CONSTITUTIONAL LAW – FED/STATE 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. Roy Moore discussion – the Con is not the highest law in the land D of I. COMMON LAW 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.” 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?
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. 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. The Judicial Branch Who should nominate/confirm judges? - Executive: subject to partiality, but better able to judge judicial character, can act with dispatch. Also, responsibility is clear because only one person nominated. - Legislative: better reflect the people, but 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 prevent 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.
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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. 2. The injury must be personal and concrete/actual or imminent - No taxpayer grievance (unless tied to Establishment Clause) - No general environmental complaint (unless demonstrable personal impact) - No general legislative standing (unless legislator denied seat or votes wrongly counted) Causation - “But for” is best - Ex.: IRS regs not good enough Redressability - Can court dispense redress requested? / Is it likely, rather than possible, that relief will result? - Ex.: Linda RS - Jailing husband ≠ payment of child support Prudential Limits to Standing: 1. P can only assert his own rights. - Exceptions: 1. Obstacle to suit AND P rx likely to effectively represent 3 rd party’s interests 2. Close relationship with P (Dr./abortion patients, religious school/parents) 3. Overbreadth Doctrine – nonparty can challenge substantially overbroad statute in restraint of someone else’s political free speech 4. Association may bring claim on behalf of members if: i. members would have standing on their own ii. interests at stake are germane to the organization’s purpose
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iii. neither claim nor remedy require participation of members in suit 2. P cannot bring collateral damage claim under a statute unless he is within the “zone of interest” – that is, Congress contemplated him as someone affected by the statute. Ripeness - Ripeness ensures the prosecution is not hypothetical AND the application of the law is not theoretical. 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 is certain and imminent, and 3. where there is collateral injury - i.e. suit against building of nuclear plant under statute limiting its liability; ct allowed suit even though no event of disaster because of the collateral damage incurred by living near a reactor. - Fitness of issues requires sufficiently developed factual record to which to apply the law 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. Supreme Court Subject Matter Jurisdiction 4 types of appellate jurisdiction 1. Question of Constitutional law or interpretation of a federal statute (federal question jurisdiction) 2. Controversies between citizens of different states (diversity jurisdiction) 3. Admiralty or maritime law 4. Controversies naming US as a party 4 Types of original jurisdiction
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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: Congress CAN regulate or remove the appellate jurisdiction of the SC. Rule: 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 such as by extending/denying jurisdiction for a specific case. Rule: Congress can modify lower federal court jurisdiction at will BUT it cannot change jurisdiction intending to get a particular result Marbury v. Madison Rule: Acts of Congress which are repugnant to the procedure OR substance of the Constitution are unconstitutional and thus not law at all. Rule: Marbury means 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? - President can veto but traditionally must explain himself. - President CANNOT merely refuse to enforce must “take care” to enforce laws. - Congress/state legislatures can legislate for MORE protection than constitution but not less. Martin v. Hunter’s Lessee (pg. 212) Rule: State courts are bound by the federal constitution through SC appellate jurisdiction over their CASES involving federal question issues. 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. Restraints on SC Power 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)
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4. Squishy stare decisis - 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 Rule: Legislature hands over enforcement power to the executive and can (with an “intelligible principle” that doesn’t provide “literally no guidance”) 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 of bicameral passage/presentment AND there would be no judicial oversight because it’s not a law. - NOTE: There are 400 cases in which a legislative veto has been included in legislation and passed, notwithstanding Chadha. Rule: President has no inherent power of line-item veto. Rule: Line item veto may NOT be granted to the president by Congress EVEN IF it includes an “intelligible principle” that is not a “vague aphorism” and does not provide “literally no guidance” BECAUSE it makes the president “sole legislator” by picking and choosing amongst passed items – Congress never got to vote on final law. NOTE: Line item veto is “necessary” because of legislative bundling which incorporates substantive/administrative bills and sometimes substantive/substantive bills. 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 made 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.
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NOTE: Nixon v. United States means Senate can impeach by whatever means it wants – how it does it is a political question. 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. - 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 1st 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. - No legislative function - Limited terms - Subject to removal under law (now some “scope of office” immunities) - Equal to all men just entrusted to rule - BUT, needed someone capable of acting with “energy, dispatch, and secrecy.” Thus, the Constitutional powers of the President begin with Art. II and 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
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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: Act UNLESS congressional mandate - Taft: Act ONLY with congressional mandate - Lincoln: Official powers AND those necessary to preserve the union. 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 (mostly in foreign affairs, such as receipt of Ambassadors). Emergency powers must arise from congressional enactment. Presidential Removal Power Myers v. United States Rule: With regard to a principal, solely executive officer that is subject to Senate confirmation, they are removable at will by the President. Congress can limit removal of inferior officers who are appointed by the Head of a Department or Courts of Law and not subject to confirmation. It is an open question whether Congress can limit the removal of an officer the appointment of whom is Congressionally granted solely to the President. This is doubtful because such people are usually his direct staff – Congress shouldn’t determine who’s in the Oval Office. NOTE: Executive, not legislature, removes all officers pursuant to the executive function – the question is whether he can remove them at will or for cause. NOTE: The president can remove at will 1. principal officers who exercise a purely executive function and are therefore his direct responsibility, 2. inferior officers who he personally appoints (because they are usually his staff and Congress shouldn’t be able to limit that). NOTE: The president is limited in removing 1. principal officers who exercise a mixed function and are outside his agenda, 2. inferior officers whom he does not personally appoint, even if they exercise purely executive function (because they are usually under another executive officer, who should fire them). What kind of officer is “independent counsel?” - Independent counsel is appointed by the judiciary. Thus, IC is appointed executive official to carry out prosecutorial authority. - Cross reference this case with Morrison v. Olson. Humphrey’s Executor v. United States
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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 “mixed powers” 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. What’s 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? 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. 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.
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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. 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. Executive Privilege, the President, & Judicial Review United States v. Nixon Rule: Presidential executive privilege has degrees: 1. Protection of military/diplomatic secrets are given “utmost” privilege (nearly absolute) 2. Protection of law enforcement documents is given middle priority (because confidentiality ensures protection of the innocent, surveillance, investigation, etc.) 3. Protection of information necessary for “consultative confidentiality” is given little deference Rule: President has absolute immunity from civil suit for damages from decisions within the “outer perimeter” of his official duties. Rule: Presidential advisors have immunity from suits springing from official acts UNLESS those acts violate a statutory or clearly established constitutional right. Rule: Congressional members have immunity for legislative acts (debate, voting, etc.), pursuant to Art. I, § 6. 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. - 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. The Independent Counsel – “Prosecuting the Executive” Morrison v. Olson Rule: Denying presidential removal power of “principal officer” is acceptable where it does not interfere with the President’s exercise of executive power and his duty to take care that laws are faithfully executed.
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Rule: Thus, 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. 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. - SC held that Humphrey’s Executor 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. 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.” Foreign affairs power is limited in some respects by the Constitution (ratify treaties, declare war, regulate foreign commerce, regulate purse), but it is broader than the Constitution itself. 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 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
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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 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. Rule: 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. - But what if a treaty is passed and a subsequent statute conflicts with it? FOR DOMESTIC 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
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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). 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. Limited Government & Enumerated 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. Not 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. 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. 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.
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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 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. 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 - E.g., 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. Example: 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. Rule: There is a general federal immunity from state and local taxes unless consented to. NOTE: Before starting a preemption analysis, ask whether the federal body has the right to issue the law.
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A Federal Common Law? 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. United States v. Hudson & Goodwin Rule: There is no CRIMINAL federal common law. Swift v. Tyson Rule: Federal courts sitting in diversity may create their own federal common law by picking and choosing from among the states. 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 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. 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.” 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 an intrusion 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
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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. 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. Champion v. Ames Rule: Congress can regulate items that are in interstate 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. Wickard v. Filburn Rule: Any regulation of actions that have “substantial effects” on interstate commerce falls within the commerce clause. Rule: The “Aggregation Principle” says that any action has “substantial effects” even if, by itself, it is negligible – as long as it is an action that would have substantial effects if “everyone did it.” 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 does not render them insubstantial. Rule: Congress may regulate 3 distinct areas under the commerce power: 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: A substantial relation to interstate commerce means it “substantially affects” interstate commerce. Rule of Lopez: Legitimate federal regulation of activities that “substantially affect” interstate commerce in the aggregate needs varying degrees of: 1. An economic endeavor 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.
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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. - 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 use the commerce clause to displace a traditionally local governmental function (regulating hunting habitat), 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 (channels/instrumentalities). 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.
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- 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 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. Negative Commerce Power Cooley v. Board of Wardens Rule: Selective exclusivity – If an activity is such that national uniformity is necessitated, then Congressional regulation is exclusive. If the activity is a matter of peculiar local concern, (even if within Congressional commerce power), states may regulate absent preemption. Rule: Congress can incorporate existing state law into federal law BUT incorporating future law implicates Chadha and might violate the bicameral passage/presentment requirement. 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” regulation to me. Oregon Waste v. Dept. of Environmental Quality Rule: A facially discriminatory state regulation is subject to “strictest scrutiny” and is nearly always invalid, absent a demonstrated state interest that cannot be achieved by reasonable, nondiscriminatory means. Rule: Facially non-discriminatory state regulations that have an effect on interstate commerce are valid unless the burden on interstate commerce is excessive in relation to putative local benefits. Maine Camp Rule: It doesn’t matter if real property is involved or if tax exemptions are involved, the Oregon Waste principle still applies. South-Central Timber Development v. Wunnicke Rule: A state as a market actor can restrain interstate commerce all it wants within the specific transaction BUT it cannot impose regulations on subsequent transactions beyond its own – this is bootstrapping the prohibited regulatory power.
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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. 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. Correllary Rule: Congress cannot set its OWN additional qualifications above or different from those of the Constitution because Founders intended the requirements to be exclusive. 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. 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. 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.” (overruled by Garcia) Death of the 10th Amendment 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 not barred by the 10th amendment because the only 10th amendment protection for states is the legislative process itself – if the Congressional legislation passed, the states’ 10th amendment rights were preserved. 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. No Commandeering the States Printz v. United States
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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. 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’s 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. 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 21 st 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
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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 the general welfare under the spending clause 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 21st 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 – 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.
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 UNLESS valid Congressional abrogation under § 5 of the 14th amendment. 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 Young 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 AND the official may be sued for money damages in a personal capacity. 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, life/liberty/property/due process, equal protection
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§ 5 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” and there must be “congruence and proportionality” between the violation and cause of action (Kimel). 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 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 – only pursuant to § 5 of the 14 th amendment. 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 ONLY 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: 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
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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 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. 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 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 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. 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.” 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.
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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 incorporated 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 14th amendment, § 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 unbounded 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. 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.
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6. Dual sovereignty – 10th and 11th amendments. - 10th is attempt by court to define some things as wholly local and immune from congressional legislation. Lost, but it came back in another form in the 11th 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.
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