Constitutional Law Outline - DOC

Document Sample
Constitutional Law Outline - DOC Powered By Docstoc
					CONSTITUTIONAL LAW I Prof. George Brown Spring 2009 “Some say reading Chemerinsky is like taking the course, only better” – Prof. Brown INTERPRETATION OF THE CONSTITUTION ..............................................................................................1 A. How Should the Constitution be Interpreted? .................................................................................................... 1 B. Who Should be the Authoritative Interpreter of the Constitution? ................................................................ 2 STRUCTURE OF CONSTITUTIONAL DEMOCRACY ..................................................................................... 3 A. The Federal Judicial Power ..................................................................................................................................... 3 B. The Authority for Judicial Review ......................................................................................................................... 3 C. The Authority for Judicial Review of State and Local Actions ........................................................................ 4 CONSTITUTIONAL & CONGRESSIONAL LIMITS ON THE FEDERAL COURTS ............................................. 7 A. The Justiciability Doctrines ..................................................................................................................................... 7 B. Prohibition Against Advisory Opinions ............................................................................................................... 8 C. The “Standing” Doctrine ........................................................................................................................................ 8 D. The “Ripeness” Doctrine ......................................................................................................................................13 E. The “Mootness” Doctrine ....................................................................................................................................14 F. The “Political Question” Doctrine ......................................................................................................................14 G. Congressional Control of Federal Court Jurisdiction ......................................................................................18 FEDERALISM ...........................................................................................................................................20 A. The Doctrine of Limited Federal Legislative Authority ..................................................................................20 THE COMMERCE CLAUSE .......................................................................................................................20 A. Defining the Congress‟ Commerce Power.........................................................................................................20 B. What Is Commerce? ...............................................................................................................................................22 C. What Does “Among the States” Mean? .............................................................................................................23 D. Does State Sovereignty Limit Congressional Power? ......................................................................................23 E. The Commerce Clause from 1937 to 1995 ........................................................................................................25 F. The Commerce Clause After United States v. Lopez .......................................................................................28 THE FEDERAL LEGISLATIVE POWER ......................................................................................................33 A. Preemption...............................................................................................................................................................33 B. The Taxing and Spending Power of Congress ..................................................................................................36 C. The Enforcement of Federal Laws ......................................................................................................................39 D. Delegation of Executive Power to Congress and Its Officials ......................................................................39 E. The War Power .......................................................................................................................................................40 F. Congress‟ Power Under the Reconstruction Era Amendments (Amends. 13, 14 & 15) ...........................40 THE FEDERAL EXECUTIVE POWER ........................................................................................................44 A. Express and Inherent Executive Power .............................................................................................................44 B. Congressional Expansion of Executive Power .................................................................................................46 C. Executive Power in Foreign Policy......................................................................................................................46 D. Executive Privilege .................................................................................................................................................48 E. The Executive Appointment Power....................................................................................................................48 CONSTITUTIONAL DEMOCRACY AND THE WAR ON TERROR ..................................................................50 A. Executive War Powers ...........................................................................................................................................50

INTERPRETATION OF THE CONSTITUTION A. How Should the Constitution be Interpreted?  The Need for Interpretation  Countless problems arise that the Constitution does not expressly consider.

2
 Much of the Constitution is written in open-textured language open to interpretation.  No doubt that it is this open-textured language that allowed the Constitution to survive for over 200 years and to govern a world radically different from that one that existed when it was originally drafted.  Justice Marshall explained that the Constitution was not meant to have the “prolixity of a legal code,” but instead, “its nature…requires, that only its great outlines should be marked, its important objects designated…We must never forget that it is a constitution we are expounding. A constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs” – McCulloch v. Maryland.  Inevitably, courts must face the question of what, if any, government justifications are sufficient to permit the government to interfere with a fundamental right.  The Basic Arguments for Originalism  Some argue that the very nature of interpreting a document requires that its meaning be limited to its specific text and its framers‟ intention.  More commonly, originalists argue that their approach is desirable to constrain the power of unelected judges in a democratic society.  The claim is that the basic premise of American democracy is majority rule – the “political principle that governmental policymaking – decisions as to which values among competing values shall prevail, and as to how those values shall be implemented – ought to be subject to control by persons accountable to the electorate.”  Alexander Bickel termed this the “counter-majoritarian difficulty,” stating that judicial review is a “deviant institution in American democracy because it permits unelected judges to overturn decisions of popularly accountable officials.”  Opponents argue that neither descriptively nor normatively should American democracy be defined as majority rule. The framers openly and explicitly distrusted majority rule, and therefore virtually every government institution that they had created had strong anti-majoritarian features.  Democracy is defined by originalists to require decisions by current majorities – yet majority rule does not exist if society is governed by decisions of past majorities that cannot be overruled by a majority of the current population.  The Basic Arguments for Nonoriginalism  Most nonoriginalists argue that it is desirable to have the Constitution evolve by interpretation and not only by amendment – review is necessary to meet the needs of a changing society.  A second argument is that there is not an unambiguous, knowable framers‟ intent that can be found to resolve constitutional questions. The processing of determining the framers‟ intent invariably is a process of interpretation that is affected by contemporary values; in other words, it is indistinguishable from nonoriginalism.  Justice Jackson remarked, “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”  A third argument is that it is probably the approach intended by the framers.  Prof. Brown says that the founders meant the constitution to be a living document with some contours that would be need to be filled in with the values of current justices – supposedly reflecting the values of society. B. Who Should be the Authoritative Interpreter of the Constitution?  No Authoritative Interpreter  Each branch of government would have equal authority to determine the meaning of constitutional provisions, and conflicts would be resolved through political power and compromise.  Thomas Jefferson wrote that the Constitution meant, “[I]ts coordinate branches should be checks on each other. But the opinion which gives judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for

2

3
the legislature and the executive also in their spheres, would make the judiciary a despotic branch.”  Each Branch Is Authoritative in Certain Areas  For each part of the Constitution, one branch of government is assigned the role of being the final arbiter of disputes, but it is not the same branch for all parts of the Constitution.  This best describes the current system of constitutional interpretation.  For example, the judiciary has declared that certain parts of the Constitution pose political questions and are matters to be decided by other branches of government.  The Judiciary Is the Authoritative Interpreter  Although every governmental institution interprets the Constitution, the judiciary is assigned the role of umpire; its views resolve disputes and are final until reversed by constitutional amendment.  Arguable, Marbury v. Madison endorses this approach in Justice Marshall‟s famous declaration, “It is emphatically the province and duty of the judicial department to say what the law is.”  However, Marbury could be read narrowly as holding that the Court is the final arbiter of the meaning of Article III of the Constitution, which defines judicial power. STRUCTURE OF CONSTITUTIONAL DEMOCRACY A. The Federal Judicial Power  Article III of the Constitution  “The judicial Power of the United States shall be vested in one supreme Court and in such inferior courts as Congress may from time to time ordain and establish.”  James Madison stated, “Confidence cannot be put in the State Tribunals as guardians of the National authority and interests.”  Congress established lower federal courts in the Judiciary Act of 1789.  The Supreme Court has original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court is granted appellate jurisdiction, both as to law and fact, subject to “such Exceptions and under such regulations as Congress shall make.”  N.B. Article III never expressly grants the federal courts the power to review the constitutionality of federal or state laws or executive actions.  Perhaps the silence reflects the shared understanding that courts possess the authority for constitutional review and it was thought unnecessary to enumerate this. Or, perhaps the silence reflects a failure to consider the issue in drafting the Constitution or even the assumption that courts would not have this authority.  Limits on the Federal Judicial Power  Article III circumscribes the maximum extent of federal court subject matter jurisdiction.  Interpretation of Article III also established the doctrine of justiciability.  Supreme Court has held that a federal court may hear a matter only when there is both constitutional and statutory authorization. Thus, statutes limit the jurisdiction of the federal courts and the reach of the judiciary‟s power. B. The Authority for Judicial Review  The Judiciary Act of 1789 and Marbury v. Madison Marbury v. Madison Facts: Marbury was denied his commission by the incoming Jefferson administration. At issue before the Court was (i) whether Marbury had a right to the commission; (ii) if so, did the law afford a remedy; (iii) did the inclusion of mandamus in the Act violate Article III; (iv) and could the Supreme Court declare laws unconstitutional? Holding: The Supreme Court ruled against Marbury and held that it could not constitutionally hear the case as a matter of original jurisdiction. The Court held that although the Judiciary Act of 1789

3

4
authorized such jurisdiction, this provision of the statute was unconstitutional because Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution.  Does Marbury Have a Right to the Comission?  The Court concluded that Marbury had a right to the commission because all appropriate procedures were followed. Withholding Marbury‟s commission was “violative of a vested legal right.”  Does the Law Afford Marbury a Remedy?  Justice Marshall stated that, “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”  The Court then drew a distinction as to when the judiciary could afford relief in stating, “Where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.”  Judicial review, including mandamus, was deemed appropriate only in acts where the executive had a duty to perform – not in political acts.  Does Mandamus on Original Jurisdiction Violate Article III?  The Court concluded that Article III enumerated its original jurisdiction and that Congress could not enlarge it by including mandamus in the Judiciary Act of 1789.  Justice Marshall said Article III‟s enumeration of original jurisdiction would be “mere surplusage…entirely without meaning,” if Congress could add more areas of original jurisdiction.  Can the Supreme Court Declare Laws Unconstitutional?  Justice Marshal argued that the Constitution imposes limits on government powers and that these limits are meaningless unless subject to judicial review.  Borrowing from Alexander Hamilton‟s Federalist No. 78, the Court stated, “the powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.”  Justice Marshall argued that it is inherent to the judicial role to decide the constitutionality of the laws that it applies.  “It is emphatically the province and duty of the judicial department to say what the law is.”  Justice Marshall argued that the Court‟s authority to decide “cases” arising under the Constitution implied the power to declare unconstitutional laws conflict with the basic legal charter.  Justice Marshall also defended judicial review on the ground that judges take an oath of office and that they would violate this oath if they enforced unconstitutional laws.  This argument is question-begging – judges would not violate their oath by enforcing unconstitutional laws if they did not have the power to strike down such statutes.  Finally, Justice Marshall argued that judicial review is appropriate because Article VI makes the Constitution the “the supreme law of the land;” “the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.”  But to say that the Constitution should control over all other laws does not necessarily mean that the judiciary has the power to invalidate laws. C. The Authority for Judicial Review of State and Local Actions  Judiciary Act of 1789  Although the Constitution does not explicitly say that the Supreme Court may review state court decisions, § 25 of the Act allowed the Supreme Court to review state court decisions by a writ of error to the state‟s highest courts in many situations.

4

5
 “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States” – Justice Holmes. Martin v. Hunter‟s Lessee Facts: Martin claimed title to a piece of land based on inheritance from Lord Fairfax, a British citizen who owned the property. The U.S. and England had entered into two treaties protecting the rights of British citizens to own land in the U.S. However, Hunter claimed that Virginia had taken the land before the treaties came into effect and, hence, Martin did not have a valid claim to the property. The Supreme Court issued a writ of error and reversed, holding the treaties were controlling. The Virginia Court of Appeals argued that the Supreme Court lacked authority to review state court decisions. Holding: The Supreme Court affirmed its original holding and held that it did have authority to review state court decisions. Reasoning: Justice Story persuasively argued that the Constitution presumed that the Supreme Court could review state court decisions. Story argued that the Constitution creates and Supreme Court and gives Congress discretion whether to create lower federal courts. But if Congress chose not to establish such tribunals, then the Supreme Court would be powerless to hear any cases, except for the few fitting within its original jurisdiction, unless it could review state court rulings.  Justice Story also emphasized that the Constitution is based on a recognition that “state attachments, state prejudices, state jealousies, and state interests might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice.”  Justice Story further observed that Supreme Court review is essential to ensure uniformity in the interpretation of federal law.  The Virginia judges made two arguments for their conclusion: (i) They claimed not that the Constitution did not bind state judges, but that one sovereign could not control another; the risk of centralization thus outweighed the disk of disharmony; and (ii) they contended that other devices were available in order to minimize the latter risk and to bring about uniformity.  The position of the Virginia judges was that Congress had to take action to eliminate the risk of lack of uniformity through creating lower federal courts and expanding removal jurisdiction. The Supreme Court‟s view, by contrast, was that the more direct mechanism of control – appellate jurisdiction – is constitutionally permissible. Cohens v. Virginia Facts: Two brothers were convicted in Virginia state court of selling District of Columbia lottery tickets in violation of Virginia law. The defendants sought review in the Supreme Court because they claimed the Constitution prevented them from being prosecuted for selling tickets authorized by Congress. Virginia argued that the Supreme Court had no authority to review state court decisions in general, and, in particular, review was not allowed in criminal cases and in cases where a state government was a party. Holding: The Supreme Court, in an opinion by Justice Marshall, reaffirmed the constitutionality of § 25 of the Judiciary Act and the authority of the Supreme Court to review state court judgments. Reasoning: Justice Marshall emphasized that state courts often could not be trusted to adequately protect federal rights because “in many states the judges are dependent for office and for salary on the will of the legislature.”  The Court thus declared that criminal defendants could seek Supreme Court review when they claimed that their conviction violated the Constitution. Cooper v. Aaron Facts: A federal district court ordered the desegregation of the Little Rock, Arkansas public schools. The state disobeyed the order, in part, based on a professed concern that compliance would lead to violence, and in part, based on a claim that it was not bound to comply with judicial decrees. Holding: The Supreme Court, in an unusual opinion signed individually by each Justice, rejected the state‟s position and emphatically declared, “Article VI of the Constitution makes the Constitution the „supreme law of the land‟…Marbury v. Madison…declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensible feature of our

5

6
constitutional system…Every state legislator and executive and judicial officer is solemnly committed by oath…to support the Constitution.”  Casebook suggests that the supremacy clause is actually being read in this case as, “the constitution (as interpreted by the supreme court) is the supreme law of the land.”  Prof. Brown questions whether if the Court‟s holding in Cooper is extending beyond Marbury, and if so, does it present problems of horizontal power.  Question also remained whether cases adjudicated before the Supreme Court bound only the parties to the case or are holdings applicable to all people under the Constitution and in effect, the holding in the case becomes part of the constitution. McCulloch v. Maryland Facts: A Maryland statute prohibited any bank operating in the state without state authority from issuing bank notes except on stamped paper issued by the state. The law specified the fees payable for the paper and provided for penalties for violators. An Act of Congress established a U.S. Bank. McCulloch, the U.S. Bank‟s cashier for the Baltimore branch, issued bank notes without complying with the Maryland statute. At issue was (i) whether Congress has the power to incorporate a bank and (ii) whether a state has the power to impose fees on the operation of an institution created by Congress pursuant to its constitutional power. Holding: Justice Marshall speaking for the Court, held that Congress had the authority to incorporate a bank and that the state tax upon the bank was unconstitutional.  As to the first question, Justice Marshall speaking on behalf of the Court made four arguments for holding that Congress had the authority to incorporate a bank.  First, Justice Marshall invoked the history of the first Bank of the United States as authority for the constitutionality of the second bank.  Second, in refuting the view that the states retained ultimate sovereignty because they ratified the Constitution, Justice Marshall rejected that view and contended that it was the people who ratified the Constitution, and thus the people are sovereign, not the states – “the government proceeds directly from the people; is „ordained and established‟ in the name of the people.  Third, Justice Marshall admitted that the Constitution does not enumerate a power to create a bank, but said that this is not dispositive as to Congress‟ power to establish such an institution. Justice Marshall stated, “a constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.” He added, “In considering this question, then, we must never forget that it is a constitution we are expounding.” Justice Marshall‟s conclusion was that Congress was not limited only to those acts specified in the Constitution; Congress may choose any means, not prohibited by the Constitution, to carry out its lawful authority.  Fourth, Justice Marshall argued that Article I, § 8, granting Congress the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States,” made it clear that Congress may choose any means, no prohibited by the Constitution, to carry out its lawful authority.  “The government of the Union is limited in its powers, but supreme in its sphere.”  “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”  Justice Marshall interpreted “necessary” as useful or desirable, rather than a restrictive view as indispensible or essential.  Justice Marshall further rejected any contention that this interpretation gave Congress limitless authority, stating that if Congress exceeded its constitutional authority, “it would become the painful duty of this tribunal…to say, that such an act was not the law of the land.”

6

7
 As to the second question, Justice Marshall concluded that the state could not tax the Bank of the United States for two reasons.  First, Justice Marshall explained that the power to create includes the power to preserve. “The power to tax involves the power to destroy; and that the power to destroy may defeat and render useless the power to create…”  Second, the Justice Marshall noted that a state tax on a federal bank essentially was a state tax on those in other states. Those who were being taxed therefore were not represented in the state imposing the tax, and the tax was thus illegitimate.  “But, when a state taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control.”  The Constitutional Methodology and Interpretation in McCulloch  Prof. Black suggests looking at the constitutional structurally and not focusing textually on grammar and such.  Benefit of following the structural approach is that it allows one to focus on the policy arguments. But does Prof. Black‟s position mean that by focusing on structure, the Constitution should be interpreted to mean whatever the judges think it should mean?  Prof. Black‟s approach seems to suggest ignoring the details of the text.  Prof. Black‟s approach seems to be in contrast to Justice Marshall‟s emphasis Marbury v. Madison on the fact that our Constitution is actually written.  Constitutional Interpretation and Political Control  Thomas Jefferson suggested that the constitution should be easily amended to reflect the values of each generation – a revisionist viewpoint.  Madison suggested that such conditions would create chaos between the generations suggesting that even the state of property would be jeopardized.  Could be argued that Madison was just trying to defend the status quo, of which he was in a comfortable position (i.e. by referring to property concerns).  The Constitution has to have a degree of some stability to provide a set of values. CONSTITUTIONAL & CONGRESSIONAL LIMITS ON THE FEDERAL COURTS A. The Justiciability Doctrines  Constitutional v. Prudential Requirements  The Court has declared that some of the justiciability doctrines are a result of its interpretation of Article III of the Constitution. Article III, § 2, defines the federal judicial power in terms of nine categories of “cases” and “controversies.”  The Court has also declared that other justiciability doctrines are derived not from the Constitution, but from prudent judicial administration.  The distinction is important because Congress, by statute, may override prudential, but not Constitutional, restrictions. Because Congress may not expand federal judicial power beyond what is authorized in Article III of the Constitution, a constitutional limit on federal judicial review may not be changed by federal law.  Policies Underlying Justiciability Requirements  First, the justiciability doctrines are closely tied to separation of powers. They define the judicial role; they determine when it is appropriate for the federal courts to review a matter and when it is necessary to defer to the other branches of government.  Second, the justiciability doctrines conserve judicial resources, allowing the federal courts to focus their attention on the matters most deserving of review.  Some have also argued that it allows the judiciary to preserve it‟s “political capital.”  Third, the justiciability doctrines are intended to improve judicial decision making by providing federal courts with concrete controversies best suited for judicial resolution.  Finally, the justiciability doctrines also promote fairness, especially to individuals who are not litigants before the court.

7

8
B. Prohibition Against Advisory Opinions  Prohibition Against Advisory Opinions  The core of Article III‟s limitation on federal judicial power is that federal courts cannot issue advisory opinions, despite the obvious benefits that would ensue if allowed.  Separation of powers is maintained by keeping the courts out of the legislative process.  Judicial resources are conserved because advisory opinions might be requested in many instances in which the law ultimately would not pass the legislature.  Helps to ensure that cases will be presented to the Court in terms of specific disputes, not as hypothetical legal questions.  Something to be said about having a law implemented before rendering judgment on it; allows the Court to be an “organ of sober second thought.”  First, there must be an actual dispute between adverse litigants.  In a response Thomas Jefferson, the Supreme Court justices replied that, “the three departments of the government…being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the [questions Jefferson had asked].”  Second, in order for a case to be justiciable and not an advisory opinion, there must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect.  Are Declaratory Judgments Impermissible Advisory Opinions?  The Supreme Court has said that suits for declaratory judgment are justiciable so long as they meet the requirements for judicial review.  Justice Stone explained, “the Constitution does not require that the case or controversy should be presented by traditional forms of procedure, invoking only traditional remedies. Article III did not crystallize into changeless form the procedure of 1789 as the only possible means of presenting a case or controversy.”  The Court emphasized that the focus was on “substance” and not the form and that the case was justiciable so long as the case retained the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy. C. The “Standing” Doctrine  The “Standing” Doctrine  The determination of whether a specific person is the proper party to bring a matter to the court for adjudication (i.e., “the essence of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues”).  Standing doctrine promote separation of powers by restricting the availability of judicial review. The notion is that by restricting who may sue in federal court, standing limits what matters the judiciary will address and minimizes judicial review of the actions of the other branches of government.  Standing is said to serve judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome.  Standing is said to improve judicial decision making by ensuring that there is a specific controversy before the court and that there is an advocate with sufficient personal concern to effectively litigate the matter.  Standing also said to serve the value of fairness by ensuring that people will raise only their own rights and concerns and that people cannot be intermeddlers trying to protect others who do not want the protection offered.  Three constitutional standing requirements include that the plaintiff must allege: (i) that he or she has suffered or imminently will suffer an injury; (ii) that the injury is fairly traceable to the defendant‟s conduct; and (iii) that a favorable court decision is likely to redress the injury.  Three prudential standing requirements include that: (i) a party generally may assert only his or her own rights and cannot raise the claims of third parties not before the court; (ii) a plaintiff may not sue as a taxpayer who shares a grievance in common with all other

8

9
taxpayers; and (iii) a party must raise a claim within the zone of interests protected by the statute in question.  Requirement for a Personally Suffered Injury  Requiring an injury is a key to ensuring that there is an actual dispute between adverse litigants and that the court is not being asked for an advisory opinion.  The Supreme Court has declared that the “irreducible minimum” of Article III‟s limit on judicial power is a requirement that a party “shows he personally has suffered some actual or threatened injury.” Sierra Club v. Morton Facts: The Sierra Club sought to prevent the construction of a ski resort in Mineral King Valley in California. The issue was whether the plaintiff was “adversely affected or aggrieved” so as to be entitled to seek judicial review under the Administrative Procedures Act. The Sierra Club asserted a “special interest in the conservation and the sound maintenance of the national parks, game refuges and forests of the country.” Holding: The Supreme Court found this insufficient for standing purposes because there was no allegation that any of the Sierra Club‟s members had ever used Mineral King Valley. The Court stated, “the Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the…development.” Reasoning: The Court reasoned that “a mere interest in a problem, no matter how long standing the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient.”  Justice White is quoted saying, “Why didn‟t the Sierra Club have one [expletive] member walk through the park and then there would have been standing to sue?” United States v. Students Challenging Regulatory Agency Procedures (SCRAP) Facts: A group of students at G.W. Law School contended that a hike in railroad freight rates would discourage the use of recycled goods because of the extra cost of shipping them. The lawsuit claimed that a decrease in recycling would lead to more use of natural resources and thus more mining and pollution. The students maintained that their enjoyment of the forests, streams, and mountains in the Washington, D.C., area would be lessened as a result. Holding: The Supreme Court upheld the group‟s standing, concluding that aesthetic and environmental injuries are sufficient for standing so long as the plaintiff claims to suffer harm personally.  Application of Requirement for Personally Suffered Injury  Perhaps the most important application of the requirement for a personally suffered injury is the requirement that a plaintiff seeking injunctive or declaratory relief must show a likelihood of future harm. City of Los Angeles v. Lyons Facts: City of L.A. appealed an order of the Ninth Circuit, which affirmed the issuance of a preliminary injunction requested by Lyons and enjoined the city from using specified choke holds when apprehending suspects who did not threaten death or bodily injury. Lyons, a black man, injured by the city police when subjected to a chokehold after being stopped for a traffic violation, argued that an injunction directed at the city was warranted to prevent respondent and others similarly situated from being threatened with injury in the future. Holding: The Supreme Court, in a 5-4 decision, held that Lyons did not have standing to seek injunctive relief. Although Lyons could bring suit seeking damages for his injuries, he did not have standing to enjoin the police because he could not demonstrate a substantial likelihood that he, personally, would be choked again in the future! Reasoning: The Court reasoned that absent “a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional.”  The Court held that to invoke jurisdiction, respondent was required to show that he was in immediate danger of irreparable injury; neither the existence of past injury nor conjecture

9

10
over the prospect of some future injury created the case or controversy required for jurisdiction.  Lyons has been strongly criticized and critics have argued that under the Lyons holding, plaintiffs would have standing to seek injunctions only for ongoing practices that were likely to directly harm them in the future. Lujan v. National Wildlife Federation Facts: The Secretary of the Interior promulgated a new interpretation §7 of the Endangered Species Act of 1973 (Act), which required consultation only for actions taken in the United States or on the high seas (previously, it would have applied to all US activities home or abroad). Respondents, wildlife conservation organizations, filed suit seeking a declaratory judgment and injunctive relief to restore Secretary of the Interior‟s initial interpretation. The district court granted petitioner's motion to dismiss for lack of standing, but the circuit court reversed. Holding: The Supreme Court reversed the circuit court's decision and remanded because the Court reasoned that respondents lacked standing under Article III of the Constitution to bring an action, as respondents failed to establish all three prongs required for standing. The burden of proof was not met regarding causation and redressability of respondents' injury because they could not show a sufficient likelihood that they would be injured in the future by the destruction of an endangered species abroad. Reasoning: First, the plaintiff must have suffered an "injury in fact, an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not "conjectural" or "hypothetical." Second, there must be a causal connection between the injury and the conduct complained of, the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."  Court held that the organizations could not validly assert standing based on:  (i) The organization members' affidavits, which did not support a finding of actual or imminent injury;  (ii) An "ecosystem nexus" theory, under which any person who uses any part of a contiguous ecosystem adversely affected by a funded activity would have standing to challenge that activity even if the activity was located a great distance away;  (iii) An "animal nexus" approach, whereby anyone who has an interest in studying or seeing endangered animals anywhere on the globe would have standing to challenge a federal decision that threatens such animals;  (iv) A "vocational nexus" approach, under which anyone with a professional interest in such animals would have standing to sue; or  (v) On the theory that the citizen-suit provision of the Endangered Species Act. Concurrence: Stevens, J., concurred in the outcome but argued that the organizations had standing, because (a) the threatened injury to their interest in protecting the environment and studying endangered species was imminent, and (b) the injury was redressable in the litigation at hand.  Requiring a plane ticket was an artificial basis for denying standing.  What Injuries Are Sufficient?  Justice Frankfurter wrote, “a litigant ordinarily has standing to challenge governmental action of a sort that, if taken by a private person, would create a right of action cognizable by the courts. Or standing may be based on an interest created by the Constitution or by statute.”  The Supreme Court has held that suits to halt the violation of certain constitutional provisions are nonjusticiable for lack of standing because they present “generalized grievances.”  The Supreme Court has also held that “Congress may create a statutory right or entitlement, the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute.”  Causation and Redressability  The Court has indicated that causation and redressability are separate and distinct requirements for standing, each of which must be met for a federal court to hear the case.

10

11
 Criticized as undesirable because it is an improper determination to make on the basis of the pleadings.  Criticized as inherently unprincipled because it depends entirely on how a court chooses to characterize the plaintiff‟s injury and in terms of what constitutes a sufficient likelihood of a solution to justify standing (i.e., they are assessments of probability). Simon v. Eastern Kentucky Welfare Rights Organization (EKWRO) Facts: The plaintiffs challenged an IRS revision of a ruling limiting the amount of free medical care that hospitals receiving tax-exempt status were required to provide. Whereas previously tax-exempt charitable hospitals had to provide free care for indigents, under the new provisions only emergency medical treatment of indigents was required. The plaintiffs were individuals who claimed that they were denied needed medical care, and hence injured, by hospitals receiving tax-exempt status. Holding: The Supreme Court denied standing to the plaintiffs, stating that they failed to carry the burden of establishing that, in fact, the asserted injury to indigents was the consequence of the defendants' actions or that prospective relief would remove the harm. The Court stated that it was “purely speculative” whether the new provisions were responsible for the denial of medical services to the plaintiffs and that “the complaint suggests no substantial likelihood that victory in this suit would result in the plaintiffs receiving the hospital treatment they desire.” Dissent: Brennan, J., in his dissent, argued that the harm was an “opportunity” harm; the opportunity to receive medical care. Allen v. Wright Facts: Parents of black public school children brought a class action suit challenging the failure of the IRS to carry out its statutory obligation to deny tax-exempt status to racially discriminatory private schools. The plaintiffs claimed two injuries: (i) that they and their children were stigmatized by government financial aid schools that discriminate and (ii) that their children‟s chances to receive an integrated education were diminished by the continued tax breaks to discriminatory schools. Holding; The Supreme Court acknowledged that the claim stated an injury, but denied standing based on an absence of “causation.” The Court stated that the plaintiff‟s first claim was too abstract to confer standing and that their second claim could not support standing because the injury alleged was not fairly traceable to the government conduct that they challenged as unlawful.  In an important footnote, the Court stated that even though a change in IRS policy might redress the injury, it is insufficient for standing because the IRS did not cause the segregation. Regents of the University of California v. Bakke Facts: A state university medical school's special admissions program under which only disadvantaged members of certain minority races were considered for 16 of the 100 places in each year's class, whereas members of any race could qualify under the school's general admissions program for the other eighty four places in the class, will be held to be unlawful by the Supreme Court.  Didn‟t have to show that he would be accepted but only that he was denied the opportunity to compete for all 100 admission spots, not just 84 spots.  The Limitation on Third-Party Standing  The Court has held that a plaintiff generally must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties.  The Court has emphasized that people actually affected may be satisfied and thus the band on third-party standing avoids the adjudication of rights, which those before the Court may not wish to assert.  The Court has also suggested “third-parties themselves usually will be the best proponents of their own rights.”  Exceptions:  A person may assert the rights of a third party not before the court if there are substantial obstacles to the third party asserting his or her own rights and if there is a reason to believe that the advocate will effectively represent the interests of the party.  In Eisenstadt v. Baird, a Mass. law made it a felony to distribute contraceptives except by physicians or pharmacists and then only to married individuals. Baird was prosecuted under this statute but the Supreme Court granted him standing to

11

12
present his argument, concluding, “unmarried persons denied access to contraceptives in Massachusetts…are not themselves subject to prosecution, and to that extent, are denied a forum in which to assert their own rights.”  An individual is permitted to assert the rights of third parties where there is a close relationship between the advocate and the third party. Usually, the third-party standing is permitted in such circumstances where the individual seeking standing is part of the third-party‟s constitutionally protected activity.  The Court has also allowed vendors to assert the rights of their customers. Elk Grove Unified School District v. Newdow Facts: A father brought suit on behalf of his daughter to challenge the use of the words “under God” in the pledge of allegiance in public schools. Holding: The Supreme Court, with Justice Scalia recusing himself, dismissed the case holding that the father lacked standing. The Court ruled that the father lacked third-party standing to sue on behalf of his daughter because it was the girl‟s mother who had legal custody. The Court emphasized a traditional unwillingness of federal courts to get involved in domestic relations matters.  Commentators suggest that the Court dismissed on standing grounds to avoid ruling on a highly controversial political issue.  Exception: The “Overbreadth” Doctrine  A person generally can only argue that a statute is unconstitutional as it is applied to him or her; but the overbreadth doctrine provides that “given a case or controversy, a litigant whose own activities are unprotected may nonetheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court.”  N.B. The doctrine seems limited to First Amendment Cases. Laird v. Tatum Facts: Civilians claimed that their First Amendment rights were being invaded by the Army's alleged surveillance of lawful and peaceful civilian political activity. The Army in response described the surveillance as gathering by lawful means and maintaining and using in their intelligence activities, information relating to potential or actual civil disturbances or street demonstrations. Holding: The Supreme Court held that “negations of a subjective „chill‟ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.”  But in other instances the Court has found a chilling effect on speech to be a sufficient basis for granting standing.  Exception: Standing for Associations  The Supreme Court has stated that an association has standing to bring suit on behalf of its members when:  Its members would otherwise have standing to sue in their own right;  The interests it seeks to protect are germane to the organizations purpose; and  Neither the claim asserted nor the relief requested requires the participation in the lawsuit of the individual members [Court has held this part a prudential requirement].  Prohibition Against Generalized Grievances  The Court has held that there is a prudential principle preventing standing when the asserted harm is a generalized grievance shared in a substantially equal measure by all or a large class of citizens – effectively prevents individuals from suing if their only injury is as a citizen or a taxpayer concerned with having the government follow the law. Schlesinger v. Reservists Committee to Stop the War Facts: An association of present and former members of the Armed Forces Reserves organized to oppose the military involvement of the United States in Vietnam. Individual members of the association alleged injury because members of Congress holding positions in the Reserves were subject to possible undue influence by the executive branch of the government and might not faithfully discharge their duty as members of Congress to which all citizens/taxpayers were entitled.

12

13
Holding: The Supreme Court held that the individual members did not have standing as citizens or taxpayers to bring a federal court class action against the Secretary of Defense and the three Service Secretaries of the armed forces. United States v. Richardson Facts: A private citizen sought to obtain government information concerning detailed expenditures of the CIA, claimed that the existing statutory provisions allowing the CIA to account for expenditures solely on a certificate of the Director, violated Article I, § 9, cl. 7 of the Constitution, which provides that a regular statement of the receipts and expenditures of all public money shall be published from time to time. Holding: The Supreme Court held that the citizen lacked standing as a federal taxpayer because: (i) the plaintiff's challenge was not addressed to the taxing or spending power of Congress under Article I, § 8 of the Constitution, but to the statutes regulating the Central Intelligence Agency; (ii) the plaintiff did not claim that appropriated funds were being spent in violation of a specific constitutional limitation upon Congress' taxing and spending power, but instead sought to compel the government to furnish information on how the Central Intelligence Agency spent its funds; and (iii) thus there was no logical nexus between the asserted status of taxpayer and the claimed failure of Congress to require the Executive to supply a detailed report of the Agency's expenditures.  Since such claim is a generalized grievance, the impact on the plaintiff being common to all members of the public, and since the plaintiff did not allege that, as a taxpayer, he had sustained a direct injury or was in danger of suffering any particular concrete injury as a result of the operation of the challenged statute, it is immaterial that if the plaintiff was not permitted to litigate the issue, no one could do so.  Commentators argued that the Court do not want to be intimately involved in running the government; it did not want to second guess legislative or executive decisions. D. The “Ripeness” Doctrine  The “Ripeness” Doctrine  Ripeness properly should be understood as involving the question of “when may a party seek pre-enforcement review of a statute or regulation.”  In relation to the Declaratory Judgment Act, when may a court hear a request for a declaratory judgment or when must it decline review?  The Supreme Court has stated that it looks to two considerations: (i) “the hardship to the parties of withholding court consideration” and (ii) “the fitness of the issues for judicial decision.”  An examination of the relevant caselaw reveals three situations demonstrating a sufficient hardship to justify pre-enforcement review:  When an individual is faced with a choice between forgoing allegedly lawful behavior and risking likely prosecution with substantial consequences, the federal courts will deem the case ripe rather than insist that an individual violate the law and risk the consequences;  Where the enforcement of a statute or regulation is certain and the only impediment to ripeness is simply a delay before the proceedings commence; and  Where substantial hardship is based on collateral injuries that are not the primary focus of the lawsuit.  With regard to fitness of the issues, the more a question is purely a legal issue the analysis of which does not depend on a particular factual context, the more likely it is that the Court will find ripeness. But, the more judicial consideration of an issue would be enhanced by a specific set of facts, the greater the probability that a case seeking pre-enforcement review will be dismissed on ripeness grounds.  N.B. It remains unclear whether a greater hardship might compensate for less in the way of a factual record or vice versa. Abbott Laboratories v. Gardner Facts: The FDA promulgated a regulation requiring the inclusion of generic names for prescription drugs on all labels and other printed materials. Thirty-seven drug companies, accounting for 90% of the supply of prescription drugs in the country, challenged the regulations as exceeding the scope of

13

14
the FDA‟s authority under the pertinent statutes. The government argued that the case was not ripe until a drug company was prosecuted for violating the regulation. Holding: The Supreme Court disagreed and permitted pre-enforcement review. Reasoning: The Court emphasized the substantial hardship to denying pre-enforcement review. The Court stated, “if [the drug companies] wish to comply they must change all their labels, advertisements and promotional materials; they must destroy stocks of printed matter; and they must invest heavily in new printing type and new supplies. The alternative to compliance…would risk serious criminal and civil penalties for the unlawful distribution of „misbranded‟ drugs.” Buckley v. Valeo Facts: The plaintiffs were allowed to challenge the method of appointing members to the Federal Election Committee in anticipation of “impending future rulings and determinations by the Commission.” There was no doubt that the rulings would be forthcoming; thus, the Court concluded that the plaintiffs‟ claims “as they bear upon the method of appointment of the Commission‟s members may be presently adjudicated.” Duke Power Co. v. Carolina Environmental Study Group, Inc. Facts: Plaintiffs challenged the constitutionality of the Price-Anderson Act, which limited the liability of private nuclear plants to $560 million in the event of a nuclear accident. The plaintiffs contended that the statute violated the due process clause because it allowed injuries to occur without ensuring adequate compensation to the victims [there were serious ripeness issues with this claim because it was uncertain whether an accident would ever occur, if it occurred whether the losses would exceed the limit on liability]. Holding: The Supreme Court held that the matter was ripe on the basis of other injuries imposed by the Price-Anderson Act. Reasoning: The Court reasoned that but for the Price-Anderson Act, nuclear power plants for electricity generation would not be constructed. Thus, because of the Price-Anderson Act, a reactor was about to be constructed in the plaintiffs‟ area and would subject them to harms such as the exposure to radiation, thermal pollution, and fear of a nuclear accident.  In other words, while the primary injury that was the focus of the lawsuit was not ripe – uncompensated losses from a nuclear accident – other injuries existed to make the case justiciable. E. The “Mootness” Doctrine  The “Mootness” Doctrine  The Supreme Court, quoting Professor Henry Monaghan, explained, “mootness is the doctrine of standing in a time frame. The requisite personal interest that must exist at the commencement of the litigation [standing] must continue through its existence [mootness].” F. The “Political Question” Doctrine  The “Political Question” Doctrine  The Court has held that certain allegations of unconstitutional conduct should not be ruled on by the federal courts even though all of the jurisdiction and other justiciability requirements are met.  Although there is an allegation that the Constitution has been violated, the Court has said that constitutional interpretation in these areas should be left to the politically accountable branches of government, the President and Congress, leaving the constitutional question to be decided by the political process rather than by judicial review.  The Court has considered the political question doctrine in the following areas: (i) the republican form of government clause and the electoral process; (ii) foreign affairs; (iii) Congress‟ ability to regulate its internal processes; (iv) the process for ratifying constitutional amendments; (v) instances where the federal court cannot shape effective equitable relief; and (vi) the impeachment process.  Why Is the “Political Question” Doctrine Confusing?  Confusion stems from the fact that the political question doctrine is a misnomer; the federal courts deal with political issues all the time.

14

15
 Confusion stems from the fact that the Court has denned it very differently over the course of American history.  In Marbury v. Madison the Court spoke of the political question narrowly; included only were matters where the president had unlimited discretion and there was thus no allegation of a constitutional violation.  Today, the political question doctrine now includes instances where individuals allege that specific constitutional provisions have been violated and that they have suffered a concrete injury.  Most importantly, confusion stems from the Court‟s failure to articulate useful criteria for deciding what subject matter presents a nonjusticiable question. Baker v. Carr Facts: Residents of several counties filed a complaint against state officers and election officials alleging that a state statute arbitrarily and capriciously appointed representatives without reference to any logical or rational formula and that it deprived them of the equal protection of the laws in violation of the Fourteenth Amendment. The trial court granted defendants' motion to dismiss, finding that it lacked subject matter jurisdiction and that the complaint failed to state a claim upon which relief could be granted. Holding: The Supreme Court reversed and remanded, holding that the complaint's allegations of a denial of equal protection presented a justiciable constitutional cause of action upon which plaintiffs were entitled to a trial and a decision. The right that plaintiffs asserted was within the reach of judicial protection under the Fourteenth Amendment. The Court further found that if discrimination were sufficiently shown, the right to relief under the Equal Protection Clause would not be diminished by the fact that the discrimination related to political rights. Reasoning: Brennan, J., stated that unless one of the [factors] is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question's presence. The doctrine of which we treat is one of "political questions," not one of "political cases." Dissent: Frankfurter, J., argued in his dissent that the disregard of inherent limits in the effective exercise of the Court's "judicial Power" not only presages the futility of judicial intervention in the essentially political conflict of forces by which the relation between population and representation has time out of mind been and now is determined. It may well impair the Court's position as the ultimate organ of "the supreme Law of the Land" in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court's authority – possessed of neither the purse nor the sword – ultimately rests on sustained public confidence in its moral sanction.  The Six “Baker” Factors & Their Limited Usefulness  In Baker, Justice Brennan stated prominent on the surface of any case held to involve a political question is found:  (1) A textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) A lack of judicially discoverable and manageable standards for resolving it; or (3) The impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or (4) The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or (5) An unusual need for unquestioning adherence to a political decision already made; or (6) The potentiality of embarrassment from multifarious pronouncements by various departments on one question.  Justifications & Criticisms of the “Political Question” Doctrine  Defenders of the doctrine make several arguments.  The PQ doctrine accords the federal judiciary the ability to avoid controversial constitutional questions and limits the courts‟ role in a democratic society.  Prof. Bickel contended that it was simply better for the federal courts to avoid deciding certain cases, especially so as to preserve what he perceived as the judiciary‟s fragile political legitimacy.  It allocates decisions to the branches of the government that have superior expertise in particular areas.

15

16
 The federal courts‟ self-interest disqualifies them from ruling on certain matters – specifically judicial review of the process for ratifying amendment since an amendment is the only way to overturn the Supreme Court‟s constitutional interpretations.  Justified on separation of powers grounds as minimizing judicial intrusion into the operations of the other branches of government.  Prof. Brown suggests that the further you go into the six factors, they seem to be more prudential and less constitutional; moreover, they are more involved with foreign affairs.  Critics of the doctrine also make several arguments.  The judicial role is to enforce the Constitution – that it is inappropriate to leave constitutional questions to the political branches of government.  Politically accountable bodies should not be entrusted to enforce any part of a document that is meant to restrain them.  The federal court‟s credibility is quite robust, there is no evidence that particular rulings have any effect on its credibility, and that in any event, the courts‟ mission should be to uphold the Constitution and not worry about political capital.  The doctrine confuses deference with abdication. Luther v. Borden Facts: In the 1840s Rhode Island was the only state without a state constitution. The state governed pursuant to a state charter that had been granted to it by King Charles II in 1663. But, by the 1840s the state legislature was badly malapportioned. In 1841, a convention met to draft a state constitution. The existing government, sure to lose power under the new document, enacted a law prohibiting the constitution from going into effect. Elections were held, despite threatened sanctions and a new government was elected, but shortly disbanded after two days. In 1842, a sheriff broke into the house of one of the election commissioners, Martin, looking for evidence of participation in the illegal election. The sheriff contended that the search was a lawful exercise of government power. Martin argued that the sheriff acted pursuant to an unconstitutional government‟s orders – the Rhode Island government violated the republican form of government clause. Holding: The Supreme Court held that the case posed a political question that could not be decided by a federal court. The court stated, “Under this article of the constitution it rests with Congress to decide what government is the established one in a state. For as the United States guarantee to each state a republican form of government, Congress must necessarily first decide what government is established in the state before it can determine whether it is republican or not.” Vieth v. Jubelirer Facts: Residents filed suit against state officials claiming that partisan gerrymandering violated their equal protection rights under the Fourteenth Amendment. Republicans controlled the Pennsylvania legislature and so they drew election district to maximize Republican seats. Holding: The Supreme Court, in a plurality opinion, held that challenges to partisan gerrymandering are nonjusticiable political questions. The Court held that its previous ruling in Davis v. Bandemer that such issues are justiciable had proven impossible to implement. Reasoning: The Court stated that there are no judicially discoverable or manageable standards and no basis for courts to decide when partisan gerrymandering offends the Constitution. Concurrence: Kennedy, J., concurred in judgment and provided the fifth vote, but said that he did not believe that such standards could not be developed in the future. Nixon v. United States Facts: A former federal judge challenged his impeachment conviction, and argued the impeachment proceedings violated the authority of the Senate under the Impeachment Clause to "try" all impeachments because the whole Senate did not take part in evidentiary hearings. Holding: The Supreme Court held the controversy was a nonjusticiable political question as there was a textually demonstrable constitutional commitment of the issue to the legislature and a lack of judicially discoverable and manageable standards for resolving it. Reasoning: The Impeachment Clause granted sole authority over impeachments to the Senate, and did not require or provide a means of judicial review. As impeachment was designed to be the only check on the judiciary by the legislature, it was counterintuitive to have judicial review of

16

17
impeachment proceedings. There were no discoverable standards for judicial review of impeachment proceedings, and fashioning relief was difficult.  The word "try" in the first sentence of the Impeachment Trial Clause lacks sufficient precision to afford any judicially manageable standard of review of the Senate's actions. Powell v. McCormack Facts: The House of Representatives refused to seat representative Adam Clayton Powell even though he had been elected by his constituents. A House subcommittee found that Powell had deceived Congress by presenting false travel vouchers for reimbursements and had made illegal payments to his wife with government funds. Powell and several of his constituents brought suit arguing that the refusal to seat him was unconstitutional because he was properly elected and met all the requirements set forth in the Constitution for service as a representative. The defendants argued that Article I, § 5, of the Constitution provides that each house of Congress “shall be the judge of the qualifications of its members.” Holding: The Supreme Court held that the case was justiciable and did not pose a political question. Reasoning: The Court stressed the importance of allowing people to select their legislators and concluded that Article I, § 5, is at most a “textually demonstrable commitment” to Congress to judge only the qualifications expressly set forth in the Constitution.  The Court further noted that although Article I, § 5, provides that each house of Congress may, by a vote of two-thirds of its members, expel a member, the issue in the case was not expulsion – he was excluded, not expelled.  The “Political Question” Doctrine & Foreign Policy  The Court has held that the determination of when war begins or when war ends is left to the political branches of government.  The Court has also held that the recognition of foreign governments is a political question, as are related questions concerning disputes about the diplomatic status of individuals claiming immunity.  The Court has held that many issues concerning the ratification and interpretation of treaties also pose political questions.  Federal courts have also frequently declared challenges to the president‟s use of the war powers to constitute a political question. Goldwater v. Carter Facts: President Carter decided to rescind a treaty that recognized the government of Taiwan. Senator Goldwater argued that rescission of a treaty required approval of two-thirds of the Senate and contended that just as the president cannot unilaterally repeal a law, neither is it constitutional for the president to rescind a treaty without the Senate‟s consent. Holding: The Supreme Court, with Justice Rehnquist writing for a plurality, stated that there were no standards in the Constitution governing rescission of treaties and that the matter was a dispute “between coequal branches of our Government, each of which has resources available to protect and assert its interests.”  Prof. Brown wonders if the plurality suggests that if there is no law, then there is no way to say that he/she cannot do it, and if there is no way to say that he/she cannot do it, then he/she can do it. Concurrence: Powell, J., concurred in the outcome, but argued that the issue should not be decided if it is not ripe for judicial review. Prudential considerations persuade me that a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority. The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Dissent: Brennan, J., argued in his dissent that the plurality profoundly misapprehended the politicalquestion principle as it applied to matters of foreign relations. Properly understood, the politicalquestion doctrine restrains courts from reviewing an exercise of foreign policy judgment by the coordinate political branch to which authority to make that judgment has been "constitutional[ly] commit[ted]." But the doctrine does not pertain when a court is faced with the antecedent question whether a particular branch has been constitutionally designated as the repository of political decision

17

18
making power. The issue of decision making authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts. Schneider v. Kissinger Facts: Sons of a deceased Chilean general appealed a judgment of the District Court for the District of Columbia, which dismissed the sons' action against the federal government and the former National Security Advisor on the basis that their acts in the establishment of a military coup to oppose an elected Chilean President led to the kidnapping, torture, and death of the general. Holding: The Court of Appeals for the District of Columbia held that the trial court properly determined that the sons' action involved a political question because it raised policy questions that were textually committed to a coordinate branch of government, there were no judicially discoverable and manageable standards for resolving the action, judicial resolution would require an initial policy determination of a kind clearly for nonjudicial discretion, and the trial court could not proceed without expressing a lack of respect to coordinate branches of government. Reasoning: The conduct of the foreign relations of the federal government is committed by the Constitution to the Executive and Legislative, the political, Departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision. Otherwise put, foreign policy decisions are the subject of just such a textual commitment.  Prof. Brown wonders if it strengthens the court‟s argument that a case is not reviewable if it is supported by several factors rather than one.  Following Justice Marshall‟s opinion in Marbury v. Madison, he noted that on one end of the spectrum there are cases that are clearly political and on the other end there are cases that are clearly within the realm of the judiciary‟s responsibility – the question is what happens when a cases presents elements of both.  Could the Appellate judge have found support for concluding the opposite holding – that the court is concerned with individual rights and the fact that it occurred in an instance involving a foreign affair does not bar the case from being heard?  Prof. Brown asks, can you separate the means from the policy? Not really; therefore the judge was correct. G. Congressional Control of Federal Court Jurisdiction  Jurisdiction Stripping  The purpose of most jurisdiction stripping bills is to achieve a change in the substantive law by means of a procedural device.  Thus, the goal of jurisdictional restrictions is the “de factor reversal, by means far less burdensome than those required of a constitutional amendment, of several highly controversial Supreme Court decisions dealing with matters such as abortion, school prayer, and busing.” Ex Parte McCardle Facts: Defendant challenged a judgment from the Circuit Court in Mississippi, which denied his application for habeas corpus relief from his custody by military authorities while his trial was pending before a military commission. A statute was in force that provided that judicial courts of the United States had the power to grant a writ of habeas corpus. The statute further stated that an appeal could be taken to the circuit court of the United States for the district, and from the judgment of the said circuit court to the U.S. Supreme Court. A later statute repealed the earlier statute to disallow an appeal from the judgment of the circuit court to the Supreme Court or the exercise of any such jurisdiction by the Supreme Court on appeals. Holding: The Supreme Court dismissed the case for want of jurisdiction, but stated that the whole appellate power of the court, in cases of habeas corpus, was not denied. The later act did not except from that jurisdiction any cases but appeals from circuit courts under the earlier act. Reasoning: While the appellate powers of the United States Supreme Court are not given by the judicial act, but are given by the Constitution, they are, nevertheless, limited and regulated by that act, and by such other acts as have been passed on the subject. The judicial act was an exercise of the power given by the Constitution to Congress "of making exceptions to the appellate jurisdiction of the Supreme Court."

18

19
 Proponents of jurisdictional stripping contend that McCardle establishes that Congress may prevent Supreme Court review of constitutional issues. Ex Parte Yerger Facts: Yerger involved a newspaper editor‟s challenge to the constitutionality of the Military Reconstruction Act. After the Supreme Court upheld its jurisdiction to decide Yerger‟s constitutional claims, the federal military authorities dismissed all charges against him, thereby again preventing the Supreme Court review of the constitutionality of Reconstruction.  In light of Yerger, opponents of jurisdiction restrictions claim that McCardle only establishes the limited proposition that if there are two statutory grounds for Supreme Court jurisdiction, Congress may repeal one of them. United States v. Klein Facts: During Reconstruction, Congress adopted a statute providing that individuals whose property was seized during the Civil War could recover the property, or compensation for it, upon proof that they had not offered aid or comfort to the enemy during the war. Subsequently, the Supreme Court held that a presidential pardon fulfilled the statutory requirement of demonstrating that an individual was not a supporter of the rebellion. While Klein‟s case was under review, Congress quickly adopted a statute providing that a pardon was inadmissible as evidence in a claim for return of seized property and that proof of a pardon would deny the federal courts‟ jurisdiction over the claims. Holding: The Supreme Court held that the newly adopted statute was unconstitutional. While acknowledging Congress‟ power to create exceptions and regulations to the Court‟s appellate jurisdiction, the Supreme Court said that Congress cannot direct the results in particular cases.  Opponents of jurisdiction stripping argued that Klein establishes that Congress may not restrict Supreme Court jurisdiction in an attempt to dictate substantive outcomes.  Supporters, in contrast, argued that Klein only establishes that Congress may not restrict Supreme Court jurisdiction in a manner that violates other constitutional provisions.  Policy Arguments For/Against Jurisdiction Stripping  Supporters of proposals to limit the Supreme Court‟s jurisdiction under the “exceptions and regulations” clause argue that such congressional power is an essential democratic check on the power of an un-elected judiciary.  Opponents contend that such an argument is based on a faulty definition of democracy and is inconsistent with the purposes of the Constitution.  They argued that the purpose of the Constitution is to protect crucial values from majority rule and that it is undesirable to accord Congress the power undermine Supreme Court decisions.  Other commentators have argued that there is a limit on Congress‟ power to create exceptions – Congress cannot use its power to interfere with the Court‟s essential functions under the Constitution.  Additionally, the Court‟s essential function in checking the legislature would be lost if Congress could enact an unconstitutional statute and immunize the law from judicial review.  Congressional Control of Lower Federal Court Jurisdiction  Approach One: Federal Courts Must Have the Full Article III Judicial Power  The text of Article III seems to support this view. Article III, § 2, states that the judicial power “shall extend to” the nine categories of cases and controversies.  The problem with this approach is that it has never been followed at any point in over 200 years of American history.  Approach Two: Congressional Discretion to Decide Jurisdiction  Since Article III, § 1, provides that the judicial power shall be vested in one supreme court and in such “inferior courts as Congress may from time to time ordain and establish,” since Congress need not even establish such courts, they have virtually plenary authority to define the lower courts‟ jurisdiction.  Approach Three: Constitutional Requirement for Some Federal Courts

19

20
 Justice Story in Martin v. Hunter’s Lessee argued “the language of the article throughout is manifestly designed to be mandatory upon the legislature. The judicial power of the United States shall be vested (not may be vested). If then, it is the duty of Congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power.  If Congress could refuse to create lower federal courts, there would be at least some categories of cases that never could be heard in federal court. FEDERALISM A. The Doctrine of Limited Federal Legislative Authority  Federalism, Huh, Yeah, What Is It Good For?  A basic principle of American government is that Congress may act only if there is express or implied authority to act in the Constitution; states, however, may act unless the Constitution prohibits the action.  The Tenth Amendment declares, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  A key difference between federal and state power is that only the latter possesses the police power – allowing the states to adopt any law that is not prohibited by the Constitution.  Federalism promoting individual freedom?  Presumes that individuals can move from state to state with great ease.  Federalism encouraging experimentation in government?  Possibly.  Federalism promoting democracy?  State and local governments increase public participation – availability to visit local politicians and voice concerns; presumably if enough people participate, those concerns would move up the ladder, eventually reaching the federal level. THE COMMERCE CLAUSE A. Defining the Congress‟ Commerce Power  Article I, § 8, of the Constitution  Of all the provisions bestowing power on Congress, none is more important that that in Article I, § 8, which states, “the Congress shall have the power…[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…” Gibbons v. Ogden Facts: The New York legislature granted a monopoly to Fulton and Livingston for operating steamboats in New York waters. Fulton and Livingston licensed Ogden to operate a ferryboat between NYC and Elizabethtown, N.J. Gibbons operated a competing ferry service and thus violated the exclusive rights given to Fulton and Livingston, and to Ogden as their licensee, under the monopoly. Gibbons argued that he had the right to operate his ferry because it was licensed under a federal law as “vessels in the coasting trade.” Ogden sued successfully through the New York court system [not surprising] until the case was appealed to the Supreme Court. Holding: The Supreme Court reversed, finding that the act of Congress gave full authority to defendants' vessels to navigate the waters of the United States. The law of the State of New York, prohibiting the vessels from navigating the waters of the state, was repugnant to the Constitution, and thus void, because it was an impermissible restriction of interstate commerce. Federal law preempted the New York law. Reasoning: In reversing the New York State law, Justice Marshall considered three critical issues:  What Is Commerce? Ogden‟s attorney argued that it should be limited “to traffic, to buying and selling or the interchange of commodities.”  The Court disagreed and stated, “commerce undoubtedly is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”

20

21
 In other words, according to Gibbons, commerce includes all phases of business, including navigation, which was the issue at hand. What Is “Among the States”?  The Court answered that the word “among” means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.  “In regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several states. It would be a very useless power, if it could not pass those lines. The commerce of the United States with foreign nations, is that of the whole United States. Every district has a right to participate in it. The deep streams which penetrate the country in every direction, pass through the interior of almost every state in the Union, and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the states, if a foreign voyage may commence or terminate at a port within a state, then the power of Congress may be exercised within a state.”  N.B. The Court did not choose the broadest possible definition of the word “among.” The Court noted that it may be properly restricted “to that commerce which concerns more States than one…The completely internal commerce of a State, then, may be considered as reserved for the State itself.” Does State Sovereignty Limit Congressional Power?  The Court emphatically rejected the notion that State sovereignty could limit Congress‟ power to regulate commerce, saying, “The power to regulate; that is, to prescribe the rule by which commerce is to be governed, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.” Prof. Brown points out that it was essential for Justice Marshall to lay the groundwork for our expanding national economy. All actions of our national government regulating the economy stem from Justice Marshall‟s wording of Congress‟ power under the clause. Prof. Brown also points out that the Court declined to adopt a rule of strict construction of the powers granted to the federal government in the Constitution because there was no provision in the Constitution that called for strict construction. Prof. Brown further points out that at the same time, Justice Marshall also tended to engage in formalism himself when describing that if the power is vested in Congress then the States inherently do not have the power. Or, maybe the states can regulate something, but they cannot regulate it in a way that contradicts what the federal government has done (vis-à-vis the Supremacy Clause).





  

 Cases Before 1887  After the Civil War, there were few cases concerning the scope of the commerce power.  Unfortunately, the cases were not consistent in their definition of the constitutional provision. The Daniel Ball Facts: The Supreme Court accorded Congress broad authority to license ships, even those operating entirely intrastate, so long as the boats were carrying goods that had come from another state or that ultimately would go to another state. The Court reasoned that unsafe ships in intrastate commerce could affect and harm ships in interstate commerce. United States v. Dewitt Facts: A federal law outlawed the sale of naphtha and other illuminating oils that could ignite at less than 100 degrees Fahrenheit. The Court held that the federal legislation exceeded the scope of the commerce clause and stated that the law was “a police regulation, relating exclusively to the internal trade of the States.” The Court‟s opinion seemed to limit the scope of the commerce clause dramatically by declaring that the provision was “a virtual denial of any power to interfere with the internal trade and business of the separate States.”

21

22
 Cases Between 1887 and 1937  Between the late nineteenth century and 1937, the Court was controlled by conservative Justices deeply committed to laissez-faire economics and strongly opposed to government economic regulations. Many federal laws were invalidated as exceeding the scope of Congress‟ commerce power or as violating the Tenth Amendment and the zone of activities reserved to the States.  It was the first time that the Court aggressively used its power of judicial review to invalidate federal and state laws.  It also explains the reactionary deference that the Court exhibited from 1937 to 1995.  The Court could be described as “economically conservative and thus aggressive in striking down economic regulations; morally conservative and thus deferential to laws directed at what was perceived as sin.”  “Dual Federalism” was the view that the federal and state governments were separate sovereigns, that each had separate zones of authority, and that it was the judicial role to protect the states by interpreting and enforcing the Constitution to protect the zone of activities reserved to the States. B. What Is Commerce?  Commerce As Narrowly Defined By the Court  The Court narrowly defined commerce so as to leave a zone of power to the States. The Court held that commerce was one stage of business, distinct from earlier stages such as mining, manufacturing, or production. Only commerce itself could be regulated by Congress; the others were left to the States. United States v. E.C. Knight Facts: The government attempted to use the Sherman Act to block the American Sugar Refining Company from acquiring four competing sugar refineries. The acquisition would have given the company control of over 98% of the domestic sugar refining industry. Holding: The Supreme Court held that the Sherman Act could not be used to stop a monopoly in the sugar refining industry because the Constitution did not allow Congress to regulate manufacturing. The monopoly was in the production of sugar, not in its commerce. The Court stated, “commerce succeeds to manufacture, and is not a part of it.” Reasoning: The Court reasoned that this rigid distinction was needed to preserve a zone of activities to the States. The Court explained that although the commerce power was one of the “strongest bonds of the union…the preservation of the autonomy of the States was required by our dual form of government.” The Court further explained that it would be “far-reaching” to allow Congress to act “whenever interstate or international commerce may ultimately affected” – the effect on commerce was only “indirect” and thus outside the scope of federal power. Carter v. Carter Coal Co. Facts: The Bituminous Coal Conservation Act of 1935 contained detailed findings as to the relationship between coal and the national economy and declared that the production of coal directly affected interstate commerce. The law provided for local coal boards to be established to determine prices for coal and to determine, after collective bargaining by unions and employers, wages and hours for employees. A shareholder in the Carter Coal Co. sued it to stop it from complying with the law. Holding: The Supreme Court declared the law unconstitutional. Reasoning: Focusing on the unconstitutional law‟s regulation of wages and hours, the Court stated, “Commerce is the equivalent of the phrase „intercourse for the purposes of trade.‟ Plainly, the incidents leading up to and culminating in the mining of coal do not constitute such intercourse. The employment of men, the fixing of their wages, hours of labor and working conditions, the bargaining in respect of these things…each and all constitute commerce for the purposes of production, not trade. Mining brings the subject matter of commerce into existence. Commerce disposes of it.”

22

23
C. What Does “Among the States” Mean?  The Requirement of A “Direct” Effect  The Court restrictively defined among the States as allowing Congress to regulate only when there was a substantial “direct” effect on interstate commerce. Shreveport Rate Cases Facts: The Interstate Commerce Commission ordered a railroad company to charge the same rates for shipments to Marshall, Texas, whether from Shreveport, Louisiana or from Dallas, Texas because of the rates direct impact on interstate commerce. Holding: The Supreme Court upheld the regulation and stated, “Congress in the exercise of its paramount power may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce.” Reasoning: The Court stated that Congress “does possess the power to foster and protect interstate commerce, and to take all measures necessary or appropriate to that end, although intrastate transactions of interstate carriers may thereby be controlled.” A.L.A Schecter Poultry Corp. v. United States [Sick Chickens Case] Facts: The National Industrial Recovery Act, a key piece of New Deal legislation, authorized the president to approve “codes of fair competition” developed by boards of various industries. Pursuant to this law, the president approved a Live Poultry Code for NYC. In part, the Code was designed to ensure quality poultry by preventing sellers from requiring buyers to purchase the entire coop of chickens, including sick ones. The Code also regulated employment by requiring collective bargaining, prohibiting child labor, and by establishing a 40-hour workweek and a minimum wage. Holding: The Supreme Court declared the Code unconstitutional because there was not a sufficiently “direct” relationship to interstate commerce. Although the Court acknowledged that virtually all of the poultry in New York was shipped from other states, the Court said that the code was not regulating the interstate transactions; rather, it was concerned with the operation of businesses in New York. The Court emphasized that Congress could only regulate when there was a direct effect. Reasoning: The Court explained that the federal government has the authority to regulate when there are direct effects on commerce, “but where the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power.” Swift & Co. v. United States Facts: The Supreme Court upheld the application of the Sherman Act to an agreement among meat dealers to fix the price at which they would purchase meat from stockyards. Although the stockyard was intrastate, the Court stressed how it was only a temporary stop for the cattle. Justice Holmes explained that the stockyards were in a “current of commerce among the States, and the purchase of cattle is a part and incident of such commerce.” D. Does State Sovereignty Limit Congressional Power?  Preserving Our Form of Government  The Court held that the Tenth Amendment reserved a zone of activities to the states and that even federal laws within the scope of the commerce clause were unconstitutional if they invaded that zone. Hammer v. Dagenhart [The Child Labor Case] Facts: A federal law prohibited the shipment in interstate commerce of goods produced in factories that employed children under age 14 or employed children between the ages of 14 and 16 for more than eight hours per days or six days a week. Holding: The Supreme Court declared that although the law only regulated goods in interstate commerce, it was unconstitutional because it controlled the means of production. The Court held, “the grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce, and not to give it authority to control the States in their exercise of the police power over local trade and manufacture.” The Court also rejected the argument that federal legislation was necessary to prevent unfair competition.

23

24
Reasoning: Commerce consists of intercourse and traffic and includes the transportation of persons and property, as well as the purchase, sale and exchange of commodities. The making of goods and the mining of coal are not commerce, nor does the fact that these things are to be afterwards shipped or used in interstate commerce, make their production a part thereof. Over interstate transportation, or its incidents, the regulatory power of Congress is ample, but the production of articles, intended for interstate commerce, is a matter of local regulation.  When the commerce begins is determined, not by the character of the commodity, nor by the intention of the owner to transfer it to another state for sale, nor by his preparation of it for transportation, but by its actual delivery to a common carrier for transportation, or the actual commencement of its transfer to another state.  If it were otherwise, all manufacture intended for interstate shipment would be brought under federal control to the practical exclusion of the authority of the States, a result certainly not contemplated by the framers of the Constitution when they vested in Congress the authority to regulate commerce among the States. Dissent: Holmes, J., stated that although he acknowledged that the federal government should not be allowed to intervene, in the sense of “direct intermeddling,” the with a State‟s control over methods of production, he argued that “if an act is within the powers specifically conferred upon Congress, it seems to me that it is not made any less constitutional because of the indirect effects that it may have, however obvious it may be that it will have those effects, and that we are not at liberty upon such grounds to hold it void.”  “The question then is narrowed to whether the exercise of its otherwise constitutional power by Congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the States in a matter upon which I admitted that they are free from direct control.  I should have thought that that matter had been disposed of so fully as to leave no room for doubt. I should have thought that most conspicuous decisions of this Court had made it clear that the power to regulate commerce and other constitutional powers could not be cut down or qualified by the fact that it might interfere with the carrying out of the domestic policy of any State.” Champion v. Ames [The Lottery Case] Facts: A federal law prohibited the interstate shipment of lottery tickets. Holding: The Supreme Court upheld the federal law and made it clear that the power to regulate interstate commerce includes the ability to prohibit items from being in interstate commerce. Reasoning: The Court reasoned, “if a State, when considering legislation for the suppression of lotteries within its own limits, may properly take into view the evils that inhere in the raising of money, in that mode, why may not Congress, invested with power to regulate commerce among the several States, provide that such commerce shall not be polluted by the carrying of lottery tickets from one State to another?”  The Court also rejected the argument that according such power to Congress would grant it limitless authority, and simply stated, “The possible abuse of a power is not an argument against its existence.”  Madison/ Wechsler’s Reasoning on the Internal Limits of the Commerce Power  Is it really the duty of the courts to keep Congress from exceeding the authority granted to it by the Constitution? To uphold the federalist structure?  There is a strong strain of constitutional theory that suggests the courts should not police the outer bounds of the commerce clause; Congress itself should do the policing.  Members of Congress are duly elected by the constituents of their home state. If the member‟s constituents, or the member, feel that an act of Congress has encroached on inherent state‟s rights, then the member is in the best position to rectify the violation.  Madison believed that we did not need to worry about the federal government overtaking the power of the states because the states would be adequately protected through their direct proximity and relatedness to their citizens.  Assumes that people would retain a strong allegiance to their state.  Wechsler followed on Madison‟s theory but updated it to include the modern political practices of fundraising, political action committees, etc., and held that the political process provides adequate protection.

24

25
Garcia v. San Antonio MTA (SAMTA) Facts: SAMTA filed suit in district court seeking a declaratory judgment that, contrary to the determination of the Wage and Hour Administration of the Department of Labor, its operations were constitutionally immune from the application of the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA) under National League of Cities v. Usery, in which in which it was held that the commerce clause does not empower Congress to enforce such requirements against the states in areas of traditional governmental functions. Holding: The Supreme Court held that there is nothing in the overtime and minimum wage requirements of the FLSA as applied to SAMTA, that was destructive of state sovereignty or violative of any constitutional provision. Reasoning: Blackmun, J., writing for the Court, reasoned, “within the sphere of constitutional action, the people, acting not through the courts but through their elected legislative representatives, have the power to determine as conditions demand, what services and functions the public welfare require” [essentially endorsing Wechsler‟s view]. He added that the Supreme Court has no license to employ freestanding conceptions of state sovereignty when measuring congressional authority under the commerce clause. Dissent: Powell, J., argued in his dissent, “One can hardly imagine this Court saying that because Congress is composed of individuals, individual rights guaranteed by the Bill of Rights are amply protected by the political process. Yet, the position adopted today is indistinguishable in principle. The Tenth Amendment also is an essential part of the Bill of Rights.” Dissent: O'Connor, J., joined by Powell and Rehnquist, JJ., expressed the view in their dissent that the true essence of federalism is that the states as states have legitimate interests which the national government is bound to respect even though its laws are supreme, and that if federalism so conceived and so carefully cultivated by the framers of the Constitution is to remain meaningful, the court cannot abdicate its constitutional responsibility to oversee the Federal Government's compliance with its duty to respect the legitimate interests of the states. E. The Commerce Clause from 1937 to 1995  Causes for the Change in Doctrine  Many different types of pressure mounted for a dramatic change in constitutional law.  The earlier decisions were intellectually vulnerable because they seemed based on arbitrary distinctions and were frequently inconsistent and impossible to reconcile.  The distinction between “direct” and “indirect” was inherently arbitrary.  The economic crisis of the depression made laissez-faire economics seem more untenable – the Court‟s opposition to national economic regulation seemed anachronistic and pernicious in the face of the depression.  With increasing political pressure, President Roosevelt won a landslide election in 1936 and many saw this as an endorsement of his New Deal programs. With political power in tow, Roosevelt proposed legislation to increase the size of the Supreme Court to 15, and could thus secure a majority on the Court to uphold his New Deal programs.  In 1937, Justice Owen Roberts changed his position and was the fifth to uphold two laws of the type that previously had been invalidated; a state minimum wage law for women and a federal law regulating labor relations.  Though there is debate over whether Justice Roberts was influenced by the political pressure of Roosevelt‟s court-packing plan, Justice Robert‟s change in sentiment will forever be known as “the switch in time that saved nine.”  Key Decisions Changing the Commerce Clause Doctrine  Three decisions overruled earlier decisions and expansively defined the scope of Congress‟ commerce power. Indeed, because of these three decisions, from 1937 to 1995 not one federal law was declared unconstitutional as exceeding the scope of Congress‟s power. NLRB v. Jones & Laughlin Steel Corp. Facts: The National Labor Relations Act created a right of employees to bargain collectively, prohibited unfair labor practices such as discrimination against union members, and established the National Labor Relations Board to enforce the law. The law contained detailed findings on the

25

26
relationship between labor activity and commerce. The Act applied when there was an effect on commerce and it expressly defined “affecting commerce” as meaning “in commerce, or burdening or obstructing commerce or the free flow of commerce, or had led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.” Holding: The Supreme Court upheld the Act as constitutional. Reasoning: The Court initially explained how Jones & Laughlin Steel Corp was clearly a part of interstate commerce [fourth largest steel producer with factories in several states]. The Court then explained how the steel industry was part of the stream of commerce and how labor relations within it had a direct effect on commerce. Most dramatically, the Court flatly declared, “The fact that the employees…were engaged in production is not determinative.”  The Court spoke broadly of Congress‟ commerce power, stating “the fundamental principle is that the power to regulate commerce is the power to enact „all appropriate legislation‟ for its „protection and advancement,‟ „to adopt all measures‟ to „promote its growth and insure its safety,‟ to „foster, protect, control and restrain.‟”  “That power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it.” United States v. Darby Facts: The Fair Labor Standards Act of 1938 prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage. Holding: The Supreme Court upheld the Act and departed from all aspects of the pre-1937 commerce clause doctrines. The Court rejected the view that production was last entirely to state regulation and explained that Congress may control production by regulating shipments in interstate commerce. The Court stated, “while manufacture is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of commerce.”  Perhaps most importantly, the Court expressly overruled Hamer v. Dagenhart and emphatically rejected the view that the Tenth Amendment limits Congress‟ powers. The Court stated, “the [tenth] amendment states but a truism that all is retained which has not been surrendered.”  Importantly, the Court held that a class of activities could be properly regular by Congress without proof that the particular intrastate activity against which a sanction was laid had an effect on commerce. Wickard v. Filburn Facts: Under the Agricultural Adjustment Act, the secretary of agriculture set a quota for wheat production and each farmer was given an allotment. Filburn owned a small farm in Ohio and grew wheat primarily for home consumption and to feed his livestock. His allotment for 1941 was 222 bushels of wheat but he grew 461 bushels and was fined $117. Filburn argued that the federal law could not constitutionally be applied to him because the wheat that he grew for home consumption was not a part of interstate commerce. Holding: The Supreme Court upheld the application of the federal law and ruled against Filburn. The Court stated, “questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as „production‟ and „indirect‟ and foreclose consideration of the actual effects of the activity in question upon interstate commerce.” The Court declared “once an economic measure of the reach of the power granted to Congress in the commerce clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be „production‟ nor can consideration of its economic effects be foreclosed by calling them „indirect‟. Reasoning: The Court reasoned, “Even if activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time be defined as "direct" or "indirect." The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply. That one person's contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, the contribution, taken together with that of many others similarly situated, is far from trivial.

26

27
 The Test for the Commerce Clause After 1937  The law of the Commerce Clause, simply stated, was that Congress could regulate any activity as long as there was a rational basis for the law and if there was a substantial effect on interstate commerce.  After Wickard v. Filburn, it was not necessary that the particular person or entity being regulated have a substantial effect on commerce; the requirement was only that the activity, looked at cumulatively across the country, has a substantial effect on commerce.  The Commerce Clause reaches, in the main, three categories of problems: (i) the use of channels of interstate or foreign commerce which Congress deems are being misused; (ii) protection of the instrumentalities of interstate commerce or persons or things in commerce; and (iii) those activities affecting commerce. Perez v. United States Facts: Title II of the Consumer Credit Protection Act prohibited loan sharking activities such as charges of excess interest, violence, and threats of violence, to collect debts. The defendant had been convicted of violating the law, but argued that the law could not be constitutionally applied to him because his business wholly operated in New York and there was no evidence that he had engaged in organized crime. Holding: The Supreme Court affirmed, ruling that Congress' regulation of such credit transactions was supported by its findings, that while extortionate credit transactions were purely intrastate, they directly affected interstate and foreign commerce, and that there existed a link between local "loan sharks" and interstate crime. Consequently, the Act was a valid exercise of Congress' powers under the Commerce Clause, as the regulation of the class designated as those who in engage in extortionate credit transactions in intrastate activities, which affected interstate commerce, was an appropriate means for Congress to use to attain its legitimate end of regulating interstate commerce. Dissent: Stewart, J., argued in his dissent, “Under the statute before us a man can be convicted without any proof of interstate movement, of the use of the facilities of interstate commerce, or of facts showing that his conduct affected interstate commerce…it is not enough to say that loan sharking is a national problem, for all crime is a national problem. It is not enough to say that some loan sharking has interstate characteristics, for any crime may have an interstate setting. And the circumstance that loan sharking has an adverse impact on interstate business is not a distinguishing attribute, for interstate business suffers from almost all criminal activity, be it shoplifting or violence in the streets.” Heart of Atlanta Motel, Inc. v. United States Facts: Title II of the Civil Rights Act prohibited discrimination by places of public accommodation. The Heart of Atlanta Motel was located in downtown Atlanta and had 216 rooms; of which about 75% of its registered guests were from out of state. The motel also had a policy of refusing to provide accommodations to black customers. Holding: The Supreme Court upheld the constitutionality and the application of the Act. The Court held that the power of Congress over interstate commerce extended to those intrastate activities that so affected interstate commerce or the exercise of Congressional power over it to make regulation of them an appropriate means to exercise its power over interstate commerce. Further, the power of Congress to promote interstate commerce also included the power to regulate the local incidents thereof, including local activities in both the state of origin and destination, which might have a substantial and harmful effect upon that commerce. Accordingly, Congress was within its power to prohibit racial discrimination by motels serving travelers, however local their operations appeared. Reasoning: The Court stated that in evaluating the law and its application, “the only questions are (i) whether Congress had a rational basis for finding that racial discrimination by motels affected commerce and (ii) if it had such a basis, whether the means selected to eliminate that evil are reasonable and appropriate.”  Congress' action in removing the disruptive effect, which it found racial discrimination has on interstate travel, is not invalidated because Congress was also legislating against what it considered to be moral wrongs.

27

28
Katzenbach v. McClung Facts: Owners of a restaurant in Birmingham, Alabama, that catered to local white customers with take-out service for Negroes, serving food, a substantial portion of which has moved in interstate commerce, sued to enjoin the Attorney General from enforcing against their restaurant and others Title II of the Civil Rights Act of 1964 which they claimed was unconstitutional. The district court granted their injunction holding that there was no demonstrable connection between food purchased in interstate commerce and sold in a restaurant and Congress' conclusion that discrimination in the restaurant would affect commerce so as to warrant regulation of local activities to protect interstate commerce. Holding: The Supreme Court reversed and stated that the enforcement of Title II had already been found to be a valid exercise of the power to regulate commerce by requiring hotels to serve transients without regard to their race or color and held it was equally valid in the case of restaurants. By refusing to serve Negroes, the restaurant spent less money, restricted the ability of Negroes to travel interstate, and obstructed interstate commerce. The Court therefore held the regulatory scheme of Title II was a valid exercise of Congress‟ commerce power. Reasoning: The Court‟s decision was not based on the interstate impact of this particular restaurant. Rather, the Court found that Congress rationally concluded that discrimination by restaurants cumulatively had an impact on interstate commerce. The Court found the testimony before Congress “afforded ample basis for the conclusion that established restaurants in such areas sold less interstate goods because of the discrimination, that interstate travel was obstructed directly by it, that business in general suffered and that many new businesses refrained from establishing there as a result of it.”  Prof. Brown asks does the “rational basis test” go to the means applied by Congress or to the degree to which something is commerce? F. The Commerce Clause After United States v. Lopez  The Ideological Split and Its Relevance  In a 5-4 ruling, the Court split with Chief Justice writing the opinion of the Court, joined by O‟Connor, Kennedy, Scalia and Thomas, JJ., and Stevens, Souter, Ginsburg and Breyer, JJ., dissenting.  Scholars tend to consider United States v. Lopez as either (i) an aberration, (ii) a required stopping point for the expansion of the activities under the Commerce Clause, or (iii) retrenchment; an intentional step backwards by the Court as a movement away from the broad sweeping power of the Commerce Clause.  Option (i) is essentially irrelevant because only five years later, the Court in Morrison relies on its holding and reasoning in Lopez. United States v. Lopez Facts: Defendant was a senior in high school when he was arrested for carrying a conceal handgun and five bullets. He was charged with violating the Gun-Free School Zones Act of 1990, which made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone;” defined as on the grounds of a public/private/parochial school or within a distance of 1,000 feet from such grounds. Defendant appealed and argued that the Act was an unconstitutional exercise of Congress‟ commerce power. The Fifth Circuit agreed and found that the law was unconstitutional because there were inadequate findings by Congress as to a sufficient relationship to interstate commerce. Holding: The Supreme Court affirmed, holding that the Act exceeded the authority of Congress to regulate commerce among the several states under the commerce clause and that the Act could not be sustained as a regulation of an activity that substantially affects interstate commerce. Reasoning: The Court reasoned that (i) the Act is a criminal statute that by its terms has nothing to do with commerce or any sort of economic enterprise, and – since possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce – the Act could not be sustained under prior Supreme Court cases upholding regulations of intrastate activities that arose out of or were connected with a commercial transaction which viewed in the aggregate substantially affected interstate commerce; (ii) the Act contained no jurisdictional element which would insure that the firearm possession in question affected interstate commerce, that is, the Act had no express jurisdictional element which might limit the Act's reach to a discrete set of firearm possessions that additionally have an explicit

28

29
connection with or effect on interstate commerce; (iii) while Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce, to the extent that congressional findings would have enabled the Supreme Court to evaluate the legislative judgment that the possession of a firearm in a local school zone substantially affected interstate commerce, such findings were lacking in the case at hand; and (iv) the Court would not (a) pile inference upon inference in a manner that would bid fair to convert congressional authority under the commerce clause to a general police power of the sort retained by the states, and (b) conclude that there will never be a distinction between what is truly national and what is truly local.  Justice Rehnquist began by emphasizing that the Constitution created a national government of enumerated powers, and quoted James Madison‟s Federalist No. 45, writing, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."  Justice Rehnquist states that the proper test of whether an activity affects interstate commerce sufficiently to be within Congress' power to regulate under the Commerce Clause requires an analysis of whether the regulated activity "substantially affects" interstate commerce. Congress may regulate intrastate activity that has a "substantial effect" on interstate commerce and activity that exerts a substantial economic effect on interstate commerce. The court decides whether a rational basis exists for concluding that a regulated activity sufficiently affects interstate commerce.  Prof. Brown points out that Rehnquist performed a “slight of hand” in manipulating precedent when he discussed Wickard as “perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not.” The Wickard Court specifically stated that the activity did not have to be part of commerce (economic) and could still be regulated if it had an economic effect. Here, Rehnquist narrowed the precedent to only economic activities. Concurrence: Thomas, J., concurred but was of the opinion that the "substantial effects" test should be reconsidered as inherently flawed. He expressed the view that the caselaw had drifted from the original understanding of the Commerce Clause and that the Commerce Clause did not support the proposition that Congress had the authority over all activities that substantially affected interstate commerce. Justice Thomas urged a much narrower view of congressional power than adopted by the majority and proposed returning the limits on the commerce power to that which the Court followed between 1887 and 1937. Concurrence: Kennedy, J., joined by O'Connor, J., concurring, expressed the view that the Act upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power, in that (1) neither the actors nor their conduct in the case at hand had a commercial character, and neither the purpose nor the design of the Act have an evident commercial nexus, and (2) the Act intrudes upon an area of traditional state concern, because (a) education is a traditional concern of the states, and if a state or municipality determines that harsh criminal sanctions are necessary and wise to deter students from carrying guns on school premises, the reserved powers of the states are sufficient to enact those measures, and (b) the Act forecloses the states from experimenting and exercising their own judgment in an area to which states lay claim by right of history and expertise, and does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term.  Justice Kennedy‟s test is whether it upsets the federal balance of by unduly intervening in an area of traditional state concern (circular argument?). Dissent: Breyer, J., joined by Stevens, Souter, and Ginsburg, JJ., dissenting, expressed the view that (1) Congress could have had a rational basis for finding a significant or substantial connection between (a) gun-related school violence, which poses a widespread, serious, and substantial physical threat to teaching and learning, and (b) interstate commerce, to which such teaching and learning are inextricably tied, and (2) the court's holding creates serious legal problems in that (a) the holding runs contrary to modern Supreme Court cases that have upheld congressional actions despite connections to interstate or foreign commerce that are less significant than the effect of school violence, (b) the court's distinction between commercial and noncommercial transactions results in a question of the power of Congress turning upon a formula which gives controlling force to nomenclature rather to consideration of the actual effects of the activity upon interstate commerce, and (c) the court's holding threatens legal uncertainty in an area of law that had seemed reasonably well settled.

29

30
 Justice Breyer‟s test is whether there is a “rational basis” that an activity affects interstate commerce [note that followed to the extreme, this could allow the regulation of almost any activity through a chain of causal logic].  Justice Breyer stated, “to hold this statute constitutional is not to „obliterate‟ the distinction between what is national and what is local…nor is it to hold that the Commerce Clause permits the Federal Government to regulate any activity that it found was related to the economic productivity of individual citizens.” United States v. Morrison Facts: A woman who had been a student at a Virginia university filed suit in district court against defendants including two male individuals; and alleged, among other matters, that she had been raped by the two individuals while she and they had been attending the university and this attack violated the federal Violence Against Women Act, which provided a federal civil remedy for the victims of gender-motivated violence. The United States intervened to defend the Act‟s validity under the Federal Constitution. The district court dismissed the suit on the basis that it reasoned Congress lacked the authority to enact the Act under the commerce clause or under § 5 of the Fourteenth Amendment. Holding: The Supreme Court affirmed, holding that that Congress had no authority to enact the Act under either the commerce clause or § 5 of the Fourteenth Amendment. Reasoning: The Court reasoned that the act was unconstitutional because as, among other matters, (1) gender-motivated crimes of violence were not – in any sense of the phrase – economic activity; (2) the Act contained no jurisdictional element establishing that a federal cause of action was in pursuance of Congress' power to regulate interstate commerce; (3) the Constitution required a distinction between what was truly national and what was truly local; (4) there was no better example of state police power than the suppression of violent crime and the vindication of victims; and (5) the Act was directed at individuals who had committed criminal acts motivated by gender bias, rather than at a state or state actor.  Justice Rehnquist stated, “While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”  Moreover, Justice Rehnquist dismissed the congressional findings on the impact of violence against women stating, “simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.” The Court noted that Congress was relying on an attenuated “but for” causal chain, that if accepted, would allow Congress to regulate “any crime as long as the nationwide, aggregate impact of that crime has substantial effects on employment, production, transit or consumption.” Concurrence: Thomas, J., argued in his concurrence that by “continuing to apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.”  Justice Thomas would go significantly further than the majority in limiting the scope of Congress‟ commerce power; whereas the majority would allow Congress to regulate economic activities based on their cumulative impact on the economy, Justice Thomas would not. Dissent: Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting, expressed the view that (1) some claims by the Supreme Court in the case at hand – that (a) the court's commerce clause precedent was left undisturbed, and (b) the Act exceeded Congress's power under that clause – were irreconcilable; (2) Congress had the power to legislate with regard to activity that, in the aggregate, had a substantial effect on interstate commerce; and (3) the sufficiency of the evidence assembled by Congress – showing the effects of violence against women on interstate commerce – could not seriously be questioned under a rational-basis standard.  Justice Souter stressed the need for judicial deference to congressional fact-finding, saying, “Congress has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce. The fact of such a substantial effect is not an issue for the courts in the first instance, but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds ours. By passing legislation, Congress indicates its conclusion, whether explicitly or not, that facts support its exercise of the commerce power.”

30

31
 The business of the courts is to review the congressional assessment, not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact.”  Why the Change in Interpreting the Commerce Clause?  Justice Souter states, “If we now ask why the formalistic economic/noneconomic distinction might matter today, after its rejection in Wickard, the answer is not that the majority fails to see causal connections in an integrated economic world. The answer is that in the minds of the majority there is a new animating theory that makes categorical formalism seem useful again. Just as the old formalism had value in the service of an economic conception, the new one is useful in serving a conception of federalism.”  “It is the instrument by which assertions of national power are to be limited in favor of preserving a supposedly discernible, proper sphere of state autonomy to legislate or refrain from legislating as the individual States see fit. The legitimacy of the Court's current emphasis on the noncommercial nature of regulated activity, then, does not turn on any logic serving the text of the Commerce Clause or on the realism of the majority's view of the national economy. The essential issue is rather the strength of the majority's claim to have a constitutional warrant for its current conception of a federal relationship enforceable by this Court through limits on otherwise plenary commerce power. This conception is the subject of the majority's second categorical discount applied today to the facts bearing on the substantial effects test.”  Prof. Brown’s Three Judicial Approaches  Judicial evaluation of attenuated causal chains because we don‟t like them.  Judicial acceptance causal chains as long as Congress had a rational basis.  Judicial deference - if Congress found it sufficient, then it is good enough for the Court. Gonzales v. Raich Facts: The federal Controlled Substances Act (CSA) generally criminalized the manufacture, distribution, or possession of marijuana. Although marijuana sale or possession also was generally prohibited under California criminal law, California enacted in 1996 a statute that created an exemption from criminal prosecution for marijuana possession under state law for (i) physicians who recommended marijuana to patients for medical purposes; and (ii) patients, and their primary caregivers, who possessed or cultivated marijuana for patients' personal medical purposes upon recommendation or approval by a physician. Two medical patients – California residents who used physician-recommended marijuana for serious medical conditions – brought an action seeking injunctive and declaratory relief prohibiting the enforcement of the CSA to the extent that it prevented the patients from possessing, obtaining, or manufacturing marijuana for their personal medical use, on the asserted grounds that enforcing the CSA against the patients would violate the Federal Constitution's commerce clause (Art. I, § 8, cl. 3) and other constitutional provisions. The Ninth Circuit concluded that the patients had demonstrated a strong likelihood of success on their claim that the CSA – as applied to the intrastate, noncommercial cultivation and possession of marijuana for personal medical purposes as recommended by a patient's physician pursuant to valid California law – exceeded Congress' authority under the commerce clause Holding: The Supreme Court reversed and remanded, holding that the CSA's categorical prohibition of the manufacture and possession of marijuana, did not, as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to the California statute, exceed Congress' authority under the commerce clause, as (1) Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would affect interstate price and market conditions, where production of marijuana meant for home consumption had a substantial effect on supply and demand in the national market for marijuana; (2) findings in the CSA's introductory sections explained why Congress had deemed it appropriate to encompass local activities within the CSA's scope; and (3) the circumstance that the CSA ensnared some purely intrastate activity was of no moment. Reasoning: The Court reasoned that it‟s case law firmly establishes Congress' power to regulate purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce. Even if a person's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce. The Supreme Court has never required Congress to legislate with

31

32
scientific exactitude. When Congress decides that the total incidence of a practice poses a threat to a national market, it may regulate the entire class. In this vein, the Supreme Court has reiterated that when a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.  Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would affect interstate price and market conditions, for (a) it was likely that the high demand for marijuana in the interstate market would draw homegrown marijuana into that market; (b) the diversion of homegrown marijuana would tend to frustrate the federal interest in entirely eliminating commercial transactions in the interstate market; and (c) production of marijuana meant for home consumption had a substantial effect on supply and demand in the national market for marijuana. Concurrence: Scalia, J., concurring in the judgment, expressed the view that (i) activities that merely substantially affect interstate commerce are not part of interstate commerce, and thus the power to regulate them cannot come from the commerce clause alone; (ii) Congress' regulatory authority over intrastate activities that are not part of interstate commerce derives from the Constitution's necessary and proper clause; and (iii) where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not substantially affect interstate commerce.  Justice Scalia seems to suggest when Congress uses the Necessary & Proper clause it can regulate activities that are not economic, but have substantial economic effects.  Although the power "to make . . . regulation effective" commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce, and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. But, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate end under the commerce power. Dissent: O'Connor, J., joined in pertinent part by Rehnquist, Ch. J., and Thomas, J., dissenting, expressed the view that (i) the Supreme Court's decision in the instant case sanctioned an application of the CSA that extinguished California's experiment without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, had a substantial effect on interstate commerce and was therefore an appropriate subject of federal regulation; (ii) in so doing, the court announced a rule that gave Congress an incentive to legislate broadly pursuant to the commerce clause – nestling questionable assertions of its authority into comprehensive regulatory schemes – rather than with precision; and (iii) that rule and the result it produced in the instant case were irreconcilable with prior Supreme Court decisions.  Justice O‟Connor points out that “to draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic.”  The Court's definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market.  Today's decision allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential (and the Court appears to equate "essential" with "necessary") to the interstate regulatory scheme. Seizing upon our language in Lopez that the statute prohibiting gun possession in school zones was "not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated," the Court appears to reason that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme.  If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as "transfer or possession of a firearm anywhere in the nation" – thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate

32

33
commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones.  Furthermore, today's decision suggests we would readily sustain a congressional decision to attach the regulation of intrastate activity to a pre-existing comprehensive (or even not-so-comprehensive) scheme. If so, the Court invites increased federal regulation of local activity even if, as it suggests, Congress would not enact a new interstate scheme exclusively for the sake of reaching intrastate activity. Dissent: Thomas, J., argues in his dissent that the patients use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana [essentially arguing that they are not discussing the “same marijuana” that Congress had in mind when passing the CSA]. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the Federal Government is no longer one of limited and enumerated powers. Their local cultivation and consumption of marijuana is not "Commerce . . . among the several States." U.S. Const., Art. I, § 8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating [patients'] conduct, however, is not "necessary and proper for carrying into Execution" Congress' restrictions on the interstate drug trade. Art. I, § 8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate [the patients‟] conduct. THE FEDERAL LEGISLATIVE POWER A. Preemption  The Dormant Commerce Clause  The dormant commerce clause, or as it is sometimes called, the “negative commerce clause,” is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. The Supreme Court has inferred this limit on state regulatory power from the grant of power to Congress to regulate commerce among the states – this is true even if Congress has not acted.  The Privileges and Immunities Clause  The privileges and immunities clause of Article IV, § 2, has been interpreted by the Supreme Court as limiting the ability of the states to discriminate against out-of-staters with regard to constitutional rights or important economic activities [one‟s ability to earn a livelihood].  Ways of Finding Preemption  The Supreme Court summarized the tests as, “preemption may be either expressed or implied, and is compelled whether Congress‟ command is explicitly stated in the statute‟s language or implicitly contained in its structure and purpose. Absent explicit preemptive language, we have recognized at least two types of implied preemption: field preemption, where the scheme of federal regulation is so pervasive as to make reasonable inference that Congress left no room for the States to supplement it, and conflict preemption, where compliance with both federal and state regulations is a physical impossibility, or where a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Crosby v. Nat'l Foreign Trade Council Facts: Massachusetts adopted a provision, which generally barred state entities from buying goods or services from any person identified on a restricted purchase list of those doing business with Burma. The state provision permitted an exception to the ban where, among other matters, a procurement effort elicited no offer that was no more than 10 % greater than the bid of a company on the restricted list. Three months after the Massachusetts provision was enacted, Congress passed an act, which imposed a set of mandatory and conditional sanctions on Burma. A nonprofit organization, representing corporations engaged in foreign commerce filed suit seeking declaratory and injunctive relief against the state officials charged with administering and enforcing the state provision and

33

34
argued that the state provision (a) infringed on the foreign affairs power of the Federal Government in violation of the Federal Constitution, (b) violated the Constitution's foreign commerce clause (in Art I, 8, cl 3), and (c) was pre-empted by the federal act. Holding: The Supreme Court affirmed, enjoined enforcement of the state provision. Reasoning: The Court reasoned that the state provision was invalid under the Federal Constitution's supremacy clause as a result of the state provision's threat of frustrating federal statutory objectives, as, among other matters, (1) Congress clearly intended the federal act to provide the President with flexible and effective authority over economic sanctions against Burma; (2) Congress manifestly intended to limit economic pressure against the Burmese government to a specific range; (3) the state provision conflicted with federal law at a number of points by penalizing individuals and conduct that Congress had explicitly exempted or excluded from sanctions; (4) the state provision was at odds with the President's intended authority to speak for the United States among the world's nations in developing a comprehensive and multilateral strategy to bring democracy to, and improve human rights practices and the quality of life in, Burma; and (5) the failure of Congress expressly to pre-empt the state provision did not imply approval of the state sanctions. Concurrence: Scalia, J., joined by Thomas, J., concurring in the judgment, expressed the view that (1) it was "perfectly obvious" on the face of the federal act that (a) Congress intended to provide the President with flexibility in implementing Congress' Burma sanctions policy, (b) Congress expected the President to use his discretionary authority over sanctions to move the Burmese regime in the democratic direction, (c) Congress' Burma policy was a calibrated one, which limited economic pressure against the Burmese government to a specific range, and (d) Congress intended the President to develop a multilateral strategy in cooperation with other countries; (2) from the record, the inflexibility produced by the Massachusetts provision had in fact (a) caused difficulties with the nation's allies, and (b) impeded a multilateral strategy; (3) the Supreme Court's invocations of legislative history were irrelevant; and (4) neither the statements of individual members of Congress, nor Executive statements and letters addressed to congressional committees, nor the non-enactment of other proposed legislation, was a reliable indication of what a majority of both houses of Congress intended when they voted for the federal act. American Insurance Ass'n v. Garamendi Facts: A 1990 treaty was read by German courts as lifting a moratorium on certain Holocaust-related claims, many class-action lawsuits claiming restitution were filed, in United States courts, against companies which had allegedly done business in Germany during the Nazi era. Various foreign defendant companies and their governments protested. Eventually, in 2000-2001, the executive branch of the Federal Government reached some executive agreements with the governments of Germany, Austria, and France. Meanwhile, California had enacted several statutes on this subject, including a 1999 statute (the "disclosure statute") which required any insurer doing business in the state to disclose certain information about Holocaust-era insurance policies that had been sold, by the insurer or any "related company," to persons in Europe and that had been in effect between 1920 and 1945. Under this statute, the mandatory penalty for default was suspension of the insurer's license to do business in the state. The U.S., European insurance companies and a U.S. insurance-trade association filed suit seeking injunctive relief against the insurance commissioner of California. The district court issued a preliminary injunction against enforcing the disclosure statute, as the court expressed the view that the challengers had established a probability of success on grounds including an argument that the disclosure statute was invalid, under the Federal Constitution, as violating the federal foreign-affairs power. Holding: The Supreme Court held that the 1999 California disclosure statute interfered with the conduct, under Article II of the Federal Constitution, of foreign policy by the executive branch of the Federal Government, as expressed principally by the executive agreements with Germany, Austria, and France – and, thus, the disclosure statute was pre-empted – for: (1) even though the executive agreements at issue differed in one respect from other agreements previously recognized by the Supreme Court as having been within the President's foreign-relations power – insofar as the agreements at issue, in addressing claims associated with formerly belligerent states, addressed claims against corporations, not against the foreign governments – the Supreme Court's analysis was not affected by this distinction; (2) while the executive agreements at issue lacked express pre-emption clauses, a sufficiently clear conflict with the foreign policy embodied in the agreements had been demonstrated to require a finding of pre-emption, where the consistent Presidential foreign policy had

34

35
been to encourage European governments and companies to volunteer settlement funds, in preference to litigation or coercive sanctions; and (3) even though the President, in conducting foreign policy on this subject, was acting without express congressional authority, Congress also had not expressly (a) authorized state statutes of the type in question, or (b) disapproved of the President's policy. Reasoing: Generally, valid executive agreements are fit to preempt state law, just as treaties are. Resolving Holocaust-era insurance claims that may be held by residents of the United States of America is a matter well within the Executive's responsibility for foreign affairs. A federal statute directed to implied preemption by domestic commerce legislation cannot sensibly be construed to address preemption by executive conduct in foreign affairs. Florida Lime & Avocado Growers, Inc. v. Paul Facts: Growers and handlers of Florida avocados brought suit in the to enjoin California state officials from enforcing a California statute prohibiting the transportation or sale in California of avocados containing less than 8 % of oil, by weight, excluding the skin and seed, against Florida avocados certified as mature under federal regulations issued under the Federal Agricultural Marketing Agreement Act of 1937. They contended that § 792 of the California statute, as so applied, was unconstitutional, because (i) under the Supremacy Clause, it must be deemed displaced by the federal standard for determining the maturity of avocados grown in Florida; (ii) its application to Florida avocados denied appellants the equal protection of the laws in violation of the Fourteenth Amendment; and (iii) its application to them unreasonably burdened or discriminated against interstate marketing of Florida avocados in violation of the Commerce Clause. Holding: The Supreme Court held that § 792 of the California statute was not invalid under the Supremacy Clause, because there was neither such actual conflict between the two schemes of regulation that both cannot stand in the same area, nor was there evidence of a congressional design to preempt the field. Reasoning: The Court reasoned that the federal regulation was the floor, but not the ceiling; it was the minimum standard, but states were allowed to set stricter regulations if they wished. In part, the Court emphasized the traditional role of states in regulating the marketing of food products. The Court also relied in part on the history of the adoption of the federal regulation. It observed that the federal regulation was motivated less b a desire to ensure palatable avocados than by successful lobbying efforts of Florida avocado growers. The Court remarked, “the pattern which emerges is one of maturity regulations drafted and administered locally by the growers own representatives, and designed to do no more than promote orderly competition among the South Florida growers.” Pacific Gas & Electric v. State Energy Resources Conservation & Development Commission Facts: A California statute provided that, before additional nuclear power plants could be built, the state energy commission must determine on a case-by-case basis that there will be adequate capacity for storage of a plant's spent fuel rods at the time such nuclear facility requires such storage. Another section of the statute imposed a moratorium on the certification of new nuclear plants until the energy commission found that there had been developed and that the United States through its authorized agency had approved and there existed a demonstrated technology or means for the disposal of high level nuclear waste. Two electric utility companies brought an action, requesting that the two sections of the California statute be declared invalid under the supremacy clause of the United States Constitution because they are pre-empted by the Atomic Energy Act of 1954. Holding: The Supreme Court rejected both preemption arguments and upheld the state law by concluding that Congress‟ intent was to ensure safety, while the state‟s goal was economic. Reasoning: The Court reasoned that Congress intended the federal government to have exclusive authority to regulate safety, “but that the States retain their traditional responsibilities in the field of regulating electrical utilities for determining questions of need, reliability, cost, and other related state concerns.” The Court concluded that the California law was not preempted because its main purpose was economics and not safety. “California has maintained, and the Court of Appeals agreed, that the law was aimed at economic problems, not radiation hazards…without a permanent means of disposal, the nuclear waste problem could be come critical, leading to unpredictably high costs to contain the problem or, worse, shutdowns in reactors.” The Court said that because it “accepts California‟s avowed economic purpose…the statute lies outside the occupied field of nuclear safety regulation.”

35

36
B. The Taxing and Spending Power of Congress  Article I, § 8, of the Constitution – The Taxing & Spending Clause  “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States”  Prof. Brown points out that if you ignore the taxing power, what would be left would be a general police power. Thus, “provide” must mean more than the common understanding. United States v. Butler Facts: The United States claimed taxes owed on the receiver of several cotton mills under the Agricultural Adjustment Act of 1933, which sought to stabilize production in agriculture by offering subsidies to farmers to limit their crops. The receiver, however, argued that the term “tax” did not connote the expropriation of money from one group to be expended for another, as a necessary means in a plan of regulation, such as the plan for regulating agricultural production set up in the Agricultural Adjustment Act. The government argued that the Act was valid because Congress was authorized to appropriate and authorize spending for the "general welfare" under the spending power clause of the constitution, and that the Act was an effort to aid farmers during the great depression. Holding: The Supreme Court held that while the Act might have been within Congress' power if it fell within the ambit of the term "general welfare," it did not have to reach the question of the interpretation of that whether it did so because the Act was unconstitutional on other grounds. The Act was clearly designed to regulate agriculture by coercing a non-cooperating minority to a desired action with economic pressure. The power to regulate agriculture was not granted to Congress by the Constitution, but rather, was reserved to the States. The tax, the appropriation of the funds raised, and the direction for their disbursement, were possibly permissible means to an unconstitutional end. Congress had no power to enforce its commands on the farmer to the ends sought by the Act, and it could not indirectly accomplish those ends by taxing and spending to purchase compliance. However, the Court‟s holding concerning the scope of the spending and taxing powers remains good law. Dissent: Stone, J., suggested in his dissent that there was no evidence of coercion (i.e., “threat of loss, not hope of gain, is the essence of economic coercion”). It is a contradiction in terms to say that there is power to spend for the national welfare, while rejecting any power to impose conditions reasonably adapted to the attainment of the end, which alone would justify the expenditure. The limitation now sanctioned must lead to absurd consequences. The government may give seeds to farmers, but may not condition the gift upon their being planted in places where they are most needed or even planted at all. The government may give money to the unemployed, but may not ask that those who get it shall give labor in return, or even use it to support their families.  For What Purposes May Congress Tax and Spend?  The Court in Butler began by noting that the debate over the spending and taxing power goes back to a dispute between James Madison and Alexander Hamilton.  Madison took the view that Congress was limited to taxing and spending to carry out the other powers specifically granted in Article I of the Constitution. The Court explained, “Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers.”  In contrast, Hamilton took the position that Congress could tax and spend for any purpose that it believed the general welfare, so long as Congress did not violate another constitutional provision. The Court noted, “Hamilton…maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States.”

36

37
 The Court ultimately endorses Hamilton‟s position as the “correct one,” noting while the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of § 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. Steward Machine Co. v. Davis Facts: Steward Machine Co. challenged the constitutionality of the Social Security Act of 1935. Under the Act, an excise tax was imposed on employers based on wages paid; the proceeds of which went into the general federal treasury. However, if a taxpayer made contributions to a state unemployment fund, such contributions would be credited against the federal excise tax provided that the state law had been certified by the Social Security Board as satisfying the minimum criteria. Steward had paid an excise tax in accordance with the Act but then filed a claim to recover payment, contending that the Act itself was unconstitutional. Holding: The Supreme Court rejected Steward‟s contentions and upheld the constitutionality of the federal unemployment system created by the Social Security Act. The Court held that the presence of the urgent need (the great depression) for some remedial relief did not overstep the bounds of Congressional power. Reasoning: The Court reasoned that operation of the Act did not constitute a restraint, but rather the creation of a larger freedom, the states and the nation joining in a cooperative endeavor to avert a common problem; the lack of unemployment insurance. Every tax is in some way regulatory and to some extent imposes an economic impediment to the activity taxed as compared with others not taxed. However, to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties. The Act did not call for surrender by the states of powers essential to their quasisovereign existence. Furthermore, a wide range of judgment is given to the states as to the particular type of statute and conditions, which they may see fit to enact in their own unemployment fund. Even if opinion may differ as to the fundamental quality of one or more of the conditions, the difference will not vitiate the Act. Congress must have the benefit of a fair margin of discretion.  Justice Cardozo stated, "Every rebate from a tax when conditioned upon conduct is in some measure a temptation. But to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties. The outcome of such a doctrine is the acceptance of a philosophical determinism by which choice becomes impossible. Till now the law has been guided by a robust common sense, which assumes the freedom of the will as a working hypothesis in the solution of its problems…Even on that assumption the location of the point at which pressure turns into compulsion, and ceases to be inducement, would be a question of degree – at times, perhaps, of fact.”  But there are limits: (i) cannot destroy quasi-sovereign existence of states, (ii) cannot constitute coercion and (iii) there must be a degree of relatedness.  Conditions on Grants to State Governments  The Supreme Court has held that Congress may place conditions on such grants so long as the conditions are expressly stated and have some relationship to the purpose of the spending program – even when Congress would otherwise have no authority to regulate. Oklahoma v. Civil Service Commission Facts: A state employee was a member of the Oklahoma State Highway Commission, which was financed in part by loans and grants from a federal agency, while simultaneously also a chairman on a committee of a political party. The Civil Service Commission determined that the employee's conduct constituted taking part in political management and in political campaigns in violation of § 12(a) of the Hatch Act. The Civil Service Commission further determined that the violation of the Act warranted the employee's removal from the state highway commission. Under the Hatch Act, federal highway grants could be withheld from the state agency if the employee was not removed in compliance with the Civil Service Commission's order. The state agency challenged the Commission‟s determination. Holding: The Supreme Court ruled that the statutory authority to review the Commission's order included the power to determine the constitutionality the basis of the order, § 12(a). The Court held that § 12(a) did not violate the Tenth Amendment because Congress had power to fix the terms upon which its money allotments to states were to be disbursed.

37

38
Reasoning: The Tenth Amendment has been consistently construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end. The end sought by Congress through the Hatch Act is better public service by requiring those who administer funds for national needs to abstain from active political partisanship. So even though the action taken by Congress does have effect upon certain activities within the state, it has never been thought that such effect made the federal act invalid. While the United States is not concerned with, and has no power to regulate, political activities as such of state officials, it does have power to fix the terms upon which its money allotments to states shall be disbursed. South Dakota v. Dole Facts: Congress, having found that differing minimum drinking ages in the states created particular incentives for young persons to drink and drive while commuting to border states where the drinking age was lower, enacted the National Minimum Drinking Age Amendment of 1984. The statute directed the Secretary of Transportation to withhold a percentage of otherwise allocable federal highway funds from states in which the purchase or public possession of any alcoholic beverage by a person who is less than 21 years of age is lawful. South Dakota, which permited persons 19 years of age or older to purchase beer containing up to 3.2% alcohol, brought suit against the Secretary of Transportation. South Dakota sought a declaratory judgment that the Amendment was an invalid exercise of Congress‟ power under the Federal Constitution's spending clause and also violated the Federal Constitution's Twenty-first Amendment, which reserves power to the states to impose restrictions on the sale of liquor. The district court rejected the claim and the Eighth Circuit affirmed. Holding: The Supreme Court affirmed, holding that even if Congress lacks the power to impose a national minimum drinking age directly, the indirect imposition of such a standard in the Amendment was a valid exercise of Congress' spending power, since (1) the provision was designed to serve the general welfare, (2) the means chosen to address the situation were reasonably calculated to advance the general welfare, (3) the conditions upon which the states were to receive the funds were clearly stated, (4) the congressional action was related to the national concern of safe interstate travel, one of the main purposes for which highway funds are expended, and (5) the Twenty-first Amendment did not provide an independent constitutional bar to the Amendment, since (a) the statute did not induce the states to engage in unconstitutional activities, and (b) the percentage of highway funds that were to be withheld from a state with a drinking age below 21 was relatively small, so that Congress‟ program did not coerce the states to enact higher minimum drinking ages than they would otherwise choose. Reasoning: Congress‟ power under the Federal Constitution's spending clause is not unlimited but is subject to several restrictions, including 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, enabling the states to exercise their choice knowingly, cognizant of the consequences of their participation, (3) conditions on federal grants may be found illegitimate if they are unrelated to the federal interest in particular national projects or programs, and (4) other provisions of the Federal Constitution may provide an independent bar to the conditional grant of federal funds.  “We think that the language in our earlier opinions stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress' broad spending power. But no such claim can be or is made here. Were South Dakota to succumb to the blandishments offered by Congress and increase its drinking age to 21, the State's action in so doing would not violate the constitutional rights of anyone.” Dissent: O'Connor, J., dissented, expressing the view that (i) the Act was not a valid exercise of Congress' spending power, since the establishment of a national minimum drinking age was not sufficiently related to interstate highway construction to justify so conditioning funds appropriated for that purpose, and (ii) the Act was therefore an attempt to regulate the sale of liquor, an attempt that lay outside Congress‟ power to regulate commerce because it fell within the ambit of the Twenty-first Amendment. "Congress has the power to spend for the general welfare, it has the power to legislate only for delegated purposes…The appropriate inquiry, then, is whether the spending requirement or

38

39
prohibition is a condition on a grant or whether it is regulation. The difference turns on whether the requirement specifies in some way how the money should be spent, so that Congress‟ intent in making the grant will be effectuated. Congress has no power under the spending clause to impose requirements on a grant that go beyond specifying how the money should be spent. A requirement that is not such a specification is not a condition, but a regulation, which is valid only if it falls within one of Congress‟ delegated regulatory powers.” C. The Enforcement of Federal Laws  The Enforcement of Federal Laws  Can the federal government expect the States to prosecute their own citizens? Sabri v. United States Facts: A real estate developer in Minneapolis was indicted for offering three separate bribes totaling approximately $95,000 to a city councilman, who was also a member of the Board of Commissioners of the Minneapolis Community Development Agency (MCDA). The charges were brought under 18 U.S.C. § 666(a)(2), which imposed federal criminal penalties on anyone who corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a state, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more. For criminal liability, the statute required that the organization, government, or agency receive, in any one year period, benefits in excess of $10,000 under a federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of federal assistance. In 2001, the City Council of Minneapolis administered about $29 million in federal funds paid to the city, and in the same period, the MCDA received some $23 million of federal money. The developer moved to dismiss the indictment on the ground that § 666(a)(2) was unconstitutional on its face for failure to require proof of a connection between the federal funds and the alleged bribe as an element of liability. Holding: The Supreme Court affirmed, holding that § 666(a)(2) was a valid exercise of congressional authority under Article I of the Federal Constitution, notwithstanding that the statute did not require proof of a connection between the federal funds and the alleged bribe as an element of liability, for, among other reasons: (1) Congress had authority under the Constitution's spending clause to appropriate federal monies to promote the general welfare, and it had corresponding authority under the Constitution's necessary and proper clause to see to it that taxpayer dollars appropriated under that power were in fact spent for the general welfare; and (2) while it was true that not every bribe or kickback offered or paid to agents of covered entities would be traceably skimmed from specific federal payments, or show up in the guise of a quid pro quo for some dereliction in spending a federal grant, this possibility portended no enforcement beyond the scope of federal interest. Reasoning: Congress was within its prerogative under the spending clause to protect spending objects from the menace of local administrators on the take, as the power to keep a watchful eye on expenditures and on the reliability of those who use public money is bound up with congressional authority to spend in the first place. Money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value. It is enough that the statute condition the offense on a threshold amount of federal dollars to the government such as that provided here and a bribe that goes well beyond liquor and cigars. The Court held that the federal statute is not an unduly coercive or impermissibly sweeping condition on the grant of federal funds, as Congress has the authority to bring federal power to bear directly on individuals who convert public spending into unearned private gain, not a means for bringing federal economic might to bear on a state's own choices of public policy. D. Delegation of Executive Power to Congress and Its Officials  The Separation of Powers  Although Congress has broad authority to delegate legislative power to administrative agencies, the Court has made it clear than Congress cannot delegate executive power to itself or to its agents.

39

40
Bowsher v. Synar Facts: Congress passed the Balanced Budget and Emergency Deficit Control Act of 1985, under which the Comptroller General was responsible for preparing and submitting to the President a report specifying deficit reductions for a fiscal year. The President in turn was to order the reductions specified by the Comptroller General. The Comptroller General was removable from office only by Congress. Congressmen and other parties initiated an action challenging the Act's constitutionality. The trial court ruled that the Comptroller General's role in the deficit reduction process violated the constitutionally imposed separation of powers. Holding: The Supreme Court affirmed, holding that the Act was unconstitutional as it violated the separation of powers, since responsibility for execution of the Act was placed in the hands of the Comptroller General. Reasoning: The powers assigned to the Comptroller General under the Act were executive in nature and by placing the responsibility for execution of the Act in the hands of an officer who is subject to removal only by itself, Congress in effect retained control over such execution, which was therefore invalid as violating the doctrine of separation of powers. Chief Justice Berger explained, “as Chadha makes clear, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly – by passing new legislation.” E. The War Power  Article I, § 8, of the Constitution – The War Power  “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Woods v. Cloyd W. Miller Co. Facts: The Housing and Rent Act, provided that no person shall demand, accept, or receive any rent for the use or occupancy of any controlled housing accommodations greater than the maximum rent established under the authority of the Emergency Price Control Act of 1942, and became effective on July 1, 1947. The following day, the landlord demanded of its tenants increases of 40 percent and 60 percent for rental accommodations in a city defense-rental area, which was an admitted violation of the Act and regulations adopted pursuant thereto. The Housing Expediter instituted proceedings against the landlord to enjoin the violations and a preliminary injunction was issued. Holding: The Supreme Court affirmed, holding that the war power sustained the legislation. The legislative history of the Act made abundantly clear that there had not yet been eliminated the deficit in housing that, in considerable measure, was caused by the heavy demobilization of veterans and by the cessation or reduction in residential construction during the period of hostilities. Since the war effort contributed heavily to that deficit, Congress had the power even after the cessation of hostilities to act to control the forces that a short supply of the needed article created. Reasoning: The Court reasoned that the war power includes the power to remedy the evils, which have arisen from its rise and progress and continues for the duration of that emergency. Whatever may be the consequences when war is officially terminated, the war power does not necessarily end with the cessation of hostilities. It is adequate to support the preservation of rights created by wartime legislation. The war power is the most dangerous one to free government in the whole catalogue of powers. It usually is invoked in haste and excitement when calm legislative consideration of constitutional limitation is difficult. It is executed in a time of patriotic fervor that makes moderation unpopular, and is interpreted by judges under the influence of the same passions and pressures. When the war power is invoked to do things to the liberty of the people, or to their property or economy that only indirectly affects conduct of the war and do not relate to the management of the war itself, the constitutional basis should be scrutinized with care. F. Congress‟ Power Under the Reconstruction Era Amendments (Amends. 13, 14 & 15)  The Reconstruction Era Amendments  After the Civil War, three important amendments were added to the Constitution.  The Thirteenth Amendment, adopted in 1865, prohibits slavery and involuntary servitude, except as a punishment for a crime. It also provides, in § 2, “Congress shall have the power to enforce this article by appropriate legislation.”

40

41
 The Fourteenth Amendment, adopted in 1868, provides that all persons born or naturalized in the United States are citizens and that no state can abridge the privileges or immunities of such citizens; nor may states deprive any person of life, liberty, or property without due process of law or deny any person of equal protection of the laws. Importantly, § 5 of the amendment states, “the Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  The Fifteenth Amendment declares, “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” It also provides, in § 2, “Congress shall have the power to enforce this article by appropriate legislation.” The Civil Rights Cases Facts: Five civil rights cases were consolidated before the court in order to decide if the Civil Rights Act of 1875 was constitutional. Holding: The Supreme Court held that these sections were unconstitutional as they sought to proscribe individual action, which was the purview of state rather than federal law pursuant to the Tenth Amendment. The Court held that the Thirteenth prohibited the badges and incidents of slavery, and individual discrimination against African Americans did not rise to the level of slavery. The court further held that the Fourteenth did not provide authority to enact these sections of the Civil Rights Act, as it was aimed at the state legislatures rather than the individual person. As such, the court held the sections unconstitutional in respect to the five cases brought before it. Reasoning: Civil rights, such as are guaranteed by the United States Constitution against state aggression, cannot be impaired by wrongful acts of individuals, unsupported by state authority. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual, an invasion of the rights of the injured party, whether they affect his person, his property, or his reputation, but if not sanctioned, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress. In cases where Constitution seeks to protect the rights of citizen against discriminative and unjust laws of the state by prohibiting such laws, it is not individual offences, but abrogation and denial of rights, which it denounces, and for which it gives Congress power to provide a remedy. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the cases provided for, the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration. Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community; but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery.  The Nationalist Perspective of § 5 – Katzenbach v. Morgan  Is Congress limited to providing remedies for violations of constitutional rights recognized by the Supreme Court; or may Congress use its power under these amendments to adopt an independent interpretation of the Constitution overruling Supreme Court decisions?  The “nationalist” perspective suggests that Congress may use its § 5 authority to expand the scope of rights under the Constitution. Katzenbach v. Morgan Facts: In 1959, the Supreme Court in Lassiter v. Northhampton Election Board, the Supreme Court upheld the constitutionality of an English language literacy requirement for voting. Congress, in the Voting Rights Act, sought to partially overturn Lassiter by providing that failing a literacy test could not bar a person from voting if the person was educated through sixth grade in Puerto Rico. Registered voters in New York challenged the constitutionality of § 4(e) of the Voting Rights Act of 1965, which provided that no person who met specified educational requirements could be denied the right to vote due to inability to speak or write English, insofar as the Act prohibited enforcement of sections of the New York State Constitution and the State‟s Election Laws, which provided that no person could become entitled to vote unless such person was also able, except for physical disability, to read and write English. Holding: The Supreme Court, on direct appeal, held that § 4(e) of the Voting Rights Act was a proper exercise of the powers granted to Congress by § 5 of the Fourteenth Amendment, and that by

41

42
force of the supremacy clause of Article VI of the Federal Constitution, the New York Englishliteracy requirement could not be enforced to the extent that it was inconsistent with § 4(e). Reasoning: Justice Brennan offered two reasons to support its conclusion. One was that Congress could have concluded that granting Puerto Ricans the right to vote would empower them and help them to eliminate discrimination against them. In essence, this was an argument that the law was constitutional because it was a remedy for discrimination. Second, the Court held that Congress could find that the literacy test denied equal protection, even though this was contrary to the Court‟s earlier holding in Lassiter. This aspect of the ruling was more much significant because it accords Congress with the authority to define the meaning of the Fourteenth Amendment. The State of New York argued that Congress could not use its § 5 power to independently determine the meaning of the Fourteenth Amendment, but rather could only provide remedies for practices that the Court had deemed unconstitutional. The Court rejected this approach and spoke broadly of Congress‟ powers under § 5 and expressly rejected the view that the legislative power is confined to “the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional.” The Court explained, “by including § 5, the draftsmen sought to grant Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause.” He also included in a footnote, “contrary to the suggestion of the dissent, § 5 does not grant Congress power to exercise discretion in the other direction and to enact „statutes so as in effect to dilute equal protection and due process decisions of this Court.‟ We emphasize that Congress‟ power under § 5is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.  Under the distribution of powers effected by the Constitution, the states establish qualifications for voting for state officers, and the qualifications established by the states for voting for members of the most numerous branch of the state legislature also determine who may vote for United States Representatives and Senators. But the states have no power to grant or withhold the franchise on conditions that are forbidden by the Fourteenth Amendment or any other provision of the Constitution.  The basic test to be applied in a case involving the Fourteen Amendment, § 2, is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States. The McCulloch v. Maryland standard is the measure of what constitutes appropriate legislation under § 5 of the Fourteenth Amendment. Correctly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment. The consideration of whether an enactment is "appropriate legislation" to enforce the Equal Protection Clause of the Fourteenth Amendment is to be whether it is "plainly adapted to that end" and whether it is not prohibited by but is consistent with "the letter and spirit of the constitution."  Prof. Brown says Katzenbach is the high water mark of the Court‟s deference to Congress; the Court pretty clearly uses the “rational basis” test for affirming Congress‟s view. Dissent: Harlan, J., joined by Stewart, J., argued in his dissent that if Congress can use its power under § 5 to interpret the Constitution, it conceivably could use this authority to dilute or even negate constitutional rights. “When recognized state violations of federal constitutional standards have occurred, Congress is of course empowered by § 5 to take appropriate remedial measures to redress and prevent the wrongs. But it is a judicial question whether the condition with which Congress has thus sought to deal is in truth an infringement of the Constitution, something that is the necessary prerequisite to bringing the § 5 power into play at all.”  The Federalist Perspective of § 5 – City of Boerne v. Flores  The “federalist” perspective is that Congress under § 5 of the Fourteenth Amendment cannot create new rights or expand the scope of rights already enumerated; Congress can act only to prevent or remedy violations of rights, and such laws must be narrowly tailored. Employment Division v. Smith Facts: Two drug rehabilitation counselors, both of whom were members of the Native American Church, were fired from their jobs with a private corporation in Oregon because they had ingested peyote for sacramental purposes at a ceremony of the Church. The counselors applied to the Employ. Div. of Oregon's Dep‟t of Human Resources for unemployment compensation, but the department's

42

43
Employment Appeals Board ultimately denied their applications on the ground that the counselors had been discharged for misconduct connected with work. The state court of appeals reversed, holding that the denials violated counselors‟ First Amendment free exercise rights. The Oregon supreme court affirmed, but on certiorari, the Supreme Court vacated the judgment and remanded for a determination whether sacramental peyote use is proscribed by the State's controlled substance law, which makes it a felony to knowingly or intentionally possess the drug. Pending that determination, the Supreme Court refused to decide whether such use is protected by the Constitution. On remand, the State Supreme Court held that sacramental peyote use violated, and was not excepted from, the state-law prohibition, but concluded that that prohibition was invalid under the Free Exercise Clause. Holding; The Supreme Court reversed, holding that (i) the free exercise of religion clause permits a state to include religiously inspired use of peyote within the reach of the state's general criminal prohibition on use of that drug, where there is no contention that the state's drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one's children in those beliefs; (ii) the free exercise of religion clause thus permitted Oregon to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use; and (iii) generally applicable, religion-neutral criminal laws that have the effect of burdening a particular religious practice need not be justified, under the free exercise of religion clause, by a compelling governmental interest. Reasoning: Conscientious scruples do not, in the course of the long struggle for religious toleration, relieve the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions, which contradict the relevant concerns of a political society, does not relieve the citizen from the discharge of political responsibilities. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Moreover, the Court reasoned that the Sherbert Test is inapplicable to challenges to an across-the-board criminal prohibition on a particular form of conduct. The government's ability to enforce generally applicable prohibitions of socially harmful conduct cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the state's interest is “compelling” – permitting him, by virtue of his beliefs, to become a law unto himself – contradicts both constitutional tradition and common sense. Dissent: Blackmun, J., joined by Brennan and Marshall, JJ., dissenting, expressed the view that (1) a state statute that burdens the free exercise of religion may stand only if the law in general, and the state's refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means, (2) Oregon's interest in refusing to make an exception for the religious use of peyote was not sufficiently compelling to outweigh the counselors' right to the free exercise of their religion, and therefore (3) Oregon could not, consistent with the free exercise of religion clause, deny the counselors unemployment benefits.  The Religious Freedom Restoration Act  In response to the Supreme Court‟s decision in Employment Division v. Smith, Congress overwhelmingly passed the Religious Freedom Restoration Act (RFRA) in 1993. The Act expressly stated that its goal was to overturn Smith and restore the test that was followed before the decision. The Act required courts considering free exercise challenges, including to neutral laws of general applicability, to uphold the government‟s actions only if they are necessary to achieves a compelling purpose. Specifically, the RFRA prohibited “government” from “substantially burdening” a person‟s exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden “(i) is in furtherance of a compelling governmental interest and (ii) is the least restrict means of furthering that compelling governmental interest.” City of Boerne v. Flores Facts: The Catholic Archbishop of San Antonio, applied for a building permit to enlarge a church in Boerne, Texas. When local zoning authorities denied the permit, relying on an ordinance governing historic preservation in a district, which they argued, included the church, the Archbishop brought a suit challenging the permit denial under, inter alia, the Religious Freedom Restoration Act of 1993.

43

44
Holding: The Supreme Court held that while Congress was afforded broad powers under § 5 of the Fourteenth Amendment, the state laws to which RFRA applied were not ones motivated by religious bigotry and, thus, the RFRA was not considered remedial or preventative legislation. The Court determined that the RFRA appeared to be an attempt to invoke substantive change in constitutional protections. The RFRA was unconstitutional because it allowed considerable Congressional intrusion into the states' general authority to regulate for the health and welfare of their citizens. Reasoning: Justice Kennedy, writing for the Court, reasoned, “Congress' power under § 5 of the Fourteenth Amendment extends only to "enforcing" the provisions of the Fourteenth Amendment. This power is remedial. Congress does not have the power to decree the substance of the Fourteenth Amendment's restrictions on the states. Legislation, which alters the meaning of the Free Exercise Clause, cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power to enforce, not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the „provisions of the Fourteenth Amendment‟.” Congress is thus limited to enacting laws that prevent or remedy violations of rights already recognized by the Supreme Court. Moreover, Justice Kennedy stated, “there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Justice Kennedy defended the Court‟s conclusion by invoking the need to preserve the Court as the authoritative interpreter of the Constitution, quoting Marbury v. Madison, “If Congress could define its own powers by altering the Fourteenth Amendment‟s meaning, no longer would the Constitution be „superior paramount law unchangeable by ordinary means.‟ It would be „on the level with ordinary legislative acts, and like other acts…alterable when the legislature shall please to alter it‟.”  Justice Kennedy declared that the RFRA was unconstitutional on the grounds that it impermissibly expanded the scope of rights and that it was not proportionate or congruent as a preventative or remedial measure. The Act prohibited much that would not violate the Constitution and thus was deemed to exceed the scope of Congress‟ § 5 powers. Dissent: O'Connor, J., joined by Breyer, J., dissenting, expressed the view that (1) the Supreme Court's analysis in the case at hand, as to whether the RFRA was a proper exercise of Congress' enforcement power under 5 of the Fourteenth Amendment, was premised on the assumption that Employment Div. v Smith had correctly interpreted the First Amendment's free exercise clause; (2) because – in light of factors including the historical evidence – Employment Div. v Smith had been wrongly decided, the Supreme Court should have (a) directed the parties to brief the question whether Employment Div. v Smith represented the correct understanding of the free exercise clause, and (b) set the case at hand for re-argument; and (3) if she agreed with the standard in Employment Div. v Smith, then she would have joined the court's opinion in the case at hand. THE FEDERAL EXECUTIVE POWER A. Express and Inherent Executive Power  Is There Inherent Executive Power?  Article II, § 1, of the Constitution, begins, “The executive Power shall be vested in a President of the United States of America.” The section then proceeds to enumerate specific powers.  Alexander Hamilton argued that the difference in the wording of Articles I and II reveals the framers‟ intention to create inherent presidential powers. Article I initially states, “All legislative Powers herein granted shall be vested in a Congress of the United States.” Since Article II does not limit the president to powers “herein granted,” it is argued that the president has authority not specifically delineated in the Constitution.  James Madison, in contrast, disputed this interpretation of Article II, contending that the opening language of Article II was “simply to settle the question whether the executive branch should be plural or single and to give the executive a title.” According to Madison, the president has no powers that are not enumerated in Article II and, indeed, such unenumerated authority would be inconsistent with a Constitution creating a government of limited authority. Youngstown Sheet & Tube Co v. Sawyer Facts: On the eve of a nationwide strike in the steel industry, the President issued an executive order directing the Secretary of Commerce to take possession of and operate most of the steel mills

44

45
throughout the country and to promulgate additional rules and regulations consistent with the policy proclaimed and needed to effectuate this policy. The order was not based upon any statutory authority. It contained a finding that the President's action was necessary to avoid a national catastrophe, since a work stoppage would immediately imperil the national defense at a time when American armed forces were fighting in Korea. The President immediately informed Congress of his action and stated his intention to abide by the legislative will. The steel companies obeyed the orders but brought proceedings against the government, charging that the seizure was not authorized by an act of Congress or by any constitutional provision. The district court issued a preliminary injunction, which the District of Columbia Circuit stayed. Holding: The Supreme Court held that the presidential power exerted could not be sustained as an exercise of the President's military power nor under the several constitutional provisions that granted executive power. The seizure could not stand because Congress had the exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution. Accordingly, the district court's injunction was affirmed. Reasoning: Black, J., writing the opinion for the Court, took the first approach that the president has no inherent power and reasoned, “the President's power, if any, to issue an order must stem either from an act of Congress or from the Constitution itself. In this case, there was no statute that expressly authorizes the President to take possession of property, nor was there any act of Congress from which such a power can fairly be implied.” The President, as Commander in Chief of the armed forces, has no ultimate power to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nation's lawmakers, not for its military authorities. Concurrence: Douglas, J., took the second approach that allows the president to act without express authority or constitutional authority so long as the president is not usurping the powers of another branch of government or keeping another branch from performing its duties. Justice Douglas argued that the seizure was unconstitutional because the president was forcing the expenditure of federal funds to compensate the steel mill owners for the taking of their property. Justice Douglas contended that the president was therefore impermissibly usurping Congress‟ spending power. “The President might seize and the Congress by subsequent action might ratify the seizure. 1 But until and unless Congress acted, no condemnation would be lawful. The branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that the President has effected. That seems to me to be the necessary result of the condemnation provision in the Fifth Amendment.” Concurrence: Frankfurter, J., took the third approach that the president may take any action not prohibited by the Constitution or a statute. Justice Frankfurter argued that Congress had explicitly rejected giving the president the authority to seize industries and that this was a clear decision to preclude such an action. “It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on „executive Power‟ vested in the President by § 1 of Art. II.” Concurrence: Jackson, J., concurred, finding that the president‟s action unconstitutional because Congress had denied the president the authority to seize industries. A seizure by the President, under his own independent powers, of the plants of steel companies to avert a national catastrophe resulting from a threatened strike and the attendant stoppage of steel production, cannot be defended on the theory that congressional inertia, indifference, or quiescence may sometimes enable, if not invite, measures on independent presidential responsibility, where Congress has covered the field by statutory policies inconsistent with the seizure as ordered by the President, and none of the statutory policies were invoked by him. The Federal Constitution, which, aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, makes no express provision for exercise of extraordinary presidential authority because of a crisis, cannot be amended by the courts so as to confer upon the President inherent powers to meet an emergency. He then delineated three zones:  JACKSON ONE. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held

45

46
unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation; the burden of persuasion would rest heavily upon any who might attack it.  JACKSON TWO. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than abstract theories of law.  JACKSON THREE. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. B. Congressional Expansion of Executive Power  Can Congress Expand of Executive Power?  To what extent may Congress, by statute, increase the presidential powers beyond what is enumerated in the Constitution? Clinton v. City of New York Facts: The Line Item Veto Act gave the President authority to cancel certain spending and tax benefit measures after the President had signed such measures into law, contained an expedited-review provision, which authorized any individual “adversely affected” by the Act to bring a declaratory judgment action alleging that any provision of the Act violated the Constitution. After the President exercised his authority under the Act to cancel certain measures, actions seeking a declaratory judgment were brought by several parties including the City of New York. The district court held that the Act violated the Constitution's presentment clause and the doctrine of separation of powers. Holding: The Supreme Court affirmed that the Act was unconstitutional, holding that constitutional silence on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes is equivalent to an express prohibition. Thus, cancellations pursuant to the Act had no legal force or effect and failed to satisfy the procedures set out in Article I, § 7. The cancellation procedures set forth in the Act violated the presentment clause, where if the Act were valid, it would authorize the President to create a statute whose text was not voted on by either House of Congress or presented to the President for signature. Reasoning: Justice Stevens explained that the president, by exercising the line-item veto, was changing a law adopted by Congress; the final version of the law being different after the veto than what Congress had passed. Justice Stevens concluded that the Constitution does not allow such presidential authority. The Court emphasized that the procedures for enacting and vetoing laws contained in the Constitution must be strictly adhered to and that any changes must come from a constitutional amendment, not legislative action. C. Executive Power in Foreign Policy  Executive Power in Foreign Policy  To what extent does the president inherently have greater powers in the area of foreign policy compared with domestic affairs?  Although the Constitution does not mention executive agreements, it is well established that such agreements are constitutional. Indeed, executive agreements can be used for any purpose; that is, anything that can be done by treaty can be done by executive agreement [treaty → need senate approval; executive agreement → no approval].

46

47
Dames & Moore v. Regan Facts: Shortly before leaving office in 1981, President Carter negotiated an agreement with Iran whereby that country would free American hostages behind held in Tehran in exchange for the United States lifting a freeze on Iranian assets in the United States [assets were frozen after the U.S. embassy was taken over]. The executive agreement lifted the freeze and also provided an end to all suits pending against Iran in the United States courts. Such claims would be resolved instead in a new Iran-United States Claims Tribunal. The executive agreement was challenged by Dames & Moore, which had filed a lawsuit in federal court against Iran for a breach of contract of almost $3.5 million. Holding: The Supreme Court, in an opinion by Justice Rehnquist, rejected the constitutional challenge to the executive agreement, emphasizing that a series of federal statutes authorized the president‟s actions. Quoting Justice Jackon‟s dissent in Youngstown Steel, Justice Rehnquist said, “because the President's action in nullifying the attachments and ordering the transfer of assets was taken pursuant to specific congressional authorization, it is "supported by the strongest presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.” Reasoning: The constitutional power of the President extends to the settlement of mutual claims between a foreign government and the United States, at least when it is an incident to the recognition of that government; and it would be unreasonable to circumscribe it to such controversies. The continued mutual amity between the nation and other powers again and again depends upon a satisfactory compromise of mutual claims; the necessary power to make such compromises has existed from the earliest times and been exercised by the foreign offices of all civilized nations.  Prof. Brown suggests that so long as the president is not violating another constitutional provision or a federal statute, there seems to be little basis for challenging the constitutionality of an executive agreement [actually on par with Chemerinsky]. United States v. Curtiss-Wright Corp. Facts: A joint resolution of Congress authorized the President to declare the sale of arms to certain countries illegal. Though the President initially issued a proclamation that declared that sales to Bolivia were unlawful, the President later revoked his proclamation. Defendants allegedly sold arms to Bolivia before the revocation of the proclamation, and objected to the legal sufficiency of the charges against them on the ground that the revocation of the proclamation precluded their prosecution. Holding: The Supreme Court reversed the defendant‟s demurrer, remanded the case and held that (i) the President had broad discretion to determine the benefit of enforcing a joint resolution on international relations, (ii) the power to make decisions regarding international affairs was vested in the President, especially in areas that could lead to embarrassment of or security issues for the nation, (iii) defendants' argument that the power to declare certain arms sales illegal was invalidly delegated to the President was unjustified and (iv) the revocation of the proclamation did not change defendants' violation of the joint resolution; the revocation only stopped the joint resolution from being enforced against sales to Bolivia in the future. Reasoning: The Court spoke generally of a fundamental difference between domestic affairs and foreign policy. “The two classes of powers are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.” Justice Sutherland explained that authority over domestic affairs was possessed by the states before the ratification of the Constitution and that they, by approving the Constitution, bestowed power on the national government. As to foreign policy, however, the power is inherently in the national government by virtue of it being sovereign. Justice Sutherland further noted that the realities of conducting foreign policy require that the president possess much greater inherent powers than in the realm of domestic affairs. The Court explained, “in this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, „The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations‟.”

47

48
D. Executive Privilege  The Need for Executive Privilege  Although the Constitution does not mention such authority, executive privilege is seen as necessary in order for presidents to receive candid advice. United States v. Nixon Facts: A grand jury indicted named individuals, charging them with various offenses, including conspiracy to defraud the United States and to obstruct justice. The grand jury also named the President Nixon as an unindicted coconspirator. At the instance of the duly appointed special prosecutor, the district court issued a third-party subpoena duces tecum, directing the President to produce, for use at the pending criminal trial, certain tape recordings and documents relating to his conversations with aides and advisors. The President moved to quash this subpoena on the ground that the subpoenaed materials were within his executive privilege against disclosure of confidential communications. The district court denied the motion and the President appealed. Holding: The Supreme Court affirmed the district court‟s judgment, holding that the mere generalized claim of executive privilege, as distinguished from a specific assertion of such privilege against disclosure of diplomatic or military secrets, cannot prevail over the due process demands for disclosure of all the relevant evidence in a criminal trial. Reasoning: Chief Justice Berger, writing the opinion for a unanimous Court, explained the Court‟s decision on several grounds. The Court began by rejecting the president‟s contention that the case posed a nonjusticiable political questions because it was an intra-branch dispute and that the president alone had authority to control prosecutions. The Court reasoned that the president had the authority to delegate this power and that he had done so, through the actions of the attorney general, in creating the office of the special prosecutor. The Court then turned its attention to the issue of executive privilege. First, the Court held that it is the role of the Court to decide whether the president has executive privilege, and if so, its scope. Second, the Court recognized the existence of executive privilege, “whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.” Third, the Court held that executive privilege is not absolute, but rather must yield when there are important countervailing interests, that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” More specifically, the Court said, “the impediment that an absolute, unqualified presidential privilege against disclosure of official communications would place in the way of the judicial branch of the government to do justice in criminal cases would plainly conflict with the function of the courts under Art III of the Federal Constitution; to read its Article II, which states the powers of the President, as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and non-diplomatic discussions would upset the constitutional balance of a workable government and gravely impair the role of the courts under Article III of the Constitution.” E. The Executive Appointment Power  Article II, § 2, of the Constitution – Appointment & Removal Power  Provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, to the Courts of Law, or in the Heads of Departments.” Morrison v. Olson Facts: Congress adopted the Ethics in Government Act of 1978; Title VI of which allowed for the appointment of an “independent counsel” to investigate and prosecute wrongdoing by high-level

48

49
federal government officials. If the attorney general determined that further investigation or prosecution was warranted, a panel of federal judges would appoint “an independent counsel” and would “define that independent counsel‟s prosecutorial jurisdiction.” Parties served with subpoenas by an independent counsel challenged the constitutionality of the Act under which the independent counsel served the subpoenas. Holding: The Supreme Court upheld the constitutionality of the Act, rejecting the parties‟ arguments. Reasoning: The Court held that (1) the Act's Independent Counsel provisions did not violate the appointments clause, since (a) Independent Counsels are not principal officers, who must be appointed by the President with the advice and consent of the Senate, and (b) Congress may, consistent with the appointments clause, authorize inter-branch appointments, in which an officer of one branch is appointed by officers of another branch; (2) the Act's Independent Counsel provisions did not violate Article III of the Constitution, under which executive or administrative duties of a non-judicial nature may not be imposed on Article III judges, since (a) the appointments clause constitutes a source of authority independent of Article III for judicial appointment of Independent Counsels, (b) neither the Special Division's exercise of various miscellaneous powers under the Act nor the Special Division's power under the Act to terminate the office of an Independent Counsel constitutes an impermissible judicial intrusion upon the authority of the executive branch, and (c) the Special Division's exercise of the various powers granted to it under the Act does not pose any threat to the impartial and independent federal adjudication of claims within the judicial power of the United States; and (3) the Act's Independent Counsel provisions did not impermissibly interfere with the President's authority under Article II of the Constitution in violation of the principle of separation of powers, since (a) the provision of the Act restricting the Attorney General's power to remove an Independent Counsel to instances in which good cause can be shown does not, taken by itself, impermissibly interfere with the President's exercise of his constitutionally appointed functions, and (b) taken as a whole, the Act's Independent Counsel provisions do not violate the principle of separation of powers by unduly interfering with the role of the executive branch.  The majority held, “although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.” Dissent: Scalia, J., writing a lone dissent, argued that (1) the Act's Independent Counsel provisions violate the principle of separation of powers, since (a) although Art II, § 1, of the Constitution requires that all purely executive power must be under the control of the President, an Independent Counsel exercises purely executive functions outside the President's full supervision and control, and (b) the Act weakens the Presidency by removing from the control of the executive branch the investigation of and decision whether to prosecute the President or a particular named individual in his administration, and by enfeebling the President through the erosion of his public support caused by adverse publicity associated with the actions of Independent Counsels; (2) since an Independent Counsel is not subordinate to another officer, an Independent Counsel is not an inferior officer and therefore, under the appointments clause, must be appointed by the President with the advice and consent of the Senate; (3) it follows from the constitutional requirement that the President have control over all exercises of the executive power that the President must have plenary power to remove principal officers, such as an Independent Counsel, and (4) the Act treats unfairly those who are subject to investigation and prosecution under its Independent Counsel provisions, since (a) if, under those provisions, crimes are not investigated and prosecuted fairly, there is no one accountable to the public to whom the blame can be assigned, and (b) the Act cuts off an Independent Counsel from the unifying influence of the Justice Department and from the perspective that multiple responsibilities provide.  Justice Scalia emphasized that the power to prosecute is a “quintessentially executive activity” and that it usurps presidential power for Congress to vest this authority in the independent counsel. Just Scalia said, “it effects a revolution in our constitutional jurisprudence” to allow the independent counsel once it has been determined that “(i) purely executive functions are at issue here and (ii) those functions have been given to a person whose actions are not fully within the supervision and control of the president.”

49

50
CONSTITUTIONAL DEMOCRACY AND THE WAR ON TERROR A. Executive War Powers  The Absence of Case Law Concerning War Powers  First, the Supreme Court has rarely spoken as to the constitutionality of the president using troops in a war or war-like circumstances without congressional approval.  Second, challenges to the president‟s use of troops in a foreign county are likely to be dismissed on political question grounds. The Supreme Court has often generally remarked that challenges to the conduct of foreign policy present a nonjusticiable political question.  Third, it is unresolved as to what constitutes a declaration of war sufficient to fulfill the requirements of Article I of the Constitution.  Fourth, it is unclear whether and how Congress can put other limits on the president‟s use of troops in foreign countries. This issue usually arises most notably as to whether the War Powers Resolution is constitutional. Hamdi v. Rumsfeld Facts: Hamdi is an American citizen who was apprehended in Afghanistan and brought to Guantanamo Bay. Upon discovering that he was citizen, he was transferred to a military prison in South Carolina, but was never charged with any crime and held only because he was classified as an “enemy combatant.” His father submitted a writ of habeas corpus, to which the Fourth Circuit on appeal denied, agreeing with the government that an American citizen apprehended in a foreign country and held as an enemy combatant, is not entitled to any form of due process or judicial review to challenge his enemy-combatant status. On appeal to the Supreme Court, the two issues presented were (i) does the federal government have the authority to hold an American citizen apprehended in a foreign country as an enemy combatant and (ii) what, if any, due process must be accorded. Holding: The Supreme Court vacated and remanded. Although the Justices were unable to agree on an opinion, it was held, by two different majorities of Justices, that (i) the AUMF provided the Federal Government's executive branch with some authority to detain United States citizens as enemy combatants; but (ii) the detained individual in question had the right to a hearing which would afford him, at least, an opportunity to present evidence that he was not an enemy combatant. Reasoning: As to the first issue, and Hamdi‟s contention that his detention violated the NonDetention Act, which states in relevant part, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” the Court stated that Congress had authorized detentions in such limited circumstances by its enactment of the AUMF and that the NonDetention Act thus did not prohibit the detention. As to the second issue, what, if any, due process is Hamdi entitled to, the Court held that the detainee was entitled to due process of law in the procedures that determined his classification as an enemy combatant, that the test for whether due process had been provided was that articulated in Mathews v. Eldridge [interest of individual v. risk of erroneous deprivation v. government‟s interest] and that the detainee was thus entitled to receive notice of the factual basis for his classification and a fair opportunity to rebut the Government's factual assertions before a neutral decision maker. The plurality stated that the separation of powers doctrine did not require that the courts forgo examination of a detainee's individual case and look merely at the propriety of the overall detention scheme, or that they apply a deferential “some evidence” standard in evaluating the validity of a detainee's classification as an enemy combatant.  Justice Souter seemingly joined the plurality, even though he vehemently disagreed in it‟s reasoning, to at least give Hamdi some element of due process rather than none at all. Concurrence: Souter, J., concurring in part, dissenting in part, and joined by Ginsburg, J., expressed an agreement with the plurality to the extent that they rejected the Sec. of Defense‟s attempt to limit the extent of judicial inquiry into a detainee's alleged enemy combatant status in a habeas corpus proceeding, but disagreed with the plurality's conclusion that if the detainee's designation as an enemy combatant was correct, his detention was authorized by the AUMF and escaped the prohibition of the Non-Detention Act against the imprisonment or detention of a citizen of the United States in the absence of authorization by an act of Congress. The opinion commented that the Government had failed to show that its detention of the detainee was being carried out in accord with the law of war so as to entitle it to claim that its actions were authorized by the AUMF. Dissent: Scalia, J., in which Stevens, J., joined wrote a dissent, commenting that where the Government accused a citizen of waging war against it, the American constitutional tradition had

50

51
been to prosecute the citizen in federal court for treason or some other crime, that where the exigencies of war prevented that, the Suspension Clause, U.S. Const. art. I, § 9, cl. 2, allowed Congress to relax the usual protections temporarily, and that absent suspension, the Executive branch's assertion of military exigency had not been thought sufficient to permit detention without charge. According to Justice Scalia, if habeas corpus were suspended, the Court would not hear a case challenging the suspension because the suspension power is expressly granted to Congress and thus it would pose a political question. Dissent: Thomas, J., dissenting, stated that the Executive branch, pursuant to powers vested in the President by the Constitution and with explicit congressional approval, had determined that petitioner detainee was an enemy combatant who should be detained. It concluded that the detention fell squarely within the federal government's war powers, that the Court lacked the expertise and capacity to second-guess the decision, and that the habeas corpus challenge to the decision should thus fail and the judgment of the court of appeals should be affirmed. Korematsu v. United States Facts: An American citizen of Japanese descent, was convicted for remaining a “Military Area” in California, contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Ninth Circuit affirmed petitioner‟s conviction. Holding: The Supreme Court held that in light of the precedent in Hirabayashi v. United States, it was unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did in this case. Reasoning: The Court noted that while exclusion from the area in which one's home was located was a far greater deprivation than nighttime curfew, as in Hirabayashi, nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety could have constitutionally justified either. The exclusion from the threatened area had a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending the shores of America, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in the Hirabayashi, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas. Concurrence: Frankfurter, J., in concurrence, stated that according to his reading of Civilian Exclusion Order No. 34, it was an offense for petitioner, an American of Japanese descent, to be found in Military Area No. 1, where he was living, except within the bounds of the established Assembly Center of that area. Even though the various orders issued were deemed a comprehensive code of instructions, their tenor was clear and not contradictory. They put upon petitioner the obligation to leave the area, but only by the method prescribed in the instructions, i.e., by reporting to the Assembly Center. Justice Frankfurter then wrote that he was unable to see how the legal considerations that led to the decision in Hirabayashi, failed to sustain the military order that made the conduct in controversy a crime. Dissent: Roberts, J., joined by Murphy and Jackson, JJ., dissenting, stated that the indisputable facts exhibited a clear violation of Constitutional rights. It argued that this was not a case of keeping people off the streets at night as was Hirabayashi, nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it was a case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Dissent: Murphy, J., dissenting, asserted that the exclusion of "all persons of Japanese ancestry, both alien and nonalien," from the Pacific Coast area on a plea of military necessity in the absence of martial law should not have been approved by the majority. Such exclusion went over the very brink of constitutional power and fell into the “ugly abyss of racism.” Dissent: Jackson, J., dissenting, contended that because petitioner was born in the U.S., because no claim was made that he was not loyal to his country, and because there was no suggestion that apart from the matter involved here he was not law-abiding and well disposed, he should not have been

51

52
convicted of an act that was not commonly a crime. It consisted merely of being present in the state whereof he was a citizen, near the place where he was born, and where all his life he had lived. Johnson v. Eisentrager Facts: 21 German nationals were convicted by a United States Military Commission of violating laws of war, by engaging in, permitting or ordering continued military activity against the United States in Japan after surrender of Germany but before surrender of Japan. The nationals were repatriated to Germany to serve their sentences. They then petitioned for habeas corpus contending that their trial, conviction, and imprisonment violated the Fifth Amendment and Articles I and III of the Constitution. The court of appeals held that any person, including an enemy alien deprived of his liberty anywhere under any purported authority of the United States, was entitled to the writ if he could show that extension to his case of any constitutional rights or limitations would show his imprisonment illegal. Holding: The Supreme Court disagreed and held that the Constitution did not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States. The Court further found that the petition failed to allege any fact showing lack of jurisdiction in the respondents to accuse, try and condemn petitioners or that respondents acted in excess of their lawful powers. Rasul v. Bush Facts: A petition for habeas corpus was filed on behalf of several foreign national detainees, imprisoned at Guantanamo Bay. The detainees invoked jurisdiction under an alien tort statute (28 U.S.C. § 1350), under the habeas corpus statutes (28 U.S.C. §§ 2241 to 2243), and a provision that authorized the entertainment of habeas corpus petitions by district courts if a person claimed that he was held in violation of the law, treaties, or Constitution of the United States. The government moved to dismiss contending that the federal courts lacked authority to hear habeas corpus petitions by those being held in Guantanamo. The D.C. Circuit affirmed the dismissal for lack of jurisdiction and ruled that no court in the country could hear the petitions brought by the Guantanamo detainees. Holding: The Supreme Court reversed and remanded, holding that the district court had jurisdiction under 28 U.S.C. § 2241 to review the legality of the plaintiffs' detention. Reasoning: The Court, in an opinion by Justice Stevens, reasoned that (i) the plaintiffs were not nationals of countries at war with the United States; (ii) a presumption against the extraterritorial application of congressional legislation had no application to the operation of § 2241 with respect to persons detained within the territorial jurisdiction of the United States; (iii) there was little reason to think that Congress intended the geographical coverage of § 2241 to vary depending on the detainee's citizenship, given that § 2241 (a) would have created federal-court jurisdiction over the claims of a United States citizen held at the Guantanamo base, and (b) drew no distinction between United States citizens and aliens held in federal custody; (iv) Application of § 2241 to persons detained at the base was consistent with the historical reach of the writ of habeas corpus; and (v) no party questioned the district court's jurisdiction over the plaintiffs' custodians [jailers].  A writ of habeas acts upon the person holding the prisoner, not the prisoner himself, so that the court acts "within [its] respective jurisdiction" if the custodian can be reached by service of process.  The detainees were entitled to petition for habeas corpus under the habeas statute (§ 2241) because the language of the statute is more focused on the location and status of the jailer rather than the particular situation of the petitioner. Concurrence: Kennedy, J., concurring in the judgment, expressed the view that (1) federal courts had jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo base, in light of (a) the base's status as a United States territory in every practical respect and as a territory far removed from any hostilities, and (b) the indefinite pretrial detention of the detainees; and (2) although there were circumstances in which the courts maintained the power and the responsibility to protect persons from unlawful detention even where military affairs were implicated, there was a realm of political authority over military affairs where the judicial power could not enter. Dissent: Scalia, J., joined by Rehnquist, Ch. J., and Thomas, J., dissenting, expressed the view that (1) the majority opinion's holding contradicted a half-century-old Supreme Court precedent on which the military had undoubtedly relied, and (2) the President of the United States--as Commander in Chief--

52

53
and his subordinates had had every reason to expect that the internment of combatants at the Guantanamo base would not have the consequence of bringing the cumbersome machinery of United States domestic courts into military affairs. Justice Scalia also suggests that by allowing the statutory habeas petition, it opened up the possibility a wide variety of tort suits to be filed.  Executive Power to Establish Military Tribunals  In Ex parte Milligan, the Court held that the detention of a citizen of the United States by the military was not permitted in the absence of express authorization by Congress. The Court stated that the prisoner's rights were infringed upon by a military commission because the military commission did not have jurisdiction to try and sentence him. Thus, the proper remedy was to issue his writ of habeas corpus and release him from prison.  There, the Court started with an Article III analysis.  In Ex parte Quirin, the Court held that the Executive may detain as enemy combatants citizens of the United States seized during hostilities in which U.S. forces were involved. The Court held that the President had the authority under the Constitution to try petitioners for war crimes before a military tribunal, instead of a civil proceeding, since petitioners were accused of being unlawful belligerents under the Articles of War.  There, the Court started with an Article I/II analysis. Hamdan v. Rumsfeld Facts: In 2001, militia forces captured Hamdan, a Yemeni national, and turned him over to the U.S. military, which, in 2002, transported him to prison in Guantanamo Bay. Over a year later, the President deemed Hamdan eligible for trial by military commission for then-unspecified crimes. After another year, he was charged with conspiracy “to commit . . . offenses triable by military commission.” In habeas and mandamus petitions, Hamdan asserted that the military commission lacks authority to try him because (i) neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (ii) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him. The district court granted the detainee's habeas corpus petition. However, the D.C. Circuit held that the accused was not entitled to relief under (a) the Uniform Code of Military Justice (UCMJ) or (b) the four Geneva Conventions (including the Third Geneva Convention, concerning prisoners of war), and (3) reversed the district court's judgment. Holding: The Supreme Court reversed and remanded, holding (1) The writ of certiorari in the instant case would not be dismissed on the Federal Government's asserted ground of the Detainee Treatment Act of 2005 (DTA), where (a) a DTA provision generally deprived any court, justice, or judge of jurisdiction to consider a habeas corpus application filed by or on behalf of an alien detained at Guantanamo Bay; but (b) the DTA was silent about whether this provision applied to claims pending on the date of enactment; and (c) ordinary principles of statutory construction sufficed to rebut the government's theory as to the instant case, which was pending when the DTA was enacted.; and (2) the military commission convened to try the detainee lacked power to proceed, as the commission's structure and procedures violated (a) the UCMJ, for the commission's procedures failed to comply with UCMJ Article 36(b), which required that the procedural rules that the President promulgated for military commissions and courts-martial be "uniform insofar as practicable"; and (b) the Geneva Conventions, for (i) the conventions' Common Article 3 (so called because it appeared in all four conventions), required that the detainee be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," and (ii) the commission's procedures did not meet this standard.  Stevens, J., joined by Souter, Ginsburg, and Breyer, JJ., expressed the view that the military commission in question did not comply with the common law governing military commissions.  Breyer, J., joined by Kennedy, Souter, and Ginsburg, JJ., concurring, expressed the view that (1) Congress had denied the President the legislative authority to create military commissions of the kind at issue in the instant case; but (2) nothing prevented the President from returning to Congress to seek the authority that the President believed to be necessary. Concurrence: Kennedy, J., expressed the view that (1) military commissions carried the risk that offenses would be defined, prosecuted, and adjudicated by executive officials without independent

53

54
review; (2) such concentration of power put personal liberty in peril of arbitrary action that the Federal Constitution's three-part system was designed to avoid; and (3) the accused's circumstances presented no exigency requiring special speed or precluding careful consideration of evidence, as (a) for roughly 4 years, the accused had been detained by the United States, and (b) regardless of the outcome of the criminal proceedings at issue, the government claimed authority to continue to detain him on the basis of his status as an enemy combatant. Dissent: Scalia, J., dissenting, expressed the view that (1) the Supreme Court's DTA conclusion in the instant case--that every court, justice, or judge before whom a habeas corpus application by a Guantanamo Bay detainee was pending on December 30, 2005 (the date of the DTA's enactment) had jurisdiction to hear, consider, and render judgment on the application--was (a) contrary to the DTA's plain directive, and (b) patently erroneous; and (2) even if this were not so, the jurisdiction supposedly retained, in an exercise of sound equitable discretion, ought not to be exercised.  Prof. Brown says that Justice Scalia is arguing that the Court should not be doing this because it is effectively telling the President how to conduct a war. Dissent: Thomas, J., dissenting, expressed the view that (1) the Supreme Court's opinion in the instant case openly flouted the courts' well-established duty to respect the executive branch's judgment in matters of military operations and foreign affairs; and (2) the Supreme Court's evident belief that it was qualified to pass on the purported military necessity of the Commander in Chief's decision to employ a particular form of force against the nation's enemies was antithetical to the nation's constitutional structure.  Prof. Brown says that Justice Thomas got it wrong when he said it was a military issue. This is a judicial issue – it‟s a matter of procedure of how you try people! That‟s what courts do! Courts should not be reluctant to review actions taken by the executive with regard to the military function because courts do have preeminent expertise on judicial matters. Dissent: Alito, J., dissenting, expressed the view that (1) under the Geneva Conventions' Common Article 3, "a regularly constituted court" was a court that had been appointed, set up, or established in accordance with the domestic law of the appointing country; (2) the Supreme Court's contrasting interpretation in the instant case was not based on sound grounds; and (3) all three elements of Common Article 3 – (a) a court, (b) that was appointed, set up, and established in compliance with domestic law, and (c) that respected universally recognized fundamental rights – were satisfied in the instant case.

54