CONSTITUTIONAL LAW CASES 1 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 CL CLAUSE AUSE ................................ ................................................................ ................................ ....................................................... ....................... 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 CONSTITUTIONAL LAW CASES 2 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 CLA CLAUSE USE ................................ ................................................................ ................................ ...................................... ...... 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 CONSTITUTIONAL LAW CASES 3 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 PRIVILEGE PRIVILEGES AND IMMUNITY S ................................ ........................................................... ........................... 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 CONSTITUTIONAL LAW CASES 4 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 CONSTITUTIONAL LAW CASES 5 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, CONSTITUTIONAL LAW CASES 6 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 nonjustiicabl The main claim is that the political system in TN was not comporting to the Guarantee Clause i. Not about equal treatment CONSTITUTIONAL LAW CASES 7 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]: CONSTITUTIONAL LAW CASES 8 A) 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 B) The Supremacy Clause of Article VI plainly indicates that the framers realized that federal issues might arise in state cases C) 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 D) The national government, whose parts are subject to a single Constitution, must include an entity to give a final interpretation to its laws E) 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 CONSTITUTIONAL LAW CASES 9 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 CONSTITUTIONAL LAW CASES 10 • 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 CONSTITUTIONAL LAW CASES 11 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 treatymakkin 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 CONSTITUTIONAL LAW CASES 12 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. United States v. Curtiss-Wright Export Corp. (1936) page 353 • 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. INS v. Chadha (1983) page 353 • Facts: A section of the Immigration and Nationality Act provides that the Attorney General could CONSTITUTIONAL LAW CASES 13 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 CONSTITUTIONAL LAW CASES 14 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 CONSTITUTIONAL LAW CASES 15 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 CONSTITUTIONAL LAW CASES 16 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" CONSTITUTIONAL LAW CASES 17 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. CONSTITUTIONAL LAW CASES 18 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!!!!! CONSTITUTIONAL LAW CASES 19 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 CONSTITUTIONAL LAW CASES 20 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: CONSTITUTIONAL LAW CASES 21 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. CONSTITUTIONAL LAW CASES 22 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? CONSTITUTIONAL LAW CASES 23 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. CONSTITUTIONAL LAW CASES 24 • 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 CONSTITUTIONAL LAW CASES 25 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.” CONSTITUTIONAL LAW CASES 26 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): CONSTITUTIONAL LAW CASES 27 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. CONSTITUTIONAL LAW CASES 28 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. • ’s Argument: CONSTITUTIONAL LAW CASES 29 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 CONSTITUTIONAL LAW CASES 30 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. CONSTITUTIONAL LAW CASES 31 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 CONSTITUTIONAL LAW CASES 32 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 antidiscrimminatio 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 CONSTITUTIONAL LAW CASES 33 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 CONSTITUTIONAL LAW CASES 34 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 noncommeercia 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 CONSTITUTIONAL LAW CASES 35 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. CONSTITUTIONAL LAW CASES 36 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” National League v. Usery (1976) page 173 • 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). CONSTITUTIONAL LAW CASES 37 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 intere