1 CONSTITUTIONAL LAW I I. Background A. Articles of Confederation 1. The earliest for of American government. 2. Drawbacks: a. The central government had no ability to tax, which meant no strong, central military. b. There was very little foreign policy ability residing within the central government, which meant this power stayed with each of the states. c. “Balkanization” – A term used to describe the effect of the resulting trade barriers that arose between the states as a result of the weaknesses of the Articles of Confederation. 3. The Philadelphia Constitutional Convention: a. Originally, it was intended to tweak or refine the Articles of Confederation, but instead, the delegates to the Convention threw out the Articles and wrote the Constitution. b. Convention took place in 1787. c. Some of the obstacles the Framers encountered: i. State jealousy – The states did not want to give up the power they had. ii. No one had ever done anything like this before; No constitution on a similar scale had ever been drafted, therefore, the question in everyone’s mind was, “Would this work?” iii. The Declaration of Independence had stigmatized a strong central government. B. The Founders and Background to Founders’ Intent: The views of the Framers ran a gamut of political views (Their views organized from most pro-central government to those favoring a weak central government) 1. Alexander Hamilton a. Urban b. Pro Mercantile c. Advocate of a strong central government d. Pro-British 2. John Adams 3. George Washington – In the middle 4. Thomas Jefferson a. Held hopes of fulfilling the “agrarian dream” b. Did not see an urban future c. Advocate of democracy: Power vested in the people d. Did not favor a strong central government 5. Patrick Henry a. Favored a weak central government b. Most anti-central government C. Purpose of the Constitutional Convention 1. Draw the lines between the states, central government, and the people 2. Protect individual rights D. Governments are created to remove aspects of the “state of nature” that render it “nasty, mean, brutish and short.” 1. Under a monarchy, the power to remove those nasty and mean aspects of the state of nature is vested in a king. 2 2. The removal of the brutish aspects requires that some power is given to the government— powers that would otherwise be vested in the individual. In return, the government protects the people. 3. The US Constitution seeks to divide power and give checks and balances so no one entity of government has too much power. 4. The concept of Federalism a. A belief that the centralization of power is bad and has the potential to create a despot. b. Multi-tiered aspects of government are layered between: i. The federal government; ii. The states; AND iii. The people 5. Separation of Powers: Each branch of government shares power with the other two branches. E. Fundamental Nature of a Constitution; General: 1. It is an outline of government 2. Important objectives need only be outlined 3. Minor ingredients are deduced from the nature of the objects themselves F. BASIC QUESTION: IS THE BRANCH OF GOVERNMENT ALLOWED TO DO THIS? II. Canons of Statutory Interpretation A. Plain Meaning Rule 1. Examine the plain language of the document; 2. Words are to be given their obvious and plain meaning B. Ordinary Meaning Rule 1. Words are to be given their ordinary or everyday meaning C. Technical Meaning Rule 1. When words are used in a technical or complex arena, their technical meaning is preferred over their ordinary meaning. D. Expression Unius Est Exclusio Alterius 1. The expression of one thing is to the exclusion of others 2. The inclusion of an item in statute implies exclusion of similar items E. Esjusdem Generis 1. “Of the same kind or nature” 2. When a statute takes the form of specific items followed by a general class, it may be inferred that the class includes only those of the same nature as those specifically listed. 3. When a statute takes the opposite form with a general class followed by specific words, the interpretation of the general term must be consistent with the nature of the specific items. F. Noscitur a Sociis 1. “It is known from its associates.” 2. The meaning of an unclear term may be derived from the meaning of words connected with it in the statute or statutory scheme. G. Grammatical Rules 1. The grammar of a statute, including its use of specific articles, prepositions or punctuation, will be considered in deriving meaning, particularly in technical areas. H. The Whole Act Rule 1. The terms of a statute must be construed in accordance with the entire statute, including its other terms and overall function. 3 III. Judicial Review A. Issue /Scope 1. THE KEY TO EVERYTHING ELSE 2. IT is the power of the courts to declare acts of the government and governmental actors as unconstitutional that is, void or invalid according to what the court’s interpretation of what the Constitution is. a. The effect is that the Court can strike down, or say, according to its own interpretation, whether or not the acts of the government or governmental agencies are in accord with the Constitution. b. The Court is the LAST WORD ON CONSTITUTIONAL INTERPRETATION 3. Areas of review: a. Supreme Court review of Congress i. Judicial review established under Marbury v. Madison (1803). ii. The judicial branch has the final say in interpreting the Constitution. iii. Key case: Marbury v. Madison. b. The Supreme Court and review of State Decisions i. The Supreme Court’s relationship to the states was defined under the early terms found in Martin v. Hunter’s Lessee in 1816 where the Supreme Court of Virginia challenged an order by the US Supreme Court. ii. Each state, at the outset, jealously guarded their separate sovereignty. iii. The Court may not review state court decisions that merely adjudicate questions of state law c. Congressional Control of the Court i. Article III suggests that Congress may place certain limitations on the Court’s appellate jurisdiction and the jurisdiction of lower federal courts. ii. See Ex Parte McCardle for an in-depth explanation. iii. Limitations on Congressional power: Any jurisdictional limit must be neutral, that is, Congress may not decide on the merits of a case under the guise of limiting jurisdiction. iv. Congress can so choose not to have any other federal courts beyond the Supreme Court (The Supreme Court is REQUIRED under Article III). v. Starting with the first Judiciary Act, Congress has always legislated the judiciary and has never given the federal courts the full breadth of what they are allowed under the Constitution. vi. Congressional motive is relevant, according to precedent, to establish whether the government has exercised its power lawfully. vii. Scope of Congressional Amendment: • In order for Constitutional permissibility of amendments to the Court’s jurisdiction to be effective, they cannot be of such a nature that they destroy the essential role of the Court. • The Court’s essential functions are listed as: ◊ Ultimately to resolve inconsistent or conflicting interpretations of federal law, particularly of the Constitution by state and federal courts; ◊ To maintain the supremacy of federal law, and particularly the Constitution, when it conflicts with state law or is challenged by state authority. • Another view is that the legitimacy of the courts rests upon the popular consent of the people—through the legislative body. Any claim that the people consented to the power of the courts would be empty unless it were recognized that the courts 4 could be subject to limitation of its powers by the legislature, the popularly elected body representing the people. viii. Other methods of political control: • Article III allows Congress to determine the number of justices on the Court. • Like all judges in the judiciary, Justices are appointed by the President, and confirmed by the Senate. • Congress allowed for the Court to hear cases on a writ of certiorari, meaning: ◊ Writ of Certiorari – A discretionary writ that permits the Court to decide for itself which cases most deserve its attention. ◊ The Court chooses cases based upon those which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved. Vinson, C.J., 69 S.Ct. vi (1949). 4. Non-justiciable political questions: a. ISSUE: Are some constitutional issues inappropriate for judicial resolution? B. Rule 1. Federal judicial power: SOURCE: Article III, §2, of the U.S. Constitution. The power includes: a. Cases arising under the Constitution or under federal statutes; b. Cases of admiralty; c. Cases between two or more states; d. Cases between citizens of different states; AND e. Cases between a state or its citizens and a foreign country or foreign citizens 2. It is the Supreme Court, not Congress, which has the authority and duty to review the constitutionality of statutes passed by Congress, and to invalidate the statute if it violates the Constitution 3. Review of state court decisions a. The Supreme Court has the authority to review state court decisions, but only to the extent that the decision was based on federal law. b. The Court may still not be able to review the case if there was an independent and adequate state ground for the state court’s decision. 4. NONJUSTICIABLE: a. Involves a political question. b. Arise where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it. Baker v. Carr, 369 U.S. 186, 217 (1962). c. Other nonjusticiable issues: i. Amending the Constitution (Article V): The Court, as the interpreter of the Constitution, should not get involved in the process of writing/amending the document it might later be called upon to interpret. ii. Military (Article I, §8, Clause 16): The Court will not get involved in “organizing, arming, and disciplining” the militia. The Courts have no military authority and are not in a position to dictate military orders. iii. Guarantee Clause (Article IV, §4): Pacific States Telephone & Telegraph Co. v. Oregon (1912), regards the initiative process; the Court’s logic was that it would probably lose a large degree of respect by ruling on this case, therefore, it found the issue to be a nonjusticiable one. C. Analysis 1. State Court decision: a. Was there an issue decided that involves: 5 i. Federal Statute; OR ii. The Constitution; b. If there was any of the above, the state decision is subject to review by the Supreme Court on an appellate review. c. HOWEVER, if there is an independent and adequate state ground, that is, the state court decided some issue of state law in a way that would have disposed of the case, there is no federal issue vital to the case and the Supreme Court MAY NOT DECIDE THE FEDERAL ISSUE. 2. Judicial Review: 3. Non-justiciable Political Question: a. Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department? IE, does the Constitution commit the issue to the exclusive domain of another branch of the government? OR b. Does the issue lack a judicially discoverable and manageable standard for resolve? IE, can the court determine what a possible remedy could be AND is that possible remedy determinable? c. A non-exhaustive list of factors: i. What is the history of the management of the issue by other political branches? ii. What is the susceptibility to judicial handling in light of the nature and posture of the specific case? iii. What are the possible consequences of judicial action? D. Case Summaries 1. Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816): Supreme Court review of State Action //The relationship to the states. The Supreme Court can review the constitutionality of a decision by a state’s highest court. a. Background: i. Virginia passed a law confiscating land from British subjects, Martin was British. ii. The state of Virginia then gave the land to Hunter. iii. Basically, the U.S. Supreme Court found for Martin, the Virginia courts found for Hunter. iv. The Virginia State Supreme Court refused to obey the U.S. Supreme Court. b. Since the U.S. Constitution cut back a lot of state sovereignty, there was no reason why, because of sovereignty issues as regarding the states, the state court decisions were immune from Supreme Court review. c. There is a need for uniformity in decisions throughout the nation that interpret the Constitution since the absence of a unified interpretation would leave each state with a different interpretation of the Constitution. d. Present limitations: i. The mere fact a federal question is involved is not sufficient to entitle the Court to review and the fact the Court is reviewing does not give it the right to review ALL the issues presented; it will typically review the federal question only. ii. If the state’s decision rests upon an independent and adequate ground, the Court will not review. e. Supremacy Clause: The federal government and its laws are supreme to those of the states. i. A concept of “total sovereignty” has not been granted to the states ii. The U.S. Constitution is the supreme law of the land and therefore, the states are bound by it. 2. Cohens v. Virgnia, 19 U.S. 264 (1821): Stands for the Court’s appellate jurisdiction to review state criminal proceedings. Generally seen as supplementing Martin. 6 3. Ex parte McCardle, 74 U.S. 506 (1869): Congressional ability to control Supreme Court appellate jurisdiction. a. The appellate jurisdiction of the Supreme Court is limited by any exceptions or limitations that Congress might make. b. The Court had no jurisdiction to hear the case based off of those restrictions which Congress had legally placed on the Court’s appellate jurisdiction. c. The Constitution allows Congressional stipulations (amendments, etc) on the Court’s appellate jurisdiction. 4. Nixon v. United States, 506 U.S. 224, (1993): Outlines non-justiciability. Sometimes, however, the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is one entrusted to one of the political branches or involves no judicially enforceable rights. a. Plain language contention of Nixon: The word “try” means a trial before the full Senate. b. In sending this appeal to the judiciary branch, Nixon is essentially asking for the courts to be the final arbiter of punishing their own members. c. Since impeachment is the only check on the judiciary, it is counter-intuitive to allow the courts to sit in judgment of their own. i. The Congress is the final arbiter of the impeachment of judicial officials. ii. This does not conflict with Marbury v. Madison because the Court decided not to decide the case—refraining from making a decision is a decision in itself. 5. Veith v. Jubelirer, 541 U.S. 267 (2004): Non-justiciability. a. The Court rules that it will not get involved in the gerrymandering case—thus it is a nonjusticiable political question. b. The Court rules also that the check that exists against gerrymandering is Congressional oversight of state districts. i. Thus, there is a textual commitment to another branch. ii. There are no judicially manageable standards since ideologies cannot be managed. c. Quoting Baker v. Carr, 369 U.S. 186 (1962), there are six independent test of whether or not a political question exists, they are: i. A textually demonstrable constitutional commitment of the issue to a coordinate political department; ii. A lack of judicially discoverable and manageable standards for resolving it; iii. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; iv. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; v. An unusual need for unquestioning adherence to a political decision already made; OR vi. The potentiality of embarrassment from multifarious pronouncements by various departments on one question. d. Stevens, J. DISSENT: The court has developed standards in cases involving racial gerrymandering. This case, involving political gerrymandering is not really different and the application of similar standards would suffice. E. Marbury v. Madison, 5 U.S. 137 (1803): Carving out the role of the Judiciary branch. ESTABLISHED THE POWER OF JUDICIAL REVIEW. 1. Background /Timeline of the events: a. Presidential election b. Inauguration: 40 new judicial positions are created under the Circuit Court Act. c. 40 new judges are confirmed 7 d. The commissions of these judges are signed, sealed, and delivered (except Marbury’s, his is signed and sealed, but not delivered) e. Jefferson and Madison then refuse to deliver Marbury’s commission f. The Repeal Act is passed, eliminating the 40 judicial positions. g. 1802: The Supreme Court term for that year is canceled by Congress. 2. Under Article III, § 1: The judges shall hold their offices during good behavior. a. Therefore, removing and/or repealing the 40 judicial positions does not seem Constitutional. b. A contrary argument was made off the assumption that what Congress creates, it also has the power to destroy. 3. The five questions of Marbury: a. Does Marbury have a right to his commission? i. ANSWER: Yes, he was duly appointed under Article II, § 2, Clause 2. ii. Thus, the requirements for appointment had been met. b. Do the laws of the country afford Marbury a remedy? i. The actual question since mandamus would have been the remedy was whether the laws of the country apply to the President. ANSWER: YES ii. A corollary question: Does the President have the authority to exercise discretion and not deliver the commission? ANSWER: No, there is no discretion since all the requirements for appointment are met. iii. A distinction between discretionary and non-discretionary issues was made. Nondiscreetionar are those where a specific duty is assigned by law and those decisions are reviewable. iv. The judiciary will not step in if the decision is a discretionary action, that is, one where the particular branch of government possesses latitude to act at its discretion. THESE ARE NON-JUSTICIABLE DECISIONS • Political acts are not reviewable by the courts; • Acts specifically required by law are reviewable by the courts. c. Is he entitled to a writ of mandamus? Can the Supreme Court issue a writ of mandamus ordering the President (another branch) to do something? i. Can the Court decide the rights of individuals? • This is SOLELY the role of the Court; • Political questions will not be answered, but questions affecting individuals’ rights will be addressed by the Court. ii. The Court will NOT evaluate theoretical disputes. SEE ALSO STANDING DOCTRINE d. Does the Court have original jurisdiction to issue a writ of mandamus? i. In other words, is the Judiciary Act of 1789 constitutional? ii. The Court is one of “limited and enumerated” powers, that is, its powers and their extent are specifically written about in the Constitution iii. Those powers not specifically granted to the Court are denied it iv. Therefore, if the powers are not written in the Constitution or reasonably implied from the text, those powers are denied the Court. v. Article III, § 2, Clause 2 does not grant the Court the power to issue writs of mandamus vi. Congress may not act to amend the Court’s original jurisdiction as enumerated in the Constitution; therefore, the Act is unconstitutional. 8 e. Does the Supreme Court have the power to declare a law, enacted by Congress, as unconstitutional? i. Also known as: • Does the Court have the power of judicial review; OR • Which branch is the final arbiter of the Constitution? ii. Marshall’s opinion: • Based on founder’s intent point of view • Could it really have been the intent of those who gave the power to say that the Constitution would not be consulted? iii. The courts will judge which laws take precedence and which are unconstitutional. iv. Therefore, the courts (the judicial branch) have the power of judicial review 4. Marbury’s Effects: a. The three facets/faces of Marbury v. Madison: (Justification of judicial review) i. Private-Rights Face: The courts can decide Constitutional issues only as those decisions are necessary to adjudicating concrete disputes between parties. ii. Special-Functions Face: b. Criticism is directed at the fact that nowhere in the Constitution is it stated that the courts, not Congress, ought to decide whether a given statute does in fact conflict with the Constitution. IV. National Legislative Power A. Issue /Scope 1. Concerns of the Constitutional Convention a. Lack of money; b. “Balkanization”, that is, the imposition of trade barriers among the states; c. Military affairs, at the time of the convention, the U.S. lacked a strong, central military; and d. Foreign affairs. 2. Federalism a. Concepts i. This is the system of government upon which the United States is based. ii. It rests upon the notion that the government is one of limited, enumerated powers, specifically granted by the Constitution. iii. There is no general federal police power; each act of federal legislation must come within one of the specific and enumerated powers. Example: • Commerce Clause; • Power to tax and spend b. Enumerated Powers of the Federal Legislature: i. See Article I, §8, which lists all the enumerated powers of the federal legislature ii. These powers are: • Lay and collect taxes; • Provide for the defense of the country; • Borrow money on the credit of the US; • Regulate commerce with foreign nations, and among the several states; • Regulate immigration and bankruptcy; • Establish post offices; • Control the issuance of patents and copyrights; • Declare war; 9 • Pass all laws needed to govern the District of Columbia and federal military enclaves; AND • Make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States. (The necessary and proper clause) c. Contrast the federal government’s limited powers with state powers, which are: i. The state powers are inherent. ii. State powers are based on the police power, defined as the power to protect the health, safety, welfare, or morals of the state residents. iii. State laws are valid under federal law, UNLESS, they violate a specific limitation imposed by the U.S. Constitution. iv. In contrast to a federal action, which must fall within one of the enumerated powers listed in the Constitution. d. CHART: B. Rule 1. Doctrine of Implied Powers a. Although the federal government may act only where it is affirmatively authorized to do so by the Constitution, the authorization does not have to be explicit. b. The federal government may validly exercise power that is ancillary to one of the powers explicitly listed in the Constitution. c. RESTRICTION: the ancillary power may not conflict with specific Constitutional prohibitions. 2. Necessary and Proper Clause: (Article I, §8, Clause 18) a. Gives Congress the ability to execute powers given to it. b. There is an argument that this clause extends the federal government’s powers. c. The intention of this clause is to allow Congress to execute the powers it was specifically given. 3. Modern view of McCulloch: The courts will not strike down a congressional action so long as Congress has employed a means which is not prohibited by the Constitution and which is rationally related to objectives that are themselves within Constitutionally enumerated powers. a. Legislator’s motive is irrelevant. C. Analysis D. Case Summaries 1. McCulloch v. Maryland, 17 U.S. 316 (1819): Interpretation of “necessary and proper.” a. Was the Bank of the United States necessary? b. Nowhere in the Constitution does Congress have the power to create a bank; Maryland questions the bank’s legitimacy. c. Determination of “necessary and proper” i. Plain language interpretation: Not helpful FEDERAL GOVERNMENT STATE GOVERNMENT THE PEOPLE 10 ii. Expressio Unius: The term “absolutely” in constraining another portion was included in Article I, §10. It was NOT expressed in the portions addressing the “necessary and proper” clause and this the absolute constriction is precluded in all other areas where it was not expressed. iii. The letter and spirit of the Constitution: Upheld the Court’s ruling here. d. Under the doctrine of implied powers, Constitutional authorization does not have to be explicit; the federal government may validly exercise power that is ancillary to one of the powers explicitly listed in the Constitution, so long as the ancillary power does not conflict with a specific Constitutional prohibition. e. Separation of Powers issue: Only where it is quite clear that no constitutionally specified object was being pursued will the Court strike down a Congressional act. 2. U.S. Term Limits, Inc. v. Thornton. 514 U.S. 779 (1995): The power of individual states to restrict the federal government. a. Facts: several states had passed a law limiting the number of terms a person could serve in either chamber of Congress. b. In this 5-4 majority ruling, the Court decided where the original basis of government lies— with the people or the states. According to Justice Stevens: i. The X Amendment only allows the states to retain what they had before the Constitution and that the power to add qualifications to federal offices is not an original power. ii. Framers’ Intent: The Constitution was to be the sole source of qualifications for membership in Congress. iii. Democratic Principles: The right to choose representatives belongs to the people. c. DISSENT: The ultimate source of the Constitution’s authority is the consent of the people of each of the individual states, not the consent of the undifferentiated people of the nation as a whole. V. Separation of Powers: Executive Powers A. Issue /Scope 1. Separation of Powers: 11 2. Enumerated powers of the executive branch, according to Article II, §2. a. Commander-in-Chief b. Treaty formation: WITH the consent and advice of the Senate c. Appoint ambassadors, justices, etc: WITH the advice and consent of the Senate d. Appoint public officials e. Grant reprieves f. Suggest laws g. Execute the laws 3. Comparison with the legislative: a. Article I, §1: “All legislative powers herein granted” b. Article II, §1: “The executive power shall be vested in a President.” c. Executive Power, construed to be more expansive than the Legislative power: i. The Founders feared the legislative branch would become more powerful; hence more restrictive wording in Article I, §1, and the executive powers have been construed more broadly. ii. Another reason for expansive executive powers relates to the increased flexibility of decision-making. 4. Foreign Affairs a. Internal versus external: i. Youngstown and Dames & Moore: These cases really dealt more with internal matters and incidentally touched upon war powers and foreign affairs. ii. The rules are different if dealing with a presidential power over truly external foreign affairs and war issues. b. The Constitution gives the President substantially greater authority with respect to foreign affairs than with respect to domestic ones. c. PURPOSE OF DEFERENCE: This is based off the need to prevent a clear and unified face to the world and thus necessitates that the President bear a special role in implementing the nation’s foreign policy. 5. War Powers 12 a. The power is shared: i. Congress: may declare war, raise and support the military (funding), and make rules for the governing and regulation of the military. ii. President: Commander-in-Chief, essentially charged with carrying out any war declared. b. The issues generally raised: i. The President’s right to commit the armed forces abroad without Congressional approval (Campbell); AND ii. The President’s right to detain and try enemy combatants who have been captured (Hamdi and Hamdan). c. Commitment of the Armed Forces Abroad, categories where commitment is at issue or has been allowed according to precedent: i. Sudden Attack: under the Prize Cases, 67 U.S. 635 (1863), the President may commit forces in this circumstance. ii. Attack on Allies: Not settled iii. Preemptive Strike: Also unclear, but likely to be found constitutional because of the time factor involved. iv. Defense Treaties: The pledge (a treaty) constitutes sufficient authorization for the President to commit troops in such a circumstance. v. Delegation by Congress. d. Military Commissions establishment 6. Presidential /Executive Immunity a. When one branch seeks to exercise power over the other, this raises a separation of powers issue. b. RULE: There is a presumptive but not absolute privilege against discovery. i. The Court will generally give the benefit of the doubt to the President unless there is a strong need. ii. The presumption is a scale: • In issues of national security, it is almost absolute. • It is less so for day-to-day issues c. ANALYSIS OF IMMUNITY ISSUES: i. When the President is acting within the scope of his enumerated duties, there is an ABSOLUTE IMMUNITY for civil and criminal suits. ii. When the President is acting at the outer sphere, there is an absolute immunity for civil liability, and unknown level of immunity for criminal acts. iii. When the President is acting outside the scope of his duties, he has not civil immunity and the issue is unknown for criminal acts. B. Rule 1. General executive powers enumerated: Article II, §2 2. In reference to foreign affairs, much, if not total deference, is given to the executive and legislative branches. a. This is to provide a unified face to the world. b. This power derives not from the Constitution, but from the King of England upon independence from England. c. The Court will typically stay away from the areas of war powers and foreign affairs because: i. These areas are not under the judicial expertise; and ii. Article III does not give authority to the Court to review these sorts of issues. C. Analysis 13 1. Formalism v. Functionalism: Constitutional Construction Viewpoints of Separation of Powers. a. Formalistic Approach: i. The three branches of government have their roles, which are strictly defined. ii. EXAMPLE: Justice Black’s opinion in Youngstown: “The President executes; only Congress makes laws.” iii. The primary check is the Court and how it assigns roles. iv. Justice Thomas’ view: The Constitution was written and to change it, you must amend it. v. THIS IS A VERY RESTRICTIVE VIEW OF SEPARATION OF POWERS b. Functionalistic Approach: i. Recognizes “core powers” but also allows for a cooperative ebb and flow of power among branches. ii. The primary check in the political process. iii. The court has a role to: • Maintain a rough check and balance; • Prevent concentration; AND • Protect individual liberty. 2. D. Case Summaries 1. United States v. Nixon, 418 U.S. 683 (1974) a. Involves the bounds of executive privilege b. The Court rules that President Nixon must give up the tapes because they are beyond the scope of his duties as President. c. Basically, at its core, this is Marbury v. Madison all over again; it asks the question “can the judiciary order another branch of government to do something?” 2. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952): The President, under his Commander-in-Chief power, does not stand alone to seize domestic private property without Congressional approval to do so first. The President may NOT make laws; he may only carry them out. a. Majority opinion: i. Seizure is an example of lawmaking that belongs to Congress. ii. The President does not have an independent Constitutional power to seize private property in the absence of Congressional authority. b. FRANKFURTER, Concurrence: i. The President might have had the power to seize if it had not been for the fact that Congress had already denied him the power and authority to do so under the Labor Management Relations Act of 1947. ii. Explicit rejection precluded any notion of subsequent approval. iii. There may be cases where a systematic, unbroken executive practice, long pursued to the knowledge of the Congress…may be treated as a gloss on Executive power in other words, tradition may give way to the realization of the power. FUNCTIONALISTIC THEORY OF CONSTITUTIONAL CONSTRUCTION c. JACKSON, Concurrence: The quotable portion of the case; the three areas of Presidential power. i. MOST POWER, TIER 1: The most power the President has, that is, when he is at the apex of his power is when he acts pursuant to express or implied authorization of Congress. This is when the President’s authority is at its apex, subject to specific Constitutional limitation. 14 ii. MIDDLE, TIER 2: Middle Ground: Where the President acts in the absence of either a Congressional grant or denial of authority, there is a “zone of twilight in which he and Congress may have concurrent authority, or in which its [power’s] distribution is uncertain.” iii. LEAST POWER, TIER3: Least Power: Where the President acts in contradiction to the express or implied will of Congress, his power is at its “lowest ebb.” The burden is thus on the President to show authority from the Constitution because his acting has effectively “disabled” Congress from acting. d. VINSON, Dissent: i. Basically, according to Jackson’s concurrence and its categories, this is a “tier 2” grey area. ii. History shows that the Presidential power is at its fullest scope in times of emergency. iii. Extols a very broad view of Presidential power. 3. Dames & Moore v. Regan, 453 U.S. 654 (1981): Congress had allowed the President to take actions similar on previous occasions, thus there was approval. a. The President’s power was at its apex because of the prior consent and the fact there was a foreign policy dispute. b. Congressional acquiescence can be found if Congress previously delegated very broad power to the President; if Congress has previously allowed the action, or Congress has done nothing. 4. FOREIGN AFFAIRS: a. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936): The foreign affairs power is unlimited and unnumerated. It, instead, rests 100% with the government and is shared between the President and Congress. 5. WAR POWERS: a. Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000): The highlight is the President’s and Congress’ war powers authority. i. ISSUE: Whether the President had unconstitutionally declared a war. ii. ANALYSIS: • If the U.S. is attacked, the President’s powers are absolute. • Congressmen lack standing to bring a suit. • The courts have historically recognized a very limited role in foreign affairs and war powers arena, because: ◊ These are not areas of judicial expertise; AND ◊ Textually, there is nothing in Article III that gives the courts any authority in this arena. iii. SILBERMAN, Concurring: • The existence of a war is a nonjusticiable political question. • Prize cases: Whether a war exists depends on who started the war/incident/action and an attack allows the President to respond. • Article III gives the courts NO AUTHORITY in the area. • There are no judicially manageable standards to decide who started what and when. iv. TATEL, Concurring: • The courts deal with standardless issues all the time: ◊ Established religions; and ◊ Unreasonable searches and seizures. 15 • The courts have a role to lend meaning to the words under Marbury v. Madison. 6. ESTABLISHMENT OF MILITARY COMMISSIONS: a. Hamdi v. Rumsfeld, 542 U.S. 507 (2004): The President was acting at the apex of his power, but that power was still kept in check by the Constitution. The detention was okay, but the individual must still be afforded Due Process. PLURALITY OPINION. i. SOUTER, J.: The Authorization for Use of Military Force (AUMF) is not Congressional authorization to ignore the Detention Act, If Congress had intended that result, it would have specifically addressed the Detention Act. Since it didn’t, it must adhere to it. ii. SCALIA, J.: Even with the AUMF, the President and Congress acted in coordination, they do not have the power to indefinitely detain under the Suspension Clause. Congress did not suspend the writ of habeas corpus under Article I, §9, Clause 2. iii. THOMAS, J.: (DISSENT), Under Justice Jackson’s analysis in Youngstown Sheet and Tube, this is a “tier 1” case where the Congress has given the President approval and where the two (Congress and the President) are acting in concert, their actions are rendered nonjusticiable. b. Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006): Separation of Powers issue invoked. The President must still follow Congressional directives (Geneva Conventions and UCMJ) despite the executive powers. This is a tier 2 scenario. i. ISSUE: The President’s power to set up military commissions that provide substantially less Due Process protection. ii. The President claimed authority under: • Detainee Treatment Act (DTA); AND • The Authorization of Use of Military Force (AUMF) iii. OPINION: The Court essentially rules that the President is operating in Tier 3, since Congress specifically told the President under the Geneva Conventions treaty and the UCMJ to include Due Process protections in the commissions. iv. Congress subsequently suspends the writ of habeas corpus under the DTA (under a follow-on amendment) which is applicable to cases filed after enactment of the DTA. v. DISSENT: The Court’s opinion openly flouts the long-standing deference of the Court to the executive’s judgment in matters of military operations and foreign affairs. The President was using his Commander-in-Chief powers with the full support of Congress – Tier 1 situation. VI. State Power to Regulate A. Issue /Scope B. Rule C. Analysis D. Case Summaries VII. Commerce Clause A. Issue /Scope 1. The commerce clause balances two interests and serves two functions: a. It acts as a source of Congressional authority; AND b. It implicitly acts as a limitation on state legislative power. 2. The trend has been towards increasing federal power 3. There are two types of commerce clause authority: 16 a. Affirmative commerce clause – ASKS THE QUESTION: “WHO SAYS?”; AND b. Dormant Commerce Clause – Applicable to the states. 4. Modern trends: a. The Court will uphold commerce-based laws if the Court is convinced that the activity being regulated “substantially affects” interstate commerce. b. Three theories upon which a commerce-based regulation may be premised: i. Substantial economic effect theory; ii. Cumulative effect theory; AND/OR iii. An expanded commerce-prohibiting protective technique. c. The commerce-prohibiting technique: deals with Congress’s right to use prohibitions on the interstate transportation of items or people in furtherance of a “police power” or “general welfare” regulation i. Darby, therefore, reverses Hammer: minimum wage laws were upheld. ii. Thus, Darby’s effect was to allow Congressional regulation of both the start of the manufacturing/production process and the end of the stream of commerce and all points in between. d. Applicability to non-Commercial Interests i. Civil Rights Legislation • Applicability rested upon the premise that under Congress’s commerce regulating authority, any establishment serving interstate travelers or any establishment which buys goods in the interstate stream. • Two main cases: ◊ Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) ◊ Katzenbach v. McClung, 379 U.S. 294 (1964): AKA “Ollie’s BBQ” ii. Domestic Abuse 17 iii. Illegal Drugs e. Arc of Commerce Clause Cases: B. Rule 1. Article I, §8: the source of Commerce Clause power 2. Types of cases that fall under the commerce clause, according to case law: a. Noxious articles that cross state lines: the lottery case. b. Instrumentalities of commerce: Ball and Shreveport c. Metaphorical channels of commerce, the stream of commerce: Stafford 3. Cumulative effect theory: Congress may regulate not only acts which taken alone would have a substantial economic effect on interstate commerce, but also an entire class of acts, if the class has a substantial economic effect. The flagship case for this is Wickard v. Filburn. 4. Congress can regulate anything that has a substantial effect on interstate commerce. a. Noxiousness of the article is no longer a prerequisite. b. The substantial effects test no longer requires interstate travel. c. A stream of commerce is no longer required C. Analysis 1. IS THERE A COMMERCE CLAUSE ISSUE: 2 Qualitative Direct Relationship 1 3 4 5 6 Congressional Power Time 1: Noxious articles transported interstate. See also Lottery Tickets case. 2: Instrumentalities of intrastate commerce affecting interstate commerce. Shreveport 3: Metaphysical “Channels of Commerce”. Stafford 4: Substantial effects relating to commerce or economics. Darby 5: Authority to regulate moral issues. Heart of Atlanta /Ollie’s BBQ 6: There must be an economic connection. Morrison/Lopez 18 2. SUBSTANTIAL EFFECTS TEST: (THIS IS THE LAW) a. Interstate travel is no longer necessarily a prerequisite. b. So long as there are quantitative or qualitative effects from the activity in question, Congress can regulate it. 3. DIRECT TEST: 4. Lopez factors for VALIDITY OF LEGISLATION PASSED BASED UPON THE COMMERCE CLAUSE: a. Look at the central aim of the law. Is there an economic or noneconomic nature? b. There must be a commercial connection. c. What are the adverse effects on commerce sought to be remediated by the legislation? d. The effect on commerce must not be too attenuated; there must be a substantial effect on commerce. e. There is a difference between national and local concerns. i. In the case of Morrison, the domestic violence law concerns a local problem. ii. The regulation and punishment of intrastate violence that is not directed at instrumentalities, channels, or goods involved in interstate commerce has always been the province of the states. D. Case Summaries 1. Gibbons v. Ogden, 9 Wheat. 1 (1824): What is the scope of the commerce clause; does it extend to interstate waterway navigation? a. Facts: Ogden acquired river navigation rights from the state of New York; Gibbons acquired the same rights from the federal government. b. Analysis: i. The commerce power was held to have a broad meaning: All commercial intercourse. ii. It may also concern the ability to affect matters occurring within a state. iii. It may be used to the utmost extent, reserving no area for state control of interstate commerce. 2. Champion v. Ames, 188 U.S. 321 (1903): Authorized Congress the ability to regulate noxious articles on the premise that it was desirable for Congress to do so and they were regulating under the guise of regulating an interstate shipment. 3. The Daniel Ball, 77 U.S. 557 (1871): Established Congress’s ability to legislate the whole voyage of a good as it travels. Even though some transactions of a good may be carried out entirely within the confines of a state, that does not affect Congress’s ability to regulate it. 4. Houston E&W Texas Rwy Co. v. United States, 234 U.S. 342 (1914): The commerce clause power necessarily includes the right to regulate all matters having a close and substantial relation to interstate traffic such that control is essential to the security of that traffic. Does the activity being regulated substantially affect commerce? The means chosen by Congress are reasonable? AND Does the Act fall within the Commerce Clause? Both MUST be present in order for this to become a Commerce Clause issue. 19 a. This case expands The Daniel Ball line of reasoning that when some aspect flows into or plugs into the interstate commerce stream, Congress can legislate it. b. CLOSE AND SUBSTANTIAL EFFECTS TEST enumerated 5. Hammer v. Dagenhart, 247 U.S. 251 (1918): What are the bounds of Congress commerce clause ability? a. The Court strikes down a federal statute which prohibited interstate transportation of goods manufactured by children younger than a certain age. b. The goods themselves were harmless; the employment of children in their manufacture was the evil. c. Analysis: Upholding this law could extend all manufacturing intended for interstate shipment. d. This is the first case where the commerce clause power was seen to subside. The Court says that the stream of commerce begins outside the factory walls; the stream itself can be regulated, but not the start. 6. Evolution of cases in the New Deal era: a. Shreveport: An instrumentalities case. b. Hammer: Child labor c. Schechter: No direct impact on commerce; the advent of the Direct Test. d. Carter v. Carter Coal: Employer-employee relationship analyzed using the Direct Test. e. NLRB v. Jones: Start of the modern trend; first ruling that sparked the mergence of an expanded commerce clause interpretation. i. Loosens the nexus required between regulation of intrastate activity and interstate commerce. ii. Makes the X Amendment irrelevant. 7. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935): Direct effects test. a. Minimum wages for poultry salesmen are unconstitutional because the regulated conduct did not have a “direct” effect on interstate commerce. b. The Court ruled that Schechter’s activities as regarding a minimum wage were not in the “current of commerce” and were not “affecting commerce.” c. NO LONGER GOOD LAW. 8. Carter v. Carter Coal Co., 298 U.S. 238 (1936): Final New Deal cases overturning FDR’s initiatives. a. Minimum wages for coal miners held to be unconstitutional because the production of coal only has an indirect effect on commerce. b. The Court ruled that there was no direct logical relation between the production and interstate commerce. 9. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): Outlines the substantial effects test; signals the emergence of a modern trend. a. Represents a change in Court policy and an expansion of the substantial economic effects test. b. The Court upholds the NLRB’s ability to manage employer-employee relationships in steel mills because a stoppage of work would have a close and substantial (direct) impact on interstate commerce. c. Represents a quantitative test. 10. United States v. Darby, 312 U.S. 100 (1941): Expanded substantial economic effects. a. There is a metamorphosis from the direct test to the substantial effects test. b. The Court rules that sometimes manufacturing has a substantial effect on commerce and that Congress can control that. 20 c. Stands for the notion that Congress has the ability to regulate activities that are intrastate when they have a substantial effect on interstate activity. d. This case represents an abandonment of the “current of commerce” rationale. It no longer matters whether or not the activity being regulated occurs before, during, or after the interstate movement. 11. Wickard v. Filburn, 317 U.S. 111 (1942): Represents the cumulative effect theory’s emergence. a. Facts: The government has attempted to regulate wheat production and has prosecuted a man who has gone over his authorized production quota, though that amount was used solely for personal consumption. b. Analysis: i. The Court rejects the solely for personal use argument and rests upon two grounds. ii. First, the personal consumption has an aggregate market effect: the more that is personally consumed, the less that that person demands and this will eventually have an effect. iii. Second, although the farmer, by himself, had a trivial effect on the market, the effect of his actions, taken together with that of others similarly situated is far from trivial and has a net effect of negating the intent of the legislation. c. Wickard is still good law and was relied on heavily in Gonzales v. Raich, 545 U.S. 1 (2005). 12. Maryland v. Wirtz, 392 U.S. 183 (1968): Expansion of federal ability to regulate. a. Allowing the regulation of hospitals and schools, even though they do not operate in interstate commerce. b. Based on the premise that hospitals and schools are major users of goods imported from other states. 13. Perez v. United States, 402 U.S. 146 (1971): Allows the federal government to regulate purely intrastate loan rates (sought to prevent racketeering). Was based on the premise that the activity sought to be prevented was financed on a national basis and therefore had interstate effects. 14. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964): Application of commerce clause to non-commercial settings, civil rights legislation. a. It was Congress’s intent to facilitate racial equality by passing the Civil Rights Acts. b. The hotel was located near an interstate. c. Since interstate travel is affected by the reluctance of blacks to travel due to potential discrimination and this would lead to a decrease in potential revenue, Congress may regulate. d. The motive of the legislation, principally moral and social grounds was irrelevant 15. Katzenbach v. McClung, 379 U.S. 294 (1964): AKA “Ollie’s BBQ”: Application of commerce clause to non-commercial settings, civil rights legislation. a. The restaurant purchased a significant amount of its goods from goods that passed via interstate commerce and also pursued a discriminatory policy against black patrons. b. Since the restaurant would realize more revenue and buy more goods if it allowed blacks into the dining room, it was affecting commerce by prohibiting blacks from eating in the dining room. c. Based upon the aggregation of discriminatory practices like those in Ollie’s, and their effects, there was an effect on interstate commerce such that Congress was able to regulate this. d. Also, so long as there is a rational basis for Congress findings when it passes legislation, the Court will give deference. 21 16. United States v. Morrison, 529 U.S. 598 (2000): Evolution of current theory necessitating an economic nexus in the legislation. a. Facts: Congress had made a determination that provided a federal civil remedy for the victims of gender-motivated violence and that that activity, it found, affected interstate commerce or that it could be regulated via interstate commerce. b. Analysis: i. Relying heavily on United States v. Lopez, 514 U.S. 549 (1995), which developed several commerce clause factors for finding validity of legislation passed based upon the commerce clause: ii. The Court relied on the several Lopez factors. c. Deference to Congress in Morrison: i. Majority: Virtually no deference—just because Congress says so, does not make it so. ii. Thomas, Concurring: Commerce means commerce, no deference. iii. Souter, Dissent: Wickard controls in this case, there are plenty of findings to support Congress, and categories do not work. iv. Breyer, Dissent: Economic versus noneconomic distinctions do not work; this is a political question, nonjusticiable and thus, not up to the Court. d. Morrison represents a change in the law: i. When regulated conduct has nothing to do with commerce – look at the commercial connection. ii. Simply because Congress says so does not make it so. iii. The violence against women sought to be curtailed in this piece of legislation is specifically an example of what is covered in the police powers and thus reserved to the states under the X Amendment. 17. Gonzales v. Raich, 545 U.S. 1 (2005): Court’s updated application of Wickard. a. California state law allowed some people to medicinally grow and consume marijuana. b. In overruling that law ass inconsistent with federal law, the Court relied on Wickard i. Although one marijuana plant grown may not make a difference, may will and will have an effect on demand by increasing it. ii. This increase in demand is counterproductive to the federal law prohibiting marijuana. iii. The government seeks to curtail this through its legislation, which would be undermined by allowing this sort of “personal” growth/consumption. c. SCALIA, Concurrence: A statutory scheme that is part of a comprehensive regulatory scheme, the effect of which is to regulate an authorized area of Congress’ authority is allowed. If the ends sought are allowable, the means will generally be allowed under the Necessary and Proper clause. d. THOMAS, Dissent: Must look at the original intent of the founders; go back to 1789 to determine the scope of the Commerce Clause. VIII. Congress’ Budgetary Powers: Taxing and Spending A. Issue /Scope 1. Taxation Power: a. Basis: Article I, §8, Clause 1 b. Main theme/issue: When can Congress use its power of the purse to invade a state’s police power? c. An issue of federalism thus arises. 22 d. The Constitution is one of line drawing, the main distinctions between state and federal powers. e. THE POWER OF TAXATION CAN BE USED TO REGULATE CONDUCT; this would run afoul of federalism and destroy the whole basis upon which the Constitution was constructed. 2. Spending Power: a. Article I, §8: “To pay the debts and provide for the common defense and general welfare of the United States.” b. Views on the GENERAL WELFARE: i. Congress can pass any law to support general welfare; however, it is not a blank check to effectively give Congress police powers. ii. Hamiltonian View: Congress can spend money to advance the general welfare. Very loose interpretation. iii. Madisonain view: Congress can spend money in advancing the general welfare, limited to the enumerated powers. VERY LIMITED interpretation. From United States v. Butler (1936). B. Rule 1. Taxation a. Article I, §8: The Congress shall have power to lay and collect taxes, duties, imposts, and excises. b. This is an independent federal power c. SPECIAL RULES: i. The tax structure may not discriminate among the states; it does not matter that specific individuals are not taxed uniformly. ii. Direct taxes must be arranged in such a way that the revenue produced by them comes from each state in proportion to its share of the nation’s overall population. iii. No duty may be imposed on exports, under Article I, §9. 2. Spending Power: a. C. Analysis 1. Taxation: a. MEANS-END TEST: What is the goal of the tax? b. LEGITIMACY ASPECTS EXAMINED BY A COURT: i. A tax that is an incidental restraint on conduct is okay; a tax meant to penalize is not okay. ii. Regulation associated with and reasonably adapted to the collection of the tax is okay. iii. Whether or not there is proportionality and scienter will determine whether or not the tax is a penalty. 2. Spending Power: a. MEANS-END TEST: The tax cannot coerce conduct, but it can encourage; the end must be within a federal ambit. b. STEWARD MEANS-END TEST: i. Look for any coercive effect in the means; AND ii. Are the ends within the federal ambit? That is, can they do that? c. DOLE TEST: CURRENTLY THE ANALYSIS TO USE i. Is the spending for the general welfare? ii. Does the statute unambiguously set forth conditions that must be met for participation?; AND 23 iii. Is the condition related to the federal interest advanced by the program? iv. Quantitative measure: Coercion or mild encouragement? v. Does the condition violate some other Constitutional provision? 3. General Welfare versus Particular Benefit: a. Common benefits; b. Congress has the discretion to tax and spend. D. Case Summaries 1. Tax Power a. Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922): Congress’ power of taxation. i. Congress may tax to raise revenue, but may not use that taxing power to punish. ii. The lack of proportionality and the element of scienter on the imposition of the tax indicate and unauthorized motive to punish. iii. Applies a means-end test: look at the goal of the tax. iv. A tax cannot be punitive in nature, but an incidental regulating restraint is allowable. b. Veazie Bank v. Fenns, 8 Wall. 533 (____): Tax rates. So long as the tax itself is valid, the Court will not examine the degree or percent of the tax—this is discretionary and left to another branch. c. McCray v. United States, 195 U.S. 27 (1904): Tax motive. A motive for imposition of a tax is discretionary and left to Congress to decide. d. United States v. Doremus, 249 U.S. 86 (1919): Tax motivations. The provisions of an act to tax must be reasonably and naturally adapted to its collection and not solely to the achievement of some other purpose plainly within the state power. 2. Spending Power a. United States v. Butler, 297 U.S. 1 (1936): Spending power’s scope. The court decides that the Hamiltonian view is the best interpretation of the “general welfare.” i. The end here was not legitimate and the means were coercive. ii. Means-End Test: The tax cannot coerce conduct, but it can encourage; the end must be within a federal ambit. iii. Congress may not regulate in a particular area merely on the ground that it is thereby providing for the general welfare. b. Steward Machine Co. v. Davis, 301 U.S. 548 (1937): Congress may adopt a tax and spending law that is designed to encourage states to amend their laws, so long as the end is legitimate and the means are authorized, that is, not coercive. i. Steward Means-End Test: • Look for any coercive effect in the means; AND • Are the ends within the federal ambit? That is, can they do that? c. South Dakota v. Dole, 483 U.S. 203 (1987): Congress’ indirect use of its conditional spending power to achieve a result is authorized, even if those results would not be allowed directly. i. Dole Test: • Is the spending for the general welfare? • Does the statute unambiguously set forth conditions that must be met for participation?; AND • Is the condition related to the federal interest advanced by the program? • Quantitative measure: Coercion or mild encouragement? • Does the condition violate some other Constitutional provision? d. “General Welfare” versus “Particular Benefit” i. Helvering v. Davis, 301 U.S. 619 (1937): Recognition of an evolving scope of general welfare. The discretion to spend is with Congress. Needs that were narrow 24 or parochial a century ago may be interwoven in our day with the well-being of the nation. ii. United States v. Gerlach Livestock Co., 339 U.S. 725 (1950): Congress’ tax and spending abilities are limited by the requirement that they shall be exercised for the common benefit as distinguished from some merely local purpose. IX. Shared Powers : Executive and Legislative A. Generally, Power Sharing and Separation of Powers 1. Power sharing graph: 2. Whenever Congress tries impermissibly to take power, the Court will step in and generally protect the separation of powers. 3. Where Congress limits the President’s power and DOES NOT TAKE THE POWER FOR ITSELF, the Court is reluctant. 4. Also, keep in mind the function versus formal view of separation of powers. B. Treaties and Foreign Affairs 1. General: a. Treaties: i. The President may make a treaty, but it must be ratified by 2/3 of the Senate (Article II, §2). ii. Also, Congress has the authority to pass statutes that implement the terms of treaties. 2. Rule: a. Treaty power comes from: i. Article VI; ii. Article II, §2 b. A treaty may not violate any distinct constitutional prohibitions or guarantees. 3. Case Summaries: a. Missouri v. Holland, 252 U.S. 416 (1920): Interpretation of treaty powers. The treaty power is deemed to be very expansive as is the foreign affairs power 25 C. War Powers 1. The power is shared between Congress and the President. 2. Congress: funds the military 3. President: in charge of training and leading the military. D. Appointment and Removal of Officers 1. Background: Issue/Scope: a. Does the President have to obtain the advice and consent of the Senate to terminate an appointed official? b. The answer is, basically, no. 2. Rule a. Article II, §2, Clause 2: “He shall nominate , and by and with the advice and consent of the Senate, shall appoint…other public Ministers and Consuls.” b. When the individual is a non-executive branch head, removal of him a lot more difficult than if he were an executive agency head. 3. Analysis a. IS THE PERSON A PUBLIC MINISTER/OFFICIAL? Do they exercise significant authority under the laws of the United States? b. 4. Case Summaries a. Humphrey’s Executor v. United States, 295 U.S. 602 (1935): The Commissioner of the Federal Trade Commission is head of a quasi-judicial/quasi-legislative independent body and may not be removed without cause. Congress can limit removal of the FTC for “cause.” b. Buckley v. Valeo, 424 U.S. 1 (1976): The standard for determining whether or not a person is a public minister or consul is whether or not that person is exercising significant authority under the laws of the United States. c. Bowsher v. Synar, 478 U.S. 714 (1986): An officer, controlled by the legislature, may not be allowed to execute laws. The Comptroller works for the Congress and thus cannot direct the President; Congress may not hold on to any power because it has none to begin with. d. Morrison v. Olson, 487 U.S. 654 (1988): Independent Counsel Law. i. Congress can call the Attorney General to ask him to initiate an investigation on the President through appointment of a special counsel. ii. The independent counsel works for the Attorney General, but cannot be fired without cause and that termination is reviewable by the D.C. Circuit. iii. This case was not controlled by Meyers, because the court found that the independent counsel was an inferior officer whose jurisdiction and tenure lack policymaking authority thus rendering him incapable of being fired without cause. iv. The power sharing pie moves towards the judicial branch, but the move is negligible. This upholding of the law and decision are critical. v. Some executive authority can be shared with the judiciary. E. Delegable and Non-delegable Powers 1. Issue/Scope a. Congressional Delegation: i. Lawmaking authority is vested in Congress, Article I. • The laws are executed by the executive branch. • The executive branch agencies formulate rules and regulations through the Code of Federal Regulations (CFR), which have the same effect as law. 26 • Congress cannot delegate its lawmaking abilities to the branch charged with the duty to execute the laws, but, in light of certain problems, it may delegate certain functions. ii. Legislative Veto • When Congress passes a law requiring an executive agency to determine rules and regulations, but withholds final approval until a subcommittee approves what the agency formulates.//IS THIS LEGAL? NO • A Prime example of something the Congress CANNOT hold back for itself in legislation. • Veto powers are explicitly enumerated and given to the Executive. • Separation of Powers Isse: ◊ Has the power been given, like in Chadha? ◊ When Congress requires a pre-approval, no power was given, there was not a completion. ◊ Functionalism or Formalism? ⇒ Functional View: It works ⇒ Formalist View: Has Congress delegated the power? iii. Executive Rulemaking • The agencies that formulate rules and regulations also have the authority to determine whether or not a violation of its regulations has occurred through a quasi-judicial hearing. ◊ ISSUE: Should these executive agency hearings be afforded the same judicial review as a legislative or judicial hearing? ◊ Process Gas Consumers Group v. Consumer Energy Council of America, 463 U.S. 1216 (1983): Functionalist decision, allows one house veto of an independent agencies’ rulemaking. • An increasingly functional view is that the President has the ability to promulgate rules—presidential lawmaking; which also necessitates acceptance of Congressional oversight of that lawmaking ability—the legislative veto. iv. Why would Congress delegate: • Pro-Delegation: ◊ Congress is too slow; ◊ There is not time to deal (or debate); ◊ Perhaps for political reasons, Congress did not want to make the decision; ◊ Congress can also pass a law taking back the delegated power. • Anti-Delegation: ◊ Too much power in the executive; ◊ The issue requires the force of direct Congressional action; OR ◊ It is a non-delegable issue. v. Line-Item Vetoes • A line item veto is the ability of the President to strike or cancel certain provisions in a bill without having to veto the entire bill. • 2. Rule a. Article I: Puts lawmaking authority in the hands of the legislative branch, Congress. b. INTELLIGIBLE PRINCIPLE DOCTRINE – Some rulemaking is allowable if two criteria are met: 27 i. CRITERIA 1: ii. CRITERIA 2: c. Congress CANNOT enact laws allowing the President a line-item veto. d. Once a law is passed, the only way to get rid of it is through bicameralism and Presidential approval. 3. Analysis a. EXECUTIVE RULEMAKING: Three areas of authorized executive rulemaking: i. Congress has explicitly left a gap for an agency to fill—the agency decision survives unless those standards are arbitrary and capricious, or manifestly contrary to the statute. ii. If Congress has implicitly delegated power—the agency’s decision survives, if it is reasonable. iii. If the power is not delegated—must give the decision deference. b. HOW A BILL BECOMES A LAW: i. Bicameralism: ii. Signature by the President or sent back (vetoed). 4. Case Summaries a. Yakus v. United States, 321 U.S. 414 (1944): Intelligible Principle Doctrine outlined. Congress may give a goal to the executive (by the law enacted) and set of means and standards. Delegation is appropriate if Congress follows the standard. b. INS v. Chadha, 462 U.S. 919 (1983): i. ISSUE: Can Congress withhold the same power that it has delegated? ii. Underlying notion: Bills of attainder are prohibited (Bills of Attainder: laws directed at one person). This case was directed at one person. iii. There are only four specific exceptions to the bicameralism requirement: • Articles of Impeachment; • The ability to try an impeachment; • Presidential appointments; AND • Treaties. iv. Thus the Court basically relies on expression unius and strikes down Congress’s ability to withhold power. c. Clinton v. New York, 524 U.S. 417 (1998): Line Item Vetoes. The line-item veto violated the Presentment Clause, Article I, §7, Clause 2. i. If the President does not approve of the bill, he can return the bill. ii. The act failed to follow procedure because it: • Allowed the President to return the bill to Congress after it was law. • The Presentment Clause requires a veto of the entire bill. • The net effect is to allow the President to write a new bill and sign it into law. • How Bills become law: ◊ Bicameralism; AND ◊ Signature by the President or sent back (vetoed). X. Federalism: State Protections A. Issue /Scope 1. Federalism: 28 2. In federalism, the federal government gets protections to act and the states get protections to act. a. Federal government protections: i. Limited and enumerated powers ii. Supremacy clause b. States get: i. Police powers ii. Control over the inner workings of their government. iii. No power over the federal government. 3. The immunity of the states from federal regulation exists only in a very theoretical way. 4. Generally, federal regulation of the states is valid. 5. Core function: B. Rule 1. Power limitations: a. Garcia: Congress can regulate the states as a part of statutes of general applicability. b. Printz: Congress cannot commandeer the functioning of state executives C. Analysis 1. Does the statute violate a core function of the state? a. YES: Might be a violation of the Xth Amendment. b. NO: valid law D. Case Summaries 1. Wirtz (1968): Congress may force state entities to comply with federal employment standards that are of a general applicability to all employees. 2. National League of Cities v. Usery, 426 U.S. 833 (1976): Adoption of a four-prong test in ruling that Congress may not force states to comply with federal employment regulations. Standards: a. Does the statute regulate states as states? b. Does the statute address matters that are indisputably attributes of state sovereignty? c. Does the statute directly impair the state’s ability to structure integral operations in areas of traditional state functioning? d. Balancing test: federal interest versus state interest. 3. Garcia v. San Antonio Metro Transit Authority, 469 U.S. 528 (1985): Congress may force states to comply with federal employment standards because: a. Traditional versus nontraditional. b. The primary protection of rights in this matter is the political process. c. Political Checks: i. Control over electoral qualifications. ii. The Electoral College. iii. Senators support/represent the states d. The statutes of general applicability; the enforcer of state immunity/interest is the political process. FEDERAL GOVERNMENT STATE GOVERNMENT THE PEOPLE 29 4. Printz v. United States, 521 U.S. 898 (1997): The federal government cannot commandeer state officials to carry out federal laws. a. Expressio Unius: Article IV, §2; requires the states to return treason suspects. The inclusion of this and the absence of anymore excludes that which is not included. b. Federalism: Congress regulates individuals, not states. c. Precedent: New York v. U.S.; query there: which was more destructive to federalism? i. Here Congress passed a law requiring states to either pass a law providing for the disposal of radioactive waste or to take title of the waste. ii. The Court struck down this law. d. The potential effect on federalism would be to take away from the states and give to the President. e. RULING: Basically, Congress can pass laws of general application, subject to the political process, but it cannot commandeer state employees to do federal work. XI. Federalism: Dormant Commerce Clause A. General 1. This is generally a federalism issue. 2. The dormant commerce clause examines the boundaries between state and federal governments. 3. Affirmative Commerce Clause: a. Focuses on what the federal government can do. b. The question for the federal government, and affirmative commerce clause questions is, “who says?” 4. The dormant commerce clause, on the other hand, asks whether a state can pass a particular law that has a potentially detrimental effect on interstate commerce. a. The focus here, issue spotting, is state laws b. This is judge-made law, meant to prevent balkanization. B. Issue /Scope 1. The basic problem: The box represents all things commercial. 2. The framers sought to avoid the problems with balkanization. The Constitution was designed to facilitate free trade amongst the states. 3. ISSUE: Does Congress have exclusive authority to regulate all aspects of commerce to the exclusion of the states? 4. The Dormant Commerce Clause is a federal common law concept based upon the notion that the Commerce Clause was intended to grant Congress power and act as a “free trade” clause among the states. STATE POLICE POWER And incidental power to regulate intrastate commerce -Inspection laws/noxious articles -State police power GRAY AREA Areas of commerce where Congress could regulate, but has not done so. *The state law is struck down because it conflicts with federal law FEDERAL POWER Areas in which Congress has exercised its commerce power affirmatively to the exclusion of the states. -PREMPTION: The federal government has acted. 30 C. Rule 1. The states have no interstate authority, but they do have authority over health, safety, welfare, and morals. 2. States, acting as market regulators, can only discriminate against out of state interests when there is a highly compelling reason. 3. A state can subsidize its own businesses and tax nondiscriminately, so long as the two are not linked. 4. Subsidies and Linkages: States can subsidize their own businesses, but CANNOT take discriminatory action that hinders interstate commerce. 5. MAIN POINTS: a. When the state acts as a market participant, it may discriminate against out of state businesses for any reason, free of the Dormant Commerce Clause. b. The market the state is participating in must be defined very narrowly—the state cannot leverage market participation in one area into another market. c. State action can still be struck down on Equal Protection grounds, Due Process, and Privileges and Immunities provisions. Generally, these provisions require the same rights to out of state residents that are provided to in-state residents. D. Analysis 31 1. IS THERE A STATE LAW? 2. IS THERE A FEDERAL LAW? a. Preemption? 3. IS THERE A LOCAL CONCERN OR NATIONAL CONCERN? a. National Concern: Congress’s power to regulate is absolute. b. Local Concern: Congress can share its ability where the issue is local and important. 4. HAS CONGRESS DELEGATED ANY COMMERCE POWER TO THE STATES? 5. PIKE BALANCING TEST: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. 6. A Dormant Commerce Clause analysis MUST ALSO INCLUDE A DISCUSSION OF ARTICLE IV PRIVILEGES AND IMMUNITIES. Preemption: Has the federal government already created a law on this subject? Does Congress claim preemption? --OR— Does Congress occupy the field? The laws on the subject are numerous and there is not room left for the state to have any say. YES Statute Fails NO Does the state action conflict with federal action? Cannot comply with both AND The state statute fails as an obstacle to the accomplishment of the federal goal If the answer here is yes, and the state statute fails, the supremacy clause render the federal statute prevailing law. MUST STILL ASK: “WHO SAYS?” YES NO Is the intent of the state statute “simple economic protectionism?” Baldwin v. G.A.F. Does the statute facially or effectively discriminate against the interests of other states? Hunt & C&A Carbone, Inc. NO YES Virtually per se rule that the law is unconstit utional YES OR Does the statute show a close fit with a compelling state interest? ***Basically a noxious element under Maine v. Taylor Or is the effect on interstate commerce incidental? Apply a Pike Balancing test: Uphold the law UNLESS the burden on interstate commerce is clearly excessive to a local concern. OR There are no less restrictive alternatives available. Bendix Breard Hunt How important is the state’s interest? How bad is the effect? Possibly legitimate Possibly illegitimate NO YES Also look at the less restrictive alternative 32 E. Case Summaries 1. Gibbons v. Ogden: The start for almost all commerce-issues. The states do not have any interstate commercial authority; it is all reserved for the federal government. The states do retain police power. 2. Cooley v. Board of Wardens, 53 U.S. 299 (1852): Even though Congress has 100% of the Commerce power, that power may be shared when local concerns are important. When there are national concerns, Congress’ power to regulate is absolute. 3. Prudential Insurance Co. v. Benjamin, 328 U.S. 408 (1946): Congress can delegate some of its “exclusive” commerce power to the states. 4. Regulations that Burden Out-of-State Suppliers Seeking In-State Markets a. Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935): Economic barriers on out of state goods are not allowed. b. Dean Milk Co. v. Madison, 340 U.S. 349 (1951): Effectively stands for a prohibition on simple economic protectionism and blurs the lines between that protectionism and its effective discrimination against the interests of other states. The ban here was not essential to the protection of local health and placed a discriminatory burden on interstate commerce. c. Breard v. Alexandria, 341 U.S. 622 (1951): Application of a balancing test and the less restrictive alternative. Leaving other avenues open to commerce meant that the intent of the state to cultivate peace and quiet outweighed any discriminatory effect. d. Hunt v. Washington State Apple Advertising Comm’n., 432 U.S. 333 (1977): The statute was economically protective thus discriminatory, with no outweighing interest and other less restrictive alternatives to achieving the state’s goal. e. Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (1988): A balancing test applied to determine whether a state statute invalidating a long-arm statute or necessitating appointment of a resident agent. There were less restrictive alternatives available. 5. Burdens on Out-Of-State Interests Seeking In-State Resources: a. H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525 (1949): There is a less restrictive alternative available rather than the state’s economic protectionism. The state could have subsidized its milk industry—subsidies would have been a less restrictive alternative. b. Pike v. Bruce Church, Inc., ___ U.S. ___(1970): The Dormant Commerce Clause key is whether or not one state’s statute hurts another state. PIKE BALANCING TEST. 6. Regulation to Protect the Environment and Preserve Natural Resources for In-State Use: a. Philadelphia v. New Jersey, 437 U.S. 617 (1978): There was no compelling state interest and the statute was discriminatory on its face. b. Maine v. Taylor, 477 U.S. 131 (1986): Maine has shown a legitimate reason for its ban and that no less restrictive alternative exists. This case is similar to the sick cow cases. c. C&A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994): This case is Dean Milk in reverse, all trash must be disposed of through one means. d. United Haulers’ Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Authority, 127 S.Ct. 1786 (2007): Government ordinances are directed toward legitimate goals of government unrelated to protectionism. 7. West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994): SUBSIDIES AND LINKAGES. The state can tax and subsidize (equally), but it cannot link the two such that the out-of-state tax proceeds are directly linked to a subsidy to exactly correlating in-state interests. The linkage erodes the effectiveness of the political process. 8. The State As A Market Participant a. Reeves, Inc. v. Stake, 447 U.S. 429 (1980): States can act in a variety of functions. 33 i. When a state acts as a sovereign power, where it can regulate, it is limited by the Dormant Commerce Clause. ii. However, when a state enters the market as a participant, the Dormant Commerce Clause does NOT apply. iii. The Court here allows the government, when acting as a market participany, to freely discriminate in other ways that would not be allowed. b. South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82 (1984): There is a distinction between the means and ends. States are limited by the means they can use to achieve legitimate ends. XII. The Due Process Clause; Substantive Due Process A. Article IV, Privileges and Immunities: 1. Issue /Scope a. Constitutional Provisions: i. Article IV, §2, Clause 1 ii. XIV Amendment, Section 1 b. Privilege versus Immunity i. Privilege: A particular and peculiar benefit enjoyed by a person, company, or class; ii. Immunity: Freedom or exemption from the burden of penalty or duty. c. MAIN ISSUE: What are privileges and immunities? d. PURPOSE: Encourage national unity by treating people the same, no matter what state they are from. e. How can states discriminate to benefit their residents? f. Article IV versus the Dormant Commerce Clause: i. The Dormant Commerce Clause: • Applies to Corporations, aliens, and citizens • It can show discrimination or undue burden • Congress CAN excuse a violation • There is a market participant exception ii. Article IV: Privileges and Immunities: CAVEAT: Plain language; this is a clearly enumerated Constitutional article and it says what it says. • Applies only to citizens • Must show actual discrimination • Congress cannot excuse it—it is a constitutional article • There is no market participant exception iii. A Dormant Commerce Clause analysis must go on to a discussion of the Article IV Privileges and Immunities. 2. Rule 3. Analysis a. Are we dealing with a privilege or immunity bearing upon the vitality of the nation as a whole? i. YES: Does it affect one of these areas: • Ability to engage in trade • Abortion; health care • Court access • Fundamental Constitutional Rights ii. NO: Example: There is not fundamental right to public employment b. If there is a privilege or immunity, then: 34 i. Part One: Does the state have substantial reason to discriminate against the out of state person? ii. Part Two: Is the law substantially related to justification? iii. Part Three: States are allowed to reap what they sow. 4. Case Summaries a. United Building & Construction Trades Council v. Mayor of Camden, 465 U.S. 208 (1984): A state should be able to reap what it sows. In this case, the tax dollars were being spent on public construction projects, the state can preserve the benefits for its citizens. B. Substantive Due Process 1. Issue/Scope a. General: i. Fundamental Inquiry: Are there unexpressed, unenumerated limitations reflected in the Constitution that act as a limit on the power of government to regulate the lives of its subjects? ii. Also known as implied of inherent limitations on the powers of the sovereign. b. IF there are such limitations, then two questions arise: i. WHAT are those fundamental rights (or limitations); AND ii. WHAT is the basis of those rights (ie natural law, extensions of principles enumerated) c. Does the Constitution ONLY protect enumerated rights or are there more rights guarantees beyond it that are “out there” protecting the people? 2. Rule a. After Nebbia and Carolene Products, the Corut ruled that there would be greater scrutiny. 3. Analysis a. CAROLENE ANALYSIS for a narrower scope of presumption of constitutionality: i. The law appears to violate the Bill of Rights; Barron (1833): The Bill of Rights does NOT apply to the states. Evolution of Substantive Due Process Dred Scott (1857): The Constitution acts as an inherent limit on the power of Congress to deprive people of property. XIV Amendment (1868): The states cannot deprive individuals of privileges and immunities; also they must give due process and equal protection. Slaughterhouse Cases (1873): The Privileges and Immunities provision is very narrow; only Articles I & IV. Lochner (1905): The Court gives itself an expansive role based on its history and natural law, to define economic fundamental rights. Nebbia (1934): On second thought, if economic regulation is reasonably related to a legitimate government ends, the Court will approve of it. Carolene Products (1938): The Court will apply the lowest form of scrutiny to economic legislation, but it might not be so deferential in other arenas. Calder v. Bull (1978): CHASE, J., argues that the “social compact” limits the powers of Congress beyond the specific restrictions contained in the Constitution. VS. DISSENT: The only acts we can strike down are those that violate specific provisions of the Constitution (No overturning based on concepts of “natural law”.) 35 ii. The law restricts the political process that acts as a check on undesirable legislation; AND iii. The law disproportionately impacts a discrete and insular minority. 4. Case Summaries a. Slaughterhouse Cases, 83 U.S. 36 (1873): The privileges and immunities of a citizen of the United States are those enumerated in Articles I-IV; thus, there is a very narrow protection (limited to what Article IV protects). Narrow construction of Article IV, Privileges and Immunities Clause. b. Lochner v. New York, 198 U.S. 45 (1905): The Court reads in a free market clause to the Constitution that does not exist, but is a part of the natural law. The Court also decides it has the power to determine fundamental rights. The government must have an overriding or extremely strong interest to interfere. c. Nebbia v. New York, 291 U.S. 502 (1934): Federal economic legislation should be upheld against a substantive due process test. If the legislation is rationally related to a legitimate government end. i. There is a presumption of Constitutionality. ii. A separate question is WHO? ; Otherwise, the courts will stay out of the question iii. Rational Basis Test d. United States v. Carolene Products, Co., 304 U.S. 144 (1938): Not all federal legislation should be given a free pass, according to the opinion’s footnote 4. There may be a narrower scope for the presumption of constitutionality when: i. The law appears to violate the Bill of Rights; ii. The law restricts the political process that acts as a check on undesirable legislation; AND iii. The law disproportionately impacts a discrete and insular minority. iv. A free pass should not be given in certain areas; the Court may take a closer look at legislation in those specific and certain areas. e. Griswold v. Connecticut, 381 U.S. 479 (1965): Justice Douglas and his emanating penumbras. Privacy comes from the 1st, 3rd, 4th, 5th, and 9th Amendments. i. Goldberg’s Concurrence: look to fundamental rights ii. Harlan’s Concurrence: Look to the meaning of the word liberty: history and the laws of other nations. iii. Black’s Dissent: Formalistic Approach; this is not a court issue. iv. Stewart’s Dissent: There is no guarantee of privacy in the Constitution. f. Roe v. Wade, 410 U.S. 113 (1973): Buys into the Harlan viewpoint that privacy is a liberty concept. The state’s interest becomes most heavy at the time the fetus is viable—though this is a sliding scale of when viability becomes since viability is a function of medicine and scientific advances. i. Upholds the right of privacy C. The Contracts Clause 1. Issue/Scope: a. General: i. Article I, Clause 10: “No state shall…pass any bill…impairing the obligation of contracts.” ii. Intent: States and private parties had incurred huge debts during and after the Revolution. Under the Articles of Confederation, states passed a myriad of laws that, in effect, excused those debts. iii. The clause has very little substance beyond this context. b. Understanding the Contracts Clause 36 i. Impairing existing contracts clause problem; legislation that interferes with existing contractual relations. ii. Three Part Test c. Impairing future contracts=Substantive Due Process issue 2. Rule 3. Analysis a. Legislation that intereferes with future contractual obligations will be upheld if reasonably related to a legitimate government interest. EXAMPLE: Wage laws; child labor laws. b. Is there a substantial impairment of existing contracts? NO—No problem. c. YES: Presents two further questions: i. Does the impairment serve a significant and legitimate state interest? AND ii. Is the legislation reasonably related to achieving that goal? 4. Case Summaries a. Home Building & Loan Ass’n v. Balisdell, 290 U.S. 398 (1934): Five significant factors; emergency need, the law did not favor a specific group, relief was appropriately tailored, conditions were reasonable, legislation was temporary. b. Allied Structural Steel v. Spannaus, 438 U.S. 234 (1978): Impairment of an existing contract. This case is the exception, since the state usually wins because the person attacking must show the impairment does not serve a significant and legitimate interest. XIII. Standing A. Issue /Scope 1. Based on the Separation of Powers 2. Article III 3. Others: a. The Court is not a debating club or advisory body b. It decides concrete cases involving disputes. 4. If it weren’t for this, the power pie would be redrawn a. Telling other branches what to do gives power b. Marbury v. Madison: The Court sits to decide cases were an individual’s rights have been wronged. 5. Political Realities: a. Limited resources b. The best cases are where a personal interest is at hand c. Concrete injuries do not focus on hypotheticals, but concrete issues. B. Rule 1. Constitutional versus Prudential a. Constitutional: Congress cannot pass laws waiving these requirements because they are in the Constitution. i. Injury-in-fact: A distinct and palpable harm must have occurred. ii. Causation: The injury is fairly traceable to the defendant’s actions. iii. Redressability: A favorable decision must likely result in relief to the plaintiff. b. Prudential: A good idea not to take the case; Congress can waive these. i. No third-party standing (generally) ii. No litigating generalized grievances that are better addressed in the representative branches. • Separation of Powers issue • Everyone is hurt in the same way – address these problems to Congress, not the Courts. 37 2. INJURY: Takes on many forms a. Bakke: Injury was the deprivation of a chance to compete for a position at law school. b. Injury is broadly defined, but not so broadly defined as to bypass causation and redressability. 3. REDRESSABILITY: If a plaintiff has caused an injury, typically, relief against the defendant will remedy the injury. a. Lyons: When it is too speculative that the plaintiff would suffer the same injury, injunctive relief was not granted. b. Evans: When it appears sufficiently likely that the relevant officials will redress the injury, standing is granted. C. Analysis 1. Is this a prudential or Constitutional requirement? a. If Constitutional, it cannot be waived b. If prudential, it may be waived 2. D. Case Summaries 1. Allen v. Wright, 468 U.S. 737 (1984): The tax break given to the discriminatory school is too far removed from the injury that causation fails and that would also mean an inability by the Court to adequately redress the problem. a. BRENNAN, Dissent: The analysis of standing ultimately requires a review of the merits before a trial. b. XIV. Mootness A. Issue/Scope 1. The injury is no longer a valid injury 2. Mootness occurs when the injury has passed, that is, there is no more injury B. Rule 1. Generally, moot cases are not taken 2. EXCEPTION: a. Capable of repetition, evading review b. Voluntary cessation of illegal conduct does not make it moot unless subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to reoccur. C. Analysis D. Case Summaries 1. Defunis v. Odegaard, 416 U.S. 312 (1974): Time was a factor in that by the time the case reached the Court, it was rendered moot. That is, it no longer was an injurious situation to the plaintiff and was not capable of happening again. XV. Ripeness XVI. Takings A. Issue/Scope: 1. What is the extent to which a governmental actor may take land from a private citizen? 2. 5th Amendment issue 3. Two types of views: a. Classic View: Prevalent over the first 100 years 38 i. Taking meant a physical invasion ii. Public use meant that the use would be for the general public, ie a post office, roadway, or fort. b. Modern View: Prevailing over the last 100 years. i. Taking means a physical invasion. ii. A taking is also a governmental regulation on the use of land that so severely restricts the owner, that there is a constructive taking on the part of the government when it passed the regulation. iii. Public use includes transfer among private parties, if the public interest is advanced. c. Concept of public use: B. Rule C. Analysis 1. Just Compensation 2. Regulatory Taking a. Pennsylvania Balancing Test: i. How much was lost in the taking? ii. Was there a legitimate investment-backed expectation? iii. Does the owner have any remaining economically productive use? iv. Are other alternatives available? v. Is this a specific or general taking? “Pain” for few or many? vi. Did the owner benefit from the restriction? vii. How strong is the public interest? viii. Is it a generally applicable statute? ix. How much harm would allowing the use cause? x. Is it a part of his bundle or a nuisance? His intended use? This is almost a per se victory for the state. D. Case Summaries 1. Concept of Public Use Regulatory Takings Balancing Test Has there been a physical invasion of the property, NO MATTER HOW SLIGHT? NO YES A taking has occurred Has 100% of the value of the property been taken? NO Apply a Pennsylvania Balancing test YES Is the property itself a nuisance or is the proposed use not part of the owner’s bundle of sticks? NO A taking has occurred and no public interest can outweigh it. YES A taking has not occurred PENNSYLVANIA BALANCING TEST 39 a. Berman v. Parker, 348 U.S. 26 (1954): The government has a state interest, a public interest, in maintaining a pleasant community area and a plan meant to forward those public objectives is not contrary to the 5th Amendment. The Court deferred to the master plan. b. Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984): When the eminent domain power is rationally related to a conceivable public purpose, the debates about the wisdom of the taking will not be conducted, and the taking will be upheld. c. Kelo v. City of New London, 125 S.Ct. 2655 (2005): The court adopts a rational basis test, allowing the government to take property where secondary benefits might convey to the general public; the Court rejects a bright line test. i. THOMAS, Dissent: Public use gives the public the actual legal right to use the property. A public purpose is not a public use. ii. Berman & Midkiff cases: A public use limits taking to where property itself is causing harm. iii. The Court decides that the term public use should be defined by the state legislatures. iv. TAKE HOME POINTS: • The government may not take land for the purpose of conferring private benefits on a particular private party. • The government may transfer property from one private party to another private party if the purpose is for use by the public. 2. Regulatory Takings: a. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922): When regulation goes too far, it will be recognized as a taking just as if title had been taken from the owner. b. Keystone Bituminous Coal Ass’n v. DeBenedictus, 480 U.S. 470 (1987): Loss of value was not a 100% loss, like Penn. Coal, Here there was a 2% loss of profits, that is not that much. c. Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978): Must look at the entire estate, it cannot be divided into separate and discrete interests effecting a taking. Effects a balancing test between the nature, character and effects of the statute on the entire parcel versus any benefits derived. d. Lucas v. South Carolina, 505 U.S. 1003 (1992): If a government regulation takes 100%, compensation must be paid UNLESS the use of the land was not a part of the “bundle of sticks” (ie, perhaps a nuisance) when the owner purchased the property.