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					Silveria v lockyer Constitutional challenge to state assault weapon restrictions the state of California strengthened its reg on the possession use and transfer of semie automatic guns. Rol 2nd amend does not guarantee the individual right of people to keep and bear arms It guarantees the collective right of the people to keep and bear arms for the maintenance of effective state militas.

US v klein. Appeal of compensation awarded for prop destroyed by the union army during the civil war. Klein was awarded compensation for prop destroyed during civil war. Needed pardon to show his loyalty to union to get the comp. Then congress says pardon not good enough. Issue does a statute violate the separation of powers by commanding a court to draw a certain conclusion from evidence before it and Holding- yes. This law does not regulate appeallate power as permited by the const. if the law simply denied the right of appeal in a certain class of cases, it would be const. This Case shows congress trying to dictate outcome of judiciary, which is not allowed. Congress violated the separation of powers of the const.

Ex parte McCardle After the civil war congress imposed military government on many former confederate states under authority of the civil war reconstruction acts. D was a newspaper editor and brought a habeas corpus writ based on a congressional act passed in 1867. the act authorized fed courts to grant habeas corpus to persons held in violation of con rights, and also gave authority for appeals to the supreme court. Congress then passed an act that repealed the 1867 act. Issue does congress have the power under the constitution to make exceptions to the appellate jurisdiction of the supreme ct Holding- yes. The constitution gives congress the express power to make exceptions to that appellate jurisdiction.

Two sources for below- (5 things)

1. article III- cases and controversies 2. prudence reserving judicial resources and ensuring good outcome a. no advisory opinions - opinion of the justices - hayburns case - plaut - Nashville, 5 major justiciabilty doctrines; 1. the prohibition against advisory opinions,a. reasons i. separation of powers is maintained by keeping the cts out of the legislative process. ii. Judicial resources conserved. iii. No hypotheticals will occur. b. Criteria for advisory opinion i. there must be an actual dispute b/w the adverse litigants. ii. 2nd in order for a case to be justiciable and not an advisory opinion there must be a substantial likelihood that a fed court decision in favor of a claimant will bring about some change or have some effect. iii. Requiring an injury is key to ensuring that there is an actual dispute between litigants and that the ct is not being asked for an advisory opinion 2. standing, most impt. Standing is the determination of whether a specific person is the proper party to bring a matter to the court for adjudication. a. First the plaintiff must allege that he or she has suffered or imminently will suffer an injury (INJURY) b. The plaintiff must allege that the injury is fairly traceable to the decision d’s conduct (CAUSATION AND REDRESSABILITY)pg 48 c. The p must allege that a favorable fed court decision is likely to redress the injury. 3. ripeness, is a justiciability doctrine determining when review is appropriate. Ripeness doctrine seeks to separate matters that are premature for review because the injury is speculative a. 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 ct will find ripeness. b. cases will be ripe when one of 3 hardships exist i. hardship from choice between possibly unnecessary compliance and possible conviction ii. hardship where enforcement is certain iii. hardship because of collateral injuries. 4. mootness, is when the issue goes away on own. There are 3 exceptions

a. Ex. Plaintiff in civil case dies, d in criminal case on appeal dies, or law has been overturned. i. Exceptions- for wrongs capable of repetition but evading review(wrong happens to quick to review before ct has time to get to it) ii. Voluntary cessation. If a d voluntarily ceases the allegedly improper behavior but is free to return to it at any time. iii. Class action suits. Supreme court has held that a properly certified class action suit may continue even if the named plaintiff claims are rendered moot. 5. and the political question doctrine- refers to allegations of constitutional violation that federal courts will not adjudicate and that the supreme court deems to be inappropriate for judicial review. It is left to the elected branches of government to interpret and enforce. a. Reasons why i. Separation of powers b. Four things i. Malapportionment- like gerrymandering ii. Congressional Self Governance iii. Foreign affairs iv. impeachment

Plaut v spendthrigt farm inc Facts- p represented the class in an action alleging that d violated statute 10b of the securities exchange act of 1934 through the use of fraud and deceit in the sale of stocks. P’s claims were dismissed with prejudice no appeal was filed and the judgment became final. Subsequently congress amended the securities exchange act, changing the limitations period and mandating reinstatement of any action dismissed as time barred subsequent to the lampf case. P moved to reinstate because of the new amendment. Issue- may congress retroactively command the federal courts to reopen final judgment without violating separation of power doctrine. Holding- no. congress may not retroactively command the fed courts to reopen final judgments without violating the separtation of powers doctrine. Violates article III. ROL- congress amy not retroactively command the fed courts to reopen final judgments without violating the separation of powers doctrine. Allen v wright Facts- parents of black school children brough an action to compel irs (d) to deny tax exempt status to private schools that discriminate. It was alleged that the practice promoted segregated schools and made desegregation more difficult.

PH- held for Ps. Issue- does one have standing to sue in fed court if he cannot allege a violation of a right personal to him Holding- no. one does not have standing to sue in fed court if he cannot allege a violation a right personal to him. Rol- one does not have standing to sue in fed court if he cannot allege a violation a right personal to him.

Us v hays- no standing because they are not in the district they are bringing the claim for, so they aren’t the one suffering a harm.

Prudential limitation Two things 1. no third party standing 2. generalized grievances Singleton v Wulff Facts- Wulff was a physician, him and another physician brought suit on behalf of welfare patients who were eligible for medicaid payments, challenging a state statute that excluded abortions that were not medically indicated from the purpose for which Medicaid benefits were available to needy persons. Issue- does a litigant have standing to bring suit where the ligants relationship with a third party whose rights he wishes to assert is very close and where there are genuine obstacles to the third party’s suing on its own behalf Holding- yes. A litigant has standing to bring suit where the litigants relationship with a third party whose rights he wishes to assert is very close and where there are genuine obstacles to the 3rd party’s suing on its own behalf. Also if wulff wins the suit, they would benefit by receiving payment for the abortions and the state would be out of pocket by amt of payments. Women having abortion also might not bring case cause of privacy issues Rol- A litigant has standing to bring suit where the litigants relationship with a third party whose rights he wishes to assert is very close and where there are genuine obstacles to the 3rd party’s suing on its own behalf

Elk grove unified school dist v newdow

Facts- case is about a California girl whose father does not want her to say the pledge of allegiance in school because he is an atheist. Mom is the legal guardian, does want her daughter to say it, says daughter has no problem saying pledge since she is Christian. Lower court said he could continue because a noncustodial parent still has a right to object to an unconstitutional government action affecting his child. Issue- does newdow have standing? Holding- no. Rationale- children themselves have constitutional protectable interests. It is the future of the student, not the future of the parents that is at stake. Rol- when hard questions on domestic relations are sure to affect the outcome the prudent course is for the fed court to stay its hand rather than reach out to resolve a weighty question of fed con law. California law deprived newdow the right to sue as “next friend”, as a result he lacks prudential standing to bring this suit in fed court.

US v Richardson Issue- determine whether the respondent has standing to bring an action as a fed taxpayer alleging that certain provisions concerning public reporting of expenditures under the CIA act. ROL- flaust v Cohen court announced a 2 pronged standing test which requires 1. challenging an enactment under the taxing and spending clause of the constitution 2. claiming that the challenged enactment exceeds specific constitutional limitations imposed on the taxing and spending power 2 rol- frothingham case said need to allege direct injury to prove standing holding- no standing. The mere recital of the respondents claims and an examination of the statute under attack demonstrate how far he falls short of the standing criteria of flaust rat- his challenge is not addressed to the taxing or spending power, but to the statutes regulating the cia. He makes no claim that appropriated funds are being spent in violation of a specific constitutional limitation. As a result he is in no danger of suffering any particular concrete injury. Flast v cohen Issue- whether the frothingham barrier should be lowered when a taxpayer attacks a fed statute on the ground that it violates the establishment and free exercise clauses of the first amendment.

(the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution) does the party have a personal stake in the outcome of the controversy.

Facts- appellants filed suit in ny to enjoin the allegedly unconstitutional expenditure of federal funds. Appellants rested there standing on that they were taxpayers. Rol- court found no absolute bar in article III to suits by fed taxpayers challenging allegedly unconstitutional federal taxing and spending programs. Two prong test 1. taxpayer must establish a logical link between the status and the type of legislative enactment attacked. 2. the taxpayer must establish a nexus between the status and the precise nature of the constitutional infringement alleged. Must show both to have standing. Holding- both nexuses to support claim of standing have been met.

Class notes I. Int. Limits II. congressional III justiciability limits Constitutional Pragmatic

Valley forge Christian college v Americans united for separation of church and state inc facts- article IV section 3 gives congress power to dispose of and make all needful rules and regulations respecting the prop of the US. They gave land to valley school, American united protested this decision. Issue standing exist Rol- where using two prong test from flast. 1. taxpayer must establish a logical link between the status and the type of legislative enactment attacked. 2. the taxpayer must establish a nexus between the status and the precise nature of the constitutional infringement alleged.

Holding- fail on first prong. The source of their complaint is not a congressional action, but a decision by HEW to transfer land to valley.

RIPENESS- (may not be informed enough either) Poe v Ullman (pg 67) Issue- constitutionality, under the 14th amendment of Connecticut statues which as authoritatively prohibited the use of contraceptive devices and the giving of medical advice in the use of such devices. Facts- Poe’s keep having babies. 3 actually. They have all died from a genetic disorder. Causes Poe’s lot of psychological distress. As a result want to be able to use birth control advices doc can give, but doc wont cause d will claim it is against statute. D equal state attorney. Holding- not ripe Rat- the fact that Connecticut has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication.

Abbot lab v Gardner Rol- without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts through aboidance of premature adjudication from entangling themselves in abstract disagreements over administrative policies and also to protect the agencies from judicial interference until an admininstrative decision has been formalized and its effect felt in a concrete way by the challenging parties. So the court is doing two things 1. requiring us to evaluate both the fitness of the issues for judicial decision and 2. the hardship to the parties of withholding court consideration Issue- is this case ripe Holding- part 1 of test past. The issue presented are appropriate for judicial resolution at this time. It is a purely legal one, which asked whether the statute was properly construed by the commissioner to require the established name of the drug. 2. part 2 passes as well. the law passed has a direct effect on the day to day business of all prescription drug companies. Either destroy all current labels, advertisements, or risk prosecution for not following the law and printing what needed to be on all labels.

Both parts pass. Case is ripe. Friends of the Earth v. Laidlaw environmental services Facts- environmental groups brought a lawsuit pursuant to a citizen suit provision of clean water act against the holder. Laidlaw comes up to code, and closes a Roebuck facility that was in violation. As a result case is now moot.

United states parole commn v Geraghty Facts- a fed prisoner after twice being denied parole from a fed prison brought suit challenging the validity of the us parole commissions parole relesase guidelines. Issue- raises the question of whether a trial court denial of a motion for certificaition of a class may be reviewed on appeal after the named plaintiffs personal claim has become moot. Rat- clear the controversy over validity of the parold release guidelines is still a live one. Holding- we conclude that these elements can esixt with respect to the class certification issue notwithstanding the fact that the named plaintiffs claim on the merits has expired.

Political question-material inappropriate for judicial review. Should be left to the elected branches of office. The supreme ct has held that certain allegations of unconstitutional government conduct should not be ruled on by the fed cts even though all of the juridictioanl and other justicaiablity reqs are met. Baker v Carr Issue is whether the same challenge is justicable when brought under equal protection for a political question. Rol- in determing whether a question falls with the political question category, the appropriateness under our system of government of attributing finality to the action of the political departments and als the lack of satisfactory criteria for a judicial determination are dominant considerations. Holding-conclude that the complaints allegations of a denial of equeal protection present a justicable constitutional cause of action upon which appellants are entitled to a trial and a decision. Equal protection clause does not require a decision on a political question.

OUTCOME: The decision dismissing plaintiffs' complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted was reversed and remanded because 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

Vieth v Jubelirer Issue- P challenge a map drawn by the Pennsylvania general assembly establishing districts for the election of congressional reps, on the ground that the districting constitutes an unconstitutional political gerrmander. PH- in davis v bandemere this court held that political gerrymandering claims are justiciable but could not agree upon a standard to adjudicate them. Facts- due to 2000 census Penn was losing 2 reps in congress. Republicans gerrymandered it so that they could win most seats. Ps are democrats seeking to change this. Baker set forth 6 independent tests for the existence of a political question 1. a textually demonstrable constitutional commitment of the issue to a coordinate political dept, 2. or a lack of judicially discoverable and manageable standards for resolving it or (this case) 3. the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion or 4. the impossibility of a court’s undertaking indepenedent resolution without expressing lack of the respect due coordinate branches of the government 5. an unusual need for unquestioning adherence to a political decision already made 6. the potentiality of embarrassement from multifarious pronouncements by various depts. On one question ROL- overrule bandemer case, court concludes now that the political gerrymandering claims are nonjusticiable.
Rat- The judicial power to rectify gerrymandering based on race did not provide a basis for considering the political advantages or disadvantages of voting districts, since political affiliation was clearly not permanently discernible and the effects of political gerrymandering could never be adequately assessed. The U.S. Constitution provided equal protection to persons, not equal representation to political parties.

KNOW SOUTERS 5 part test. Talked about in class, he said 5th part of test is most impt.

League united latin American citizens v perry The court again dismissed a challenge to partisan gerrymandering. ---Is partisan gerrymander in a non justiciable political question, and if justiciable -does it violate equal protection ---Is mid decade redistricting unconst ---Did texas violate the voting rights act by diluting minority voter’s voting strength Test out of leagues was if the SOLE motive was political manipulation of voting strength, then can’t do it???? ---Easy to defeat

Powell v McCormack Facts- P was elected to the 18th congressional district of NY to serve in congress. He was not permitted to take his seat. P argues he meets all the reqs set forth in Art I section 2 dealing with age, citizenship and residence. The house claims there has been a textually demonstrable constitutional commitment to the house of the adjudicatory power to determine powell’s qualifications. Thus it is argued that the house and the house alone has the power to determine who is qualified to be a member. Issue- is there a textually demonstrable constitution commitment that allows the house to do this Holding- conclusion that petitioner is correct, that the constitution leaves the house without authority to exclude any person duly elected by his constituents who meets all the requirements for membership expressly prescribed in the constitution. People should choose whom they please to govern them. Rat- moreover it would effectively nullify the conventions decision to require a 2/3s vote for expulsion. Congress has an interest in preserving it institutional integrity, that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and in extreme cases to expel a member with the concurrence of two/third vote. Goldwater v carter Facts- President carter rescinded the us treaty with Taiwan as part of recognizing the peoples republic of china. Senator golwater brought a constutional challenge arguing that the senate must rescind a treaty, just as the senate must ratify the making of a treaty. Political question ct wont answer

Not here to question presidents foreign relations policy. Carter can do it. Nixon v US Facts- Nixon a former chief judge of the US district ct for southern district of Mississippi was convicted by a jury of two counts of making false statements before a fed grand jury and sentenced to prison. Refused to resign he continued to collect a check while serving sentence. House impeaches him Issue- whether senate rule 11 which allows a committee of senators to hear evidence against an individual who has been impeached and to report that evidence to the full senate violates the impeachment trial clause of article 1 section 3 clause 6. Holding- first must decide whether it is justiciable that is whether it is a claim that my be resolved by the cts. Concluded it is not Rat- the constitution gives the senate sole power to try all impeachments. Ct needs to stay out for two additional reasons stated on pg 96. 1. two sets of proceedings for individuals who commit impeachable offenses would be governed by same ct 2. judicial review would be inconsistent with the framers insistence that our system be one of checks and balances-places review authority in the hands of the cts, which the impeachment process is meant to regulate.

Chapter 2 federal legislative power In evaluating the constitutionality of any act of congress, there are always two questions needed to be asked? 1. does congress have the authority under the constitution to legislate 2. if so, does the law violate another constitutional provision or doctrine such as by infringing separation of powers or interfering with individual liberties? When looking at how the supreme ct has answered the questions, 2 key underlying normative issues 1. how impt is the protection of state sovereignty and federalism a. those who favor judicial use of federalism as a constraint on congress’s power usually identify three benefits of protecting state governments i. decreasing the likelihood of federal tyranny ii. enhancing democratic rule by providing government that is closer to the people iii. allowing states to be labs for new ideas 2. should it be the role of the judiciary to protect state prerogatives or should this be left to the political process

congress’s power under three crucial constitutional provisions 1. the commerce power a. article I section 8 states the congress shall have the power to regulate commerce with foreign nations and among the several sates, and with the Indian tribes b. three questions that pop up during the 4 different commerce clause jurisprudence errors i. what is commerce? is it one stage of business or does it include all aspects of business, even life in the US ii. what does among the several states mean is it limited to instances where there is a direct effect on interstate commerce or does any effect on interstate activities suffice iii. does the tenth amendment limit congress if congress is acting within the scope of its commerce power can a law be declared unconstitutional as violating the tenth amendment 2. the spending power 3. section 5 of the 14th amendment a. one approach is narrow and accords congress only authority to prevent or provide remedies for violations of rights recognized by the supreme court under this view congress cannot expand the scope of rights or provide additional rights i. says congress not enforcing if it is creating new rights ii. Cts role to decide rights protected under const. congress role is limited to enacting laws to prevent and remedy violations iii. State b. alternative approach also accords congress authority to interpret the 14th amendment to expand the scope of rights or even to create new rights under this view congress may create rights by statue where the ct has not found them in the constitution, but congress cannot dilute of diminish constitutional rights. i. says congress is enforcing the amendemt by creating greater protections than those found by the ct ii. Both congress and ct have authority to recongnize and protect rights under the constitution. iii. national

McCulloch v Maryland Facts- Maryland trying to tax the US bank. Issue- whether it is constitutional for the state of Maryland to tax the bank of the US.

PH- the trial ct rendered judgment in favor of the Ps, and Maryland ct of appeals affirmed. First must look at does congress have power to incorporate a bank? Yes they do. Congress has the power to make all laws which shall be NECESSARY and proper to carry into execution. Necessary is the key word. Tradition, and People allowed it. (case said necessary, prof says proper.) Prof pts to quote on 107- 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 the end, which are not prohibited but constitutional with the letter and spirit of the constitution are constitutional. Rol- the states have no power by taxation or otherwise to retard impede burden or in any manner control the operations of the constitutional laws enacted by congress to carry into execution the power vested in the general government. Rat- The legislature of the union alone can be trusted by the people with the power of controlling measures which concern all. The American people have declared their constitution and the laws made in pursuance to be supreme, if we allowed Maryland to do this it would transfer the supremacy to the states. FROM SUPPLEMENT Marshall made four arguments why congress has the authority to create the bank 1. histrorical practice a. counter argument- first bank was never proven to be constitutional 2. refute the argument that states retain ultimate sovereignty because they ratified the constitution. Marshall says it was the people, so the people are the soverign. a. Article VII clearly indicates that the states themselves had to ratify the constitution not the people 3. scope of congressional power under article I. can choose any means not prohibited by the constitution to carry out its powers. 4. necessary and proper clause Authority to tax bank- the power to create the bank includes a power to preserve its existence. State cant tax could impede banks operation. Also state tax would be tax on people of other states.

COMMERCE CLAUSE- 4 eras 1. initial era gibbons v ogden 2. 1870-1937 A LIMITED FEDERAL COMMERCE POWER 3. 1938-90 Broad federal commerce power 4. 90-2006

Initial era defines commerce power Gibbons v ogden Facts- NY legislature granted a monopoly to ds and there agent. P operated a competing ferry service and thus violated the exclusive rights given to P. Issue- the Supreme ct considered the scope of congress’s power and then whether the NY grant of a monopoly was constitutional. ROL- congress is authorized to make all laws which shall be necessary and proper. Subject to be regulated is commerce. What is commerceRule- commerce is the power to regulate, that is to prescribe the rule by which commerce is to be governed by. The power over commerce with foreign nations and among the several states is vested in congress as absolutely as it would be in a single govt. Holding- NY couldn’t give right to ogden. Congress had to because they are in charge of all commerce. Notes from class Among- intrastate if impact interstate Had highlighted- commerce among the states, cannot stop at the external boundary line of each state, but may be introduced into the interior. (think it is gonna be the same as the third era)

2nd era 1890-1937 A LIMITED FEDERAL COMMERCE POWER A WHAT IS COMMERCE US V EC Knight Co Issue- fundamental question is whether conceding that the existence of a monopoly in manufacture is established by the evidence that monopoly can be directly suppressed under the act of congress in the mode attempted by this bill. Facts- American sugar refining company acquired nearly complete control of the manufacture of refined sugar within the untied states. US contends that they tried to conspire to restrain the trade and commerce in refined sugar among several states and with foreign nations, contrary to acts of congress Holding- the ct holds it to be vital in our system of government to recognize and give effect to both the commercial power of the nation and the police powers of the states to the end that the union be streghtened and the autonomy of the states preserved.

From luke’s book- congress could control a monopoly of commerce but because manufacturing is not commerce congress may not control a monopoly of manufacturing. ROL FROM BOOK- the commerce clause does not empower congress to regulate acquisitions. Dissent- it is the constitution, the supreme law of the land which invests congress with power to protect commerce among the states against burdens and exactions arising from unlawful restraints by WHATEVER AUTHORITY IMPOSED. Carter v carter coal co. Facts- the act in question confers the power to fix minimum price of coal and transactions dealing with coal. Issue- the constitutional validity of the act What is commerce? Commerce is the equivalent to for the phrase intercourse for the purpose of trade and includes transportation, purchase, sale, and exchange of commodities between the citizens of different states. ROL- The employment of men, fixing of their wages, hrs, and working conditions the bargaining in respect of these things, each and all constitute intercourse for the purpose of production, not of trade. Holding- Court found act was intercourse of production, not trade. As a result not unconstitutional. Rat- The relation of employer and employee is a local relation such effect as they may have upon commerce however extensive it may be is secondary and indirect.

B. what does among the states mean

Houston east, and west texas railway co v United states Holding- Congress has the power to regulate commere among several states. Facts- the interstate commerce commission found that the interstate class rates out of Shreveport Louisiana to named texas points were unreasonable and it established maximum class rates for this traffic. Theses rates were substantially similes to the class rates fixed by the railroad commission of texas and charged by the carries for transportation for similar distances in the state.

ROL- wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is congress and not the state that is entitled to prescribe the final and dominat rule for otherwise congress would be denied the exercise of its constitutional authority and the state and not the nation would be supreme within the national field. Rat- congress possess the power to foster and protect interstate commerce and to take all measures necessary or apporopriate to that end, although intrastate transactions of interstate carriers may thereby be controlled.

ALA schechter poultry corp v US ISSUE- when does intrastate commerce end and interstate commerce begin Facts- P were convicted in the district ct of the us for NY on 18 counts of an indictment charging violations of what is known as the live poultry code andx on an additional count for conspiracy to commit such violations. NYC is largest live poultry market. The poultry was in a current of flow of interstate commerce and was thus subject to congressional regulation. But then it stopped when d bought it. ROL-The mere fact that there may be constant flow of commodities into a state does not mean that the flow continues after the property has arrived and has become commingled with the mass of property within the state and is there held solely for local disposition and use. Rat- hence decisions which deal with a stream of interstate commerce, where goods come to rest within a state temporarily and are later to go fwd in interstate commerce, and with the regulations of transactions involved in that practical continuity of movement are not applicable here. If the commerce clause were to construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce the fed authority would embrace practically all activities of the people. The distinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one essential to the maintenance of our constitutional system. C. does the tenth amendment limit congressional powers 10th amendment states the powers not delegated to the US by the constitution nor prohibited by it to the states are reserved to the states respectively or the people. Key question about tenth amendment is whether it is a judicially enforceable limit on congress’s powers, can federal laws otherwise within the scope of congress’s authority be declared unconstitutional as violating this constitutional provision? 2 ways to answer

1. tenth amendment is not a separate constraint on congress but rather is simply a reminder that congress only may legislate if it has authority under the constitution 2. the tenth amendment protects state sovereignty from federal intrusion. a. Key protection of states rights and federalism. Hammer v. Dagenhart Facts- bill was filed in NC by a father in his own behalf and as next friend of his two minor sons, employees in a cotton mill to enjoin the enforcement of the act of congress intended to prevent interstate commerce in the products of child labor. Issue- is it within the authority of congress in regulating commerce among the states to prohibit the transportation in interstate commerce of manufactured goods the product of a factory in which within have been employed or permitted to work or children between the ages of 14-16 have been employed or permitted to work more than 8hrs in any day or more than 6 days in any week Answer NO Holding- to sustain this statute would not be in our judgment a recognition of the lawful exertion of congressional authority over interstate commerce, but would sanction an invasion by the federal power of the control of a matter purely local in its character and over which no authority has been delegated to congress in conferring the power to regulate commerce among the states. Rat- would give congress power over local matter, which federal authority does not extend. Class- allowed kids to still make stuff, but wont let them ship to other states. Champion v Ames Holding the supreme ct upheld a federal law prohibiting interstate shipments of lettery tickets and rejected a tenth amendment challenge Rat- lottery tickets are subjects of traffic and therefore are subjects of commerce and the regulation of the carriage of such tickets from state to state is a regulation of commerce among the states. Argument is that congress is allowed to regulate not prohibit. Why this argument lost is because congress for the purpose of guarding the people of the US against widespread pestilence of lotteries and to protect the commerce which concerns all the states, may prohibit the carrying of lottery tickets from one state to another. So key word protection of other states.

Third era 1937-1990s Broad federal commerce power Key decisions changing the commerce clause doctrine- these 3 cases adopt broad definitions of commerce and among the states and reject the tenth amendment as a limit on congress’s commerce clause power. 1. NLRB v jones and Laughlin steal corp in 1937 2. us v darby in 1941 3. wickard v fillburn in 1942 things coming out of this era 1. During this time not one federal law was declared unconstitutional as exceeding the scope of congress’s commerce power. 2. Commerce includes all stages of business know including mining manufacture and production. 3. congress can regulate any activity intrastate or interstate that has a substantial effect on interstate commerce 4. tenth amendment is no longer seen as reserving a zone of activities for exclusive state control NLRB v Jones and Laughlin steel corp. Facts- in a proceeding under the national labor relations act of 1935 the national labor relations board found that the respondent had violated the act by engaging in unfair labor practices affecting commerce. The unfair labor practices charge was discrimination against members of the union. Respondent has 75 percent of its products shipped out of PA. lot of out of state connections. Issue- act is challenged in its entirety as an attempt to regulate all industry thus invading the reserved powers of the states over their local concerns. Holding we think it clear that the national labor relations act may be construed so as to operate within the sphere of constitutional authority. Commerce is interstate in this case. The congressional authority to protect interstate commerce is not limited. The fundamental principle is that the power to regulate commerce is the power to enact ALL appropriate legislation for its protection or advancement to adopt measures to promotes its growth and insure its safety to foster protect control and restrain. Rat- it purports to reach only what may be deemed to burden or obstruct that commerce and thus qualified it must be construed as contemplating the exercise of control within constitutional bounds. It is the effect upon commerce not the source of the injury which is criteria. Even when activities may be intrastate in character when separately considered if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions congress cannot be denied that power.

United states v darby Issue- two principal questions are 1. whether congress has constitutional power to prohibit the shipment in interstate commerce of lumber manufactured by employees whose wages are less than a prescribed minimum or whose weekly hrs of labor at that wage are greater than a prescribed max a. Holding- congress is allowed to exclude from comerece articles whose use in the states for which they are destined it may conceive to injurious to the public healt morals or welfare even though the state has not sought to regulate their use. i. Hammer v dagenhart has been overruled. The distinction on which the decision was rested was novel when made and unsupported by any provision of the constitution, has long since been abandoned. Back to gibbons v ogden. 2. whether it has power to prohibit the employment of workmen in the production of goods for interstate commerce at other than prescribed wages and hrs a. Rol- the power of congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those acticities intrastate which so affect interstate commerce. b. Rat- congress having by the present act adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards, it may choose the means reasonably adapted to the attainment of the permitted end, even though they involve control of intrastate activites. Facts- darby, in the state of Georgia, in the business of acquiring raw materials which he manufactures into finished lumber with the intent when manufactured to ship it in interstate commerce to customers outside the state and that he does in fact so ship a large part of the lumber so produced. Wickard v filburn Facts- appellee for many years has owned and operated a small farm in Ohio. July of 40 pursuant to agricultural act of 1938 he was given a wheat allotment of 11 acres and normal yield of 20 bushels an acre. He sowed 23 acres and harvested and an excess of 239 bushels from the extra acres. The agricultural act was passed to control the volume moving in interstate and foreing commerce in order to avoid surpluses and shortages. Appelle argues that under the commerce clause of the constitution article I section 8 clause 3 congress does not possess the power it has sought in the above act. Issue- US v darby sustained the federal power to regulate production of goods for commerce except for the fact that this act extends federal regulation to production not intended in any part for commerce but wholly for consumption on farm. (his chickens other animals need wheat)

Appelle argues- regulation of production and consumption of wheat. Which isn’t allowed. Holding- it is well established the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affect such prices. Purpose of the act was to increase market price of wheat. Wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing the law. Meaning of commerce among the states Civil rights commerceHeart of Atlanta Motel inc. v. US Issue- sole question posed is the constitutionality of the civil rights act of 1964 Facts- appellant owns and operates the heart of Atlanta motel. Prior to the passage of the civil rights act of 1964 the motel had a practice of not allowing negroes to rent rooms, and it alleged it continued to do so. Appellant argues- congress in passing this act exceeded its power to regulate commerce. Appellees counter- interferes significantly with interstate travel, and that congress under the commerce clause has power to remove obstructions and restrains Holding- for congress. We therefore conclude that the action of the congress in the adoption of the act as applied here to a motel which concededly serves interstate travelers is within the power granted it by the commerce clause of the constitution. ROL- is within the sound and exclusive discretion of congress on how to remove obstructions in commerce, subject to one caveat that the means chosen by it must be reasonably adapted to the end permitted by the Constitution. Katzenbach v McClung sr. and jr. Issue- is the holding from heart of Atlanta motel, which found it a valid exercise of the power to regulate interstate commerce insofar as it requires hotels and motels to serve transients without regard to race or color, applicable to restaurants which serve food that has been moved in commerce? Holding- the district court was in error in concluding that there was no connection between discrimination and the movement of interstate commerce.

Rat- even if appellee’s activity by local, and though it may not be regared as commerce, it may still whatever its nature be reached by congress if it exerts a substantial economic effect on interstate commerce. ROL- the activities that are beyond the reach of congress are those which are completely within a particular state which do not affect other states. It is within the sound and exclusive discretion of congress on how to remove obstructions in commerce, subject to one caveat that the means chosen by it must be reasonably adapted to the end permitted by the Constitution. Regulatory Laws- commerce Hodel v Indiana- a court may invalidate legislation enacted under the commerce clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce or that there is no reasonable connection between the regulatory means selected and the asserted ends. Crim Law- commerce Perez v. US Issue- whether title II of the consumer credit protection act is a permissible exercise by congress of its powers under the commerce clause of the constitution. Commerce clause reaches three categories here 1. the use of channels of interstate or foreign commerce which congress deems are being misused. 2. protection of the instumentalities of interstate commerce 3. those activities affecting commerce a. issue at hand Rat- extortionate credit transactions though purely intrastate may in the judgment of congress affect interstate commerce Holding- congress can do it. Loan sharking in its national setting is one way organized interstate crime holds its guns to the heads of the poor and the rich alike Dissent- aggress congress does have power to enact crim laws to protect interstate commerce, but under this statute a man can be convicted without any proof of interstate attributes. This statute to broad.

National league of cities v usery (note only applies when congress was regulating state governments, not extended to private conduct) Issue- we must resolve here then is whether the fair labor standards act, determinations are functions essential to separate and independent existence of congress and state

Facts- under the fair labor and standard act it regulated how much states had to pay state employees. All states complaining cause there expenses going up. California had to let fewer cadets in for officer training. Holding- we hold that insofar as the challenged amendments operate to directly displace the states freedom to structure integral operations in areas of traditional governmental functions they are not within the authority granted congress by article I section 8 clause 3. Dissent Holding- federal government may not interfere with a soverign states inherent right to pay a substandard wage to the janitor at the state capitol. (stevens in dissent) Rat- the fair labor standard act would hurt the states functions of servicing the people of that state. Dissent- today’s repudiation of this unbroken line of precedents that firmly reject ill conceived abstraction can only be regarded as transparent cover for invalidating a congressional judgment with which they disagree. For fed law to violate the tenth amendment 1. needed to regulate states as states 2. must address matters that are indisputably attributes of state sovereignty 3. it must directly impair the states ability to structure integral operations in areas of traditional governmental functions 4. and it must not be such that the nature of the federal interest justifies state submission Garcia v San Antonio (overrule national league of cities) Old rule- commerce clause does not empower congress to enforce the min wage and overtime provisions of the fair labor standards act against the states in areas of traditional government functions. Holding- courts examination of this function standard, now persuades us that the attempt to draw boundaries of state regulatory immunity in terms of traditional governmental function is not only unworkable but is also inconsistent with established principles of federalism. Now to be looked at on a case by case basis. Rat- Court now rejects a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is integral or traditional. Leads to inconsistent results Court found that nothing in the overtime and minimum wage req. of the FLSA acct is destructive to state sovereignty or violative of any constitutional provision. Dissent- upset that majority ignores the role of judicial review, also states cant protect themselves.

Fourth commerce era 1990- present Narrowing of the commerce power and revival of the tenth amendment as a constraint on Congress. Things in this era 1. supreme court once more changed course with regard to the scope of congress’s powers under the commerce clasue and whether the tenth amendment is a limit on fed power st 2. Lopez case will be the 1 time in 60 yrs found that a fed law exceeded congress’s commerce clause authority 3. court uses the tenth amendment to protect state governments from fed encroachments. 4. significantly narrowed the the scope of congress powers and have greatly increased the immunity of state governments to suit in state or fed court. Two question to focus on in this era 1. Descriptively- what principles does the court articulate as to when congress exceeds the scope of its commerce clause authority and when congress violates the 10th amendment? 2. Normatively- does the court persuasively justify the desirability of these limits on federal powers?
A.

what is congress authority to regulate commerce among the states

US v Lopez- found that a federal law exceded congress’s commerce clause authority. Facts- congress made it a federal offense to have a gun in a area that might be a school zone. 12th grade student came to school with gun. School confronted him, he admitted to carrying gun. ROL- three broad categories of activity that congress may regulate under its commerce power 1. congress may regulate the use of the channels of interstate commerce (air, sea,
water)

congress is empowered to regulate and protect the instrumentalities of interstate commerce or person or things in interstate commerce even though the threat may come only from intrastate activities. (trains, plains, autos) 3. congress commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce those activities that substantially affect interstate commerce.
2.

Issue- whether an activity must affect or substantially affect interstate commerce in order to be within congress power to regulate it under the commerce clause. (dealing with number 3.

Proper test is- requires an analysis of whether the regulated activity substantially affects interstate commerce. Holding- where economic activity substantially affects interstate commerce legislation regulating that activity will be sustained. the act neither regulate a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. It also does not have a substantial relation to interstate commerce. As a result, held that the act exceeds the authority of congress to regulate commerce among the states Rat- the possession of a gun in a local school zone is in no sense an economic activity that might substantially affect any sort of interstate commerce. Need a stronger connection to commercial for commerce clause use. Concurring- takes away state rights. Dissent-substantially affecting interstate commerce if there is any rational basis for such a finding should be deferred to congress. If in congress realm, only question is means chosen by congress are permitted by constitution. Is not whether the regulated activity sufficienty affected interstate commerce but rathter whether congress could had a rational basis for so concluding. Dissent says majority hold creates 3 problems 1. contrary to modern SC cases that have upheld congressional actions despite connections to interstate or foreing commerce that are less significant than the effect of school violence 2. courts apparent belieft it can reconcile its holding with earlier cases by makiking distinctions between commercial/non commercial 3. threatens legal uncertainty in area that had reasonably certainty.

United States v Morrison Issue- consider the constitutionality of 42 USC statue 13981 which provides a federal civil remedy for the victims of gender motivated violence. More specifically does this pass the 3 broad category for ROL of commerce clause PH- court of appeals 4th circuit struck down 13981 because it concluded that congress lacked constitutional authority to enact the sections civil remedy. Holding- affirmed. Can only invalidate a congressional enactment only upon a showing congress has exceeded its constitutional bounds. Gender-motivated crimes of violence are not, economic activity, so cant use commerce clause. ROL- three broad categories of activity that congress may regulate under commerce power.

1. may regulate the use of the channels of interstate commerce 2. empowered to regulate and protect the instrumentalities of interstate commerce, or persons and things in interstate commerce 3. power to regulate those activities having a substantial relation to interstate commerce (this is the big one that most case rest on. 1 and two are easy to prove/disprove.) Rat- reject the argument that congress may regulate non economic violent criminal conduct based solely on that conducts aggregate effect on interstate commerce cause it would ruin the distinction between national and local authority. Facts- petitioner is Christy B. she attended VT in 1994, met two guys who were on football team. They assaulted and raped her. Dissent- congress has the power to legislate with regard to the activity in the aggregate has a substantial effect on interstate commerce, Congress is a better judge of that then the court, why substantial effect test is not good. After US v Morrison been two developments with regard to congress’s power to regulate commerce among the states 1. the court has narrowly construed some fed laws to avoid the question of whether they exceed the scope of congress commerce power. (solid waste agency of northern cook county v US army corps of engineers) 2. the court’s reaffirming that congress has broad power to regulate the channels of interstate commerce.(pierce county v guillen) a. Pierce case is first time since lopez and Morrison in which the SC has rejected a commerce clause challenge and upheld a fed law Solid Waste agency of northern cook county v US army corps of engineers Issue- whether the provisions of 404(a) may be fairly extended to these waters and if so whether congress could exercise such authority consistent with the commerce clause. Holding- answer first issue in negative so that they don’t have to question the authority of congress dealing with the commerce clause. Rat- in order to rule for R here we would have to hold that the jurisdiction of the corps extends to ponds that are not adjacent to open water. Court says not navigable waters, so first question answer is no, no need to look at second question Rol- where an otherwise acceptable construction of a statute would raise serious constitutional problems, the court will construe the state to avoid such problems unless such construction is plainly contrary to the intent of congress. Reasoning- courts prudential desire not to needlessly reach constitutional issues

Dissent- the discharge of fill material into the nation’s wastes is almost always undertaken for economic reasons. Shouldn’t duck the question. Migratory birds is a textbook example of a national problem. Dissent rat- the power to regulate commerce among the several states necessarily and properly includes the power to preserve the natural resources that generate such commerce.

Pierce county, Washington v Guillen Issue- whether 23 USC section 409 which protects info in connection with certain fed highway safety programs from being discovered or admitted in certain fed or state trials is a valid exercise of congress’s authority under the constitution. Facts- Hazard elimination program provides state and local governments with funding to improve the most dangerous sections of their roads. To be eligible must undertake evaluation of public roads, identifying hazardous locations. States objected to absenece of confidentiality because worried would increase risk of liability for accidents happening in hazardous zones before improvements could be made. So congress passed law making it be confidential. Guillen’s wife died in accident. Months before accident, Pierce county asked for funding for this intersection where death occurred but was denied. 3 weeks after accident Pierce county renewed its application for funding and the was approved. Guillen sought this info. Know issue is--Holding- statute is constitutional. Commerce clause gives congress authority to regulate the use of the channels of interstate commerce. Confidentiality enables congress to solve this problem easier since states will be more open about problems, thus it does fall under the commerce clause power. Supplement case Gonzales v Raich Issue- constitutionality of whether congress pursuant to its commerce power, can criminally prohibit and punish cultivation and possession of small amts of marijuana for medical purposes. Facts- California one of nine states that authorize use of marijuana for medicinal purposes. Monson and Raich were growing weed that got destroyed by the DEA. Holding- pot no good. Rational basis test for congress. Concurring- scalia proper and necessary, medical marijuana can be passed to others. O’Connor dissent- state sovereignty, states right to experiment

Thomas dissent- pot was never sold, they grew it themselves. No commerce involved Gonzales v Oregon (supplement) Death with dignity act, allow physician assisted suicide. 6-3 decision. State has the right to regulate medical profession. Rapanos (supplement) Can only go into navigable waters.

Gregory- statute only applied if Congress clearly indicated that it wanted the law to apply. So applies to private b not states. b.-Does the tenth amendment limit congress’s authority following two cases use the tenth amendement to invalidate fed laws 1. NY v US 2. and Printz v US NY v U.S Public policy issue- the disposal of radioactive waste: the constitutionality of three provisions of the low level radioactive waste policy The tenth amendment thus directs us to determine as in this case whether an incident of state sovereignty is protected by a limitation on article I power. Holding- while congress has substantial power under the constitution to encourage the states to provide for the disposal of the radioactive waste generated within their borders, the constitution does not confer upon congress the ability simply to compel the state to do so to. Rat- rather than addressing the problem of waste disposal by directly regulating the generators and disposers of waste, petitioners argue congress has impermissibly directed the states to regulate in this field. This makes state officals bear brunt of public disapproval, while fed officals who devised the regulatory program may remain insulated from the electoral ramifications. Accountability diminished. ROL- congress may not simply compel state to enforce a fed regulatory program. Constitution confers upon congress the power to regulate individuals, not states. Can urge a state by 1. attaching conditions on the receipt of federal funds 2. congress’s power to offer states choice of regulating that activity according to fed standards or having the state law pre empted by fed regulations

Reasoning- if a states citizens view fed policy as contrary to local interest they may elect to decline a fed grant. Dissent- States asked congress to help. States where the ones that wanted this law. Court’s refusal to force NY to accept responsibility for its own problem inevitably means that some other states sovereignty will be impinged by it, being forced for public health reasons to accept NY waste. If congress doesn’t act one state can act as bully to other state. Task of ascertaining constitutional line between fed and state power, two ways question is asked 1. whether an act of congress is authorized by one of the powers delegated to congress in article I of the constitution 2. determine whether an act of congress invades the province of state sovereignty reserved by the tenth amendment Printz v US Issue- whether certain interim provisions of the brady handgun violence prevention act commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and perform certain related tasks violate the constitution. Facts- brady act requires law enforcement personal to perform background checks before issuing permits for firearms. P are challenging because they object to being pressed into federal service and contend that congressional action compelling state officers to execute federal laws is unconstitutional. ROL- looking at three things to answer the issue 1. historical understanding and practice a. if earlier congresses avoided use of this highly attractive power, would have reason to believe that the power was not to exist i. early laws establish that the constitution was originally understood to permit obligations on state judges to enforce federal prescriptions related to judicial power, not a power of congress to impress the state executive into service. (so assumed absence of power to do that) 2. the structure of the constitution a. President shall take care that the laws enacted by congress shall be faithfully executed. If we allowed this responsibility to be passed to the states, the power of the president would be subject to reduction by congress making the states do it effectively without the President 3. the prior jurisprudence of this court a. Cant allow a law to infringe on state’s sovereignty by requiring a state to help enforce a federal law. NY v US

Hold- congress cannot circumvent the prohibition in NY v US by conscripting the states officers directly. The federal government may neither issue directives requiring the states to address particular problems, nor command the states officers or those of ther political subdivisions to administer or enforce a federal regulatory program. Rat- Are fundamentally incompatible with our constitutional system of dual sovereignty Dissent- when congress exercises the powers delegated to it by the constitution it may impose affirmative obligations on executive and judicial officers of state and local governments as well as ordinary citizens, supported by text of constitution, early history of the nation, decision of this court, and a correct understading of the basic structure of the fed government. NOTE FOR FINALWHEN WRITING AS A JUSTICE- Liberal judges try to expand the commerce clause, while conservative judges try to narrow. Conservative judges state rights, state sovereignty, Liberal give more power to congress unless constitution says no reserved for states. Reno v Condon- (will tell us principles for when congress can and cannot regulate state governments) Holding- court rejected a tenth amendment challenge to the federal drivers privacy protect act that prohibits state departments of motor vehicles from releasing personal info such as home address and social security numbers. Congress did not run afoul of the federalism principles enunciated in NY v US and Printz v US. The personal identifying info that the DPPA regulates is a thing in interstate commerce and the sale or release of that info in interstate commerce is therefore a proper subject of congressional regulations. Rat- used by insurances, manufacturers, direct marketers. Drivers info an article of commerce in this situation Facts- DDPA regulates the disclosure and resale of personal info dealing with state DMVs. The DDPA restricts states ability to disclose a drivers personal info without consent. It also applies to private citizens who obtain the info. Conflicts with SC law. SC law allows the info to be attained on someone if you fill out a form. ROL- states or individuals cant sell/resell info without consent.

C.

The taxing and spending power

Article I section 8 gives congress power to lay and collect taxes. The power to tax and spend is one of one of most impt congressional powers

What purpose may they tax and spend Congress has broad authority to tax and spend for general welfare (see US v Butler) impt to distinguish two issues 1. scope of congress taxing and spending power (taking from US v dole) a. must be in pursuit of the general welfare b. if congress desires to condition the states receipt of federal funds it must do so unambiguously enabling the states to exercise a choice c. conditions on fed grants might be illegititmate if they are unrelated to the fed interest in particular national projects or programs 2. whether the tenth amendment is a limit on it

US v Butler (holding here is still good law dealing with the scope of issue 1 above, but not issue 2) Issue- must determine whether certain provisions of the agricultural adjustment act 1933 conflict with the federal constitution. Facts- The act gave the secretary of agriculture powers to set limits on production of certain crops and impose taxes on production in excess of these limits. ROL- Hamilton’s view. Taxing 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 req that it shall be exercised to provide for the general welfare of the US. (doesn’t matter though this case is a state issue) Holding- the act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production a matter beyond the powers delegated to the fed gov. the tax is but means to an unconstitutional end. So cant tax. Dissent- the taxing power is intended to defray an expenditure for the general welfare rather than for some other support of government. The ct should look see if it can be enacted, not the wisdom of whether it infringes on states rights Congress is given a broad scope for spending (pg 201) Sabri v US Issue- whether 18 USC proscribing bribery of state local and tribal officials of entities that receive at least 10 thousand in fed funds is a valid exercise of congressional authority under article I of the constitution Holding- court holds it is, reaffirmed a broad scope for congress’s authority under the spending clause

Facts- P is a real estate developer who proposed to build a hotel and retail structure in the city of Minneapolis. P didn’t have faith he could comply with zoning laws, bribed congressman on 3 occasions. Says need proof fed money spent in this case. Rat- congress has right to see money spent for general welfare, and not frittered away in graft or on projects undermined when funs are siphoned off or corrupt public officers a derelict about demanding value for dollars. Congress does not have to just sit and watch South Dakota v Dole (spending power case) ROL- congress does have the power to fix the terms upon which its money allotments to states shall be disbursed. Facts- SD allows 19 yr olds to drink. 1984 congress enacted USC 158 which directs the secretary of transportaion to withhold a percentage of federal highway funds otherwise allocable from states to any state that allows a person under 21 to drink. SD challenges this law Issue- is 158 in violation of the constitutional limitations of congressional exercises of the spending power Holding- no, congress may attach conditions on the receipt of fed funds. ROL- spending power limitations a. must be in pursuit of the general welfare b. if congress desires to condition the states receipt of federal funds it must do so unambiguously enabling the states to exercise a choice c. conditions on fed grants might be illegititmate if they are unrelated to the fed interest in particular national projects or programs rat- is for general welfare, state does have a choice, and three is satisfied want safe interstate travel. Say 5 percent is not coercion, still have choice. Dissent- not convinced by number 3rd limitation. Says not reasonably related. D. Congress powers under post civil war amendments. 1. 13th amendment no slavery 2. 14th due process and equal protection, congress has power to enforce 3. 15th right of citizenst to vote, congress has power to enforce Two questions 1. may congress regulate private conduct under this authority or limited to regulating government actions a. 13th yes can regulate private b. 14th no can regulate private 2. what is the scope of congress power under these amendments

US v Morrison (14th amendment section 5 case) Issue is the constitutionality of the civil damages provision of the violence against women act. Should the act be upheld as an exercise of congress remedial power under 14th amendment section 5. Facts- woman raped by football players. Holding- cant be sustained under the federal civil remedy, must go through the state. Dissent- leave for another day cause they liked commerce clause. 2 What is the scope of Congress’s power? Two different views as to the scope of congress’s power under the post civil war amendments and particularly under section 5 of the 14th amendment 1. one approach is narrow and accords congress only authority to prevent or provide remedies for violations of rights recognized by the supreme court under this view congress cannot expand the scope of rights or provide additional rights 2. alternative approach also accords congress authority to interpret the 14th amendment to expand the scope of rights or even to create new rights. Under this view congress may create rights by statute where the court has not found them in the constitution but congress cannot dilute or diminish constitutional rights. (In Katzenbach court takes first view, in flores, college saving bank and kimel the court takes the second view) Katzenbach v Morgan and Morgan Facts- NY has a law that does not allow people that cant read or write English to vote. Congress passed a law if you finished at least 6th grade in Puerto Rico, you can vote. Issue is not- not to determine whether NY’s law violates Equal protection clause Issue is- Could congress prohibit the enforcement of the state law by legislating under section 5 of the 14th amendment? Limited to determining whether such legislation is as required by section 5 appropriate legislation to enforce the Equal protection clause Holding- Section 4(e) is constitutional. Enough that perceive basis that congress was attempting to prevent invidious discrimination in violation of the Equal protection clause Rat- enough that we be able to perceive a basis upon which the congress might resolve the conflict as it did. It is not for us to review, congress job to make decision as long as we can see a basis for their decision, no interference

ROL- well within congressional authority to say that this need of the Puerto Rican minority for the vote warranted a federal intrusion upon any state interests served by the English literacy requirement. Dissent- stare decis from lassiter. This is a decision for court not congress, if not congress could abuse its power and take rights away from states, and make laws contradicting the courts previous decisions

City of Boerne v Flores PH- decision by local zoning authorities to deny a church a building permit was challenged under the religious freedom restoration act of 1993. Issue- the authority of congress to enact religious freedom restoration act Holding- RFRA exceeds congress’s power. Is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to or designed to prevent unconstitutional behavior. ROL- preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional. RFRA not designed to identify and counteract state laws likely to be unconstitutional, its to broad. Also the appropriateness of remedial measure must be considered in light of the evil presented, strong measures appropriate to address one harm may be unwarranted response to another lesser one. Can limit something as long as you limit it to everyone not just the religion Rat- Regardless of the state of the legislative record RGRA cannot be considered remedial preventive legislation if those terms are to have any meaning. simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional. Facts- Archbishop trying to expand church. City council wont authorize a permit because of a preservation plan to protect historical landmarks and districts, which included the church. Archbishop says he should get one under the RFRA, city says no because of there goal to preserve the historical nature of the area Dissent- need to correct the understanding of the free exercise clause, it would put the court’s jurisprudence back on track Note- ceiling, case here says that the constitution gives the max amount of power congress can use. Opposite view would be the floor, which says constitution is just the bare minimum. CONGRESS POWER TO AUTHORIZE SUITS AGAINST STATE GOVERNMENTS

Eleventh amendment bars citizens of foreign states to sue a state in federal court. This makes states immune to suits from citizens of other cases, and because of Hans’s case to its own citizens Two views 1. Belief that sovereign immunity creates a constitutional restriction on federal court subject matter jurisdiction for all suits against state governments 2. Treats it as restricting only the diversity jurisdiction of the federal courts. Does not preclude federal question jurisdiction Three ways around the eleventh amendment to hold state governments accountable in federal court 1. state officers may be sued in federal court even when state governments cannot a. state officers may be sued for injunctive relief or for damages to be paid by them, not state treasurer 2. if a state waives its immunity and consents to suit in fed court a. waiver must be explicit 3. congress acting pursuant to section 5 of the 14th amendment may authorize suits against state governments a. alden v maine holding that congress cannot authorize suits against state governments in state courts. Alden held that state governments have sovereign immunity and cannot be sued in state courts without their consent even for violations of fed law. Congress power to authorize suits against state governments The basic rule congress may authorize suits against states pursuant only to section 5 of the 14th amendment Fitzpatrick v Bitzer Issue- whether as against the shield of sovereign immunity afforded the state by the eleventh amendment congress has the power to authorize federal courts to enter such an award against the state as a means of enforcing the substantive guarantees of the 14th amendment. Holding- Yes, we think that congress may in determining what is appropriate legislation for the purpose of enforcing the provisions of the 14th amendment provide for private suits against states or state officials which are constitutionally impermissible in other contexts Rat- the principles of state sovereignty which the eleventh amendment embodies, are necessarily limited by the enforcement provisions of section 5 of the 14th amendment. ROL- Congress granted this expressly and has the authority to enforce by appropriate legislation.

Seminole Tribe of Florida v Florida Facts- congress passed the Indian gaming regulatory act in 1988. Provided a statutory basis for the operation and regulation of gaming by Indian tribes, and allowed Indians to sue if the state refused to enter into any negotiation for inclusion of certain gamin activities or failure to negotiate in good faith Holding- that not with standing congress’s clear intent to abrogate the state’s sovereign immunity the Indian commerce clause does not grant congress that power and therefore cannot grant jurisdiction over a state that does not consent to be sued. Issue- whether the Indian commerce clause, which imposes upon the states a duty to negotiate in good faith with an Indian tribe toward the formation of a compact and authorizes a tribe to bring suit in federal court against a state in order to compel performance of that duty. 1. whether congress has unequivocally expressed its intent to abrogate the immunity a. congress has provided an unmistakably clear statement of its intent abrogate, by stating the Indians have a right to sue if the state isn’t acting in good faith 2. whether congress has acted pursuant to a valid exercise of power a. question to ask, was the act in question passed pursuant to a constitutional provision granting congress the power to abrogate? i. Authority present in only two provisions of constitution 1. ROL-congress shall have power to enforce by appropriate legislation the provisions of this article. 14th amendment federal power extended to intrude upon the province of the 11th amendment and therefore the section 5 of the 14th amendment allowed congress to abrogate the immunity from suit guaranteed by the amendment. 2. congress granted the power to abrogate state sovereign immunity stating that the power to regulate interstate commerce would be incomplete without the authority to render states liable in damages a. Overturned by this case Rat- even when the constitution vests in congress complete law making authority over a particular area the eleventh amendment prevents congressional authorization of suits by private parties against unconsenting states. ROL- the eleventh amendment restricts the judicial power under article III and article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.

Dissent- holding prevents to congress from providing a federal forum for broad range of actions against the state. Doctrine of sovereign immunity has nothing to do with the limit on judicial power contained in the eleventh amendment. Dissent 2- court holds today that congress has no authority to subject a state to the jurisdiction of a federal court at the behest of an individual asserting a federal right. Decision is fundamentally mistaken. 3 questions to ask 1. Whether the states enjoyed sovereign immunity if sued in their own courts in the period prior to ratification of the national constitution Not clear 2. If so whether after ratification the states were entitled to claim some such immunity when sued in a federal court exercising jurisdiction either because the suit was between a state and non state litigant who was not its citizen or because the issue in the case raised a federal question Not debated at the time of ratification 3. Whether any state sovereign immunity recognized in fed court may be abrogated by congress. Silent, probably showing a general understanding at the time that the states would have no immunity in such cases Common sense that only the diversity clause are being addressed if the framers had meant to bar federal questions suit as well they could not only have made their intention clearer. Han was misread, because 11th amendment did not apply to federal questions. Notes 2nd dissent- non citizen and foreign in fed court. Diversity jurisdiction. Not fed question, or else would of put wording in on page 230.

Cases denying congress authority to act under section 5 to authorize suits against state governments

Florida prepaid postsecondary education v college saving bank and the US Facts- in 1992 congress amended the patent laws and expressly abrogated the states sovereign immunity from claims of patent infringement. Respondent sued Florida for patent infringement. Holding- hold that under city of Boerne v Flores the statute cannot be sustained as legislation enacted to enforce the guarantees of the 14th amendment due process clause Issue- did congress unequivocally express its intent to abrogate states immunity? Yes. Then has congress acted pursuant to a valid exercise of power At issue here is state infringement of patents and the use of sovereign immunity to deny patent owners compensation for the invasion of their patent rights it is this conduct then un-remedied patent infringement by the states that must give rise to

the fourteenth amendment violation that congress sought to redress in the patent remedy act ROL- congress identified no pattern of patent infringement by the states, let alone a pattern of constitutional violation Rat- patent remedy act does not respond to a history of wide spread deprivation of constitutional rights of the sort congress has faced in enacting proper prophylactic section 5 legislation Dissent- the constitution vest congress with plenary authority over patents and copyrights. Congress had exclusive jurisdiction of patent infringement litigation in the fed courts. This act was an appropriate exercise of congress power under section 5 of the fourtheeth amendment to prevent state deprivations of property without due process of law. Created new ROL, and then expected congress to have that data when it was never expected to have it. Appropriate for fed judges to handle this issue, not state judges who have no experience with it (patent law). This gives rights to states they didn’t even seek. Notes- need it to be systematic and widespread, not a single instance. Kimel v Florida board of regents Facts age discrimination act passes in 1967, makes it unlawful for an employer including a state to fail or refuse to hire or to discharge individual or discriminate on age Issue- same as above case Holding- same as above. Yes to question one no to question 2. Rat- older people have not been subjected to a history of purposeful unequal treatment, also old age does not define a discrete and insular minority because all persons if they live out their normal life spans will experience it ROL- states may discriminate on the basis of age if it is rationally related to a legitimate state interest. We will not overtun such government action unless the varying treatment of different groups or person is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the governments actions were irrational Need congruence and proportionality Dissent- if congress has the power to create the federal rights that these P are asserting, it also must have the power to give fed courts jurisdiction to remedy violations of these rights. No word in constitution supports courts conclusion of sovereign immunity limits congress power to authorize to enforce fed laws against the state. 11th amendment does not support courts view. Agree with Union gas, and not with Seminole.

People are the one brought in, they represent the state. Judicial isn’t meant to be the safeguard for state sovereignty Supplement Central Virginia community college v katz h- court ruled that sovereign immunity does not apply in bankruptcy court. Rat- at the time of its framing, it is principally in rem jurisdiction Supplement US v Georgia Issue- whether a state government could be sued for violating title 2 of the American with disabilities act. Facts- title 2 prohibits state and local governments from discriminating against people with disabilities. Prisoner, disabled in small room couldn’t even turn wheelchair. Wouldn’t help him move to go to bathroom, kept him in his own feces for hrs Held- a prisoner who alleged unconstitutional state behavior could sue the state because congress under section 5 of the 14th amendment can provide a remedy for unconstitutional state conduc.t Rol- if the P is alleging a constitutional violation or the case involves a type of discrimination or a right receiving heightened scruntiny, the state can be sued. Otherwise congress needs to find pervasive unconstitutional state conduct. Board of trustees University of Alabama v Garrett Issue- whether employees of the state of Alabama may recover money damages by reason of the state’s failure to comply with the provisions of title I of the Americans with disabilities act of 1990 So did congress abrogate the states eleventh amendment immunity when it both 1. unequivocally intends to do so and a. yes 2. acts pursuant to a valid grant of constitutional authority a. did congress act within its constitutional authority under section 5 of 14th amendment b. NO ROL- under rational basis review where a group possess distinguishing characteristics relevant to interests the state has the authority to implement a states decision to act on the basis of those differences does not give rise to a constitutional violation.

RAT- such a classification cannot run a foul of the equal protection clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. ROL/Rat- congress identified no pattern of constitutional violation (from Florida college stealing from Jersey) Hold- suits are barred by the eleventh amendment. This passes a rational reason why states wouldn’t want to hire disabled people, and since they have a rational reason they can do it. To succeed there must be a pattern of discrimination by the states which violates the fourteenth amendment and the remedy imposed by congress must be congruent and proportional to the targeted violation Concurrence- new realization of disabled rights, does not mean that if the state did not take proper action to correct it that a constitutional violation occurred. No pattern of constitutional violation Dissent- Section 5 grants congress the power to enforce by appropriate legislation. Congress reasonably could have concluded that the remedy before us constitutes an appropriate way to enforce this basic equal protection requirement. That is all the constitution requires. Congress also found that two thirds of all disabled Americans between 16 and 64 were not working, even though they wanted to. Cant see how this evidence falls short of the pattern of constitutional violations. Congress expressly found substantial unjustified discrimination against persons with disabilities. Congress had reason to believe there was a widespread problem of unconstitutional discrimination. The requirement may in fact exceed what is necessary to avoid a constitutional violation. But it is just that power the power to require more than the minimum that section 5 grants to congress as the court has confirmed repeatedly. Notes- Strict scrutiny on congress when regulating a RB test of the state and vice versa RB test when regulating a SS test of the state C. Congress’s greater authority to legislate concerning types of discrimination and rights that receive heightened scrutiny Discrimination based on race or infringement of fundamental rights must meet strict scrutiny, compelling governmental purpose Intermediate scrutiny that is they must be substantially related to achieving a substantial governmental purpose Neveda department of human resources v hibbs Issue- whether congress acted within its constitutional authority when it sought to abrogate the states immunity for purposes of the FMLA family leave provision.

ROL- gender use heightened scrutiny, which requires it to serve important governmental objectives and the discriminatory means employed must be substantially related to the achievenment of those objectives. Since this is a 11th amendment case we must look to see if congress clearly stated their intent to abrogate state’s sovereign immunity and was it a valid use of their authority. Holding- answer to above question is yes. we believe that congress chosen remedy the family care leave provision of the fmla is congruent and proportional to the targeted violation. It is congruent and proportional to its remedial object and can be understood as responsive to or designed to prevent unconstitutional behavior. Rat- here the persistence of such unconstitutional discrimination by the states justifies congress passage of prophylactic section 5 legislation Dissent- the state must be the one in violation, congress only proved guilt of some states, cant have guilt by association, cant allow sovereignty of one state to be violated because of violations made by another state. No proof that all 50 states were in violation. Not enough proof they say. Respondents did not show a history and pattern of unconstitutional employment discrimination by the states. Their immunity cannot be abrogated without documentation of a pattern of unconstitutional acts, and only then by a congruent and proportional remedy. Though might be successful under commerce clause.

Tennessee v Lane Issue- whether title II exceeds congress power under section 5 of the 14th amendment Facts- aug 1998, Lane and Jones filed this action against the state of Tennessee alleging past and ongoing violations of Title II. Respondents are in wheelchairs, claim they were denied access to and the services of the state court system by reason of their disability. Lane got arrested cause he wouldn’t crawl up the stairs to get to court, and Jones couldn’t work as a court reporter cause no elevator. Issue- did congress unequivocally express its intent to abrogate state immunity, and if it did whether congress acted pursuant to a valid grant of constitutional authority. (from boerne) Holding- Yes, a pattern of unconstitutional acts was shown, the chosen remedy is congruent and proportional to its object of enforcing the right of access to the courts. Dissent- this case is different then Garrett. Cant use private discrimination evidence against the state. No pattern of discrimination. Violation of due process only occurs when a person is totally denied access. No basis to abrogate state immunity

Dissent 2- congruence and proportionality from boerne bad, judges use it to satisfy what they want outcome to be. We shouldn’t check congress homework, were equals with them. Get rid of the congruence and proportionality test unless dealing with race, make sure congress is directed at the state, and not the public at large, leave to cogress for the necessary and proper clause.

FOR EXAM Whether congress unequivocally express its intent to abrogate that immunity and if it did whether congress acted pursuant to a valid grant of constitutional authority. For congress to being acting in pursuant of section 5, you must show a pattern of unconstitutional acts. If you get yes to both questions, then it… is congruent and proportional to its object of enforcing the right of access to the courts, and congress will be justified in their conclusion. A pattern of unconstitutional acts was shown; the chosen remedy is congruent and proportional to its object of enforcing the right 3 congress power to authorize suits against state governments in state courts Alden v Maine Held- congress cannot authorize suits against state governments in state court. State governments may not be sued in state court, even on federal claims, without their consent. ROL- the powers delegated to congress under article I of the United States constitution do not include the power to subject non consenting states to private suits for damages in state courts Facts- petitioners a group of probation officers filed suit against their employer, state of maine alleging the state had violated the overtime provisions the fair labor standards act and sought compensation and liquidated damages. Dissent argued that the concept of “sovereign immunity” had been misapplied by the majority. Souter continues by noting that the idea of sovereign immunity was unclear during the period of the Constitution’s ratification. In addition, he argued, the framers would certainly have not expected the idea to remain static over numerous years. In addition, Souter argued that the FSLA was national in scope and, as a result, did not violate the principle of federalism as argued by the majority. Souter also argued that the claim the FSLA was unconstitutional was spurious. Such thinking, he argued, could only be reached based upon the misguided notion of sovereign immunity and notion of federalism the majority had used in reaching its decision. Notes from class

Can’t sue in state court because it would be slap in face to state’s dignity, ruins state stability Chapter 3 THE FEDERAL EXECUTIVE POWER Examines powers of president and executive tensions between executive and legislative powers a. issue of inherent presidential power and the question of when if at all the president may act without constitutional or statutory authority. i. Executive privilege b. at the ability of congress to expand presidential powers beyond those enumerated in the constitution specifically examing the supreme court’s recent decision in the line item veto c. constitutional problems posed by administrative agencies. i. Begins considering non delegation doctrine and its demise ii. The legislative veto as a possible alternative check on administrative agencies d. allocation of decision making authority in the area of foreign policy. i. Responsibilities with regad to treaties and war powers are considered e. executive power and the war on terrorism f. checks on the executive i. civil suits for money damages and impeachment INHERENT PRESIDENTIAL POWER 1. When if ever may the president act without express constitutional or statutory authority a. If the president has explicit constitutional authority for particular conduct then the issue is whether president is acting within scope of power and if he is in violation of other constitutional provision 2. statute authorizes a. whether law is constitutional Youngstown Sheet and Tube v Sawyer Issue- we are asked to decide whether the president was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills Facts- late 1951 dispute arose between steel companies and its employees over collective bargaining agreement. Employees planned to strike. The strike of steel workers was harmful because they were needed for weapons and other war materials. President directed ordered a 10340, directing Secretary of commerce to take possession of most of the steel mills and keep them running. Congress has no power with president doing this.

Holding- we cannot with faithfulness to our constitutional system hold that the commander in chief of the armed forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. Nor can the seizure be sustained because of the several constitutional provisions that grant exectuive power to the president Rat- job for congress, constitution limits presidents functions in the lawmaking process to the reommending and veto of laws ROL- president does not have authority to seize land, job for congress Concurrence- makes three groups when looking at the issue of whether president has power 1. 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 possess in his own right plus all that congress can delegate 2. 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. 3. 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. Concurrence 2- congress can do it, not president. Even though president can do it more efficiently, separation of powers was set up to save people for autocracy. Also congress only one who can raise money, if they take land, need to repay people, so congress is only one who can take since they are only authorized to raise money to pay Concurrence 3- congress has expressed it right not to allow president to seize land without its approval based on 1947 legislation. Dissent- the president has the duty to execute foregoing legislation dealing with the Korean war, their successful execution depends upon continued production of steel and stabilized prices for steel. The president acted to avert a complete shutdown of the steel industry. Work stoppage would jeopardize our national defense. The president was performing his duty and taking care that the laws be faithfully executed. US v Nixon, president of US Holding- court makes law saying what is confidential. Absent a claim of need to protect military diplomatic or sensitive national security secrets we find it difficult to accept the argument that even the very impt interest in confidentiality of presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

ROL- cant just be want to be confidential, needs to be for military, or government security. Would violate due process of the criminal procedure system Rat- the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. Notes- separation of power doesn’t give absolute executive privilege, and the court will weight each case on weighting the sides and balancing the issues SS- Compelling state interest no less restrictive means to achieve the interest, fundamental rights IS- impt state interest narrowly tailored B The authority of congress to increase executive power Two views 1. sees separation of powers as appropriately resolved whenever possible b/w the president and congress; if the two branches agree the courts only rarely should invalidate 2. separation of powers as constitutionally mandated and therfore envisions a crucial judicial role in enforcing its req. William J Clinton President v City of NY Issue- the constitutionality of a federal statute that created the line item veto Facts- line item veto enacted in april 96, effective jan 97. ROL- there is no provision in the constitution that authorizes the president to enact to amend or to repeal statutes. Rat- they are not the product of the finely wrought procedures that the framers designed Holding- line item veto not constitutional, if there is to be a new procedure in which the president will play a different role in determing the final text of what may become a law such change must come not by legislation but through the amendment procedures set forth in the constitution. Concurring- failure of political will does not justify constitutional remedies. To say the political branches have a somewhat free hand to reallocate their own authority would seem to require acceptance of two premises, public good demands it and liberty is at risk. Public good fails cause stability transcend the convenience of the moment, and two fails cause liberties are at risk when the branches seek to transgress the separation of powers.

Dissent- three things to look at 1. the act represents a legislative effort to provide the president with the power to give effect to some, but not to all of the expenditure and revenue diminishing provisions contained in a single massive bill. a. this is constitutionally proper. First US congress could of done this, but was small now country is a lot bigger, so they came up with a particular novel means to achieve this same constitutionally legitimate end 2. idk read on pg 291 got it underlined 3. we need not here referee a dispute among the other two branches a. when this court is asked to invalidate something both congress and president agree on, should only do so for the most compelling constitutional reasons, which arent present. The act itself was enacted in accordance with these procedures and its failure to require the president to satisfy those procedures does not make the act unconstitutional

C The constitutional problems of the administrative state. 1 the non delegation doctrine and its demise ALA Schechter Poultry Corp v US Issue- the authority which section 3 of the recovery act vests in the president to approve or prescribe. ROL- congress cannot delegate legislative power to the president to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry Holding- is unconstitutional. Rat- instead of prescribng rules of conduct it authorizes the making of codes to prescribe them. Gives broad declaration and few restrictions to making codes to unelected officials, instead of politically accountable congress Panama Refining CO. v Ryan ROL- the congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. Holding- the constitutional processes of legislation are an essential part of our system of government, we cannot allow congress to delegate its authority reserved to congress by the constitution

Rat- idle to pretend that anything would be left of limitations upon the power of the congress to delegate its lawmaking function Been 70 yrs since the non delegation doctrine has been followed like in the above two cases. Example of case not following non delegation doctrine below Whitman v American Trucking Issue- whether clean air act delegates legislative power to the administrator of the environmental protection agency First step in assessing whether a statute delegates legislative power is to determine what authority the statute confers. Second step is to look at the constitutional arguments In a delegation challenge the constitutional question is whether the statue has delegated legislative power to the agency. ROL- congress confers decision making authority upon agencies congress must lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform Rat- in short we have almost never felt qualified to second guess congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law (except above two cases) reason in those two cases was cause one provided literally no guidance for the exercise of discretion (second case Panama), the other conferred authority to regulate the entire economy on the basis of no more precise standard than stimulating the economy by assuring fair competition (first case Poultry) Holding- not unconstitutional 2 legislative veto and its demise Immigration and Naturalization service v Jagdish Rai Chadha Holding- the legislative veto is unconstitutional. Need both houses and president involved Issue- the constitutionality of the provision in the immigration and nationality act authorizing one house of congress by resolution to invalidate the decision of the executive branch, pursuant to authority delegated by congress to the Attorney general, to allow a particular deportable alien to remain in the US Whether action of one house of congress violates strictures of the Constitution ROL-an exercise of legislative power is subject to Article I. Under Article I, the bicameral requirement, the presentment clauses, the presidents veto, and congress power

to override a veto were intended to erect enduring checks on each branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps. RAT- burdens are imposed, but they were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. Convenience and efficiency are not the primary objectives or the hallmarks of democratic government Bicameralism- hardly needs to be repeated that the great compromise under which one house was viewed representing people and the other house the state. Need both houses votes, with 4 exceptions when one house can act Exceptions 1. House of rep alone has power to initiate impeachment 2. The senate alone was given power to conduct trials following impeachment, and to convict after impeachment 3. Senate alone was given final unreviewable power to approve or disapprove presidential appointments 4. Senate alone was given unreviewable power to ratify treaties negotiated by the President Presentment clause- legislation needs to be presented to the president before becoming law. Lawmaking is to be shared by the houses and the president Concurrence- no need to look at Presentment clause, that’s too broad. Take narrower approach, congress has assumed a judicial function in violation of the principle of separation of powers. They exceeded the scope of its constitutionally prescribed authority House made its own determination that 6 people did not comply with a certain statutory criteria, thus taking a decision that is traditionally left to other branches (fed Courts). Separation of powers may be violated two ways 1. One branch may interfere impermissibly with the other’s performance of its constitutionally assigned function (nixon) 2. When one branch assumes a function that more properly is entrusted to another (Youngstown) Dissent- The Constitution does not directly authorize or prohibit the legislative veto. The Fed Government is an endeavor far beyond the contemplation of the framers. That is why the Fed government was intentionally chartered with the flexibility to ro respond to contemporary needs. Today’s decision strikes down in one fell swoop provisions in more laws enacted by congress than the court has cumulatively invalidated in its history. Court should have decided on narrower grounds of separation of power. The history of the legislative veto also makes clear that it has not been a sword with which congress has struck out to aggrandize itself at the expense of the other branches. The executive has more often agreed to legislative review as the price for a broad delegation of authority. Also says presentment and bicameralism requirements are met. The president

approval is found through the attorney general’s action, bicameralism is met cause houses didn’t pass a resolution of disapproval NOTE- if congress wants to overturn an executive action there must be bicameralismpassage by both houses, presentment- giving the bill for president to sign, anything less is a legislative veto that is unconstitutional. 3 checking administrative power Ways to control administrative agencies 1. By statute, laws can be enacted directing agencies to perform or not to perform 2. Overturn agency decision by passing statutes. Must follow proscribed procedurebicameralism, presentment. 3. Congress has the power of controlling the budget of the administrative agency 4. President has the power to appoint (subject to confirmation by senate) and remove officials Appointment Power Alexia Morrison Independent counsel, v Theodore Olson Issue- who may possess the appointment power In this case, is appellant an inferior or a principal officer Hold- appellant clearly falls on the inferior officer side. The provisions of the act do not violate the appointments clause of the constitution the limitations of article 3 nor do they impermissibly interfere with the presidents authority under article 2 in violation of the constitutional principle of separation of powers. ROL- Principal Officers are selected by the president with the advice and consent of the senate. ROL- Inferior Officers congress may allow to be appointed by the president alone, by the heads of departments, or by the Judiciary. ROL- Factors to say she is inferior officer 1. Can be removed by attorney general, indicates she is to some degree inferior 2. Empowered to perform only certain limited duties and must comply to the extent possible with the policies of the department 3. Appellant’s office is limited in jurisdiction 4. Office is limited in tenure. Only temporary Dissent- This suit is about Power. A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. It is a truism that constitutional protections have cost. While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose

liberty. The constitution provides the executive power shall be vested in a president of the US, not some ALL. The statute must be invalidated if it the following two questions answered affirmatively 1. Is the conduct of a criminal prosecution the exercise of purely executive powerNo possible doubt function is executive. Investigation and prosecution of crimes is executive function 2. Does the statute deprive the president of the US of exclusive control over the exercise of that power- it’s the whole object of the standard. We wouldn’t allow congress to pass a statute depriving itself of its complete power to perform its constitutional duties or allow a statute to say that we do not have complete control but substantial control in judicial matters. We should say here the presidents constitutionally assigned duties include complete control over investigation this statue does deprive the president of substantial control over executive functions reserved to him alone by the constitution, and it does substantially affect the balance of power. Note on appointment power- congress cannot give the appointment power to itself or its officers. Article 2 allows congress to give appointment power for inferior officers to the President, heads of departments, or the lower federal courts Removal Power -The president may remove executive officials unless removal is limited by statute. - Congress by statue may limit removal Impeachment of Andrew Johnson Impeachment came on Johnson for firing the secretary of war in violation of a federal law that prohibited removal. Congressed passed the tenure in office act of 1867 to preven him from removing members of cabinet. Secretary of War was still fired even though that violated the act Myers v US Issue- whether under the constitution the president has the exclusive power of removing executive officers of the US whom he has appointed by and with the advice and consent of the senate Facts- myers got removed from his appointed post by the president. Now sueing to get his salary he lost because of the Presidents removal. Holding- yes, President is better informed to the nature of things the defects in intelligence and ability of the one who has served him then the senate is. No express limit is placed on the power of removal by the executive is a convincing indication that none was intended Humphrey’s executor v US

Issue- can the president remove a commissioner of an agency for any reason other then what is expressed in a provision Holding- No, Congress did not want this agency to be under executive control. Quite evident that one who holds his office only during pleasure of another cannot be depended upon to be remain neutral ROL- Plain under the constituiton that illimitable power of removal is not possed by the president in respect of officers of an adminstrative body created to carry into effect legislative policies that must be free from executive control RAT- need neutrality in this position, won’t exist if you have to act the way the president wants you to or else you will be removed. Facts- new president wants to kick out commisioner of the FTC because he wants to appoint someone in line with his views Weiner v US Facts- commissioner gets appointed by one pres, another wants him to resign so he can get his own man in there Issue- what were the duties that congress confided to this commission? And can the inference fairly be drawn from the failure of congress to provide for removal in office at the will of the President? Holding- terms of the act leave no doubt that congress did not want the president to be able to remove without cause a commissioner here ROL- President is not given the power by the constitution or given the power because congress did not put it in the statute the right to remove a member who has nothing to do with the executive branch without cause Rat- can’t just remove to get your own man in Bowsher v Synar Issue- whether the assignment by congress to the comptroller general of the US of certain functions under the balanced budget and emergency deficit control act of 85 violates the doctrine of separation of powers Facts- president signed into law an act to eliminate federal budget deficit, though congress and not him had the power to remove the comptroller general Holding- Constitution does not contemplate an active role for congress in supervision of officers charged with the execution of the laws it enacts. Congress in effect has retained

control over the execution of the Act and has intruded into executive function, something constitution does not allow. Would be creating a congressional veto Rat- to permit the execution of the laws to be vested in an officer answerable only to congress would in practical terms reserve in congress control over the execution of the laws. ROL- unconstitutional to permit an officer controlled by congress to be charged with the execution of the laws congress enacts. Executive branches job Morrison v OlsonIssue- whether the removal restrictions are of such a nature that they impede the president’s ability to perform his constitutional duty and the functions of the officials in question must be analyzed in that light Holding- we cannot say that the imposition of a good cause standard for removal by itself unduly trammels on executive authority. Rat- 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 a matter of constitutional law that the counsel be terminable at will by Pres ROL- congress can limit Pres right to fire someone, can’t proscribe it NOTES- President may fire any executive official. Congress can limit removal by statute if both it is an office where independence from the president is desirable and the statue does not prohibit removal, but limits it to where there is good cause


				
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