CON LAW FED/STATE Read Page 1-37 People are sovereign, governments are not. Federalism: Power to state and feds over appropriate subjects. There are periodic times when states try and recover their power that has been slowly usurped by the feds. PUPULAR SOVERNITY FEDERALISM History shows that power vested in one person is used for personal gain and not public good. SEPERATION OF POWERS Late term abortions Article 1: Congress has the power to make laws. Followed by 18 items. Says nothing about medical care or moral issues. Historically this was the realm of the states. Strong argument congress does not have power to regulate this. Contrary argument: Article 1 doesn’t say Congress can’t pass a law like this. However, can regulate commerce between the states and if people are moving between states it can be regulated. CONSTITUTION SEPERATION OF POWERS Article 1: Legislative Power (1) Vested in Congress (2) Senate is a mediating influence on Congress (which is by population) (3) Legislators legistlate broadly and prospectively Article 2: Executive Power (1) Vested in President (2) Powers: a. Commander in Chief b. Execute the laws passed by Congress (and will prioritize) (3) President elected via electoral college a. Tied into the abolishment of slavery because slaves were 3/5 of a person for calculating the electoral votes of a state. b. Electoral College is a mediating influence much like senate. (4) D Article 3: Judicial Power (1) Vested in the Supreme Court and their inferior courts created by congress. (2) Must have two parties in a litigious case come to them (3) Apply law to facts of case to determine the scope of the laws. NO SEPERATION OF POWERS CLAUSE – But judiciary has implied it in the structure of the constitution. However there are checks and balances: (1) Legislature can impeach judges and executives (2) Legislature controls the flow of money so can cut funding (3) Courts can strike down acts of the president or congress as unconstitutional (4) President can veto a bill from congress Article 4: Full Faith and Credit must be given from state to state when one state passes a law another must respect it, except (1) Supreme Court has ruled on issues of very important state policy such as moral issues. (2) I.e Hawaii legalizes gay marriage. Article 5: 2/3 of both houses of federal legislature (or application of the individual legislatures of each state) to propose a change to constitution, ¾ of state’s legislatures must ratify. Article 6: Makes every state and federal government officer take an oath to support the Constitution. Congress has asserted power over many things that it was not originally intended to have. If supreme court goes along not much can be done. Article 7: Says 9 of 13 states to modify the constitution. 10th Amendment: The powers not delegated to the US by the Constitution , nor prohibited by it to the States are reserved to the states or the people. 14th Amendment: Section 5 is most important for this class. Equal Protections of Laws. Power to enforce provisions of the constitution. People are sovereign and they delegate their power to governments. Read Bank of US and McCullaugh v. Maryland 1st Question and Madison’s view of Constitution. INTERPRETING THE CONSTITUTION (Bank of US part of book): (1) One view is to look to the intent of the founding fathers. a. Problems arise when the founding fathers were at odds. b. Problem in knowing what each founding father thought as the convention was kept secret with no public records. c. Rule: cannot destroy the founding principles of the document. d. Rule: If the constitutional provision is clear you enforce it. If it is not clear, consider the practical applications. i. i.e. Constitutional Provisions can be suspended if the entire constitution is at risk. e. Most people today reject there is linguistic formalism, i.e. words have a plain meaning in favor of interpretation of words in context. (2) Legal Interpretation: Court always contemplates the results of an interpretation. If it will have absurd results then will not interpret it in that manner. (3) Madison’s Rules of Constitutional Interpretation (4) Bank of US: a. Madison /Jefferson vs. Hamilton i. Madison argues that US government was not given general powers rather was given listed ‘enumerated powers’. Therefore since Bank of US is not enumerated cannot charter. He does not rest his case on the necessary and proper clause. b. Express vs. Implied Powers i. Madison says implied powers should be very narrowly construed. i.e it says congress has power to charter postal service, does not say hire contractors to build post offices, but that can be implied. A bank would not be left to implication because it is an important power. ii. Today congress has all mighty powers. Has made growing and smoking marijuana a federal crime even though no interstate commerce. iii. Madison and Jefferson eventually moved to accepting the bank of US once they become president. They believed that when an issue was settled by practice it should be left alone. iv. So why today should Scullia and other Supreme Court justices look to the intent of the original founders when their intent changed over time? (5) McCullough v. Maryland (one of most important cases in American History – read). The logic becomes the basis of modern con law. a. Maryland passes law imposing tax on all foreign banks, including the bank of the US. The US supreme court held the states could not tax the bank. b. Scope of Implied Powers c. Necessary and Proper Clause d. Hamilton’s View: i. Federal officials should have implied power to exercise authority as needed to achieve the objectives of the powers they have been given. Necessary and proper does not mean ‘essential’ it means ‘reasonable.’ e. Hamilton’s Opponents view: i. Congresses powers are laid out on articles 1, there are 18 and should be conservatively construed, otherwise congress will kill state powers. This runs to the necessary and proper clause. f. Hold: US has power to create bank and Maryland does not have the right to tax it. g. Courts Analysis: The longer a practice is in play the more difficult it is to call it unconstitutional. To strike down the bank would be to invalidate all its transactions. i. Scope of Congresses Powers Under Article 1: 1. Jefferson Argument: Feds don’t have bank as an enumerated power. 2. Opposite Argument: Necessary and Proper clause means Bank within purview. Even without, this clause, anything not specifically prohibited implied power is given to effectuate enumerated powers. a. Specifically prohibited means consistent with the spirit of the constitution. b. Necessary could mean indispensable, but I can mean useful or desirable. The constitution is an enduring doc that should be interpreted in the current context. (6) THE JUDICIAL BRANCH: a. During the constitutional convention: b. Madison proposed a Council of Revision, review committee would review potential laws from congress to see if wise as a matter of public policy. c. Wilson: the narrow nature of judicial review will not be wide enough to save the republic from bad laws. He makes an acknowledgement of judicial review but draws a line at declaring void because against constitution and void because a law is unwise. Void for unwise is not a power vested in the judicial branch. d. Marbury v. Madison Case: i. Disputed election. Jeffersonians vs. Federalists. ii. Marbury is a judge appointed by Adams. iii. Court concludes that all requisite steps taken to appoint Marbury as a judge. Senate approval and presidential signature. Delivery not a pre-requisite. iv. Second question: Since Marbury has a right, does he have a remedy. v. Courts cannot issue remedies on political issues. 1. Anything that requires policy consideration instead of legal analysis 2. The type of question for which if the court interfered it would be showing profound disrespect or another branch 3. No readily available manageable judicial standard by which to analyze the case. 4. Political Question: a. To bring a case in Federal Court must have: b. Proper Jurisdiction (subject matter) c. Must be Justicibility i. Rightness ii. Capability of being redressed vi. There are a carefully defined set of cases in which US supreme court has original jurisdiction. Original Trial Jurisdiction in cases involving: Ambassadors and states as a party. Everything else it has appellate jurisdiction. 1. Madison construed 1789 law to give supreme court power beyond that in constitution to have original subject matter jurisdiction. 2. There is a presumption in modern con law, where a statute is ambiguous you construe it avoid the constitutional problem. a. First order of business not to strike a statute but to uphold a law and construe to avoid the problem. vii. d (7) SUMMARY a. Judicial Review (Marbury v. Madison) i. Two central holdings: 1. Supreme Court can determine constitutionality validly of legislation to decide a case.. 2. Judicial Review (term of art). Can review acts of congress and executive branch to see if constitutional. a. Just because Supreme Court does not directly address every issue with regard to the constitution , it still may. 3. Technical Holding: Supreme court was limited by Article 3 of the constitution from exerting original trial jurisdiction with few exceptions. 4. Constitution is supreme over regular law. Apply con law when they are in conflict. 5. Idea of judicial supremacy: Supreme Court is the final say on the interpretation of the constitution. It is binding on everyone in the world. a. Opposing View: Executive branch can’t wait on judicial determination, must act. 6. President has exercised executive power, supreme court refuses to touch political questions such as drafting. Congress can strike down or withhold funding. b. McCulluch v. Maryland (debate over bank of the US) i. Implied Powers ii. Necessary and Proper Clause 1. Prof does not understand how congress has been able to extend power over local items like child abuse. iii. Commerce Clause (gibbons v. ogden too). (8) Classical Justification for Judicial Review: a. We the people chartered a constitution and we gave a bill of rights, therefore a court in deciding a case has to enforce those limits against congress, the executive branch and against themselves. b. We can trust courts more to do this impartially because they have life tenure. c. If statute and constitution conflict in interpretation – supremecy clause says constitution governs. (9) Other justifications for judicial review a. Supervising relationships between governments. b. Preserving Fundamental Values (10) GIBBONS V. GIBBONS a. Commerce Clause Case i. “Commerce” ii. “Among the Several States” b. Congress says they have the power to regulate commerce as between the several states Commerce Definition: c. Roberts Argument: Commerce is any commercial interaction (”intercourse”) d. Ogden: Trade, buying and sale of goods. “Among the several states” Definition: i. Cross State Lines, or ii. Concerns more states than one (has an interstate effect). e. Ferry component of case – ferry going up the Hudson has interstate effect. f. If a statute meets both test above, then at that point the court says we cannot inquire into congresses judgment on the need of the statute or the statute’s wisdom. g. Congress has plenary power to … h. Suder, Ginsberg, Briar, have argued congress has unlimited power under commerce clause. Only limit is political. i. Dormant Commerce Clause: i. Marshal says: “I would have reached the exact same conclusion even if congress had not passed the 1793 federal statute” ii. “Dormant” because in existence but hidden. Power to regulate commerce is vested in congress, but even if don’t take affirmative acts still has the power and therefore the states cannot regulate it even if congress takes no affirmative action. j. Gibbons: Validity of government action is governed by the “why” (Purpose) not the “how”. k. Dormant Commerce Clause: If congress does not affirmatively exercise its power, rather power lays dormant, that in and of itself prohibits states from passing regulations that might interfere with an act Congress COULD take. When Can States Regulate interstate commerce?: Background: Jackson was the first president who was a “commoner”. He was from Tennessee and he was for the common people as opposed to the rich. He favored states rights, but was pro-union (never wanted succession). He appointed supreme court judges who shared his views. Post Gibbons we are left with still determining the scope of congress’ power with regard to the States. l. Miln Case: (Immigration Case) i. NY law alleged to regulate interstate commerce ii. **State Police Power vs. Federal Regulation of Commerce between states and foreign nations test. iii. Justice Story’s Dissent (P.196) 1. Majority opinion never refutes Story’s argument. 2. States cannot regulate outside their borders, and immigrants from abroad are coming from outside the boarders. iv. South feared that Congress through regulating immigration could require any state to accept freed slaves. Majority Opinion: v. States purpose is to implement their police power; vi. States can exercise their police power to protect health, safety and welfare within their borders. Intent is what matters, not substance of the law. 1. As long as the intent is not to regulate interstate commerce the law should stand. vii. Immigration is within States power if it was intended to exercise police power over its citizens. m. Cooley Case: i. Deals with Philly port. ii. New approach to Miln Case iii. Is subject of law local or national? It is an issue of characterization. National issues require uniform Federal law. iv. RULE: There are other subjects of interstate commerce that are inherently local, and states can regulate that unless and until congress passes a law that is directly on point. v. Commerce includes navigation (Gibbons), so this has to be interstate commerce. vi. RULE: States can regulate unless there is a conflicting congressional regulation on the same subject. vii. The problem is that a local regulation on an actor in interstate commerce is not by definition local because it could inhibit the flow of interstate commerce. n. Congress has plenary power over interstate commerce. Dormant Commerce Clause Continued) i. Insurance is a multibillion dollar industry that is national and could be subjected to Congressional regulation, however congress has expressly said they are going to let states regulate insurance. Supreme court has said fine. ii. Corporations, the engine of interstate commerce have not been regulated by corporations. o. Privileges and Immunities i. Deals with Fundamental Right 1. Right to earn a living a. Taxes and penalties on out of state businesses would violate the dormant commerce clause b. Would also violate the privelges and immunities clause. c. Argued: A corporation is not a citizen 2. Right to travel state to state. a. Everyone is citizen of US so can’t tax or impede travel state to state. b. Nevada tax on commercial travel struck down by supreme court. 3. d p. Full Faith and Credit Clause i. Article 4 ii. Purpose – we are truly one country therefore just being an American citizen means something, therefore should be able to be treated equally if move from one state to another. iii. One state must respect another’s laws when it comes to treatment of people from the other state. iv. Congress can pass legislation explicitly on these matters (11) President as Commander-In-Chief and preservation of the Union a. In a time of war i. President can take whatever action necessary. b. Lincoln: President alone can preserve constitution in emergency, by any means necessary (even if otherwise unlawful). i. In fact president under article two has a duty to do so. ii. President may: 1. Seize Property (Prize Cases) 2. Suspend Habeas (Merryman) a. Section 9 authorized suspension of habeas corpus in the case of rebellion of invasion to protect the population. b. Lincoln hold Merryman for subversive activities. c. Courts opinion: Lincoln usurping power of congress to su d. Tawny Opinion: was ignored by Lincoln, but said congress was only entity that could suspend habeas. e. President Bush Opinion on indefinitely holding enemy combatants – bush outside bounds of power. 3. Emancipation Proclamation a. Applied only to states in rebellion. He did it as commander in chief, not because it was the right or moral thing to do, he did it as a war measure. 4. Institutionally, the president is on duty 24/7/365 a. No executive council because the constitutional framers thought 1 person could take decisive action quickly in the real world. b. What Lincoln did was cited as precedent by Woodrow Wilson, Eisenhower, Roosevelt (in detaining asian Americans in WWII) and bush in taking executive action and supreme court bows out. 5. Political Question Doctrine a. Supreme court is not going to question the presidents use of power to maintain the sovereignty of the constitution. DETENTION OF ENEMIES POWER: c. Merryman Case i. Lincoln ordered to release merryman. Ignored supreme court order. d. Hamdi Case (Bush) i. Bush has detained many “enemy combatants” in guantanamo bay that is outside the jurisdiction of US courts. Cuba has leased the land to the US so it operates in a grey area. ii. Hamdi contested his detention and court said you need someone other than the president or secretary of defense, you need an impartial decision maker under the due process clause to see if the detention is being made justly. iii. Due process clause expressly applies only to US citizens. iv. As to non-citizens, many people argue the basic equal protection and due process guarantees should apply to all persons (via the 14th amend right to “life liberty and property”). TRIAL BY MILITARY TRIBUNAL e. Hamdan Case (Bush) i. Never claimed he was not Hussein’s right hand man, but claimed that president does not have the power to establish military tribunals for enemy combatants??? ii. Hamdan did not say military commissions are unconstitutional, but struck them down by saying they were not authorized by legislation. iii. Professor: Rights depend on the president, the magnitude of the ware, how egregious the legal violations are. iv. Supreme court invalidated all precedent in area (Lincoln to FDR). v. FDR WWII tribunals were upheld, but not today. GLOBALIZING DEOMETIC ECONOMY f. Prize Cases: Upheld. EMANCIPATION PROCLAMATION i. I lot of things Lincoln did to win the civil war: 1. Summary Executions 2. Emancipation Proclamation 3. Students should not think of the constitution in terms of what the Supreme Court says. Rather constitutional law should be thought of as what the president makes of it. 4. Today we con law has moved towards criminal procedural rights, right to counsel, free speech, equality, brown v. board of education, whole culture towards individual rights than in the past. People now more suspicious of actions that single groups out. g. Students should not think of the constitution in terms of what the Supreme Court says. Rather constitutional law should be thought of as what the president makes of it. (12) FROM RECONSTRUCTION TO THE NEW DEAL (13) Congressional Regulation of Interstate Commerce and of the National Economy. a. States claim that congress doesn’t have unlimited power do to 10th Amendment. b. There are some late 1900 and early 20th Century cases that crop up. i. After the civil war and reconstruction our nation starts to grow. One was the discovery of gold in CA which prompted people to move. Other movements to Utah. Transcontinental Railroad. ii. As economy grew congress responded with regulation. iii. 1887 Interstate Commerce Act iv. 1890 Sherman Anti-Trust Act 1. Passed to slow down Rockefeller (Standard Oil), Carnegie (US Steel). 2. P. 436: Sugar Company case: Company controlled 98% of sugar in US. Supreme court said can’t interpret the statute as going that far because if we do it would violate congresses power under commerce cause. v. Commerce Clause 1. EC Knight Case: a. Definition of Commerce i. Buying , selling + transporting goods ii. Not manufacturing, agriculture, mining (i.e. production). b. Definition of Interstate i. Vs. within the state. c. 10th Amendement i. Reserves “local” activities to the states. ii. Exception: Railroads? iii. Supreme court abandons limits on congressional power completely until the Rehnquist court on 1994. 2. Doctrine of “Channels of Interstate Commerce” a. Starting point is interstate transportation with money involved = interstate commerce. (Gibbons case) i. Can congress ban the interstate transportation of things or people it considers harmful? ii. Champion v. Ames: Example of a lottery ticket. 1. Minority says it’s a contract and not interstate unless it’s with an interstate entity 2. Majority says it’s like insurance as well as a product with a value in the market therefore an article of commerce. 3. Restaurants sell goods, therefore commercial enterprise, if people come to the restaurant from out of state and buy, then interstate commerce. 4. 10th Amendment gives states general jurisdiction over everything inside their state. b. Mann Act: No transportation of females actross state lines for (1) prostitution (hoke case) or (2) debauchery or immoral purposes. (Caminetti case – held that transportation is commerce, money does not need to change hands). i. Congress can now regulate the interstate transportation of anything. ii. Hammer Case: Congress Can’t Prohibit Interstate Transportation of goods made by children. Distinguishes Camanetti because clothing is not harmful. (14) Congress: Power to Tax and Spend for the General Welfare a. Issues: i. Definition of “General Welfare” ii. Purpose? iii. Butler Case: 10th Amendment Case iv. Holland Case: Treaty Power of use overrides the reserved powers of the states. 1. Treaty with Canada over migratory birds 2. A farmer with a license from the state of Missouri cannot gun down a bird that flew down from Canada. 3. Congress implements treaty which basically disallows Missouri to allow licensing of shooting of the birds. 4. Reasoning: Does not violate 10th Amendment, is not a reserved power. v. Supreme Court: Takes a deferential standard that they should not impose their views on how money should be spent on Congress. vi. (15) Agricultural Adjustment Act: (16) 10/12/06 Class: New beginning, second half of class. a. Economic Regulation, Federalization and separation of powers in the modern era. i. Evolution of Courts administration of Congress’ power to regulate the states. ii. Nebia Case P 500. 1. Individual Due process right to be free from contracts with corporations? 2. States can’t regulate private businesses, but some private businesses are affected by a public interest (i.e. public railroads or milk industry). 3. Moral of the story: Know the relationship between Federal and State agendas. iii. 1937 Decisive shift in Supreme court to allow feds to regulate anything. iv. Blazedale Case: Important: Blatant violation of the constitution. 1933 Minnesota mortgage moratorium law. Defaulting mortgagor got a longer time to redeem after execution sale but must pay reasonable rent. v. CONSTITUTIONAL CONTRACTS CLAUSE: “No state shall pass any law impairing the obligations of contract.” 1. Historical purpose: to keep the economy alive. If states could cancel debt (as they did after independence from Britain), then economy would collapse. 2. Court in Blazedale amends the contracts clause to add “unreasonably” after law and before impairing. 3. This is not that different from a president acting outside the scope of constitution to preserve constitution, but the arguments that work for that do not really work here. vi. Up to 1936 Supreme Court said congress can’t violate states rights. vii. 1937-1942 Policy. 1. Basic Con Principles: A a. Article 1: All necessarily and proper powers b. Article 10: All powers the constitution doesn’t give to congress in article one are reserved to the states. c. Darby Case: 10th Amendment is not a judicially enforceable limit on the federal government. d. Jones and Laughlin Steel (1937 Case). i. Concedes that production not commerce, but links to commerce clause via necessary and proper clause. ii. Held: Congress can regulate noncommeercia intrastate activities if necessary and crucial to regulate interstate commercial activities. This has become known as the “Substantial Affects Test”. This is the basis for most modern congressional regulation. e. Commerce Clause Cases: f. Darby g. Wicker viii. f (17) New Framework for Analyzing Congresses Power: a. Court created a system of “magic” words to regulate congress: i. Substantially Effects Test: 1. Commerce Clause + Necessary and Proper Clause = Substantially Affects Test. 2. Developed in Jones, Darby and Wickard. 3. Wickard Case: Aggregate Test to see if an activity in the aggregate affects interstate commerce. Very wide. 4. Jones Case: National Labor Relations Act. a. Hammer v Daggenhard: Labor is not commerce, it is part of production therefore it is a state issue. Dissent notes this. However majority ignores is. b. Majority: Congress can regulate non-interstate and non-commerce if doing so is necessary to regulate commerce and interstate. i.e. when labor unions operating wholly within a state go on strike it impedes interstate commerce because goods are not getting produced so can’t get shipped. 5. Darby Case P 551: Gives good sense of how fast events are moving. 4 years later, Fair Labor Standards Act case. If the court had applied Hammer v. Daggenhard then Darby would have won as this is not commerce. a. In hammer court said that government could not say that goods made under certain conditions are harmful, rather goods either are or are not harmful. This has nothing to do with the constitution. b. Justice Holmes: Hammer v Daggenhard: Article 1 gives congress plenary power to regulate the shipment of goods produced…… c. Entire reasoning is that only congress can make a system of maximum hours and minimum wages, otherwise states will race to to have the lowest regulation to attract business. i. This substantially affects interstate commerce because a trade imbalance and a labor imbalance would result as everyone moves to the next state to take advantage of lower minimum wages. Therefore it falls under the substantially affects test. ii. Could also slice this case under the “channels test”. d. Court says 10th Amendment is a mere truism. It depends entirely on the scope of power given to congress in article 1. Conversly, if a power is not delegated to congress under Article 1 then it is reserved by the states. 6. Butler Case a. Only case to the contrary, but this analysis went bye-bye in Darby. 7. McCullough v. Maryland a. If violate the spirit of the constitution must strike down. b. Dissent Anything can be a means to an end. 8. Gibbons v Ogden a. What is commercial activity? b. Is it interstate or intrastate? c. If both then congress has plenary power and court can’t question the law. 9. Wickard Case a. Most Important of the whole group (Jones, Darby and Wickard) b. Statutory provision under scrutiny is agricultural adjustment act that sets quotas for wheat production keeping from oversupply. c. Court wants to uphold congress, but can’t figure it out under the law because the farmer in this case is so small it has no appreciable impact on interstate commerce. Then court comes up with new test. i. They claim that if the farmer didn’t have excess homegown wheat he’d have to buy it on the market, and if each small farmer did this market price would be affected greatly. ii. Can add up the effect on all people in this class. iii. Logic: Even if an activity is not in and of itself an interstate commercial activity, just look for any argument where in the aggregate arguing up all instances would affect the economy. b. Civil Rights Act of 1964 i. Provided for protecting the civil rights of African Americans. ii. Congress wants to eliminate racial discrimination in public places iii. One would think based on 14th amend, section 5: “Congress shall have the power to enforce by appropriate legislation the provisions of these amendments. iv. Basically: the court decides they are going to base the civil rights act on congress’s power to regulate commerce among the states. Congress passed the act to vindicate people’s rights and to give Brown v. Board of Education some content. v. Question: Why did they not base the act on the ___? vi. 14th Amend, § 5 vii. Civil Rights cases: 1883: Congress is limited to regulating state action. Ban Race discrimination in public accommodations. Supreme Court said Congress is limited to regulating state action and this law purports to regulate private action, therefore not a valid law. Dissent says that accommodations are inherently public because of all the people that come through… viii. 13th(Freed slaves), 14th (NO state shall abridge equal protection rights),15th amends after civil war. ix. Gerald Gunther, says that’s nuts. It’s an end run. x. Congress has a choice, based on precedent can pass the law under the 14th amend, but may be a fight in the courts based on earlier precedent. xi. Politicians don’t care about cases, and they don’t want litigation. Given that there is a case on point that the supreme court would have to overrule, they decided to take the path of least resistance and pass it under the commerce clause. Forget the 14th Amendment. xii. Cases: Doctrinally they add something to the substantial effects test: a Rational Basis.!!! xiii. McClung Case: 1. Restaurant in Alabama, 2. We don’t’ care if congress was regulating an area that has a substantial effect on commerce. 3. New test: If congress could have had a rational basis that there was, is or will be a substantial effect on interstate commerce. This is an incredibly weak test that virtually every law can meet. 4. Ali’s BBQ buys food from out of state, they serve interstate travelers. They say that there will be loss of revenue if there is racial discrimination in restaurants, and that affects sales tax and federal income tax so it is within realm of Congress regulation as commerce. xiv. Heart of Atlanta Hotel Case: 1. Little Motel in heart of Atlanta. c. Voting Rights Act of 1965 i. Eliminates racial discrimination in voting. d. Based on the above Congress has begun to regulate crime i. This developed because it is politically popular and the cases above set precedent. ii. Perez Case: Loan Shark. Lending money at usurious interest rates. Argument says Federal gov’t can’t reach that far. Court doesn’t care. Allows congress to assert that crime is a national problem and therefore can be regulated by congress. iii. The counter argument is there is a difference between a problem that happens in every state and conduct in one state affecting conduct in another state. Two very different things. iv. No politicians want to vote against on federalism grounds because they won’t get reelected. v. Test is not: Did Congress have a rational basis? vi. Test is “Could Congress have had a rational basis?” vii. Wickard: Aggregate Test viii. 1964: Rational Basis ix. 40 years of no formal change in the law. x. Lopez Case – Facts dependent 1. Heightened Rational Basis Scrutiny: When in an area where congress has regulated an area traditionally regulated by the states, courts can’t touch if falls under commerce clause (blatantly). However, now Congress either must show it’s a commercial regulation to the naked eye (commerce clause), or show findings of fact that prove this point. Otherwise will be held not an interstate commercial activity. (18) Taxing and Spending Power a. Dole Case: Can Congress do through taxing and spending power what it cannot under Commerce Clause? Sure. i. Supreme Court imposes some limits: 1. Condition has to be “Unambiguous” – Condition States receipt of Federal Funds clearly and unambiguously. a. i.e. Federal Highway Funds 2. Spending must be for general welfare, not for specific welfare of one person, region, etc. a. Safe Interstate Travel is general welfare. 3. Condition Has to relate to the Federal Interest 4. Can’t Violate Any Constitutional Provisions b. Steward Case: Social Security Act and Unemployment compensation upheld. c. Davis: Old Age Pensions. d. “Cooperative Federalism” Congress can either shove federal law down the states throats or they can work with the states and recognize they are more in tune to state and local interest. e. Congress has absolute power to collect taxes, even if it’s just ne penny. Can’t tax as a Penalty. Congress has the power to tax and spend for the general welfare. (19) Limits on Congressional Regulation of State Governments (federalism) a. Congress under § 5 of the 14th Amend has a special enforcement power because didn’t trust the supreme court (because of the dred scott case) b. Under constitution, commerce clause and necessary and proper clauses, congress can regulate PRIVATE individuals and entities. c. WHAT ABOUT STATES? i. Court is extremely aggressive in holding congresses feet to the fire in City of Berne v. Flores. We are not convinced governments are generally going after religious freedom. ii. Generally: court keeps reversing itself. Court becomes more aggressive in striking down acts of congress. iii. National League of Cities v. User (1976) 1. Fair Labor Standards Case 2. Court accepts that state employees activities are related to interstate activities such that congress can regulate under commerce clause. 3. However, strike down the act because commerce clause power affirmatively limited by 10th amend and affirmative principles of Federalism. 4. May not excercise power in a way that impairs the states ability to function in a federal system. 5. People’s dissent: Why go back on Darby case? a. Do article 1 powers contain any limits? b. Does commerce clause have limits? c. Darby does not … d. Darby reversed here. e. Garcia reversed Darby. iv. Garcia 1. Reverses previous decision 2. Fair Labor Standards Act is applicable to states, their subdivisions and lemonade stands. We are out of here. The national league of cities test was unworkable. 3. “Essential Governmental Function” 4. Court says we can make up as many tests as we want, here is what federalism is about: a. Sates acting within their constitutional sphere can do whatever they want. 5. Sole issue is not federalism, as that would suggest leaving the states alone. It is how the constitution protects the states from congresses power. 6. The constitution sets forth a system to determine who plays what political role. It’s not a republican /democratic thing. The key is the 17th amendment. Under the original constitution, state legislature appointed senators. 17th amendment amended and provided for direct election. 7. When congress regulates under article 1, commerce clause, it has been clear since darby that congress has the power to establish law that affects the companies operating in states. 8. Can Congress broaded that power to regulate wages of state and local employees? 9. In national league of cities, No 10. In Garcia, Yes. a. Court says they are out of the business of judicial review. b. The only check on congress is political review. c. However, congress represents people from the states and senate represents each state. Presidential elections are state by state. d. Question: Are the courts going to enforce federalism over and above the vision of the other branches of government? Federalism is not built into the constitution expressly – therefore it is constantly evolving. d. Test of Constitution silent on whether Federal government can require states to: i. Enact Legislation (NY v. US) 1. NY v. United States 1992 a. A wakeup call. i. Darby said 10th a mere truism. ii. Garcia said only enforceable through political process. b. In serious opposite position to Garcia. c. Court says 10th amend is judicially enforceable. d. States can’t consent to enlarge congresses powers belong what the constitution allows. ii. Enforce Federal Law (Prince) 1. US v. Prince a. National political process adequately protects state rights? iii. However State Judges have to enforce Federal Law? iv. Unknown Case: v. Rhenquist /Scalia /Hopkins “States Rights” view vs. 1. Federalism keeps the Federal government from conscripting into service the officers of the 50 states. 2. It’s in the nature of judicial power that they have to apply governing law and issue a judgment. 3. Sovereign States and a Sovereign Government vs. Constitution that reads “we the people being sovereign create the government” there is no sovereignty of government in the US. 4. Countries like germany and france have a federal government with local units, but the local units are at the sufferance of the national government. 5. The US is not this. 6. Scalia says enforcing the law is fundamental to operating as an independent government. 7. Two main principles: Federalism (division of powers between feds and state), Division of Powers between three branches. 8. Federal govt’ can never make states enforce Federal Regulatory Programs. 9. Congress can force states to … 10. Court did hold that some laws congress passed could not be enforced in any court. vi. Breyer /Ginsberg /Stevens /Souter\ (20) Interstate Federalism and the National Economy P. 720 a. Under commerce clause everything can be regulated b. There is often a question whether oa regulation pre-empts an area completely? c. That is, is there any thing left for the states to regulate? d. Dormant Commerce Clause comes in: i. “Undue Burden” test on nterstate commerce ii. If state law discriminates against out of state citizens presumption is it is invalid, unless states shows: 1. Protects important government interest unless it uses least restrictive means to doing so. 2. Also a balance test available to test laws purported to be “neutral”. e. Another way to get at laws: Article 4 privileges and immunities clause: States can’t infringe fundamental rights of out of state citizens. i. Right to earn a living (may be a dormant commerce clause problem too) ii. Right to religious freedom iii. (21) Article II Executive Power a. Says President has the power to: i. Execute & Administer the Law 1. President shall administer laws passed by congress. 2. Courts can review actions. 3. No laws can sue the president. a. However popular support for the president ii. Commander in Chief 1. However doesn’t go into any depth. b. Nature of Executive Power i. Executive Privilege ii. Law Enforcement iii. Commerce Clause and Privileges and Immunities Clauses overlap at: Fundamental Right to Make a Living. iv. States can discriminate against out of state people if they have some unique item or resource that is supported by the people in the state. 1. Ex. Living in CA money goes to keeping the ocean clean. CA could probably charge out of state people a fee to use the beach. 2. Ex. Fish and Game licenses. v. If congress has power to enact a law, it has power to preempt all state laws. If law says nothing about preemption, then congress will presume it is not intended to, unless it must to function. vi. President is the chief representative of the US in foreign affairs. 1. Power to make war and the power to make peace. vii. Most executive power is discretionary. viii. Executive Privilege (from court compelled disclosure): 1. US v. Nixon: 2. President must rely on the candid full advice of the chief of staff, cabinet, intelligence and military officials. 3. Policy is to let them air freely what is on their minds. 4. Privilege does not apply when discussing breaking the law. ix. Power of Commander and Chief 1. War is within the president’s discretion. 2. There are bright-line rules, and then there are many cases that show how court defers to executive branch. There are half a dozen major cases. a. Lincoln: i. suspended habeus corpus (ignored supreme court in doing so). ii. Issued Emancipation Proclamation b. FDR: i. Relocated all Americans of Japanese descent. ii. Equal protections violation 1. But court said Ok because it was a war measure. c. Majority of time courts defer to the president, and almost always when congress authorized president to act. Especially when it is a life or death situation. They claim it is a political question and executive’s discretion. d. Minority of time courts strike down presidential acts. i. Milligan Case (1866). 1. President can’t establish military commissions to try civilians. 2. This is post Lincoln. If Lincoln had been around they would not have made deicision. 3. Lincoln’s successor president was weak. 4. Popularity, public and congressional support, strength of president are important to whether court will intervene. c. Subpoenaing the president i. Balancing Test: 1. Acknowledge executive privilege. 2. Is it absolute? Or is it qualified? 3. Balance of equities favors getting the information disclosed so in the case of Nixon favored qualified immunity. d. Independent Counsel Law i. Morrison v. Olsen 1. Independent Counsel Law & Separation of Powers. 2. Rehnquist writes majority: flexible view – all sorts of problems framers could not have imagined. We will allow all three branches to work together and we will allow novel arrangements to meet novel challenges. 3. P. 778 dissent: Scalia makes ponts: a. If you give prosecutor total independence and unlimited budget, he will go wild. It is considered dangerous to liberty. b. Violates separation of powers c. Infringement on executive power to execute laws. d. Infringement on Article II power to control attorney general by putting them at odds. ii. Chadda 1. Formal view of separation of powers. 2. Structure of government in article II and we must uphold it. 3. Legislative Veto struck down. iii. Congress delegating lots of power to Executive Branch but does not trust Executive branch. 1. Under Article 2 President has all executive power. 2. He utilized through his subordinates. a. High level subordinates must be appointed by president and confirmed by senate. After which Congress cannot remove them from the job. e. Veto Power: i. President can veto any law at his discretion. Can only be overridden by 2/3 of the house and senate. ii. iii. Voucher v. Sinar 1. Legislative Veto struck down in Chada (22) Judicial Deference to Broad Executive Power a. Trend: Kick’em when they are down. i. Uphold individual rights and liberties. ii. Don’t fight a popular president. b. Prize Cases c. Korematsu Case d. Steel Siezure Case (one of most important decisions ever) i. Jackson’s Concurrance considered best ever written. 1. Became majority position of court in 2006. a. Says: Approach to separation of powers needs to practical and contextual, not doctrinal. b. If congress expressly authorizes the president’s act (i.e. in labor relations act, president is authorized to seize facilities during strikes for a compelling national interest), judicial review is going to be very narrow and deferential, unless determine federal government as a whole does not have the power. i. Ex. Congress and president decide to establish Anglican church as official church of US to further unity in war effort. c. Congress does not expressly authorize president to take action but does not expressly prohibit. I.e. is silent. Then we have a “zone of twilight” it is up for grabs and depends on comtemporary circumstances. Depends on facts and circumstances. d. President acts contrary to congressional will: President’s power is at it’s lowest ebb. He would have to show that he has sole power under article 2 and not shared with congress (such as war). e. Here Truman is acting against congresses will. i. Therefore Truman has to show he and only he has power under the constitution to take this action. ii. Show he is vested with the power. iii. Constitution itself allows congress to take the lead in responding to emergencies by expanding presidents power. Can’t let president seize power. ii. Facts: Threatened National Steel strike. iii. Truman orders Federal government to seize the facilities and operate them to make sure of steel supply for the Korean war effort. iv. Justice Black Majority Opinion: Truman can’t due this as part of his article 2 power as commander and chief. This is a domestic action and not an express power. Only has express powers in foreign actions. v. Truman was out of favor because of the Korean War vi. Truman was also a man of the people. He didn’t want to bust the union. He did it for the war effort but the war wasn’t popular. vii. This case demonstrates the court is having second thoughts. It realizes Korematsu was not the court’s finest hour. viii. Truman was out of favor so court decided to go against him and limit his power. ix. The court does not go against popular presidents. x. “Separation of Powers is designed to: 1. Stop tyranny 2. Protect Liberty 3. Promote Rule of Law 4. Efficiency e. Korematsu Case i. Roosevelt, WWII. Sweeping Power ii. 6-3 Decision that what the gov’t did to the Japanese internment camps was ok. iii. Demonstrates how political, institutional and pragmatic elements come into play in war decisions. f. Bush. War On Terrorism. i. President authorized to use all force necessary to prevent future attacks. ii. President Asserts Article II power to: 1. Detain Enemy Combatants a. Hamdi Case – Hearing Required. i. Hamdi was US citizen went to Afganistan and fought for the Taliban. ii. Court: We agree that under the authorization to use force, Bush has the power to detain enemy combatants for the duration of the war without trial (no other rational reasonable way to do this). iii. Handi claims he is not a combatant. He was doing “relief work”. And he is a US citizen. iv. Court: Hamdi is an American citizen so he is different than an enemy combatant. When you contest your status as an enemy combatant, you have the right to a hearing in front of an impartial “decision maker” to determine your status. 1. Majority View: This applies to US citizens, and probably not non-citizens (but the court has not answered this yet). 2. However, companion case called “Rasool v. Bush”. He is in Guantanamo Bay, and somehow supreme court that habeaus corpus extends beyond the borders of the US. Held: Noncitiizen could file petitions for habeus corpus. v. Problem: What happens when the executive branch says “you look like an enemy combatant” and put in prison until war over without hearing. 2. Create Military Commissions a. Hamdan Case (different from Hamdi) – Hold: Military Commissions Not authorized by Congress. b. Question: What is an ‘impartial decision maker’? c. Definitely a state or federal court. d. Is a military commission impartial? i. Bush creates the commissions and writes the rules of evidence. ii. Washington, FDR, JFK and others used article II power to create military commissions to try enemy combatants. There is a history of case law saying this is ok. e. Held: Congress did not authorize president to create military commissions. This is a very narrow holding. The authorization for military force did not say commissions. Totally avoided article II constitutional issue. f. Congress then circumvented this holding by passing a law authorizing military commissions with certain procedures. i. Congress said Geneva convention does not apply. ii. In the future other combatants may alledge that the commissions violate due process. (23) JUDICIAL POWER a. We focused primarily on Congresses power under Art 1 b. Secondarily how it interfaces with the states, and c. Presidents Executive Power under Article 2. d. The final prong is Article 3 vests judicial power in the courts. i. Basic Princple: 1. Congress has power over courts jurisdiction under article 3. i.e. could take away supreme courts appellate power to hear enemy combatant cases. 2. Congress has absolute power to form lower federal courts. If didn’t give power to hear cases precluded from Supreme court then would fall on state courts. 3. Congress and Bush are unhappy with courts so moved to remove supreme courts habeus power – but court excercised anyways. 4. Justicibility: Standing is required to sue in court. To get into Federal Court you have to show you were injured and defendant caused injury and relief can be granted. 5. Dispute must be ripe and not Moot. 6. Dispute cannot be a political question. Can’t litigate congresses choice to declare war. Baker v. Car – sets forth a nebuoous 6 factor balancing test as to whether a matter is a political question: Review Tuesday the 12th, from 4:30pm to 7pm/35 Multiple Choice Questions Closed Book. Essay Section Closed Book. President’s power interacting with Congress’s Power Extent of Congress’ Power to regulate states and make statutes. Dissenting opinions important for the ‘state your personal opinion and back it up’ part of the essay. Can criticize current doctrine, but better to build up. (24) Final Exam: a. 2 Essays, “let’s say you are a lawyer, how would you analyze this fact pattern?” b. Also, “If you could change the law how would you?” Cite to sources, but not commercial outlines. c. Three topic headings: i. Congresses Power under Article 1 1. Necessary and proper Clause 2. Commerce Clause? ii. Presidents Power as commander and Chief 1. Warfare iii. Federalism