Con Law: Professor Currie
I. Is there Something Wrong with a Law?
A. Federalism: problems between state and federal governments 1. Who Gets to Regulate Whom?
McCulloch v Maryland (89): Court finds that Congress has the power to establish a National Bank. Then finds that the states cannot tax it. Justifications: Part one of the opinion (see below) Part two of the opinon: - The states can’t have power over federal government (power to tax is power to destroy) because structure of Constitution forbids it (it creates a federal government). - Marshall implies there is a conflict with the federal law simply because Congress created a bank (though they could have statutorily protected it from taxes). Never clarifies if the state law conflicts with statute creating bank or Constitution. Johnson v Maryland: Court strikes down a state law requiring federal mail drivers to get a state license because the power to regulate is also the power to destroy. . Garcia (209): (allowing Federal government to subject state governments to min wage/ max hour legislation) Federal government may regulate state activity (so long as within an enumerated power) (this case overruled an earlier case, and may have effects in the other relationships) - Limits on Garcia: - Printz (Supp 16): Federal government cannot regulate states to force them to do something as a sovereign. Federal government cannot ―coopt‖ state executive officers and make them enforce federal law. - NY v United States (212): Federal government cannot force states to regulate something (nuclear waste). This would be ―cooption‖ of state legislature. - Limits on this limit: - Extradition (because Constitutionally-mandated state duty) - Motor Voter Laws: Because Constitution already allows the conscription of state officers to do elections. Currently, law is: states can’t tax or regulate federal activities. Federal government can’t tax state activities, but can regulate them (so long as not in sovereign capacity).
2. Who Gets to Regulate What?
Limits on Federal Government
NECESSARY AND PROPER to an Enumerated Power McCulloch v Maryland (89): Court finds that Congress has the power to establish a National Bank. Then finds that the states cannot tax it. Justifications: Part one of the opinion: - Necessary and Proper to Tax, Borrow, Commerce, and War Powers - In order to be considered within an enumerated power (necessary and proper to it), Marshall says the action must meet the following criteria - The END must be legitimate (must be one of enumerated powers) - The means must be plainly adapted to achieve the end - The action must be consistent with the letter of the Constitution - The action must be consistent with the spirit of the Constitution Commerce Clause… Gibbons v Ogden (159): When NY tried to give a monopoly on its waters, this conflicted with federal law giving rights of passage on those waters. The Supremacy Clause led to invalidity of the state law, partly because this area (regulation of interstate transportation) was CLEARLY within federal interstate commerce power. However, also discussed whether or not the state had any power in the arena at all (is the commerce clause exclusive?). Wickard v Filburn (189): Regulation of the amount of wheat Mr. Filburn can grow for his own consumption is closely enough related to interstate commerce. United States v Darby (191): Commerce clause gives power to regulate anything that AFFECTS interstate commerce. Coombs: Fed law makes theft from a shipwreck a crime. Upheld under commerce clause powers. Southern Railway: Fed law may regulate automatic couplers on railway cars even if they are traveling locally on a track that does interstate travel because safety is important in keeping commerce going (accidents slow commerce) Shreveport Rate Case (166): Court upheld federal regulation of intrastate rates because they substantially affected interstate commerce. Darby: Said Congressional purpose is irrelevant to the validity of the statute (even though they were regulating to achieve local effects with respect to child labor, the effect on commerce was enough to justify it). Also, commerce power can be used to restrict commerce as well as to encourage it because this fits within purpose of the commerce clause. Old Tests Directness/Indirectness—no luck Manufacturing is for states, commerce is for feds (The Knight approach)—no luck. How remote is too remote? Schecter Poultry said federal government can’t regulate after interstate commerce takes place, sales etc. New Test
Lopez (142): Court finally put a restriction on federal power under commerce clause. Said it does not extend to regulating guns in schools. Court says federal government may regulate that which AFFECTS interstate commerce only if it is an ―ECONOMIC ACTIVITY.‖ Morrison (Violence Agnst Women Act): Also struck down because not an economic activity. Congress can’t change this simply by talking a lot in statute about effects on interstate commerce. Essence: Extreme Remoteness of effect cuts against federal power. Regulated activity must be perceivable as economic. REMEMBER: this new part of the test only applies if the activity is remote from interstate commerce, not if the activity IS interstate commerce.
Tax Power More limited (in some ways) than Commerce power. Cannot be used as a pretext! But its subject matter is not limited at all! The tax must fulfill the ―purpose‖ of the tax power, which is to raise revenue. This idea is straight outta Marbury. This review is, however, limited to seeing if the tax generates revenue at all. Hammer (173): Child Labor Act struck down because has effects on purely local matters (Holmes dissented and later his view was adopted). Congress then tried to tax child labor out of existence. This was also struck down. This stayed struck down. Why? Because tax power is different from commerce power. The purpose is to raise revenue and therefore taxes cannot be used that raise NO revenue. Commerce power is plenary and can be used to restrict or promote commerce. Spending Power Early case: Butler: Federal government NOT allowed to bribe farmers to grow less wheat. Also held, however, that power to spend is NOT limited to the achieving of other enumerated powers. After conceding this point, the result of the case makes no sense. This case therefore doesn’t jive well with modern cases. South Dakota v Dole (244): Allows Federal government to BRIBE states to alter the drinking laws. Condition must be related to the purpose of the grant (this is met when highway money is conditioned on drinking laws). Nowadays pretty much no limit on spending power. Limited by: ―General Welfare‖ Can’t bribe states to do unconstitutional things Must be unambiguous conditioning so states may make informed choices. Congress may say how to spend money, but not other unrelated things. Note that a naked bribe is fine
Foreign Relations Missouri v Holland: Holmes says treaties can do that which Congress alone cannot do. But he means only that it is not limited by the enumeration. It is still limited by other Constitutional things—as is later clarified. Reid v Covert: clarifies that treaties can’t take away Constitutional rights. But can do other than enumerated powers. Some suggestion that treaties can only do that which can only be achieved through concerted action. Curtiss Wright: Gives broad congressional power with respect to foreign affairs. This is not within enumeration, but necessarily lies with federal government.
Limits on State Government Because of Federalism Concerns
When Congress has spoken to the issue… (or forbids state regulation) Supremacy Clause - When there is a conflict - In determining if there’s a conflict, may look to purpose of statute (e.g., purpose of river permits given to Indians was not the same thing as regulating whether there could be fishing there) Gibbons (159): NY gives monopoly for steamboats on NY waters. Federal law allows passage on the waters of the United States. This is an area where federal regulation is appropriate (see above) and so state law is overridden. - What about when there is no federal law on the subject? Dormant Commerce Clause. When Congress is silent… Dormant Commerce Clause (does it exist?) 2-step Balancing test is used. NY v Miln: NY required ships to give states a list of passengers. Court said this was a police regulation, not a regulation of commerce, so it’s OK. This test looks to strength of state’s interest and is generally used to uphold laws. - Another distinction drawn was ―uniformity test‖ which looked to extent of interference with interstate commerce, and was generally used to strike down laws. S. Pacific v Arizona (states can’t regulate length of trains): We can balance the interests implicated by the above two tests 1. Is law discriminatory? (If law is discriminatory, the law is prima facie void—PA v NJ re: ban on imported wastes) 2. If law is facially neutral, weigh the interests - state police interest is given more weight than state commercial interest
(Barnwell case, however, said states CAN regulate weight of trucks. Implies it’s hard to predict results of test) One exception to dormant commerce clause limitation: market participation - Reeves sets the outer limit of this exception. State can’t regulate too far down commercial line.
When Congress has spoken to the issue and allowed state regulation… Although originally, this was not allowed because Congress could not give states power the Constitution denied them (assuming the dormant commerce clause is real). See Cooley (265) Now, it is allowed that Congress ―regulate‖ by delegating to states. See Wilkerson v Rahrer (345). Does this mean that commerce power exclusivity is waivable? New rule says generally that Congress may allow states to regulate, but courts will still strike it down if it is discriminatory (perhaps even de facto discrimination)
Other Limits on State Laws
Privileges and Immunities Prevents discrimination against citizens of another state (note that commerce clause prevents discrimination against interstate commerce, no matter who it regulates) Does not apply to use of state money (like in state tuition) Does not include political privileges (like voting)
B. Within the Federal Government, Who Gets to Do What?
We have discussed powers of legislature (because these are general federal powers above).
What are the powers of the EXECUTIVE?
The President (Article II) Enumerated powers include: faithfully execute the laws, Nation’s Chief Executive, Commander in Chief Youngstown (356): Can’t seize the steel mills either because it’s not among his enumerated powers (could not even do it if Congress were silent) or because Congress had forbidden him to do it, hence his powers were at their lowest ebb (less strong limit on exec). - Real Q is how much discretion the president has in how he ―faithfully executes the laws.‖ POWER STRUGGLES BETWEEN EXECUTIVE AND LEGISLATURE How specific must Congressional authorization be? NONDELEGATION DOCTRINE (Article I powers can’t be given away) - In Currie’s class, nondelegation has everything to do with separation of powers and nothing to do with procedures - Schecter Poultry: Struck down a law for giving too much discretion to the executive. - Has Congress made the basic policy decision and laid down an intelligible principle?
Yakus: ―fair and equitable‖ prices OK. But note that there were specific instructions on how to calculate this. Cable case: Court used canon of constitutional avoidance to read a statute narrowly to avoid a delegation problem. Clinton v NY (Line Item Veto): Modern delegation case, even though court denies it. But their problem with the statute was that it lacked standards.
Who may remove/control executive officers? Problems with Article II. Myers (391): It is unconstitutional to require the President to get consent of Senate to fire the Postmaster because he need to have control over the executive. Humphrey’s Executor (391): It is OK if statute requires the President to show good cause before firing someone. The court gives bad reasons for this (quasi-judicial, quasilegislative agency--- which of course violates Articles I and III) Morrison (391): Special prosecutor could only be removed for good cause too. Court says it’s OK and re-explains because this branch of executive is not ―central‖ or important. Scalia dissents on Article II grounds. It may also be important that in these cases Congress is not itself interfering in the executive. Instead, it is allowing courts to do so. But this is not aggrandizement. Who may appoint executive officers? Note that it is important if it is an inferior officer or not because procedures for appointment of noninferior officers must be done by president and Senate. Otherwise, Congress can determine the method. In Morrison, was the special prosecutor inferior to the AG Who gets to DO war? War Powers Resolution says mostly Congress. President can only use troops 1. When Congress declares WAR 2. Pursuant to statutory authority 3. When there’s an attack on the United States Also says that once there is an attack, President can only keep fighting if Congress approves after 60 d. (or if they can’t approve it) (Is this like a declaration of war so now he can do everything or is his power to respond simply an emergency power?) Is this statute constitutional? Congress’ power to declare war does not necc. lead to its ability to limit when the President can use troops, especially since they concede they do not have to declare war in order for him to use troops. MUST International Agreements be Made Pursuant to Treaty procedures? Belmont (366): President can agree to recognize a state without treaty procedures. But this could be cabined because there is independent authorization in the Constitution for him to receive ambassadors. Dames & Moore (367): (Freeze on Iranian assets to settle claims) Implies that it’s OK to circumvent treaty procedures in cases where Congress has traditionally been allowed to act. So, then Congress may simply authorize the president to make the agreement and it is valid. Gloss on the Constitution. Some agreements not up to the level of treaty. - transitory nature? - lack of importance?
history? Note that Art I §10 contains an analogous provision with respect to the states, and it is clear that not all agreements are treaties because some are compacts. Ways to break treaties Statute so long as within enumerated powers By president with advice and consent of senate By president alone? (open Q)
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What are Other Things Congress Can’t Do because it infringes on Executive? Can’t run an airport (Metropolitan Washington Airports (398)) Can’t retain power to remove executives (Bowsher) Can’t reverse an executive decision except through legislation (Chadha—note, however, that the court characterizes the action as legislative and says it is BAD PROCEDURALLY because it violates Art I procedures. Whichever way you characterize it, it’s no good.) BETWEEN EXECUTIVE AND JUDICIAL What powers can be taken away from the courts and given to the executive? (Article III concerns)? Northern Pipeline v Marathon (xeroxed): Lists exceptions to Article III Court requirements. Says bankruptcy judges don’t fall within any of them and requires it to be done by Article III Courts. 1. When there is de novo review of the adjudication (Raddatz) 2. Military Courts 3. Public Rights Doctrine (Murray’s Lessee): - government must be a party - action must have been one which executive or legislature could have done on its own 4. Territories 5. Crowell v Benson: Congressionally created rights (hard to reconcile with Northern Pipeline!) 6. State courts IMPEACHMENT and PRIVILEGES/IMMUNITIES Impeachment (Art. II §4) 1. What is a high crime or misdemeanor? Generally accepted that it is not limited to indictable crimes nor is it limited exactly by relationship to official duties. Something that violates public trust, even if it does so by making it clear that guy lacks the character to fulfill his official role because he probably would do something super bad. Immunities - Congress can’t be prosecuted for speech or debate in either house. - Also can’t take a congressperson away from his duties even for criminal charges. - No similar provision for president. Clinton v Jones: Says Clinton is not immune from civil suits while he’s in office.
Exception: NO liability for things done as part of official duties (Nixon v Fitzgerald) Old case re: Aaron Burr—President is given immunity only if he shows he’s too busy.
II. If there’s Something Wrong with a Law, Can Someone Challenge It?
Judicial Review
HISTORY The Articles of Confederation had no separation of powers, no independent executive, and no room for implicit powers. Only a rudimentary executive. New Constitution was ―supreme law of the land.‖ Articles 1 and 8 intended to summarize powers of federal government. ―Necessary and Proper‖ clause gave government implicit powers.
1803: Marbury v Madison (3) (Justice John Marshall):
Marbury seeks a writ of mandamus forcing Madison (secretary of state) to deliver papers confirming his last minute appointment as a federal judge by Adams. Statute gives Supreme Court jurisdiction (it is actually unclear that the statute confers original jurisdiction. Marshall could have based his ruling on statutory grounds, but then he would not have firmly made his point about judicial review in a case in which the people who were opposed would NOT be able to appeal – because the judgement was in their favor!) Held: Supreme Court has no original jurisdiction to do a mandamus. Marshall found the statute unconstitutional and thereby established more firmly the doctrine of judicial review of legislative action. Additionally, the opinion, by not doubting that it is an appropriate court action to issue a writ of mandamus to a government official, confirms the notion of judicial review of the executive. Constitutional Basis? Supremacy clause - Doesn’t say WHO decides Oath - Doesn’t say WHOSE interpretation of Constitution must be upheld Jurisdiction to decide cases - But this doesn’t rebut the argument that judges must defer to Congress for interpretation of Constitution. Argument from consequences - Disallowing judicial review destroys protections of the Constitution. If Congress can change at any time, then the words mean nothing. - ignores the fact that Congress is ELECTED - NO similar controls on judges Article III power to hear cases arising under the Constitution - Could just be conferring ability to hear other kinds of things under Const (executive actions, state laws, etc)
Written Constitutions historically contemplate judicial review - This was patently false at the time Marshall’s argument is not airtite. But he’s also not necessarily WRONG. There is a good deal of evidence indicating that judicial review was intended. - Discussion of Constitutional Convention - Federalist Papers - Precedents in England about executive review - Precedents in colonial charters - United States Supreme Court had DONE IT BEFORE!! (against state legislation, and even once against federal law!)
TWO Versions of Marbury
1. Strong view: Courts have a duty to review statutes as a fundamental aspect of the checks and balances of our government system. (Executive cannot ignore judgements under this view and it is binding outside of the parties and it should be exercised whenever legislation is outta line (standing sorta conflicts))—stare decisis effect: making law. 2. Weak view: Courts exercise judicial review incidentally to their duty of deciding cases. It is binding only as a res judicata effect—i.e., can keep holding the same thing in all cases.
Executive Responses to Judicial Review
It is important to differentiate between a supplement to judicial review (e.g., when an executive refuses to do something that the court finds is Constitutional because he doesn’t agree) and when something impairs judicial review (executive continues to do that which was found unconstitutional).
Congressional Responses to Judicial Review
City of Boerne v Flores (supp 98): Religious Freedom Act (which was an attempt by Congress to overturn a Supreme Court opinion, Smith) was found Unconstitutional because Congress can’t bind states to anything not within its constitutional power, but Congress tried to say that something states were doing was unconstitutional. Court is NOT bound by Congress’ interpretation of Constitution. The RFA limited STATE actions, not the federal government’s, and the Court found that the states’ actions WERE constitutional; hence the statute was overruled. Congress can’t tell courts what is constitutional. Ex Parte McCardle: Congress may limit Supreme Court jurisdiction (see Article III). The only limit is that this can’t destroy the checks and balances – that is, if you buy strong version of Marbury. - in McCardle, court dismissed case after Congress took away jurisdiction. But, the Court noted that by doing so it had not cut off the issue from judicial review entirely because there was another route. McCardle therefore does not hold what it seems to hold. It only holds that Congress may take away one of the various avenues toward
judicial review. It does not hold that Congress may take away the last/only avenue to judicial review and prevent it entirely. Controls on the Court - appointment - Constitutional amendment - enforcement power lacking entirely—leads to a practical, not a legal, check.
Limits on Judicial Review
1. No Advisory Opinions
Court refuses to give them because - Checks and balances prevent it (although this is a stupid argument!) - Separation of powers (better) - advisory opinions not a case or controversy - Though under strong view of Marbury seems this would not be a problem
2. Standing
Constitutional minimum (relates to jurisdiction) injury in fact Warth v Seldin (30): re: exclusionary zoning practices - Several groups sue: 1. the poor: the Court holds, WRONGLY, that they have no standing because they pleaded in conclusory terms (this is ALLOWED by federal rules!) 2. builders: court says they needed to plead specific projects 3. tax payers: too conjectural 4. residents of a different town: prudential limit on pleading a third party’s rights Raines v Byrd (Supp 3): Limited standing to members of Congress for when the injury is specific to some of them, not for when the body as a whole is hurt. Said injury must be ―personal, particularized, concrete, and otherwise judicially cognizable‖ Why is this a minimum? - Don’t trust parties without interest to argue the case well - Separation of powers, cost in terms of friction between branches of government. Keep your political capital (judicial review expends it) for when someone is actually hurt. - helps in perception of judiciary – not TRYING to contradict Congress What if NO ONE has standing?
This is a problem with the STRONG view of Marbury, but Court has held that it’s just too bad. The remedy sought must also be one that benefits the plaintiff. (Linda can’t sue the DA for failure to prosecute father for child support, because putting Dad in jail doesn’t get her any money)—the cases on this are not consistent. -
Prudential Limits (relates to remedies) 1. Can’t raise rights of 3rd parties (Court exception, unless they can’t raise it themselves) - WHY? This aspect of standing is based in remedy, not in jurisdiction, and there is usually only a cause of action granted in a statute when YOUR rights are violated. Even when the statute doesn’t explicitly grant any cause of action, it may create a protected class for whom a remedy is implicit in the statute (see Data Processing, below). 2. Generalized Grievance 3. Zone of Interest (sometimes analyzed as part of 3rd party thing. Data Processing: Data Processing company sues a competitor (bank) for violation of banking laws. Court asks: ―Are you a member of the protected class? The class the statute meant to protect?‖ (like in torts!) If yes, then you have standing because you are asserting your own rights (implicit in the statute). If not, then you are asserting rights of third parties and may not have standing. Taxpayer cases Frothingham: Taxpayers can’t sue because no standing either because: 1. What the Court said: NO injury (unless challenging a program funded by a special, earmarked tax) because there is no guarantee that taxes will go down due to getting rid of a random program – Congress will simply spend it elsewhere. 2. Currie (seeking better consistency): 3rd party problem: citizens were asserting the rights of the state as a sovereign when challenging federal programs that states might have done. Flast: Suit based on Establishment clause challenging federal aid to religious institutions. Here, the Court found standing. Why? 1. Court says: nexus blah blah, 2. Actually: it is because there is an injury to conscience when taxpayers are forced to support religions they disagree with. AND 3. They ARE the protected class of the establishment clause! This would mean in Flast that the taxpayers are asserting their OWN rights here, as opposed to Frothingham. MA v Mellon (xerox): When the STATE tries to sue for a Frothingham type thing, the Court STILL found no standing. Why? 1. Because states can’t assert sovereign rights in courts (separate from the political question doctrine!)
NOTE: Under Frothingham/Mellon, nobody can sue for tax expenditures (neither state nor individual).
Is this problematic for strong view of Marbury? WAYS AROUND STANDING DOCTRINE A. Qui tams: False Claims Act gives a bounty to citizens who file suits. This gives them a stake and so gives all citizens a sort of standing. This was upheld, but only because the citizens are assignees of the government, therefore they are suing for the government’s injury, NOT their own. (note that having a stake isn’t the same as having an injury)
3. Ripeness
Too early, party doesn’t have standing yet (Do you have to wait for action against you to challenge a rule?) United Public Workers v Mitchell (45): Workers seek declaratory judgement without violating law. Mitchell is an awful case, unlikely it would come out this way today. Generally, courts look to costs/benefits of denying judgement. Mitchell is a good example of how Bad this doctrine can be (forcing people not to try to defend their rights in court because the cost of being wrong is too high—maybe jail)
4. Mootness
Too late, party doesn’t have standing anymore - What about Roe v Wade? - Did the Court make an EXCEPTION to the Constitutionally-mandated standing requirement?
5. Political Question
Baker v Carr: Involving voting district apportionment in TN. Not found to be a political Q. Factors listed: Textually demonstrable constitutional commitment of the issue to another branch of government (though not to states!) Lack of judicial standards to decide impossibility of decision without making a policy decision meant for another branch etc. etc. All really saying commitment to another branch! Nixon v United States (54): Judge protests his impeachment: Full power of impeachment is given to the Senate Powell: Even though an issue was given to Senate re: requirements of being a Senator, Court still reviewed and enforced Constitutional limits on the Senate’s decisions (maybe the important thing was having clear standards to enforce). Goldwater v Carter: Carter unilaterally revoked a treaty, and court refused to hear (four of them say it’s a political Q: Currie thinks that was wrong). Maybe issue just too hot (like Vietnam War—also used there)