CON LAW FED STATE PRE-CONSTITUTION: THE ARTICLES OF CONFEDERATION (1) Uniform Legislation Difficult a. State Constitutions granted power to their legislatures which pursued popular but short sighted economic policies. b. Debtors Laws: Protected debtors in their home state from lenders in another state. c. Anti-Competition Laws: Protected businesses in home state from out of state businesses. (2) NO means of federal enforcement – no executive or judicial branch. (3) NO means of having uniform foreign policy or interstate policy. CONSTITUTIONAL SEPERATION OF POWERS (1) Article 1: Legislative Power a. Vested in Congress b. Senate is a mediating influence on Congress (which is by population) c. Legislators legislate broadly and prospectively d. § 8 C1: Power to Tax e. § 8 C2: Power to Borrow f. § 8 C3: Power to Regulate Commerce g. § 8 C4: Power over Immigration and Bankruptcy h. § 8 C7: Power to establish Post Offices and Roads i. § 8 C8: Power to establish Patent and Copyright j. § 8 C11: Power to Declare War k. § 8 C12: Power to Raise Armies l. § 8: C18: Congress can do all things necessary and proper to carry out its mandate. (2) Article 2: Executive Power a. Vested in President b. Powers: i. Commander in Chief ii. Execute the laws passed by Congress (and will prioritize) b. President elected via electoral college i. Tied into the abolishment of slavery because slaves were 3/5 of a person for calculating the electoral votes of a state. ii. Electoral College is a mediating influence much like senate. (3) Article 3: Judicial Power c. We the people chartered a constitution and we gave a bill of rights, therefore chartered courts to decide cases and enforce those limits against congress, the executive branch and against themselves. d. We can trust courts more to do this impartially because they have life tenure. e. Vested in the Supreme Court and their inferior courts created by congress. f. Must have two parties in a litigious case come to them g. Apply law to facts of case to determine the scope of the laws. h. Void for unwise is not a power vested in the judicial branch! (4) Article 4: Full Faith and Credit must be given from state to state when one state passes a law another must respect it, except: i. Supreme Court ruled do not have to respect it on very important state policies, such as gay marriage. (5) Article 5: 2/3 of both houses of federal legislature must agree to propose a change to constitution, or 2/3 of the individual legislatures of each state must apply. ¾ of state’s legislatures must ratify. (6) Article 6: a. Clause 2: Constitution and Federal Treaties shall be the supreme law of the land. b. Clause 3: Makes every state and federal government officer take an oath to support the constitution. (7) Article 7: 9 out of 13 states must ratify the constitution. (8) Amendments: a. 10th Amendment: Powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the states or the people. b. 14th Amendment, § 5: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. 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 a. Chadda i. Article 2 gives President power to execute law and direct the armed forces. ii. Chadda looks at fundamental question of: when congress enacts a statute, what happens? iii. The law is executed and administered by the President. iv. In Chadda it was an immigration statute. v. House veto’d an act by attorney general. vi. Court says can’t do that. Must amend the law vii. Under separation of powers, if congress wants to change the way a law is implemented by the executory, must implement a new law. viii. The president has sole authority to Execute the law. Conversely, legislators have sole power to make laws. b. c. Morrison v. Olsen d. Bouscher CONGRESSIONAL POWER (1) Constitution: a. Article 1 § 8: i. Authorizes Congress to tax and spend for the “General Welfare.” And, ii. Necessary and Proper Clause: Make all Laws necessary and proper for carrying into Execution this power. iii. Commerce: Power to regulate Commerce with Foreign nations, between the several states and Indian reservations. b. Article 6: Federal Constitution and Federal laws are the supreme law of the land. i. State Judges must apply Federal law despite contrary state law. ii. If State judges do not, US Supreme court has appellate jurisdiction. c. 10th Amendment: 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. TO TAX BANK OF THE UNITED STATES (1) First Bank of the US 28-37 (2) Second Bank of the US 37, 74-84 (3) Marshall Court (1801-1835) a. McCullough v. Maryland Taxing and Spending Power b. 1936: Butler Case: i. Adopts Hamilton’s view. ii. Agriculture is an area inherent to states. c. 1937: Steward Case: Social Security cases.. Congress can regulate anything it considers to be for the general welfare. i. Congress can encourage and induce, but cannot coerce. d. Dole Case: e. Dole Case: i. Congress can do through taxing and spending power what it cannot under Commerce Clause ii. Supreme Court imposed limits: 1. Spending 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. b. Can’t tax on export because it will hurt specific regions. 3. Condition Has to relate to the Federal Interest 4. Can’t Violate Any Constitutional Provisions f. Dole Continued: g. States must increase their drinking age to 21. Congress threatens to take away S. Dakota’s highway funds if doesn’t do it. h. Analysis: Is it coercion? Highway funds are only 3% of budget, so no coercion. Is there a rational relationship between the law and the national interest? Did they make it clear to the states that federal funds were a condition of compliance with the law? i. 0 laws have been struck down under the taxing and spending power between 1927 and 2006. CONGRESSIONAL REGULATION OF INTERSTATE COMMERCE (1) Constitution: a. Article 1: Authorizes Congress to: i. Regulate Commerce with Foreign Nations ii. Regulate Commerce among the several States iii. Make all Laws necessary and proper for carrying into Execution this power (2) National vs. Local Concerns (tax and spend power argument too) a. National: War, Peace, Immigration b. Local: Family and Property Law c. Concurrent Jurisdiction Arose in many areas. i. Hamilton (Federalist 32): State Governments Retain all rights of sovereignty not exclusively delegated to the US. 1. Exclusive Delegation means: a. Express in the constitution b. Conferred a specific power on the fed gov’t and prohibited states from exercising that power, OR, c. Granted an authority to the Union to which a similar authority in the states would be contradictory and repugnant. 2. Because “Exclusive” not used in delegation of commerce regulation to Feds, logical it would be concurrent jurisdiction. (3) The Marshall Court (1801-1835): Expanded Pre-Emption in Regulation of interstate economy 168-186 a. McCulloch v. Maryland (1819) i. Issue: Did Maryland have power to tax the US Federal Reserve Bank. ii. Necessary and Proper Clause Art. 1 § 8: Article I’s grant of express powers to Congress included the implied power of discretion of the best way to carry them out. 1. Necessary – Useful or Convenient (Hamilton view) 2. Proper = Plainly Adapted to achieving the ends enumerated in article I. a. Borrowing Money b. Collecting Taxes c. Regulating Commerce iii. Supremacy Clause Art. 6: Feds, though limited in their power, are supreme in their sphere. iv. Interpreting the Constitution: 1. Look to the intent of the founding fathers. 2. If the constitutional provision is clear enforce it. 3. If provision is not clear, consider the practical applications. a. Constitutional provisions can be suspended if the entire constitution at risk. v. Madison View: US government was not given general powers. It was given enumerated list of powers. Therefore since bank not enumerated cannot charter. 1. Minor powers can be implied – such as contractors to build post offices. 2. Major power cannot be implied – such as chartering a bank. vi. Hamilton View: Necessary and Proper means implied power to exercise authority as reasonably needed. Madison /Jefferson eventually came to the Hamilton view as practice settled these items. vii. Court Holding: The tax was unconstitutional because the states had no power to burden the operations of the constitutional laws enacted by Congress. viii. Reasoning: Congresses powers are exclusive and plenary in it’s sphere. The longer a practice is in play the more difficult it is to call unconstitutional. To strike down would invalidate all previous transactions. ix. Present Policy Note: Why should modern supreme court justices look to the intent of the original founders when the founders intent changed over time? b. Houston v. Moore (1820) i. State punishing Militia men who did not come to call of duty. ii. State laws will be overridden whenever their enforcement thwarts the “will of Congress” even if they did not contradict federal Law. iii. State Law was not preempted because Congress chose to allow concurrent jurisdiction. c. Gibbons v. Ogden (1824) i. Majority Opinion: Justice Roberts ii. Minority Opinion: iii. Gibbons operated ferry from NY to NJ on Federal license iv. He interrupted Ogden’s monopoly conferred by NY legislature. v. Court sustained Federal license as legitimate exercise of congressional power to regulate commerce between the states. vi. Defined Commerce as: All commercial intercourse that transpired among the several states (crosses state lines or concerns more than one state). vii. Decided: State laws regulating the same could exist, but they must yield if they directly collided with federal law. viii. Dicta: Marshall: Dormant Commerce Clause 1. States lack power to regulate their commerce to the extent it affected commerce in other states. 2. Congress’s authority over interstate commerce was exclusive and plenary, whether exercised or dormant. Therefore states prohibited from passing regulations that might interfere with an act congress could take. d. Willson v. Black Bird Creek Marsh i. Held: Delaware’s assertion of police power to protect public health by constructing a dam on an interstate waterway did not clash with any particular federal statute or the dormant commerce clause – even though the dam would have incidental effects on interstate navigation. e. Summary: States Retain Concurrent Jurisdiction, except when laws contradict specific federal statutory provision OR the will of congress. (4) The Taney Court (1835-1865) Interstate and Foreign Commerce 191-208 a. Limited the reach of preemption and protected states rights. i. All State Regulations will be upheld unless they: 1. Contradict a federal law directly on point, or 2. Regulate an inherently national subject like bankruptcy. b. City of New York v. Miln (1837) i. Police power vs. regulation of commerce. ii. State law required captains to post passenger manifests and a bond in case any passengers become the ward of the state. iii. Held: Legitimate state use of police power to protect citizens from monetary and health costs of vagrants. iv. Dicta: This law was under police power, but if it had been commerce, does not contradict a federal law so would still be upheld. c. Cooley v. Board of Wardens (1851) i. Challenge by a NY shipper to a Pennsylvania law mandating that all vessels in the port of Philadelphia use a local pilot. ii. Hold: This law regulates commerce and had an interstate effect. 1. State Law can exist concurrently with federal law if does not contradict. 2. Subjects of Commerce are either a. National, and subject to exclusive and uniform federal jurisdiction, or b. Local, and best served by state governments unless congress decided to regulate it. d. Sinnott v. Davenport (1859) i. Continued: Supremacy Clause invalidates state laws that conflict with Federal laws. ii. Held: Alabama maritime registration law that was stricter than state law with regard to coastal trade. (5) Civil War Reconstruction to the New Deal (1866-1934) P.435-460 a. Kidd v. Pearson (1888) i. Commerce defined as trade in goods and commercial transportation. ii. Not: production through manufacturing, farming, mining, fishing or forestry. b. United States v. E.C. Knight Co (1895) i. Therefore Commerce could not invoke the Commerce Clause to legislate “non-commercial” matters that merely had indirect effects on interstate commerce. ii. Hammer v. Daagenhard (1918) 1. Struck down federal child labor act, which banned the interstate transportation of goods made by children, as unconstitutionally attempting to reach local manufacturing and trade. c. Conversely, Congress has exclusive power to regulate all commercial activities if they exert a “direct” effect on interstate commerce. i. Can regulate all 1. instrumentalities of interstate commerce 2. Channels of Commerce (Champion v. Aimes (1903)) a. Congress can prohibit using the channels of commerce (interstate hwy and rivers) for bad and immoral things (which would otherwise be a state police power) because it is through a channel of commerce. d. Southern Railway v. Reid (1912) i. Federal Statutes on a specific subject automatically preempts any state laws in the same area. ii. i.e. If state law on same point as federal law, then it is preempted. e. Charleston RR v. Varnville Furniture i. Federal railroad laws preempt state laws that went further than congress saw fit to go. ii. States can give broader rights than feds, but cannot give lesser rights. f. Summary: i. Maximize State powers by minimizing congress’ regulation of commerce to not include production. ii. Permitting Congress to exercise plenary power under Commerce Clause but adopting a presumption against preempttion (6) Modern Era: Decline of Judicial Intervention Against Economic Regulation. 499-510 a. The Court abandoned its attempt to impose limits on Congress’s Article I Powers. i. Including leaving ‘local’ commerce to the states. b. Modern Preemption requires a careful interpretation of the federal statute involved, looking to an express preemption and implied preemption analysis (legislative intent) as well as how applicable state laws interface with the federal regulation. c. Presumption against preemption still applies. d. Mintz v. Baldwin (1933): i. Presumption that state laws would not be preempted unless Congress clearly manifested its intent to do so. ii. Therefore, more restrictive state regulations were allowed if did not: 1. contradict federal regulations, or 2. Congressional intent was not to pre-empt. e. Jones & Laughlin Steel Corp (1937) i. Facts & Hold: Upheld the National Labor Relations Act as necessary and proper to effectuate Congress’s power to control interstate commerce that had been “substantially affected” by production labor disputes. ii. Substantial Affects Test: Congress may regulate any activity, commercial or not, interstate or not, that exerted a substantial effect on interstate commerce. 1. Commerce Clause + Necessary and Proper Clause = Substantially Affects Test. f. Wickard v. Filburn (1942). i. Substantial Effects Test v.2: In the aggregate – may add up all instances of the activity to see if has any effect. g. Ali’s BBQ & Heart of Atlanta Hotel Cases (1964): i. Substantial Effects Test v.3: Rational Basis Test 1. If congress could have had a rational basis that there was, is or will be a substantial effect on interstate commerce, then meets the definition of ‘commerce’. a. Therefore, no fact discovery required prior to congress passing a law that regulates states. 2. Used to pass civil rights act of 1964 based idea that discrimination against blacks could have an affect on federal income tax so within realm of congresses power to regulate commerce. h. Lopez v. Morrison i. Heightened Rational Basis Scrutiny: 1. When Congress seeks to regulate an area traditionally regulated by the States, in order to fall under the commerce clause, must show it is a commercial regulation to the naked eye or show findings of fact that prove the point. 2. If don’t the activity will be considered to not be interstate commerce. 3. Congress amended the statute after it was struck down by adding the language, “possession of a gun that has gone through interstate commerce”. This is same effect, because all guns have gone through interstate commerce under 1 of the 3 categories, “in” commerce via a road, “through” commerce by being on a truck, or substantially affects commerce in the aggregate. a. Often said as “In or affecting interstate commerce” i. Raich Case: i. Background principle of interpretation is federalism. He are going to heighten the scrutiny when congress is regulating an area of traditional state concern. We use a rational basis scrutiny. j. Dole Case: i. Congress can do through taxing and spending power what it cannot under Commerce Clause ii. Supreme Court imposed limits: 1. Spending 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. b. Can’t tax on export because it will hurt specific regions. 3. Condition Has to relate to the Federal Interest 4. Can’t Violate Any Constitutional Provisions k. English v. General Electric (1990) i. Implied Preemption: 1. When federal regulatory scheme so pervasive, or 2. federal interest so dominant, that a. There is no room for state regulation. 3. When state law conflicts with federal and impossible to comply with both, or 4. State law stands as an obstacle to accomplishment of the objectives of Congress. l. Modern Constitutional Interpretation: i. Most scholars reject linguistic formalism (plain meaning rule), ii. In favor of interpretation in present context. iii. 10th Amendment is a mere truism. (Darby) iv. “Cooperative Federalism” in effect. 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. In areas of cooperation, may allow states to have stricter regulations on items such as the environment. (7) Interstate Federalism and the National Economy 729-734 FEDERALISM & STATES RIGHTS: State sovereignty and preemption. THE RISE OF FEDERALISM (1) Sovereignty of the People a. Sovereignty = Final Law Making Power b. Federalists argue Sovereignty lies in the people and not in the legislatures. i. The people can delegate as they see fit between national and state levels. ii. This would allow for a stronger central government as well as iii. A judiciary that was not beholden to state legislatures for pay and therefore not independent. (2) Definition of FEDERALISM: a. Division of powers between the federal and state governments, with the state governments sovereignty being the living issue. i. CA passes medical marijuana ii. HI passes Gay marriage iii. But no one would say that states are soverign any more. State sovereignty would allow one state to not have rights for black people and ban gays. iv. There was no equal protections clause until the reconstruction, so there was much more sovereignty. v. That was the beginning of federal government taking away state sovereignty. 1. Take for example: Equal protections clause was stripped by the supreme court to mean to keep black people from being equal to whites a. Said 14th amend only gives national citizenship, but insofar as state sovereignty is concerned it doesn’t apply to the states. b. Plessy v. Fergeson: Separate but equal is fine. c. National government can’t have such a jim crow law, but each state can. d. Lockner case found that there is substantive due process in the 14th amendment. Substantive due process is making a law that does not bridge a liberty. Lockner said there is a substantive due process insofar economic rights are concerned. e. Marshall court determined in brown v. board of education that substantive rights are available for darn near everything. 2. This went back the other way until the civil rights act of 1964. (3) 10th Amendment: a. 10th Amendment: Powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the states or the people. b. May Affirmatively Limit Commerce Clause c. Federalism is not built into the constitution expressly – therefore it is constantly evolving (4) Threshold Questions: a. Can Congress regulate private parties? b. Can Congress Regulate State and Local Governments? c. d. LIMITATIONS ON CONGRESSIONAL REGULATION OF STATES GOVERNMENTS: e. Darby: 10th Amendment is a Mere Truism f. National League of Cities v. User (1976) 1. Fair Labor Standards Case 2. The court decides federal power has gotten large enough, and decides to put limits on federal preemption by saying: 3. State employee activities are related to interstate commerce such that congress can regulate under commerce clause. 4. However, strike down the FLSA because commerce clause power affirmatively limited by 10th amend and affirmative principles of Federalism. a. Affirmative principles of federalism: i. Can’t take away rights already in place. ii. Rule: May not exercise federal power in a way that impairs the states ability to function in the federal system. iii. Don’t get in the way of state governments running themselves. (Preemption and Federalism – necessary and proper) 5. This reverses Darby’s stance that the 10th amendment is a mere truism. b. Garcia i. Reverses National League of Cities. ii. Fair Labor Standards Act is applicable to states, their subdivisions and lemonade stands. iii. Court says “We are out of here.” The national league of cities test was unworkable. iv. “Essential Governmental Function” v. Court says we can make up as many tests as we want, here is what federalism is about: 1. States acting within their constitutional sphere can do whatever they want. vi. Sole issue is not federalism, as that would suggest leaving the states alone. It is how the constitution protects the states from congresses power. vii. 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. viii. When congress regulates under article 1, commerce clause, it has been clear since darby that congress has the power to establish law that affects businesses operating in states. ix. Can Congress broaden that power to regulate wages of state and local employees? x. In national league of cities, No xi. In Garcia, Yes. 1. Court says they are out of the business of judicial review. 2. The only check on congress is political review. 3. However, congress represents people from the states and senate represents each state. Presidential elections are state by state. 4. Question: Are the courts going to enforce federalism over and above the vision of the other branches of government? 5. If Congress has the power to pass a law can extend it to state governments and the remedy to it is not in the courts, it’s a political question. Federalism says if you don’t like the law, go to the legislators and have them change the law. STATES POWER TO TAX FEDERAL GOVERNMENT (1) State’s Power to Tax the Bank of the United States 67-74 a. McCullough v. Maryland? i. The tax was unconstitutional because the states had no power to burden the operations of the constitutional laws enacted by Congress. ii. Congresses power is exclusive and plenary in it’s sphere of regulation. STATES RIGHTS IN THE LATE 18TH CENTURY (1) The Sedition Act of 1798 84-95 (2) Affirmative Limits on Congressional Regulation of State Governments 649-665 674-711 a. Up to 1936 Supreme Court said Congress can’t violate states rights. b. 1937: Decisive shift in Supreme Court to allow feds to regulate anything. c. 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 Judges have to Enforce Federal Law (Direct Constitutional Cite). STATE ECONOMIC REGULATION Blazedale Case: (1) Constitutional Contracts Clause: “No state shall pass any law “unreasonably” impairing the obligations of contract.” a. Historical purpose: to keep the economy alive. If states could cancel debt (as they did after independence from Britain), then economy would collapse. b. Court in Blazedale amends the contracts clause to add “unreasonably” after law and before impairing. c. 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. (2) Undue Burden Test: a. If state law discriminates against out of state citizens presumption is it is invalid, unless states shows: i. Protects important government interest and uses least restrictive means to doing so. ii. Also a balance test available to test laws purported to be “neutral”. iii. 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. iv. JUDICIAL REVIEW OF LEGISLATION AND EXECUTIVE ACTS (2) Judicial Review of Congresses power to create a central Bank 38-59, 62-64 (3) Marbury v. Madison and Judicial Review of Legislation 108-136 a. Facts: Marbury was federal judge. His election was disputed. b. Analysis: All requisite steps taken to appoint Marbury as a judge. Therefore he has a right. But does he have a remedy? c. Hold: Federal courts can determine constitutional validity of legislation and executive actions; however cannot issue remedies on political issues. i. Political issue -= Anything that requires policy considerations instead of legal analysis. 1. Madison had proposed a council of Revision to review laws to see if wise. ii. Jurisdiction: In order for a federal court to have a remedy must find: 1. Proper Jurisdiction – subject matter /personal a. Original Jurisdiction Areas: i. Ambassador Cases ii. States a Party Cases iii. Federal Question? 2. Justicability: Rightness and capability of being redressed. iii. Jurisdiction Policy in Modern Law: Presumption, where a statute is ambiguous you construe it to avoid the constitutional problem. d. Importance: Established judicial review of the constitutionality of other branches of government (4) Baker v. Carr: Apportionment of state legislatures is not a political question. Must do so based on population. (5) Relaxation of Judicial Constraints on Congressional Power 549-570 ; 600-646 (6) Modern Limits of Federal Judicial Power 887-892 EXECUTIVE POWER: PRESIDENT AS COMMANDER IN CHIEF (1) President as commander in chief and preservation of the union: 261-287 a. Most executive power is discretionary. b. Says President has the power to: i. Execute & Administer the Law 1. President shall administer laws passed by congress. 2. President is chief representative of the US in foreign affairs. 3. Courts can review actions. 4. No laws can sue the president. 5. President has executive privelege (2) Powers of Commander and Chief: a. In a time of war i. President can take whatever action necessary. ii. Lincoln: President alone can preserve constitution in emergency, by any means necessary (even if otherwise unlawful). iii. In fact president under article two has a duty to do so. iv. President may: 1. Seize Property (Prize Cases) Read 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 held Merryman for subversive activities. i. Courts opinion: Lincoln usurping power of congress ii. Tawny Opinion: was ignored by Lincoln, but said congress was only entity that could suspend habeas. c. 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. d. Chadda i. Article 2 gives President power to execute law and direct the armed forces. ii. Chadda looks at fundamental question of: when congress enacts a statute, what happens? iii. The law is executed and administered by the President. iv. In Chadda it was an immigration statute. v. House veto’d an act by attorney general. vi. Court says can’t do that. Must amend the law vii. Under separation of powers, if congress wants to change the way a law is implemented by the executory, must implement a new law. viii. The president has sole authority to Execute the law. Conversely, legislators have sole power to make laws. e. Hamdi: President Bush Opinion on indefinitely holding enemy combatants – Bush outside bounds of power. f. Hamdi was US citizen found in afganistan fighting for them. g. 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. h. Due process clause expressly applies only to US citizens. i. 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”). j. Hold: President’s power as commander in chief includes the power to detain enemy combatants for the duration of the war. However, if enemy combatant challenges the detention under habeus corpus, they have a due process right to be heard before impartial decision maker. Due process = impartial decisions maker only. NOT jury trial. i. Court left impartial decision maker undefined. That’s what Hamdan is about. k. Rasool v. Bush i. Court held that Federal Court had Habeus Jurisdiction to reach Guantanamo Bay. The remedy would be court could order rumsfled to order the people in guantanamo to release the prisoner. l. Hamdan Case 2005 (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. Hold: Hamdan did not say military commissions are unconstitutional, but struck them down by saying they were not authorized by legislation (Geneva Convention or presidents war powers). iii. Professor: Rights depend on the president, the magnitude of the ware, how egregious the legal violations are. iv. Hold: Supreme court invalidated all precedent in area (Lincoln to FDR). FDR WWII tribunals were upheld, but not today. v. Congress then passed a law allowing military commissions. 3. Bottom Line: Courts will not fight a popular president. If a president is weak, they will look for ways to enforce laws against him. v. Political Question Doctrine 1. Supreme court is not going to question the presidents use of power to maintain the sovereignty of the constitution. a. They claim it is a political question and executive’s discretion. Dormant Commerce Clause Test (1) If Congress does not legislate go to Dormant Commerce Clause power which arises under the supremacy clause. (2) If state laws burden and discriminate against interstate foreign commerce. a. Clearly no laws who’s purpose it is to regulate interstate commerce, as it will by definition burden congresses power to regulate interstate commerce. b. NO laws that discriminate against interstate commerce on their face, as applied, or in their impact. i. Market Participation Exemption: When the state is a private party in the market wants to sell its product just to the state, that is ok. ii. Non-exportation laws don’t work either unless do it under their police power to promote health safety and welfare. c. No laws that burden interstate commerce. (a) Look to: Is the law rationally related to a legitimate state interest? a. Economic protection is disqualified. b. Ex. Black bird creek: under police power. (b) Does the law have the practical effect of regulating out of state transactions? (c) Has to have a proven regulatory effect and not just an economic effect. (d) If the law discriminates, is it the least restrictive means of discrimination (e) Are the burdens the law places on interstate commerce clearly excessive in relation to the benefits afforded to the state.. (f) If so, does the law represent the least burdensome means for state to achieve its goal. Raich: Nullification Doctrine – don’t get into too much. Priveleges and Immunities Clause: protects in excise of fundamental rights such as free speech. About rights as an individual. One of fundamental rights is right to earn a living. In earning a living you are engaging in commerce. Congress Can’t apply it’s laws to manufacturing monopolies under the Sherman Act. Manufacturing isn’t commerce. STATE ACTOR DOCTRINE