Constitutional Law Part I Outline

CONSTITUTIONAL LAW I – OUTLINE I. THE JUDICIAL FUNCTION Historical Background a. Articles of Confederation i. Loose National Gov‟t 1. Nat‟l gov‟t assumed powers that Britain had over the colonies. There was only a congress with no legislature or judiciary. There was only one house. ii. Specific Powers 1. To wage War; To Print Money; To Deal with Indians iii. Lacked Powers 1. Could not tax; Could not regulate trade among the states, so the States discriminated against each other. Nat‟l gov‟t could not enter into treaties with foreign nations, no executive; no way to enforce/ensure states complied with treaty a. Strong commitment to state sovereignty and retention of powers not expressly granted to Congress b. Changes were impossible b/c required a unanimous vote iv. Constitutional Convention, in Philadelphia in 1787, was supposed to be to propose Amendments to Articles; instead, framers took opportunity to create an entirely new governing document that made ratification possible by ¾ (9) of the 13 states; (Articles required unanimous vote to change Articles) b. Constitutional framework i. New Powers 1. Regulate commerce among the several states 2. Establish roads, promote science and arts, 3. Constitute tribunals ii. Bill of Rights was a list of enumerated rights that guaranteed individual freedoms that were unalterable; iii. New Limits on State Powers 1. Cannot print money or enter into foreign treaties 2. Removed some sovereignty from states iv. Constitutional Amendments/Change 1. Change can be accomplished in two ways a. Through a vote by 2/3 of the House and Senate and ratification by ¾ of the states b. ¾ of the States can petition for constitutional convention and law must be passed by 2/3 of House and Senate 2. Constitution is a vague legal structure, not a code and does not have all possibilities enumerated a. Constitution was meant to be malleable for society‟s different needs but at the same time it has elements of immutability; 3. Constitutional interpretation varies depending on the case and the Supreme Court has employed varying techniques. c. System of Checks & balances 1. Overlap is necessary 2. Use power and ambition to control power and ambition, as in Homer‟s Odyssey, where Ulysses ties himself to the mast of the ship and has his sailors cover their ears so that they may not be seduced by the Sirens singing. 3. Enforcement of a law requires that at least two branches of gov‟t act in conjunction; make law and enforce it; try case and convict criminal; 4. Three Branches of Government a. Art. I – Legislative i. Senate – six year terms and elected by state legislators until 17th Amendment, where senators are now elected by popular vote; ii. House – two year terms and elected by popular vote b. Art. II – Executive i. president – commander and chief of armed forces; elected by electoral college c. Art III – Judiciary i. independent and appointed by Executive branch ii. salary protections iii. free from political influences -1- CONSTITUTIONAL LAW I – OUTLINE d. Federalism – balance of powers between Fed‟l and State gov‟t Fed‟l gov‟t i. Created by specific grant of powers enumerated in Constitution; Implication is that congress can act only if here is a clear authority with all other governance left to the states ii. Separation of powers rationale 1. separation of powers will prevent tyranny and majority rule over minorities iii. republican representation will allow for less control by majority factions because of a larger constituency base who will lack means of communication to organize themselves 1. Wicked Factions: a. factions of the poor who want equal distribution of property; cancellation of debts, paper money rage; iv. a less homogenous area will create more diversity and make it harder for one faction to control b/c representative must keep in mind all his constituents 1. relies on human self-interest for power that representatives will do everything to remain in power; v. separation of powers is necessary for keeping out abuses/excesses of popular government 1. men are not angels; and tyranny will spring up if law does not act to prevent it 2. hard to be tyrannical with much of the power disbursed into different agencies/bodies/branches 3. pitting ambition against ambition a. Madison‟s idea is to use ambition / self-interest TO HARNESS the quest for power to keep each of the branches in check b. Harder to form factions where constituency is large vi. one branch will not allow the other branch to encroach on it; overlapping system of checks and balances creates a sort of competition for power 1. bureaucratic separation of powers will lead to gridlock, but that is better than the alternative: a highly efficient, authoritarian power/tyrannical government; vii. Supremacy Clause: “Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made or which shall be made under the Authority of the United States, shall be the Supreme Law of the Land.” 1. Preemption: state and local laws are deemed preempted if they conflict with federal law; viii. Commerce Clause EXPLICITLY Regulates interstate commerce ix. Dormant Commerce Clause IMPLICITLY prohibits states from imposing burdens on each other; State gov‟t i. Reserves all sovereign powers that it had before the Constitution except those specifically given to the federal government ii. 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people; -2- CONSTITUTIONAL LAW I – OUTLINE II. JUDICIAL REVIEW Nature & Source’s Of Supreme Court’s Authority Marbury v. Madison, 5 US (1 Cranch) 137 (1803) Midnight judges appointed by President John Adams on the last day of his presidency under the newly created federal judgeships created by Congress that same day. Secretary of State John Marshall sealed the commissions. All commissions were delivered except for a few judges, including Marbuy. Jefferson came into office the next day and declared the appointments void. Marshall was interim secretary of state but for while until Madison replaced him and Madison refused to issue commissions. Marbury sued for a writ of mandamus compelling the Secretary of State to Act ISSUES: Ct. reviewed the three key issues: (1) whether Marbury has a right to the commission, and (2) if so, whether that right had been violated and whether there was a remedy for that violation and (3) whether w writ of mandamus from the Supreme Court was the appropriate remedy?    Ct. finds that the commission vests when it is signed and sealed (Signed by president and sealed by secretary of state) o Ct. recognizes that political decisions/judgment not for judicial review. See Political Question Doctrine. Ct. finds that refusal to deliver the commission, which becomes a vested legal right, is a violation of the right However, Ct. does NOT find that it can issue a writ of mandamus. RULES: When a duty is created by law (Secretary of state’s duty to deliver commission) and an individual right is dependent on that duty, the Π (Marbury) has a remedy in the court to ensure that that duty is carried out. Supreme court shall also have…writs of mandamus to any appointed courts or persons appointed or holding office under the authority of the United States. Judiciary Act § 13 (1789) IT IS EMPHATICALLY THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS. Those who apply the rule (or the law) to particular cases, must of necessity expound or interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case comfortably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply (Supreme Law of the Land) ANY LAWWHICH IS REPUGNANT TO THE CONSTITUTION IS VOID. Ct. will resolve rulings in favor of the Constitution which is the supreme law of the land. HOLDING Supreme Court can NOT issue a writ of mandamus b/c the Supreme Court has original jurisdiction ONLY in those cases enumerated in the Constitution (Art. III, § 2, Cl. 2), and has appellate jurisdiction in ALL OTHER cases. Congress has attempted to confer original jurisdiction through the 1789 Judiciary Act which is unconstitutional because it allows for original jurisdiction beyond the specific situations enumerated in the Constitution. Marshall identifies conflict btw the Judiciary Act & the Constitution. A change must be made through the Amendment process; it cannot be done through simple legislation. Otherwise, if it could be changed so easily, the Constitution would be form without substance. Its strength/power comes from its immutability. Constitution is outside the realm of ordinary politics. .  J. Marshall did NOT rule in favor of his friend Marbury for fear that Jefferson and Madison would ignore his ruling and weaken the legitimacy of the Court‟s rulings. Nonetheless, Marshall gains for the Supreme Court a more important power to strike down laws that are conflicting with the Constitution. Ultimately, Marbury granted the court judicial review of Congressional/Presidential actions NOTE: POLITICAL QUESTION DOCTRINE: Ct. recognizes that it cannot review acts that are purely political; for instance appointments of a political nature would NOT be within the realm of the court. -3- CONSTITUTIONAL LAW I – OUTLINE III. AUTHORITATIVENESS OF SUPREME COURT’S AUTHORITY Professor Healy‟s & Chemerinsky‟s Notes a. Three Approaches to the Supreme Court as authoritative interpreter of Constitution i. All branches have a duty to interpret the Constitution, with each branch giving deference to the other branch‟s interpretation. How much deference should be given to each branches’ interpretation when overlap occurs, is unknown. ii. Certain parts of the Constitution should be interpreted by difference branches. 1. Supreme Court is authoritative interpreter of questions of law, esp. questions that conflict with the Constitution; thus, its decision are binding on other branches with respect to these types of cases; may be limited to interpreting Art. III only; 2. the Political Question Doctrine places political questions outside of the scope of the Supreme Court‟s authority and should be resolved by the other branches iii. The Supreme Court‟s the authoritative interpreter of the Constitution and its decisions are binding on all other branches and courts, unless a constitutional amendment is passed by the legislature. Otherwise, Supreme Ct. interpretation is binding on all. 1. Marbury v. Madison: “it is emphatically the province and duty of the judicial department to say what the law is.” a. Possible Narrow & Broad readings of Marbury do not dispositively resolve the issue of supreme interpreter (i.e., judicial supremacy as to final decision), but give two basic understandings of the Court‟s power to interpret the laws i. the NARROW reading does not give the court any special role as supreme arbiter, and limits the court‟s ability to decide constitutional issues to those cases where it is absolutely necessary to do so; Court must defer to the other branches‟ interpretations where there is no constitutional conflict; decisions by the Supreme Court may still be disregarded; 1. A NARROW reading of Marbury, would NOT give the court exclusive, sole power to interpret the constitution 2. the Court could only decide Constitutional issues if there was no other alternative to deciding the case; 3. Supreme Court would have to defer to Congressional act 4. other branches would be able to determine constitutionality 5. Ct.‟s decision would NOT be binding on other branches ii. the BROAD reading of Marbury gives the court the role of supreme arbiter of the Constitution; “it is emphatically...what the law is”; Ct. does not have to defer to other branches‟ judgment; as supreme, sole interpreter its decisions are binding on all branches and courts. 1. the court would be the SOLE arbiter, interpreter of the Constitution; as such, it sdecisions would be binding and the Court would not need to defer to executive/legislative judgment 2. Ct.‟s rulings would be binding on other branches (Legislative & Executive, as in Marbury) 3. Ct.‟s rulings have judicial supremacy and are BINDING on all branches and levels of gov‟t Brown v. Board of Education, Ct. holds that segregation is unconstitutional and public schools must be desegregated. Topeka, KS board of ed. was party to this case and therefore is bound by Board v. Brown. In Arkansas, the governor argued that AK was not a party to the case. However, the Sup. Ct. later held that A CONSTITUTIONAL DECISION BINDS ALL DEPT’S /BRANCHES OF GOV’T. Ct. relied on a BROAD reading of Marbury to arrive at this holding. iii. Ct. has NO MEANS OF ENFORCING THEIR DECISIONS 1. Everyone is acting in good faith to uphold and obey and give deference to Ct.‟s decisions and interpretations 2. Ct. is careful to preserve its legitimacy, b/c that is the source of its power! iv. No LEGITIMATE holdings, than no real shot at getting political pressure to enforce compliance with order/decision 1. Ct. protects its legitimacy by having well-reasoned/argued doctrines or decisions that are based on various techniques of Constitutional interpretations 2. Ct. is more adept to make constitutional interpretations b/c of the salary protections, freedom from election process, ability to create/build up doctrine -4- CONSTITUTIONAL LAW I – OUTLINE IV. SUPREME COURT REVIEW OF STATE COURT JUDGMENTS & PROCEEDINGS Martin v. Hunter’s Lessee, 1 Wheat. (14 US) 304 (1818) Review of State Supreme Courts Lord Fairfax is loyal to British war during war. VA seizes the land from Fairfax. Martin gets land by Fairfax‟s will. Hunter claims he got land by VA seizure. Martin claims that peace treaty in 1883 guarantees that British subjects would retain land during the revolution. Lawsuit in VA State ct. over this issue, and VA rules in favor of Hunter. Supreme Ct. reverses and rules in favor of Martin. VA won‟t comply with order b/c Sup. Ct. has no authority to review state decisions. Supreme Ct. says that they do have jurisdiction to review a decision from the VA State Supreme Court under § 25 of Judiciary Act. ISSUES: Whether the VA state court can rule against fed‟l international peace treaty granting property rights to a person different than the person claiming property rights under state law? If a state decision affirms a rule of law that doubts the validity of a federal authority or a decision by the state court is against validity of federal authority and favors the state’s decisions then it is reviewable by the Supreme Court. Judiciary Act § 25 (1789). Federal law must be interpreted uniformly by all state courts (otherwise there will be at least 50 interpretations of single federal law). HOLDING Supreme Ct. finds State sovereignty comes second to need for uniformity in the interpretation of a federal law especially an international peace treaty; otherwise, there would be multiple interpretations by the states of a single treaty with foreign sovereign. The need for uniformity in application and interpretation of federal law as applied by state courts is more important and greater than state sovereignty or challenges as to constitutionality of the Judiciary Act which allows Supreme Court to review state supreme court decisions when state courts rule against federal law. Further, the Supreme Ct. reasons that State judges are NOT the best interpreters of fed‟l law b/c they are usu. elected and more concerned with state law; not as impartial as fed‟l judges; lack fed‟l judge‟s independence. Finally, the Supreme Court also indicates that if it didn‟t review state court judgments and Congress had not created lower federal courts, the Supreme Court would have no cases to review at all. Ct. draws inference that Constitution presumed review of state court judgments. NOTE: Professor Healy identifies a parody b/c fed‟l judges are chosen from same location as state judges and both take an oath to uphold constitution. RULES: Cohen v. Virginia, 19 US (6 Wheat) 264 (1821) § 25 of Jud. Act originally gave the Supreme Ct. jurisdiction to hear only those cases specified in that law; HOWEVER, the Judiciary Act was amended in 1914, and granted the Supreme Ct. jurisdiction to review any decision that involves fed‟l law. RULES:   Criminal Δs can seek Sup. Ct. can review of state judgments in criminal cases when they claim that their conviction violated the constitution. Cohen extends Martin to criminal, not just civil cases. Δ in state criminal case can petition for a writ of error before Supreme Ct. HOWEVER, petitions are rarely granted b/c the Supreme Court can choose which cases it wants to hear; -5- CONSTITUTIONAL LAW I – OUTLINE V. POLITICAL QUESTION DOCTRINE Political Question is a misnomer. Doctrine refers to those cases that the Ct. thinks should be resolved by the politically accountable branches of gov’t. When case is deemed to represent a political question, the court lacks jurisdiction to hear the case. Jurisdiction based on political question would be referred to as justiciability. Ct. has never applied a fix standard and varies depending on importance of case and whether court decides to hear it or not. Marbury v. Madison, recognized that the court cannot judicially review all legislative/executive acts and that some actions are outside of the court‟s realm of review The executive has autonomy to act within his own sphere of action, namely, making policy decisions or appointing members to office. SIX(6) “POLITICAL QUESTION” FACTORS: Constitutional Factors 1. Textually demonstrable Const‟l commitment of the issue to a coordinate political department a. If the Const. makes clear that any issue that arises would be resolved by a certain branch of gov‟t 2. Lack of judicially discoverable and manageable standards for resolving it Prudential Factors 3. The impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion 4. Impossibility of a court‟s undertaking independent resolution without expressing lack of the respect due coordinate branches of gov‟t 5. An unusual need for unquestioning adherence to a political decision already made 6. The potentiality of embarrassment from multifarious pronouncements by various departments of one question Baker v. Carr, 369 US 186 (1962) “Political Thicket” Baker alleged that because of population changes the 1901 state apportionment Act was obsolete and unconstitutional. The TN state legislature refused to re-apportion voting districts to give a more fair representation; the current (1901) apportionment scheme gave more voting power to rural areas (white people) with smaller populations than populated urban areas (black people). Baker brought an action seeking declaration of unconstitutionality and injunctive relief. Catch 22: People could NOT fix the problem through the political process b/c the voting scheme was setup so that the urban, black population was underrepresented. ISSUES: Whether republican form of government is found in the current apportioning scheme of TN? Whether a political question exists and whether court has justiciability under equal protection clause to render a decision? Whether a suit involving a political right necessarily become a political question? Guaranty Clause: U.S. shall guarantee to every state in the Union a republican form of government. Art IV, § 4. Colegrove v. Green, 328 US 549 (1946) CT. HELD THAT IT IS BEYOND THEIR COMPETENCE TO DECIDE THE APPORTIONING PRACTICES OF STATE LEGISLATURE. CT. SHOULD NOT ENTER INTO THE POLITICAL THICKET. The Constitution has conferred upon Congress exclusive authority to secure fair representation by the states in popular [House of Representatives] [Art. I, § 4]. Congress has a role in determining whether the lawfully elected representatives of that state are admitted and in admitting them, Congress must determine whether the state has a Republican form of government. Luther v. Borden, 7 How. 1 [1849] ANY claim coming out of the Guaranty Clause is not justiciable b/c Colegrove held that Congress/legislative branch has duty [under Art. I, § 4] to ensure valid representation by the states and Guaranty clause [Art. IV, § 4] ensures that US will ensure all states republican form of gov’t RULES: -6- CONSTITUTIONAL LAW I – OUTLINE HOLDING Ct. finds that this case should be decided under the 14 th Amendment, Equal Protection Clause, which is NOT a nonjusticiable political question. Ct. holds that several political question factors are NOT met; therefore, the Court has justiciability to hear this claim under EPC. Ct. takes this approach because Ct. believes that it can rectify the discriminatory TN apportioning practices which CANNOT be corrected through the normal voting practices. \ (1) An EPC claim is NOT part of the Constitution, but an amendment so there is no textually demonstrable commitment. (2) The Supreme Ct. has tools and resources to promote its discoverable and manageable standards. It can make a legal determination in this case b/c it is in their role as judiciary, not like the other branches. Ct. has already developed legal standards that can be applied to an EPC claim. (Different from a situation where in order to decide the case, the Ct. simply has to choose which policies it prefers). HOWEVER, there are NO legal guidelines/standards for the court to apply in answering the question under the Guaranty Clause because it has NOT decided any cases under Guaranty clause (all non-justiciable claims). The court has no manageable standards, but under EPC cases the Ct. is following its precedent, doctrine and case law. (3) Thus, it is NOT making an initial policy determination. The court has already heard cases under the EPC. (4) The Supreme Court is not disrespecting coordinate branches (executive/legislative) by declaring the case justiciable and reviewing the constitutionality of the decision. Here, TN is NOT a fed‟l gov‟t branch. No respect due to state gov‟t on questions of federal law and constitutionality. Political Question Doctrine is concerned with the separation of powers on the fed’l level not the state gov’t. There is NO lack of respect by Supreme Court to Congress, b/c Congress hasn‟t made any determination with respect to the EPC. However, Congress has made an implicit recognition of Republican form of gov‟t by recognizing TN representatives in House. DISSENT argues that the majority is making a decision on a Guaranty clause claim under guise of an EPC claim. NOTE: The Supreme Ct. manipulates the political question doctrine at the beginning of civil rights movement to hear those important cases and rectify situations like those in Baker v. Carr, that could NOT be fixed through normal voting processes. Nixon v. United States, 506 US 224 (1993) Nixon was a fed‟l ct. judge who allegedly accepted a bribe to get a local district attorney to drop the charges against a businessman‟s son. Nixon is in jail and continues to collect his salary. Congress indicts Nixon for impeachment, and Senate must convict. Nixon had an opportunity for oral argument, present evidence, etc… to a Senate Committee. The Senate was given a summary of the evidence heard by the committee. The entire senate heard the oral argument and received the evidence summary. 2/3 majority voted to impeach Nixon. Nixon brought a lawsuit in the Supreme Court arguing that a full trial by the entire Senate was constitutionally required and that the procedure the Senate used (by collecting evidence through a committee) to convict him was unconstitutional. ISSUES: Whether Congressional Act allowing committee to hear evidence at trial for impeachment violates the Constitution b/c of the requirement that the Senate have a full trial. An action is non-justiciable where there is a textually demonstrable constitutional commitment of the issue to a coordinate branch of government or a lack of judicially The senate shall have the SOLE Power to try all impeachments. When sitting for that purpose, they shall be on Oath and Affirmation. When the President of the untied States is tried the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Art. 1, § 3, cl. 6 RULES: HOLDING Ct. finds that there are textually demonstrable constitutional commitment of the issue to a coordinate branch of government and does NOT want to disrespect a coordinate branch. As such, ct. finds that the issue is NonJusticiable Political Question b/c the Constitution is sufficiently clear, albeit not greatly detailed, to indicate that the Senate has the SOLE power to try impeachment cases. Ct. finds that the word “Sole” in Art. 1, § 3, cl. 6, reserves the trial of impeachment to the Senate ALONE. Const. requirements are a 2/3 conviction, statements made under oath, and chief justice present when President is at trial. These are clear, manageable standards such that the Ct. should NOT review or get involved in impeachment trial b/c it is also the only check on the judiciary and that would create political havoc. Finally, the judiciary is put in check by these legislative and executive procedures. Further, the Constitution regulates other proceedings, NOT the trial process. CONCURRING opinion also points out that legislative branch, no one else, was put in charge by the Constitution for impeachments. CONCURRING opinion also notes that at some point the Judiciary would be able to review an impeachment trial if the Senate complete disregards basic trial procedures. -7- CONSTITUTIONAL LAW I – OUTLINE VI. THE CASE OR CONTROVERSY REQUIREMENT CASE OR CONTROVERSY REQUIREMENT The Supreme Court infers the Framers intent from the use of the words “case or controversy” [Const. Art III, § 2] the three basic requirements found in English common law: (1) Injury in Fact; (2) Causation; and (3) Redressability. For this same reason, the Court does not issue advisory opinions; there is no actual injury, or cause or redressability; the court would in effect be encroaching on legislative/executive branch and not abiding by the separation of powers. The court is there to vindicate the rights of individuals, not to simply vindicate the public interest. NOTE: The Political Question Doctrine ensures that the right types of cases have access to the federal courts. Five Justiciability Doctrines 1. Political Question Doctrine 2. Rule Against Advisory Opinions 3. Standing 4. Ripeness 5. Mootness PROHIBITION AGAINST ADVISORY OPINIONS 1. No Pre-Enactment Review Supreme Court cannot issue opinions on soon-to-be-enacted laws. The court conserves resources and only deals with actual injuries after a thorough presentation of the evidence in an adversary system. 2. Finality of Judicial Decisions Supreme Court must actually decide a case and not appear subordinate to another branch by reviewing another branches decisions. 3. Effect Principle If a case is moot, any decision that the Court renders would be an advisory opinion. Court cannot issue opinions if they do not have any actual effect. 4. Collusion – No feigned cases Where Π and Δ have colluded to get issues before the court and get favorable judgments, the Court will be precluded from hearing these feigned issues under the prohibition against advisory opinions b/c this collusion would reduce the court‟s ability to hear real/actual injury cases. RIPENESS Ripeness relates to injury in fact that is actual or imminent. If injury is NOT actual or imminent, then case is not RIPENESS. o In Luhan, the Ct. might have implicitly stated that case was not yet ripe b/c plane ticket has not been purchased. Here the alleged injury was not yet IMMINENT. MOOTNESS STANDING must be satisfied throughout the case, NOT just at the beginning. MOOTNESS doctrine applies when a once live controversy is no longer an actual dispute. That is, while the Case may once have been ripe (i.e., there was a live controversy btw litigants) , there is No longer a live dispute btw the parties.  For instance, if a Settlements occurs, or if the Δ ceases harmful conduct and there is no likelihood that the Δ would continue to do so in the future, then the case is MOOT and the doctrine applies because there is NO reason for the court to intervene b/c there is NO actual injury or REDRESSABLE harm. EXCEPTION TO MOOTNESS DOCTRINE Injuries that are capable of repetition, yet evading review. Where an injury is capable of repetition, meaning that this Π is capable of suffering the same injury, yet the injury would evade review, then the court will hear the case, even though the case is technically moot. o For instance, Abortion of Residency requirement for political campaigning. These are certain types of injuries that happen to someone and they go away before the Ct. can address/resolve the issue btw the parties. In the case of abortion, the challenged abortion restrictions will not be decided within nine months, most likely, several years down the road, after the pregnancy has been carried out. -8- CONSTITUTIONAL LAW I – OUTLINE STANDING DOCTRINE The Standing Doctrine ensures that the Court hears only live controversies in an adversarial setting where both parties have presented the best possible evidence to obtain their desired verdict. Thus, it prevents the court from issuing advisory opinions by ensuring that the right/correct Πs bring the case before the court and has the effect of limiting what types of people have access to the federal courts. Three Constitutional requirements for STANDING 1. Injury in Fact 2. Causation 3. Redressability Three Prudential requirements for STANDING 4. No 3rd Party Standing 5. No Generalized Grievances 6. Zone of Interest Constitutional Requirements of Standing 1. Injury in Fact a. Concrete/Personal/Actual/Not Abstract/Imminent/Not Hypothetical/No Collusion/Not Speculative i. Types of Injuries that the Court has held sufficient to give standing 1. Physical injury 2. Economic injury 3. Mental health injury 4. Slander, or injury to reputation 5. Aesthetic injury a. The enjoyment of viewing forest or swimming in a river is sufficient injury for Standing to sue, but the injury must be caused by the destruction of that object from which the Π derives a benefit (forest, tree, river, etc.). In Luhan, the injury was NOT concrete enough for the Πs did not have a plane ticket indicating that they were going to travel to India/Sri Lanka. Ct. found injury to NOT be imminent enough, merely speculative. 6. Violation of (a) Right(s) a. Must result in a concrete injury, i.e. a LOSS, for it to be an injury b. A right was created by Congress in Luhan, the right was violated, but Court found that Πs lacked standing b/c no concrete injury resulted 2. Causation a. Causation must be fairly traceable to Δs conduct and NOT be too attenuated i. Δ is the direct or indirect cause of the injury to Π. The Π has to be able to show that the Δs actions/omissions caused his injury, i.e., absent the Δs conduct the Π would NOT have suffered the injury. Too many intermediary causes will render the causation requirement unsatisfied thus precluding standing to sue. 3. Redressability a. It must be likely, NOT merely speculative, that a decision in the Πs favor will redress the injury; i. Court‟s action / intervention/ decision removing /voiding law that is causing Π injury must redress the harm committed by the Δ. If Court‟s decision would NOT remove the injury to Π or prevent the Δs harmful actions, the Π does NOT have standing to sue; Prudential Requirements of Standing 4. No 3rd Party Standing a. Π must allege a specific injury to his or her own rights, not another persons rights. Ct. may recognize the injury but prevented from hearing the case b/c Π lacks a personal, protected right for which they may sue. The Π has to assert this or her own legal rights, not the legal rights of some third party 5. No Generalized Grievances a. Similar to the “injury-in-fact” requirement b/c they both require that the Π suffer some concrete, not abstract, injury. May be redundant when considered that the “injury-in-fact” requirement covers this issue.. Π cannot sue for another person‟s injury, say as a citizen suing against a general violation; for instance, where government‟s violation does NOT affect citizen any differently than everyone else. Ideological disagreement with some government policy is not an injury in fact. 6. Zone of Interest a. In a suit for the enforcement of a statute, the Π must be within the statutes‟ scope / zone of interest; otherwise, the Π is asserting a generalized grievances or a suit for violation of 3rd party‟s right; -9- CONSTITUTIONAL LAW I – OUTLINE Warth v. Seldin, 422 US 490 (1975) Various organizations (City of Rochester residents, building associations, people who have not been able to find housing in Penfield, and an Association representing its members) sued the town of Penfield NY for its zoning practices which had the effect of preventing low/moderate income housing from being built within the town limits. ISSUES: Whether the Πs had standing to sue Penfield zoning board? Whether or not the Π has standing to have the court hear the merits of this case In order for a Π to have sufficient Standing to sue in federal court, the “Case and Controversy” requirement of the Constitution must be satisfied by showing: 1. Injury in fact 2. Causation 3. Redressability These additional Prudential Requirements also indicate sufficient Standing 4. No 3rd Party Standing 5. No Generalized Grievances 6. Suit be within Zone of Interest Standing for Associations Ct. holds that Associations always have standing to bring claims on behalf of their members. If its members have standing, the Association has standing. If its members have suffered an injury caused by the Δs conduct that could be redressed by a decision in their favor, then the Association has Standing. RULES: HOLDING Ct. finds that the Πs do NOT have sufficient standing b/c they fail on many of the Constitutional or Prudential Requirements for Standing. Where a Π has suffered an injury, economic, discriminatory, etc., there must be proof of sufficient causation to indicate that absent Δs conduct, the Π would NOT have been harmed/injured. Palsgraf requires logical causation (famous Tort train case). The Ct. doesn’t want to extend the chain of causation to where they open litigation floodgates to massive amounts of persons. Further, b/c of the attenuated causation, the Ct. doesn‟t think that striking down the Ordinance (redressability) will magically create affordable housing; many other events must occur. Causation & Redressability interrelated, but independent. Rochester tax payers are suffering from their local gov‟t‟s decision to raise taxes, not b/c of Penfield zoning ordinance. Housing councils do NOT show a sufficient injury, say rejection of a job b/c of the zoning ordinance; there is insufficient evidence for the court to find that any right was violated. Penfield resident who sue have suffered an injury (lack of a diverse neighborhood) but there is NO enforceable right to such a neighborhood. Constitution does create a right NOT to be discriminated against, and only Rochester residents can assert his right. Πs cannot assert a generalized grievance or the injury suffered by a 3rd party. Injury must be imminent and not abstract. DISSENT: J. Brennan thinks that dismissing this suit for lack of standing without letting them do discovery and present evidence as to pending construction projects is unfair to Πs who are being asked to make their case in the pleadings. Πs should be given a fair chance to present witnesses, BUT to require Πs to put all this in their complaint is too much. NOTE: NOTICE pleading only requires a short, plain statement of the complaint, FACT pleadings required what the Warth ct. is requiring - 10 - CONSTITUTIONAL LAW I – OUTLINE Lujan v. Defenders of Wildlife, 504 US 555 (1992) Activists challenge a Secretary of the Interior‟s change of policy under § 7 Endangered Species Act of 1973. Secretary of Interior no longer req‟d federal agencies to consult with Dept. of Interior for overseas projects. Congress set up a procedure that was supposed to be followed, and Congress allowed Πs to sue for violation of that procedure. NONETHELESS, the Ct. denies STANDING despite Congressional statement giving Citizens STANDING to sue when Executive fails to comply with the EPA reqmt that fed‟l agencies consult to ensure compliance with EPA. RULES: ESA § 7(a)(2) requires that if any federal agency will take any action that might affect an endangered species, that federal agency must consult with the SOI to minimize the effect of the actions. New interpretation req’d NO LONGER req’d consultation for foreign programs or actions. Requirements of STANDING are NOT found in the Const., the court has inferred Const. Reqmt’s of STANDING from the “case or controversy” wording The Πs challenging the law must a stake in the court’s decision, not just an ideological stake in the ruling. While Const. reqmt’s of standing cannot be overruled by Congress, but Congress can abrogate Prudential Requirements of standing. HOWEVER, Congress may NOT create a right of standing based on a generalized grievance against government. HOLDING Ct. finds that the inability to observe a species is an injury in fact if it is concrete, and imminent, despite lack of economic or physical harm. Aesthetic injury is an injury in fact that is sufficient for you to come into court and challenge the actions that are causing that injury. Πs must show that they have an IMMINENT injury b/c these Πs would have a stake in the outcome. Ct. states that the lack of a plane ticket indicates that the Π would NOT have suffered a concrete injury. Instead, Πs are lacking an injury-in-fact to satisfies the Const. requirement of STANDING. Citizen suit provision of ESA is unconstitutional. Finally, with respect to redressability, there is no indication that reducing or removing US support to foreign projects will cause projects to stop and thus prevent harm being alleged. Further, the Take Care Clause in Art. II, states that the Executive is responsible for the enforcement of the laws. Ct. reasons that, Congress in granting the court the ability to vindicate the public interest through a generalized grievances right of standing, would allow the Court to enforce laws, which is the exclusive role or sphere of interest of the Executive branch. NOTE: Collusion btw Congress and Πs to monitor Executive‟s enforcement; Court would be issuing an advisory opinion b/c collusion fabricates a case or controversy. Ct. rejects the “Animal nexus” (anyone who had a connection to animals would open a right to sue) and the “Vocational nexus” (anyone who pays to see the animal or works with the animal would give anyone a right to sue) arguments presented by Π because these arguments create a connection that is too attenuated to grant STANDING. - 11 - CONSTITUTIONAL LAW I – OUTLINE VII. NATIONAL POWER & LOCAL ACTIVITIES McCulloch v Maryland, 4 Wheat. (17 U.S.) 316 (1819) McCulloch, Δ, the cashier of a Baltimore US bank, issued bank notes in violation of a MD statute providing that NO bank, without authority from the sate, could issue bank notes except on stamped paper issued by the state. Had the effect of taxifn federal banks who were not chartered under the state and who paid annual or monthly fees for the special stamped paper. ISSUES: Whether Congress has power to create a fed‟l bank? Whether State has power to tax fed‟l bank? RULES: states cannot tax federal banks Per Martin v. Hunter’s Lessee, Supreme can review decisions of state courts. Art. I, § 8, Cl. 18: Congress shall have the Power to…make all laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other powers vested by this Constitution in the Gov’t of the US, or any Dept. or officer thereof. “Necessary and proper” clause (Art. I, § 8, Cl. 18) is an enlargement of powers, not a restriction. Art. I, § 9 limits Congresses powers, and “Necessary” clause found in § 8. Fed’l gov’t is one of enumerated powers and those enumerated powers carry with them implied powers and authorizes the creation of laws that give Congress the means to exercise those powers. Const. is NOT a statute, and only sets out general outline of powers, not all the details. 10th Amendment: The powers NOT delegated to the US by the Const., nor prohibited by it to the states, are reserved to the States respectively, or to the people. States have no authority to NEGATE fed’l actions and states can interfere on a limited basis with fed’l activities. It is NOT the court’s role to determine whether or not the bank is necessary for executing Congress’s powers. “[L]egislation is given discretion…Let the end by legitimate, let it be within the scope of the constitution… Is the end legitimate? Ct. will ask whether means are appropriate / plainly adapted/ a rationale way to exercise Congressional powers? NOT a question of best means for an end. The end, in addition to being legitimate, must NOT be prohibited by the Const. The Ct will only step in if Congress has tried to pursue an illegitimate end or has adopted means that have no relation to that end (are plainly irrational). HOLDING Ct. finds that Congress does have power to create fed‟l bank under Necessary & proper Clause and that state does NOT have power to infringe on fed‟l sovereignty through taxation. McCulloch stands for the proposition that the Ct. has a limited role in reviewing Congressional actions. State sovereignty cannot infringe on fed‟l legislative actions created under express /enumerated or inherent powers. The Ct will only step in if Congress has tried to pursue an illegitimate end or has adopted means that have no relation to that end (are plainly irrational). As long as ends are rational, and means chosen are rationally related to the end, the Ct.‟s only role is that Congress has chosen means that is rational to achieve its ends. The Ct. is granting Congress an INFINITE RANGE of options to enact law by having a BROAD interpretation of the Necessary & Proper clause. Finally, Congress uses an enumerated powers as a pretext to execute a power not granted to Congress by the Constitution, then the Ct. can judicially review (Marbury) Under Art. I, § 8, there is no specific mention of the creation of a US federal bank; however, establishing a bank is “necessary and proper” to executing another power. First, history shows that fed‟l bank was hotly debated over and finally approved twice; thus, the creation of a bank is a rational means / a plain adaptation of the enumerated powers to achieve many of the ends/powers granted under § 8. Second, ratification of the Const. by the states did NOT create the Constitution. Since the fed‟l gov‟t was created by the people, not the states themselves, it is a gov‟t of the people. These people, in accepting the Constitution, bound the states; thus, the Fed‟l laws/gov‟t is SUPREME law of land. Third, the constitution enumerated powers does NOT preclude implied powers and the Framers must have intended. Ct must never forget that it is a constitution we are expounding and NOT some legal code. Fourth, the Ct. interprets the meaning of the word necessary flexibly, i.e., useful or convenient to carrying out Congress‟s powers. Necessary does NOT mean indispensable. The Ct. relies on textual omission of “EXPRESS” before “delegated” or “ABSOLUTE” before “necessary” to indicate that incidental/implied powers were contemplated by the Framers. Further, Ct. finds that Congress‟s power to create is also a power to preserve the bank‟s existence and that MD‟s power to tax is the power to destroy. The States are bound under the Const. and the Const. establishes the fed‟l gov‟t, and while the States are sovereign in their sphere of action, thus States cannot tax the fed‟l gov‟t b/c they would be intruding on fed‟l gov‟ts sovereignty. Also, states would be taxing people who they do NOT represent. NOTE: LIMITED VIEW OF COURT‟S ROLE - 12 - CONSTITUTIONAL LAW I – OUTLINE In Marbury, the Ct. stated emphatically that it is the province of the court is to say what the law is, and yet in McCulloch, court defers to Congress to determine what is appropriate exercise of its powers. McCulloch seems to be applying a narrow reading of Marbury, basically that the Ct. does not have a special role in determining the issue. Ct. does not have a special knowledge to determine whether bank is proper. - 13 - CONSTITUTIONAL LAW I – OUTLINE U.S. v. Term Limits, 514 US 779 (1995) AK passed a law limiting whose names could be on the ballot for Fed‟l legislators. Amendment 73 to State Constitution imposed Term Limits on State Senators. ISSUES: RULES: Whether State has power to impose term limits on state senators? No. AK Law: Any person from holding more than two terms in the Senate (12 years) or three terms in the House (6 years) State cannot retain a power which it did NOT have before the Constitution; State cannot set term limits on federal legislators b/c Constitution created federal gov’t and State did NOT have power prior to its creation to restrict its members. Commentaries on Const. of US, § 627, 3rd Ed., 1858, J. Story: the states can exercise no powers whatsoever, which exclusively spring out of the existence of the nat’l gov’t, which the Const. does not delegate to them. [NO] state can say that it has reserved, what it never possessed” Powell v. McCormick, Ct. held that Congress had role to ensure satisfaction of Const. enumerated qualifications, but Congress could not add qualifications. (The House to tried to keep him out of House, pointed to its power to restrict members of Congress). Art. I, § 4, states that States have power to REGULATE the Time, place and manner of these elections. These are Logistical issues, or procedures as to how elections will be carried out, BUT the States are NOT given power to change the qualifications of the members of Congress Sturges v. Crowninshield, it was neither necessary nor proper to define the powers retained by the States. These power proceed, NOT from the people of America, but from the people of the several states, and remain, after the adoption of the Const., what they were before, except so far as they may be abridged by that instrument Hamilton, Federalist No. 32, the plan of the Const. Convention did NOT contemplate “an entire consolidation of the States into one complete national sovereignty” but only a partial consolidation in which the “State governments would clearly retain all the rights of sovereignty which they before had and which were not by that act, exclusively delegated to the US” HOLDING Ct. holds that the States do NOT get their power from Const.; they reserve the powers they had before the Const. Futher, since the People elect their nat‟l representatives, any State interference would limit people‟s choice, which is NOT allowed by Const. b/c fed‟l government‟s sovereignty would be interfered. Similar to McCulloch, the state could not tax the US gov‟t bank b/c there never existed an original right to tax such fed‟l entities since these entities never existed and the question whether it has been surrendered cannot rise. The Fed‟l gov‟t was “formed by the people, acting in their sovereign capacity, for the people, not by the States.” NOTE: AK could NOT be allowed to make these decisions b/c people with less experience may be in office to pass poor laws; while Corrupt officials would be removed, certain states making these terms would harm the nation through imposing restrictions on nat‟l legislators b/c they would be inexperienced and that type of important leadership comes from those senior members sought to be excluded. - 14 - CONSTITUTIONAL LAW I – OUTLINE VIII. COMMERCE POWER Federal Power Art I, § 8: Congress shall have the power…to regulate Commerce with foreign Nations, and among the several states, and with the Indian tribes. Four Periods of Commerce Clause Interpretation 1. Early Interpretations 2. Post-Civil War 3. Decline of Limits on Commerce Power 4. New Limits on Commerce Power (1824-1887) (1887-1937) (1937-1995) (1995-Present) EXPANSIVE LIMITED EXPANSIVE BEGINNING TO LIMIT A. COMMERCE POWER (1824-1887) INTERPRETED BROADLY Per Gibbons v. Ogden, Congress interpreted all aspects broadly so as to allow Congress to exercise plenary power. Gibbons v. Ogden, 9 Wheat. (22 US) 1 (1824) BROAD INTERPRETATION OF C/C NY granted a ferry monopoly to Ogden. Fed‟l law granted/licensed Gibbons to run ferry between NJ & NY (interstate). Ogden sued and won in NY state court. The Supreme Ct. found that under the Supremacy Clause, the NY state law granting a monopoly to Ogden was preempted by fed‟l law regulating navigation. RULES: Commerce is the power to regulate business, i.e., COMMERCIAL INTERCOURSE, and those activities that are wholly internal, or entirely intrastate, are not part of the commerce power. HOWEVER… Congress may even regulate INTRASTATE/commerce-business when it has direct & substantial effects on other states, or it is necessary for executing some of the general powers of the fed’l gov’t. Supremacy Clause: “Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made or which shall be made under the Authority of the United States, shall be the Supreme Law of the Land.” The 10th Amendment does NOT limit the C/C power. Congress has full authority to regulated commerce among the several states. HOLDING Ct. interprets C/C power broadly. Ct. finds that navigation is a part of commercial intercourse and that navigation has always been regulated by the United States. J. Marhsall finds that “commerce [is] undoubtedly is traffic, but it is something more, it is INTERCOURSE, it describes the commercial intercourse btw nations and parts of nations, in all its branches and is regulated by prescribing rules for carrying on that intercourse [including navigation].” (Commerce is the power to regulate business). Thus, Ct. finds that fed‟l law was based on proper Constitutional authority regulating INTERSTATE commerce btw NJ & NY; as such a fed‟l law is superior/trumps a state law. NOTE: An EXPANSIVE interpretation of the Commerce Clause such as in Gibbons, goes against the Constitution‟s limits on Congress‟s powers to regulate commerce. Under Gibbons, Congress‟s power under the C/C has seemingly unlimited reach. The Constitution and the Ct. find that state representatives and the constituents of federal legislators are a sufficient restraint on Congress‟s legislative actions. The Ct. believes that C/C inherent limits will be enforced through the political process and that the states will play a role in this process. ******************* Regulate: Congress has power to Control, prohibit, proscribe, prescribe, limit, expand certain aspects of transportation, transactions, sales, commercial intercourse. It may set limits on quantity, price, etc. Also, Tax can be used as a form of regulation. Congress may create statutory regulations for trading among the several states. Commerce: Congress may regulate Sales, business transactions, transport of goods, providing of services, but not production of goods. A Robbery may be considered commerce. Finally, it must be INTERSTATE commerce, NOT INTRASTATE. Interstate commerce encompasses, where material were acquired, who are the customers, where were the goods produced, sold, etc. Among the Several States: Congress ability to regulate commerce is limited to INTERSTATE transactions (commerce); Congress does NOT have power to regulate INTRASTATE commerce. HOWEVER, some aspects of intrastate commerce may count as commerce among the several states, if it effects the national market. - 15 - CONSTITUTIONAL LAW I – OUTLINE B. COMMERCE POWER (1887-1937) INTERPRETED NARROWLY (Restrictions on Congress) Dual Federalism 1. Ct. uses a narrow definition/interpretation of COMMERCE a. Does NOT include mining, manufacturing, production, or those commercial activities in the zone of power of the states (wages, max hours, child labor, etc.) 2. Congress may Regulate activities that have a SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE a. In all other areas, regulation is left to the states 3. 10th Amendment reserves a ZONE OF ACTIVITIES TO THE STATES that even federal laws within the scope of the commerce clause are unconstitutional for invading that zone a. Scope of commerce clause power is limited to protect the states‟ sovereignty These three doctrines: (1) the narrow definition of commerce; (2) the restrictive interpretation of among the states; and (3) the use of state sovereignty as a constraint on congressional power; all advanced dual federalism and limited the scope of Congress‟s authority under the commerce clause. 1887-1937: “Commerce” narrowly defined United States v. E.C. Knight Sugar Monopoly case. Ct. held that monopoly of production was NOT within commerce clause b/c production is what comes before commerce. RULES: Congress may not regulate production because production is not a part of commerce. It necessarily comes before commerce. Carter v. Carter Coal Co., Coal Act of 1935 regulate hours, wages, mining, unions, etc. Ct. finds that this is NOT commerce. Ct. relies on Ogden’s “commercial intercourse” definition to limit Congress power to regulate under the commerce clause. RULES: Commerce is the equivalent of the phrase “intercourse for the purposes of trade.” Mining, fixing wages, hours, employment of men all lead up to but do not constitute such commercial intercourse. They are more the aspects of production intercourse. Mining brings the subject matter of commerce into existence. Commerce disposes of it. HOLDING Ct. finds that a narrow definition of COMMERCE is required to protect the zone of activities that States regulate. If Ct. does not do so, Congress will undoubtedly, albeit slowly, usurp all of the states‟ powers. Narrow definition of commerce necessary to protect the states. “Among The States” (intrastate with direct, substantial effects) 1887-1937: Shreveport Rate Cases, Texas RR was charging more for shipments from Shreveport, LA than from Marshall, TX even though Shreveport was much closer to its destination and Marshall was much farther. RULES: Congress in the exercise of its paramount power may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operates to the injury of interstate commerce. Congress possesses the power to foster and protect interstate commerce and to take all measures necessary or appropriate to that end although intrastate transactions of interstate carriers may thereby be controlled. HOLDING Ct. upheld the ability of the Interstate Commerce Commission (ICC) to set intrastate railroad rates because of their DIRECT impact on interstate commerce. - 16 - CONSTITUTIONAL LAW I – OUTLINE ALA Schecter Poultry Corp V. United States, (Sick Chickens Case) Law enacted to ensure quality control; don‟t have to buy the whole coop, just healthy ones. Congress also tried to regulate wages, max hours, unions, child labor. A NY poultry plant sued. All poultry in NY came from other states. RULES: The fed’l gov’t has authority to regulate when there are DIRECT EFECTS ON COMMERCE, but where the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power; In determining how far the fed’l gov’t may go in controlling interstate transactions upon the ground that they affect interstate commerce, there is a necessary and well-established distinction between DIRECT & INDIRECT effects HOLDING Ct. struck down fed‟l law because there was not a sufficiently DIRECT relationship to interstate commerce. The code was note regulating interstate transactions; rather, the code concerned the operation of businesses in NY. Ct. must protect state sovereignty and NOT give fed‟l govt all the power. Ct. enforces direct/indirect effect on interstate commerce distinction as a limit to fed‟l power and to protect constitution. “Stream Of Commerce” (direct/indirect effects distinction) 1887-1937: Swift & Co. v. United States, (Throat-Cattle-Stockyards-Holding Facility) Meat dealers fixing prices at stock yards. Cattle being held would be shipped out of state. It was a gateway to the stream of commerce. Ct. upholds Sherman AntiTrust Act as valid against a meat dealer who was fixing prices at a stockyard which was a holding facility for cattle before being shipped interstate. RULES: Congress allowed to regulate to protect the stream of commerce. Stockyards were in a current of commerce among the states, and the purchase of the cattle is a part and incident to such commerce. Stafford v. Wallace, Stockyards Act of 1921 was upheld against packers who were colluding with stockyard managers to increase prices. Stockyards are a throat through which interstate commerce flows. RULES: Congress may regulate throat through which the current [of interstate commerce] flows and the transactions which occur therein are only incident to this [INTERSTATE] current…[s]uch transactions cannot be separated from the movement to which they contribute and necessarily take on its character. NOTE: Ct. relies on stream of commerce approach to allow congress to prohibit the sale of impure or adulterated foods or drugs, require retail labeling for items traveling in interstate commerce and to restrict the sale of intoxicating beverages to Indians. (Hippolite Egg v. US, 1921) (Chemerinsky‟s Notes p. 252) Railroad Retirement Board v. Alton RR Co, 295 US 330 (1935) RRA requires pensions for RR EEs. Ct. strikes down law b/c pensions are not part of stream of commerce. RULES: RR’s are part of stream of commerce and may be regulated because they are throats/means of transport for commerce. Congress is protecting/ensuring safety and efficiency of stream of commerce. (Southern Railway v. US, RR car couplers-safety; Baltimore v. Ohio RR Co., Maximum Hoursefficiency) RR pensions are NOT part of stream of commerce. They are concerned with SOCIAL WELFARE of EEs. Social Welfare of EEs is remote from regulation of commerce. Regulations may only be made to regulate activities that have a direct effect on interstate commerce. - 17 - CONSTITUTIONAL LAW I – OUTLINE 1887-1937: “State Sovereignty” The Child Labor Case Hammer v. Dagenhart, 247 US 251 (1918) Fed‟l law prohibited shipment of good interstate where the goods were produced by child labor. Congress sought to prevent race to the bottom. RULES: Even if an activity was commerce (narrowly defined) and was among the states (direct substantial effect on interstate commerce), Congress still could NOT regulate if it was intruding into the zone of activities reserved to the states. 10th Amendment reserved control of activities such as mining, manufacturing, production to the states. Regulation of child labor reserved for the states. HOLDING Although law only controlled goods within interstate commerce, Ct. struck down law b/c it regulated production. Ct. seeks to protect state sovereignty; does NOT want to give Congress power to exercise police power that is properly reserved for the states. Ct. rejects “Race to the Bottom” arguments. The Lottery Case Champion v. Ames, 188 US 321 (1903) Congress prohibited the interstate shipment of lottery tickets. Ct. upholds the fed‟l law. Regulation does not intrude on 10th amendment,, state gov‟t prerogatives; Congress has its limits and is not destroying constitution. RULES: Power to regulate interstate commerce includes the ability to specify which items are prohibited from being in interstate commerce. Congress has power to regulate commerce among several states; Congress is exercising that power by prohibiting an item from polluting the commercial intercourse among the states. The possible abuse of power is NOT an argument against its existence. NOTE: Ct. allows Congress to regulate perceived moral evils. - 18 - CONSTITUTIONAL LAW I – OUTLINE C. COMMERCE POWER (1937-1995) INTERPRETED BROADLY (NO LIMIT ON CONGRESS) NLRB v. Jones & Laughlin Steel Corp, 301 US 1 (1937 Steel Super-Corp. Case regulation of EES in stream/interstate effects RULES: Ct. will uphold a federal law regulating production (Wages, hours, unions, max hours, etc.), Formalistic rules are not dispositive. Fact that Congress is regulating production is NOT enough to put it outside the commerce clause power. 1) Congress has legislative findings on relationship between labor activity and interstate commerce; AND 2) there is an effect on commerce Effect on Commerce – means “in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce” 3) The activity/company/individual being regulated is part of the stream of commerce The fundamental principle is that the power to regulate commerce is the power to enact all appropriate legislation for its protection and advancement to adopt measures to promote its growth and insures its safety, to foster, protect, control and retrain. That power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it. HOLDING: Ct. upholds federal law because the J&L Steel Company was 5th largest USA steel producer and if they had a strike it would undoubtedly substantially effect interstate commerce; they were thus a big part of the steel stream of commerce. Further, the fact the congress was regulating production (narrow definition of commerce) is NOT dispositive because formalistic rules were not to be applied; court would take a more pragmatic, functional approach. US v. Darby, 312 US 100 (1941) FLSA 1938 prohibited shipment of goods interstate when they were produced by EEs paid less than minimum wage; Ct. found that manufacturing was commerce b/c the interstate shipment of those manufactured goods was commerce. Production is NOT left up to the states to regulate. RULES: Congress may control production by regulating shipments in interstate commerce While manufacturing is not of itself intestate commerce, the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of commerce. The 10th amendment states but a truism that all is retained which has NOT been surrendered. Congress may look at the direct/indirect effects of an activity upon interstate commerce HOLDING: Ct. holds that a plenary power is conferred on Congress under the C/C, so commerce is able to regulate the shipment of manufactured goods, i.e., production. Ct. expressly overrules Hammer v. Dagenhart (The Child Labor Case) and emphatically rejected that the 10th amendment limits Congress‟s powers. In other words, a law is constitutional so long as it is within the scope of Congress’s power; the 10th amendment would NOT b used by the judiciary as a basis for invalidating federal laws. NOTE: McCulloch held that Congress cannot use enumerated power as a pre-text to accomplish another goal, but that is what Congress is doing here where the pre-text of Commerce Clause is used to regulate workforce practices. Wickard v. Fillburn Wheat bushel cumulative effects on interstate commerce. Farmer produces double of the 217 allowed bushel quota and is fined $117 for each addt‟l bushel. RULES: Congress is allowed to make individual determination of the cumulative effects on interstate commerce If Congress regulates an economic activity, under the C/C power granted to it, questions as to federal power to regulate such an activity CANNOT be resolved through formalistic approaches such as giving preference to nomenclature (production, etc.) or the fact that the effects are indirect (not cumulative), will NOT to be dispositive. Ct. must consider the actual effects of the activity in question upon interstate commerce Congress may regulate an individual activity that on its own would NOT have a substantially effect on interstate commerce, when the cumulative/aggregate effects of that activity, taken with others similarly situated, would have a substantial effect on interstate commerce HOLDING: Ct. completely abandons holdings since 1937. Congress expands the interpretation of the C/C and grants a great deal of power to Congress. - 19 - CONSTITUTIONAL LAW I – OUTLINE C. COMMERCE POWER (1937-1995) INTERPRETED BROADLY (NO LIMIT ON CONGRESS) REGULATORY LAWS Hodel v. VA Surface Mining Assoc, 452 US 264 (1981) Farmland act required showing that strip mining company could be restore land to its pre-stripped form. RULES: Congress may regulate use of land, even though it is typically a state function, and even though the land is wholly intrastate, b/c the effects of mining is interstate. THREE PART TEST: (1) a showing that the challenged statute regulates the “States as States;” (2) the federal regulation must address matters that are “undisputably 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.” HOLDING: Ct. removed the “substantial” requirement on interstate effects. DISSENT argued that this would be removing all restrictions on fed‟l power. Hodel v. Indiana, 452 US 314 (1981) Farmland act required showing that strip mining company could be restore land to its pre-stripped form. RULES: Ct. could only strike down a federal law where the Ct. found congress did NOT have a rational basis for a congressional finding that the regulated activity affects interstate commerce or there is NO reasonable connection between the regulatory means selected and the asserted ends. US v. South Eastern Underwrites Assoc, 322 US 533 (1944) Insurance writing company argued that it was outside of interstate commerce. Contracts were NOT even out of state. Ct. held that Congress can regulate such intangible things RULES: Congress can regulate intangible items such as insurance policies, as long as there is a rational basis for believing that there is an interstate effect. American Power v. SEC, 329 US 90 (1946) RULES: Congress can regulate intangible items such as the stock of a public utility companies, as long as there is a rational basis for believing that there is an interstate effect. US v. Sullivan, 332 US 689 (1948) A retail druggist accidentally misbranded pill boxes. Ct. upheld the conviction b/c the regulation was necessary for the greater purpose of regulating the interstate commerce of drugs. RULES: Congress can regulate intrastate activities if necessary to protect is regulation of interstate activities. CIVIL RIGHTS LAWS Heart of Atlanta Motel, 379 US 241 (1964) After review voluminous congressional findings of the interstate effects of racial discrimination, the court upheld civil rights regulation. Ct. recognized that taken in the aggregate, racial discrimination by motels/hotels would have a substantially effect on interstate commerce. RULES: 14th Amendment, § 5 can only regulate gov’t conduct and could NOT regulate private behavior under the 14th amendment The only questions are (1) whether congress had a rational basis for finding that racial discrimination by motels affected commerce; AND (2) if it had such a basis, whether the means it selected to eliminate that evil are reasonable and appropriate MOTIVE IS IRRELEVANT; see Lottery Case, Congress may remedy moral wrongs, even when the activity/individual is of a pure local character If it is interstate commerce that feels the pinch, it does NOT matter how local the operation which applies the squeeze. Ollie’s BBQ, 379 US 294 (1964) (Katzenbach v. McClung) Ct. focuses on the interstate character of the business where almost half of the meat was purchased out of state. RULES: Congress may regulate discrimination where the effects of all restaurants taken in the AGGREGATE/CUMULATIVELY have an impact on intestate commerce CRIMINAL LAW Perez v. United States¸ 402 US 146 (1971) Congress seeks to prohibit loan sharking. Loan shark convicted and appeals. RULES: If Congress has a rational belief that an interstate activity such as loan sharking has a sufficient effect ton interstate commerce, Congress is allowed to make such regulations Particularized findings are NOT required. Sufficient for Congress to have a rational belief that purely intrastate (criminal activity) has directly affects on interstate/foreign commerce - 20 - CONSTITUTIONAL LAW I – OUTLINE D. COMMERCE POWER (1995-Present ) NEW LIMITS ON COMMERCE POWER U.S. v. Lopez, 514 US 549 (1995) Fed‟ offense to have a gun within 1000 ft. of a school. Δ appeals. Ct. struck down a federal law for the 1st time in 60 years for a lack of sufficient findings to demonstrate a substantial effect on interstate commerce. RULES: Federal Gov’t is one of enumerated powers. That presupposes that fed’l gov’t will have few and defined powers. Congress may NOT regulate non-economic activity, b/c it would strip states of this power Legislative findings are NOT required, but may be helpful for situations where the interstate effect on commerce is NOT clearly obvious. Under this act, the Legislative findings, or lack thereof, are INSUFFICIENT to overcome the lack of a substantial relationship btw the gun law and its alleged purpose of regulating interstate commerce Three Types Of Activities That Congress May Regulate Under The C/C Power: 1. Congress can regulate the use of the channels of interstate commerce a. Heart of Atlanta Motel, Ct. protected the channels of interstate commerce 2. Congress may legislate to regulate and protect the instrumentalities of interstate commerce a. Shreveport Cases, Ct. regulates persons/things (RRs) within interstate commerce 3. Congress may regulate those activities having a substantial relation to interstate commerce a. The proper test requires an analysis of whether the regulated activity substantially affects interstate commerce b. This more restrictive interpretation is preferable HOLDING: Ct. struck down Law b/c it was NOT substantially related to interstate commerce. Ct also notes that State has a law regulating this same situation. Fed‟l law is unnecessary. Ct. rejects fed‟l gov‟t argument that gun possession relation to interstate commerce is TOO attenuated. U.S. v. Morrsion, 529 US 598 (2000) VAWA provisions allow for civil damages. Female student at VA college is raped. Two football players escape any sort of punishment. She sues for civil damages. VAW costs American economy billions. Voluminous amounts of legislative findings. RULES: Congressional findings are NOT dispositive and Congress’s conclusions based on these findings are insufficient to establish that the activity being regulated has a substantial effect on interstate commerce Congress may not regulate a non-economic activity, i.e., criminal activity , which is usually reserved for the states, based on a cumulative substantial effect on interstate commerce Ct. must protect what is truly local and truly national. HOLDING: Applying Lopez, the Ct. finds: (1) not a commercial activity or channel; (2) NOT an instrumentality; AND (3) under the 3rd part of the test, Congress could NOT show a cumulative substantial effect on interstate commerce. Ct. rejects CUMULATIVE effects argument. Ct. holds that Congress lacks authority to enact civil damages provision under VAWA. Further, Ct. has always regulated economic activities. Ct. also states that a jurisdictional element would allow the law to pass a constitutional test b/c the law would only apply to those people who carry guns across state lines. Ct. does NOT want to uphold law b/c Congress could then regulate murder, robbery etc., which is for states. - 21 - CONSTITUTIONAL LAW I – OUTLINE U.S. v. Raich, 545 US 1 (2005) Medicinal Weed legal in CA. Two women growing it for medicinal purposes. Fed‟l agents destroy weed despite being in compliance with state law. Δs argue that as applied to them the Fed‟l law should NOT apply. RULES: Under supremacy clause, federal law preempts state law. Congress can regulate a purely intrastate activity that it is not itself commercial in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. See Wickard. Failure to regulate intrastate activity may undercut regulation of interstate market HOLDING Ct. upholds fed‟l law b/c if it did NOT congress would NOT be able to effectively enforce/regulate under the broader national regulatory scheme of controlled dangerous substances. Fed‟l gov‟t would be unable to distinguish btw medicinal weed and illegal weed and thus would be unable to prevent it from reaching interstate commerce. Ct. also notes that there is a high demand for weed and a high possibility for abuse of CA law. DISSENT: J. O’Connor sees this distinction as providing Congress with a perverse incentive: Raich will give Congress the incentive to seek out a broader category, pass a national, regulatory scheme that would encompass the smaller category and reach such individual, intrastate activities to effectuate the larger scheme, that normally be outside of the C/C power. Ct. has given Congress a drafting guide. Federalism promotes innovation allowing one state to experiment without hurting the entire national NOTE: Morrison & Lopez were only a single law, not part of a larger regulatory scheme. Reaching this local activity is necessary to effectuate a larger regulatory scheme, and when Cognress does that, passes a broad law that is national in scope, that under that law, it can reach individual, intrastate activities, if it needs to do so to effectuate the larger, broader, regulatory/legislative scheme. Individual challenge will NOT be heard b/c the broad regulatory scheme is constitutional and does apply to the person. THREE ACTIVITIES CONGRESS MAY REGULATE 1. Channels of Interstate Commerce a. stream (not physical) i. highways, ii. Darby, regulating wages and hours within a state, Supreme Ct. upheld fed‟l law b. physical i. supreme court has not decided this, but lower courts have upheld laws regulate physical channels Instrumentalities of Interstate Commerce a. Trains, Planes, Automobiles & Things on the instrumentalities Intrastate Activites That Might Have Substantial Effect On Interstate Commerce a. economic activity v. non-economic activity i. Lopez, the possession of a gun in a school zone is NOT an economic activity b. Jurisdictional element i. Statute includes a requirement that you can only be prosecuted under it, if the activity you were engaging in is related to interstate commerce 1. i.e., only convicted for possessing gun in school zone if that handgun had traveled interstate or will be used interstate; thus, the Δ/person‟s activity had some interstate relation c. Substantial Effect i. relationship btw school zones and gun possession are too attenuated 1. connection is NOT close enough a. guns  violence near schools  students are afraid and do not learn well  do not go to college  make less money  buy less interstate goods d. Congressional Findings i. Help to support determination that the interstate activity being regulated would have a substantial effect on interstate commerce ii. findings are not required, but in a case where it is NOT immediately obvious that this activity would affect interstate commerce, the findings would be helpful 2. 3. - 22 - CONSTITUTIONAL LAW I – OUTLINE INTERPRETING FEDERAL LAW NARROWLY U.S. v. Jones Solid Waste of Northern Cook County v. U.S. Army Corp of Engineers, - 23 - CONSTITUTIONAL LAW I – OUTLINE IX. EXTERNAL LIMITS ON THE COMMERCE POWER Federalism & 10th Amendment External Limits on C/C Power In contrast to internal limits to C/C, which are limits that derive from the text of the C/C itself, granting Congress has the power to regulate commerce among the several states. Commerce – buying, selling of goods across state lines (INTERNAL LIMITS) – interpret text narrowly. External limit comes from another part of the Constitution. Can Congress regulate what the STATES can do? (Not what individuals can do)  Two different types of laws that congress is trying to pass 1. Laws of general applicability that regulate the STATES as economic actors a. States run businesses (EEs, RRs, etc.) See Nat‟l League of Cities b. When state is acting in economic capacity as an ER or business owner, can Congress regulate States under laws that apply generally to regular business owners/ERs? YES 2. Laws that require States to regulate in a particular way a. Laws that tell states how they should regulate individual citizens i. Not laws stating how many hours can be worked, paid to EEs Nat’l League of Cities v. Usery, 426 US 833 (1976) Amendments under the Fair Labor Standards Act were rejected The Supreme Ct. rejects Congress‟s attempt to regulate minimum wage and maximum hours regulate directly the activities of States are public ERs. Ct. finds that such legislation transgresses an affirmative limitation on the exercise of its power. The States‟ ought to be free to regulate these areas without federal legislation imposing on them. Ct HOLDS that Federal legislation cannot displace the States’ freedom to structure integral operations (EE / ER relationships) in areas of traditional governmental functions. Garcia v. San Antonio Metropolitan transit Authority, 469 US 538 (1985) Further amendments under the Fair Labor Standards Act were left to the political process to ensure that they are remedied. RULE: As long as Congress is NOT targeting the States as States, and the law applies to economic actors generally, then Congress can apply that law to the States, and the protection that will be relied upon for state sovereignty will be those inherent in the political process. The Supreme Court explicitly rejects and overrules Nat’l League of Cities. Ct. finds that fed‟l wage and hour laws are valid despite concerns for state sovereignty b/c the “traditional gov’t functions” standard adopted in Nat’l League of Cities is “unsound in policy and unworkable in practice.” Clear, black-line distinctions are impossible to determine, and the Supreme Court has not able to protect the states b/c they cannot determine what belongs to state and fed‟l gov‟t within a workable framework, which was the Court‟s expectations under the Nat’l League of Cities standard. Further, the Ct. holds that the political process will determine whether Congress has overstepped or overreached its power under the C/C and will protect the sovereignty of the states b/c (1) States are equally represented in the Senate; (2) Federal officials have state loyalty b/c they are elected officials who are representing local, state constituents; (3) the Electoral college gives all states a certain amount of votes in the college and the electors from each state, and chose the President; (4) Direct election of senators b/c now, after the 17th amendment, senators are chosen by popular election. (NOTE: Prior to the 17th Amendment, the state legislature decided who would represent the state in the Senate.) HOLDING: DISSENT: J. O‟Connor finds that the Ct. allowing Congress to monitor itself goes against Marbury, b/c Ct. has always regulate Congress‟s overreaching of its power. J. O‟Connor states that certain present day factors undermine the political process protection envisioned by the MAJORITY. (1) the Rise of nat‟l special interests groups; (2) the Rise of the National Media. New York v. U.S., 505 US 114 (1992) Congress enacts 3 part plan to encourage states to deal with disposal of low-level radioactive waste. Congress had THREE incentives in place (1) Monetary; (2) Access; and (3) Take Title to get states to regulate the disposal of radioactive wastes within their borders. The Monetary incentive allowed the States to impose a surcharge for disposing waste of another state and the Fed‟l gov‟t would tax a portion of state surcharge, collect it, and puts that money in a fund. Some of that money would go into an escrow account and paid out to states over a period of time. The Fed‟l gov‟t distributes money to states who meet certain disposal deadlines. The Access incentive says that States that have low level radioactive waste facilities could begin to increase surcharges and then ultimately deny state service of accepting low level radiation. The “Take Title” incentive says that if state does NOT regulate to provide for the disposal of low level radioactive waste, then it becomes owner of waste and is liable for any damages. RULES: Congress cannot commandeer legislative powers of state government. The federal gov’t may NOT order the state government to enact a particular legislation. Congress cannot compel the states to enact or enforce a federal regulatory program. 10th Amendment: The powers not delegated to the US by the Const., nor prohibited by it to the States, are reserved to the States respectively, or to the people. Fed’l gov’t can act directly on the people, NOT act on the states to act on the people. Const. DOES NOT GIVE Congress the power to act through the states, but directly on the ground, on the people. - 24 - CONSTITUTIONAL LAW I – OUTLINE States must be able to choose which federal legislation to enact. Congress can use incentives and condition receipt of funds with acceptance of fed’l plan. BRIBING STATES. HOLDING: Ct. holds that fed’l gov’t cannot order state gov’t to enact legislation. States cannot be commandeered and must be given a choice. Congress can provide incentives for State to enact legislation (tying funds to accepting fed‟l plan) or give states a choice btw enacting federal plan or having state law preempted by fed‟l law. Ct. holds that Monetary Incentive is within Fed‟l gov‟t‟s power under the C/C b/c it is NOT forcing states to do anything. Tax being charged is an exercise of Congress ability to tax interstate commerce. Distribution of money taxed to states that meet certain guidelines. Congress has power to spend money and extend conditions for spending those monies. Bribes the states, gives the states money to take certain actions. Ct also holds that the Access incentive permits states to interfere with interstate commerce. This is simply an exercise of Congress‟ power under Dormant C/C. States cannot interfere with interstate commerce unless expressly allowed to do so by Congress. Under the DORMANT COMMERCE CLAUSE, Congress has to specify a States‟ ability to take action. The C/C carries with it a negative implication that the states themselves CANNOT hinder interstate commerce b/c Congress has the power to regulate Commerce. Congress can give States‟ permission to interfere with interstate commerce. HOWEVER, the Court holds that the Take Title incentive is CANNOT be upheld under C/C power b/c the State is forced to take title to something, which infringes on state sovereignty. The Ct. holds that you can give a state an incentive, but you cannot use a coercive technique to force them to do it. Ct. relies on 10th Amendment. The 10th Amendment restrains power of Congress, but that limit is not derived from text of Tenth Amendment itself, which is essentially a tautology, but rather, Tenth Amendment confirms that power of federal government is subject to limits that may, in given instance, reserve power to states. Further, the 10th amendment does not TELL us what Cong. can or cannot do. Ct. must look at what powers are conferred upon Congress. The 10th Amend. confirms that fed‟l gov‟t is a gov‟t of limited powers. Congress lacks the power to give the states a choice btw two unconstitutionally enforceable techniques. States would be forced to subsidize low-level radioactive waste, which is also outside of Congress power under the C/C. Ct. holds that the fed’l gov’t is commandeering state action. Congress is NOT asking a local official to participate in the scheme, Congress is telling states to pass a law that itself will regulate the disposal of low-level radioactive waste. C/C gives Congress the power to regulate interstate commerce, but NOT that Congress can tell state how to regulate commerce. NOTE: DISSENT: States petitioned Congress to pass the nat‟l regulation. Things that this law does that States cannot do on their own. States required permission to interfere with interstate commerce. Const. protects the people. States CANNOT consent to an unconstitutional exercise of Congress‟ power. Just b/c the states want it, doesn‟t mean that it is in the best interest of the people. Accountability for legislative action is shady b/c people would NOT know who is to blame. State officials would want fed‟l gov‟t to be to blame; vice versa. IF NO ONE IS ACCOUNTABLE, the freedom or liberties of individuals are in trouble. J. O‟Connor believes that lines of accountability have to be clear so that the people can be able to hold their gov‟t accountable. Printz v. United States, 521 US 898 (1997) The Brady act requires the seller, owner of the store to contact the local chief law enforcement officer. Local chief officer had to ascertain within a reasonable time frame (5 days) whether this person had a criminal history, i.e., could lawfully own a gun. I he discovers that buyer cannot own a gun, he is NOT REQUIRED UNDER THE LAW TO CONTACT THE SELLER, and advise the seller that buyer cannot own a gun. (it was probably assumed). If he did inform seller, Chief Law enforcement officer had to inform the buyer of his reasons why. If the search turned up negative, then officer had to destroy all records generated from search. Sheriffs in Montana or Arizona challenge this law. They object to complying with the law b/c they have their own jobs, so they should not have to do the job of a fed‟l job. They should NOT have to administer fed’l law with their time, energy and budget. RULES: Federal government may NOT compel the States’ to enact or states’ officers to administer (ENFORCE) a federal regulatory program. Congress cannot circumvent the prohibition in New York, by conscripting State’s officers directly. Fed’l gov’t cannot use state executive officials to effectuate fed’l law. Congress cannot commandeer executive officers of state government. HOLDING: Ct. finds that Congress is bypassing state and going directly to state EEs. Ct. holds that this is beyond Congress‟ power. Normally, under Lopez, Congress could regulate the buying and selling of guns (Regulating the channels, instrumentalities & economic component of substantial effects element). However, since the Const. was created, the Federalist papers and early laws that Congress passed, show that the states could voluntarily enforce fed‟l laws, NOT that Congress can force states to effectuate fed‟l regulatory schemes. Further, the Structure of Const. shows that there is an inviable sovereignty of the states that Congress could not reach, and which would be offended if Congress could force state executive officers to enforce fed‟l laws. Accountability for legislative action is unclear and the people would NOT know who is to blame. State officials would want fed‟l gov‟t to be to blame; vice versa. . NOTE: Congress cannot commandeer legislative or executive branch, but Supremacy clause allows commandeering of judicial branch. Supremacy clause itself specifically mentions state judges, and says that state judges have to enforce fed‟l law in state court if claim based on fed‟l and state law. Reno v. Condon, 528 US 141 (2000) Ct. upholds that fed‟l law prohibiting and regulating the sale of DMV information held in States‟ DMV office databases. Ct. states that the law is upheld b/c (1) it is of an article of Commerce that under the C/C, Congress would have the power to regulate within the meaning of Lopez; and (2) per SC v. Baker, the fed‟l law is regulating the states‟ activities rather than seeking to control or influence the manner in which states regulate private parties. The fed‟l law regulates the states‟ as owners of databases. - 25 - CONSTITUTIONAL LAW I – OUTLINE X. STATE SOVEREIGNTY 11th Amendment State Sovereign Immunity & Congress ability to eliminate - 26 - CONSTITUTIONAL LAW I – OUTLINE XI. TAXING, SPENDING , WAR & FOREIGN AFFAIRS Art. I, § 8: “Power to lay and collect taxes, duties, impost and excises to pay the debts and provide for the common defense and general welfare of the United States” TAX POWER Child Labor Tax Case Bailey v Drexel Furniture Co., 259 US 20 (1922) Congress enacted the Child Labor law of 1919 that law imposed federal excise tax of 10% of annual net profits on every ER of child labor in the covered businesses. EEs must employ children of a greater age then 16yrs of age and shall prevent more than 8 hours a day and 6 days a week of work. If ER does not do this he must pay the government 1/10 if his entire net income in the business for a year. How to interpret by what Congress meant by the tax? RULES: TAX POWER cannot be used by Congress primarily to regulate or penalize. Taxing Power may be used to regulate, but not solely for that purpose. Tax power must also be used to generate revenue. Congress has a broad power to tax for general welfare, but cannot tax a matter not-properly taxable. HOLDING: Supreme Ct. holds that a TAX is okay if it has a incidental motive, but when the penalizing features are so dominant then it takes on the role of punishment and is unconstitutional. The Ct. states they would have to be blind NOT to see that the so called tax is imposed to stop employment of children within the age limits. Its prohibitory/regulatory effect and purpose are palpable. Ct. indicates that in Veazie Bank and McCrary v US the fed‟l laws being challenged were both about increase of an excise tax upon subject properly taxable in which the taxpayers claimed that the tax had become invalid because the increase was excessive. In Child Labor case, Congress attempted to get around limitations placed on Commerce Clause power through the use of the Tax Power. Ct. strikes down this SOLELY regulatory purpose/use of tax power b/c the Court found that congress cannot use the tax power to regulate a non-properly taxable subject which it does not have the power regulate. Otherwise, the Tax power allows Congress to Regulate areas that it is not permitted to regulate under the commerce clause. If the ct. grants the validity of the law and all that Congress would need to do hereafter, in seeking to take over to its control any one of the great number of subjects of public interest, would be to enact a detailed measure of complete regulation of the subject and enforce it by a so called tax upon departures from it. SPENDING POWER United States v Butler, 297 US 1 (1936) 1933 Agricultural Adjustment Act. Congress tries to regulate production, offers subsidies to farmers to limit crops and seeks to ensure a fair price. RULES: Congress can tax and spend for any purpose that it believed served the general welfare so long as Congress did NOT violate another constitutional provision. Butler established that the constitutional limitations on Congress when exercising its spending power are less exacting than those on its authority to regulate directly. HOLDING: Ct. endorses Hamilton‟s understanding of the Spending /Tax power as the correct one and rejects Madison‟s argument that the tax/spending power could only be used to carry out the enumerated powers in Art. I. BROAD scope for tax and spending powers. Nonetheless, the Court found that the Act (Agricultural Act of 1933) was not a valid exercise of the power to spend for the general welfare. THE POWER TO TAX IS NOT UNLIMITED, its confines are set in the clause which confers it and not those in Section 8 which grant it and define the legislative powers of the Congress. The power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the constitution. The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production a matter beyond the powers delegated to the federal government. NOTE: Madison argued that Congress can only spend that follow in article I and section 8. Hamilton disagreed when Congress is acting under the spending power it does not need to be acting under the enumerated power. Hamilton maintained that the clause confers a power separate and distinct from those later enumerated is not restricted in meaning by the grant of them, and Congress has a substantive power to tax and to appropriate general welfare of the United States. Ct. found that Congress is allowed to utilize the spending power independent of congress’ other power - even when it is not trying to further its enumerated power. - 27 - CONSTITUTIONAL LAW I – OUTLINE South Dakota v Dole, 438 US 203 (1987) In 1984 Congress enacted 20 USC sec. 158 which directs the Secretary of Transportation to withhold 5% of the federal highway funds otherwise payable to states from any state which permits purchase or public possession of any alcoholic beverage by a person less than 21 yrs old. South Dakota argued that this rule violated the constitutional limits on the congressional spending power and violates 21 st amendment. RULES: Congress can attach conditions to the receipt of federal funds. Congress bribes the states FIVE ELEMENTS (for Congress to reach beyond their spending power authority to get states to do what they want) (1) Congressional law must be made for general welfare  Ct. will grant SUBSTANTIAL DEFERENCE to Congress‟s judgment with respect to determining what is for the general welfare; (2) Congress must make Clear Unambiguous Statement about the conditions on the issuance of money  If Congress desires to condition the states receipt of federal funds it must do so unambiguously enabling the states to exercise their choice knowingly.  State officials knew up front what the receipt of money was going to mean  State residents can hold state official accountable (3) The condition must be related to the federal interest in the spending program  Ct. interprets this requirement very liberally  Ct. finds that the condition is related b/c the purpose of highway funds is to have safe highways and raising drinking age promotes safe highways  Conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs. (4) Whether congress has used the spending power conditional grant to violate a constitutional provision;  Congress cannot make one of the conditions for state to perform or enforce an unconstitutional provision (Independent constitutional bar)  10th amendment concerns will not bar conditional grant of money (5) State’s must retain their ability to freely choose to accept the Congressional/Federal funding  Conditions cannot be TOO coercive such that the state‟s have NO choice  In South Dakota, Congress only withheld 5% of funds, and this was a small amount; so Congress was in effect giving a small incentive for states to raise the drinking age; HOLDING: (MAJORITY) Ct. holds “Here Congress has acted indirectly under its spending poiwer to encourage uniformity in the States drinking age. We find this legislative effort within constitutional bounds even if Congress may not regulate drinking age directly.” It can attach that condition to the receipt of federal highway funds - even though Congress may not regulate the drinking age. Independent constitutional bar is not a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly. Instead we think that the language in the earlier opinions stands for the unexceptionable proposition that the power may not be used to induce the states to engage in activities that would themselves be unconstitutional. (against Butler). DISSENT: J. O „Connor sates it is over inclusive because it stops teenagers from drinking even when they are not about to drive on interstate highway. It is under inclusive because teenagers pose only a small part of the drunken driving problem. O‟Connor asks for a relationship between the spending power and the condition. It would not allow the reach of Congress based on their spending power authority. - 28 - CONSTITUTIONAL LAW I – OUTLINE WAR POWER Woods v Cloyd, 333 US 138 (1948) The Housing and Rent Act is unconstitutional, and that the authority of Congress to regulate rents by virtue of the war power ended with the Presidential Proclamation terminating hostilities. Since that proclamation inaugurated peace in fact though it did not say so. Art. I, § 8, Cl.11: Power to declare war RULES: The war power includes the power to remedy evils which have arisen due to the war and does NOT necessarily end with a cessation of hostilities. HOLDING: Ct. upheld a cap on local rents under the War Power even after the war had ended. Ct. held that Congress could regulate local rents b/c it was necessary to deal with the effects of the war; Congress could continue to use War Power. Ct. did not say when the War Power ended . Ct. assumes that Congress is alert to its constitutional responsibilities. Congress is expected NOT to abuse this case. Ct. recognizes that the war power is available for national regulation of a wide range of problems including those normally left to the state police power. The technical duration of a war is undetermined, but there are concerns to how long that these powers can be exercised. NOTE: The use of war power where the effects of war under modern conditions may be felt in the economy for years and years and that if the war power can be used in days of peace to treat all wounds which war inflicts on our society it may not only swallow up powers of Congress but obliterate 9 th and 10th amendment.. FOREIGN AFFAIRS Missouri v. Holland, 252 US 416 (1920) Congress enters into a treaty with Great Britain and Congress passes a law to protect migratory birds btw Canada and USA. The law was struck down b/c it was not granted the power under the Commerce Clause. MO challenges Wardens authority to enforce. Congress had previously passed a Statute to regulate the killing of migratory birds, but the statute by itself was found unconstitutional. RULES: Congress can constitutionally enact a statute under Art. I § 8 to enforce a treaty created under Art. II § 2, even if the statute by itself is unconstitutional. Art. II, § 2: the power to make treaties is delegated expressly and by Article IV treaties made under the authority of the United States are declared the supreme law of the land. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the Untied States. HOLDING: Ct. holds that U.S. treaty cannot infringe on state power b/c state did not have an international interest as a sovereign prior to the Constitution. There are no federalism based limits on the treaty power; there are federalism based limits on the Commerce Clause. State sovereignty may be infringed under Commerce clause, but NOT by international treaties. States are explicitly forbidden from entering into treaties with foreign sovereigns. The state could not reserve a power it did NOT have prior to the constitution; the fed‟l power to enter into treaties was created b/c of the Constitution. A treaty that the federal gov‟t enters into cannot violate the Constitution. There are no state’s rights based limits on the treaty power. NOTE: Self-Executing Or Non-Self-Executing Treaty: A Non self-executing treaties require that Congress pass a law to make the treaty law in the U.S.. Self-executing treaties become law by their execution. Self-executing treaties can be taken to a court for a cause of action. SUMMARY: No federalism based limits on the treaty power, on the spending power, or war power. The 10 th amendment is NOT a constitutional bar as to the spending power, but at some point if receipt of fed‟l funds are so coercive, the law may be struck down. Tax power is limited by federalism. - 29 - CONSTITUTIONAL LAW I – OUTLINE XII. FEDERAL LIMITS ON STATE POWER TO REGULATE THE NATIONAL ECONOMY DORMANT COMMERCE CLAUSE AS A LIMIT ON STATE POWER Art. I, § 8, ¶ 3 –DORMANT COMMERCE CLAUSE In the absence of Congress regulating interstate commerce, the state’s are pre-empted from passing laws that may have a regulatory effect on interstate commerce. Constitution does not say anything explicitly about state‟s interfering with interstate commerce. A NEGATIVE INFERENCE from the affirmative grant of power to Congress to regulate interstate commerce among the several states. NOTE: The State‟s were passing unfair legislation before AOC, that were beneficial for the individual state but detrimental to the remaining states. The articles of Confederation (AOC), was induced b/c of the interstate commerce competition. J. Jackson: no other federal power was universally determined to be necessary and no other fed’l power was so readily relinquished than the commerce power TYPES OF DISCRIMINATORY LEGISLATION 1. Laws that are Facially Discriminatory a. Per se invalidly unconstitutional i. Text of law is clearly discriminatory; discriminate against out of state residents on its face; ii. treats out-of-state commerce differently (fees are not fairly placed on all individuals) b. State that meets strict scrutiny can have the law upheld STRICT SCRUTINY i. legislature must have an important interest 1. Philadelphia v. NJ, out of state is treated differently than in state waste, so it is subject to strict scrutiny standard; it will be struck down unless the state can show that it has an important interest that is served by the discrimination, and that its interest cannot be served in some other way, that does not discriminate out-of-state residents. 2. However, Ct. recognizes that certain discriminatory laws are constitutional, i.e., quarantine laws are upheld despite being discriminatory, b/c these laws protect the health of the citizens of the state. ii. law must be necessary to achieve that important interest 1. If an alternative exists so that the effect of the law is obtained without discriminating, the law will be struck down as unconstitutional b/c of the non-discriminatory alternative 2. In Philadelphia, a Non-discriminatory alternative legislation available: NJ could have served its waste management interest through other means, i.e., capping the amount of waste that can be accepted and that would have protected NJ interests just as well. Facially Neutral Laws with a Discriminatory Purpose Or Effect a. Discriminatory Purpose is inferred from the effect of the legislation i. Ct. will look to see if the purpose of the law was protectionist (protect instate economic interest) 1. Why is the STATE exempting/taxing/preventing/restricting that X resource is bought or sold by or from out-ofstate or in-state buyer or sellers 2. Ct. can look at the effect of the law: to see if it favor in-state economic interests; and that is proof of the protectionist purpose of the law 3. So, if law says that trash is treated differently if it has a specific toxin, and this may have a discriminatory effect b. If an alternative exists so that the effect of the law is obtained without discriminating, the law will be struck down as unconstitutional b/c of the non-discriminatory alternative i. Washington Apples case, WA apples had a superior grade to USDA grade, but NC required USDA grade; state‟s interest of having high quality applies could be equally well-served by having WA grade and Fed‟l grade, which would not discriminate out-of-state economic interests c. State that meets strict scrutiny can have the law upheld STRICT SCRUTINY (Get same STANDARD OF REVIEW as #1) i. Does legislation seek to protect an important state‟s interest ii. Is the law NECESSARY to achieve the important interest Facially Neutral Laws that Unduly Burden On Interstate Commerce a. No discrimination is in the law, but interstate commerce may suffer b. Pike balancing test: i. Ct. will apply a balancing test to determine whether the benefits the state gains form the regulation outweigh the burdens on interstate commerce 1. Whether the total effect of the law of as a safety matter, would not disserve the national interest in keeping interstate commerce from regulation that seriously impede it 2. Ct. gave little deference to the state‟s determination of safety and purpose of creating regulations, that they affected interstate commerce too greatly 3. as compared to the strict scrutiny test, the Pike Balancing test is easier b/c the ct. will balance the burdens v. the state‟s interest; 2. 3. - 30 - CONSTITUTIONAL LAW I – OUTLINE LAWS THAT FACIALLY DISCRIMINATE AGAINST OUT-OF-STATE COMMERCE Philadelphia v. NJ, 437 US 617 (1978) NJ passed a law prohibited out-of-state waste from coming into the state and going to landfills. NJ would not allow any solid or liquid waste from being dumped in NJ. Law is challenged from out-of-state waste producers and instate landfill providers. RULES: State laws which are basically protectionist in nature unduly burden interstate commerce and thus are unconstitutional. However, a State that meets the STRICT SCRUTINY STANDARD can have the law upheld. STRICT SCRUTINY TEST 1. legislature must have an important interest 2. law must be necessary to achieve that important interest HOLDING: Ct. holds that even if NJ had a valid health concern for its citizens, it could NOT accomplish its purpose by discriminating articles of commerce coming from out of state. MAJORITY: holds that there is a distinction btw diseased meat (harmful on transport) and trash (harmful after it is moved to the landfill). Most effective way to deal with diseased meat is to keep it out of the state. Ct. finds that there must be another alternative to limit the amount of trash in the NJ b/c they strike down the discriminatory law. For instance, taxing for landfill use might cause the out-of-state trash makers to be discouraged and go to another state. State that meets strict scrutiny can have the law upheld. In Philadelphia¸ state seeks to reduce the waste and increase the health of its citizens. NJ may be able to regulate the out-of-state trash by (1) A tax ; (2) A cap on all trash on landfill use; (3) A rezoning of landfills creating less space for trash. Further, Ct. recognizes that certain discriminatory laws are constitutional, i.e., quarantine laws are upheld despite being discriminatory, b/c these laws protect the health of the citizens of the state. Ct. distinguishes quarantine cases b/c NJ HAD TO KEEP THE DISEASED MEAT OUT OF THE STATE TO PROTECT THE PUBLIC INTEREST. In this case, NJ has alternatives to regulate income of trash for NJ landfills. J. Renquist disagrees stating that both the quarantine and the landfill cases, b/c NJ is either regulating out-of-state trash or diseased meat, to protect the NJ consumers. - 31 - CONSTITUTIONAL LAW I – OUTLINE LAWS PROTECTIONIST IN PURPOSE OR EFFECT: State Barriers to Out-of-State SELLERS Baldwin v. G.A.F. Seelig, 294 US 511 (1935) NY Milk Control Act of 1933 set minimum prices to be paid by NY milk dealers. Seelig would buy milk cheaper in VT and sell in NY. NY would NOT give him a license. RULES: State may NOT protect local economic interests by limiting access to local markets by out-of-state sellers, even in the absence of facial discrimination. Unanimous condemnation by this Court of economic restraints on interstate commerce for local economic advantage, but it does not stand alone. What is ultimate is the principal that one state in its dealings with another MAY NOT place itself in a position of economic isolation. The police power may NOT be used by the state of destination with the aim and effect of establishing an economic barrier against competition with the products of another state. HOLDING: Ct. holds that “The Constitution was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and NOT in division. The economic vision was one of free trade, in order that goods, labor and investments might be allocated efficiently by flowing to the place where they are MOST highly valued.” Dormant Commerce Clause patrols free market and promotes price control. J. Cardozo held that states cannot obstruct competition among each other. State can regulate for health but NOT economic welfare of its citizens. Milk would probably be shipped to MA rather than Troy, NY b/c residents on MA have more money and are willing to spend more $ on milk than the residents of Troy, NY. State cannot hoard/protect its in-state resources from being bought by people from other states who might have more $. State‟s natural resource was not being used within the state b/c people from other states were taking it away. Economic protectionism/isolationism is inconsistent with the Dormant Commerce Clause. NY has setup a hostile customs duties system that is burdensome on the free enterprise market envisioned for the entire USA. Ct. states that if each of the few states that produce copper, iron, etc., would restrict exporting, hoard, protect, the state‟s natural resources, economic efficiency will suffer. Ct. is afraid of retaliation amongst the states. Bacchus Imports (1984) HI had a law that exempted state‟s liquor tax on a brandy distilled from the root of a shrub indigenous to HI. Law is discriminatory in its effect and the court strikes it down. By definition, the tax exemption applies only to the locally produced Brandy. Hunt v. Washington State Apples, WA apples have a superior grade to USDA.NC required that only the USDA grade be placed on apple containers. NC law was neutral; it did not explicitly state that out-of-state apples would be discriminated against RULES: If an alternative exists so that the effect of the law is obtained without discriminating, the law will be struck down as unconstitutional b/c of the non-discriminatory alternative Strict Scrutiny: (1) Does legislation seek to protect an important state’s interest; (2) Is the law NECESSARY to achieve the important interest HOLDING: Ct. held that the law was facially neutral but had a discriminatory effect against WA apples in the market. NC was trying to ensure that all apples had at least met the USDA grade. If NC could maintain its minimal level of apple quality, it can be done without having the discriminatory effect. NC could have amended law to allow WA to also carry USDA grade stamp. Get same STANDARD OF REVIEW as Facially discriminatory laws. So, if law says that trash is treated differently if it has a specific toxin, and this may have a discriminatory effect. LAWS PROTECTIONIST IN PURPOSE OR EFFECT: State Barriers to Out-of-State BUYERS HP Hood & Sons v. Du Mond, 336 US 525 (1949) NY required milk dealers to obtain a license for selling NY milk. NY did not want to give Hood (distributor) another license. Hood has three depots in NY; distribute milk to MA. Hood gets NY milk and ship it to MA. NY law requires license to be issued before new depot is given. Commissioner must determine whether the issuance of the license will not tend to a destructive competition in a market already adequately served, and that the issuance of the license is in the public interest. Commissioner is worried that Troy, NY will not be adequately served b/c the milk producers would travel shorter distances to NEW DEPOT; and that milk in Hoods new depot would go only to out-of-state buyers; more producers will be attracted to this ideally located milk distribution plant. RULES: “This Court has not only recognized [the inability] of the state to isolate its own economy as a basis for striking down parochial legislative policies designed to do so (facially discriminatory laws), but it has recognized the incapacity of the state to protect its own inhabitants from competition as a reason for sustaining particular exercises of the commerce power of Congress to reach matters in which states were so disabled.” Restrictions, imposed for the avowed purpose and with the practical effect of curtailing the volume of interstate commerce to aid local economic interests, will NOT be sustained. HOLDING: The Court finds that the law had a discriminatory effect on out-of-state buyers. There is a distinction btw the power of the state to shelter its citizens from menaces to their health or safety, even when those dangers emanate from interstate commerce, and its lack of power to retard, burden or constrict the flow of such commerce for their economic advantage. - 32 - CONSTITUTIONAL LAW I – OUTLINE FACIALLY NEUTRAL LAWS State Burdens On TRANSPORTATION Pike v. Bruce Church, Inc., 397 US 137 (1970) Home state processing requirement. AZ statute required AZ grown cantaloupes advertise their state of origin on each package. Church was AZ grower of high quality cantaloupes. RULE: Where statute regulates even handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved and on whether it could be promoted as well with a lesser impact on interstate activities. Southern Pacific Co. v. Arizona, 325 US 761 (1945) The AZ train limit law prohibited the operation w/in the state of passenger trains more than 14 cars long and freight trains more than 70 cars long. AZ finds that long trains create slack in the back trains causing an unsafe hazard. RULES: Facially neutral Laws that unduly /unreasonably burden interstate commerce cannot be sustained. In deciding whether a state law places an unreasonably burden on interstate commerce, and hence CANNOT be sustained, the Court must balance the nature and extent of the burden which would be imposed by the statute on interstate commerce against the merits and purposes to be derived from the state regulation. Pike, the decisive question is whether the total effect of the law as a safety measure, is so slight and problematical that as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impeded it and subject it to local regulation which does not have a uniform effect on the interstate train journey which it interrupts HOLDING: State regulation must not restrict the free flow of interstate commerce or interfere with it in matters requiring national uniformity. Ct. subjects AZ law to the requirements for facially neutral laws that unduly burden interstate commerce. Ct. suspects that state‟s are protecting their economic interests under the pretext of public safety. Ct finds the following Burdens: (1) higher costs b/c train Co‟s would have to reconfigure trains at the border; (2) less efficient for the economy; more efficient to carry more cars per trip; (3) out-of-state commerce is NOT being treated differently from in-state, but the laws might undermine inter-state commerce. THUS, Ct. does NOT find that law facially discriminate against out of state train companies. At the border of the state, in-state (or out-of-state) trains would have to reconfigure the train to enter the state. Ct. finds that shorter trains may also be unsafe b/c more trains are on the tracks and accident rate increases. Ct. does NOT seem to defer to AZ’s determination on issue. J. Black criticizes the Ct.‟s ruling b/c it makes the trial about safety of a train based on the length of the train. Ct weighs the benefits that the state thinks it gets from the regulations compared to the burden it imposes on interstate commerce. In Southern, the ct. finds that the benefits are small and the burdens are great, so that the law cannot be upheld. NOTE: The state is NOT acting from a protectionist motive in cases like Southern Pacific, arguably these laws are less offensive to the Dormant Commerce Clause Kassel v. Consolidated Freightways Corp., 450 US 662 (1981) IA statute wanted to limit the trucks to 60ft. Rt. 80 is a major highway connecting NY and Chicago. Truck company used 65 ft. trucks. IA allowed TWO EXCEPTIONS to law: Local farm trucks & Towns on the border of IA or the surrounding states. Trucks from a nearby state could come and make deliveries to in-state towns. So IA, was in effect, barring out-of-state trucking traffic. IA tried to pass a bill that would allow 65 ft. trucks but was vetoed by the governor. RULES: A state safety regulation will be unconstitutional if its asserted purpose is outweighed by its degree of interference with interstate commerce. HOLDING: Ct. found that the law was facially neutral and that it unduly burdened interest commerce. IA argues that the purpose of this law is for the safety of the highways. 60 ft is safer than 65 f trucks. The IA legislature did NOT make any findings about the safety of trucks based on length of trucks. No evidence of increased safety on shorter trucks. IA began to argue that trucks that are 60 ft are safer than 65ft trucks during trial. Takes state on their word; but does not grant deference to state legislature, or grants less deference b/c the regulation bears disproportionately to out-of-state trucks. On its face, the law did not treat out of state trucking companies any differently than in-state trucking companies. FURTHER, Ct. finds that more money for IA trucks under this law and that $ would be lost for trucking industry if IA closed its borders. However, there is no harming of out-of-state or in-state interests. Nevertheless, ff all states did it enacted such legislation, it would be dangerous. Ct. finds that the state receives minimal benefits by interferes with interstate commerce so unduly that law is invalid. Prior to congress’s legislation, Ct. may strike down laws using the Pike balancing standards. Ct. in a better position to make decisions b/c it is more nationally neutral than state elected congressmen. DISSENT: believes that IA falls under a facially neutral laws with a discriminatory purpose or effect. J. Brennan believes that the purpose of this law was to discourage interstate traffic. Argument for safety was made by lawyers when it began to be litigated. NOTE: Law was passed in reaction to governor restricting highways. Mdost trucks in IA used smaller trucks. - 33 - CONSTITUTIONAL LAW I – OUTLINE XIII. MARKET PARTICIPANT EXCEPTION TO DORMANT COMMERCE CLAUSE SouthCentral Timber v. Wunnicke, 467 US 82 (1984) Alaska timber being shipped to Japan (mostly). Alaska regulates the sale of this timber. Enacts regulation that requires the buyer of the timber to partially process the timber in Alaska before it was shipped out of the state. Alaska requirement that timber processing be done instate was put into the contract, not a law. South Central Timber (SCT) wants to buy it and ship it to be processed elsewhere. AK argues that Market Participant Exception allows them to regulate timber processing b/c AK is acting as a private company. RULES: If a state imposes burdens on interstate commerce within a market which it is a participant, but which have a substantial regulatory effect outside of the particular market, they are per se invalid under the C/C. If a state is acting as a Market participant rather than as a Market regulator, the Dormant C/C places NO limitation on its activities. White v. MA (1983) Hughes v. Alexandria Scrap (1976): A state’s market participant action is NOT the kind of action with which the Commerce Clause is concerned b/c nothing in the purposes of animating the C/C prohibits a state, in the absence of the congressional action, form participating in the Markey and exercising the right to favor its own citizens over others. The long recognized right of trader/mfr, engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. The Ct. recognized the principle that the C/C places NO limitations on a state’s refusal to deal with particular parties when it is participating in the interstate Market in goods. Reeves, Inc. v. Stake (1980) The Market participant doctrine permits a state to influence a discrete indentifiable class of economic activity in which it is a major participant, White. The doctrine is not a carte blanche to impose any condition that the state has the economic power to dictate and does not validate any requirement merely because the state imposes it upon someone with whom it is in contractual privity. The limit on market participant doctrine (MPD) must be that it allows a state to impose burdens on commerce within the market in which it is a participant but allows it to go no further. The state may not impose conditions whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market. MPD allows state to regulate the Market in which AK (state) is a participant, but not those markets that State is NOT participating in. A state Market participant has a greater interest as a private trader in the immediate transaction than it has in what its purchaser does with the goods after the state no longer has an interest in them. State restrictions burdening foreign commerce are subject to a more rigorous and searching scrutiny. It is crucial to the efficient execution of the Nation’s foreign policy that the federal government speak with one voice when regulating commercial relations with foreign governments. HOLDING: Ct. finds that this regulation is similar to NJ wanted to do in Philadelphia v. NJ. NJ wanted to favor instate garbage companies; AK wants to favor instate processing companies. Requirement that processing must be made in state by purchasers favors AK processing companies over NC, or WA processing companies. Ct. finds that White is different from SCT v. Wunnicke, b/c rather than during the course of an ongoing commercial relationship in which the city retained a continuing proprietary interest in the subject of the contract. It is the substances of the transaction rather than the label attached to it that governs the Commerce Clause analysis (FN 7 – p. 315). Boston is spending its money and the conditions it attaches are within the market in which Boston is participating in. AK was choosing to enter into contracts with those companies that were willing to bind themselves by contractual requirement to process timber purchased in AK to be processed in AK processing companies. Law does seem to discriminate from out of state processing companies. In Philadelphia v. NJ, NJ was not a participant; the state was merely regulating private companies. In SCT v. Wunnicke, AK is selling timber in one Market and is also regulating processing in another related but separate market. If the state is acting as a business entity (making, purchasing, sales decisions) rather than just regulating private enterprise, in that capacity it can discriminate against out of state economic interest. There are some limits on a state or local government’s ability to impose restrictions that reach beyond the immediate parties with which the government’s transacts business. State cannot impose any restrictions it desires. There is NO cap on a state‟s regulatory capacity, but a state has a limited of timber, so there is an inherent cap on regulating its resources through the MPD. AK control over markets downstream could be endless. At some point this looks more like regulation than a decision on who to do business with. Alaska is direct participant in the timber Marker but NOT the processing market. Downstream restrictions have a greater regulatory effect than do limitations on the immediate transaction. Unless the market is relatively narrowly defined, the doctrine has the potential of swallowing up the rule that states may NOT impose substantial burdens on interstate commerce even if they act with the permissible state purpose of fostering local industry. NOTE: MPD as to Cost of Undergraduate Education State Universities are participating in the educational Market, so it can charge less to instate buyers of that educational service than out-of-state buyers of education, just like AK can charge more to out-of-state buyers of timber than in-state buyers - 34 - CONSTITUTIONAL LAW I – OUTLINE XIV. PRIVILEGES & IMMUNITIES CLAUSE Art. IV, § 2 –The citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several states.  CORPORATIONS enjoy no protection under the P&I Clause. Paul v. Virginia, 75 US 168 (1869).  P&I Clause is a rights provision, not a grant of authority to Congress, and so is arguably NON-WAIVABLE by congress.  STANDARD OF REVIEW of P&I denials is arguably STRICTER than the balancing test under the Dormant C/C analysis, though NOT as strict as that for discriminatory legislation as a commerce violation.  Extends NOT to all commercial activity but ONLY to FUNDAMENTAL RIGHTS.  Ct. has recognized NO Market Participant Exception to privileges and immunities violation as it has to commerce clause scrutiny. United Building & Construction v. CAMDEN, 465 US 208 (1984) Camden was developing the city and had a municipal ordinance that required workers of city development to be 40% city residents. Law discriminates against NJ residents and out of state residents as well; Ct. found that the law violated the MPD. Ordinance was adopted in accordance to a state wide program that is applicable to all NJ cities. Local cities were going to be permitted to adopt these kinds of discriminatory practices. RULES: Art. IV, § 2 –Privileges & Immunities Clause: “The citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several states” The Privileges & Immunities Clause applies to municipal ordinances which discriminate o the basis of municipal residence. P&IC only protects discrimination for a FUNDAMENTAL RIGHTS. State cannot discriminate against out-of-state residents with respect to fundamental interest Privileges and immunities that would hinder the formation, the purpose or the development of a single union. Ct. will apply a strict standard of review: The restriction should be substantially related to the advancement of that end. HOLDING: Distinguished from White, Camden law was okay under Dormant C/C, but has aspects that may affect the privileges and immunities clause. The Ct. in White, never got to that issue b/c it resolves the case under dormant C/C. Municipal discrimination is same as state discrimination, even though P&IC says “states shall be entitled…” Cities derive their authorities from the state. Even though residents in Trenton, Nwk are also excluded, the ordinance necessarily excludes nonstate residents, so it raises P&IC issues. A resident of Trenton cannot sue Camden b/c P&IC standing requires Π to be out-ofstate resident being discriminated. Camden seeks to improve the economy of the city, and wants to ensure 40% of workers to be Camden residents. Ct. found that it did not have enough information to make the necessary determination, so it remanded for further proceedings, but the case was settled. Camden must put forward evidence that it really will accomplish its objective by requiring 40% of EEs of public workers to be from Camden. Ct. finds that out-of-state residents are being denied EMPLOYMENT. Ct. finds that the opportunity to pursue a calling is a fundamental right. Ct. has NOT been clear, but in general, clause has been applied in two areas: (1) Access to medical services is a fundamental right to out-of-state rights; and (2) Important economic activities such as when a state discriminates against out-of-staters to engage in earning a livelihood or participating in commerce/economic activity. DISSENT: J. Renhquist: MAJORITY is being formalistic b/c it finds that reduced price for sale of timber with condition that it be processed in state is not protected by MPD b/c AK is acting outside of its initial market of timber-sales. DISSENT feels that AK can achieve the same result by subsidizing the processing, selling only processed timber. J. Rehnquist states that in-state residents don‟t need the P&IC remedy b/c they are represented within the state (lobby, vote, etc. for constituents that represent their interests and go to state legislator to remedy the discrimination. J. Rehnquist says that there is NO assurance that in state residents will look out for out-of-state residents. NOTE: Depends on how we draw the boundaries of the market b/ c Ct. could slice it more thinly in White, but the Ct. does not view the contract for development and the hiring of the workers as the same market; workers are in effect working for the city, so City could regulate this commercial activity The key to the MPD exception to the Dormant C/C is the understanding that a state cannot discriminate out-of-state residents from its commercial markets. A state has ownership of its company and as such the state is a Market Participant. New Hampshire v. Piper, 470 US 274 (1985): State said that its reason for prohibiting out of state residents from being admitted to the bar, b/c in state residents would be more available for court hearings, more ethically well behaved. Ct. finds that there is NO reasonable relationship between the state‟s goals (ethically behavior and familiarity with court rules) and the bar to out-of-state admissions. Means NOT reasonable for the end. Fundamental right to be admitted to bar for non-new Hampshire resident, b/c practice of law is fundamental to national economy Elk hunting license case, no fundamental right to recreational license to hunt elk in Montana, so no discrimination under P&IC NOTE: When constitutional rights are at stake, i.e. violated, then you have been denied a Privilege & Immunity (Free speech, Freedom of religion, Due process). However, no need to rely on P&IC b/c you can sue for violation of constitutional rights. Boe v. Dalton¸ companion to Roe v. Wade, violation of P&IC b/c state was denying a constitutional right to out-of-state resident‟s rights to abortion services - 35 - CONSTITUTIONAL LAW I – OUTLINE XV. 1.  DIFFERENCES BTW Dormant C/C & P&IC ACTIVITIES COVERED BY CLAUSES Difference is between the activities covered by the constitutional provisions o D C/C covers all economic activities o P&IC prohibits states from discriminating out-of-state residents from  Economic acitivities  Constitutional rights  Access to Medical services PARTIES WHO MAY SUE Difference btw parties who may sue o Under DC/C, any individual can sue:  Corporation  Persons o P&IC permits suit only by out-of-state citizens  No corporations  No non-citizens of the united states  a resident alien could sue under DC/C but NOT P&IC EXCEPTIONS TO DC/C & P&IC DC/C has a market participant exception No exception for the P&IC o Prohibits discrimination in whatever form, the fact that the state is participating as a business entity does not get it around the P&IC Under DC/C, Congress has power to authorize states to regulate/burden interstate commerce Congress cannot authorize states to discriminate against out-of-state citizens fundamental rights STANDARDS OF REVIEW Under P&IC, once the clause is implicated, the court will ask: o Is there a substantial state interest? o Whether or not the discrimination is related to a substantial state interest?  Piper, no substantial relation btw means and end Under DC/C there are two standards o Facial Discrimination OR Facially Neutral favoring local economic interest  Strict scrutiny  Requires substantial interest  Ct. requires that the means be necessary to fulfill that interest; cannot be any other way that the state can accomplish its goal other than the discriminatory practice o Not substantially related to the interest o Facially Neutral Law with  Pike balancing test is weaker than P&IC standard of review b/c here there is only a balancing of burdens and benefits 2.  3.     4.   - 36 - CONSTITUTIONAL LAW I – OUTLINE XVI. FEDERAL PREEMPTION P&IC and DC/C are both limitations on state power that apply even when Congress has NOT done anything. Pre-emption applies only when Congress has passed affirmative legislation. THREE TYPES OF PREEMPTION 1. Express Pre-Emption a. Where statute explicitly states that Congress intends this law to pre-empt state law; 2. Field Preemption (Implicit preemption) a. Pervasive (FAA) i. i.e., regulation of Federal Aviation; Congress passes many laws to regulate ii. covers field so pervasively b. Dominant (Immigraiton) i. immigration is a large fed‟l interest; fed‟l law alone regulates this area 3. Conflict Preemption (Implicit preemption) a. Impossible } } } } } } } } } } Implied Preemption Pacific Gas v. State Energy Resources (1983) CA law barred creation of nuclear power plants in CA until a safe way of disposing waste was developed. Congress had specifically enacted legislation to give power to Fed‟l gov‟t over nuclear energy. Utilities companies are challenging the new law under California. CA law targeted economically feasibility since waste was NOT being disposed and was accumulating. RULES: Fed’l law is supreme, fed’l treaties are supreme, constitution is supreme over state law. Fed’l judges are to respect Fed’l law nothwithstanding state law to the contrary. Supremacy Clause – Art. VI, § 2. If congress says explicitly that the fed’l law shall trump whatever state law is applicable in any state.  i.e., fed‟l minimum wage law pre-empts state minimum wage law  Congressional law to regulate factory pollution, and stating state‟s cannot do so Field Preemption Absent explicit preemption language, Congress’ intent to supersede state law altogether may be found from a “scheme of fed’l regulation so pervasive, as to make reasonable inference that Congress left NO room to supplement it b/c the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of the state laws on the same subject, or because the object sought to be obtained by the fed’l law and the character of obligation imposed by it may reveal the same purposes Conflict Preemption Impossible: where application or upholding state law will make fed’l law unsustainable; Obstacle: When state law is an obstacle to the full purposes of the fed’l law State law is not specifically in conflict but would frustrate the purpose of the fed’l legislation, when the state denied benefits (that were supposed to be given) HOLDING: Ct. finds that state shall determine price, cost to consumers, etc. AEA determines Fed‟l safety laws in nuclear power plants. State law is left to regulate that which is not regulated. Congress has only occupied the portion of the field dealing with the safety of nuclear power energy and thus allows for preemption b/c entire field is NOT regulated. Ct. finds that CA was motivated by economic concerns and since Atomic Energy Act does not take away the state’s power to make these kind of economic decisions. CA is basing its decision on cost and thus is NOT within the field of SAFETY regulation of nuclear power plants. AEA affirmatively DOES NOT say that state has to build nuclear power plants. AEA promotes the development of nuclear energy. CA frustrates the purpose of creating nuclear energy. CA does NOT deal with Safety so it does NOT frustrate the purpose of the AEA act. FED’L LAW REGULATED SAFETY, NOT ECONOMIC FEASIBILITY, and so left that field (economic feasibility) to the State; so CA state‟s regulation based on economic principles, seeks to establish atomic energy as a economically viable option as an energy source; as such, no preemption issue b/c state is allowed to regulate this part of the field. NOTE: Pre-emption is the easiest way to strike down state law; when we do NOT have a fed‟l law, ct. will used implied limit on commerce clause (DC/C) to strike down State law. Constitution provides with limits on state actions and these limits are ABSOLUTE bars on actions - 37 - CONSTITUTIONAL LAW I – OUTLINE XVII. EXECUTIVE ENCROACHMENTS ON LEGISLATIVE AUTHORITY Separation Of Powers Separation of Powers  Vertical Separation of Powers o Nat‟l gov‟t & State gov‟t  Horizontal Separation of Powers o Congress  President  Courts EXECUTIVE ENCROACHMENTS ON LEGISLATIVE AUTHORITY The Steel Seizure Case Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952) Executive order issued by President seizing steel companies to prevent a strike during Korean War. President sent copy of order to Congress the next day. Steel companies challenged the order. Dist. Ct. granted preliminary injunction. Union said it would strike on April 9th. Executive Order about 1 day before April 9th. Steel Union sought to enjoin order. Argued before Supreme Ct. on May 12. Decision of Supreme Court issued on June 2nd. The companies challenged his power to take such action as being w/o constitutional authority OR prior congressional approval. RULES: Executive Power is vested in the power of the United States. He has whatever power comes with being the executive. Const. Art. II, § 1: Taft-Hartley act of 1947 regulates labor unions. President has the power to enjoin labor unions from striking President has power to make decisions about day to day fighting in a theater of War. President has power to enforce/execute the law, but cannot create legislation. HOLDING: MAJORITY (J. Black). Whether President is Enforcing policy v. legislating distinction? President is supposed to get Congress to pass a law by recommending a law to Congress. Congress was discussing a response in case of a strike, but did NOT act; negotiations btw Unions & Companies fell through. Separation of Powers was to PREVENT tyranny. Concentration of power increases likelihood of tyranny. President has power to enforce/execute the law, but cannot create legislation. President will be making policy when creating a law. Congress makes the policy. Ct. found that Executive was NOT enforcing legislative policy, but simply legislating b/c congress has not passed any law. Court says that past instances were short episodes (where president seized companies) and they were NOT enough of a pattern to represent Congressional acquiescence. J. Frankfurter, acknowledges that these instances occurred, but that they were not enough in scope, duration, to represent a real pattern in Congressional acquiescence. CONCURRING: J. Jackson provides a 3 part framework (heavily cited). J. Jackson & Frankfurter, conclude that president lacked the power b/c Congress had denied the President the power to seize the steel mill. Ct. finds that Congress did not authorize president to take such an action; as such, Truman exceeded his power as president. Under the Taft-Hartley Act, Congress had considered an amendment to the Taft-Hartley act to allow President to seize companies to avert a strike. President could not confiscate steel companies during war. THREE SITUATIONS WHERE PRESIDENT CAN ACT: (1) Congressional authorization (a) President’s power is the greatest (2) Twilight zone (a) Congress has neither affirmed or denied presidential authoriry (b) Decision on case will depend on the circumstances: contemporary impondenrables and facts of the time (3) Congress denies president power to do what he is doing (a) President’s power is at his weakest DISSENT: Refers to this limitation on executive power the “Messenger Boy” role of the President. Riding bicycle to the capitol to get them to pass this law NOTE: Ct. suggests that Congress might have invoked the “necessary and proper clause”; OR the C/C power and say that it was necessary and proper to regulate interstate commerce; OR the War Power: Congress has power over army, navy, etc. C/C argument stating that a strike would substantially effect interstate commerce and Congress‟ spending power to compensate steel mill owners for this taking of their property. Art. I § 2 – Presidential Powers  Commander in Chief of Army & Navy (and of the militia of the several states)  May require opinion in writing of the principal officer in each executive department (Requests opinions from cabinet members).  May grant pardons (Clinton pardoned Mark Rich, Ford pardoned Nixon)  May make treaties, if 2/3 of Senate concurs  May appoint ambassadors, judges of supreme court, officers of USA o Includes cabinet members  May fill vacancies that may happened during the recess of the Senate Art I, § 3 – Executive Take Care Clause  Shall take care that the laws are faithfully executed and shall commission all officers of the USA  Congress supplies the Army & Navy;  President is protecting steel to supply Army & Navy o President is responsible for ensuring that Military is successful  Ct. interprets the Commander in Chief clause quite narrowly o Does not want to give so much power to president o Difficult to draw line for President‟s power to stop - 38 - CONSTITUTIONAL LAW I – OUTLINE EXECUTIVE AUTHORITY TO MAKE NATIONAL DOMESTIC POLICY FORMALIST V. FUNCTIONALIST APPROACH  J. Black‟s majority opinion was formalist o His approach was a rule and verse type of approach o Only looks at Constitution without looking at how law would work in society o MAJ was trying to draw a line o If there is NOT any statute that particular names the President that allows to take the property, then President should not be allowed to do so o FORM OF THE ACTION THAT MATTERS: passing a law or enforcing a law  J. Jackson concurring opinion was functionalist o Must look at the purposes of the President‟s effects o THREE CATEGORIES 1. Express or Implied Authorization of Congress (Pres. Power is @ PEAK) a. Might be able to do what in fact looks like legislation b/c at this point he personifies fed‟l sovereignty 2. President acts in the absence of a Congressional grant or denial (Congress is SILENT, but also has NOT denied that power) )(in Zone of Twilight) a. Distribution of power is uncertain i. No clear guide/way to predict whether or not president has the power ii. Pragmatic: any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than abstract theories of law 1. can not determine whether Pres. has power until court see the circumstances to guide Court in determining the Pres. Power 3. Express or Implied Approval a. Little ability to act when Congress has forbidden to do sp i. Congress can not infringe on Pres. core authority (as commander in Chief) ii. Congress cannot override an appt. of a President‟s appointments b. WEAKEST exercise of Pres. power in this category c. Pres. execution of laws under this category, where Congress has prohibited Pres. action, then Pres. power is @ its weakest  Jackson finds that Ct. is in 3rd category b/c there are express or implied approval o Rejection of the amendment of the Taft-Hartley act would have given him this power expressly  Jackson & Frankfurter rely on rejection of amendment to state that Congress has specifically disavowed and NOT given this power to the President to approve the power to seize steel mills before a strike Black‟s MAJORITY  Asking whether president is executing laws or legislating them? Jackson‟s CONCURRING OPINION  Three category that determines whether an Act should be allowed or enjoined o In Dames & Moore v. Reagan, there is NO clear guidance  What if Pres. act is in between the categories?  How does the Ct. predict whether or NOT pres.‟s power will be upheld when Congress is SILENT? NOTE: In 1943, Pres. power changes at this time. We are in the day to day fighting of the theater. WWII; in the middle of mobilization . Congress could have seized the steel mills in 1943. Declaration of war is expressed or implied authorization from Congress. - 39 - CONSTITUTIONAL LAW I – OUTLINE EXECUTIVE AUTHORITY OVER FOREIGN & MILITARY AFFAIRS Dames & Moore v. Reegan, 453 US 654 (1981) 11/04/1979, embassy in Tehran was invaded; USC taken hostages. Congress declared an emergency and blocked removal of all properties, assets, interests of the gov‟t of Tehran. Gov‟t of Iran owed $3.4B Dames & Moore to build a power plant. Iran had not paid them the money that was owed. Went to court to try to recover the money. Dist. Ct. issued orders of attachment directed to several Iranian banks. Orders of attachments allows the taking of property if it becomes available prior to court deciding the case. Carter entered into an agreement to resolve all contractual issues with Iranian gov‟t. Carter did so to gain a bargaining chip into releasing the hostages. Right after the revolution of Iran 19 workers taken as hostages in US embassy and held for one year. One aborted attempt to rescue the hostages. U.S. agreed to (1) terminate all legal proceedings currently in US courts against gov‟t of Iran and move them into arbitration; (2) nullify any judgments existing against Iranian gov‟t (judgment entered; prejudgment attached, etc. are now non-existent); (3) American gov‟t had ordered US banks to not be released and that these banks now releases assets back to Iranian government. Dames & Moore bring lawsuit against Donald Reagan, no relation, who is secretary of the treasury, to enforce judgment that they had won. ISSUE: Whether the President has the power to enter into foreign negotiation treaties to settle the claims with foreign nations? Terminate legal proceedings? Nullify judgments? Settle any claims in arbitration? Transfer assets in US banks to Iranian gov’t? RULES: Pre-Judgment Attachment – where a Party requests that Ct. attaches the property of another party so that that money will be available when judgment is finally reached IEEPA § 17, Pt. 1: Pres. may nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of,… HOLDING: Ct. embraces Jackson‟s three part test. Renhquist was a law clerk to J. Jackson. Under this approach, is there express or implied authorization from Congress? No specific statute gives specific authorization. Statutes seem to sort of give an implied authorization. Ct. finds that the Pres. act of transferring assets was taken pursuant to IEEPA authorization. Under Category 1 of Jackson‟s 3 categories, b/c Congress expressly and impliedly granted President’s authority to act in this way, President was able to specifically order a transfer back to Iran. HOWEVER, Ct. says that one ACT by the Pres. was NOT authorized by the IEEPA, b/c the Statute does NOT authorize the suspension of claims against a foreign gov‟t. The statute does NOT give the president the power to do this act. HOWEVER, Ct. finds that this dismissal of all legal claims was impliedly authorized by Congress. Ct. also points to many prior instances where President has settled claims of USC with foreign countries (longstanding practice) and Congress has acquiesced and court has upheld those settlements. The president was acting within his power b/c Congress had expressly given the president the power to nullify and attachments and to transfer any assets to a foreign gov‟t and as far as suspension of claims, the IEEPA did NOT say president could do so; but given broad discretion and that Congress had acquiesced in the past to similar acts of presidential authority, Ct. concludes that president had authority to settle claims in US Fed‟l Ct.s. Ct. provides for a flexibe power. Congress can NOT anticipate all events. SO, SINCE Congress had given him broad discretion. Congress had acquiesced in the past. The Supreme Ct. relies recognizes an implied acquiescence to such a power to settle claims with Iran. Congress has not specifically disapproved of this action. Implied authority to take Executive action even though Congress did NOT specifically authorize it. NOTE: How problematic it would be to challenge the President‟s authority b/c Iranian gov‟t would have deal fall apart; going forward, other gov‟ts would doubt executive power. Need for country to speak with one voice; president‟s ability to represent the ability of the country. - 40 - CONSTITUTIONAL LAW I – OUTLINE XVIII. EXECUTIVE DISCRETION IN TIMES OF WAR ON TERROR War Powers Resolution passed in 1970 was an attempt to reign in Pres.‟s power to engage military into hostilities without Congressional action Congress‟s view of what president needs to introduce troops into hostilities (1) declaration of war (2) specific statutory authorization (3) emergency by an attack on the country  President Can Get an extension of 60 days, but w/o approval, Congress can require that the troops be brought home  Forces abroad shall be removed by the president if the congress so concurs by resolution o This provision only applies to the 3rd category  President uses troops when there has been an emergency from an attack on the USA  Provision of Congress under emergency attack can allow congress to order the troops home o Congress can pass statutes; President can veto EXECUTIVE DETENTION OF ENEMY COMBATANTS Ex Parte Quirin, 317 US 1 (1942) Four Πs are citizens of Germany, and USA was @ war with Germany. Πs arrived from Germany in a submarine with explosives; landed in Amagansett Beach on Long Island, NY. They had instructions to destroy war facilities and war industries. Charged with violations of the laws of war; taken to Chicago. Violating laws of war b/c they were not dressed as soldiers (unlawful enemy combatants). Under Geneva conventions, you are entitled to protections and guarantees (if you are dressed formally as a solider). These individuals are what are known as UNLAWFUL enemy combatants (dressed as civilians). Lawful enemy combatants are held as a prisoner of war and are tried and cared for under the Geneva conventions . US gov‟t wants them tried by a military tribunal instead of a civil court. A civil trial would guarantee them more procedural protections (trial by jury; wouldn‟t have on in a military tribunal). President Roosevelt ordered that they be tried as UNLAWFUL enemy combatants in military tribunals. Πs argued president does NOT have any power to try them in a military tribunal. RULES: The detention and trial of foreign espionage and sabotage agents within the United States during time of war, by military commission appointed by the President, is constitutional. Lawful enemy combatants are those individuals wearing the uniform; Geneva conventions dictate how those individuals are to be treated. Unlawful enemy combatants are NOT covered by Geneva conventions. Geneva conventions protect rights of lawful enemy combatants. The law of war distinguishes btw armed forces and peaceful populations of belligerent nations and also btw those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as POWs. UNLAWFUL combatants are subject to capture, detention and military tribunals b/c f their belligerent and unlawful acts. US Citizenship does not protect someone from being tried as an UNLAWFUL enemy combatant in a military tribunal. HOLDING: 1st category under J. Jackson‟s test b/c there express authorization from Congress giving president broad discretion to act. Ct. found that President had power under declarations of war to trial unlawful enemy combatants in military tribunals during WWII. Congress did give president power to try enemy combatants in military commissions. Matthews v. Eldridge, 424 US 319 (1976) Weigh private interest against gov‟t interest and whether gov‟t‟s burden would be too great. Ct. relies on such a case to come up some procedures to protect someone who is being detained as an enemy combatant. “Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected…More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” - 41 - CONSTITUTIONAL LAW I – OUTLINE EXECUTIVE DETENTION OF ENEMY COMBATANTS after 9/11 Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004) US citizen captured in Afghanistan war zone. Hamdi went to Afghanistan in August 2001, and joined Taliban military unit. Hamdi stayed with unit after 9/11. Hamdi was captured with rifle when that unit surrendered to northern alliance. Hamdi is USC. Moved to Saudi Arabia with his family as a child. Held in Norfolk, VA. Hamdi‟s father alleges that son went to do relief work and that he was trapped in Afghanistan when war broke out. Hamdi in Norfolk, VA when case is decided, not held in Guantanamo. In his habeas corpus petition noted that Hamdi resided in Afghanistan. Gov‟t alleges that Hamdi was fighting with the Taliban in Afghanistan. Dept. of defense official declared that he had read the various reports that had been filed; various interviews btw Hamdi with US military officials. Gov‟t is saying he is undisputably an enemy combatant. President claims Authority under the AUMF (Authorization for Use of Military Force) passed by Congress after 9/11. Hamdi challenges AUMF b/c no specific mention of detention. Also challenges non-detention act as applicable to USC. ISSUES: Whether an enemy combatant has an avenue available to challenge the president’s designation as an enemy combatant? Whether president has authority to detain enemy combatants? RULES: The Law Limits president’s authority to detain a USC unless Congress has authorized him to do so. The President does not have to return enemy combatants to the field b/c the AUMF implies the Fundamental rule of war that commander in chief can detain enemy combatants. President can detain someone for as long as the conflict lasts; President can only do so as long as there are active combat operations. Art. I, § 9 – Writ of Habeas Corpus: Privilege of habeas corpus shall NOT be suspended unless in cases of rebellion/insurrection, such that the public security should require it. Writ can be suspended and Ct. has ruled that Congress has right to suspend the writ, NOT the president; Ct. decided this issue when Lincoln, during the civil war suspended the writ; BASICS OF DUE PROCESS (1) Notice of the allegations are against him; (2) Opportunity to be heard before (3) A neutral decision maker;  Military tribunal (4) Right to Counsel Protections NOT given  Presumption in gov’ts favor, against Hamdi,  Gov’t is required to put forward hearsay evidence and  Hearsay may need to be accepted as the most reliable evidence  Constitution is NOT offended by presumption against Hamdi if there is a fair opportunity to challenge rebuttal presumption Ct. finds that President has a Presidential power to detain alleged enemy combatant b/c the AUMF satisfies the 1st category of Jackson‟s 3 part test which established that the President has either an EXPRESS or IMPLIED AUTHORIZATION to act. The President does not have to return enemy combatants to the field b/c the AUMF implies the Fundamental rule of war that commander in chief can detain enemy combatants. President can detain someone for as long as the conflict lasts; President can only do so as long as there are active combat operations. Hamdi argues that enenmy is NOT clearly defined; operations might be ongoing for a long time. Hamdi claims that this could be indefinite detention. In traditional war, enemy maybe detained until war is over, but no one knows when WAR ON TERROR will end. Ct. finds that as long as hostilities are ongoing in Afghanistan, then that is how long they will hold him. Ct. does not get to that question b/c there are still active, military operations in Afghanistan. What Process is Due to someone declared to be an enemy combatant? President does have power to detain enemy combatant, but NOW the question is what process does Hamdi have to challenge designation of enemy combatant. Hamdi can use writ of habeas corpus to challenge his detention. Gov‟t argues that as long as there is some evidence that Hamdi is an enemy combatant than the Ct. should stay out of their designation. Gov‟t is concerned that they will have to release too much confidential information into public knowledge. A trial of Hamdi might reveal some National Security secrets. Gov‟t loses to either keep him detained or release him and allow him to harm the USA. Gov‟t will have a lot of hearsay evidence b/c (1) they are at war; (2) they cannot use criminal investigations procedures at a battlefield; (3) Gov‟t will NOT bring in the capturers into trial; (4) If gov‟t has to rely on regular evidence, NOT hearsay evidence, it will be hard to convict detainees like Hamdi; (5)Designation by gov’t as enemy combatant, creates a rebuttal presumption that Hamdi has to prove that he is NOT an enemy combatant. Ct. does NOT address Hamdi‟s right to Discovery, Subpoena witnesses, etc. HOLDING: DISSENT: J. Suter writes an opinion arguing that the AUMF does NOT authorize the president to detain enemy combatants so question about process of challenge to detention is not needed. J. Scalia finds that where a US Citizen is found fighting against his country, he is brought up on charges in civilian court. Charge him with treason or some other crime and has to release him. Rejects argument that AUMF suspends writ of habeas corpus. Not appropriate for court to substitute procedures that should be decided. J. Thomas dissents saying that NO procedures should be provided. This ruling interferes with president as commander in chief and court should have NO role in reviewing that determination NOTE: Habeas corpus – Latin, “to turn the body over”; enables you to go into court and to petition court to review potentially unlawful detention. A great writ ; a bulwark of liberty. Also, allows state prisoners to challenge conviction in a federal court; after they have been convicted. Hamdi challenges executive detention in the absence of the trial. Gov‟t released Hamdi and went to Saudi Arabia and he is with his family. Rather than provide the above specified hearing. Hamdi was an American citizen and that is why he was being held in the USA - 42 - CONSTITUTIONAL LAW I – OUTLINE Rasul v. Bush, __ US __, 124 S.Ct. 2686 (2004) ISSUES: Whether detainees in Guantanamo could file habeas corpus? RULES: Anyone can petition a federal court for habeas if they are in the respective jurisdiction of that court. Supreme Ct. held that the so long as the Custodian of detainee could be served by the Federal Court then the fed’l Ct. has jurisdiction for habeas petitions; as such, Rumsfeld & bush can be reached by Washington DC fed’l ct. HOLDING: Yes. Guantanamo detainees are NOT USC‟s. Initially held in Afghanistan and administration moved them to Guantanamo bay in Cuba. HOWEVER, American military base on a lease signed prior to Castro. A perpetual lease; unless the US abandoned the base, the US can lease it, so USA has exclusive jurisdiction. THUS, Federal courts did have Habeas jurisdiction over individuals NOT being detained in the US, as long as the individual detaining them had service of process. Ct. holds that 28 USC § 2241 reaches those imprisoned in Guantanamo by U.S. Custodians. Habeas court extended to individuals NOT being held in the USA. Detainees sued in Washington, DC fed‟l court; detaiens usu. sued Rumsfeld or Bush and b/c they could be reached by service of process; fed‟l ct. had jurisdiction over Rumsfeld or Bush so the ct. has jurisdiction. NOTE: As per Hamdi, AUMF gave military right to detain enemy combatants. Gov‟t established a procedure to determine whether or NOT these individuals were enemy combatants. Gave each detainee a short, review hearing. Professor Denebaum issued a report about combatant status review tribunals. Truncated procedures that have been provided. In addition to establishing that individuals are enemy combatants; gov‟t has decided to try some of these enemy combatants for crimes. NOT just simply whether they are enemy combatants that can be held for the duration of the conflict, but the Gov‟t can imprison or execute them irrespective of the duration of their detention Hamdan v. Rumsfeld, __ US __, 126 S.Ct. 2749 (2006) (108 pg. decision) An enemy national detained at Guantanamo bay. Held for conspiracy to commit war crimes. Alleged to be a body guard and driver for Osama bin laden. Administration wants to try Hamdan in military commission. On 11/13 the president issued a comprehensive military order intended to treat the detention and trial for a non-citizen during the war on terror (Terrorist activity against USA. Member of al qaeda. Executive order allowing for Hamdan to be tried in military commission). s ISSUES: Whether Guantanamo detainees can be tried in military tribunals? Does president have authority to order that non-citizens be tried by military commission? Can president try detainees, not just detain these individuals? Ct. finds that the military tribunals set up to try Hamdan were unauthorized by statute and contrary to international law. Initially, President claimed that he had inherent powers to try such individuals and did not need authorization. Ct. does NOT get to that questions b/c Ct. finds that President had power to try such individuals because § 21 detailed the Articles of War. Ct. holds that a state of war is NOT a blank check for the President. Fed‟l ct. have habeas jurisdiction and Hamdi indicated that detainees were entitled some procedures to challenge detention as unlawful enemy combatants. Ct. said that in order for it to review Presidential actions, the Court should look towards the Matthew v. Eldrige Test to guarantee basic due process procedures. Matthews v. ELDRIDGE TEST: (1) Notice; (2) Opportunity to be heard; (3) Neutral decision maker; AND (4) Entitled to Counsel. Detainees NOT entitled to FULL BLOWN TRIAL. Hearsay evidence is NOW admissible. Presumption in the Govt’s favor once gov’t puts forth evidence that individual is an unlawful enemy combatant. The req‟d “Challenge” Procedures DO NOT HAVE TO BE OFFERED by a fed‟l court. These due process requirements could be satisfied by a properly constituted military tribunal. President points to AUMF and Patriot act to give him this authority (Ct. finds in Hamdi that AUMF is authorization to detain enemy combatants). HOWEVER, in Hamdan, Ct. finds that AUMF does NOT provide authority for enemy combatants to be tried in military commission. The Ct. finds that Art. 21 in Uniform Code of Military Justice allows for trial in military commissions. Military courts shall jurisdiction to try court Marshalls (when military officer commits a crime). Law allows president to create commissions for crimes that are normally tried in military commission or authorized by Congress by statute. Ct. interprets this as authorization by Congress to try detainees in military commissions. Further, the Ct. places the following restrictions on president‟s use of military commission. (1) Any procedure, prosecution has to be in compliance with the laws of war; (2) Protections of the Geneva convention have been incorporated by Congress in this authorization in the Uniform Code of Military Justice (3) Congress has made the Geneva conventions applicable by saying that these commissions have to apply to the laws of war. If Congress had said that military commissions can be had without compliance to the Geneva Conventions, then Ct. will have to determine whether Geneva conventions apply. HOWEVER, Ct. finds that the Commissions have ONE MAJOR PROBLEM: No right to be present during evidence being made against you, so the person who is being tried can be excluded from the evidence and the evidence can be heard in secret by neutral decision-maker. All laws must be the same as a regularly constituted court, say as in a military tribunal. Ct. interprets it to mean that it has to be the same as what a court Marshal will provide. Military tribunal if similar to court marshall must be the same. Must be same as a Regularly constituted court. Requirements/Protections given to detainees: Notice, Opportuniry To be Hear, Neutral Decision maker, Not Properly Constituted. However, no one knows who will be the neutral decision maker. Military tribunal inherently requires Geneva Convention protections; HOWEVER, Ct. holds that Commissions are against Geneva Conventions which Congress has said are applicable by saying that military commissions must comply with laws of war. Guantanamo detainees tried in military tribunals without Geneva conventions protections. HOLDING: NOTE: During Hamdan, Ct. held that the Detainee Treatement Act , which was passed right before Hamdan was going to the Supreme Court, only applys to future cases; not to apply to any case that was pending. The law removed jurisdiction from fed‟l courts to hear claims from Guantanamo detainee. The Detainee Treatment Act was NOT authorization to try individuals like Hamdan in military commission. HOWEVER, Congress has NOW passed a law taking away habeas jurisdiction over ALL the Guantanamo detainees,, regardless of the fed‟l court jurisdiction prior to that law. Unitary Executive: all of the executive power is given to the President and President alone and has significant, inherent authority. President has inherent authority to act unchecked by Congress. - 43 - CONSTITUTIONAL LAW I – OUTLINE XIX. LEGISLATIVE ENCROACHMENTS ON EXECUTIVE POWER LEGISLATIVE DELEGATION CREATES EXECUTIVE AGENCIES Legislative Delegation –Congress delegates some law making or legislative authority to another body. Congress delegates to bodies/agencies certain rights that are in furtherance of laws that are created by Congress. Separation of Powers may be infringed through delegation.. However, arguments exist that delegation DOES NOT contradict the Constitution. The Separation of Powers is NOT affected b/c a DELEGATED DUTY IS SOMETIMES INTERLINKED WITH DUTIES ALREADY ASSIGNED TO THE PRESIDENT. The Constitution does NOT separate powers entirely; there is some blending and overlap. President does have power to veto a bill; congress must override a veto by 2/3 vote. The Constitution states that making laws is the province of the legislature. Nonetheless, Congress delegates to an executive agency: IRS, DEP, EPA, IRS, SEC, FCC and FEC. Congress often passes a law and tells the agency to fill in the details. Agencies enforce general principle established by Congress and then agency will create regulations and adjudicate disputes. Agencies regulations are laws under CFR. Modern Administrative Agencies Possess a real challenge to the Notion of the Separation of Powers b/c they possess all 3 powers that Constitution attempted to separate. Agencies enforce the law b/c they prosecute people who violate the law; they make rules, i.e. legislate and they adjudicate b/c they have administrative law judges who hear/try these cases. HOWEVER, the Supreme Ct. has generally upheld this state of affairs. Agencies make regulations in CFR. CFR contains all regulations = enormous. Rules agencies approve are law = if you violate them, you violate the law. Court has upheld this framework recognizing that in today‟s modern world, with a country this size, NOT practical for congress to make all laws itself. Although congress likes to delegate power to agencies, congress seeks to retain control over how agencies exercise discretion/authority RULE: Const. says that the making of laws are under the power of the Legislative branch, i.e., Congress (the House & Senate). Congress is precluded from Delegating. Ct. has required only that Congress must lay down some intelligible principle to guide the rule making authority of each agency. When it comes to legislative delegation, the Ct. finds that such delegation is permissible so long as Congress sets out some intelligible principle to guide the agency o Agency is enforcing a principle that Congress decided on Reasons That Congress Delegates Legislative Authority  Congress does NOT have the time to spell out all of the rules to govern the country  Agency would be better equipped b/c they are dealing with individuals on a daily basis and they build up expertise; They can use expertise to fill in the policy o Congress sets up the overall policy but agency fills in rules  Much more EFFICIENT to have Agency pass small laws o Does NOT tie up Congress in making these laws  Congress may NOT want to make these decisions itself, so it passes the BUCK o Do NOT WANT TO BE HELD RESPONSIBLE for limiting emissions NOTE: Congress has indirect control of agencies b/c they fund the agencies. Congress can cut funding where agency makes rules that Congress does NOT like. There are indirect ways to control agencies: (1) Hold hearings OR (2) Reduce budgets. - 44 - CONSTITUTIONAL LAW I – OUTLINE LEGISLATIVE VETO TO CONTROL EXECUTIVE AGENCIES INS v. Chadha, 462 US 919 (1983) Chadha had overstayed his Student Visa. He went before the IJ to get the AG suspend the deportation of any individual who was about to be deported. AG / IJ must determine that there was extreme hardship. Law also gave the House to override the AG’s determination. Congress used a one house veto system to overrule the previous decision by AG that was made in Chadha‟s favor. Congress gave House an oversight on AG. Congress wanted to create a check on AG‟s discretion;Congress wanted to have the final say. In this case, Congress did NOT want to delegate 100% of this authority. Congress delegates this authority to Executive Power/Agency BUT wants to PREVENT ABUSE. RULES: Congress cannot reserve veto power over agencies decisions. Congress cannot maintain control over the executive branch once it passes the law. When it makes the law, then it is the Executive’s job to enforce the law even if Congress has delegated that power to that Agnecy. Ct. finds that it is Unconstitutional for Congress to provide for a VETO power that skirts the bicameral and presentment requirements of Art. I, § 7. Legislative VETOS are NOT constitutional. A one house veto would NOT comply with bicameral and presentment requirements of constitution. Const. Art I, § 7, Cl. 2 -3 Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law. Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill. Bicameralism – the necessity for approval by a MAJORITY of both house of Congress when ratifying legislation, or approving other legislative action. Presentment – the act of brining a Congressional decision before the President for his approval.. Any legislation enacted by Congress, which requires both houses to approve it, must be presented to the president. Congress is allowed to delegate to an agency of the Executive, BUT cannot delegate to itself. HOLDING: Ct. finds that The One House Veto made laws contrary to those LAWS DELEGATED TO THE AG. Ct. is concerned that Congress might give different labels to bills and get around presenting them to the President. To override AG decision, Congress has to perform these two-house veto bicameralism/presentment procedures. HOWEVER, the Agency/AG can waive deportation without going through both houses of Congress and NOT having President passing off on it, BUT Congress is NOT allowed to challenge/change AG‟s discretion without bicameral review. Congress cannot maintain some role in how that law is implemented. Once it leaves Capitol Hill Congress’ ROLE is done. Further, the Framers intent is upheld and Constitution‟s vision of separation of powers is paramount to our govt‟s when the Court upholds a Formalist Vision of Constitution, which maintains the bicameralism/presentment requirements despite the growing necessity of Congress to regulate and enforce its general policies delegated to executive agencies. While it may be MORE (too) difficult for Congress to pass a law and have it approved by both houses (bicameralism) and the President (presentment), these are the Constitutional requirements that must be met. If Congress retains a VETO power, it must meet the BICAMERAL & PRESENTMENT REQUIREMENTS, but this is NOT NECESSARILY MORE EFFICIENT. DISSENT: J. White is critical of the majority. Legislative VETOS are NECESSARY b/c Congress needs to have some way to control legislation by delegated agencies. NOTE: Chadha is about a one house veto. However, after Chadha, in the same year, the Ct. also struck down a two house veto. Congress allowed for review with two house veto, and Complies with BiCameral Requirement but NOT presentment requirement. RULE: UNCONSTITUTIONAL for Congress to allow for a two house legislative vetos to review agencies decisions b/c these review procedures satisfy bicameral requirements BUT fails presentment requirement. - 45 - CONSTITUTIONAL LAW I – OUTLINE LINE ITEM VETO POWER GRANTED TO EXECUTIVE OFFICER Line Item Veto Case Clinton v. NY, 524 US 417 (1998) After congress passes another law in the future, and after the president signs it, the President can delete provisions of that bill. PORK – added on to a bill to get it passed; certain provisions/special interests/ PORK is spending money. Congress allowed president to approve general bill but REMOVE PORK put in by other members to get bill to pass. OVERALL CONCERN is to reduce spending/balance budget. Congress cannot remove the PORK b/c certain senators/congressmen keep the BILL tied up. Cutting out bridge to nowhere, bridge to NEVER land keeps bill stalled. Congress‟ idea is that if you give the president to do this after the fact, then the President can go through to find out what type of spending is NEEDED or NEEDED RULES: Congress cannot bypass bicameral and presentment requirement for challenging legislation as required by the Constitution . Line Item Veto Law gave president power to remove certain parts of a bill after President signed it. Line Item Veto Act gives president authority to delete/remove provisions from later enacted law that he has already signed and approved THREE (3) TYPES OF PROVISIONS PRESIDENT CAN DELETE/REMOVE (1) Dollar amount of discretionary budget authority  Spending bill with a dollar amount for something to be spent in president’s discretion (2) Item of NEW DIRECT SPENDING  Bridge to nowhere in ALASKA, connected an island of 25 people and cost $100M to build (3) Cancel any limited tax benefit Supreme Court finds that the End of giving the President some discretion as to how money is spent, is permissible and constitutional, but the MEANS that Congress has chosen is IMPERMISSIBLE b/c they do NOT comply with the bicameral and presentment requirements. HOLDING: Ct. holds that the Line Item Veto LAW is unconstitutional b/c gives president legislative power b/c he is cancelling a provision; he is changing the later law. Where the President would be enforcing a federal law when obeying provision to NOT spend all the money allocated for a bill, then he is not legislating but merely exercising his executive authority. Further, Ct. finds that the Bicameral and Presentment Clauses are violated by Line Item Veto Act. President is cancelling the provisions AFTER act becomes law and is LEAVING Congress out of the legislative process. Even though the Line Item Veto Act has been approved by both houses of Congress & the President, the fact that he cancels some provision, means that he is enacting a NEW law; and president cannot enact a NEW law without NEW provision being approved by both houses of Congress and being presented to President. If Congress wants to control spending, it has to add in every bill that President cannot spend all money allocated in the Bill. Ct. is concerned that the President will have power over members of Congress; as such, a Slippery Slope will develop where President can soon be cancelling entire bills. Ct. finds it dangerous to allow efficiency to override the Constitution. DISSENT: HYPO: If Congress passes a law that says President cannot spend all money allocated for particular law. Also, Congress can put a provision giving President discretion as to spending NEXT to the spending provision of the law OR could have an asterisk to give President discretion to prevent spending all the money. Why can‟t congress put asterisk in another bill? In the Line Item Veto Act? Where the President would be enforcing a federal law when obeying provision to NOT spend all the money allocated for a bill, then he is not legislating but merely exercising his executive authority. NOTE: The Ct.‟s allowance of legislative delegation shows a pragmatic response to the problems of the modern administrative state; these decisions: Legislative Veto Case (Clinton v. NY) and Chadha represent a more formalist view of Constitution. RULE: Where constitution states that a specific procedure should be followed and the procedures are NOT followed; then the Ct. will strike it down for unconstitutionality. Constitutional protection provided in NY v. Clinton is hard to reconcile with legislative delegation which engulfs legislative, executive and judicial powers. Congress wants to control what the Executive Brach does by using legislative delegation/legislative veto. HOWEVER, Congress may also control by retaining some control over the REMOVAL of those officers. RULE: No legislative vetos/No Line Item Vetos. Bicameral and presentment requirements must be met. President cannot cancel spending provisions in general. President can be given discretion on a bill-to-bill basis to NOT spend all money that is allocated. - 46 - CONSTITUTIONAL LAW I – OUTLINE XX. CONGRESSIONAL CONTROL OVER EXECUTIVE OFFICERS EXECUTIVE APPOINTMENT & REMOVAL Art. II, § 2, Cl. 2 – The Appointment Power of Constitution [The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. APPOINTMENT OF PRINCIPAL AND INFERIOR EXECTUIVE OFFICIALS 1. Principal officials are appointed by President with advice and consent of Senate a. Cabinet officers, Heads of depts.. 2. Congress can regulate that Inferior Officers (those who report to superior officers) to be appointed by a. By president alone b. In courts of law c. Heads of department REMOVAL OF EXECUTIVE OFFICERS Art. II § 4 says that executive officers may be impeached. Constitution is silent (Does NOT) about removal of subordinate executive personnel.. However, Ct. has held that President has inherent authority to remove executive officers. Even though cabinet officers requires advice of Senate, President can remove without advice of Senate Buckley v. Valeo, 424 US 1 (1976) Congress had given itself power to appoint members fed‟l election commission (FEC). RULE: Congress cannot grant itself power to appoint inferior officers. Any appointee exercising significant authority pursuant to the laws of the USA, is an officer of the US, and MUST therefore be appointed in the manner prescribed by the Appointments Clause. HOLDING: Ct. holds that if congress wants to vest the appt authority in other branches, it can do so under Art. II, § 2, Cl.2, BUT congress cannot do appoint executive officers themselves. Further, since FEC officers are NOT heads of departments, Congress cannot appoint them directly. Finally, the FEC officer is an executive officer b/c he exercises executive and quasi-judicial tasks, which Congress CANNOT do. - 47 - CONSTITUTIONAL LAW I – OUTLINE Bowsher v. Synar, 478 US 714 (1986) Congress attempts to control agency other than through veto power. General Accounting Office (GAO) is the investigative arm of Congress. (Office of management and budget is an executive department, i.e., the White house‟s budget office). The GAO is the Congressional budget office; it is the Office congress relies on. Gen‟l Accting office is independent of executive and congress and it serves as a watchdog and Congress relies on it to oversee executive agencies. GAO studies how gov‟t spends taxpayer dollars; conducts audits esp. during Nixon. The Comptroller General is head of GAO and is appointed by President. Comptroller General (CG)exercises executive power b/c he interprets spending provisions of BALANCED budget act. Hemkes decisions about what budget cuts are going to be made. CG was given this role as part of the balanced budget act. Congressional budget office are each to estimate the budget deficit for next year. Comptroller General will submit which budget spending is to be reduced to comply with balanced budget. President approves the cuts. Per Balance Budget Act, the removal of CG can be accomplished by (1) by impeachment OR (2) by joint resolution by Congress; (3) if PRESIDENT vetoes it, Congress has to pass it by 2/3 approval to override the veto. ISSUE: Whether Congress can remove executive officers by itself? RULES: Congress can neither remove executive officers NOR can it give executive authority over offices for which it has removal power. The assignment of executive powers to an agent or officer of the legislative branch violates the doctrine of separation of powers. Power to Remove is power to Control. HOLDING: Ct. finds that this role of Comtproller General is an exercise of executive authority. It is a problem for congress to retain control over his removal b/c Cognress could NOT create executive authority to itself. Ct. views what Congress has done here is to have created an office within Congress and having given executive authority to that office. Congress encroaches EXECUTIVE AUTHORITY by giving itself this sort of power. The “Joint resolution removal provision” still allows Congress has some control over how the laws are executed. Congress is supposed to pass the laws and be done with it. MAJORITY does NOT dispute that Congress can impeach the Comptroller General. The Const. gives House power to impeach and Senate to convict, but the Removal provision makes Comptroller general more independent b/c requires presidential approval for removal. Ct. analogizes Chadha with Bowsher, where in Chadha, the legislative veto was held unconstitutional; here the Ct. finds that Congress CANNOT have power to remove an executive officer b/c the power to remove is the power to control. President will be only one with power to remove the comptroller general. NOTE: In 1921, appointment and removal provisions are created. It was not until 1985 when balance budget act is passed, that the comptroller power is given this power over the budget; which gives the comptroller‟s role the nature of executive. If Congress can withhold funding from the position of the Comptroller general, and it is permissible; why is it any worse to let Congress simply remove who is in the office of the Comptroller General? Why does court formally apply Con Law in area of legislative vetos, but allows Congress discretion to delegate legislative powers? MAJ is hard pressed to explain exactly what the concern is? They can say what is the framers intent, and it is easier. Tyranny happens when we have too much power in anyone branch. Gradual encroachments will result in a concentration of power in one branch. But there is a difficult connection to make. Hard to visualize or to imagine what kinds of tyranny will likely to result from this provision. Much of these programs are benign, not affirmative powers to control military. After Bowsher, the comptroller general can be removed by the President alone, and gives comptroller more pressure to ensure that he is in line with the President, and President NOW has more control over legislation. President is regaining his power to enforce/executive powers. Myers v. United States, 272 US 52 (1926) Congress passed legislation that provided that certain groups of postmasters could NOT be removed by the President without the consent of the Senate. RULE: President has a constitutional right to select those who were to act for him under this direction in the execution of the laws. Conversely, the President would also have the powers to remove those for whom he cannot continue to be responsible. Congress cannot place limits on officers who are exercising purely executive powers HOLDING: Ct. found that President has an implied (reasonable implication from Art II executive powers) to select who works for and thus, who he can remove. The EXECUTIVE enforces/prosecutes the law. The AG prosecutes cases, which is at the heart of the law. Humphreys Executor v. Untied States, 925 US 602 (1935) Federal Trade Commissions makes rules governing trade and executes laws. Agency has quasi executive /legislative roles. RULE: Congress MAY place limits on president’s removal of officers who exercise quasi executive and quasi legislative powers HOLDING: Congress can place some limits on president‟s power to remove these officers where the officers are NOT exercising only executive powers, but are also legislating. - 48 - CONSTITUTIONAL LAW I – OUTLINE Morrison v. Olson, 487 US 654 (1988) Ethics and Gov‟t act of 1978. Law allows for independent counsel to investigate high ranking gov‟t officials and was passed a few years after Watergate. With respect to Crimes taking place at highest levels of gov‟t, there needed to be someone with some independence to investigate alleged crimes within the gov‟t. Usu. the president would appoint councils to appoint investigators, but under Nixon, that would be the problem. Independent council gets appointed by AG. AG goes to a special divison in DC circuit and recommend an independent council. Ct. selects the special investigator and that is all court does. If AG has reason to believe that there is the NEED to investigate a of an high ranking gov‟t official. AG MUST GO to special divison of the US Ct. of appeals DC Circuit. The DC Circuit has a 3 member panel that appoints independent council and defines jurisdiction. Ct. will define investigatory scope of special council and special council‟s power will be limitedto the investigatory powers of AG. This Appointment does NOT violate appointment clause b/c of the dstinction btw principal and inferior officers. RULES: Congress can vest appt. of executive officer in president alone, courts of law or by heads of dept. Principal officers are appointed by the president with the advice and consent of the senate. Inferior officers are appointed by president alone, courts of law or by heads of dept. Congress cannot give itself the power to executive officers. Limitation on President’s power to REMOVE IC does NOT unconstitutionally infringes on executive power. FLEXIBLE STANDARD: whether the removal restrictions (as lmiting AG for good cause shown) are of such a nature that they impeded/interfere with the president’s powers to perform his constitutional duty to take care that the laws be faithfully executed? HOLDING: Ct. holds that there is NO VIOLATION OF APPOINTMENTS CLAUSE b/c Congress has chosen to vest appointment of independent council in special division of DC circuit (inferior executive officer appointed by courts of law). Ct. looks at the circumstances and concludes that indep. Council is INFERIOR OFFICER. (1) The Duties of Independent Council (IC) are limited to investigating certain crimes under IC law and has Limited jurisdiction; (2) the Tenure is temporary b/c it is NOT a permanent appointment, for when purpose is completed, IC loses its position; finally, (3) the IC can be removed by the AG for good cause shown b/c IC is answerable to a principal as an inferior officer. Ct. found that judiciary was NOT incongruously exercising there powers. IC is inferior officer b/c the scope of the IC responsibilities is inferior to the AG. Cannot investigate any crimes that they seek fit. Must limit themselves to the jurisdiction prescribed by the special division based on AG‟s report. The Special Division ONLY APPOINTMENTS THE IC. The AG takes over in a supervisory provision in that the IC reports to the AG. Ct. finds that this is dispositive b/c special division (judiciary) does NOT supervise IC investigations. Ct. only appoints and defines scope of IC’s investigation per AG’s report. Ct. finds that judicial role is NOT A VIOLATION OF ART. III. AG can remove IC if AG believes there is good cause to remove. Normally, removal can be done for any reason where inferior officer is subordinate to principal officer. However, the IC cannot be removed for any reason: GOOD CAUSE MUST BE SHOWN. Congress placed this limitation on President‟s removal power b/c President can direct what AG does. Under a Myers standard (“Purely executive v. quasi executive/quasi legislative”), because the President is the chief law enforcement officer of the country, the Independent Council falls on the side of purely executive side. For this reason, the conditions on removal of the IC, would be unconstitutional. HOWEVER, Ct. rejects Myers distinction btw the types of officer involved. IC is charged with investigating and prosecuting individuals. Existence of IC takes away president‟s ability to control the enforcement of the law in a particular area, and since the President is NO longer in control of enforcing the laws against a certain group of individuals b/c this power was handed over to the IC. Ct. holds that the real question should be whether this interference with president’s duty substantial enough that it impedes the president’s from performing its constitutional duty to take care that the laws are faithfully executed ? Ct. holds that the president has some ability to remove the independent council, if the independent council is engaged in misconduct or president has some other good cause to remove IC. Finally, Ct. has FOUR REASONS to find that IC is constitutional and does NOT impede presidential duty to take care that laws are faithfully executed.: (1) Limited power/jurisdiction, (2) president still retain some control (small piece of president power pie)( IC lacks significant policy making and legislative authority) and (3) important to have IC b/c it ensures that President is above the law; without the INDEPENDENCE, the IC cannot pursue/investigate the president and his buddies. DISSENT: J. Scalia said that AG could single out anyone and who could then get special division appointment. IC can be used solely for political reasons. Ct. can rely on the press, the voters will NOT allow president to abuse his authority. IC would have too much power in the hands that is NOT accountable. Executive power has control over all executive authority, and to give some of that authority away to some inferior officer who cannot be fully controlled by president, then Congress is interfering with the President‟s authority to enforce laws/ perform executive power. NOTE: IC expired in 1999. Congress did NOT renew independent law (in anticipation of BUSH into office) J. Scalia predicts that the IC would be politically motivated and there would be NOTHING to control that individual. Bipartisan agreement to let IC lapse. President can still appt a special counsel to investigate crimes within executive but does NOT happen through this procedure. WATERGATE SCANDAL: SATURDAY NIGHT MASSACRE Nixon appointed council to investigate Watergate breakin and cover up. Council requested recorded tapes. Nixon refused and order AG to fire special council. Nixon retained power to fire council b/c AG appointed special council. AG refused to fire, so Nixon fired AG. Nixon requested deputy AG to fire special council, deputy AG refused, Nixon then fired deputy AG . 3 rd highest AG, Bork now confirmed member of Supreme Court, fired the independent council. In early cases, Ct. distinguished: Congress could NOT limit President‟s power to remove officer who exercised purely executive functions. Congress could limit President‟s power to remove officer who exercised executive and legislative functions. - 49 - CONSTITUTIONAL LAW I – OUTLINE Mistretta v. United States, 488 US 361 (1989) Congress created US sentencing commission to apply uniformity as to how federal judges were sentencing fed‟l crimes. Judges normally developed some rules and guidelines, BUT it varied from judge to judge. Congress wanted to change lack of uniformity. Congress established USSC to establish guidelines that judges were to follow. USSC had to consist of 7 members which were appointed by president but THREE must be fed‟l judges. President gets a list of 6 from conference of fed‟l judges to choose from. Guidelines provided different factors that judge should look for to determine sentencing. Leader in criminal enterprise gets higher sentence; Certain types of weapons get higher sentence; OR Δ accepts responsibility for crime and cooperated gets lesser sentence. Guidelines were mandatory on fed’l judges. Commission itself is located in the judicial branch. Congress envisioned this commission as being part of the judicial branch. Commission was deciding what kinds of sentencing was due for certain crimes ISSUE: Was this an unconstitutional delegation of legislative authority? HOLDING: Ct. found that (1) Congress provided specific instructions and intelligible principle that would guide the commissions works; (2) judges involvement in this commission does NOT violate the separation of powers b/c judges were already making rules to govern judicial procedures (civil procedure) and judges were already making decisions about sentencing, so NOT incongruous for fed‟l judges to come up with sentencing guidelines that would govern other fed‟l judges; (3) members of commission could be removed by the president where Art. III judges can only be removed by impeachment, and the President is only removing them from commission NOT from fed‟l judgeship. Ct. doubted that any fed‟l judge would try to curry favor with the president to get appointed to commission or stay on commission. CT. allowed these arrangements under USSC and found them permissible b/c they did NOT present an aggrandizement or an encroachment by one branch into the territory of another branch. DISSENT: J. Scalia says that congress has created a junior varsity judiciary. NOTE: Ct. struck down the fed‟l sentencing guidelines as a violation of the Cosntituion‟s 6th amendment requirement of trial by jury. Guidelines could only be a recommendation, NOT mandatory. Mistretta shows extent to which Ct. is flexible exercising. Morrison & Mustretta (More flexible approach). Line Item, Chadha, & Bowsher (Formalist approach). - 50 - CONSTITUTIONAL LAW I – OUTLINE XXI. EXECUTIVE PRIVILEGE & IMMUNITIES EXECUTIVE PRIVILEGE US v. Nixon, 418 US 683 (1974) President‟s privilege of executive immunity. Ct. evaluates privilege b/c of Watergate scandal. President is NOT above the law. In the interest of justice, the President‟s communication to his cabinet or staff was admissible at a court of law. Special Council is trying to get audio tapes of conversations, IC law developed b/c Archibald Cox got a subpoena from fed‟l judge to get audio tapes and Nixon appealed to the US supreme court. Audio tapes contained specific information that Members of Nixon cabinet were breaking into the democratic headquarters in Watergate hotel. Nixon was taping every conversation he had with someone in his office; no one new about this. A guy named Alexander Butterworth testified before congress and he mentioned the president‟s tapes. Congress did NOT know about it. President tapes all conversations. Nixon began by turning over transcripts of some of the tapes, but refused to turn over some of the tapes themselves. Fed‟l ct. issued a subpoena for tapes. Fed‟l ct. had indicted other members of the Nixon and needed tapes to prove there case. Nixon was an unindicted co-conspirator. Nixon argues that he DOES NOT HAVE TO TURN OVER TAPES b/c he has EXECUTIVE PRIVILEGE. (IMMUNITY would be protection from being prosecuted/being sued). Here Nixon is claiming a PRIVILEGE NOT to turn over confidential communications btw himself and his cabinet members. Constitutional does NOT mention a privilege. Nixon claims this privilege b/c (1) a branch of the gov‟t CANNOT infringe on another power (CONSTITUTIONAL) where as here the judicial branch is DEMANDING from the president for copies of his confidential communications, which infringes on his separate sphere. Similarly, if President would infringe on judicial branch to turn over memos from law clerks; (2) Executive privilege necessary in order to get Honest Candid advice requires that have to be confidential Nixon needs to protect the confidentiality of the Aides b/c they WILL be less candid in advice and communication (PRUDENTIAL). The General population has to comply with subpoena, but NOT president. Nixon claims Ct. cannot even review this. The Ct. should take the president‟s at his word that he has a presidential privilege. Whether or NOT he has a privilege should be determined by President. RULES: Absent a claim of need to protect military, diplomatic, or sensitive national secrets, an ABSOLUTE, UNQUALIFIED presidential privilege of immunity from judicial process under all circumstances does NOT exist. When under a criminal investigation, the President has a presumptive privilege for confidential state secrets or issues of national security, and in order to keep the information privileged, President must show a substantial need for that privilege. STANDARD TO DETERMINE APPLICABILITY OF PRESIDENTIAL PRIVILEGE 1. President is presumed to have a privilege for confidential information b/c it may contain state secrets or disclosure will harm national security. a. Ct. must find that NEED must substantially outweigh the President’s presumptive privilege; b. A Generalized assertion of interest in presidential privilege is NOT enough to outweigh the Ct.’s need to present this evidence for a fair administration of criminal justice system c. A presidential interest that is more specific, say for, diplomacy or national security may be enough President has PRESUMPTIVE PRIVILEGE and in order for that privilege to NOT be outweighed he must have a specific need to keep information privileged HOLDING: The Supreme Court cites Marbury v. Madison, “duty to decide what Const. means and to decide whether Const. gives the President this privilege.” Ct. rejects that there is an ABSOLUTE/AUTOMATIC privilege. Ct. finds that there must be a balance between president‟s claim of privilege and judicary‟s need for information. STANDARD: Substantial need may outweigh the PRESUMPTIVE PRIVILEGE. Ct. needs this evidence for fair administration of criminal justice system (in order to make sure that these individuals get a fair trial) and President has an interest in protecting this particularly, confidential information. Here, the President asserts a Broad general interest privilege as such, the Ct.‟s need for a fair trial substantially outweighs the president‟s general privilege. NOTE: Nixon deals only with CRIMINAL investigations. Ct. does not speak about civil or congressional investigation. The need for disclosure might NOT be stronger in a civil/congressional investigation. However, 9/11 investigation might trump presidential privilege. - 51 - CONSTITUTIONAL LAW I – OUTLINE EXECUTIVE PRESIDENTIAL IMMUNTIY Presidential Immunity 1. President has ABSOLUTE immunity from civil lawsuits brought against him for any actions done in the scope of his official responsibilities, while he is in office. 2. If took place while he is exercising his official responsibility, he is immune from suit Clinton v. Jones, 520 U.S. 681 (1997) Paula Jones worked for state of AR, alleged that a conference a state trooper told her to meet president at a motel room. She resisted; she was retaliated against in her job. She sued president Clinton for monetary damages. Brought lawsuit after president was already in office. President Clinton does NOT claim that he is absolutely immune from suit, but that while in office, the president holds a temporary immunity and case cannot go forward while he is sitting as president . President argues that suit should be dismissed b/c (1) distractions would be created to his role as executive office and (2) ruling otherwise would encourage frivolous lawsuits for actions he took prior to being president which would be politically motivated. ISSUE: Whether president be sued for actions he took before he came into office? Can that lawsuit proceed while he is still in office? RULES: President does NOT have temporary immunity while in office for actions taken before he was president, but he retains ABSOLUTE IMMUNITY for actions taken while in office. President can NEVER be sued for any action he takes pursuant to his official responsibility. HOLDING: Ct. finds that frivolous lawsuits would be dealt with and distractions would NOT prove to be much of a distraction from his duties. Suit went forward. Clinton was deposed. Clinton disputed what word sex; what word “is” means and then he was impeached. Ct. seems extremely naïve. J. Stevens asserts with some confidence that SUIT WILL NOT distract. Stevens is considering the time constraints for the president/. Did not seem to take into account the larger distraction. J. Stevens believes dist. Court could accommodate the president‟s schedule. - 52 -