Law School Outline - Constitutional Law- Cases

CONSTITUTIONAL LAW CASES JUDICIAL REVIEW ............................................................................................. 3 Marbury v. Madison (U.S.S.C., 1803) page 3 .......................................................................... 3 Cooper v. Aaron (1958) page 24 ........................................................................................... 5 Martin v. Hunter’s Lessee (1816) page 68.............................................................................. 7 SEPARATION OF POWERS.................................................................................. 8 Youngstown Sheet & Tube Co. Sawyer [The Steel Seizure case] (1952), page 333 .................. 8 War Powers Resolution .......................................................................................................... 9 Dames & Moore v. Regan (1981) page 344 .......................................................................... 10 Woods v. Cloyd W. Miller Co. (1948) page 225 .................................................................... 10 Missouri v. Holland (1920) page 226 ................................................................................... 11 United States v. Curtiss-Wright Export Corp. (1936) page 353 ............................................ 12 INS v. Chadha (1983) page 353 ........................................................................................... 12 Clinton v. New York (1998) page 362 .................................................................................. 13 Bowsher v. Synar (1986) page 370....................................................................................... 15 Myers v. United States (1926) page 375 .............................................................................. 16 Humphrey’s Executor v. United States (1935) page 375 ....................................................... 16 Wiener v. United States (1958) page 375 ............................................................................. 16 Morrison v. Olson (1988) page 376 ..................................................................................... 17 Mistretta V. US (1989) page 382 .......................................................................................... 18 United States v. Nixon [Nixon Tapes case] (1974) page 386 ................................................ 19 Nixon v. Fitzgerald (1982) ................................................................................................... 19 Clinton v. Jones (1997) page 393 ........................................................................................ 19 FEDERALISM .................................................................................................. 20 McCulloch v. Maryland (1819) page 86 ................................................................................ 20 COMMERCE CLAUSE ....................................................................................... 22 Gibbons v. Ogden (1824) page 120 ..................................................................................... 23 United States v. E.C. Knight & Co [Sugar trust case] (1895) page 122................................... 23 Houston E. & W. Ry. Co. v. United States (The Shreveport Rate Case) (1914) page 124 ......... 24 Swift & Co. United States (1905) page 125 .......................................................................... 25 Stafford v. Wallace (1922) page 125 .................................................................................... 25 Champion v. Ames [Lottery case] (1903) page 126 .............................................................. 26 Hammer v. Dagenhart [Child Labor case] (1918) page 128 (overruled by Darby) .................. 26 Railroad Retirement Board v. Alton Railroad Co. (1935) page 131 ........................................ 27 Schechter Poultry Corp. v. United States (1935) page 131.................................................... 27 Carter v. Carter Coal Co. (1936) page 133 ........................................................................... 28 NLRB v. Jones & Laughlin Steel Corp. (1937) page 137......................................................... 28 United States v. Darby (1941) page 140 (overruled Dagenhart) ............................................ 29 Wickard v. Filburn (1942) page 142 ..................................................................................... 30 Heart of Atlanta Motel v. United States (1964) page 146 ...................................................... 31 Katzenbach v. McClung (1964) page 146............................................................................. 31 1 CONSTITUTIONAL LAW CASES Perez v. United States (1971) page 148 ............................................................................... 32 United States v. Lopez (1995) page 149 .............................................................................. 33 Solid Waste Agency of N. Cook County v. United States Army Corps of Engineers (2001) page 165 ..................................................................................................................................... 35 United States v. Morrison (2000) page 166 .......................................................................... 35 United States v. California (1936) page 172 ......................................................................... 36 New York v. United States (1946) page 172 ......................................................................... 36 National League v. Usery (1976) page 173........................................................................... 36 Hodel v. Virginia Surface Mining & Recl. Ass'n (1981) page 144 ........................................... 37 Garcia v. San Antonio Met. Transit Authority (1985) page 175 ............................................. 37 New York v. United States (1992) page 179 ......................................................................... 39 Printz v. United States (1997) page 186............................................................................... 41 Reno v. Condon (2000) page 195 ........................................................................................ 42 ELEVENTH AMENDMENT ................................................................................. 42 Seminole Tribe of Florida v. Florida (1996) page 198 ........................................................... 43 Alden v. Maine (1999) page 199 .......................................................................................... 43 Kimel v. Florida Board of Regents (2000) page 203 ............................................................. 43 SPENDING POWERS ........................................................................................ 44 South Dakota v. Dole (1987) page 219 ................................................................................ 44 DORMANT COMMERCE CLAUSE ...................................................................... 44 Gibbons v. Ogden (1824) page 236 ..................................................................................... 45 Willson v. Black-Bird Creek Marsh Co. (1829) page 238 ....................................................... 46 Cooley v. Board of Wardens (1851) page 240 ...................................................................... 46 Di Santo v. Pennsylvania (1927) page 244 ........................................................................... 47 Buck v. Kuykendall (1925) page 244 .................................................................................... 48 H.P. Hood & Sons v. Du Mond (1949) page 234 ................................................................... 48 Philadelphia v. New Jersey (1978) page 246......................................................................... 48 Maine v. Taylor (1986) page 251 ......................................................................................... 49 General Motor Corp. v. Tracy (1997) page 255 .................................................................... 49 Camp New Found/Owatonna, Inc. Town of Harrison (1997) page 255 ................................. 50 South Central Bell Telephone Co. v. Alabama (1999) page 257 ............................................ 50 Dean Milk Co. v. Madison (1951) page 259 ......................................................................... 50 Ft. Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources (1992) page 261 ... 51 C & A Carborne, Inc. v. Clarkstown (1994) page 262 ........................................................... 51 Pike v. Bruce Church, Inc. (1970) page 275.......................................................................... 52 SC Highway Dept v. Barnwell Bros. (1938) page 277 ............................................................ 52 Southern Pacific Co. v. Arizona (1945) page 278 ................................................................. 53 Bibb v. Navajo Freight Lines, Inc. (1959) page 282 .............................................................. 54 Kassel v. Consolidated Freightways Corp. (1981) page 284 ................................................. 54 Hunt v. WA Apple Advertising Commissioner (1977) handout .............................................. 55 2 CONSTITUTIONAL LAW CASES Exxon Corp. v. Gov. of Maryland (1978) handout................................................................. 55 Minnesota v. Clover Leaf Creamery Co. (1981) handout ....................................................... 56 West Lynn Creamery Inc. v. Healy (1994) page 253 .............................................................. 56 Lewis v. BT Investment Managers (1980) page 295 .............................................................. 56 Edgar v. Mite Corp. (1982) page 295 ................................................................................... 56 CTS Corp. v. Dynamics Corp. of America (1987) 295 ........................................................... 57 ARTICLE IV PRIVILEGES AND IMMUNITY ........................................................... 57 United Building & Construction Trades Council v. Mayor & Council of Camden (1984) page 306 ..................................................................................................................................... 57 Supreme Court of NH v. Piper (1985) page 312 ................................................................... 59 MARKET PARTICIPANT ................................................................................... 59 Reeves, Inc. v. Stake (1980) handout ................................................................................... 59 South-Central Timber Development, Inc. v. Wunnicke (1984) page 301 ............................... 60 STANDING ..................................................................................................... 61 Allen v. Wright (1984) No .................................................................................................... 61 Frothingham v. Mellon (1923) No ........................................................................................ 63 Flast v. Cohen (1968) YES .................................................................................................... 63 Schlesinger v. Reservists Commitee to Stop the War (1974) No ............................................ 63 US v. Richardson (1974) No ................................................................................................. 64 Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. (1982) No............................................................................................................................ 64 Lujan v. Defenders of Wildlife (1992) No.............................................................................. 65 Federal Election Commission v. Akins (1998) YES ................................................................ 66 RIPENESS ....................................................................................................... 67 Poe v. Ullman ...................................................................................................................... 67 Aetna Life Insurance v. Haworth (1937) ............................................................................... 68 MOOTNESS .................................................................................................... 68 POLITICAL QUESTION ..................................................................................... 68 Luther v. Borden (1849) page 33 ......................................................................................... 69 Baker v. Carr (1962) page 31 ............................................................................................... 69 Powell v. McCormack (1969) page 37 .................................................................................. 69 Nixon v. US (1993) page 39 ................................................................................................. 70 JUDICIAL REVIEW Chapter 1 Marbury v. Madison (U.S.S.C., 1803) page 3  Facts: Marbury (P) and others were appointed justices of the peace for the District of Columbia by President Adams and confirmed by the Senate on Adams's last day in office. Their formal commissions were signed but not delivered. Madison (D), as Secretary of State, was directed by the new President (Jefferson) to withhold 3 CONSTITUTIONAL LAW CASES Marbury's commission. A) 2/27/1801 - Congress authorizes judges B) 3/2/1801 - Adams nominates judges C) 3/3/1801 - Senate confirms D) 3/3 - 3/4 1801 - commissions delivered/Jefferson sworn in Procedural Posture: Marbury brought a writ of mandamus directly to the Supreme Court under the Judiciary Act of 1789, which established United States courts and authorized the Supreme Court to issue writs of mandamus to public officers. Law: Judiciary Act of 1789 - authorizes the Supreme Court to issue writs of mandamus in cases warranted by the principles and usages of law, to any court appointed, or persons holding office, under the authority of the United States 1) Sup Ct had original jurisdiction over some matters but also has appellate jurisdiction Issue: A) Does Marbury have a right to the commission? B) Do the laws of the country establish a remedy for the deprivation of the right? C) Does the Supreme Court have jurisdiction to issue mandamus in an original action? Holding: A) Marbury had a right to the commission once it was signed by the President and sealed by the Secretary of State. The commission was a “vested legal right.” B) Yes. “The very essence of civil liberties certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury...The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to serve this high appellation, if the laws furnished no remedy for the violation of a vested legal right.” 1) Political in nature or otherwise committed to the discretion of the executive - no judicial remedy/remedy left to the political process C) Sub-Issues 1) Nature of the writ of mandamus a) Judicial power to review the acts of the executive branch i) Solely political or discretionary acts (granted by the Constitution or federal law) not subjected to judicial review ii) Duties of the executive branch regarding the rights of individuals are reviewable A. The actions of the executive branch are subject to review under both the Constitution and laws of the United States and the federal judiciary can order the executive to comply with those principles 2) Power of the Court a) Supreme Court could not issue the remedy Marbury sought because it lacked jurisdiction over the subject matter of the case i) Marbury filed the case against Madison as an original matter 4     CONSTITUTIONAL LAW CASES in the Supreme Court ii) Congress had attempted to confer original jurisdiction to the Court (Actually the statute granted the Court the power to grant writ of mandamus as a remedy, rather than creating jurisdiction) iii) Constitution did not allow Congress to expand the Court' s original jurisdiction because Article III fixed what type of cases the Supreme Court had original jurisdiction over iv) Constitution is the fundamental and paramount law of the nation and trumped any inconsistent statute. Therefore, Section 13 of the Judiciary Act was invalid because it violated the Constitution A. The fact that the people chose a written Constitution with fundamental principles to bind a government in the future was evidence that the Constitution should be the superior and binding law b) Judicial review - the power of the courts to invalidate laws as unconstitutional i) “It is emphatically the province and duty of the judicial department to say with the law is. Those who applied the rule to particular cases, must of necessity expound and interpret the rule. If two laws conflicts with each other, the courts must decide on the operation of each.” ii) Marshall's arguments A. Essence of a written constitution is that it is to be a fundamental and binding document B. Constitution is law and it is the institutional responsibility of the judiciary to interpret law and applied the law that is superior in any conflict between the Constitution and legislation 1. Never said that “we” get the final say C. Court is given authority to hear cases arising from the Constitution D. Judges taken oath to support the Constitution Pertinent principles: A) The Constitution is paramount law that rendered any inconsistent statute void B) Judiciary possess the power of judicial review  Cooper v. Aaron (1958) page 24   Are Court interpretations always on the brink of constitutional crisis because court has no enforcement power? Facts: Arkansas federal District Court directed desegregation of the Little Rock schools. The Little Rock school board, seeking to comply with the decree, was blocked by its efforts when Gov. Faubus place Little Rock‟s Central High School "off-limits" to black students and called out the National Guard. After a District Court injunction against the Gov., the troops were withdrawn to black students were able to attend school budget protection of federally commanded troops, 5 CONSTITUTIONAL LAW CASES   although resistance and protest continued. Posture procedure: When the school board sought a postponement of the desegregation program, the District Court granted that relief. The Court of Appeals reversed and that decision was affirmed by the Supreme Court Holding: A) Court is the ultimate and supreme interpreter of the Constitution. B) The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the governor and legislature C) State officials lack “power to nullify a federal court order” Baker v. Carr (1962) page 31        Facts: TN voters sought redistricting for voting purposes because the TN General Assembly violated their equal protection rights “by virtue of the debasement of their votes.” Relief sought was to reapportion the voting districts, which had not been done since 1901 in their area. Because they had mal-formed voting districts, they felt that they also had a malapportioned legislature. Procedural Posture: They asked for an injunction to estopp any further elections under the 1901 system. Lower ct denied relief. US Sup Ct granted cert. Justice Brennan delivered the opinion of the court. Issue: Whether the Guaranty Clause of the constitution presents a justicable claim, and if so, does political question doctrine apply, keeping the court from deciding the case. Holding: No π Argument:  ∆ Argument  Here Reasoning:  Political Question comes from the Fed Judiciary‟s relationship to the states and not the relationship between the judiciary and the coordinate branches of the Fed‟l Gov‟t  Political question goes to separation of powers – political questions are not justicable  Ct said it had the right to decide i. Whether the matter has been assigned to any particular branch of Government ii. Whether actions by a particular branch of gov‟t exceeds authority committed to them  Foreign Relations: while it is regarded as political question, it is not always the case that cases involving foreign relations will present a political question  Cases with political question will have one of the following elements: i. Textually demonstrable constitutional commitment of the issue to a coordinate political department ii. Lack of judicially discoverable and manageable standards for resolving it iii. Impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion iv. Impossibility of a court‟s undertaking independent resolution without expressing lack of the respect due coordinate branches of government v. Unusual need for unquestioning adherence to a political decision already made vi. Potentiality of embarrassment from multifarious pronouncements by various departments on one question vii. Here – Guaranty Clause claims have elements of political question and are nonjusticable  The main claim is that the political system in TN was not comporting to the Guarantee Clause i. Not about equal treatment 6 CONSTITUTIONAL LAW CASES ii. Not about # of votes or representation iii. π is questioning the legitimacy of the government 1. As in Luther v. Borden and Held: Not a political question because no other branch has been assigned this decision. Claim rings more in Equal Protection Clause and not Guaranty Clause of Constitution and for EPC claims there are adequate judicial standards to review the issue at bar. There are standards for deciding a justicable Dissent:  Justice Frankfurter joined by Justice Harlan    Martin v. Hunter’s Lessee (1816) page 68         Facts: Lord Fairfax was a former British national who had become a citizen of Virginia prior to his death. In 1781 he willed the extensive land he held in Virginia to his nephew in England, Denny Martin. Virginia later passed acts to confiscate the lands of those who had been British citizens or loyalist during the Revolutionary War. Virginia then granted a portion of Lord Fairfax's plan to David Hunter. Martin based his claim to the land on the anti-confiscation clauses of treaties between the U.S. and Great Britain. Hunter, and Virginia claim that title had vested in Virginia prior to these treaties, so that they were not applicable to his title. Procedural Posture: The Virginia court, in the original case, found for Hunter. The Supreme Court reversed, ordering the Virginia court to enter judgment for Martin under the authority granted by Section 25 of the Judiciary Act which gave the Supreme Court the power to review final decisions of the highest state courts rejecting claims based on federal law. The Virginia state court refused to comply with the order, claiming that Section 25 was unconstitutional, and the Supreme Court had no constitutional right to review the final decisions of the state courts. The Supreme Court is again reviewing the case. Issue: Whether Section 25 of the Judiciary Act of 1789 is constitutionally valid, giving the Supreme Court the right to review the final decisions of state courts rejecting claims based on federal law. Holding: Yes. ∏ Argument: A) Without Supreme Court review of state court decisions, there will be no other mode by which Congress can extend the judicial power of the United States to cases of federal cognizance which arise in the state courts, resulting in non-uniformity of decisions among states. ∆ Argument: A) The constitution does not provide explicitly for Supreme Court review of state court decisions. Since it must have been foreseen by the drafters that conflicts would arise, the omission is evidence that the framers felt that such a powerful tribunal would produce evils greater than those of the occasional collisions that it would be designed to remedy. B) Thus, once an action is brought in state court, the federal court‟s sole remedy is to shift it to a lower federal court before it gets to the final court of the state, or simply to advise the high state court that they have improperly interpreted the constitution. The states are dually sovereign with the federal government, and not subject to the laws of Congress that limit their sovereignty. Holding: A) Supreme Court had jurisdiction and authority to review all state acts under the Constitution, laws and treaties of the United States B) The Judiciary Act properly recognized the existence of appellate jurisdiction in the Supreme Court over actions in state court Majority reasoning [Story]: 7 A) B) C) D) E) CONSTITUTIONAL LAW CASES In Article III, the Supreme Court is given the judicial power that “shall extend to all cases... arising under... the laws of the United States, and treaties,” not just to those commenced in federal court The Supremacy Clause of Article VI plainly indicates that the framers realized that federal issues might arise in state cases The people of the nation had chosen to limit state sovereignty when they established the Constitution that specifically restricted state acts in a variety of ways, such as the limitations included in Article I The national government, whose parts are subject to a single Constitution, must include an entity to give a final interpretation to its laws State courts had to be subject to the rulings of the Supreme Court in federal issues so that the meaning and application of the laws, treaties and Constitution of the United States would have a uniform interpretation and application throughout the country SEPARATION OF POWERS Youngstown Sheet & Tube Co. Sawyer [The Steel Seizure case] (1952), page 333       Facts: In the latter part of the Korean War, labor disputes led to a threatened strike by the steel workers. President Truman issued an executive order directing the Secretary of Commerce to seize the steel mills and keep them running. The Secretary issued orders to the presidents of the steel companies, directing them to keep the mills open. The next morning, the President sent a message to Congress reporting his action and promising to abide by their decision either way. Congress took no action. However, there was evidence that Congress disapproved of allowing the President to exercise such power because a few years prior, they removed a clause from the Taft-Hartley act that would have given the President power to seize an industry in case of national emergency. Procedural Posture: The steel companies filed suit against Secretary of Commerce Sawyer in the District Court praying for declaratory judgment and injunctive relief. The District Court granted the plaintive state glimmer airy injunction, which the appellate court stayed. The Supreme Court, in and expedited proceeding, affirmed the District Court's order or in a 6 to 3 decision finding the executive seizure order in valid Issue: A) Whether the president had the power under these circumstances to seize the steel mills of the country. B) Is the President making law? Holding: A) No B) Black assumes the way this question as a yes Government's arguments 1) Executive power 2) Commander-in-Chief power a) Numerous cases have found military commanders entitled to broad powers 3) Execute the laws Majority Reasoning [(Black) formalistic]: A) There is no express or implied statutory provision authorizing the President‟s seizure order B) The order cannot be sustained under the power of the Commander in Chief of the armed forces because that power is reserved for military commanders in the theater of war and is not broad to cover the situation here C) “The President‟s power to see that the laws are faithfully executed defeats the idea that he is to be a lawmaker. The Constitution limits his functions in the law-making process to the 8    CONSTITUTIONAL LAW CASES recommending of laws he thinks wise and the vetoing of laws he thinks bad.” D) Congress has the exclusive constitutional power to make laws necessary and proper to carry out the powers vested by the constitution in any officer thereof Concurrence Reasoning [(Frankfurter) functionalist]: A) The situation was more complicated and flexible. Blacks approach was too black and white. B) He thought the issue was the President‟s authorization of the steel seizure after Congress had expressly refused to support this course of action through the Taft-Hartley Act C) “Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of the text or supply them” D) It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them E) A systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned... may be treated as a gloss on executive power vested in the President” Concurrence Reasoning [(Jackson)]: A) Jackson felt that the presidential powers were not fixed, but rather fluctuate, depending on their congruence with Congress. B) Three categories Presidential powers 1) Acting pursuant to an express or implied authorization of Congress - broadest powers, limited only by the Constitution 2) Acting in the face of Congressional silence a) More narrow powers limited by the “zone of twilight” where there may be concurrent authority b) Actual test of power depends on the facts of the case 3) Acting in opposition to Congress a) Supported only by his expressly granted constitutional powers minus any constitutional powers of Congress over the matter b) Scrutinized with caution C) The order falls into category 3 because Congress had enacted three statutory policies inconsistent with the seizure and could only be upheld if such seizures were found to be within the power of the executive and beyond the scope of congressional authority, which it was not Dissent Reasoning [Vinson](functionalist): A) The President has some power under the Constitution to meet a critical situation in the absence of express statutory authorization. B) Looking at history (particularly WWII), there were several instances when the president made similar orders. C) The fact that Congress and the courts have consistently recognized and given their support to such executive action indicates that such a power of seizure has been accepted throughout our history War Powers Resolution  President may introduce troops into hostilities pursuant only to A) Declaration of war B) Specific statutory authorization or C) National emergency created by attack upon the United States, its territory or possessions, or its armed forces 9     CONSTITUTIONAL LAW CASES Once troops are deployed and absent a declaration of war, the President shall submit a written report to Congress within 48 hours of introducing armed forces into hostilities or foreign territory The operation must end within sixty days of the required report unless Congress declares war or specifically authorizes the use The 60-day period maybe extended no more than 30 days if the President certifies to Congress that unavoidable military necessity respecting the safety of the armed forces requires that continued use in connection with their prompt approval Congress may refuse to support the President during the initial 60 to 90-day period or may thereafter terminate the action by concurrent resolution Dames & Moore v. Regan (1981) page 344     Facts: Iranians seize the American Embassy in Tehran on Nov. 4, 1980, and held the occupants hostage. President Carter, acting pursuant to his powers under the International Emergency Economic Powers Act, eventually issued a blocking order that froze all the Iranian government assets subject to the jurisdiction of the United States. There followed lengthy negotiations and, eventually, Iran released the American hostages on Jan. 20th, 1981, after the United States and Iran signed an agreement concerning the sentiments of the claim. That agreement required the United States to terminate all suits brought in the U.S. courts against Iran and to "nullify all attachments and judgment obtained therein, to prohibit all further litigation based on such claims, and to bring about the termination of such claims to binding arbitration" before and Iran-United States Claims Tribunal. President Carter, and later President Reagan, signed a series of executive orders to implement this arrangement. These orders purported to nullify all attachments, liens, or other non- Iranian interest and Iranian assets subject to President Carter's Nov. 14, 1979 freeze of Iranian assets. Postural Procedure: Petitioner sued for declaratory and injunctive relief against the enforcement of the Executive Orders and the Treasury Department‟s implementing regulations. They explained that the enforcement was unconstitutional to the extent that it adversely affects petitioner's final judgment on a contract claim against the government of Iran and the Atomic Energy Organization of Iran, its execution of that judgment in the state of Washington, its prejudgment attachments, and its ability to continue to litigate against the Iranian banks. Holding: A) If the President‟s freeze amounted to the taking of property, the government must provide just compensation B) Upheld the settling of claims by American citizens against another government by an executive agreement Majority reasoning [Rehnquist] (functionalist): A) Congress, by statute, had explicitly authorize the President to nullify the post-freeze attachments and to direct that the blocked Iranian assets be transferred to the New York Federal Reserve Banks and later to Iran B) There was evidence of legislative intent to invite broad presidential action C) There was also a long history of congressional acquiescence of similar presidential conduct – “Crucial to our decision today is the conclusion that Congress had implicitly approved the practice of claim settlement by executive agreement" Woods v. Cloyd W. Miller Co. (1948) page 225   Facts: The Housing and Rent Act of 1947 was passed under the authority of the war power to regulate the rents of houses in post-WWII America. As the soldiers came back from the war, they were met with a housing shortage due to the reduction in residential construction. The reduction was caused by allocation of building materials to military projects. Procedural Posture: The District Court held that Congress‟ authority to regulate rent by virtue of the 10     CONSTITUTIONAL LAW CASES war power ended with the Presidential Proclamation terminating WWII hostilities. The government appealed directly to the Supreme Court. Issue: Whether the Housing and Rent Act is a constitutional exercise of the war power by Congress. Holding: Yes. Majority Reasoning [Douglas]: A) Citing Hamilton v. Kentucky Distilleries & Warehouse Co., Court stated that the war power includes the power “to remedy the evils which have arisen from its rise and progress” and continues for the duration of that emergency. Thus, cessation of hostilities is not necessarily the end of a war. B) The Presidential Proclamation recognized that the state of war still existed, and the war effort was what contributed most heavily to the present housing shortage. Thus, Congress had the power, even after the cessation of hostilities, to regulate a shortage of housing caused primarily by the war. C) The necessary and proper clause requires that the war power be held over to treat the effects of war. D) Although this holding, read broadly, would authorize the war power to used during peace to regulate long-term effects of war and swallow up the Ninth and Tenth amendments, we must assume that Congress will act responsibly and take into account its constitutional limits when exercising the war power. Concurrence Reasoning [Jackson]: He felt that the result in this case was clear, but was worried about the potential abuse of the war power because it tended to be exercised during periods of hasty patriotism. The war power cannot last as long as the effects and consequences of war because many are permanent. Missouri v. Holland (1920) page 226      Facts: There were migratory birds in the northern United States that transited between the U.S. and Canada. These birds had a beneficial effect on the ecosystem by controlling the insect population, as well as being a food supply. However, the birds were being over-hunted. The U.S. and Great Britain entered into a treaty to protect the birds by delineating hunting seasons. Pursuant to the treaty, the Migratory Bird Treaty Act of 1918 was passed by Congress to give effect to the U.S. side of the treaty. Procedural Posture: Missouri brought this action to prevent an U.S. game warden from enforcing the Act on the grounds that it violated the 10th amendment, arguing that Congress did not have to power to pass the Act without the treaty, and thus should not be able to pass the Act under the treaty because if the Act, standing alone, is in violation of the 10th amendment, then the treaty is as well. Issue: Whether Congress may properly pass an Act that regulates hunting seasons for migratory birds if that Act regulates in traditionally state-controlled areas. Holding: Yes. Majority Reasoning [Holmes]: A) Article II, §2 expressly delegates the power of Congress to make treaties. Furthermore, Article IV declares that treaties made under the authority of the United States are the “supreme law of the land.” B) If the treaty is valid, then it is clearly a necessary and proper action to carry out the treatymaking power in this case. The treaty-making power derives from the authority of the United States, as an “organism” itself. C) It does not matter that Congress might not have the power to pass the Act not in pursuance of a treaty, because Congress does have the power to make treaties, and the Act is a necessary and proper means to give effect to the treaty. D) Since the birds are important, and they transit back and forth between the countries, the 11  CONSTITUTIONAL LAW CASES United States has the power to make a treaty concerning their protection and the treaty is valid. Since the treaty is valid, the Act is valid as being necessary and proper to give effect to a valid treaty. E) Matters of national interests are best protected by national action Notes: A) In the 1950‟s fear that any Constitutional limitation on Congress‟ power could be overridden by the broad effect given by Holmes to the treaty power in Holland led to a proposed constitutional amendment called the “Bricker Amendment” which stated that “A provision of a treaty which conflicts with this Constitution shall not be of any force or effect,” and “A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of a treaty.” B) However, in Reid v. Covert, these fears were put to rest by Justice Black when he stated that no agreement can “confer power on the Congress...which is free from the restraints of the Constitution.” and that Holland should be read as standing for the proposition that the 10th amendment is no barrier to the United States‟ power to make treaties because the states had delegated their rights as to treaties to the federal government. C) Although there is no explicit power in the Constitution for the Congress, independent of the treaty power, to pass laws concerning foreign affairs, it is generally regarded as implied by the fact that the United States‟ power to interact with other countries must lay in some body, and it rests most appropriately in Congress who has the power to make all other federal laws. Facts: Congress passed a joint resolution authorizing the President to embargo Bolivia and Paraguay who were fighting in Chaco. Curtiss-Wright was indicted for selling 15 machine guns to Bolivia in violation of the joint resolution of Congress. Procedural Posture: Curtiss-Wright challenged the resolution as being an unconstitutional delegation of legislative power to the President. The lower court sustained the challenge. Issue: Whether the resolution is unconstitutional as a delegation of legislative power to the President. Holding: No, Congress may delegate broad foreign affairs authority to the President Reasoning [Sutherland]: A) The resolution may have been unconstitutional if it related solely to internal domestic powers, where the President‟s power is more constitutionally limited. Congress has more latitude to extend authority to the executive in foreign affairs. B) The President‟s foreign power is not dependent solely upon the affirmative grants of the Constitution. The President has the power to negotiate treaties, and is the representative of the U.S. in international relations. He is in a better position than Congress to handle foreign affairs because he is privy to classified information. Thus, it is unwise to narrowly limit the President‟s foreign power. Notes: The War Powers resolution of 1973 now provides that Congress shall be consulted beforehand “in every possible instance” when the President is introducing troops into situations where hostilities are imminent. Afterwards, he must report within 48 hours the reasons and constitutional or statutory basis for his action, and any other information that Congress may request. Also, he must continue to consult with the Congress on a periodic basis. Then, if Congress does not declare war, or otherwise granted statutory power, the President must remove the troops within 60 days, or immediately if directed by Congress. United States v. Curtiss-Wright Export Corp. (1936) page 353       INS v. Chadha (1983) page 353  Facts: A section of the Immigration and Nationality Act provides that the Attorney General could 12       CONSTITUTIONAL LAW CASES suspend the deportation of a deportable alien if the alien met specified conditions and would suffer “extreme hardship” if deported. However, the Act also had a provision that provided for legislative veto by one house if the Congress disagreed with the Attorney general‟s decisions as to any particular alien. Chadha was an Indian whose education was not yet complete, but whose visa had run out. Procedural Posture: The Court of Appeals found that the provision was unconstitutional as a violation of separation of powers. Issue: Whether the one house legislative veto provision in the act was unconstitutional as a violation of separation of powers since it did not provide for bicameral support or presentation to the President. Holding: Yes - upheld broad delegation of power to executive branch A) Any "legislative veto" be passed as legislation by both chambers of Congress (Bicameralism) and presented to the President for approval or veto (Presentment) B) The one-house veto provision violated the presentment clauses contained in clauses 2 and 3 of Article I, § 7 of the Constitution, the bicameral requirement of Article I, § 1 and § 7, clause 2 and implied separation of powers structure of Articles I, II and III. C) The House‟s resolution ordering Chadha‟s deportation supplanted congressional action through legislation that was legislative in character, purpose and effect D) * Okay for Congress to give power to President did not okay to let reserve power or take back power Majority Reasoning [(Burger) formalistic]: A) The Constitution requires that the legislative power of the federal government be exercised in accord with bicameralism and presentment B) The fact that a given law is efficient will not save it if it is contrary to the Constitution. The constitution is very explicit about its grant of powers among the executive and legislative branches. The framers were very clear that it was paramount that the legislative power requires bicameral support and presentation to the President (except for some minor exceptions not relevant here). C) If the act is primarily legislative in character and effect then requires bicameral support and presentment. D) President is not making law because he is not the lawmaker. See notes 2 page 355. (Nonanswer) Concurrence Reasoning [Powell]: felt that Congress was acting in a judicial role in providing for judicial-type review of the actions of the executive branch. Dissent Reasoning [(White) functionalist]: A) Felt the majority opinion was too broad because it read on all legislative vetoes, which weren‟t implicated by the present fact situation. B) The power to exercise legislative veto is not the power to write new law without bicameral support or presidential consideration. The veto must be authorized by statute and may only negative what an Executive department agency has proposed. C) Legislative veto great idea because it checks President power D) Veto has not been used to increase Congress‟ power E) The court's decision that all "lawmaking" must be shared by Congress and the President "ignores that legislative authority is routinely delegated to the executive branch, to the independent regulatory agencies." F) Delegations of power are valid because President cannot exceed Congress‟ Clinton v. New York (1998) page 362  Facts: President Clinton exercises authority under the Line Item Veto Act of 1996 by canceling a provision of the Balanced Budget Act of 1997 allowing New York to keep certain funds and would otherwise have had to repay to the federal government under the Medicaid program, and a provision 13       CONSTITUTIONAL LAW CASES of the Taxpayer Relief Act of 1997 giving a tax benefit to food processors acquired by farmers‟ cooperatives. Procedural Posture: New York City and several private organizations challenged the constitutionality of the Medicaid cancellation, and the Snake River Potato Growers, a farmers‟ cooperative challenged the constitutionality of the food processors provision. Law: Line Item Veto Act A) Gives President authority to cancel in whole three types of provisions to have been signed into law: 1) Budget allocations 2) New spending items 3) Limited tax benefits B) Before can cancel must conclude three things (courts have consistently held not reviewable in court of law) 1) Reduce the Federal budget deficit 2) Won't impair any essential government functions 3) Will not harm national interests C) Congress may override cancellation by vote of both houses D) President may still veto the disapproval bill E) Congress may still override Government's argument: A) Cancellation exercise of discretionary power that Congress gave to President 1) Tariff Act of 1890 - President had power to suspend exceptions from import duties under provisions. Court upheld Act in Field v. Clark B) President has been given authority to decline appropriations by Congress since George Washington Holding and Majority Reasoning [Stevens]: A) There's no provision in the Constitution that authorizes the President enact, to amend, or to repeal statutes, although he may initiate an influence legislative proposals B) The constitutional return (veto) takes place before the bill becomes law; the statutory cancellation (line item veto) occurs after the bill becomes law C) The constitutional return is of the entire bill; the statutory cancellation is the only a part D) By canceling provisions president is making new law. President does not have authority to make new law; Constitution only gives President execution powers (not persuasive - Segall made a law) E) Whenever the President suspended an exemption under the Tariff Act, he was executing the policy that Congress had embodied in the statute; whenever the President cancel said item of new direct spending or a limited tax benefit, he is rejecting the policy judgment made by Congress and replying on his own policy judgment (substituting his policy for Congress') F) Line item veto gives President the power to change the text (physically strike out) have been acted statutes; none of the other discretionary Acts authorized such a change [Segall - same thing, what's the difference?] Dissent [Scalia]: A) President's discretion under the Line Item Veto is no broader and the discretion traditionally granted the President in his execution of spending laws B) There's no difference between Congress' authorizing the President to cancel a spending item and Congress' authorizing money to be spent on a particular item at the President discretion Dissent [Breyer]: A) If it wanted to, Congress could have said 10,000 different laws to President instead of one budget 14  CONSTITUTIONAL LAW CASES B) In executing the line item veto act, the President was following Congress Notes: A) "Branches of government may give power away but not increase its own power" - this case does not follow Bowsher v. Synar (1986) page 370       Facts: The Gramm-Rudman-Hollings Act established maximum annual permissible deficits designed to reduce the federal deficit to zero by 1991. If needed to keep the deficit within the maximum, the Act required the OMB (Office of Management & Budget - executive) and the CBO (Congressional Budget Office – legislative) to make recommendations to the Comptroller General (ran the General Accounting Office - ??? branch - nominated by President) as to the budget reductions necessary in each program. The Comptroller General office was created by the budget and accounting office, in an act that required nomination by the President, but removal [for cause] by a Congressional resolution, subject to presidential veto. Procedural Posture: The act establishing the Comptroller General office was challenged as being a violation of the separation of powers because it gave Congress the power to remove an official having executive powers. Law: A) Gramm-Rudman-Hollings Act 1) Congress could remove the Comptroller General not only by impeachment but also by joint resolution (removal for a variety of reasons including inefficiency, neglected duty, or malfeasance) 2) Gave the Comptroller various executive functions that were not merely ministerial B) Constitution 1) President appoints "officers of the United States” and Senate confirms 2) Removal of officers of the United States only by impeachment 3) Congress may vest appointment of inferior officers to the President, the courts of law or heads of departments 4) Does not say anything about removing inferior officers Issue: A) Whether the assignment by Congress to be Comptroller General of certain functions under the Gramm-Rudman-Hollings Act violates the doctrine of separation of powers B) Does President have exclusive authority about in removing officers or inferior officers? C) Is the Comptroller General an officer of the United States or an inferior officer and is he an executive officer or a legislative officer? Holding: A) Yes B) Only the President can remove executive officers unconditionally C) Comptroller General is an inferior officer and an officer of the legislative branch because he can be fired by Congress by joint resolution D) Congress can determine the nature of the executive duty it imposes by passing a law, but once the law is passed Congress‟ role ends. Congress can thereafter controlled execution of its laws only by repealing the law or making new law. E) Someone who performs executive functions cannot be fired by Congress Majority Reasoning [(Burger) formalist]: A) Congress cannot reserve for itself the power of removal of an officer charged with the execution of laws except by impeachment. “Because Congress is retained removal authority over the Comptroller General, he may not be entrusted with executive powers.” B) To permit the execution of the laws to be vested in an officer answerable only to Congress 15  CONSTITUTIONAL LAW CASES would, in practical terms, reserve in Congress control over the execution of the laws. To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto of the kind struck down in Chadha. C) The separation of powers doctrine has been violated because the Comptroller General was a legislative officer with executive powers (determined budget cuts and estimated revenues) D) The Constitution did not give Congress power over someone who executes laws; and agent or servant of Congress cannot execute laws Dissent Reasoning [White]: A) The question that should be asked is whether the Comptroller General‟s authority under the Act deprives the President of his powers – did not B) The determination of appropriate allocation of money is legislative C) The removal by Congress of the Comptroller is of such minimal practical significance that it presents no threat to the scheme of separation of powers. It requires 2/3 approval by both houses to override a presidential veto of the Comptroller‟s removal. D) Congress is not trying to increase its power -- trying to solve an emergency E) White's opinion of the majority rule – “any direct congressional role in the removal of officers charged with the execution of laws is inconsistent with separation of powers” - to formalistic Myers v. United States (1926) page 375  Holding [Taft]: A) A legislative provision that certain groups of postmasters could not be removed by the President without the consent of the Senate was unconstitutional B) The statute was an unconstitutional restriction on the President's control over executive personnel C) Reasonable implication from the President's power to choose those who were to act for him under his direction in the execution of the laws and to remove those for whom he cannot continue be responsible for Humphrey’s Executor v. United States (1935) page 375  Holding [Sutherland]: A) Federal Trade Commission Act specified that causes for removal of commissioners B) Congress could limit the President's power of removal C) Myers principal limited to "it purely executive officers" D) The FTC "cannot in any proper sense be characterized as an arm or by the executive”: under the statute, its duties were to be "free from executive control" Wiener v. United States (1958) page 375   Involved the removal of a member of the War Claims Commission. Statute did not specified permissible grounds to remove Holding: A) Commission's function was of an "intrinsic judicial character" and removal was illegal B) Power to remove officers who were not purely executive "only if Congress may fairly be said to have conferred it" 16 CONSTITUTIONAL LAW CASES Morrison v. Olson (1988) page 376         Facts: The provided that The.). Procedural Posture: A group of persons moved to quash subpoenas issued by the Special counsel and claimed that the Act was unconstitutional as a violation of separation of powers. Law: A) Ethics in Government Act of 1978 1) Upon receipt of information that she considered "sufficient grounds" to investigate possible official violations of federal criminal law to conduct a preliminary investigation 2) Reports to the Special Division of the U.S. Court of Appeals (DC) as to whether there are "reasonable grounds to believe that further investigation is warranted" 3) Attorney General may ask for the appointment of a special counsel by a Special division of three Circuit Judges (life tenure, Article III) in order to investigate and prosecute high-ranking government officials for violations of federal crimes 4) Independent Counsel granted full power and independent authority to exercise all investigated and prosecutorial functions and powers of the Justice Department and unlimited budget and 5) Once appointed, the Special counsel can only be removed by the Attorney General personally (not the president) and only for “good cause” (not at will) Issue: B) Whether the Act is was unconstitutional as a violation of separation of powers because it limits the President‟s authority to remove an executive officer. Holding: No. Olson’s arguments: A) Violates Appointment Clause B) President should have unlimited discretion in removal Majority Reasoning [(Rehnquist) functionalist]: A) The "good cause" restriction for removal of the independent counsel did not impermissibly interfere with the President's constitutionally appointed functions B) The special counsel, due to the limited tenure, duration, and duties of her office, is an “inferior officer” for Appointment clause purposes. As such, her appointment may be vested by Congress in the court of law. C) The Court has never held that the Constitution prevents Congress from imposing limitations on the President‟s power to removal executive officials simply because they wield “executive” power. The power to vest appointment in other departments implies the power to limit and regulate removal. The imposition of a “good cause” standard is not unduly limiting. D) The president‟s need to control the Special Counsel is not so central to the functioning of the executive branch as to require as a matter of constitutional law that the special counsel be terminable at will by the President. E) This case does not involve a usurpation of executive power by Congress. The attorney general still has the power to refuse to ask for appointment of a special counsel. Dissent Reasoning [Scalia]: A) The framers of the constitution intentionally vested all of the executive power in the President. As such, any person executing purely executive power must be under the exclusive control of the President, and thus terminable at will. B) A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. The majority has replaced a constitutional requirement with an unprincipled “balancing test” having no guidance. 17 CONSTITUTIONAL LAW CASES Mistretta V. US (1989) page 382        Facts: Procedural Posture: Law: A) Sentencing Reform Act of 1984 allowed for the creation of a U.S. Sentencing Commission, composed of seven members “three of which must be federal judges selected by the President with the advice and consent of the Senate.” B) Commission‟s job was to establish mandatory guidelines for sentencing in federal criminal offenses (to help decrease the disparity in sentencing). C) Members of the Commission were removable by the President for good cause. Π alleges: A) Congress had improperly delegated its lawmaking powers to the judicial branch. B) The Act violated the separation of powers because this commission could make law. Therefore, there was an “unconstitutional accumulation of power in the judicial branch. C) Act undermines the integrity and independence of the judiciary branch by requiring Art. III judges to sit on the Commission and share their rulemaking authority with non-judges, and by making them subject to removal by the President D) The Act also conscripts federal judges for political service and undermines their essential impartiality. Holding: Not an unconstitutional delegation of powers because judiciary plays a major role in sentencing and allowing some judges to participate in making guidelines for sentences does not violate Separation of Powers. This was a role that was in the judiciary‟s expertise anyway. Majority Reasoning [Blackmun]: A) Congress cannot do its job without the ability to delegate powers under broad general directives. B) All Congress must do is lay down an intelligible principle to guide the agency exercising the congressionally delegated power. C) Framers did not require strict separation of powers, but a flexible understanding which would allow each branch to have checked and balanced power as a self-executing safeguard against encroachment or aggrandizement of one branch at the expense of another branch. D) There is no unconstitutional accumulation of power in the judicial branch under the Act. The power these judges have on the Commission is administrative, not judicial. Judges are best suited to consider matters regarding sentencing because they have the most experience with it. E) The Constitution does not absolutely prohibit a federal judge from assuming extrajudicial duties. They just cannot perform them at the same time as their judicial duties. F) Impartiality of the judicial branch is not threatened by service on the Commission: The Commission is devoted to developing rules of sentencing, an essentially neutral endeavor. Judges are unlikely to be swayed by the fact that the President has appointment and removal power over them. Dissent [Scalia]: A) Service on this Commission is making law, pure and simple. The Constitution says that Congress is to make law. This is not Congress. Thus, the Act is unconstitutional. B) Scope of delegation is uncontrollable by the courts. This will lead to development of many junior varsity congresses. C) Constitution is a prescribed framework for the conduct of the government, so stick to it!!!!! 18 CONSTITUTIONAL LAW CASES D) Improvising Constitutional structure on the basis of currently perceived utility will come back to bite the country in the ass. United States v. Nixon [Nixon Tapes case] (1974) page 386      Facts: Several of Nixon‟s top aids were indicted in a criminal conspiracy proceeding in relation to the Watergate burglary. Procedural Posture: The District Court, acting on motion of the special prosecutor, ordered that the President produce taped conversations with the aids in order to determine who was involved to what extent. The President refused to comply with the subpoena duces tecum, invoking executive privilege. The District Court rejected his privilege, and the President appealed. While the case was before the Court of Appeals, the Supreme Court granted cert. before judgment. Issue: Whether an assertion of Presidential privilege as to subpoenaed materials for use in a criminal trial is valid when it is based solely on the general interest in confidentiality of Presidential communications. Holding: No. Reasoning [Burger]: A) The President does not have the power to determine the scope of his own privilege. Thus, this is a justifiable question. B) It is the function of the court to say what the law is, and thus separation of powers [Marbury] supports judicial review of executive privilege. C) Although the executive privilege is broad in scope, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. D) The interests of the Presidential privilege must be weighed against the interests of criminal justice. Since, the Presidential interest is low in this case [because these are not national security related matters], and the interests of the criminal justice system are high, the executive privilege must yield to the need for evidence in the pending criminal trial. Nixon v. Fitzgerald (1982)     Holding [Powell]: President has absolute immunity for civil liabilities. This is inconsistent with Marbury because in that case, Marshall said that the essence of civil liberty is being able to seek a remedy. Here, Fitzgerald does not have a remedy. The answer is not in the Constitution, precedent, or looking to the intent of Founders. The tool used by the Court was the justices‟ own common sense and political values. Dissent [White]: The scope of immunity is determined by function, not office. Clinton v. Jones (1997) page 393    Facts: Sexual harassment suit for actions of the President before he took office. President argues that this action should be postponed until after he is out of office. Not absolute because a suit can go forward if there is an extraordinary showing that postponement would be detrimental. The reasons for this: A) Officials need to be able to make decisions without the fear of retaliation from civil law suits. But this happened before he was President. B) Fitzgerald: takes up President‟s time and diverts attention from the business of running the country. Court responds in a footnote Majority Reasoning [Stevens]: Jefferson made the same arguments. Court said that was not persuasive. Clinton argued he has a unique office where he is on duty 24/7. Court says this type of 19  CONSTITUTIONAL LAW CASES civil suit will not significantly divert his attention and trial courts will be required to work around his schedule. Notes: Arguably, Jones and Fitzgerald were decided backwards. Jones will have a remedy. Therefore, give the President immunity while he is in office from civil suits. Fitzgerald will not have a remedy. Therefore, do not give President immunity from civil suits. FEDERALISM  Federalism: Questions to consider during this section of the course: A) What should be the appropriate relationship between the state and the federal government? B) Who should decide questions of power? C) What tools should the deciders use? Background: A) Art. I § 8 gives Congress its powers. B) Two competing factions then and now: 1) Anti-federalists (Jefferson, Madison): best defense against government tyranny is to have a weak national government. Give the federal government only the most essential powers needed. 2) Federalists (Adams, Hamilton, Marshall): strong central government. C) Articles of Confederation said that the states shall retain every power not expressly delegated to the federal government. It did not give Congress the power to regulate commerce which was one of the main reasons for convening the Constitutional Convention. D) The X Amendment says almost the same thing except it omitted the word “expressly.”  McCulloch v. Maryland (1819) page 86         Facts: In 1816, Congress chartered the Second Bank of the United States, which became active in Maryland. In 1818, the Maryland legislature passed an Act to tax any bank not chartered by the Legislature of Maryland, thus taxing the U.S. Bank. The law provided for private remedies against the bank operators, of which, one was McCulloch. Procedural Posture: The trial court entered judgment based on an agreed statement of facts (that the U.S. Bank was not chartered by the Maryland legislature), and the Maryland Court of Appeal affirmed. An appeal was taken by writ of error to the Supreme Court. Issue: 1) Whether Congress has the power to incorporate a bank; and 2) Whether the state of Maryland may, without violating the constitution, tax the U.S. Bank. Holding: 1) Yes. 2) No. Rule of Law: Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. [ This rule of law does not apply when Congress passes laws infringing on fundamental freedoms. Not a part of this course.] ∏ Argument: Although Congress does not have the enumerated power to incorporate a bank; such power is implied by the “necessary and proper” language of Article I Section 8. ∆ Argument: Congress not only does not have the enumerated power to incorporate a bank, but furthermore only has the powers that the states, as independent sovereigns, give to it. This is evidenced by the “necessary and proper” language that should be construed to be a limit on Congressional power, implying only strict necessity. Majority Reasoning: 20 CONSTITUTIONAL LAW CASES A) Tools Marshall used in his decision: 1) History a) First Bank was created almost immediately after the Constitution by the same men who wrote Constitution. Therefore, they must have thought it was Constitutional and thus, it is. However, this is inconsistent with Marshall‟s opinion of the Judiciary Act of 1789 in Marbury. In that case, the Act was declared unconstitutional and it had been written and enacted during the same period that the First National Bank was enacted. b) First National Bank was discussed, debated and approved. That was good enough for Marshall to consider it to be constitutional for Congress to create a national bank. [One thing not mentioned in the opinion is that during the Constitutional Convention, Madison proposed to grant Congress the power to create federal corporate entities and his proposal was rejected.] c) Maryland: Constitution emanates from the sovereign states. Congress derives its powers from the states. Court: NO. Constitution comes from the people, not the states delegating powers to Congress. Power is granted on behalf of everyone collectively, not from individual states. It is a government of enumerated (limited) powers and those enumerated powers do not include the power to create a national bank. However, Congress can create such an entity through its “implied powers;” those powers used to implement the enumerated powers. 2) Text a) Articles of Confederation included the word “expressly” but that word was not included by the drafters of the X Amendment because it was a source of “embarrassment” (i.e. controversy). b) The Constitution is broad outline meant to endure throughout the ages. The minor ingredients are to be deduced from the major objects included in the text. It needs to be flexible. c) The enumerated powers that relate to the creation of a national bank are the regulation of commerce, minting of coins, conducting a war, etc. Therefore, Congress must be given the means to implement these powers and it can do so through its implied powers; those powers incidental to its enumerated powers. d) Text - Necessary and Proper Clause i) Maryland: necessary = indispensable. ii) Court: necessary = convenient, useful. Art. I § 10: “absolutely necessary” - significance is that the Drafters qualified “necessary” in one place of the text and not in the other. Therefore, as used in the Art I § 8 Necessary and Proper Clause it could/can mean useful, convenient; a means of adding to Congress‟ powers, not limiting those powers B) Issue 2: State‟s power to tax a constitutionally-created entity. 1) Maryland has the power to tax its own citizens. But by taxing the National Bank, Maryland is taxing people outside the state, since the federal government is the people of the United States as a whole and the Bank is a federal entity. This is taxation without representation. 2) Confidence is the basis of taxing power because the people can vote out elected officials who impose the taxes. Here, the constituencies are not the same, so the basis of the taxing power is not present. a) Maryland claims that other people are taxing its citizens. 21 CONSTITUTIONAL LAW CASES b) Court: Federal government is supreme and it can do that. The “part” does not have the right to destroy the “whole.” If Maryland was allowed to tax the National Bank, it could easily exert the authority to tax other federal functions.  Notes: A) If the means is rationally related to the end, and the means is challenged, the challenger has the burden of proof. B) Today, there is a presumption of constitutionality when Congress acts. Maybe this is not such a good idea since it is the government that is the actor (e.g. infringing on rights) and the actor should be the one who defends its actions (i.e has the burden of proof). C) Should Congress adopt measures which are prohibited by the Constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the duty of the Court to say that such an act was not the law of the land. D) Simple solution: Congress could have passed a law prohibiting Maryland from taxing the Bank. E) Court sided with the Federalists and in doing so, gave Congress a lot of power. F) Confidence = political accountability. G) Framework Marshall leaves us with: 1) Example: a) Alabama passes a law allowing an elementary school in the state to start the day with a moment of silence. Legislative history indicates that this was meant to be a time for prayer. I.e. the legislature wanted prayer in school. Georgia passes the exact same law, word-for-word. The legislative history indicates that the legislatures really contemplated this being a moment of quiet reflection. What do the courts do? Strike both? Strike Alabama‟s law? Summary of McColloch A) Constitutionality of Bank: Congress does have the power to incorporate a bank. First Congress ratified a Bank, so it must be constitutionally valid. B) Framers left “expressly” out of Constitution because it would be too voluminous to put every power of Congress in it. Means implied powers - outline of major powers from which smaller ones are implied. Borrow and collect money are general powers enumerated from which the implied power to charter a national bank comes from. C) “Necessary” does not mean “absolutely necessary.” Congress has the power to make all laws necessary and proper to carry out its enumerated powers. “Necessary” is any means reasonably calculated to produce a legitimate end. D) Maryland tax was invalid because the power to tax is the power to destroy. Cannot do this because the federal government is supreme AND this would be taxation without representation (“confidence” argument). E) Court 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.  COMMERCE CLAUSE    Congress shall have the power ... to regulate commerce among the states. X Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states are reserved to the states respectively, or the people. Three questions to ask during the study of the Commerce Clause: A) How far should Congress be allowed to go in regulating intrastate activities if those activities affect interstate commerce? 22    CONSTITUTIONAL LAW CASES B) Can the local production or manufacturing be regulated by Congress simply because, some day, some of the output will end up in interstate commerce? C) Does it matter what Congress‟ motivation is? The broader the interpretation of the Commerce Clause, the less power for the states. A state law that discriminates against an out-of-state economic interest, violates the Commerce Clause. Two Aspects of the Commerce Clause: A) What powers does Congress have? (Authorization aspect) B) When do states‟ laws burden commerce too much? Limitation or negative commerce clause (dormant) C) Always ask what type of laws Congress can pass. Congress can regulate if: A) Affecting commerce B) Stream of commerce C) Commerce-prohibiting technique D) Bootstrap?? Gibbons v. Ogden (1824) page 120       Facts: New York had granted Fulton the exclusive right to navigate steam-propelled vessels. Ogden had secured a license from Fulton to operate steamboats between New York and New Jersey. Gibbons, however, started to operate his own steamboat line between the two states in defiance of the New York-granted monopoly; an act of Congress licensed his boats to engage in the coasting trade. Ogden secured an injunction in a New York court to restrain Gibbons from operating within New York waters. Procedural Posture: Law: Conflict between New York law and federal license Issue: A) Did Congress have the power to license Gibbon‟s boat? Yes. B) Even if Congress did have the power, did New York violate the Constitution by granting Ogden a monopoly? Yes. Majority Reasoning [Marshall]: A) Define what commerce is. 1) Ogden: Commerce means traffic, buying and selling; it does not include navigation. 2) Court: Commerce instead covered all commercial intercourse a conception extensive enough to include all business dealings including navigation. However, Congress cannot regulate “completely internal” activities B) Congress’ power to regulate commerce is complete, plenary, and unqualified. Notes: A) Marshall gave the Commerce Clause a very broad, expansive reading. This is no surprise because he believed in a strong central government. B) Preventing this monopoly opened up New York‟s harbor to all ships, which had a positive effect on the nation. C) For the next 70 years, there were no challenges because Congress basically did not pass any laws regulating commerce. However, Congress eventually started passing laws regulating railroads and monopolies United States v. E.C. Knight & Co [Sugar trust case] (1895) page 122  Facts: Knight acquired the stock of several other sugar manufacturing companies, to control about 98% of the nation‟s sugar refining capacity. 23         CONSTITUTIONAL LAW CASES Procedural Posture: The government brought a civil action under the Sherman Act, which provided for penalties for “restraint of trade or commerce among the several states,” to set aside the acquisition. The lower court dismissed the action, and the government appealed to the Supreme Court. Law: Sherman Anti-Trust Act Issue: Whether Congress had the power, under the commerce clause, to regulate the monopolization of the means of manufacturing a good Holding: A) No. B) Three formal distinctions to confine the Commerce power more narrowly than the language in Gibbons would suggest: 1) Manufacturing is not commerce 2) Congress could not regulate activity that affected commerce only indirectly 3) Distinction between national and local activities. Slight reflection will show that if the national power extends to all contracts and combinations in . . . productive industries, whose ultimate result may effect external commerce, comparatively little of business operations and affairs would be left for state control.” ∏ Argument: A monopoly of manufacture restrains the free trade or commerce among the states, and thus is contrary to the Sherman Act. Congress has the power to regulate the monopolization of manufacture because it restrains free trade among the states. ∆ Argument: A monopolization of manufacture is not possible. Even if it were, such power to control it would necessarily extend to all use of raw materials, and thus is beyond what the Sherman Act contemplates. Majority Reasoning [Fuller] (formalist): A) If monopolization of manufacture could exist, it could only have an indirect effect on interstate commerce. B) There is a difference between “manufacture” and “commerce”, namely that commerce succeeds manufacture. Thus, controlling manufacture only indirectly controls commerce. C) Congress does not have the power to control manufacture because that would be too intrusive a power, necessarily applying to all production of raw materials that could be manufactured into a higher product and then subject to commercial interstate transactions. D) Allowing the power to be construed this broadly would leave no powers for the states to exercise pursuant to the tenth amendment. All local commerce would then be subject to federal control. E) Thus, the distinction must be made between activities that have a “direct” affect on commerce, which Congress can control, and those that have merely and “indirect” or incidental affect on commerce, which the states are left to control. Notes: A) Monopolies of commerce can be regulated by Congress (e.g. railroads, shipping). Here, the Court looked to the relationship of the activity to commerce. B) Functionalist approach would have said that a 98 percent control of the sugar industry clearly effects the national economy. Therefore, this is commerce. C) Congress passes a law saying that American Sugar cannot ship sugar out-of-state. Is this constitutional? Yes, according to this Court because commerce is not manufacturing. D) Can Congress pass a law banning the interstate shipment of the new abortion pill? Houston E. & W. Ry. Co. v. United States (The Shreveport Rate Case) (1914) page 124  Facts: The railroad had rail lines both within Texas, and between Texas and Louisiana. As an incentive to promote Texas suppliers to sell to Texas manufacturers, the railroad maintained lower rates for traffic within the state of Texas, while charging disproportionately high rates for traffic to 24 CONSTITUTIONAL LAW CASES  Louisiana. Procedural Posture: The Interstate Commerce Commission (ICC) set rates for the transportation of goods from Texas to Louisiana, and ordered the railroad to end its discriminatory practice of maintaining lower rates for traffic within the state. The railroad challenged that order, appealing to the Supreme Court. Issue: Whether Congress, through the ICC, has the power to set the intra-state railroad cargo rates of a carrier that has both intra-state and inter-state lines, if such intra-state rates represent an unjust discrimination against inter-state commerce. Holding: A) Yes. B) “Whenever the interstate and intrastate transactions of carriers are so related that the government of one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority.” ∏ Argument: Congress has not power to regulate the intra-state rates. ∆ Argument: Congress has the power to regulate intra-state rates if they affect interstate commerce. Majority Reasoning [Hughes] (functionalist): A) Congressional authority extends to interstate carriers as instruments of interstate commerce. This necessarily includes the right to control all of their operations that have a “close and substantial” affect on interstate commerce. B) The fact that the carrier has intra-state business as well does not diminish Congress‟ power to regulate the interstate portion by preventing injury to it. Otherwise, the commerce power would have no bite among carriers with both lines. C) Furthermore, Congress had the power to affect the intrastate lines in other areas, such as safety because it also had an interstate commerce component. Thus, Congress has the power to foster and protect interstate commerce, and to take all measures necessary and appropriate to that end, although intrastate transactions may be thereby controlled. Notes: A) For Congress to regulate commerce, its needs the implied powers to implement ways of regulating commerce. B) The Shreveport doctrine was limited to railroad cases.       Swift & Co. United States (1905) page 125   Law: Sherman Act - aimed at price-fixing of meat dealers. Upheld Majority Reasoning [Holmes]: A) Stream of commerce B) “When cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchase al the stockyards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, and the purchase of the cattle is a part and incident of such commerce.” Stafford v. Wallace (1922) page 125  Holding [Taft]: A) The “current of commerce” notion has also been invoked as a practical consideration to allow Congress to regulate portions of interstate commerce that appear to be solely intrastate. In Stafford v. Wallace, the Supreme Court held that individual purchases by middlemen of meat destined for the cities were a part of the “current of commerce.” 25 CONSTITUTIONAL LAW CASES B) The purchase by the middlemen was local to the state that they were in, but they were simply a part of a greater flow of meat from the West to the East. The many transactions, viewed as a whole, represented interstate commerce on a major scale. C) If the middlemen were unregulated, their actions could become an obstacle to free trade. Champion v. Ames [Lottery case] (1903) page 126      Law: Federal Lottery Act of 1985 prohibited the interstate transportation of lottery tickets Issue: Whether the power to regulate includes the power to prohibit. Yes Majority Holding and Reasoning [Harlan]: A) Lottery tickets are subject of traffic, and therefore they are commerce. Nothing in the Constitution limits the power of Congress to regulate this B) Regulation may appropriately assume the form of prohibition, at least when congressional power is exerted to prevent the pollution of commerce by noxious articles Dissent [Fuller]: A) The necessary consequence is to take from the states all jurisdiction over the subject so far as interstate communication is concerned B) The scope of the commerce clause cannot be enlarged because of present views of public interest Notes: A) The Lottery Case holding was repeatedly applied to federal laws closing the channels of commerce to commodities that are themselves dangerous or harmful or that have an adverse effect. The anticipated evil may proceed from something inherent in the commodity itself, or the evil may lie in the purpose of the transportation. 1) Hipolite Egg Co. v. United States (1911) page 127 a) Law: Pure Food and Drug Act of 1906. b) Facts: Eggs seized because the label failed to disclose that the eggs contained a bad ingredient. Challenged on ground that the shipment had passed out of interstate commerce before the seizure of the eggs. c) Holding [McKenna]: Articles which are outlaws of commerce may be seized wherever found and appropriate means to that end, which we have seen is legitimate, are the seizure and condemnation of the articles at their point of destination 2) Hoke v. United States (1913) page 127 a) Law challenged: Mann Act b) Holding [McKenna]: Congress has the power over transportation among the several states. That power is complete and Congress may adopt not only means necessary but convenient to its exercise, and the means may have the quality of police regulation B) Prevention of harm to the public becomes a proper end of the commerce power even though the harm does not affect commerce. C) The commerce power includes authority to bar the shipment in commerce of articles, not only to render interstate transportation more efficient and safe, but also to prevent a social, economic, or moral result Congress disapproved Hammer v. Dagenhart [Child Labor case] (1918) page 128 (overruled by Darby)   Law: The federal statute there prohibited transportation in interstate commerce of goods made in factories that employed children. Unconstitutional Majority Reasoning [Day] (5-4): 26 CONSTITUTIONAL LAW CASES A) Act is unconstitutional because: 1) Transcends the authority delegated to Congress over commerce; AND 2) Exerts a power as to a purely local matter to which the federal authority does not extend 3) If otherwise, Congress could take ALL power B) The Court distinguished the decisions cited above upholding congressional power to close the channels of commerce to specified commodities. 1) The articles involved in the prior cases were said to be harmful in and of themselves 2) Their transportation alone produced the evil that Congress could combat. In other words, Congress could prohibit their shipment to prevent an evil in the receiving state. 3) In the instant case the goods were harmless and Congress was regulating commerce and manufacturing is not commerce. * Distinction is not convincing. Some of the earlier decisions, too, concerned articles that were, of themselves, harmless. Congressional prohibitions were, nonetheless, justified because of the evils involved in the purpose for which they were transported. Dissent [Holmes] (formalist): A) If it is commerce among the states - end of story. Congress has the power to regulate it. Legislative motive was not a subject of proper judicial inquiry. B) The Act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across state lines they are no longer within their rights. Congress may carry out its views of public policy whatever indirect effect they may have upon the activities of the States.  Railroad Retirement Board v. Alton Railroad Co. (1935) page 131   Law: Law establishing a compulsory retirement and pension plan for all carriers subject to the Interstate Commerce Act Invalidated Holding [Roberts] (5-4): A) The law was “not in purpose or effect a regulation of interstate commerce within the meaning of the Constitution.” B) He rejected the argument that pensions were “related to efficiency of transportation.” Schechter Poultry Corp. v. United States (1935) page 131     Facts: Schechter purchased poultry that had moved interstate, slaughtered it, and sold it locally. Law: Minimum wage and maximum hour provisions promulgated pursuant to the National Intemal Recovery Act (NIRA), which a Brooklyn slaughterhouse operation had allegedly violated Government Arguments: Schechter‟s practices allowed him to sell chickens at lower prices, which hurt other dealers and “demoralized” the price structure. Therefore, interstate commerce was affected, and, as in Swift, the chickens were “in the stream of commerce” and therefore affected commerce under the law Majority Holding and Reasoning [Hughes] unanimous: A) 1. Chickens are not in the stream of commerce. The stream ended when the chickens reached Schechter‟s warehouse. This contradicts the holding in Hipolite as far as analyzing the scope of the commerce stream; also contradicts the holding in Swift where the Court said the processing of meat was in the stream of commerce. One possible explanation - both cases concerned public health issues and this case concerns an economic issue - price structure. B) This was in indirect effect on commerce and not a direct effect as in Shreveport. Therefore, the law could not extend to Schechter. Based on these arguments on the “delegation running riot” theory, Congress‟ power would extend too far. 27 CONSTITUTIONAL LAW CASES 1) Wechler‟s argument: the Court does not need to enforce federalism because the federal government is made up of representatives of the states. If the people do not like what is going on, the people have the power to vote the federal government out of office. This “voting power” does not extend to the Court. [or does it?] 2) Madison said that the federal government will not get too big because representatives are elected from the states. Congress is made up of the people from the states. True? C) Refused to accept the argument that dire economic circumstances should permit the law. “Extraordinary conditions do not create or enlarge Constitutional powers.” [Perhaps not, but arguably dire conditions affect the interpretation of the scope of power.] Carter v. Carter Coal Co. (1936) page 133      Procedural Posture: Suit brought by a stockholder of the company to enjoin the company from paying a tax required if the company violated the Act. Lower court sustained the Act. Supreme Court reversed. Law: Bituminous Coal Conservation Act of 1935 (purpose - regulate maximum hours of work and minimum wages) Majority Reasoning [Sutherland] (formalist): A) Mining, like manufacturing, does not constitute commerce. The effect of the labor provisions of the law falls on production, not commerce B) Hours and wages of workers indirectly relate to commerce. C) Magnitude is NOT the issue, but the manner is the issue. “The distinction between a direct and an indirect effect turns, not on the magnitude of either the cause or the effect but entirely on the manner in which the effect has been brought about.” D) Stream of commerce theory could not rescue the measure regulating employment practices at the mines because the flow had not yet started. Dissent [Cardozo]: A) Although mining and agriculture “are not interstate commerce considered by themselves,” their relationship to commerce “may be such that for the protection of the one there is need to regulate the other.” B) Instead of the unworkable logical direct/indirect dichotomy, Cardozo suggested asking whether the relevant connection was “so close and intimate and obvious,” as to support federal power C) Cardozo also hinted at moving away from the rule-bound approach to an ad hoc, case by case adjudication. “Always the setting of the facts is to be viewed if one would know the closeness of the tie.” Notes: By 1936, the Supreme Court had struck down several laws which Roosevelt had proposed to revive the economy during and coming out of the Depression. In an attempt to overcome this problem, Roosevelt proposed his “Court-packing Plan:” Appoint one new justice for every justice over 70 who had not yet retired. The Plan failed in the Senate BUT during the debates, the views of the Supreme Court began to change. [coincidence?? Conscious act of the Court??] NLRB v. Jones & Laughlin Steel Corp. (1937) page 137     Facts: Ten workers in Pennsylvania fired. Procedural Posture: The firings were challenged under the NLRA by the NLRB. The Court of Appeals for the Fifth Circuit held that the Labor Act went beyond federal power in reaching production. Supreme Court reversed. Law: National Labor Recovery Act, which prohibits companies from firing workers involved in union activities. Δ’s Argument: 28    CONSTITUTIONAL LAW CASES A) Workers were involved in production and manufacturing of steel products. This is a local function not reachable by Congress. B) Essentially, the company argued that the stream of commerce was “broken” at the plant; The raw materials from other states reached the plant and were used in the production, so the stream ended at the plant. Majority Reasoning [Hughes](5-4): A) No, look at the effect on commerce. The implications of a strike by steel workers might be catastrophic. The regulation of the workers had a close and substantial relation to interstate commerce and thus this regulation was reachable by Congress. B) The fact that the employees were engaged in production as not determinative for the production plainly affected interstate commerce. Given the company‟s far-flung activities, it departed reality to dismiss the effect as only indirect. C) Instead, the Court moved away from the direct/indirect nomenclature, suggesting that the pertinent question was whether the effect was sufficiently “close and intimate” or “close and substantial.” Dissent [McReynolds]: A) If Congress could regulate the firing of only 10 workers, they could regulate everything and the government would become centralized. Notes: A) Jones & Laughlin held production could on occasion be subject to congressional relation. The Court, in E.C. Knight, Schechter, and Carter resorted to formal rules - production vs. commerce, direct vs. indirect, local vs. national - to assess Congress‟ legislative output. In Jones & Laughlin, the Court suggested it would henceforth proceed on a case by case basis. United States v. Darby (1941) page 140 (overruled Dagenhart)         Facts: Darby was a Georgia lumber manufacturer who hired labor at less than the minimum wage prescribed in the Fair Labor Standards Act of 1938. He was indicted on violating this Act, which sought to regulate the hours and wages of employees by prohibiting the sale of the product in interstate commerce. Procedural Posture: Darby challenged the indictment, and the lower District Court quashed it, holding that it was unconstitutional because it sought to regulate “local” manufacturing activities. Law: Fair Labor Standard Act Issue: Whether Congress has the power to prohibit shipments of product that are manufactured by employees who are paid less than a prescribed minimum wage and required to work more than a prescribed maximum number of hours. Holding: Yes. ∏ Argument: The Congress only has the power to regulate prohibit the shipment of products which are “bad” in themselves, such as toxic or stolen articles. This prohibition is motivated by the regulation of local wages, the control of which has been reserved to the states as police power, and so is trampling on the states‟ rights ∆ Argument: In its power to regulate interstate commerce, Congress has the implied power to exclude from commerce any articles that it perceives to be injurious to the public health and welfare. Majority Holding and Reasoning [Stone]: A) As long as Congress is regulating interstate commerce, their motives and purposes are irrelevant. The only limitations are those in the Constitution. B) The test for whether Congress can regulate an activity under the commerce power is whether the activity has a “substantial effect on the commerce or the exercise of the Congressional power over it.” Congress may choose the means necessary to achieve this 29  CONSTITUTIONAL LAW CASES end, even if it necessarily involves the control of intrastate actions. C) Court also upheld the statute‟s additional requirement that employees engaged in production conform to the federal wages and hours standards. The Court did so on two grounds - by reliance on the “affecting commerce” rationale and by using the commerce-prohibiting technique (bootsrap) as the basis for additional controls on productive activities. D) The bootstrap approach uses the statute‟s prohibition on interstate shipment as an end to justify other means of regulation. Notes: A) Court denied that the regulation conflicted with the 10th Amendment. B) From 1941 until 1995 (Lopez), the Court found no regulation of commerce by Congress to be unconstitutional. Wickard v. Filburn (1942) page 142         Facts: Wickard (D), the Secretary of Agriculture, imposed a marketing penalty upon the portion of Filburn's crop grown in excess of his allotment under the Agricultural Adjustment Act of 1938. Filburn sued to enjoin enforcement of the penalty, claiming the application of the marketing quota to him was beyond Congress's commerce power, because Filburn used the wheat on his own farm. Procedural Posture: Filburn sought enjoinder of the fine, and sued the Secretary of Agriculture, Wickard. The lower court granted the injunction on other grounds, and Wickard appealed. Issue: Whether Congress has the power to regulate the production of wheat for consumption by the farmer, apart from the sale of such wheat commercially. Holding: Yes. Act is valid. Home consumption reduces demand for wheat that affects the market price (interstate commerce). ∏ Argument: The Congress does not have the power under the commerce clause to regulate the production and consumption of wheat because these activities are local in character and, at most, have an indirect effect on interstate commerce. ∆ Argument: The statute does not regulate production or consumption of wheat, but only marketing; and even if it goes beyond marketing, it is “necessary and proper” in this case. Majority Reasoning [Jackson] unanimous: A) Rejected the old formal distinctions of E.C. Knight and Carter production vs. commerce, indirect vs.direct, local-national. Congress was empowered to act when so doing might affect commerce. B) Whether an activity had a local is only one of the facts upon which a decision should be based. The test should be based on whether the activity has a “substantial economic effect” on interstate commerce. C) The consumption of homegrown wheat causes extreme volatility in the national market because it is so variable. Although the effect of one farmer may trivial, he is part of a nationwide market, where the overall effect is not trivial. Since this activity has a substantial economic effect on the interstate wheat market, Congress has the power to regulate it. Notes: A) Court applied the aggregation approach to justify Congress‟ regulatory powers: If every farmer grows extra wheat which may enter the market, then there would be a substantial effect on interstate commerce. B) Segall: But the cumulative effect theory will always effect commerce!! Potential for unlimited congressional power. C) Does this approach justify “over-reaching” by Congress? Arguably it does, and this goes back to the argument that if Congress can regulate wheat grown for personal consumption, Congress can regulate just about anything. 30 CONSTITUTIONAL LAW CASES Heart of Atlanta Motel v. United States (1964) page 146        Facts: The hotel had 216 rooms and was located within ready access to two interstate highways. It advertised in national media, and was a center for conventions of out of state guests. The hotel refused to rent rooms to African Americans. Procedural Posture: The hotel brought a declaratory judgment action attacking the constitutionality of Title II of the Civil Rights Act of 1964, which prohibited discrimination on the basis of race in places of “public accommodation,” and which grounded its authority primarily in the commerce power. The District Court upheld the Act, and the Hotel appealed. Issue: Whether application of Title II of the Civil Rights Act of 1964 to a motel that serves interstate customers is within the constitutional power of Congress under the Commerce Clause. Holding: Yes. “The determinative test of the exercise of power by the Congress under the Commerce Clause is simply whether the activity sought to be regulated is „commerce which concerns more States than one‟ and has a real and substantial relation to the national interest.” ∏ Argument: Congress did not have the power to legislate against moral wrongs under the guise of the Commerce Power. Even if they did, the operation of a motel is purely local in character, and thus does not affect interstate commerce. ∆ Argument: Discrimination by hotels has a significant effect on interstate commerce by deterring African Americans to travel. Reasoning [Clark] unanimous: A) There is ample evidence in the Congressional record that discrimination by places of public accommodation impair African-Americans‟ ability to travel, thus affecting interstate commerce. Thus, the Act passed the test of “commerce that concerns more States than one,” and discrimination had a substantial relation to the national interest. B) The court then listed several examples of factual scenarios where the Congress had legitimately exercised the commerce power to police activities that were both immoral and had an adverse affect on interstate commerce. “That Congress was legislating against moral wrongs...rendered its enactments no less valid.” C) Furthermore, “if it is interstate commerce that feels the pinch, it does not matter how local the operation that applies the squeeze.” D) Thus, the commerce power encompasses the regulation of local activities that have an affect on interstate commerce. Katzenbach v. McClung (1964) page 146      Facts: Ollie‟s BBQ was a family-owned restaurant in Birmingham that seated 220 customers and was located on a state highway near an interstate highway. The restaurant received about $70,000 of food, mostly meat, in interstate commerce annually. However, it refused to serve African Americans inside its dining facility. They could only order take-out. Procedural Posture: The restaurant brought this action [a sister action to Heart of Atlanta] to challenge the constitutionality of Title II of the Civil Rights Act as it related to restaurants. The District Court found that the Act provided no basis for relating the operations of a local restaurant to interstate commerce, and thus issued an injunction restraining the Act from being enforced against the restaurant, concluding that it would lose substantial business. Issue: Whether such part of Title II of the Civil Rights Act that prohibits discrimination on the basis of race in restaurants which serve interstate travelers or which serve food a substantial portion of which has moved in interstate commerce is constitutional. Holding: Yes. ∏ Argument: There is no basis for believing that racial discrimination in local restaurants has any 31     CONSTITUTIONAL LAW CASES affect on interstate commerce. Congress has merely created a conclusive presumption that it does, without making formal findings in the record that support such an assertion. The government should be required to show the connection to interstate commerce on a case-by-case basis. The volume of food served at Ollie‟s BBQ prohibits such a finding. ∆ Argument: Racial discrimination in restaurants has an affect on interstate commerce because it deters African Americans from traveling, thus reducing business overall. Majority Reasoning [Clark]: A) Although there were no formal findings made by Congress, the testimony contained ample evidence to support a finding that racial discrimination in restaurants had an adverse affect on interstate commerce. 1) For instance, by deterring travel by African Americans, the whole business climate suffers for lack of customers. 2) Also, discrimination puts an artificial restriction on the free flow of goods. The wide unrest over the discrimination has a depressant effect on local businesses making new investment and expansion unfavorable in such a depressed business climate. B) Following Wickard, local activities can be said to have a substantial effect on interstate commerce when viewed in “aggregation.” Racial discrimination is not merely a local problem. As an “aggregation” it is a nationwide problem. Thus, it exercises a substantial economic effect on interstate commerce. C) The lack of formal findings to that effect was not fatal to the Act because there existed enough evidence to conclude that Congress had a rational basis for “finding a chosen regulatory scheme necessary to the protection of commerce.” The Court needed to do no further examination to second-guess Congress‟ judgment in the light of such evidence. Concurrence Reasoning [Black]: A) Douglas was reluctant to base his opinion entirely on the Commerce Clause because he felt that the human rights issue at stake was more consequential than the commerce clause could justify. B) Thus, he would also support the reasoning under the equal protection clause of the fourteenth amendment because it seemed a much more appropriate grounds for antidiscrimination protection. Notes: A) Five years later in Daniel v. Paul, Justice Black was the sole dissenter against application of Title II of the Civil Rights Act to the Lake Nixon Club in Arkansas. The club had a snack bar that refused to serve African Americans, and a substantial portion of the food served at the snack bar had traveled in interstate commerce. B) However, Black felt that the Act would be justifiable if based on the Fourteenth Amendment, but he did not feel that there was an adequate relationship between this snack bar and interstate commerce. He was afraid that this finding would stretch the commerce power to regulate any “remote country place of recreation in every nook and cranny of every precinct and county” everywhere. Perez v. United States (1971) page 148   Facts: Perez was a loan shark. He was convicted under Title II of the Consumer Credit Protection Act that was a federal law prohibiting extortionate loan activities. The Act was passed by Congress pursuant to findings that 1) organized crime is interstate in nature, and 2) a substantial part of the income for organized crime is generated by extortionate loan activities, thus, loan sharking is an instrumentality of interstate commerce, even where individual transactions are purely intrastate in nature. Procedural Posture: Perez challenged his conviction on the grounds that the Act was 32       CONSTITUTIONAL LAW CASES unconstitutional as being an impermissible exercise of the commerce power by Congress. Issue: Whether Title II of the Consumer Credit Protection Act, as construed and applied to Perez, is a permissible exercise by Congress of its powers under the Commerce Clause. Holding: Yes. ∏ Argument: The Act is unconstitutional because it exceeds the limits of the commerce power contemplated by the framers of the Constitution. It infringes on the States‟ police power of their intrastate crime activities. Loan sharking is a local activity, not an interstate activity. ∆ Argument: Since loan sharking is a substantial revenue generator for organized crime, and organized crime is a nationwide problem that uses interstate commerce as a conduit to conduct illegal transactions, loan sharking affects interstate commerce and is thus able to be regulated by Congress. The States are not able to deal with this problem individually; the federal government needs to provide tools to deal with the problem on a nation-wide level. Majority Reasoning [Douglas]: A) The majority accepted Congress‟ findings on the relationship between loan sharking and organized crime, and the effect of organized crime on interstate commerce. B) They stated that the commerce clause reaches protection of the instrumentalities of interstate commerce, which included the policing of organized crime. C) Citing to Darby, the court reasoned that it was permissible for Congress to regulate a class of activities without proof that the particular intrastate activity that was thereby controlled had an effect on commerce. D) It was proper to consider the “total incidence” that the class of activities had on commerce, rather than to try to carve out exceptions for individual occurrences of the activity that were not proven to be directly related to commerce. E) Even if individual transactions of loan sharking were completely local in nature, as a whole, they comprised a threat to interstate commerce because of their relation to the interstate activities of organized crime. Dissent [Stewart]: A) Conviction for loan sharking under the federal law should require proof that the individual was actually involved in interstate activities. B) Otherwise, the federal government, contrary to the States‟ police power, would regulate a purely local problem. The regulation of such activities is the responsibility of the states C) Loan sharking is only a national problem in the sense that all crime is a national problem. There is no distinguishing factor about loan-sharking that lends itself to being a threat to interstate commerce per se. United States v. Lopez (1995) page 149      Facts: Lopez was a high school senior in San Antonio who was caught with a .38 caliber handgun and five bullets on school grounds. Procedural Posture: Lopez was charged with violation of § 922(q) of the Gun-Free School Zones Act of 1990, which made it a federal offense “for any individual knowingly to possess a firearm at a...school zone.” The District Court convicted him on a bench trial and sentenced him to six months‟ imprisonment. The Court of Appeal for the 5th district reversed the conviction on the grounds that the law was unconstitutional as being beyond the power of Congress to legislate control over local public schools, and the Supreme Court granted cert. Issue: Whether §922(q) of the Gun-Free School Zones Act is unconstitutional as being beyond the power of Congress to legislate control over local public schools. Holding: Yes. ∏ Argument: A) Costs of violent crime are substantial costs that are spread throughout the population 33  CONSTITUTIONAL LAW CASES B) Violent crime reduces the willingness of individuals to travel to areas within the country that are perceived unsafe C) Poses a substantial threat to the educational process by threatening the learning environment  ∆ Argument: The Gun-Free School Zones Act is unconstitutional as being beyond the power of Congress to legislate control over local public schools.  Majority Holding and Reasoning [Rehnquist] (5-4): A) Substantial effect on commerce is required. Activity must substantially affect interstate commerce. NOT IN THIS CASE. Possession of guns around schools is not a commercial activity. Education is a traditional concern of local government. Need to distinguish between truly national and truly local. B) Rehnquist‟s three “first principles:” 1) Congress has enumerated, limited powers 2) States have indefinite powers 3) Congress‟ power to regulate commerce does not extend to purely intrastate activities. C) Congress is allowed to regulate: 1) Channels of interstate commerce a) Commerce-prohibiting activity: regulating the activity 2) Instrumentalities of interstate commerce or persons and things in interstate commerce a) Stream of commerce argument: regulating the thing 3) Those activities that substantially affect interstate commerce D) It is the Court‟s function to decide if Congress has a rational basis for making its decision to regulate interstate commerce. E) §922(q) is a criminal statute that has no observable relationship to “commerce” or any sort of economic enterprise, regardless of how broadly those terms are defined. F) Deterring the presence of guns on school grounds is not part of a larger regulatory scheme to control commerce that would otherwise be undermined if not viewed in the “aggregate.” G) Furthermore, it contains no test by which the firearm in question could be rationally linked to interstate commerce. Although the lack of formal Congressional findings to this extent are not fatal, their absence fails to save the statute from the otherwise plain observation that it is not commerce-related. H) To accept the government‟s position that it guns at schools do have a substantial effect on commerce because they adversely affect the economy would be to give virtually unlimited power to Congress to regulate any activity that has a social cost. I) Additionally, such a position would allow Congress to provide federally mandated school curriculums, and regulate every aspect of local schools. This is too broad a reading of the commerce power.  Concurrence Reasoning [Kennedy, O’Connor]: A) Such a broad reading of the commerce power would violate the theory of federalism in which the states perform their role as laboratories for the experimentation with various means of local regulation. B) Both believed that this law clearly exceeded Congress‟ authority, but both strongly believed in stare decisis and did not want to overturn more than 50 years of precedent. C) Both are functionists and dislike bright-line tests such as commercial versus noncommercial activity. D) Both strongly believe in federalism. Kennedy says that two governments are better than one in order to prevent tyranny. Concurrence Reasoning [Thomas]: A) Aggregation principle is dangerous. Too broad to justify targeted activities 34    CONSTITUTIONAL LAW CASES B) There is a big problem with the substantial affect test. The great danger with the test is it gives Congress police powers because the aggregation principle could keep layering until everything could be perceived as substantially affecting commerce. C) The Court‟s interpretation of “commerce” is NOT the original understanding of commerce. D) Not a problem in this case. Dissent Reasoning [Souter]: The Court was wrong to second-guess the rational basis for Congress‟ enactment of this Act based on the commerce clause. As a matter of judicial restraint, the Court should defer judgment to the legislature when it appears that there is a rational basis for the Act. Dissent Reasoning [Breyer]: A) Congress has the power to regulate local activities that affect interstate commerce B) Look at the cumulative, aggregate effect C) Congress must be given significant leeway (“substantial deference”) in deciding if a local activity effects commerce. This requires a factual finding. Breyer attached 163 pages of studies to show that the evidence supports the fact that the problem being regulated is a nationally significant problem. Notes: No precedents of the post 1937 period were overturned and indeed some of the most permissive were explicitly endorsed. Solid Waste Agency of N. Cook County v. United States Army Corps of Engineers (2001) page 165   Law: Statutory authority under § 404(a) of the Clean Water Act, which authorizes Army Corps to issue permits allowing the discharge of landfill material into “navigable waters,” by seeking to regulate the landfill of small ponds on the theory that, although purely intrastate and nonnavigable, such ponds provided a habitat for migratory birds who themselves crossed state lines Holding: A) Army Corp exceeded its statutory authority B) Rejected the Corps‟s “migratory bird rule” as falling outside the text and congressional intent underlying the statute C) Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the „Migratory Bird Rule‟ would result in a significant impingement of the States‟ traditional and primary power over land and water use United States v. Morrison (2000) page 166    Law: Violence Against Women Act of 1994. Action challenged: provided a federal civil remedy for victims of gender-motivated violence. Majority Reasoning [Rehnquist]: A) Three main points from Lopez 1) Commercial v. non-commercial 2) No jurisdictional element in the law 3) No formal findings B) Applied to the case: 1) This is criminal in nature, not economics 2) There is no jurisdictional element 3) There are findings but if Congress can regulate this non-commercial, intrastate activity, it can regulate anything. C) Strongly suggested but did not hold that aggregation theory not for non-commercial activity Concurrence Reasoning [Thomas]: A) Same argument as in Lopez. B) The substantial effects test under the Commerce Clause is inconsistent with the original understanding of Congress‟ powers and with the Court‟s early Commerce cases. 35    CONSTITUTIONAL LAW CASES C) Until the Court replaces its existing Commerce Clause jurisprudence with a more consistent standard, Congress will continue to appropriate state police powers under the guise of regulating commerce. Dissent [Souter]: A) Congress has the power to regulate local activities that in the aggregate have an effect on interstate commerce. B) “Formalistically contrived confines of commerce power have proved unworkable in the past (mining, production, manufacturing - not commerce; direct v. indirect). C) Trying to define traditional state concerns is just as unworkable. Dissent [Breyer]: A) Courts should not be in the business of deciding commerce B) Not a good dissent - he was too imprecise. Saying this is a “gray area” does not help. Segall. Notes: A) If Congress can regulate violence against women, then Congress can regulate everything 1) Admit Congress can regulate everything or 2) Develop a stricter test All the previous cases dealt with regulating private citizens and industries. The next group of cases deal with Congress’ attempt to regulate States qua States.  United States v. California (1936) page 172     Regulation: Federal Safety Appliance Act Action challenged: penalty imposed on a state-owned railroad Court: Upheld Holding [Stone] unanimous: A) There is no immunity from federal regulation for activities in which the States have traditionally engaged. B) The power of states is diminished by grants of power to Congress. New York v. United States (1946) page 172   Law: Upheld against a similar state immunity claim the application of a federal tax to the State of New York‟s sale of bottled mineral water from state-owned spring Reasoning [Frankfurter] (6-2): A) “Surely the power of Congress to lay taxes has impliedly no less a reach than the power of Congress to regulate commerce” B) “But so long as Congress generally taps a source of revenue by whomsoever earned and not uniquely capable of being earned only by a State, the Constitution of the United States does not forbid it merely because its incidence falls also on a State” Law: Case involved further amendments of the Fair Labor Standards Act that extended its minimum wage and maximum hour provisions to all employees of state and local governments Court: overruled state autonomy aspect of Wirtz. Amendment unconstitutional Holding [Rehnquist] (5-4): A) Law could not be applied to traditional governmental functions. A law applied to States as States would impermissibly interfere with integral state functions (e.g. police, fire, sanitation, public health). 36 National League v. Usery (1976) page 173      CONSTITUTIONAL LAW CASES B) The Tenth Amendment reserves this power to the States. Commerce Clause not meant to upset this. C) States are immune from federal control infringing on their “freedom to structure integral operations in areas of traditional governmental functions.” D) Even if it is commerce among the states, it may still be unconstitutional because it destroys State sovereignty. Blackmun: “Balancing approach” - federal regulations should be permitted in areas such as environmental protection where the federal interest is demonstrably greater and where state facility compliance with imposed federal standards is essential (i.e. need must be stronger than the burden on the states). Dissent [Brennan, White, Marshall, Stewart (separately)]: A) Court should exercise judicial restraint. Restraints on Congress of its plenary commerce power lies in the political process, not in the judicial process. B) “A catastrophic judicial blow at Congress‟ power under the Commerce Clause.” C) Only question that needs to be asks is whether the activity is commerce among the states. Hodel v. Virginia Surface Mining & Recl. Ass'n (1981) page 144    Regulation: federal law regulating strip mining Court: upheld Holding [Marshall]: A) Restated the National League of Cities standard as a three part test: 1) Must be showing that the challenged statute regulates the „States as States;” 2) Federal regulation must address matters that are indisputably „attributes of state sovereignty;‟ 3) Must be apparent that the States‟ compliance with the federal law would directly impair their ability to structure integral operations in areas of traditional governmental functions; B) Even if the Tenth Amendment challenge satisfied the three-part test, it might not succeed because the federal interest advanced may be such that it justifies state submission. C) The law here did not commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. Garcia v. San Antonio Met. Transit Authority (1985) page 175     Facts: Garcia was a bus driver who worked overtime hours. Under the Fair Labor Standards Act, the ∆, SAMTA, was required to pay a certain wage and comply with certain overtime standards. However, four months after the Supreme Court‟s ruling in National League of Cities, that the FLSA did not apply to state government agencies “in areas of traditional government functions,” SAMTA notified its employees that the decision relieved it of its overtime obligations under the FLSA because a municipal public mass-transit system was traditionally a local government function, and therefore immune from FLSA. Procedural Posture: Garcia sued for his overtime pay under the FLSA, enforcing minimum wage and overtime restrictions on San Antonio‟s mass transit system. The District Court found that a municipal operation of a mass transit system was a traditional government function, and thus under National League of Cities, is exempt from the FLSA wage and overtime obligations. Court: Issue: Whether Congress has the power, under the Commerce Clause, to regulate activities and functions that are “traditionally” an “integral” part of state government operations. 37 CONSTITUTIONAL LAW CASES  Holding: A) Yes. The fundamental limitation that the constitutional scheme imposes on Congress‟ power under the commerce clause to protect “states as states” from intrusion by federal regulation is a procedural one to be found in the political process - states‟ and citizens‟ participation in federal governmental action. B) Upheld FLSA - expressly overruled Usery Majority Reasoning [Blackmun]: A) Two principal reasons for overruling National League of Cities: 1) “The attempt to draw the boundaries of state regulatory immunity in terms of „traditional governmental function‟ is . . . unworkable,” and 2) Such an attempt is “inconsistent with established principles of federalism.” B) The test of National League of Cities [also the third prong of the test in Hodel], that Congress may not interfere with “traditional” state government functions, is unworkable. There is no meaningful way to determine what is a “traditional” or “integral” part of a state government‟s function, and what is not. Such an approach has led to artificial results since its enactment. History is not a viable grounds for a determination because this prevents meaningful change when necessary, as well as being fairly arbitrary. C) Furthermore, it requires the unelected judiciary to review legislative decisions based on which policies it likes and dislikes. [This argument goes contrary to Marbury.] D) If Congress has a particular power, it does not matter whether it interferes with the laws of the states. To find limits on the commerce power, the constitution itself must be examined. E) Since there are no express limits, the constitution suggests that the structure of the federal government itself is the process by which it is regulated; i.e. by state representatives to the federal government. The states‟ interests are best protected by their own representation in the federal government. F) Since the FLSA is a lesser burden on the states than many other Acts, it is evidence of the political pressures on the federal government to protect states‟ rights. Thus, National League of Cities is overruled. Dissent Reasoning [Powell]: A) Reasoned that the majority rendered the 10th amendment [reservation of power to the states] meaningless. B) The “balancing test” of National League of Cities was best designed to protect the states while allowing the Congress proper power. C) The majority also failed to explain how the states‟ role in the electoral process protects them in their capacity as states themselves. The fact that Congress does not generally exceed its constitutional limits to reach state activities does not make judicial review any less necessary on those occasions that it does. D) The States‟ rights are a matter of congressional law, not legislative grace. Congress has passed increasingly more legislation of this type, while at the same time losing ground with its local constituents. This poses a danger for future stability of the federal government because it undermines the constitutional balance of power between the federal government and the states. E) Furthermore, it is clerks and aids who normally draft legislation, not the Senators themselves. Thus, the drafters are even one more step removed from the constituents who best know how to govern their local agencies. F) Since the FLSA is so economically intrusive, it clearly violates the “balance” established by National League of Cities. Dissent Reasoning [Rehnquist]: “I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a 38    CONSTITUTIONAL LAW CASES  majority of this Court.” Dissent Reasoning [O’Connor]: A) Felt that the majority had backed down from the fight for states‟ rights just when the states needed help from the Supreme Court. B) There is now a risk that Congress will gradually erase the diffusion of power between state and nation on which the Framers relied. Such a fear is not unwarranted given the amount of similar legislative activity in the last 30 years. C) The proper test should be weighing the states‟ rights as a “relevant consideration” in determining the constitutionality of uses of the commerce power. D) “I share Justice Rehnquist‟s belief that this Court will in time again assume its constitutional responsibility. New York v. United States (1992) page 179       Law challenged: A) Low Level Waste Policy Act of 1985. Tried to force each state to make its own arrangement for disposing of low level radioactive waste generated in that state. B) By 1992, States were required to: 1) Figure out a way of getting rid of radioactive waste a) Do it themselves b) Contract with another state to take the waste 2) If the States do not comply, they must take title to all waste produced in-state. Facts: In 1985, Congress passed the Low-Level Radioactive Waste Policy Amendments Act of 1985, which was intended to solve a national problem of the disposal of low-level radioactive waste by providing a procedure for states to either group together into regional compacts, each dumping their waste into a single site in one of the compact states, or find their own waste disposal area. The Act had three provisions: 1) monetary incentives which allowed site states to charge increasingly higher surcharges to non-pact states for disposal of their waste, part of which surcharges would be refunded to the states by the Secretary of Energy if they complied with a timeline for finding their own disposal sites, 2) access incentives which allowed site states to deny access to non-pact states after a few years, and 3) a “take-title” provision which required the delinquent states to take possession and title of the radioactive waste and assume liability for it if they remained delinquent to the end. New York decided to dispose of its own waste, and did not join a regional pact. However, the state had problems locating the site within its borders because the local citizens did not want it. Procedural Posture: The state of New York brought this action to seek a declaratory judgment that the Act was inconsistent with the Tenth Amendment and the Guarantee Clause of Article IV. Issue: A) Whether Congress may direct or otherwise compel a State to regulate a particular private field in a particular way. B) Two overriding concerns the Court deals with: 1) Policy - how to get rid of radioactive waste 2) Constitution - division of powers between the federal and state governments Holding: No. ∏ Argument: A) The 10th amendment forbids Congress from directly regulating the states to compel them to carry out federal regulation in this private field. B) Although they unquestionably have the power under the Commerce Clause to regulate the generators of the waste, they do not have the power to compel the states to directly regulate the waste generators in a particular manner. C) The Act “commandeers the legislative processes of the states.” 39     CONSTITUTIONAL LAW CASES D) Furthermore, the second part of the act that provides for monetary incentives is beyond Congress‟ spending power. E) Lastly, the Act violates the Guarantee Clause because it attempts to undermine the states‟ own republican form of government. ∆ Argument: A) The Constitution‟s prohibition of congressional directives to state governments can be overcome where the federal interest is sufficiently important to justify state submission. B) Also, the Constitution does, in some circumstances, permit federal directives to state governments. C) Lastly, the Constitution envisions a role for Congress as an arbiter of state disputes. Majority Reasoning[O’Conner]: A) The Tenth Amendment is a truism that simply directs the court to examine what are the internal limitations to the powers granted to Congress in Article I. So the court must examine the Commerce Power, the Spending Power, and the Supremacy Clause. B) The basic premise is that under Hodel, Congress may not simply “commandeer” the state governmental processes. Nothing in the Constitution implies that Congress has the ability to require states to govern by federal coercion. This premise is supported by looking at the Framer‟s intent when they chose the structure that the Congress would exercise its power directly over individuals rather than over states as intermediaries. C) Although Congress can motivate or encourage states to regulate in a certain way by making federal assistance conditional or by giving them the choice between doing it themselves or having the federal government do it for them by preemption, it cannot directly compel. This enables state governments to be directly responsive and accountable to the local electorate. D) Where the federal government compels regulation, the state officials take the brunt, while the federal officials remain insulated, thus reducing accountability in the political process. E) Construing the Act in a light most favorable to the United States, the “take title” provision is still clearly beyond Congress‟ power because Congress neither has the power to force states to take title to the waste (thereby subsidizing the generators) nor does it have the power to compel regulation. That there is a very strong federal interest in controlling waste does not allow Congress to go beyond the Constitution. F) Even if New York itself agreed to the bargain, the state is powerless to waive the Constitutional limits on Congressional power because the Constitution is for the protection of individuals. G) The other parts of the Act are Constitutional because neither monetary incentives nor access denials can reasonably be said to deny a State a republican form of government. Dissent Reasoning [White]: A) Reasoned that the majority had taken the Act out of its historical context and its contractual setting. B) The states, including New York, got together to reach their own agreement on how the radioactive waste crisis should be handled. They did not seek federal pre-emption, but rather federal sanction of their pact under Article I, Section 10 which states that “no state shall, without the consent of Congress, enter into any agreement or Compact with another State.” C) Thus New York should be estopped from asserting the unconstitutionality of a bargain that it had derived substantial benefit from. Dissent Reasoning [Stevens]: A) Much ado about nothing!! B) If Congress is regulating commerce among the states, it can tell the states what to do. 40 CONSTITUTIONAL LAW CASES  Notes: A) Garcia – told both states and private sector what to do B) NY v. US – only told state C) Why does this matter? 1) Generally applicable – can commandeer states as long as commandeering private sector also 2) Accountability Printz v. United States (1997) page 186   Law challenged: Brady Act. Temporary measure to be used until a national database is completed. No constitutional text speaking to the question. Therefore, this Act is unconstitutional. [Scalia should have said, “then the states should be allowed to do what they want.”]  Scalia analyzed the case using: A) History 1) Argument #1 a) Government: No, there are plenty of laws that required the participation of state officials in the implementation of federal laws. b) Scalia: Very little evidence of any prior laws requiring state officials to do this sort of thing. These laws permitted the imposition of an obligation on state judges to enforce federal prescriptions, as long as it dealt with matters appropriate for the judicial powers. There is an utter lack of statutes imposing obligations on states’ executives. This suggests an assumed absence of Congress’ power to do this. 2) Argument #2 a) Government: Federalist Papers: Constitution would enable the national government to employ the ordinary magistracy of each state in the execution of its laws. b) Souter: National Government will have authority when exercising an otherwise legitimate power (commerce among the states), to require state auxiliaries to take appropriate action. c) Scalia: No: i) If state officers are required to do this, they must do so without the necessity for a congressional directive that they implement it. No one has ever thought that was the law. ii) It makes state legislatures subject to federal direction, and New York said state legislatures are not subject to federal direction. * [Bad! Bad! No way to defend/justify the opinion based on history] B) Precedent 1) Scalia - No precedent except New York. 2) Dissent: New York required the states to make policy. In this case, it is purely administerial. 3) Scalia: The line between administerial and policy-making is too fuzzy- state officials cannot be made puppets of the federal government. 4) Government: This is a temporary burden and it is very important to regulate the sale of handguns. 5) Scalia: We will not balance!! C) Structure of the Constitution (“essential postulates”) 1) Scalia a) Not structure, but policy. Strong central government v. State sovereignty. 41 CONSTITUTIONAL LAW CASES b) Double security against tyranny c) Separation and equilibration of powers between the three branches of the Federal government. d) If this Act stands, the Executive branch would be “shattered.” 2) Dissent: “Necessary and Proper Clause.” a) Power to regulate sale of handguns under the Commerce Clause, coupled with the “Necessary and Proper” Clause establishes the Brady Act‟s constitutionality, because the Tenth Amendment imposes no limitations on the exercise of delegated powers but merely prohibits the exercise of powers “not delegated to the United States.” 3) Scalia: Does not really respond. Bad! Bad! Reno v. Condon (2000) page 195      Law challenged: DPPA of 1994: states are not allowed to sell their DMV databases. South Carolina sued, claiming that this was commandeering of its state legislature. Court [Rehnquist] unanimous: NO! New York and Printz had not limited Congress‟ ability to regulate the commercial vending of personal data by the states. This is a “thing of interstate commerce.” Congress can regulate it. Two distinctions: A) Congress can regulate a state activity but it cannot control or influence the manner in which States regulate private parties. 1) In other words: If it is commerce among the states, Congress can regulate with a “negative command.” It can not regulate by an “affirmative obligation.” 2) Example: a) “You cannot do this.” –> negative command; Congress can regulate commerce among the states. b) “You have to do (are required to do) this.” –> affirmative obligation. Congress cannot regulate commerce among the states. 3) This is a difficult distinction. Segall does not believe it. No constitutional law professor in the country believes it. 4) Something implicitly said in the case is that there may be a distinction between commercial and governmental activities. Here, the selling of the information is arguably a commercial activity that Congress can regulate since it is interstate commerce. If it was purely a traditional state governmental activity then Congress would never be able to regulate it. [Just an assumption of what the Court may have meant.] B) Court says that the DPPA is generally applicable, and regulates the states exclusively as initial suppliers of the information in interstate commerce and private resellers/redisclosers of that information in commerce. See last paragraph in the opinion. Segall: Printz cannot mean what it says based on Condon. Questions to ask D) Is it commerce E) Does it sastify NY, Printz and Garcia F) What about the 11th Amendment ELEVENTH AMENDMENT 42    CONSTITUTIONAL LAW CASES The judicial power of the united States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. Federal courts have no jurisdiction to hear cases brought by a citizen of one State suing another State. Rules: A) All private citizen suits for money damages against states by citizens of another state or citizens of any foreign state exception in suits brought under the 14th Amendment B) A suit asking for prospective injunctive relief is allowable C) States can waive sovereign immunity Seminole Tribe of Florida v. Florida (1996) page 198         Law challenged: Indian Gaming Regulatory Act. Act of the law challenged: Imposed upon the States a duty to negotiate in good faith toward formation of a compact and authorized a tribe to sue the state in a federal court in order to compel that duty. Holding: A) Indian Commerce Clause does not grant Congress this power, and therefore cannot grant jurisdiction over a state that does not consent to be sued. B) Commerce Clause does not Congress to trump the Eleventh Amendment. C) Cannot authorize a suit for money damages under the Commerce Clause. D) Now, the only way to sue a state is under the Fourteenth Amendment. Dissent: Illogical, “curious scheme,” “fundamentally mistaken.” The “plain statement rule” protect the states from undue federal encroachment upon sovereign immunity. Since the “plain statement rule” is working, there is an adequate check on congressional overreaching. FLSA (says generally that a state must pay its employees a certain amount in wages.) (Generally applicable law). Cannot sue under the Eleventh Amendment. Can get an injunction against a state official. Eleventh Amendment does not apply to the federal government, if the government is the plaintiff. Eleventh Amendment does not apply when one state sues another. Alden v. Maine (1999) page 199      Law challenged: FLSA (overtime pay for probation officers) Holding [Kennedy]: Congress has no constitutional authority to force Maine courts to hear workers‟ suits, even though the suit was based on a federal law. States remain immune from private suits for money damages in the state‟s own court. Court extended state sovereign immunity bar (Seminole Tribes) from lawsuits against states in federal courts to lawsuits against states in state court. Congress, in exercising its Article I powers, may not abrogate state sovereign immunity by authorizing private actions for money damages against a non-consenting state in its own court. Not in the text of the Eleventh Amendment. The principle of sovereign immunity derives from the structure of the Constitution itself. Kimel v. Florida Board of Regents (2000) page 203   Law: Age Discrimination in Employment Act of 1967 (ADEA) Holding [O’Conner]: 43  CONSTITUTIONAL LAW CASES A) Congress lacked power under Article I to subject state employers to suit at the hands of private individuals, and such suits against the states unauthorized under Congress‟s civil rights enforcement powers under § 5 of the 14th Amendment Dissent [Stevens]: A) The Eleventh Amendment “only places a textual limitation on [diversity suits in] federal courts,” not a limitation on federal courts‟ power to entertain suits against a state by that state‟s own citizens SPENDING POWERS  Spending Powers: most commonly used federal power because Congress likes to spend money. It is the only way Congress can get state governments to do things. South Dakota v. Dole (1987) page 219     Law: Federal law that directed the Secretary of Transportation to withhold a percentage of highway funds from states “in which the purchase or public possession of any alcoholic beverage by a person who is less than twenty-one years of age is lawful” Majority [Rehnquist]: A) Upheld this federal law under Congress‟ spending power “even if Congress may not regulate drinking ages directly.” B) States can waive their Twenty-First Amendment powers, and thus they may accept federal grants on the condition that they exercise a waiver. C) Spending powers are limited. Requirements are: 1) Constitution - must be in pursuit of “general welfare” 2) Condition must be clear, unambiguous so states can comply easily 3) Reasonably related to federal interest in particular national projects 4) Other constitutional provisions may provide a bar. D) Conditions 1-3 were satisfied. Besides, those may not be judicially reviewable. Arguments: A) 1) Π: 21 prohibits direct regulation of drinking ages by Congress. Congress cannot use spending power to regulate that which it is prohibited from regulating directly. 2) Court: constitutional limits when exercising spending power are less exacting than those on its authority to regulate directly because our cases say so. 10th A. doesn’t limit congressional regulations on grants. Very broad power. Only limit appears to be telling States to do something that is unconstitutional. B) 1) Π: This is coercive because of the degree of success it has achieved. 2) Court: only going to lose 5%. Not coercive. Dissent (O’Conner) A) This is an attempt to regulate the sale of liquor. B) Reasonableness application is both too over- and under-inclusive. Segall: Not at issue in this case. That is a First Amendment test. C) Congress has no power under the Spending Clause to impose requirements on a grant that go beyond specifying how the money should be spent. D) Butler case: may return as the majority position. DORMANT COMMERCE CLAUSE  Commerce Clause: interpreted to limit states‟ powers to discriminate or burden interstate commerce. 44         CONSTITUTIONAL LAW CASES Original purpose: regulate economy and prevent states from taxing each other. Dormant Commerce Clause has two purposes: A) Prevent state laws from disrupting the national economy and having adverse consequences B) Further national harmony Facially discriminatory laws: A) Ex: Georgia has a law that says out-of-state milk producers can sell their milk for no less than $2/gallon. Instate milk producers can sell their milk for $1/gallon. Unconstitutional Not discriminatory A) Ex: Georgia law that says there will be no trucks operated on Georgia highways that are longer than 50 feet. (But what if the average length of all trucks operating on highways is 75 feet?) Should the Court review under the dormant Commerce Clause? A) Yes, according to McCulloch. Look at the nature of the law. What role should motive play? Summary: A) Does a state statute discriminate on its face or in its purpose or effect against out-of-staters or interstate commerce. 1) If it does, the state law is subjected to strict scrutiny and is likely to be found unconstitutional. 2) State laws that seek to accomplish simple economic protectionism are per se invalid. B) On the other hand, if the law does not discriminate, it is assessed under a more lenient balancing test that weighs the state‟s interest against the burden the law imposes on interstate commerce. C) Whereas a discriminatory statute is presumptively invalid, a non-discriminatory law is likely to be upheld unless the burden on commerce greatly outweighs some legitimate state benefit. 1) Local economic measures are more likely to be upheld if there is no discriminatory purpose or effect. Dormant Commerce Clause Analysis: A) First, the area the state has regulated must fall within the domain of the federal commerce power, something almost inevitable since Wickard, even after Lopez contracted its turf. 1) If the state regulation does not intrude on the space the Commerce Clause covers, the Dormant Commerce Clause does not restrain the state and it may act free from Commerce Clause inhibitions. B) Second, if the state regulation falls within the federal commerce power, the question then arises whether the state statute conflicts with any statute Congress has enacted. 1) If so, the state statute fails under the Supremacy Clause and Dormant Commerce analysis becomes irrelevant. 2) Dormant Commerce Clause scrutiny arises only when the state statute affects commerce and the federal government has not acted. Facts: Gibbons was a former partner turned competitor of Ogden. Ogden had a monopoly to operate steamboats on the New York Harbor from New York City to New Jersey, and Gibbons was competing with him. Ogden‟s‟ monopoly was granted by the New York state legislature. Gibbon‟s ferries were licensed as “vessels to be employed in the coasting trade” under a federal law of 1793. Procedural Posture: The trial court granted an injunction against Gibbons to stop operating his ferry. Gibbons brought an appeal to the Supreme Court on the grounds that the statute granting a monopoly to Ogden was unconstitutional as being repugnant to the commerce power granted to Congress. 45 Gibbons v. Ogden (1824) page 236        CONSTITUTIONAL LAW CASES Issue: Whether Congress has the power to regulate the navigation of steamboats on the New York harbor between New York and New Jersey, to the exclusion of the state of New York. Rule: Commerce power of Congress must be exercised within the states, even though it cannot reach solely intrastate commerce. ∏ Argument: The New York law is unconstitutional because it usurps Congress‟ power to regulate interstate commerce, which includes navigation. ∆ Argument: Congress does not have the power to regulate non-commerce events such as “navigation.” Also, Congress does not have the power to regulate commerce that occurs internal to a state, only that that occurs between two states. Majority Reasoning: Marshall stated that the common understanding of the word “commerce” necessarily included “navigation.” Thus, Congress has the right to regulate navigation as if it were expressly mentioned in the Constitution. Congress has the power to regulate commerce “among the several states.” “Among” means intermingled with, not just between. Thus, the commerce power extends internal to the states because commerce transactions, which can affect the states generally, can originate and terminate within the state border boundaries. Although it does not extend to transactions that are completely internal to a state, the commerce power would be useless if it could not extend beyond the state boundaries because that is where the transactions occur. Lastly, the commerce power is limited only by the constitution. The Congress has the full and exclusive power to make rules by which interstate commerce is to be governed. This power is centralized in one body, but it can act wherever needed in the states. Willson v. Black-Bird Creek Marsh Co. (1829) page 238       Facts: The ∆ company was authorized by Delaware law to put a dam across Black Bird creek, which was a navigable waterway flowing into the Delaware River. π crashed through the dam, and was successfully sued by the ∆ company for damages. Procedural Posture: Wilson brought this action to invalidate the Delaware law as being in conflict with Congress‟ power under the commerce clause to regulate interstate commerce, which was conducted on the Creek. Issue: Whether the Delaware law authorizing the ∆ to dam up the navigable waterway was constitutional. Holding: Yes. Rule: If Congress has passed an act regulating commerce (to control state law over small navigable creeks), a state law coming in conflict with the congressional act would be void. Majority Reasoning: A) Marshall reasoned that the power to increase the value of the surrounding property, as well as the health of the inhabitants was well within the power of the states as long as it did not conflict with the powers of the federal government. B) Marshall implied that the Delaware statute was not within the purview of the dormant commerce clause because it was plainly an example of the state‟s permissible regulation of a local health and property matter. Cooley v. Board of Wardens (1851) page 240  Facts: A Pennsylvania law of 1803 required ships entering or leaving Philadelphia harbor to hire a local pilot. For failure to comply, Cooley was fined. The proceeds from the fines went to a fund used to support retired pilots and their dependents. Also, a 1789 congressional statute stated that all previous piloting laws were expressly adopted, and the states had the right to enact further similar laws until Congress saw fit to enact laws in this area. 46      CONSTITUTIONAL LAW CASES Procedural Posture: Cooley sued for the penalty, claiming that the law was unconstitutional as being in conflict with the dormant Commerce power. Issue: Whether the law was unconstitutional as being in conflict with the dormant Commerce power. Holding: No. Majority Reasoning (Curtis): A) The regulation of pilots is regulation of navigation, and thus regulation of commerce. The 1789 Act, although it expressly adopts existing piloting laws, cannot grant any more power to the states than does the constitution. B) Thus, if the commerce power is exclusive in this area, the Act is inoperative and the local law is unconstitutional. However, since the field of commerce is so diverse, it requires laws of varying scope. Some facets of interstate commerce require uniform national laws by their very nature. C) The Cooley Rule of Selective Exclusiveness looks to the nature of the subject of the challenged regulation as the crucial factor in determining its validity. The doctrine of selective exclusiveness states that, if the item is such that national uniformity is necessitated, then Congressional power is exclusive D) If, on the other hand, the item is matter of a peculiarly local concern (even though within the reach of the Congressional commerce clause power such as the Pennsylvania pilotage laws), allowing a diversity of treatment, then states may regulate the area, in the absence of congressional preemption E) However, in this case, there is a manifested intent of congress to leave this area of commerce to local regulation. Thus, this is an example where the commerce power can coexist between the state and federal government if the federal government has not actual passed a law in that area. The determinative factor of whether a state law is repugnant to the constitution in the face of the dormant commerce power is the “subject” of the regulation, not the “purpose” behind it. Notes: A) The decision supplies no litmus test to determine when is a subject appropriate for national, as opposed to local regulation B) This decision set the direction for commerce clause adjudication for almost the next 100 years. Di Santo v. Pennsylvania (1927) page 244     Law: Pennsylvania regulation required sellers of steamboat tickets to apply for and be granted a license. In addition, the law charged the licensees an annual fee and subjected them to license revocation. The state claimed that the law protected local citizens from fraudulent acts. Issue: Majority []: A) The Court struck down the regulation as an unnecessary, burdensome interference with interstate commerce B) The law was not an “indirect” burden on commerce but a “direct” one, which the state could not justify as an exercise of the police power to prevent possible fraud. C) Under Cooley, Congress has exclusive authority to regulate this commerce because the subject demands uniform treatment. Therefore, this state legislation is necessarily repugnant to the Congressional power. Dissent [Stone]: A) Implored the Court to adopt a more appropriate standard for adjusting the conflicting claims of the federal government and the states. B) Since Cooley, the Court‟s decisions had repeatedly acknowledged that the purpose of the 47 CONSTITUTIONAL LAW CASES commerce clause “was not to preclude all state regulation of commerce crossing state lines, but to prevent discrimination and the erection of barriers or obstacles to the free flow of commerce, interstate or foreign.” C) To achieve this objective, Stone advocated a more realistic test, abandoning reliance on conclusory labels such as “direct” or “indirect.” D) He shifted the focus from a metaphysical concern with “direct” burdens to a focus on burdens that discriminated against commerce from other states. Instead of rigid verbal formulae, the Court should use a more pragmatic test. E) “[I]t seems clear that those interferences not deemed forbidden are to be sustained, not because the effect on commerce is nominally indirect, but because a consideration of all t facts and circumstances, such as the nature of the regulation, its function, the character of the business involved and the actual effect on the flow of commerce, lead to the conclusion that the regulation concerns interests peculiarly local and does not infringe the national interest in maintaining the freedom of commerce across state lines.” Buck v. Kuykendall (1925) page 244  State denied permit because the route was already adequately served. prohibition of competition. (Controlling competition) This is unconstitutional H.P. Hood & Sons v. Du Mond (1949) page 234    Facts: New York refused to grant a Massachusetts milk distributor a license to operate a third milk receiving station in the state on the grounds that the additional diversion (the export) of New York milk to Massachusetts would impair the supply for the New York market. New York was, in effect, trying to keep milk within the state to keep its price low for New York consumers. What New York was doing was the economic equivalent of a tax on the export of milk. Only, instead of charging a certain amount to export each gallon of New York milk, the state was denying a license to a third milk receiving station because it would use that license to export. It was as if the state was saying, “You may export a certain amount of milk, and then no more. That‟s why we deny your license.” Majority (5-4): Rejected the existence of state power to develop such a discriminatory plan Dissent [Black]: A) Argued that the majority had abandoned the Cooley approach and that the decision result in invalidating a wide range of state regulation. B) Notes: 1) Hood is not really a departure from the earlier cases. Unlike those other regulatory measures, the New York ad hoc licensing scheme in Hood discriminated against interstate commerce because the primary burden of the state action fell on nonresidents, the people of Massachusetts who wanted to buy the milk exported from New York. Philadelphia v. New Jersey (1978) page 246   Law challenged: New Jersey law that prohibited the importation of most “solid or liquid waste that originated or was collected outside the territorial limits of this State. Arguments: A) New Jersey: the law concerned health and safety - a police power. Environment reasons: lack of landfills B) New Jersey: Law is similar to quarantine laws for bad cattle 48    CONSTITUTIONAL LAW CASES 1) Court‟s response: Waste takes time to become dangerous. Bad cattle are dangerous when they arrive in the state. [Rehnquist (dissent): There is no distinction. Health and safety laws should be upheld] C) Πs: No, the law is a form of economic protectionism meant to benefit NJ‟s economic interests Holding [Stewart]: A) The intent of the law is not relevant, must look at the outcome B) The statute, on its face, discriminates. Thus, it is per se invalid. C) Law had discriminatory effects (invalid even if purpose was not discriminatory) Reasoning: New Jersry cannot prohibit the out of state importation of solid or liquid wastes in order to extend the life of landfill within the state and protect its environment. Such wastes are in commerce and protected by the commerce clause. The garbage dump owner is selling space, and the waste hauler is buying that space. The state discriminated against out-of-state waste because it allowed nonimported wastes to be transported and buried within the state. A state cannot distinguish between in-state and out of state wastes by allowing the former but not the latter to be disposed of in landfill sites within the state, because a state cannot slow down or prohibit the flow of commerce in order to conserve for those within its borders privately-owned land fill. Notes: A) The Court did not do the following analysis, but should have. 1) The economics of this case: a) Who does it help in state? Commercial waste producers. b) Who does it help out-of-state? Land fill operators. c) Who does it hurt in state? Land fill operators. d) Who does it hurt out-of-state? Commercial waste producers. 2) If 1 and 2 are greater than 3 and 4, the law prevails (i.e. constitutional). B) Maybe the Court should ask if the state law hurts the national harmony? Maine v. Taylor (1986) page 251    Law: Law banning the importation of out-of-state baitfish One case where the Court upheld a facially-discriminatory state law Holding [Blackmun]: A) The ban had a legitimate environmental purpose stemming from “uncertainty about possible ecological effects on the possible presence of parasites and nonnative species” in shipments of out-of-state baitfish, and that that purpose could not be adequately served in nondiscriminatory ways B) Discriminatory laws may be upheld only if they serve “ „a legitimate local purpose,‟ [that] could not be served as well by available , nondiscriminatory means General Motor Corp. v. Tracy (1997) page 255  Holding [Souter]: A) The Court arguably created a “public utilities” exception relieving certain state actions from scrutiny under Dormant Commerce Clause jurisprudence. B) The Court determined that Ohio‟s exemption of sales and use taxes for “natural gas company[ies]” (which were essentially in-state companies selling to residential consumers) did not unfairly discriminate against marketers of natural gas (which were mainly out-of-state selling to corporations like General Motors Corporation (GMC)). C) In examining GMC‟s claim that the exemption disfavored out-of-state entities and discriminated against interstate commerce, the Court invoked the familiar principle that “any notion of discrimination assumes a comparison of substantially similar entities.” 49 CONSTITUTIONAL LAW CASES D) If the favored and disfavored products differ, they may appeal to separate markets and as such, may not compete even if the regulatory preferences were removed. The Court concluded that the in-state natural gas companies served residential consumers, a different market than the out-ofstate entities addressed E) Ohio‟s tax exemption for natural gas companies created a distinctive product that so differentiated the regulated natural gas companies from the independent interstate entities that the two types of organizations were not comparable under the Dormant Commerce Clause. Camp New Found/Owatonna, Inc. Town of Harrison (1997) page 255    Law: Maine real estate tax exemption that benefited in-state charitable institutions serving instate residents while offering far less generous benefits to in-state institutions serving mainly out-of-state residents. The exemption was challenged by an in-state organization serving approximately 95 percent out-of-state residents. Majority [Stevens]: A) Found the Dormant Commerce Clause applicable notwithstanding Maine‟s argument that campers are not “articles of commerce” and that the camp‟s service was delivered intrastate B) Although the camp did not operate for profit, it was engaged in interstate commerce because it marketed both to attract out-of-state campers and to sell its product, the natural resources of Maine C) The statute discriminated on its face in its distinction between organizations serving interstate and local consumers and fell under the virtually “per se” rule of invalidity. D) Maine failed to attempt the heavy burden of justifying the discriminatory statute by showing, under the “least restrictive alternative” approach, that it advanced some “legitimate local purpose” that could not be achieved through “reasonable nondiscriminatory alternatives.” Dissent [Rehnquist, Scalia, Thomas and Ginsburg]: A) They saw no discrimination because the charitable institutions were not similarly situated, and they found the statute acceptable under the Pike balance test. B) Even if it was discriminatory, they saw it as one of the relatively few cases that could survive the “per se” “ rule of invalidity.” C) The tax exemption was narrow and merely acted as a subsidy to organizations providing a state benefit to its residents. South Central Bell Telephone Co. v. Alabama (1999) page 257   Law: Alabama franchise tax that gave “domestic corporations the ability to reduce their franchise tax liability simply by reducing the par value of their stock, while den[ying] foreign corporations the same ability Holding (unanimous): State laws that seek to accomplish simple economic protectionism are per se invalid Fact: Madison, Wis., has a local ordinance which prohibits the sale within Madison of any milk which has not been pastuerized within a 5 mile radius of the city of Madison. The three pastuerizing plants within that radius are subject to rigourous local safety laws. Dean Milk operates out of Chicago, and its facility meets Federal safety standards Procedural Posture: Dean Milk brought this action to strike down the Madison law after it was denied a license to sell milk there. The state court rejected the commerce clause attack. Dean Milk Co. v. Madison (1951) page 259   50        CONSTITUTIONAL LAW CASES Law challenged: Local ordinance barring the sale of milk that has not been pasteurized within 5 miles of the city. Issue: Whether the discrimination inherent in the Madison ordinance can be justified in view of the character of the local interests and the available methods of protecting them. Holding: No. Discriminatory laws passed for health and safety purposes: not per se invalid. If there are reasonable non-discriminatory alternatives, the law is invalid. ∏ Argument: The regulation of milk in this manner is a substantial burden upon interstate commerce because it plainly discriminates against interstate commerce. ∆ Argument: The ordinance is valid because it is a good-faith attempt to police health of the milk supply. It is valid regardless of its affect on interstate commerce, because the states have the power to enact local police laws that are not in conflict with existing federal legislation. Majority Reasoning [Clark]: A) Here, there were alternatives: 1) Send your own inspectors. 2) Abide by the minimum national standards. B) The statute clearly is a barrier to interstate commerce. It has a discriminatory effect, even if it is not purposefully discriminatory. C) If it were held valid simply because it were related to health, then the Commerce Clause would be powerless because a state could enact a burdensome and protective law on the pretext of health. D) Since there are alternative methods for assuring the same degree of health protection, the local law‟s interest in health does not outweigh the national interests in non-discriminatory interstate commerce practices. E) It would be just as effective for the local ordinance to require higher standards without requiring local processing. A model federal provision existed that would adequately safeguard the public health. Dissent [Black]: This law was reasonable. Other alternatives do not serve the purpose of this law as well. Ft. Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources (1992) page 261    Law: Michigan law that prohibited private landfill operators from accepting solid waste that originated outside the county in which their facilities were located Holding [Stevens]: A) The Court found the law indistinguishable for dormant commerce clause purposes from the waste import ban struck down in Philadelphia v. New Jersey. B) Following Dean Milk, the Court also found that the law could not be saved by the fact that it drew the line at the county rather than the state border, and thus discriminated against instate as well as out-of-state interests. Dissent [Rehnquist]: The restriction, unlike that in Dean Milk, was based on legitimate environmental and health concerns rather than economic protectionism. C & A Carborne, Inc. v. Clarkstown (1994) page 262  Facts: The town of Clarkstown, New York, authorized a private company to build and operate a solid waste transfer facility, with an agreement that it would be sold to the town for $1 after five years. In order to guarantee a minimum supply of waste to the transfer station in order to finance its cost, the town adopted a “flow control ordinance,” requiring all nonrecyclable or hazardous solid waste within the town to be deposited at the transfer station, which charged fees exceeding prevailing market rates. Carbone, a private recycler with a sorting facility in Clarkstown, sought to ship its nonrecyclable 51    CONSTITUTIONAL LAW CASES waste to cheaper processors outside the state. The town sought to enjoin Carbone and Carbone raised the unconstitutionality of the flow control ordinance as a defense. Majority Reasoning and holding [Kennedy]: A) “While the immediate effect of the ordinance is to direct local transport of solid waste to a designated site within the local jurisdiction, its economic effects are interstate in reach B) The ordinance is no less discriminatory because in-state or , in-town processors are also covered by the prohibition” C) “[By] prevent[ing] everyone except the favored local operator from performing the initial processing step, [the] ordinance [deprives] out-of-state businesses of access to a local market” D) “Discrimination against interstate commerce j in favor of local business or investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest” Concurrence [O’Conner]: The ordinance did not discriminate against interstate commerce but did impose an undue burden on interstate commerce under the Pike balancing test Dissent [Souter]: A) The law does not differentiate between all local and all out-of-town providers of a service, but instead between the one entity responsible for ensuring that the job gets done and all other enterprises, regardless of their location B) The ordinance‟s “exclusion of outside capital is part of a broader exclusion of private capital, not a discrimination against out-of-state investors as such.” C) It was thus “anticompetitive” but not protectionist.” Pike v. Bruce Church, Inc. (1970) page 275   Facts: Court held invalid a prohibition against shipping uncrated cantaloupes to the grower‟s out-ofstate crating plant. The prohibition served no health purpose Majority [Stewart]: A) Pike Balancing Test: 1) Where the statute regulates evenhandedly 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. 2) If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. SC Highway Dept v. Barnwell Bros. (1938) page 277      Law: A 1933 South Carolina law prohibited trucks that were more than 90 inches wide or had a gross weight of over 20,000 pounds from traveling on South Carolina highways. About 85% to 90% of the nations trucks exceeded these limits. The law was passed to preserve the highways from damage. Procedural Posture: The trial court found that substantial burdens were put on interstate commerce by this law, and that it was an unreasonable means of protecting the highways because it was tied to gross weight instead of axle weight. Issue: Whether the South Carolina law is unconstitutional as an impermissible conflict with the dormant commerce power. Holding: No. Majority [Stone] unanimous: 52 CONSTITUTIONAL LAW CASES A) Justice Stone emphasized that a state “may not, under the guise of regulation, discriminate against interstate commerce.” B) “[S]o long as the state action does not discriminate, the burden is one which the Constitution permits… .” C) The commerce clause prohibits state legislation, nominally of local concern, that is really aimed at interstate commerce, or “by its necessary operation is a means of gaining a local benefit by throwing the attendant burdens on those without the state.” D) It is for Congress and not the Court to decide to what extent “local interests should be required to yield to the national authority and interest” [Not consistent with his language in Southern Pacific] E) There are matters of local state concern, the regulation of which unavoidably involves some regulation of interstate commerce, but which, because of their local character and diversity, may not be fully dealt with by congress. A state has an adequate local interest in preserving its highways. Thus, it can pass local laws to regulate the size of shipping on those highways. The fact that this necessarily affects interstate commerce is immaterial because, so long as the law does not discriminate, which this one does not, the power is reserved to the states to regulate. It is not the judicial function to determine whether the standard is the best approach or not, but only to determine whether it is without a rational basis. Southern Pacific Co. v. Arizona (1945) page 278      Facts: The Arizona Train Limit Law of 1912 prohibited operating railroad trains of more than a prescribed length. Reducing the length of the trains was said to increase safety because of less “slack action” which caused trains to behave uncontrollably. However, the length limit required the train operators to run about 30% more trains, and cost Southern Pacific about a million dollars/year in extra costs. About 95% of all rail traffic in Arizona was interstate, and so it affected train operations from Texas to California. Procedural Posture: In 1940, Arizona sued Southern Pacific for the statutory penalties for violating the law. The trial court found the law to be an unconstitutional burden on interstate commerce, and further found that it was not justified by local safety concerns because the increase in safety by reducing the slack action was offset by the decrease in safety of more trains. The state supreme court reversed, concluding that a state police law, based on safety, could not be overturned even though it had a substantial effect on interstate commerce. Issue: Whether the total effect of the state law as a safety measure in reducing accidents is too small to outweigh the national interest in keeping interstate commerce free of burdens where a uniform national regulation is needed. Holding: Yes. Majority [Stone]: A) Adopted Stone‟s dissent in Di Santo B) The majority agreed with the trial court that the Arizona law had no reasonable relation to safety, and found that the burdens on interstate commerce outweighed the state‟s equivocal evidence of safety. C) The general rule is that the states do not have the authority to substantially impede the free flow of commerce where the need for national uniformity in laws demand that the regulation be done at the national level. D) However, this case lies between the two extremes of clearly needing national regulation, and clearly needing a local police measure. Thus, it calls for a balancing of the state and federal interests. 53   CONSTITUTIONAL LAW CASES E) The findings show that the increase in safety is small if at all. Also, if the length of trains is to be regulated, it must be done uniformly for efficiency. Since the Arizona Law is a substantial burden on commerce where a need for uniformity exists, and does not have an adequate police justification, it is unconstitutional. Dissent: [Black] thought that the balancing test was best left to the legislature and not the judiciary. [Douglas] felt that the state legislation was adequately tied to safety and thus entitled to a presumption of validity. Notes: A) While it is difficult to reconcile all of the language of Barnwell and Southern Pacific, they are consistent in their results. In Barnwell, the evidence of the relationship between the state law and safety requirements was much stronger than the Southern Pacific case. In spite of the Barnwell language, the Court did in fact summarize and analyze the evidence of safety. B) Southern Pacific, in distinguishing Barnwell, noted that the state‟s power over “its” highways is “far more extensive” than its control over railroads. This was true in 1938. Bibb v. Navajo Freight Lines, Inc. (1959) page 282     Facts: The state‟s peculiar variation on mud flap design resulted in prohibiting interstate commerce operators from using a mud flap in Illinois, even though this mud flap was legal in 45 other state. In addition, the Illinois design was itself illegal in Arkansas, which required straight mud flaps. This multiplicity of standards retarded the free flow of interstate trucking unnecessarily. Procedural Posture: The trial court found that the contour mud flap posed no safety advantage over the conventional or straight mud flap and there was evidence that it created new hazards by accumulating heat in the brake drum. Law challenged: Invalidated an Illinois safety measure specifying contour mud flaps for trucks operated within its jurisdiction. Holding [Douglas]: A) Safety measures carry a strong presumption of validity. B) Barnwell does not reflect the proper commerce clause limit on state regulations of highways. C) This is one of those rare cases where local safety measures that are non-discriminatory place an unconstitutional burden on interstate commerce. The burden on the interstate movement of trucks is too great to uphold the validity of this law. Kassel v. Consolidated Freightways Corp. (1981) page 284    Law challenged: Iowa law prohibiting the use of 65' double truck trailers within its borders. Mobile homes and farm equipment are exempt. Border cities may adopt the length limitations of an adjoining state. Majority [Powell]: A) Standard of review: for state safety regulations - presumptively valid. B) Test: Pike: safety benefits more than slight and presumption of validity –> valid law. C) BUT: Safety benefits here were so minimal and the burden on interstate commerce was so great that the law must be held invalid. D) Non-discriminatory but a burden on interstate commerce Concurrence (Brennan): A) The asserted safety purpose must be weighed against the degree of interference with interstate commerce. B) If this is about balancing, Court should balance commerce against local benefits. 54  CONSTITUTIONAL LAW CASES C) Less deference will be given to the findings of state legislators where the local regulation has a disproportionate effect on out-of-state residents and businesses. Dissent (Rehnquist) A) Ask, “Is there a rational relationship?” Intent of the legislature is not important. B) A state safety regulation is invalid if its asserted safety justification is merely a pretext for discrimination against interstate commerce. The Iowa law is a valid highway safety regulation and is entitled to the strongest presumption of validity. Hunt v. WA Apple Advertising Commissioner (1977) handout   Facts: North Carolina statute required that apples sold in a closed container into the state could only display United States grades. Washington, the nation‟s largest apple producer, challenged the statute that precluded Washington from attaching its own certificate attesting to its more rigorous exam. The North Carolina law did not discriminate on its face since it applied to North Carolina apples, too. It did, however, discriminate in its effect since it would strip Washington apples of the competitive advantage they otherwise would enjoy by virtue of their rigorous inspection system. Majority [Burger]: A) Based on the discriminatory effect, “the burden falls on the State to justify [the discrimination] both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake B) The Court found little relationship between the restriction and its avowed purpose. C) Nondiscriminatory alternatives existed. Accordingly, the statute failed to survive this strict Dormant Commerce clause scrutiny. Exxon Corp. v. Gov. of Maryland (1978) handout     Law: Maryland statute that precluded petroleum producers or refiners from operating a retail gas station in Maryland and required them to extend all “voluntary allowances” uniformly to all of its customers. The producers and refiners adversely affected were out-of-staters Arguments: A) Π: law is discriminatory in effect because no instate producers of oil; there are only out-ofstate producers. B) Court: There are out-of-state oil sellers in MD that are not affected. Everyone who sells/produces can sell in MD. Majority [Stevens] (7-1): A) Although some interstate companies were excluded, other interstate marketers (who neither produced nor refined petroleum) were not. The Act did not exclude interstate dealers or burden their conduct of business nor did it treat in-state and out-of-state retailers differenty.” B) The Dormant Commerce Clause “protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulation.” C) If the effect of a state regulation is to cause local goods to constitute a larger share, and goods with an out-of-state source to constitute a smaller share, of the total sales in the market (Hunt and Dean Milk) the regulation may have a discriminatory effect on interstate commerce. Notes: A) A discriminatory effect is sufficient to invalidate a law if a lot more local goods are bought, or there is a big burden on local businesses. B) Applied to this case, this is not true. 55 CONSTITUTIONAL LAW CASES 1) 98% of integrated dealers (producers and refiners) were out-of-state. These would have to close down. 2) 99% of non-integrated dealers were in-state. Minnesota v. Clover Leaf Creamery Co. (1981) handout    Law: Minnesota statute that banned sale of milk in plastic (disposable containers but allowed it in paper containers. Minnesota‟s paper industry stood to benefit while the plastics industry that suffered was outside the state. Holding [Brennan]: A) The fact that some in-staters benefited was not sufficient to establish a discriminatory effect when some out-of-staters also benefited B) Πs have a legislative/political recourse. Notes: This is inconsistent with Dean Milk. West Lynn Creamery Inc. v. Healy (1994) page 253   Law: Massachusetts regulation that assessed all fluid milk sold to Massachusetts retailers (two-thirds of which was produced out of state) and then distributed the proceeds to Massachusetts dairy farms. The combination of the evenhanded tax and in-state subsidy had a pernicious effect. A) milk makers –> milk retailers (Πs were MA retailers) –> taxed. Uniform, nondiscriminatory. B) Instate milk makers got a rebate. Subsidies are okay. Holding: A) Law invalid B) “[W]hen a nondiscriminatory tax is coupled with a subsidy to one of the groups hurt by the tax, a State‟s political processes can no longer be relied upon to prevent legislative abuse, because one of the in-state interests which would otherwise lobby against the tax has been nullified by the subsidy.” Lewis v. BT Investment Managers (1980) page 295   Law: Florida law prohibiting ownership of local investment advisory businesses by out-of-state banks, bank holding companies and trust companies. (The law barred only some, not all, investment advisory companies owned by out-of-state interests.) Holding [Blackmun] unanimous: A) The law “prevents competition in local markets by out-of-state firms with the kinds of resources and business interests that make them likely to attempt de novo entity” and found the law “parochial” in the sense that “it overtly prevents foreign enterprises from competing in local markets B) “On its face and in actual effect,” the law displayed “a local favoritism or protectionism” that made it suspect under the commerce clause, but did not find it necessary to find it per se invalid because the disparate treatment of out-of-state bank holding companies cannot be an incidental burden necessitated by legitimate local concerns Edgar v. Mite Corp. (1982) page 295  Law: Illinois Business Take-Over Act, designed to regulate tender offers made to target companies that had certain specified business contacts with Illinois. Under the Act, takeover offers had to be registered with the Illinois Secretary of State 20 days before the offer became effective. During this 20-day period, the offeror could not communicate with shareholders, although the target „company 56  CONSTITUTIONAL LAW CASES was free to disseminate information to them. The Secretary of State could refuse registration for lack of full and fair disclosure or where the offer was deemed inequitable or fraudulent Holding: The Act imposed “a substantial burden on interstate commerce which outweighs its putative local benefits.” CTS Corp. v. Dynamics Corp. of America (1987) 295        Facts: Indiana passed a corporate takeover law which stated that should any party acquire a controlling interest in the number of shares he held, he could only acquire voting rights on those shares to the extent approved by a majority vote of the prior disinterested stockholders. Procedural Posture: The lower court held that the law was unconsitutional as being a hindrance to tender offers, and thus an interstate commerce burden. Issue: Whether the Indiana law is unconstitutional as being in conflict with the dormant Commerce Clause. Holding: No. ∆ Argument: Tender offers should generally be favored because they represent a shifting of property rights to their highest value use. Also, the state of Indiana has no interest in protecting non-resident shareholders. Majority Reasoning: A state has the fundamental right ot pass laws concerning the regulation of corporations it establishes. They are only unconsitutional if they discriminate against interstate commerce. Since this law has the same effect on interstate commerce as well as intrastate commerce, meaning that all shareholders and tender offers are treated the same regardless of locality, then it does not discriminate. The state regulation of corporations necessarily has some effect on interstate commerce, since the shares are traded internationally. However, there is stability in knowing that the corporation is subject to one set of regulations - that of its home state. Concurrence Reasoning: [Scalia] stated that there was no consitutional basis for any balancing test when determining whether a local interest outweighs a federal interest. Whether the burden on commerce imposed by a statute is excessive in relation to its benefit is a question for the legislature, not the judiciary. ARTICLE IV PRIVILEGES AND IMMUNITY    The Privileges and Immunities Clause of Article IV states that “[t]he citizens of each state shall be entitled to all Privileges and Immunities of citzens in the several states.” The privileges and immunities clause of Article IV of the Constitution forbids state and local discrimination against out of state resident Privilege and Immunity Clause vs. Dormant Commerce Clause A) First, unlike the Dormant Commerce Clause, the Privileges and Immunities Clause extends only to individual “citizens.” It does not protect aliens or corporations. B) Second, whereas the Dormant Commerce Clause addresses both state statutes that discriminate against out-of-staters and neutral laws that burden commerce unduly, the Privileges and Immunities Clause only shares the former target - discriminatory measures. C) Third, the Privileges and Immunities Clause only protects what its name suggests privileges and immunities. United Building & Construction Trades Council v. Mayor & Council of Camden (1984) page 306  Facts: The city of Camden N.J. passed a municipal ordinance requiring that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents. 57        CONSTITUTIONAL LAW CASES Procedural Posture: π challenged the constitutionality of that ordinance under the Privileges and Immunities clause. The state supreme court of New Jersey rejected the attack on the grounds that the ordinance discriminates on the basis of municipal residency and not state residency, and thus declined to broaden the interpretation of the privileges and immunities clause beyond the literal language in the constitution. Issue: Whether the Camden ordinance is constitutional under the privileges and immunities clause. Holding: No. ∆ Argument: A) The clause does not apply to a municipal ordinance. By its own language, it applies only to state laws that discriminate based on state residency. B) This ordinance discriminates equally against state residents and non-state residents as long as they are non-Camden residents. C) Even if it does apply to municipal ordinances, in this case the law is necessary to counteract grave social and economic ills, of which the out-of-city employees are a primary cause. D) Because they “live off of” Camden without residing in Camden, these out-of-city employees promote “middle-class flight” from Camden, resulting in a depleted tax base. Majority Reasoning: A) First, the privileges and immunities clause does apply to strictly municipal ordinances because what would be unconstitutional if done by the state can be no more readily accomplished by the city acting under the authority of the state. B) Also, a person who lives out of state will be just as discriminated against regardless of whether the ordinance also discriminates against other state residents. The out-of-state resident has no chance to remedy the law by participating in the local political process. C) Determination of validity must therefore proceed under the two-step process. 1) First, whether the ordinance burdens a “fundamental” privilege or immunity protected by the clause 2) Second, whether there is a good balancing reason for allowing it anyway. D) Although a Commerce Clause analysis can distinguish between cities acting as regulators (conflict with the dormant Commerce Clause) and cities acting as participants (no conflict), the privileges and immunities clause imposes a direct restraint on the local legislature without regard to whether they are acting as a participant. E) Clearly, the opportunity to seek employment with private employers, whether or not they work “for the city”, is a fundamental right protected by the clause. F) As to whether the law is nonetheless justified, it can only discriminate against out-of-city residents who are shown to “constitute a peculiar source of the evil at which the statute is aimed.” G) Here, there are no findings as to whether the out-of-city residents are an “evil” with regard to Camden‟s law, thus the case must be remanded for trial and specific findings to that extent. Dissent Reasoning: The privileges and immunities clause has long been interpreted as applying only to state laws that discriminate against out-of-state residents. The majority cites no historical basis for broadening its scope. Furthermore, the out-of-state resident‟s interests are adequately protected by the voters who are not residents of Camden, but still residents of New Jersey. Notes: In Supreme Ct. of New Hampshire v. Piper (1985), the court struck down a state law prohibiting non-state residents from being admitted to the state bar under the privileges and immunities clause. The court found that Piper‟s claim involved a “privilege” because the practice of law is “important to the national economy.” The court also found that there was no substantial justification for the difference in treatment between state residents and others. In Edwards v. California (1941); the court struck down the anti-Okie law which forbade bringing indigent persons 58 CONSTITUTIONAL LAW CASES into the state. The majority opinion relied entirely on the commerce clause, but a concurrence by Douglas stated that the privileges and immunities clause was a better rationale because the right of mobility of persons is more fundamental than that of products. Supreme Court of NH v. Piper (1985) page 312   Facts: Court held that a state rule limiting bar admission to state residents violated the Privileges and Immunities Clause. The challenge was brought by a woman who lived in Vermont, 400 yards from the New Hampshire border, took and passed the New Hampshire bar examination, but was denied admission the bar because she was a nonresident Holding [Powell]: A) Her claim involved a “privilege” under the Clause because, “[l]ike the occupations considered in our earlier cases, the practice of law is important to the national economy.” B) „The Clause does not preclude discrimination against nonresidents where: 1) There is a substantial reason for the difference in treatment; and 2) The discrimination practiced against nonresidents bears a substantial relationship to the State‟s objective. C) [In] deciding whether tars a close or substantial relationship to the objective, the Court has considered the availability of less restictive means.” MARKET PARTICIPANT     The market participant exception applies where the state operates a business or purchases or sells goods or services or otherwise acts in a proprietary capacity. When the state itself enters the market as a purchaser or seller of interstate commerce, nothing in the dormant commerce clause forbids it from restricting its own purchases or limiting its sales to its own citizens. The state is not using its sovereign powers to regulate; rather, it is using the powers that any private person has over what it owns. When the state places regulations on the use of materials sold or distributed by the state the courts must determine: A) Whether the regulation is one that results in the residents of the state bearing the cost for providing benefits to various persons within the state‟ jurisdiction or B) Whether the regulation is an unconstitutional shifting of the cost for local benefits to out of state persons or interests by improper restrictions on competition Reeves, Inc. v. Stake (1980) handout     Facts: South Dakota owned and operated a cement plant. The state decided to supply South Dakota customers before furnishing cement to others during a shortage. Procedural Posture: A Wyoming concrete distributor challenged the preference as violating the Dormant Commerce Clause. The Court rejected the contention, distinguishing between the states as market participants and regulators. Issue: Market regulator v. market participant having all the rights of a private party. Arguments: A) General rationale of the dormant commerce clause: State is acting as a private citizen, so treat it as one. B) Meant to prevent unfair regulation C) State sovereignty: when acting as a market participant, the State can protect its citizens however it wants. 59   CONSTITUTIONAL LAW CASES 1) Acting as a market participant, the State is exempt from the Commerce Clause under state sovereignty principle. 2) Acting as a State, it is not exempt from the Commerce Clause. 3) Cannot be a private citizen and a sovereign at the same time. D) Should be left to Congress. This case is too complicated. Majority [Blackmun]: A) South Dakota can sell its concrete to whomever it pleases. B) Dormant Commerce Clause restrictions affect the states only as regulators. C) The imitations on state prohibitory and embargo power apply to state restrictions on commerce in a free market, not commerce that owes its existence to the state itself. D) Here the commerce the state restricted would not exist if South Dakota had not entered the cement producing business. Dissent: A) This is nothing but simple economic protectionism. B) Test: Whether State is functioning in a traditional government function (Usery - overruled by Garcia) C) If performing a traditional government function, it is okay to be a market participant. D) However, cannot impede interstate commerce. E) This is all being done to increase South Dakota‟s market share and it gives the State an unfair advantage. South-Central Timber Development, Inc. v. Wunnicke (1984) page 301    Law: Alaska law that required those who bought Alaska timber to process it in state. Alaska could favor its own in selling the timber, but could not seek to regulate the later conduct of its customers. Plurality: A) Four members of the Court found that the Court found that the state requirement violated the commerce clause because the market-participant doctrine allows a State to impose burdens on commerce within the market in which it is a participant, but that doctrine allows it to go no further. B) The market, according to the plurality, had to be narrowly defined so that states would be allowed to subsidize the provisions of goods or benefits to their local residents but could not impose burdens on interstate commerce through contract restrictions that had a regulatory effect on multi-state or international markets. C) The plurality found that it was irrelevant that the state could have directly supported its timber processing industry in other ways by restricting sales to state residents; by operating its own processing business; or by direct subsidies to in-state processors. D) The plurality would not permit ownership of the commodity to allow what it called “downstream restrictions.” E) The state cannot limit market activity even in natural resource that it owns after it sells them Dissent [Rehnquist and O’Connor]: A) The state was acting as a market participant and, in terms of the economic realities of the situation, the state was “merely paying the buyer of the timber indirectly, by means of a reduced price, to hire Alaska residents to process the timber B) Because the state could have directly subsidized the local processing industry or directly paid the timber buyer to have the logs processed only if they were processed locally, Rehnquist and O‟Connor did not believe that the state had improperly shifted cost to outof-state persons or interests. C) The dissent was unconcerned about the post-sale restrictions. 60 CONSTITUTIONAL LAW CASES STANDING 1. Who is allowed to claim a law is unconstitutional? 2. What is the role of the Justices/federal judges?    Art. III: Case or controversy. Federal judges can only hear a “case or controversy.” History: Founding Fathers considered a Counsel of Revision that would be a court that reviewed laws not yet passed. It was rejected. Marbury: Two views of judicial review A) Private rights view: Courts have the power of judicial review based on the fact that a Π has a personal injury because the Constitution has been violated. The Court must decide this type of case because of its “case deciding function,” in which the Court will compare the law to the Constitution. Narrow interpretation of judicial review. [“Classical injury” depravation of life, liberty, or property.] B) Special function view: The Court will enforce limits on the branches of the government. The Court has a “special function” to review. A  can challenge government action even if the  is not “classically injured.” Broad interpretation of judicial review. The Court will not give advisory opinions. Thomas Jefferson asks for advice on a foreign relations matter during Washington‟s administration, and the Court said no. It has been the Court‟s policy to not give advisory opinions ever since then. Policy reasons for this stance: A) If the Court did give an advisory opinion, it would have less time to work on opinions that matter. B) If the opinion is ignored, it could weaken the Court‟s authority. C) Legal questions are better decided if there is a “real” case, not a hypothetical situation.  Standing: Two types A) Prudential: can be changed by Congress 1) No third-party claims 2) No generalized claims 3) Claim must be in the zone of interest protected by the statute. B) Constitutional: cannot be changed 1) Personal injury 2) Caused by Δ 3) That can be redressed by the Court   Allen v. Wright (1984) No    Procedural Posture: District court - Πs had no standing. Court of Appeals – standing. Supreme Court – reversed Πs argument: A) IRS is not implementing their own policy on nondiscrimination. B) There is a right to be able to send children to whatever school a parent wants to send them to. Πs say public funds cannot be used to subsidize segregated schools that subsidize “white flight” and continuing segregation. Majority Reasoning [O’Conner]: A) Standing is about separation of powers. Questions about standing must be answered by reference to Art. III‟s notion that federal courts may exercise powers only as a last resort and as a necessity. This is similar to the private rights view. 61 CONSTITUTIONAL LAW CASES B) First Question: Has a Π been injured? 1) Πs say: a) IRS is violating the law i) Government violated the law. Not sufficient, no standing. ii) Stigmatic injury. No, because no children were denied admission to a private school. 2) Right to receive an education in a desegregated school a) “One of the most serious injuries recognized in our legal system” b) Yes, but the injury is not caused by IRS but by a third party. Therefore, no standing. C) Distinguishing Norwood 1) Πs in Norwood had a desegregation order and therefore “had acquired the right to have the state „steer clear‟ of any perpetuation of the racially dual school system” (Presence of the desegregation order has nothing to do with causation) 2) Πs here have no injunctive rights against the IRS that are allegedly being harmed D) Distinguishing Coit 1) Summary affirmance has no precedential value 2) Parties must have standing before can issue summary affirmance 3) Suit in Coit limited to public schools of one state (this case aimed at schools nationwide) Dissent [Stevens]: A) Respondents have adequately alleged an injury in fact: that their children are unable to attend fully desegregated schools because large numbers of white children in the areas respondents reside attend private schools which do not admit minority children B) When a subsidy makes a given activity more or less expensive, injury can fairly be traced to purposes of standing analysis because of the resulting increase or decrease in the ability to engage in the activity 1) When something becomes more expensive, less of it will be purchased…. If racially discriminatory private schools lose the “cash grants” that flow from the operation of the statutes, the education they provide will become more expensive and hence less of their services will be purchased. C) “Separation of powers” principle does not create a jurisdictional obstacle to the consideration of the merits of their claim D) Marbury says the Court has judicial review. According to Segall, this is the correct view. E) The purpose of the standing inquiry is to measure the plamtiff‟s stake in the outcome, not whether a court has the authority to provide it with the outcome it seeks…(not a standing issue) Notes: A) IRS was going to tightened its policy but Congress blocked the IRS from doing this by not giving the IRS any money to do this. B) Politically, what is going on in this case? 1) Carter Administration said Πs were right; Congress did not act when should have 2) Regan Administration gave tax deductions to all private school then reversed policy to highlight standing issue in this case C) “Caused by the” - question on the merits (question of facts). Πs were not given a chance to prove this D) This case is indistinguishable from Norwood. In Norwood, Mississippi schools were not allowed to basically finance private schools that discriminate. Πs had a legal right so they   62 CONSTITUTIONAL LAW CASES had standing. They also did not have to prove causation because of the rule of law (i.e. State cannot finance private schools that discriminate) Frothingham v. Mellon (1923) No   Facts: Mrs. Frothingham challenged the constitutionality of a federal Maternity Act, which provided appropriations to the states if they would comply with its provisions. The intent of the Act was to reduce maternal and infant mortality. Plaintiff alleged that she was a taxpayer and in that capacity she was therefore injured because “the effect of the appropriations complained of will be to increase the burden of future taxation and thereby take her property without due process of law.” Holding: A) Π did not have standing B) A federal taxpayer has no standing as a taxpayer to challenge a Congressional enactment 1) A federal taxpayer‟s interest is too minute and shared by many 2) A federal taxpayer has no personal interest in the statute that he challenges Flast v. Cohen (1968) YES    Facts: Federal taxpayers challenged, under the establishment clause, the expenditure of federal funds under the Elementary and Secondary Education Act of 1965 to finance teaching of reading, arithmetic, and other subjects in, and purchase of textbooks for use in, religious schools. Majority []: A) The rule of Frothingham was based on judicial self-restraint. It was not required by the Constitution, for “we find no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs.” B) Flast-Nexus Test 1) Law challenged must be exercises of congressional power under the Taxing and Spending clause of Art. I, § 8, of the Constitution 2) Taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power C) Establishment clause was a specific limitation to Congress‟ taxing and spending power D) Distinguishing Frothingham 1) Mrs. Frothingham had only met the first nexus 2) The plaintiffs in Frothingham relied on the Tenth Amendment. Under the Flast analysis, the Tenth Amendment is not a specific limit on the taxing and spending powers Dissent [Harlan]: A) Agreed that there was no Article III barrier to plaintiffs‟ suit B) Court should wait until Congress authorized such public actions, as it has done in the past. Schlesinger v. Reservists Commitee to Stop the War (1974) No   Facts: The Reservists Committee and several of its members challenged the holding of Armed Force Reserve commissions by members of Congress on the theory that the commissions violated “the incompatibility clause.” The plaintiffs alleged that members of Congress who held such commissions might be subjected to undue influence by the executive branch and therefore might not faithfully execute their legislative duties Procedural Posture: The District Court found that the plaintiffs had standing to sue as citizens of the United States. The court acknowledged that the alleged injury was “hypothetical,” but concluded that it was precisely that potential injury, as distinct from any specific harm, that the incompatibility clause was designed to prevent. Court further found that the parties were genuinely adverse and ably 63  CONSTITUTIONAL LAW CASES represented. Finally, the District Court noted that if these plaintiffs could not raise this issue, “then as a practical matter no one can.” The Court of Appeals affirmed, but Supreme Court reversed. Majority: A) Generalized grievance - no standing. B) Standing “may not be predicated upon an interest … which is held in common by all members of the Public.” C) “The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.” D) Citizen standing is never allowed E) Taxpayer standing allowed by Flast US v. Richardson (1974) No   Facts: Challenge a statute for allegedly violating Article I, section 9, clause 7, of the Constitution, which requires that “a regular statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. Plaintiffs alleged that the challenged statute unconstitutionally allowed the Director of the CIA to avoid the requirement of public reporting of its public fund. Π’s argument: A) Govt violated the law and I‟m not happy B) The practice violated the Accounts Clause of the Constitution and undermined his ability to vote intelligently (voter claim different than the previous causes)  Majority: A) Taxpayer did not meet the Flast test and had no standing B) Voter claim was a generalized grievance shared by everyone  Dissent [Stewart]: [When] a party is seeking a judicial determination that a defendant owes him an affirmative duty, it seems clear to me that he has standing to litigate the issue of the existence vel non of this duty once he shows that the defendant has declined to honor his claim  Dissent [Brennan]: “Richardson plainly alleged injury in fact [in] respect of his right as a citizen to know how Congress was spending the public fisc [and] as a voter to receive information to aid his decision how and for whom to vote. “These claims may ultimately fail on the merits, but Richardson has „standing‟ to assert them.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. (1982) No    Facts: Under a federal statute authorizing the Secretary of Health, Education and Welfare to transfer surplus governmental property to educational institutions, a former military hospital was conveyed to a church-related college. Taxpayers challenged the conveyance as violating the Establishment Clause Procedural Posture: The Court of Appeals distinguished this case from Reservists and Richardson [becausel the Establishment Clause created in each citizen a “personal constitutional right” to a government that does not establish religion. (citizen standing) Majority [Rehnquist]: A) Failed 1st prong of Flast 1) Source of complaint was not a congressional act, but an executive one 2) The action they challenged was not an exercise of power under the Taxing and Spending Clause. 3) Instead, the authorizing legislation was an exercise of Congress‟s power to dispose of federal property under the Property Clause of Article IV. B) All constitutional values are the same, so Establishment Clause is not special 64   CONSTITUTIONAL LAW CASES 1) Each establishes a norm of conduct that the federal government is bound to honor no greater or lesser extent than any other inscribed in the Constitution Dissent [Brennan]: A) Establishment Clause is special 1) “[One] of the primary purposes of the Establishment Clause was to prevent the use of tax monies for religious purposes.” 2) “The taxpayer was the direct and intended beneficiary of the prohibition on financial aid to religion.” 3) Does not matter what branch is violating, 1st Amendment binds the government as a whole Notes: Both Flast and Valley Forge are good law today Lujan v. Defenders of Wildlife (1992) No      Facts: Plaintiffs objected to the Secretary of Interior‟s interpretation of the Endangered Species Act. The interpretation applied the Act only to actions that federal agencies take within the United States or on the high sea. The plaintiffs wanted the law to apply to actions that federal agencies fund in foreign nations. Congress allowed citizen suits to enjoin anyone who is alleged to be in violation of the ESA. Π’s Argument: A) Ecosystem Theory 1) Any person who uses any part of a “contiguous ecosystem” adversely affected by a funded activity has standing even if the activity is located a great distance away 2) Court‟s Response: This approach is inconsistent with our opinion in National Wildlife Federation, which held that a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly “in the vicinity” of it. B) Animal Nexus Theory 1) Anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing C) Vocational Theory 1) Anyone with a professional interest in such animals can sue has standing Majority Holding [Scalia]: A) No standing. No [abstract] generalized grievances is a constitutional bar B) Congress may NOT convert the public interest in proper administration of the laws into an individual right such that all citizens may have standing to sue. C) If Πs can show that they use something, they will have standing. Must be more than an intellectual interest. D) This is a separation of power problem: 1) Hurts executive branch because ability to implement policy is impaired if citizens always have ability to sue. 2) Congress was trying to check executive power. BUT it gave the executive branch the broad discretion to implement the ESA E) Uses Marbury to support the argument that “ the province of the Court is to decide the rights of individuals.” Majority felt this case was not about rights of individuals, but about the rights of Congress, via the law it enacted, to give citizens rights to enforce the law. It cannot do that. Concurrence [Kennedy]: Non-instrumental right was given. No reason given for being able to sue. If Congress was more specific in the statute as to the injury, then may have standing Dissent [Blackmun]: 65  CONSTITUTIONAL LAW CASES A) Congress, via the ESA, created a right for every citizen to sue for violation of the law and to claim a remedy for their injury. Thus, it is appropriate to use the Court to decide the rights of these individuals. Majority felt that there was no injury. Notes: A) If Π is challenging something the government has done to her - standing B) If Π is challenging something government has done to someone else – harder to find standing Federal Election Commission v. Akins (1998) YES     Facts: Group of voters sued to compel the Federal Election Commission (FEC) to require the American Israel Public Affairs Committee (AIPAC) to disclose information concerning membership, contributions, and expenditures. The voters claimed the information would help them assess candidates. Majority [Breyer] (6-3): A) Congress used broad language in the Federal Election Campaign Act (FECA) that reflected its intent “to cast the standing net broadly” and to include voters within those whose interests were protected. B) FECA satisfied any prudential standing requirements C) Moreover, the Court held the Flast test inapplicable and that the voters met the three constitutional standing requirements: injury in fact, causation, and redressability. D) Akins did not involve the sort of “generalized grievance” the Court had refused to entertain on other occasions 1) Courts had invoked the “generalized grievance” language to dismiss cases for lack of standing when the harm asserted was both “widely shared” and “of an abstract and indefinite nature.” 2) Here, however, the fact that many shared the alleged informational injury did not preclude Congress from allowing voter suits because the injury was “sufficiently concrete and specific. E) Distinguishing Richardson 1) The Flast logical nexus test was applied in Richardson (where it was not met) but not in Akins 2) Richardson focused on taxpayer, not voter, standing 3) Richardson, but not Akins, involved a claim under the Accounts Clause that the Court implied might not be subject to enforcement by a citizen; Akins raised a claim regarding information useful in voting for which Congress had conferred standing. Dissent [Scalia, O’Conner and Thomas]: A) Not distinguishable from Richarson – generalized grievance B) Voters‟ harm, if any, was not “particularized” and not “undifferentiated” and that the lawsuit unconstitutionally gave the judiciary the Chief Executive‟s function to assure the proper execution of the law Notes: A) Akins claimed the same injury as Richardson – Cannot exercise to vote informatively B) Richardson & Lujan held that Congress cannot give standing to voters with generalized grievances C) Akins did exact opposite – Congress authorized Akin‟s generalized grievance D) Court should have said right to vote is not a generalized grievance (overruling Richardson) or overruled Lujan E) Rehnquist and Stevens in the majority in both Akins and Lujan F) O‟Conner in dissent in both Lujan and Akins 66 CONSTITUTIONAL LAW CASES G) Reconciling Lujan and Akins 1) Lujan a) Citizen standing b) Congress cannot give standing in abstract generalized grievances 2) Akins a) Voter standing b) Congress can give standing for concrete and specific grievances 3) Richardson – no voter standing RIPENESS      Ripeness is another aspect of the “Case” or “Controversy” requirement. Briefly stated, it bars the courts from considering constitutional issues prematurely. A constitutional question is ripe for judicial review only when the govemmental act being challenged has direct adverse effect on the individual making the challenge. Until then, there is no real “Case” or “Controversy,” because the challenge is one to the hypothetical operation of a governmental act that has not yet impacted private rights and obligations. A case is not considered “ripe” unless the Π suffers a current injury. Sometimes considered “standing in a time frame General notes on ripeness: A) Has a connection with standing, but they are two different issues. 1) Standing holds that a party may not assert the rights of the other persons. 2) Ripeness requires that a party must be motivated by a danger that is real and immediate, rather than distant and speculative. B) Standing and ripeness concepts both derive from Art. III. Poe v. Ullman       Facts: Case challenged a law which had been on the books in Connecticut since 1879, yet had only been enforced once - in 1940. That law prohibited the use of contraceptive devices and the giving of medical advice in the use of such devices. Suits were brought by two married couples and the doctors. Procedural Posture: Action for declaratory relief, pursuant to the Federal Declaratory Judgment Act, passed in 1934, which allows citizens to have a court decide if a law is constitutional before it is broken. The Act was limited to “cases of actual controversy.” Nothing in the Act was construed to enlarge jurisdiction under Art. III. Law: Issue: Majority [Frankfurter]: A) This law has been enforced only once, even in light of common and open sales of contraceptive devices in CT drug stores B) Deeply embedded traditional ways of carrying out state policy are often tougher and truer law than the dead words of the written text. Therefore, the fact that it has only been enforced once in 80 years means that the prospect of it being enforced again, and causing harm to the Πs, is pretty low. C) No harm to Π = no case or controversy = no ripeness. D) Court should only entertain constitutional questions in cases of the strictest necessity. E) Since there has only been little or no enforcement of the law, there is no immediacy. Concurrence (Brennan): A) Case presents no real and substantial controversy 67   CONSTITUTIONAL LAW CASES B) If the state makes a definite and concrete threat to enforce the law, then the case could be heard Dissent [Douglas]: Majority‟s decision makes couples either flagrantly or surreptitiously violate the law. This is not a choice “worthy of a civilized society.” Dissent [Harlan]: A) Concept of ripeness has varied applications. B) This case not like Mitchell, where Πs tried to claim that a mere “desire to act” would be contrary to the law. Court there said because Πs could say with certainty what actions would be prohibited by the law, the issue was not ripe. Πs here have clearly stated what it is they plan to do: use or give advice on contraceptives. C) The state is not estopped from prosecuting persons under this law if it remains on the books, no matter how archaic it might be. For the Majority to say that Πs would not be prosecuted is mere conjecture on their part. Aetna Life Insurance v. Haworth (1937)     Facts: Aetna, Π, had denied a claim because they felt that would eventually file suit over the disputed claim, shortly after Π filed a suit for a declaration of non-liability, under the Declaratory Judgment Act. Π claimed that if non-liability not asserted now, their ability to do so would be impaired by disappearance, illness, or death of relevant witnesses. Procedural Posture: Lower courts held the case did not present a “justiciable controversy.” Holding [Hughes] unanimous: A) Court reversed holding that “it is the NATURE of the controversy, not the method of its presentation or the particular party who presents it, that is determinative.” B) A controversy must be “definite and concrete, touching the legal relations of the parties having adverse legal interests.” Notes: Question: What wasn‟t that rationale used in Poe? Under the Haworth definition of controversy, one existed in Poe. Most probable answer: Court did not want to touch the contraceptive issue MOOTNESS   Personal injury/interest claimed at the commencement of litigation must persist throughout the litigation. Two exceptions A) Voluntary cessation of illegal activity: not considered moot unless there is no reasonable expectation that the wrong will be repeated. B) Capable of repetition yet evading review: specific case between a Π and a  has been mooted by the passage of time, but the same issue is likely to arise again between the same parties. C) Example: Roe v. Wade: issue of terminating pregnancy could not be resolved by the courts before the pregnancy had gone full term. Therefore, the case was moot when the pregnancy ended, BUT the issue would likely arise again when Π became pregnant again. POLITICAL QUESTION  Factors to apply to political questions: A) Textual commitment of the issue to another branch of the government? B) Lack of judicially discoverable standards for the Court to apply? C) Policy decision of non-judicial discretion? D) Need to adhere to a political decision? 68      CONSTITUTIONAL LAW CASES E) Show a lack of respect for coordinate branches of the government? F) Risk of embarrassment from multifarious pronouncements? Political Question Doctrine A) Court: certain allocations of government conduct that shall not be ruled on, EVER, even if all other jurisdictional elements are satisfied. “We are not going to hear the case, today.” Rationales: Court must have the discretion to turn down cases, to preserve its integrity. It lacks the institutional competence to decide. Certain areas never considered: military, foreign affairs. There is no textual commitment in the Constitution. Political Question doctrine is a sensible restraint on judicial activism, or judicial review?? Marbury A) There are cases where the President has discretion. Court will not hear those cases. B) The essence of civil liberty lies in the ability to seek redress. Luther v. Borden (1849) page 33   Facts: Martin Luther sued Luther M. Borden and others, for breaking and entering plaintiffs house. The defendants justified their actions on the grounds that they were agents of the state of Rhode Island and pursuant to military orders, broke into the house to search for and arrest plaintiff, who was engaging in insurrection against that state. The plaintiff retorted that this justification was invalid, because “before the acts complained of were committed, that government had been displaced and annulled by the people of Rhode Island, and that the plaintiff was engaged in supporting the lawful authority of the State, and the defendants themselves were in arms against it.” Holding (Taney): A) Court: not going to hear the case. B) No standards for interpreting what “republican” means. C) Congress gets to decide what is “republican.” D) Were we to decide, everything the government did would be called into question, and this would result in chaos. E) Art. III § 4 (guarantees a republican form of government) is never judicially enforceable Baker v. Carr (1962) page 31   Challenge: Apportionment of the Tennessee Assembly violated the Equal Protection Clause. Therefore, not a political question. Holding [Warren Court’s most important case]: A) Court will hear cases concerning a constitutional challenge to a legislative apportionment. Court did not decide the merits. B) Political question doctrine does not apply between people and the state; only applies with the federal government. C) Factors in determining whether a question falls into the political question doctrine: 1) Textual commitment to another branch 2) Lack of judicially discoverable standards 3) Policy determination of a kind of non-judicial discretion 4) Can‟t decide case without showing lack of respect for another branch 5) Unusual need to adhere to a political decision already made 6) Potential of embarrassment from multi-faction pronouncements Powell v. McCormack (1969) page 37 69 CONSTITUTIONAL LAW CASES   Political Question Doctrine effectively dies Notes: A) Political Question Doctrine disguised as standing in 1970‟ B) Court is responsible for determining the scope of Congress‟ power to judge its members‟ qualifications set forth in Art. I § 2 (age, residency, citizenship) C) Constitutional Amendment cases will not be heard by the Court Nixon v. US (1993) page 39  Facts: Judge Walter Nixon, having been impeached by the House of Representatives, was convicted and removed from office by the Senate. He challenged Senate Rule XI under which he was tried because it allowed for a committee of the Senate, not the whole body, to hear witnesses.  Majority [Rehnquist]: A) Nixon‟s challenge raised a nonjusticiable political question B) Court: Will not review the procedures that Senate uses to try impeachments. Used the first two Baker standards 1) What does “try” mean? Not judicially definable. 2) Sole = exclusive C) The Constitution committed that issue to the Senate by providing it “shall have the sole Power to try all Impeachments.” D) The use of “sole” was intended to preclude judicial review. E) Perhaps, but a more convincing explanation of “sole” sees it as emphasizing the separate roles of House and Senate. F) The Court also concluded that “try” was ambiguous and accordingly gave the Court no judicially manageable standards. G) Justification of results: 1) First, because judges might later preside over criminal proceedings judicial review of impeachment might create a real or perceived conflict of interest. 2) Second, impeachment is an important check on judicial conduct that would be avoided if the Court could review and control the handling of that check. 3) Finally, judicial review would interfere with the need to resolve with finality the right of an individual to hold office.  Concurrence [White/Blackmun] A) Π still loses BUT the reason is that the Constitution was violated. B) “Sole” is not exclusive. The house impeaches and the Senate tries the case. Therefore, the Senate cannot have “sole” power.  Concurrence [Souter] : ?? - strange opinion. Judicial review would be appropriate if the Senate were to act so as to seriously threaten the integrity of the results, such as by convicting based on a coin-toss. 70