal statute says port on water bordered by two states can use a pilot from either state. Pennsylvania statute says incoming/outgoing vessels must use local pilot or pay ½ cost of same. NOTE there is an economic rationale for this AND a health/safety rationale since local pilots know the water better and ½ cost goes to fund for disabled/killed pilots. Where there are fed and local statutes FIRST think about preemption  1837 statute conflicts with Penn statute to the extent that it authorizes pilots from NJ to pilot into Penn and Penn says they can’t BUT it can pay a fee. NOTE: Can Congress incorporate into federal law existing state law? Yes, and then each state’s laws are US law. BUT it cannot incorporate future law into effect because then US laws are created without bicameral passage and presentment SO Rule: Congress can incorporate existing state law into federal law BUT incorporating future law implicates Chadha and might violate the bicameral passage/presentment requirement. - NOTE: It seems to me that Chadha stood for the proposition that Congress can’t delegate its legislative function to a subpart of itself – I don’t see why it can’t delegate to another body (with the reserved negative implied by the commerce power) unless its unconstitutional for a federal legislature to delegate its power to a state legislature. HYPO: Can Cal. ban all triple trailers from its roads? It’s a facially neutral law that has an effect on interstate commerce. This implies the Pike balancing test: Is there a legitimate local interest? Yes – road costs, safety concerns, etc. Is there an effect on interstate commerce? Yes – reduced efficiency, higher death rates, etc. Is the effect excessive on interstate commerce in relation to the benefits to localities? NOTE: the problem here is that the judgment of what is “excessive” should be decided on the basis of data and experts – which is a legislative function. Thus, some members of SC are highly critical of judicial determination here. NOTE: this also looks a lot like “health and safety” regulations to me. Oregon Waste v. Dept. of Environmental Quality Rule: A facially discriminatory state regulation is nearly facially invalid, absent a demonstrated state interests that cannot be achieved by reasonable, nondiscriminatory means. 31 Rule: Discriminatory state regulations are subjected to “strictest scrutiny” so heavy that facial discrimination by itself may be a fatal defect. Oregon charged higher rates for out of state garbage disposal than for in state garbage disposal BASED UPON costs to the state as determined by rulemaking procedures. This led to $.85/ton in state rates and $2.25/ton out of state rates. Rationale was that in state disposers were already paying taxes that subsidized waste disposal, whereas out of state disposer paid no taxes. SC has long held that tax surcharges are constitutional – out of state tuition and “car tax” on out of state purchases. Here, Thomas says “no dice.” Facial discrimination is nearly fatal. Plus, you can’t just simply conclude that all taxpayers pay for waste disposal  the appropriate comparison is what taxes in-state shippers pay relative to out of state shippers. He notes that in state shippers of out of state waste are charged the out of state rates, which he thinks means the taxes have no relation to being an in-state shipper. Unlike use tax, there’s no tax equivalency. There’s no specific charge that the in state shippers are paying that the out of state shippers are exempt from. Maine Camp Rule: It doesn’t matter if real property is involved or if tax exemptions are involved, the Oregon Waste principle still applies. [This is a pretty crappy summary – check the note case] South-Central Timber Development v. Wunnicke Rule: A state as a market actor can deal in state all it wants within the specific transaction – it cannot impose regulations on subsequent transactions beyond its own. Alaska rule that timber bought from the state must be initially processed within state. Alaska argues that Congress implicitly authorized this by doing the same thing on federal lands. SC says the authorization must be explicit to abrogate the commerce clause power. Alaska also argued that it was a market actor and thus was beyond the commerce clause power. SC held that whereas a state contracting in state employees or a state cement plant selling only to citizens or a state offering bounty on scrap cars are market actors, Alaska was trying to control transactions after its role as a market participant was over – which looks like regulation. Alaska can sell to whomever it wants, but once the timber is in private hands the state can say nothing about how it’s used. NOTE: In recent years, states have used the market place actor rationale to validate avoiding dealing with foreign actors – won’t deal with Myanmar or invest in South Africa – against challenge under the foreign commerce clause. That argument fails every time. Marketplace actor rationale is limited by the foreign commerce clause. 11.04.03 U.S. Term Limits, Inc. v. Thornton Rule: State qualifications for Congressional representatives different from or in addition to the baseline Constitutional qualifications are unconstitutional because state has no 10 th amendment reserved power to establish any qualifications as to officers of the federal government because they had no powers regarding the federal government prior to its existence AND because state qualifications are not exercises of the “time, place, or manner” of elections because they are undertaken for twin goals of disadvantaging a particular class of candidates and evading the dictates of the Qualifications Clauses. 32 Correllary Rule: Congress cannot set its OWN additional qualifications above or different from those of the Constitution. Arkansas passed a constitutional amendment precluding the name of an otherwise eligible candidate for Congress from appearing on the ballot if they’d already served 3 terms as Representative or 2 terms as Senator. SC held that the qualifications for service in Congress established by the Congress are untouchable by state legislation – the qualifications can only be changed or added to by Constitutional amendment. - NOTE that neither side of the debate on federalism denies that “original intent” is crucial to deciding what the Constitution says when it comes to fed/state issues – it is only in individual rights debate that that original v. evolving intent comes to the fore. - NOTE Stevens’ argument that you can’t reserve power you never had is met with Thomas’ arguments that 1. power to set salary didn’t exist before, but would have been reserved to the state if the federal gov’t hadn’t commandeered it; 2. you don’t have to have possessed a power previously to reserve it (restaurant table example). - REFERENCE NOTE Garcia will say the reason states don’t have to worry about whether their interests are represented is because their Congressman represent STATES’ INTERESTS in Congress. Stevens joined this opinion EVEN THOUGH he says here that Congressmen from any state represent the people in general. - NOTE Stevens argues that “time, place, and manner” clause doesn’t allow the states to decide that the “manner” in which they conduct elections will not include the names of two/three-time incumbents because it was intended to minimize state intrusions into federal elections. - NOTE Stevens argument that his case is bolstered by a natural right of the people to elect whom they want is countered by Thomas who says it falls with his argument  Arkansas told you who they didn’t want to represent them: double incumbents. - NOTE Thomas’ “lynchpin” argument is that the residual qualification power is reserved to the people of the states – including Arkansas. - REFERENCE NOTE in McCullough v. Maryland, the SC held that the people reserved certain powers to the federal government and the balance to the states. Thus, Thomas’ argument is that the people, not the states, retain the power to add qualifications where the Constitution is silent. Since the Constitution is silent as to added qualifications, the people of Arkansas have the right to add to them. This is bolstered by Jefferson’s quote, on 466, which says that the “whole” of the qualification power didn’t go to the federal gov’t (it doesn’t address prohibition of lunatics, etc.) and so the rest must by the 10th amendment be retained by the states. This is bolstered by state laws that mandated no convictions, district residency requirements, etc. Gralike stands for the principle that Thornton remains, AND that you can’t make fun of candidates that don’t support terms limits on the ballot. 11.06.03 Is the 10th amendment a substantive limit on Congress’ authority to legislate – especially the Commerce Clause? League of Cities said yes if it impinged on traditional state government functions. Garcia said no one knew what “traditional state government functions” were and so it was beyond the judiciary to enforce – states derive their protection against federal intervention from their representation in Congress. 33 National League of Cities v. Usery Rule: The Commerce Clause does not empower Congress to enforce minimum-wage and overtime provisions of the FLSA against the states in “areas of traditional governmental functions.” The issue here is if the Congress can regulate the states qua states, in their capacity as employers, under the interstate commerce clause. While it seems that Congress is merely regulating wages paid to employees, the employer here is a state that has long been thought to be sovereign – at least as to its traditional functions. SC rules here that minimum wage and overtime requirements would impinge on the ability of the states to provide services the way they have always done – therefore the FLSA as applied to the states. NOTE the dissent says: “Hey, this is within the commerce power. The fact that it implicates the states’ interests is irrelevant.” NOTE: This is a structural, rather than textual, limitation on Congress’ power. The majority is saying that the 10th amendment is a structural boundary that prohibits the Congress from treading on the sacrosanct ground of traditional state functions. BUT the cases cited by the majority deal with horizontal relations among federal entities and even Chadha deals with the textual requirement of bicameral vote and presentment. This case hinges upon the fact that there is no text that states what the States do traditionally and there IS text that states that Congress can regulate interstate commerce. While the majority intuitively understood that fundamental federalism questions involved here, it had to put its own words to those questions  “traditional state functions.” This, the Court admitted in Garcia, was an unworkable standard and – in the absence of any text to guide it – decided that state sovereignty was a “political question” to be defined by Congressional deliberation. Garcia v. San Antonio Metropolitan Transit Authority Rule: Legitimate exercise of the Commerce Clause power by Congress that impinges upon the function of states is constitutional because the only protection for states is the legislative process itself – if the Congressional legislation passed, the states’ interests were preserved. NOTE: Dissent says the most troubling thing about this case is that federal legislative officials are now the sole judges as to the extent of their own power  there is no judicial check on the legislative function NOTE: Now case law says the judiciary can figure out when the states’ action burden the federal commerce regulation power, but it can’t figure out when the federal commerce regulation power burdens the states’ powers. NOTE: If Congress has an unregulated hand in regulating commerce, remote congressman are now determining what it’s like to live in a state they barely live in AND those 400-odd people will be determining the ONE standard under which all 50 states must dispense their fire, police and sanitation services. 11.11.03 Printz v. United States Rule: The Federal Government may not compel the States to enact or administer a federal regulatory program but NOT because it violates the 10 th amendment, but because such a law is not “necessary and proper” to enforce the commerce clause – use of state agents to enforce federal law is not “proper” as against the structural framework of the Constitution. 34 Congress passed the Brady Bill and mandated that the local state law enforcement officials perform background checks according to federal law until a national federal background check system could be constructed. State officials don’t have to report a known felon; but if they do, they are obligated to explain why he can’t get a gun. If he’s not a felon, the state official is mandated to destroy the document. Note that Garcia is different because the regulation compelled the states AND private actors to conform. In New York v. United States, the fed is commanding that the state enact a law and then enforce it. Here, the fed is commanding the state to enforce a law that Congress has enacted. SC begins by addressing argument that law enforcement officials are no different from state judges who are bound by federal law all the time. But state judges are specifically mentioned in the supremacy and full faith and credit clauses as being bound to apply federal law. Thus there is a constitutional basis for this crossover. Without the discretionary federal courts, the state law would have HAD to interpret/enforce federal law. Further, the only example of a law burdening the state executive was the implementation of a constitutional mandate – the Extradition Clause. SC asserts that federalism is predicated on dual sovereigns – both of which govern the people at large. Fed rules governing a governor of the people causes ineffectual government and conflict. Rather, dual spheres and separation of powers within those spheres allows “double security” for individual rights  without distinct spheres, the double security arising out of opposition of interests disappears. SC asserts that if state officials enforce federal laws, this will weaken the President because he’s now responsible for the execution of laws by officials over whom he exerts no control. Executive officers have to spring from the federal executive, or else the President’s power of supervision is dissipated. SC goes on to ask is it proper for a federal law to direct a state officer to enforce it. SC concludes that it is not because it does not further a power that Congress has. Further arguments: 1. Federal law is not asking state agents to determine policy, only perform a ministerial function. SC says its not ministerial and, even if it was, there is no way to implement a “no policy” rule and a “not too much policy” rule is unworkable. Schecter is applicable here because it implicates the line between the legislature delegating the executive function of its laws and the unconstitutional delegation of its own legislative function to a sub agency without a “workable guideline” by which its decisions are made. NOTE the weakness of the majority’s principle here. All Congress has to do to get around the “no ordering the states around” rule is either regulate states and private parties OR offer $100 per enforcement (contingent federal funds) OR delegating federal regulation to the states IF the states regulate it the same way the feds would. NOTE: Reno v. Condon held that a statute requiring states to keep their driver license information under strict controls did NOT violate state sovereignty. Why? It applied to the state as an owner of a database itself. It did NOT require the state to regulate its citizens. 11.13.03 35 SPENDING POWER OVERRIDE OF CONSTITUTIONAL LIMITATIONS South Dakota v. Dole Rule: Congress may constitutionally regulate indirectly through the spending power what it is explicitly precluded from regulating under other constitutional provisions. Rule: Congressional spending power is limited by the following 1. the exercise of the spending power must be in pursuit of the general welfare 2. if Congress desires to condition the States’ receipt of federal funds, it must do so unambiguously 3. conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs 4. other constitutional provisions may provide an independent bar to the conditional grant of federal funds. - the “independent constitutional bar” means ONLY that the spending power may not be used to induce the states to acts that are themselves unconstitutional; neither a lack of enumerated powers nor a specific ban on regulation power are independent constitutional bars. 5. if the federal financial inducement is so coercive as to pass the point at which the pressure turns into compulsion, it might be unconstitutional. NOTE that limits on the spending power take their cue from contract law – full disclosure, undue influence, etc. Congress predicated South Dakota’s receipt of 5% of its federal funds for highways on raising its drinking age to 21. SD brought suit claiming this exercise of the spending power was in direct violation of its rights under the 21st amendment. SC didn’t decide what the 21 st meant, but it did say that the spending power is not limited by the enumerated powers in Article I. As long as the spending power is exercised in pursuit of the general welfare, the states are put on notice of their contingency, the federal mandate is related to its interests, and the constitution does not otherwise bar the induced state act. NOTE O’Connor in dissent says that the 21 st amendment gave to the states the exclusive power to regulate the drinking age and so the feds have no right to regulate under the commerce clause power, which is limited by powers reserved to the states. But the spending power is not limited by exclusive powers given to the states – but it is limited by the above, which O’Connor believes sufficient to hold this exercise of spending power unconstitutional. Regulatory conditions cannot be bootstrapped to spending provisions saying how the money itself is used. NOTE the distinction: Congress can spend for any reason under the general welfare BUT Congress cannot regulate under the spending power because regulation is limited by the enumerated powers in Art. II. Here, the commerce power is precluded because, in her opinion, the 21 st amendment took it away from them as to alcohol. Barnes v. Gorman Rule/Holding: States not subject to suit for punitive damages under the ADA because the language of the ADA stated that states were only subject to suit for claims under contract – 36 which doesn’t include punitive damages. Thus, states were not on notice that their receipt of the federal money would subject them to punitive damage liability. 11.18.03 Seminole Tribe v. Florida Rule: Even when the Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting states. Rule: State may be sued if it consents. Rule: Congressional abrogation occurs when: 1. Congress unequivocally expresses intent to abrogate immunity AND 2. Congress acts pursuant to a valid exercise of power. Rule: There is federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to end a continuing violation of federal law. Indian Gaming Regulatory Act (IGRA) requires states to negotiate in good faith with Indian tribes to reach an agreement on how Indian gaming will function in the state. Obligation to negotiate in good faith was judicially enforceable. Seminole brought suit against Florida, which moved to dismiss b/c violated state’s 11 th amendment immunity from suit in federal court. By the text, the 11th amendment prohibits diversity actions against a state by citizens of other states in federal court: “The judicial power of the U.S. shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” This amendment came about to reverse Chisholm, in which a non-Georgian sued Georgia in federal court for repayment for supplies rendered and the SC upheld it. Why isn’t this the end of the matter? Seminoles were Floridians and sued Florida – thus, ON ITS FACE, the 11 th doesn’t apply. But the SC held that 11th doesn’t mean what it says but what it stands for: 1. Each state is a sovereign entity in the federal system, 2. it is inherent in sovereignty that amenability of suit turns on consent. Thus, state must consent. OR Congress can abrogate state immunity by act. Congressional abrogation occurs when: 1. Congress unequivocally expresses intent to abrogate immunity AND 2. Congress acts pursuant to a valid exercise of power. Clearly, the IGRA intended to create abrogation. Did it have a valid exercise of power? 2 exercises in precedent. 1. Pursuant to 14 th amendment – This is so because 14th amendment modifies the 11 th, which came before. Also, the 14 th fundamentally altered the nature of the fed/state power balance. 2. Pursuant to the Commerce Clause – but the SC overruled Union Gas because Article III holds the exclusive catalog of judicial powers and Union Gas’ use of the commerce clause to expand the Article III powers violated the expansive understanding of the 11 th amendment and narrow understanding of Article III. But what about Hans v. Louisiana, which held that a LA citizen could not sue his own state for enforcement of state bonds because it violated the 11 th amendment – even though it didn’t on its face? Ct held this way because 11th on its face would keep non-citizens from suing but would allow citizens to do so. It did so on the rationale that the 11 th doesn’t stand for what it says, but what it stands for – sovereign immunity of the states. This comes from common law, which the majority holds as valid source of rulings. True, but legislative decisions overrule common law all the time. Souter in dissent says that’s what happened here. How does the majority rule stand? Is there a form of common law that CANNOT be overruled by Congress under Article I powers? Majority says yes and sovereign immunity is one of those common law rules. How does this work? Majority says sovereign immunity is rooted not only in English law but in the 37 law of “all civilized nations.” Is this different from “ordinary common law?” Pierce v. Society of Sisters said that Oregon’s law that parents send their kids to public school was against the concept of ordered liberty and against the fundamental right of parents to direct their children’s upbringing. Is this of the magnitude of Pierce? NOTE that Ex Parte Young is an exception to the 11 th, but not really because it provides for suit against state officer for violating federal right BUT can’t be cover for suing the state and can’t be for money damages – only injunctive relief. 11.20.03 11th Amendment State Immunity From Private Suit Kmiec’s Blackletter Rules on State Sovereign Immunity  Sovereign immunity is “alive and well” in federal and state courts.  Rule 1. SI does not apply to suits against a state to enforce a federal enactment by the federal gov’t.  Rule 2. SI does not apply to suits brought by one state against another. This is governed by comity agreements among the various states.  Rule 3. SI does not apply to private suits against a nonconsenting state under § 5 of the 14th amendment. o 14th amendment supercedes and changed the relations of the federal gov’t to the states. o Understand what a 14 th amendment analysis look like: It was enacted after the Civil War to keep the southern states from violating the rights of their black citizens – divided into four sections:  § 1. Privileges and immunities  § 2 Due process  § 3 Equal protection  § 4 Congress empowered to legislate to give enforcement to the provisions of the amendment o Thus, in Florida Prepaid (note 5-6 in supp., 145-46), the trademark statute designed to subject states to suit for failure to protect trademarks failed because a state saying something bad about your product is not a property interest – it doesn’t involve excluding someone from use. o If you do have a 14th amendment interest and Congress has passed legislation giving you a cause of action, state asserts SI against that cause of action, you respond that Congress abrogated SI, court looks to see if your cause of action matches well your injury. To be well-matched, there must be “defensible findings of a pattern of state violation of a 14 th amendment right.” I.e., there must be “congruence and proportionality” between injury and cause of action.  Rule 4. SI does not apply to private suits against other governmental entities which are not arms of the state (municipalities, et al).  Rule 5. SI does not apply to private suits against individual state officers for declaratory or injunctive relief (Ex parte Young) or monetary damages against the official himself EXCEPT where Congress constructs an elaborate remedial 38      mechanism for bringing state officers under jurisdiction that the SC interprets to preempt Young jurisdiction (Seminole?). o Young is necessary to maintain federal supremacy and SI by bringing the state officers into court, not the state itself. Rule 6. SI can be waived by the states, but not constructively. o General Rule: State waiver must be clear and unequivocal.  Sub Rule: General recital in state laws such as “suits allowed in courts of competent jurisdiction” is not specific enough for waiver.  Sub Rule: State participation in a federal program is not express nor unequivocal enough for waiver. SO fed gov’t can sue for the exact cause of action from which an individual is barred. o Why? Principality of Monaco says that’s the bargain. States entered the union and agreed to be subject to federal power – including suit against them. o BUT state SI has been held by the SC to cover any suit by an individual. 5 Justices think state SI cannot be set aside by Congressional action pursuant to Art. I. o Only happened once in Union Gas, which was subsequently struck down. 5 Justices think SI inheres in the structure of the Constitution – not necessarily in the common law or the natural law. Under the majority’s view, Art. III, § 2 grants federal courts the power to hear diversity cases involving a state or federal question cases between citizen and a state IF the state consents OR if the state brings the action. Alden v. Maine Rule: States cannot be sued by a private individual under a federal action for money damages in federal OR STATE courts. NOTE: Match this case with Garcia’s dissent by Rehnquist. Majority there said 10 th amendment is not judicially enforceable against the commerce power. Rehnquist gritted his teeth and moved on to the 11th amendment because he had precedent indicating the 11 th meant more than it said it did. 11th enacted to overturn precedent (judicial power not to be construed to extend to diversity jurisdiction – because it never did extend to it because sovereign immunity was always assumed to impede that). NOTE: Art. III, § 2 says federal jurisdiction extends to claims between a state and citizens of another state and between a state and the citizens thereof. How does this square with the majority’s view of the 11 th and SI? IT MERELY ALLOWS FEDERAL COURTS TO HEAR THESE CASES IF THE STATES CONSENT OR IF THE STATE INITIATES THE ACTION. Congress’ 14th Amendment Power to Abrogate Immunity Kimel deals with the Age Discrimination and Employment Act. It says there needs to be a congruence and proportionality between injury and statutory provision. Is age a “suspect class?” No. Suspect classes are based upon immutable characteristics such as race, ethnicity, etc. Quasi suspect classes include gender. These characteristics are thought to be poor bases for public discrimination. But age requires only a rational basis for discrimination. Can the Congress impose upon states obligations with regard to treatment of aged people that are greater than the Constitution imposes. No Congress cannot impose duties correspondent to rights broader than 39 the right protected by the Constitution, as interpreted by the SC. SI was not abrogated because the protections sought to give the aged were broader than the Constitution required. Kimel v. Florida Board of Regents Rule: Congress cannot impose duties correspondent to rights broader than the right protected by the Constitution, as interpreted by the SC. SI was not abrogated because the protections sought to give the aged were broader than the Constitution required. Does this rule include disabilities? South Carolina said it had SI against discrimination against disabled suit in an administrative hearing. Rule: SI applies not only to federal and state courts, but to trial-like proceedings in federal agencies. Hibbs Rule: Kimel says if Congress is legislating to defend the rights of a non-suspect class, there must be a tight fit between demonstrated record of abuse and right secured. BUT in cases involving suspect or quasi-suspect classes demands a much LOWER standard of abuse, per Hibbs. FMLA tried to treat men like women in maternity leave questions because gender was implied under the 14th amendment. Congress held that since inequality existed in the private sector, it must exist in the public sector. SC did buy the argument 11.25.03 Judicial Incorporation of Constitutional Provision Barron v. Mayor of Baltimore Rule: Bill of Rights was not thought to apply to states unless specifically so stated. Marshall ruled that the Bill of Rights says what Congress cannot do – not the states. States are thought to be separate and not regulated by the Bill of Rights unless specifically indicated. For example, Art. I, § 10 specifically states that States can’t grant letters of marque or reprisal, coin money, enter into treaties, etc. BUT selective judicial incorporation of the Bill of Rights through the Due Process Clause of the Fourteenth Amendment Palko v. Connecticut Rule: Courts will judicially incorporate through the 14 th amendment those federal rights that are 1. “implicit in our scheme of ordered liberty,” 2. “a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Palko was convicted for second degree murder and was sentenced to life. State then appealed, tried him again, and sentenced him to death. He appealed on the basis of double jeopardy. Lower courts held that double jeopardy prohibition did not apply to the states. SC held that it did 40 NOT apply because the double jeopardy clause is NOT “implicit to the scheme of ordered liberty” and “a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Some rights haven’t been incorporated  right to civil jury trial in cases where amount in controversy exceeds $20; right to unanimous jury verdict in criminal cases (?). That’s about it. Adamson v. California Rule: 14th amendment incorporates ONLY those provisions of the Bill of Rights that are “implicit in the concept of ordered liberty.” BUT Frankfurter says protection of “due process” of Constitution does NOT mean the application of the specific rules (Bill of Rights) adopted by the Constitution to protect due process  if it did, the framers could have just said so. The framers did not because they allowed the states to have their own law, with the freedom to experiment for the purpose of better securing justice. BUT Black says 1. Intent of Framers was to incorporate the entire Bill of Rights; 2. Incorporation of the entire Bill of Rights is easy to discern and guards against judicial caprice in determining what “fundamental liberties” means in a given case. NOTE: Malloy v. Hogan applied the right against self-incrimination to the states in overruling Adamson. NOTE the Court has essentially incorporate the ENTIRE Bill of Rights except those items mentioned above. NOTE the current status is that states are free to do what they want to secure justice (federalism) UNLESS they violate the “fundamental liberties” of America (which almost always means they have violated the Constitution) – in which case City of Boerne v. Flores Rule: Congress cannot pass laws pursuant to Art. XIV, § 5 which alter the meaning of the rights according to the SC’s precedent. “There must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Rationale: If § 5 power was to pass preventive legislation, it would be defining its own powers and would reduce the Constitution to general legislation – repealable by the later legislation of Congress. The following are rules the Court adopts in trying to define “congruent and proportional.” Rule: Preventive rules are sometimes appropriate remedial measures, but there must be congruence between the means used and the ends to be achieved. Rule: The appropriateness of remedial measures must be considered in light of the evil presented. Rule: Preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional. Rule: Remedial legislation under § 5 should be adapted to the mischief and wrong which the 14th amendment was intended to provide against. - This means you have to provide evidence of a pattern of discrimination. 41 Smith said constitutional protection of free exercise is satisfied if laws are “neutral and generally applicable.” Congress passed RFRA that said if law has a disparate impact on the practice of religion, a rationale basis is not enough – there must be a compelling basis that is advanced by the least intrusive way. NOTES FOR FINAL Treat Kmiec as your client. He gives you the facts. You identify his issues, give him the relevant law, and how it relates to his facts. Give him headings: “11 th amendment issue.” Study the following: 1. Philosophical material from the beginning of the course 2. Articles 1-3  legislative, executive – foreign affairs and appointments, and judicial power – jurisdictional questions – subject matter, standing, etc. 3. Separation of powers issues that come up in disposing of the legislative veto – political questions following Chadha. 4. Concept of preemption is important – ultimately traceable to the Supremacy Clause, largely determined on the basis of congressional intent, implied from occupancy of the field, conflict, or frustration of Congressional purpose (notes at p. 515). 5. Commerce power on its affirmative and dormant side. 6. Dual sovereignty – 10th and 11th amendments. - 10th is attempt by court to define somet things as wholly local and immune from congressional legislation. Lost, but it came back in another form in the 11 th amendment. Doesn’t say things are wholly outside the congressional legislative power, but does say that congressional enactment can’t allow a money damages suit against a state unless certain elements are met. In office hours Wednesday afternoon. 42