Constitutional Law Master Outline

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					Constitutional Law Master Outline
Framing the Constitution
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What, if anything, does the Declaration of Independence tell us about the purpose of government and the nature of our Constitutional system? What, if anything, do to the Articles of Confederation tell us about the nature of our Constitutional system? Why were the Articles of Confederation replaced with the Constitution of the United States? How was this accomplished? What are the differences between the Articles of Confederation and the Constitution? What, if anything, do these differences tell us about the nature of our Constitutional system? Why is the Constitution a written document? What is Madison’s theory of ―faction‖ and how is relevant to the study of the Constitution? To what extent does the Constitution achieve the purposes of government outlined in the Declaration of Independence?

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The Constitution must be understood as a reaction to the events that preceded it. The articles of Confederation were the first constitution. The Articles of Confederation created a very weak national government. There was no federal judiciary and no executive. There was a Confederation Congress, but its powers were greatly circumscribed. Congress had the power to wage war, coin money, establish post offices, and deal with Indian tribes. However, it had no power to tax and no authority to regulate commerce among the states.

Federalist No. 10 (Madison): Madison talks about his hesitations regarding popular rule, or Pure Democracy, and how Factions might result from it. Factions are a majority or minority group who are united by some common impulse, passion, or interest who strongly voice there positions in a community. Factions are also known today as Special Interest Groups. Madison argued that a strong, large republic would be a better guard against those dangers than smaller republics—for instance, the individual states. Madison also talks about two methods of preventing any negative results of the faction by either ―removing its causes‖ or ―controlling its effects.‖ Federalist No. 51 (Madison): Each branch of government should be, independent. To assure independence, no one branch should have too much power in selecting members of the other two branches. The best security against a gradual concentration of power in any one branch is to provide constitutional safeguards that would make such concentration difficult. The constitutional rights of all must check one man's personal interests and ambitions. While we may not like to admit that men abuse power, the very need for government itself proves they do, "if men were angels, no government would be necessary." Consequently, the great problem in framing a government is that the government must be able to control the people, but equally important, must be forced to control itself. Dividing power helps to check its growth in any one direction, but power cannot be divided absolutely equally. In the republican form of government,

the legislative branch tends to be the most powerful. That is why the framers divided the Congress into two branches, the House of Representatives and the Senate, and provided for a different method of election in each branch. Further safeguards against legislative tyranny may be necessary. Irony → More government = more freedom (at least in F #51).

Marbury v. Madison & Judicial Review
What is ―judicial review‖? Is judicial review necessary? Is judicial review undemocratic? Article III never expressly grants the federal court the power to review the constitutionality of federal or state laws or executive actions. Marbury v. Madison is the single most important decision in American constitutional law. It established the authority for the judiciary to review the constitutionality of executive and legislative acts. Marbury, the court view Article III as the ceiling of federal jurisdiction, Marbury helped establish the principle that federal courts are courts of limited jurisdiction, and that Congress may not expand the jurisdiction granted in Article III of the Constitution. Original jurisdiction cannot be taken away or expanded. Original jurisdiction is totally untouchable. However, what is original can be made to be appellate too. For example, ambassadors can go through appellate review.
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Who are Marbury and Madison? Why is the resolution of their picayune dispute over a commission so important?

Marbury (M) v. Madison (JM): M was nominated to be a justice of the peace by Adams and JM (as sec of state for Jefferson) was supposed to deliver the commissions and never did. M takes JM to ct and seeks a writ of mandamus (order of the ct for a government officer or lower ct) to deliver the commission. Jefferson cancels a session of the Sup Ct (1802).
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What three questions does the Court decide it must answer in order to decide this case? How does it answer each of these questions?

1) Does M have the right to the commission? 2) If so and his right has been violated, do the laws afford him a remedy? 3) If there is a remedy, is mandamus the proper one? Answer: M had a right to the commission b/c the Pres signed it (term position and he doesn’t serve at the will of the Pres). M does have a remedy b/c his right has been violated (can’t give Pres too much power). The Pres can violate the Const in certain ways and the ct is powerless to stop him. Mandamus would be proper but the ct doesn’t have original jurisdiction to hear the case.
 Why is section 13 the Judiciary Act of 1789 unconstitutional? The Judiciary Act of 1789 is unconstitutional b/c it enlarges the courts power beyond Art III. Art III establishes the boundary and the scope can be restricted within but not expanded beyond. This case is not one of original jurisdiction and Marbury went to the wrong court. Marshall will not undermine the Constitution at such an early stage. Court lacks jurisdiction.

This case did not establish judicial review It occurred before this case. This is the 1st time the ct. struck down a fed statute though. On what basis does the Supreme Court invalidate an act of Congress? Why can judges invalidate this Act of Congress and why is the act Unconstitutional? Courts are allowed to strike down laws conflicting w/ the Constitution b/c the Constitution cannot be overruled simply by an Act of Congress. The Constitution is the supreme law of the land and if Congress can do what it wants then the Constitutional limits mean nothing (and it becomes just another set of laws). It is also inherent to the judicial role to decide the constitutionality of laws that it applies. The Court’s authority to decide ―cases‖ arising under the Constitution implied the power to declare unconstitutional laws conflicting with the basic legal charter. Additionally, judges take an oath of office and that they would violate this oath if they enforced unconstitutional laws. Judicial review is appropriate because Article VI makes the Constitution ―the supreme law of the land‖. Martin v. Hunter’s Lessee: Appeal of land title dispute in state court involving federal law. The U.S. Supreme Court has jurisdiction over issues of federal law in state courts. What is Virginia’s argument in Martin v. Hunter’s Lessee? Virginia argued that the Supreme Court lacked the authority to review state court decisions. Stated the ―Courts of the U.S., therefore, belonging to one sovereignty, cannot be appellate Courts in relation to the State Courts, which belong to a different sovereignty – and, of course, their commands or instructions impose no obligation.‖
  Why does the Supreme Court reject Virginia’s argument? The Constitution presumed that the Supreme Court could review state court decisions. The Consitution creates a Supreme Court and gives Congress discretion whether to create lower federal courts. But if Congress chose not to establish such tribunals, then the Supreme Court would be powerless to hear any cases, except for the few fitting its original jurisdiction. The Constitution recognizes that states have prejudices and biases that might conflict with federal ones. Supreme Court Review is necessary to ensure uniformity in the interpretation of federal law. 

Cohens v. Virginia - Reaffirms Martin and says it applies to criminal cases too. §25 of the Judiciary act is constitutional and the court can review ANY state case where a constitutional question is involved, including criminal cases where the state is a party. Cooper v. Aaron - Case after Brown b/c Arkansas refused to abide by Brown to desegregate schools. Federal courts have the authority to review the constitutionality of state laws and the actions of state officials. The Federal Courts are supreme in the exposition of the Constitution. The Supreme Court is that last stop and their decision is correct. This is the rule for Judicial Supremacy. Sort of goes a little beyond Marbury because the other branches are still supposed to interpret the Constitution also.

Limits on Judicial Review: Jurisdictional Limits:
 Is judicial review necessary? Why? Federal courts exist, in large part, to prevent and remedy violations of federal laws. Federal Judicial Review is particularly important in enjoining and redressing constitutional violations inflicted by all levels of government and government officers.
 Does the Supreme Court have a monopoly on constitutional interpretation? No, Congress also has the power. State Courts have the power too. 

To what extent may Congress limit or eliminate the Supreme Court’s jurisdiction? [Consider, in this regard, the hypothetical on page 85]

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How may Congress or the Executive control or influence the Supreme Court?

Ways in which the Court's authority is subject to external political control 1. Constitutional amendment - On way to get around judicial review is a constitutional amendment. Need 2/3rd of the legislature or 2/3 of states call for a constitutional convention in which no amendment may be adopted until it is ratified by 3/4 of the states. 2. Appointment - Members of the court are appointed by the president subject to the advice and consent of the Senate. 3. Impeachment Power - Justices can be removed from office on Impeachment for, conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." No one has ever been removed. Justice Samuel Chase was impeached, but never convicted. 4. Life Tenure - Federal judges are appointed for life. There are other ways to promote independence. Some states have age ceilings. 5. Controlling sitting judges; informal mechanisms and self-imposed limits - The courts rarely depart sharply from what it perceives as a political consensus. The court is sometimes sensitive to the perceived mood of the country, and that it is generally unwilling to continue for long periods on courses that face intense popular disagreement.
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What was the purpose of the law at issue in Ex parte McCardle? Why does McCardle lose?

Ex parte McCardle: McCardle, a newpaper editor was arrested for libel. He appealed from a denial of habeas corpus/due process to the Supreme Court, but Congress passed an act forbidding the Court jurisdiction. Although the Supreme Court derives it appellate jurisdiction from the Constitution, the Constitution also give Congress the express power to make exceptions to that appellate jurisdiction. US v. Klein: A man was seeking indemnification for the confiscation of his land during the civil war. This was allowed as long as he wasn't part of the rebellion. Initially statute said if pardoned that indemn is okay but while case is pending congress passes statute that says pardon is proof that you were part of the rebellion. S. Court invalidated the statute because it allowed congress to

proscribe ruling for the court for cases pending before it. Congress cannot restrict the supreme court’s jurisdiction in the attempt to dictate substantive outcomes. Congress cannot specify the rules of decision for the Supreme Court. Once a case is to the Supreme Court, it is for the Supreme Court to hear.

Justiciability limitations: Cases and Controversies The most important limit on the federal judicial power is imposed by a series of principles termed ―justiciability‖ doctrines. The justiciability doctrines determine which matters federal courts can hear and decide and which must be dismissed. Specifically, justiciability includes the prohibition against advisory opinions, standing, ripeness, mootness, and the political question doctrine. Article III, section 2 defines the federal judicial power in terms of nine categories of ―cases‖ and ―controversies‖. Other justiciability doctrines are derived not from the constitution, but from prudent judicial administration. Although the constitution permits federal court adjudication, the Court has decided that in certain instances wise policy militates against judicial review. The distinction between constitutional and prudential limits on federal judicial power is important because Congress, by statute may override prudential, but not constitutional restrictions. Policies underlying Justiciability: 1) Doctrines are closely tied to separation of powers. The doctrines define the judicial role; they determine when it is appropriate for the federal courts to review a mater and when it is necessary to defer to the other branches of government. 2) JDs conserve judicial resources, allowing the federal courts to focus their attention on the matters most deserving of review. It conserves the judiciary’s limited resources of time and money, but also its limited political capitol. 3) JDs are intended to improve judicial decision making by providing the federal courts with concrete controversies best suited for judicial resolution. Adverse parties with a stake in the outcome of litigation will perform the task of bringing controversies capable of resolution. 4) JDs promote fairness, especially to individuals who are not litigants before the court. They prevent the court from adjudicating the rights of those who are not parties to a law suit.

Limits on Judicial Review: Standing
May the Supreme Court issue advisory opinions? NO. The core of Article III’s limitation on federal judicial power is that federal courts cannot issue advisory opinions. This is when the court may provide an opinion about the constitutionality of pending legislation or constitutional questions referred to them by other branches of government. State courts are sometimes allowed because it can spare a legislature the effort of adopting statutes soon to be invalidated by the courts, so it saves time and money by allowing them to correct constitutional infirmities at the earliest possible time.
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They are disallowed in the Supreme Court because (1) separation of powers is maintained by keeping the courts out of the legislative process. The judicial role is limited to deciding actual disputes. (2) Judicial resources are actually conserved because advisory opinions might be requested in many instances in which the law ultimately would not pass the legislature. If it’s an actual dispute, than the courts can decide, otherwise, judicial review is unnecessary and a waste of resources. (3) prohibition of AO helps ensure that cases will be presented to the court in terms of specific disputes, not as hypothetical legal questions. There must be an actual dispute between adverse litigants and there must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect. What purpose does the doctrine of standing serve? ―in essence, the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issue.‖ 1) Standing promotes the separation of powers by restricting the availability of judicial review. However, concern for separation of powers also must include preserving the federal judiciary’s role in the system of government. Separation of powers can be undermined either by overexpansion of the role of the federal courts or by undue restriction. 2) Standing serves judicial efficiency by preventing a flood of lawsuits by those who have only ideological stake in the outcome. a. It is also justified in terms of conserving the court’s political capital. 3) Standing is said to improve judicial decision making by ensuring that there is a specific controversy before the court and that there is an advocate with sufficient personal concern to effectively litigate the matter. 4) Standing requirements are said to serve the value of fairness by ensuring that people will raise only their own rights and concerns and that people cannot be intermeddlers trying to protect others who do not want the protection offered. What does standing require? Constitutional Requirements for Standing: 1) PL must allege that he or she has suffered or imminently will suffer an injury.  It must be judicially cognizable  There needs to be a nexus b/w the harm and P to establish a sufficient injury for standing (Lujan) 2) PL must allege that the injury is fairly traceable to the DF’s conduct. 3) PL must allege that a favorable federal court decision is likely to redress the injury.  ―likely‖, not ―mere speculation‖ that P might get some kind of compensation Prudential standing principles 1) A party generally may assert only is or her own rights and cannot raise the claims of third parties not before the court. 2) A plaintiff may not sue as a taxpayer who shares a grievance in common with all other taxpayers.
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3) A party must raise a claim within the zone of interests protected by the statute in question. Allen v Wright (p. ) – 1984 - The Wrights, Ps, brought a class action on behalf of black school children, claiming that the failure of IRS (D) to deny tax-exempt status to private schools that practice racial discrimination constituted federal support for such schools and allowed their organization. By allowing tax-cuts it decreased the likelihood that desegregation plans would be effective  Why don’t the plaintiffs in Allen v. Wright have standing? The allegation that the conduct of the IRS (D) promotes segregation is purely speculative. No allegation is made that withdrawal of the funds would make a difference in public schools integration. Since no personal injury directly traceable to D’s conduct has been alleged, no standing exists. Problem here is causation, not that the injury isn’t particularized. Is the stigma of racial discrimination, by itself, a sufficient injury for purposes of standing? No. The PL claim that they were stigmatized on the basis of race was insufficient to constitute an injury for standing puposes. ―Stigmatic injury accords a basis for standing only to those persons who are personally denied equal treatment… if the abstract stigmatic injury were cognizable, standing would extend nationwide to all members of the particular racial groups against which the government was alleged to be discriminating by its grant of a tax exemption to a racially discriminatory school. Why does the plaintiff in University of California v. Bakke have standing if those in Lujan and Allen did not? U of Cal v Baake (p. ) – 1978: Affirmative action suit brought because B did not get into school. He had standing even though he couldn’t prove he would have gotten in w/out the aff action plan. The injury was cognizable, the loss of chance to compete for certain number of spots. NFCAGC v Jacksonville (p. ) – 1993: Aff action suit b/c 10% of the city K’s must be set aside for minorities. P had standing even though they couldn’t prove they would have gotten the K. The injury was the K’s they couldn’t compete for. Lujan v Defenders of Wildlife (p. ) – 1992: The S.C. considered a challenge to a revision of a federal regulation that provided that the Endangered Species Act does not apply to the U.S. government activities outside the U.S. or the high seas. The PL claimed that the failure to comply with the Act ―with respect to certain funded activities abroad increases the rate of extinction of endangered and threatened species.‖
 Why don’t the plaintiffs in Lujan v. Defenders of Wildlife have standing? Held: PL lacked standing because they could not show sufficient likelihood that they would be injured in the future by a destruction of endangered species abroad. P’s say that certain species will be wiped out and Ps want to see them again ―someday‖. Visiting in the past proves nothing especially with no concrete plans to visit in the future.  

Massachusetts v. EPA – 2005?

Group allege that the EPA has abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide. EPA argues that because greenhouse gas emissions inflict widespread harm, the doctrine of standing presents an insuperable jurisdictional obstacle. Held: Standing exists.  If the Lujan plaintiffs don’t have standing, how does the Commonwealth of Massachusetts in Massachusetts v. EPA? The injury is cognizable because they are actually losing coastline. Severe and irreversible changes to the natural ecosystem, rise of sea levels, significant reduction in water storage in winter snowpack in the mountainous regions. There is causation even if it is only incremental and there is redressability, even if it is only incremental benefit. No Concrete injury: Schlesinger v. Reservists to Stop the War (1975) p. 108 Reservists argued that the membership of members of Congress in the Reserves violated the incompatibility clause (congressmen can't hold any other office of the US). The court ruled that the alleged violation adversely affected only the generalized interest of all citizens, and if the court could get involved when no concrete injury had occurred, it would leave the legislature open to "government by injunction.‖ No fairly traceable injury: Simon v. Eastern Kentucky Welfare Rights Organization (1976) p. 111 Several indigents and organizations brought suit challenging IRS Ruling that granted favorable tax treatment to certain nonprofit hospitals that limited aid to indigents for emergency room services. P's argued that it reduced the amount of services necessary to qualify as charitable corporations and therefore indigents would have less in the way of medical services available to them. Powel writing for majority found no standing b/c it was purely speculative whether the denials fo service specified in the complaint can be traced to the Service's encouragement or instead result from decisions made by hospitals without regard to their tax implications. Brennan (+ Marshall) dissent: relevant injury was the "opportunity and ability" to receive free medical services, and that interest is not to diffuse to support standing. No redresability: Linda R.S. v. Richard D (1972) p. 111 Unwed mother sought to enjoin discriminatory application of a Texas criminal statute that penalized any parent who failed to support his children. P contended that judicial interpretation was discriminatory because it excluded unwed fathers from prosecution and sought to require a prosecutor to initiate criminal proceedings against the father of her child for failure to provide child support. Court denied standing b/c the injury, lack of child support, was not redressable because the PL still might not receive payment seven if her child’s father was prosecuted. Steel Company v. Citizens for A Better Environment (1998) p. 114 Ps an environmental organization sued a company that had released discharges of toxic pollutants in excess of those allowed by its permit. The company agreed to comply with the permit once suit was filed but Ps kept on trucking hoping to get the company to pay civil penalties to the U.S. Treasury. Court held that Ps lacked standing because they could not meet

the redresability requirement as there was no showing that payment of civil penalties to the Treasury would benefit the Ps at all. Laidlaw p. 114—Ps used certain areas for swimming and recreational activities that were polluted by the Ds unlawful discharge. Ps sued for civil damages and partly to encourage Ds to discontinue current violations and deter them from committing future ones. Court distinguished Steel Company saying that in Steel there were no allegations of continuing or imminent violation but here the violations were ongoing. Taxpayer Standing: US v. Richardson (1974) p. 108 – Taxpayer challenge to the CIA, which didn't make its budget public. Court found that he didn't allege any particular damage to HIM, and that the electoral process was the place to take care of these generalized grievances. Powell Concurring: The court is not going to turn itself into an open forum for the resolution of political or ideological disputes. Flast v. Cohen p. 108-09– Involved a taxpayer challenge to aide given to religious schools. The court held that there could be taxpayer standing so long as there was a "logical nexus between the status asserted and the claim thought to be adjudicated." This is the one exception. • For taxpayer standing to work you have to find some way to distinguish yourself from all other taxpayers generally. Ripeness and Mootness (Standing in Time) Ripeness – Action brought too soon, similar to injury not being actual or imminent. The court can’t make an intelligent and useful decision. The doctrine of ripeness bars courts from deciding cases that are premature-- too speculative or remote to warrant judicial intervention. A classic example would be a case brought to challenge a criminal statute before a prosecution is initiated, in circumstances in which the mere existence of the statute is not alleged to produce actual harm. - Laird - involved a class action brought for injunctive relief against alleged "surveillance of lawful citizen political activity" by the U.S. Army. Pl argued that the Army collected information about political activities that had some potential for civil disorder; PL also claimed that they were targets of the surveillance, and that, as a result, they were "chilled" from engaging in constitutionally protected activity. Court held that the PL did not present "a case for resolution by the courts". Unless additional action was taken that was detrimental to the PL other than a "chiller effect", they had no claim. Mootness – Too late – It’s over, P no longer has a stake. There is no longer a controversy. A classic example would be a case brought by a plaintiff challenging a statute prohibiting her from obtaining employment where the PL has been given the job before the appeal. o Dfunis invovled a challenge to a preferential admissions program adopted by the University of Washington Law School. By the time the case reached the court, PL was in his third year at Washington and his registration wouldn't be cancelled regardless of the decision by the court.  The court noted that voluntary cessation of allegedly unlawful conduct does not make the case moot. Here however, mootness "depends not at all upon 'voluntary cessation' of the admissions practices that were the subject

of this litigation. It depends instead upon the simple fact that PL is in his third year and the settled unchallenged policy of the Law School to permit him to complete the term for which he is now enrolled. Exception: ―capable of repetition yet avoiding review‖ – a case like Roe v Wade that deals w/ pregnancy otherwise the case/issue would never be tried.

Limits on Judicial Review: Political Questions
Difference between Political issues and political questions: Political issues with constitutional dimensions generally are fair game for judicial review. Political Questions are issues which may have constitutional dimensions but are of a nature that they should be resolved in the political arena. The classic example is foreign relations. What makes something a ―political question‖? The political question doctrine refers to subject matter that the court deems to be inappropriate for judicial review. Although there is an allegation that the Constitution has been violated, the federal courts refuse to rule and instead dismiss the case, leaving the constitutional question to be resolved in the political process. Interpretation should be left to the politically accountable branches of government (The president and Congress).
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What does Marbury v. Madison have to say about ―political‖ questions? Where ―individual rights were at state‖ it is not a political question. The courts definition is quite narrow in Marbury. It included only were matters where te president had unlimited discretion, and there was thus no allegation of constitutional violation. For example, presidents have the choice about whether to sign or veto a bill or who to appoint for a vacancy on the federal judiciary. But if there is a claim of an infringement of an individual right, in other words, if the plaintiff has standing, there is not a political question under Marbury. In contrast, the PQ doctrine now includes instances where individuals allege that specific constitutional provisions have been violated and that they have suffered a concrete injury.
  What was at issue in Luther v. Borden? Why were courts involved? Luther v Borden (mentioned in Baker) (1849): Man was arrested in RI for breaking and entering. He admitted trespassing but claimed that the people who arrested him were not agents of the Lawful govts. of RI. The court held that it was Congress’ job to decide who the lawful government of each state was; therefore the question was political and non-justiciable. Specifically, the court should not be involved in matters dealing with state governmental organization.

Baker v Carr (p. ) – 1962 – Still good law: Tennessee gerrymandering case, the districts had not been reapportioned in 50 yrs (it was supposed to happen regularly). There had been dramatic pop changes and many counties grossly over/under represented. Voters challenge the law as obsolete. Hold: Ct says this is not a political question. It violates the equal protections clause of the constitution. Apportionment cases involve no fed Const right except that guaranteeing a

republican form of government, but the EPC falls under the cts power and duty to judge. Ct came up w/ the 6 political question factors.  How does the Court distinguish Baker v. Carr from Luther v. Borden? Do they address the same type of claims? The Court did not overrule Luther, instead distinguishes cases brought under the equal protection clause from those pursed under the republican form of government clause. Davis v Bandemer (p. ) – 1986: Equal protection challenge in IN, claim was that the districts were drawn in such a way as to minimize Democratic voting strength. Majority of ct holds that political gerrymandering was a justiciable issue. Dissent applies the 6 Baker factors, emphasizing the first 2. Vieth v Jubelirer (p. ) – 2004: Challenge to a redistricting in PA on the grounds that the redistricting constituted an unconstitutional political gerrymander. Hold: There is no standard to decide these cases and courts are not the place to resolve these issues. Davis is no longer good law, gerrymandering is not justiciable until someone comes up w/ a suitable standard. There are basically 9 standards set out by the diff justices, none on which 5 can agree, so that means there is no standard. Scalia focused on law (rules). Davis is not necessarily bad law. 4 justices seek to overturn it and K voted to dismiss the case, which suggests non-justiciability (but not explicit). If a manageable standard arises, then this type of case could be justiciable. Why are courts more likely to find ―political questions‖ in the realm of foreign affairs? Because the courts lack the expertise to deal with this and the constitutional authority.
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Nixon v US (p. ) – 1993: N, a former Dist Ct judge, was removed from office by impeachment and seeks judicial review of those proceedings. The issue is what the Constitution means by ―try‖ when it refers to the Senate impeachment proceedings. N claimed that the Senate failed to actually ―try‖ him. Hold: Court holds that issue is non-justiciable. This is solely w/in the Senate’s power to decide what ―try‖ means. All that is required is that the members present are under oath and conviction takes a 2/3 vote (and the chief justice presides when Pres is tried). There is a huge problem w/ the court getting involved here b/c impeachment is a check on the judiciary.  Would it be constitutional for the Senate to remove a sitting judge after the toss of a coin rather than a trial? Would such a claim be justiciable? Souter, Concurrence: Agrees w/ results, but surely there are limits as to what ―try‖ can mean (it can’t be flip a coin). Powell v. McCormick (126): Congress refused to seat Powell even though he was elected. He had deceived congress wth false travel vouchers for illegal reimbursement. The S.C. held that the suit to seat him wan not moot because his claim for back pay for the time in which he was not seated remained a live controversy. He wasn’t expelled, he was excluded. S.C. held it was justiciable. Six part test to determine a Political Question from Baker v. Carr – 1) Textually commitment of the issue to a coordinate political department

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Lack of judicially discoverable and manageable standards The impossibility of a non-policy decision not for judicial discretion Disrespect to coordinate branches of government Need for finality in prior political decisions The potentiality for confusion or embarrassment

Justifications of the Political Question Doctrine: 1. It accords the federal judiciary the ability to avoid controversial constitutional questions and limits the court’s role in a democratic society. 2. It allocates decisions to the branches of government that have superior expertise in particular areas. 3. Political question doctrine is defended on the ground that the federal courts’ self-interest disqualifies tem from ruling on certain matters. 4. Separation of powers grounds as minimizing judicial intrusion into the operations of the other branches of government. Criticisms of the Political Question Doctrine: 1. The judicial role is to enforce the Constitution – it is inappropriate to leave constitutional questions to the political branches of government. (matters are placed in the Constitution to insulate them from majority control. 2. The federal court’s credibility is quite robust, that there is no evidence that particular rulings have any effect on the judiciary’s legitimacy, and that the court’s mission should be to uphold the Constitution and not worry about political capital. 3. It confuses deference with abdication. It is no necessarily wrong to rule in areas where people think claims are nonjusticeable. Just because another branch has more expertise.

Supreme Court Jurisdiction
One way to get jurisdiction is an appeal in an issue that is original jurisdiction. The two largest classes of cases falling within the courts mandatory jurisdiction concerns judicial regulation of the political process. Congress occasionally also provides for direct appellate review in the course of enacting a particular statute, particularly if it wants to ensure quick resolution of constitutional questions. Another way to get jurisdiction to the supreme court is by Certiorari. This is discretionary.

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Normally, the Court provides no reason for its denial of a petition for certiorari, although justices who voted to hear a case will on occasion dissent from the denial of certiorari explaining why they thought cert should be granted. Far less often, justices who voted to deny the petition for cert will explain their reasons. - In Padilla v. Hanft the court said a terrorist who was held illegally because of his supposed ties to Al Qaeda, held that he filed his first petition for habeas corpus in the wrong venue, when he refilled and was denied by the appeals court he sought cert. three

justices said they would have heard the case. Three said nothing and three denied and issued a statement. o The statement said that even though the government charged him and acted voluntarily, the case isn't moot. The court said it didn't matter because it would resolve anything although the PL argued he could be recaptured or something. The court said that if his status changes before a trial they would grant cert. This appeal had a lot to do with the separation of powers.

The Necessary & Proper Clause and Sources of Judicial Decisions
The Necessary and Proper Clause gives Congress authority to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers."
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With what enumerated power did Congress seek to establish the National Bank? What is the scope of this power under McCulloch? Under McCulloch, to what extent should the Supreme Court defer to Congress in construing the scope of federal power? To what extent should it defer to the Executive? In McCulloch, what is the role played by tradition and past practice relevant in constitutional interpretation? What Constitutional provision prevents Maryland from taxing a branch of the National Bank? Does this limitation infringe upon Maryland’s sovereignty? Is the original meaning of the Constitution’s text the most (only?) legitimate approach to constitutional interpretation? On what grounds (if any) is the Supreme Court ever justified from departing from the original meaning of the Constitution’s text? How can the result in McCulloch v. Maryland be justified on the grounds of ―representation-reinforcement‖?

McCulloch v Maryland (p. ) – 1819 – Bank of the USA (written by Marshall): Action brought against the cashier (McCulloch – M) of the Bank of the US (the 2nd bank) by Maryland. Maryland alleged that M had failed to pay the state assessed tax and the trial ct held for Maryland. The bank was very controversial and Maryland is one of 8 states that had anti-bank laws. Issues: Does Congress have the Constitutional power to make the bank? If Congress has the power, can states tax it? Hold: 1) Congress does have the power to create the bank (from the necessary and proper clause).2) The states cannot tax it because states don’t have the power to tax citizens of other states (federalism), and the national bank applies to everybody. States can’t constrain the fed gov.; if the fed gov. is doing something it is allowed to do, the states can’t get in the way.
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What methods of constitutional interpretation does Marshall use in his opinion for the Court in McCulloch? How does Marshall justify his result (from the Modalities sheet)?

Tradition – Historical Practice establishes the power of Congress to create the bank. There was 1 bank already which the legislature and executive both approved. Additionally those who initially

opposed it are now in favor. This is relevant, but it doesn’t prove that Congress is correct and an un-reviewed congressional action is constitutional. Structural – Refuted argument that states retain ultimate sovereignty because they ratified the Constitution called ―compact federalism‖. It is the people who ratified the Constitution and thus the people who are sovereign, not the states. Constitutional limits of powers based upon the structure of the Const. The various Const provisions, put together, were meant to set up this government structure. Original Meaning – The nec and proper clause. Purposive – The nec and proper clause was meant to accomplish this particular goal Pragmatic – Bad things happened after 1st bank wasn’t renewed Textual – Nec does not mean only or absolutely nec, it is flexible (p. 59-60) Birth of the Theory or representation reinforcement – Ct can expansively interpret the text when it does so to reinforce the representative government (Congress). There is some conflict w/ originalism. Really named because of FN 4 of Caroline Products. This theory attempts to reinforce the representation of certain groups and factions w/in the government’s structure. Calder v Bull (p. ) – 1798: Case dealing with an ex post facto law in which the judges agreed on outcome but disagreed on legal analysis.  What is the primary interpretive division between Justice Chase and Justice Iredell in Calder v. Bull? Chase – View that legislative action is limited by social compact that gave the legislature its power i.e., courts should be able to appeal to natural rights in making constitutional decisions. Leg can’t exceed authority defined by the Const, inherent in natural law. But we should strike down laws against nature. Tredell – Constitutional limitations were the only restraint on legislative action. There is no reason why the courts should be able to define and apply natural law better than the legislature Ct can’t strike down laws that are Const simply b/c they go against nature. Only if the leg acts contrary to the Const should the law be struck down. Constitutional Interpretation  Originalism embodies the view that judges deciding constitutional issues should confine themselves to enforcing norms that were stated or clearly implicit in the Constitution as it was understood by those who ratified it.  Critics of originalism argue that the task of interpretation authorizes courts to make particular judgments not foreseen by, or even contrary to, those of the Constitution's ratifiers.  There is reasonable doubt whether the "intent of the framers" or the text as originally understood - at least if narrowly construed - supports the supreme Court's decisions outlawing racial segregation; recognizing a constitutional right of privacy; affording women protection against discrimination; protecting commercial, libelous, and sexually explicit speech; and apply the bill of rights to the states.  Hard originalists believe that the meaning of the Constitution should be settled by asking the framers and ratifiers some very particular questions: (Hard is more controversial than soft this includes Thomas and Scalia)  Does the due process clause include the right to choose abortion?  Does it protect consensual sexual activity?

Does the equal protection clause ban school segregation? Does it bad discrimination against women in the armed forces? Does it allow state governments to dismiss homosexuals?  Soft originalists believe that the original understanding is important not for particular answers to particular questions but in order to get a general sense of purposes and aspirations.
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Arguments for Hard Originalism Scalia:  The originalist know what they are looking for. Text. It is easy to discern and simple to apply.  The difficulties and uncertainties of determining original meaning and applying it to modern circumstances are negligible compared with the difficulties and uncertainties of the philosophy which says that the Constitution changes; that what was once prohibited is now permitted or vice versa.  By making the constitution too living, it will change with the majority, which is exactly what its not suppose to do, and it will accomplish nothing. Problems with originalism  In deciding the original understanding who counts? The drafter of the provisions, those who voted for and against?  Are we interested in what the legislatures wanted the provisions to do or feared it would do?  When the constitution was written their were provisions purposefully left ambiguous to be set later. However, were they suppose to be continually set or set in stone when decided.

Federalism & the Commerce Clause
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What values does a ―federalist‖ system in which power is divided between the federal and state governments serve?

Values of federalism 1. Efficiency - Given the wide variations in the circumstances obtaining in different areas of the country, it is likely that different solutions to specific problems will be appropriate in different areas. A national government can also respond to problems created for one state or region by activities elsewhere. Economic integration means that economic problems in one area can be addressed with assistance from other areas, and allows all regions to gain the benefits of goods such as defense, transportation, and communications, which are more efficiently provided on larger scales. 2. Promoting individual choice - A national government can enforce the values shared by a majority in the nation as a whole, even against those who are a majority in one or a few states. In contrast, disabling the national government from acting on some subjects while allowing states to act in varying ways allows people to move from one area to another in order to select the kind of government policies they prefer. 3. Encouraging Experimentation - Experiments on the local level can teach the people of the whole nation that particular innovations are valuable enough to be adopted throughout the

4.

5. 6. 7.

nation. However, because politicians only care about re-election, and experiments are risky, some assume they will frequently never happen. Promoting democracy - State and local governments provide the opportunity for people to participate directly in the activities of governments that have significant effects on their lives. This participation would make them the active citizens valued in one version of democratic theory rather than the passive subjects of a remote national government. Preventing Tyranny Doctrinal Implications The forms of federalism – Sometimes government has power, sometimes states, sometimes concurrent…

The Commerce Clause: Article I §8 states: ―The congress shall have the power…[t]o regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.‖ Gibbons v Ogden (p. ) – 1824 – the 1st Commerce Clause Case: NY law gave Ogden the exclusive ferry rights between NJ and NYC. G got a federal license and began operating a competing ferry service that violated the grant. NY courts awarded Ogden injunctive relief. Does the act violate the commerce clause? Yes. Hold: Marshall – Commerce is traffic (of people, $, goods, etc) and there is some form of commerce beyond a state’s power (interstate). Commerce includes all phases of business including navigation. Marshall gives Congress a long but not unlimited leash in deciding what is ―in Congress’s reach‖ to regulate. ―among the states‖ Can only regulate intrastate commerce if it had an impact or ―effect‖ on interstate activities. This doesn’t interfere with states sovereignty because the power to regulate commerce between the several states is an enumerated power. Cases Between 1887 and 1937: The court was controlled by conservative justices deeply committed to laissez-faire economics and strongly opposed government economic regulations. The court espoused a philosophy termed ―dual federalism‖. This is the view that the federal and state governments were separate sovereigns, that each had separate zones of authority, and that it was the judicial role to protect the states by interpreting and enforcing the Constitution to protect the zone of activities reserved to the states. 1) The court did this by defining commerce as just one stage of business and manufacturing another; (E.C. Knight & Carter Coal) 2) The court also restrictively defined among the states as allowing Congress to regulate only when there was a substantial affect on interstate commerce. Not just indirect consequences. (Poultry Case) 3) The court also held that the 10th Amendment reserved a zone of activities (mining, manufacturing, and production) to the states and that even federal laws within the scope of the commerce clause were unconstitutional if they invaded that zone. (Hammer) (however, contrast with lottery case where argument rejected) They allowed regulation of law appeared to be related to sin (lottery and sexual behavior) and disallowed laws that related to controlling the economy. The ruling are inconsistent.

Hammer v Dagenhart (p. ) – 1918 Child Labor Case *OVETURNED BY DARBY: This is a challenge to the Child Labor Act passed by Congress, which prohibits goods produced by child labor from being sold across state lines. 2 kids’ dad sued and got injunction. --Hold: Diff outcome than Gibbons would suggest. Ct finds CLA is unconstitutional. Congress passed the law b/c it didn’t like child labor and couldn’t simply outlaw it (in 1918). CLA is Unconstitutional b/c child labor falls purely under state authority and the act is too great an extension of Congress’s power. Majority not focused on the regulation of commerce here. United States v. E.C. Knight Co. (1895) - The U.S. (P) sought to break up Sugar refining company for monopoly under the Sherman Antitrust Act. Manufacturing is not commerce. Congress is not allowed to regulate manufacturing, only the movement of goods. Champion v. Ames (The Lottery Case) (1903) - (D) was arrested for shipping a box of lottery tickets by express from Texas to California in violation of the Federal Lottery Act, which prohibited importation, mailing, or causing interstate carriage of lottery tickets. Lottery tickets are subjects of commerce. They can be sold and transported.  Rationale: since Congress has plenary power over the channels or facilities of interstate commerce, it may prohibit their use for any activity that it deems adverse to the public health and welfare. Congress may prohibit entry into interstate commerce of: 1. Goods harmful to interstate commerce itself, such as diseased animals that might spread the disease; 2. Commercial items that are harmful, such as adulterated or misbranded articles; and 3. Noncommercial items that constitute an evil activity, such as stolen goods. ALA Schehter Poultry Corp. v. United States (1935) - Wage and hour limits for poultry slaughterhouse workers struck down b/c those activities are local in nature. Rule: The mere fact that commerce flows into a state and then becomes commingled with the mass of property within the state and is there held solely for local disposition and use. The flow of interstate commerce has ceased at this point. Carter v. Carter Coal Co. (1936): P sued to enjoin D from paying a tax asses against it under the BCC Act which sought to regulate hours and wages in coal mines and imposed a tax on the sales price. Congress can regulate the hours, wages, and other employment conditions of a national industry. This act deals with production, not trade.

Modern Commerce Clause Doctrine
Commerce Clause Cases from 1937 to 1995: The previous decision were vulnerable because they were based on arbitrary logic. The distinction between commerce and other phases of business made little sense in that mining, manufacturing, and production all had obvious effects on commerce. The distinction between direct and indirect was inherently arbitrary. Decisions were impossible to reconcile. The great depression made things even worse. After trying to increase the size of the supreme court, the court fell in line with the president. The law became that congress could regulate any activity if there was a substantial effect on interstate commerce and after Wickard v. Filburn it was not necessary that the particular

person or entity being regulated have a substantial effect on commerce, only that the activity, looked at cumulatively across the country, have a substantial effect on commerce. In Hodel v. Indiana, the court deleted the word substantial and said congress could regulate anything under the commerce clause so long as there was a rational basis for believing that there was an effect on commerce.

NLRB v Jones & Laughlin Steel (p. 175) – 1937: Court upholds the Nat Labor Relations Act, which bars companies from firing union organizers. The labor practices at a massive industry are very pertinent to interstate commerce. This case introduces the aggregation principle, and says that Congress can sometimes regulate manufacturing and labor. U.S. v. Darby (1941): Upholds wage and hourly limits for production of goods sold in interstate commerce and overturns Hammer v Dagenhart. Wickard v Filburn (p. ) – 1942: Law made to control wheat prices by controlling production (sets limits on amount each farmer allowed to produce). F (D) makes a lot more than his amt (makes 461, allowed 222) & argues that he uses it to feed his cows, so there is no commerce. F loses at trial and at Sup Ct. Hold: F uses the wheat for his cows, which produce milk that he sells on the open market. Instead, he could be buying wheat on the market. F himself is unlikely to affect the market, but if too many farmers act like him it will have a substantial effect on the market. Civil Rights Law Heart of Atlanta Motel v US (p. ) – 1964: Local Hotel, not part of a national chain, wouldn’t let blacks in. Reality, they don’t affect IS commerce, but court finds that they do. Congress motivation for anti-disc laws is morality. Ct says that tourists can be affected by these establishments and that have a sub affect on IS commerce. Discriminatory conduct has a sub affect on all inter-state tourism and commerce, even if these individual effects are slight. Ollie’s BBQ (Katzenbach v McClung) (p.) – 1964: A local restaurant, not pt of a national chain, won’t serve blacks. It affects commerce because they buy interstate goods and get less customers and therefore sold less interstate goods if all restaurants did this. Criminal Laws Perez v US (p. ) – 1971: When a class of activities is regulated and within the fed power, the courts do not have the ability to find individual instances trivial. Court upholds loan sharking statute under Commerce Clause. In the aggregate, it is reasonable to believe that loan-sharking has some effect on interstate commerce. Recent Rulings US v Lopez (p. ) – 1995: 1st time since 1937 that SC strikes down statute for exceeding the Commerce Clause. The GFSZA made it illegal to knowingly possess a firearm in a school zone. The GFSZA only prohibits possession, not sale. The presence of a gun near a school zone will not affect commerce therefore the law is unconstitutional. Not enough that gun violence effects commerce.

Modern case law says that to be within Congress's power under the Commerce Clause, a federal law must regulate either: i. The channels of interstate commerce; (Heart of Atlanta) ii. The instrumentalities of interstate commerce; or (RR Regulation) iii. Activities that have a substantial affect-on/relation-to interstate commerce US v Morrison (222) – 2000 Civil remedy provision of the Violence Against Women Act is unconstitutional. Act allows victims of gender-motivated violence to sue for money damages. Court said that gender motivated crimes of violence have nothing to do with economic activity. The Constitution creates a divide between what is truly national and what is truly local, this falls on the local side. Morrison goes further than Lopez in limiting the scope of Congress’s commerce power by narrowing the ability of Congress to regulate based on findings of ―substantial effect‖ on interstate commerce. Congress can’t regulate noneconomic activity (typically regulated by states) based on a cumulative substantial effect on interstate commerce. Gonzales v. Raich – 2005 – Deference to Congress. (California law provides an exemption for the use of marijuana for medicinal purposes and no such exemption exists in federal law.) – Court upheld the federal law stating that marijuana, including that grown for medicinal purposes, has a substantial effect on interstate commerce. Intrastate production of a commodity sold in interstate commerce is economic activity. Between commerce clause and necessary and proper, Congress can regulate locally produced and consumed goods. If one is allowed to locally grow and use drugs, it is a short step until it reaches the interstate market. • Rational basis: As long as Congress wasn't motivated by obscene reasons, their statute is going to be upheld. Unless there is bad faith or dishonesty, it is rational. A lot of deference to Congress.

Dormant Commerce Clause
The dormant Commerce clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. This is not expressly written, rather the Supreme Court has inferred this from the grant of power to Congress in Article I §8, to regulate commerce among the states. Even if Congress has not acted, even if its commerce power lies dormant, state and local laws still can be challenged as unduly impeding interstate commerce. The Supreme Court first determines whether a state law discriminates against out-ofstaters. Discriminatory laws are usually invalid unless they are deemed to be necessary to achieve an important governmental purpose. Non-discriminatory laws are usually upheld unless they place a burden on interstate commerce that outweights the benefits from the law. Justifications for the dormant commerce clause: 1) There is a historical argument that the framers intended to prevent state laws that interfered with interstate commerce. A key reason the 1787 CC took place was the absence of any federal commerce power under the Articles of the Confederation. 2) The economy is better off if state and local laws impeding interstate commerce are invalidated.

3) States and their citizens should not be harmed by laws in other states where they lack political representation. Arguments against the Dormant Commerce Clause: 1) The drafters of the constitution could have included a provision prohibiting states from interfering with interstate commerce, but didn’t. For example, the privileges and immunities clause. 2) The Constitution gives Congress the power to regulate commerce and Congress can invalidate state laws that unduly burden interstate commerce. The contention is that this should not be a task for an unelected federal judiciary. Examples of discrimination Philadelphia v. New Jersey (236): the Court reviewed a NJ law that effectively kept landfills in the state exclusively for NJ’s use by preventing the importation of any wastes from out of state. Rule: Look 1st to economic protectionism if so its invalidated. If not move to the Economic cost benefits test in the Pike v. Bruce Chruch-p. 237. C & A Carbone v. Clarkstown (240) (1994): Not allowing people to use other processing services that might be lower costs and elsewhere. Local governments may not use their regulatory power to favor local business by prohibiting patronage of out-of state competitors. There would be flow of money from out of state to build another waste facility but the state has limited that. Court compares this to Dean Milk- all milk in the city had to be pasteurized w/in 5 miles of city line. So that one co. gets all the business b/c of geographic location and the court says that is not okay. West Lynn Creamery: A law assessing a fee on all mild sold in Massachusetts (D), the funds of which were disbursed solely to local producers, was challenged as unconstitutional. Essentially it gives the local farmers their tax money back so all that happens is that out of state farmers are taxed. A state may not enact a tariff on out-of-state goods. This system is a two-step tariff. United Haulers Ass'n v. Oneida Herkimer solid waste management: Involved "flow control" ordinances like that in Carbone, but in United Haulers the facility to which solid waste was required to be sent was owned by a public agency. This was sufficient to distinguish the case from Carbone. It does not make sense to regard laws favoring local government and laws favoring private industry with equal skepticism. Laws favoring local government may be directed toward any number of legitimate goals unrelated to protectionism. Quarantine and inspection laws - Quarantine and inspection laws enacted to protect health are upheld as long as they do not discriminate against or unreasonably burden interstate commerce. - Permissible Regulation - A local statute requiring that cattle or meat imported from other states be certified as free from disease by the state of origin has been upheld. The burden on interstate commerce caused by supplying such a certificate was outweighed by the public health objective of state law. - Impermissible regulation - Although having a valid "public health" purpose, a state law requiring local inspection of slaughterhouses prior to slaughter of livestock destined for local consumption has been held unconstitutional because it discriminates against out-of-

state slaughterhouses (i.e. it prevents importation of sound meats from animals slaughtered in other states). Balancing Test: Pike v. Bruce Church (in Philadelphia v. NJ)-p. 237: "Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." If a law is not discriminatory against out-of-staters, then a simple balancing test is used: The law will be found unconstitutional if the court decides that the burdens from the law exceed its benefits. If there is a burden 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. Example: If state law governing roads required extra equipment on trucks than it could be struck down. Exceptions to the dormant commerce clause: 1) Congress approves the state or local action, and 2) The market participant exception. Under the market participant exception, a state or local government may favor its own citizens in receiving benefits from state or local governments or in dealing with government-owned businesses. The modern approach is based on courts balancing the benefits of a law against the burdens that it imposes on interstate commerce. Purchases – In Hughes v. Alexandria Scrap Corp. the court permitted Maryland to impose more exacting documentation requirements on out-of-state junk-car processors than it imposed on instate processors. The documentation was required to receive a "bounty" from the state of Maryland, which made the payments for each junk car registered in Maryland that was recycled. The purpose of the bounty was to improve the environment in the state. The court has reasoned that Maryland did not attempt to prohibit the flow of junk cars, but merely entered the market to bid up the value of Maryland junk cars. The state was a market participant, not a market regulator, so the Commerce Clause was not applicable. Post-sale obligations imposed by the state selling its resources - In South-Central Timber Development v. Wunnicke, the Court held that when a state sells its own natural resources it may not impose post sale obligations on the purchaser. The state of Alaska had offered to sell its timber, but only with a contractual requirement that it be processed within the state before being exported. In return, the price for the timber was significantly reduced from what it otherwise would have been. The Supreme Court found the requirement unconstitutional despite a similar federal policy for timber taken from federal land in Alaska. There was no indication that Congress intended to give such power to Alaska. The market-participant doctrine is limited to allowing a state to impose burdens on commerce within the market in which it participates. Alaska went too far by imposing conditions that had a substantial regulatory effect outside of the market it had entered. The program did not fall within the market-participant exception. The protectionist nature of Alaska's program resulted in interference with interstate and foreign commerce and thus violate the Commerce Clause. Privileges and Immunities Clause

Article IV, Section 2, the Privileges and Immunities Clause, states that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. This prohibits discrimination by a state against noncitizens (or nonresidents) of the state with respect to "essential activities" or "basic rights" unless justified by a substantial reason. To justify an exception, the state must show that: (i) the nonresidents are peculiar source of the evil sought to be avoided; and (ii) the discrimination bears a substantial relation to the problem. Protection of basic activities - The clause protects activities such as pursuit of livelihood, the transfer of property, access to the state's courts, etc. The Court has held that sport hunting is not an essential activity, so that a state may discriminate against nonresidents in this area. Justification - If the state's discriminatory scheme is overbroad, it will not withstand scrutiny under the Privileges and Immunities Clause. In Hicklin v. Orbeck the court determined that a state hiring preference for residents was an overbroad solution to the problem of unemployment, because the preference extended to highly skilled state residents who did not have the problem of unemployment. Application to municipalities - The Privileges and Immunities Clause also applies to municipalities that require contractors to hire the municipality's own residents to work on the municipality's construction projects. An ordinance is no immune from attack because it discriminates against some in-state residents as well as out-of-state citizens. Preemption Federal Preemption - Because federal law is supreme over state law, states may not normally regulate areas already subject to federal regulation. The difficult issues arise when no federal regulation specifically preempts the state law, but the state law conflicts with federal policy. Federal law rarely occupies a legal field completely. It normally builds on legal relationships established by states, altering or supplanting them only where necessary to accomplish a particular purpose. The Supreme Court has stated that he question of preemption is primarily one of congressional intent. Types of preemption - Congress may preempt state regulation in three ways. 1. Express preemption - Many statutes clearly provide that they preempt state law. Even in these cases, however, the extent of the preemption may be in question. 2. Conflict preemption - When it impossible to comply with both state and federal law, or when the state law prevents or frustrates the objectives of Congress, federal law must preempt the state law. In Gade v. National Solid Wastes Management Association, several state licensing provisions for hazardous waste workers were struck down even though the relevant OSHA regulations concerned only worker safety and public health. Conflict preemption was found present since the federal scheme was interpreted to forbid duplicative regulation. A strong dissent objected to the Court's approval of supersession of historic state powers absent clear congressional intent. 3. Field Preemption - The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it.

Fed does something without saying so but the gov't decides or the courts decide that they have preempted the whole area.

Other Powers of Congress
TAXING, SPENDING, & WAR Article I, section 8 grants Congress power "to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the U.S." Congress may exercise its taxing power as a means of promoting any objective that is within an enumerated power. If Congress has the power to regulate the activity taxed, the tax is valid even though clearly enacted for regulatory rather than a revenue-raising, purpose. If Congress has no power to regulate the activity taxed, the validity of the tax depends on its validity as a revenueraising measure, although incidental regulatory effects are permissible. Purpose of Tax - A few months after the Hammer v. Dagenhart decision, as a means to circumvent that decision, Congress imposed an excise tax of 10% on the yearly net profits of any employer knowingly using child labor in his business without regard to whether goods produced were shipped in interstate commerce. The Supreme Court found the tax unconstitutional. This is the Bailey v. Drexel Furniture case. In Bailey, the supreme court indicated that the important factor is the motive of Congress. This means that the Courts looks at the taxing statute to see its purpose, its intended effect, and its effect in normal operation (i.e. the court examines the statute on its face). If the true purpose is to raise revenue, then the tax is valid. - In U.S. v. Kahriger the Court upheld a tax on wagering, despite its indirect effect of penalizing professional gamblers. The legislative history showed an intent to raise revenue, and the tax actually did raise funds, although the legislative history also showed an intent to suppress wagering. The penalty on wagering was considered as merely an inderect effect. Unless the penalty on provisions are extraneous to the tax need, courts cannot limit the exercise of the taxing power. The Spending Power: The "general welfare" power of Article I section 8 is connected with the taxing and spending power. This clause can therefore be invoked only when there is an expenditure of money appropriated by Congress. Thus, Congress could not pass a law under the General Welfare Clause requiring seat belts in all cars. The rule is that Congress must tax for revenue and not merely regulatory purposes, and then it must spend for the general welfare. The spending must be for a national concern as opposed to a local one. However, the Supreme Court gives great deference to the determinations of Congress in deciding what is for the "common benefit". US v Butler (p. ) – 1936 (Pre-Wickard) - Wickard makes most of this bad law: The last time an act of spending power was struck down. The Agriculture Adjustment Act (AAA) imposed a tax on processors of things like cotton and the proceeds were used to subsidize farmers to restrict production. Hold: Court subscribes to Hamilton’s view, but strikes down the statute saying that ―general welfare‖ cannot mean whatever Congress wants it to mean. Congress is trying to control local farmers and can’t do that indirectly through taxes. By allowing this, the Court would give Congress the power to coerce and destroy. If Court concludes that a spending

measure is designed to regulate private activity it will not pass muster as an exercise of the spending power. [Today, Commerce Clause might allow Congress to do this] Dissent: Takes a broader view but still has limits, saying there must be a (1) national purpose, (2) not ―coercing‖ action that is left to state control (offering money is not coercive). Steward Machine Co v Davis (p. ) – 1937: The Social Security Act levies an excise tax on employers and the proceeds go into the General Treasury; however, if a taxpayer has made contributions to a state unemployment fund, such contributions can be credited against the federal tax. The issue is possible coercion. Hold: The provision was not coercive; it merely induced the states to adopt progressive laws. 1) Congress enacted to safeguard its own treasury 2) the proceeds of the tax are not earmarked for a special group but go into the General Treasury; and 3) the act is directed to an end for which Congress and the states may lawfully cooperate. - There are some circumstances when financial inducement will be so coercive as to pass the point of pressure to compulsion, but this is not the case. The Court does not set an outer line of what is permissible spending to ―compel.‖ Spending for the general welfare - Congressional power to spend is limited by the general welfare clause. However, the determination of what is in the nation's general welfare is left to Congress, and the courts will defer to appropriate legislative findings. For example, the old age provisions of the Social Security Act were upheld, largely by ascribing wide latitude to congressional determination of nation interest. Modern view of spending power. South Dakota v Dole (note p. ) – 1987: Highway bill, state must raise the drinking age or risk losing 5% of fed highway funds. Court upholds the rule saying that the drinking age is reasonably related to the safety on highways and that this is not coercive. Court develops a test for the limits on spending power that this provision meets. The court stated that there were 4 limitations to the general welfare spending clause and the statute satisfied all of them: 1. The exercise of spending power must be in pursuit of "the general welfare". When considering what serves the general public purpose, the court should defer substantially to the judgment of Congress. 2. If congress defers federal funds from states it must do so "unambiguously."States must know they waived a right or in some way obligated themselves 3. Conditions on federal grants must be related "to federal interest in particular national project or program." 4. Other provisions may provide an independent bar to the conditional grant of federal funds. Government can’t give money to forego a Constitutional right. (and can’t be coercive) Coercion - Threat of loss, not hope of gain is the essence of economic coercion. Sabri v US (p. ) – 2004 Upholds Dole and upholds a federal statute making it a federal crime to bribe any official of an entity that receives at least $10k in federal funds.

The "War" Power - Article I, section 8 gives congress power to declare war and establish the military. Relying on these provisions, Congress has enacted rent control and restricted civil liberties. In the Prize Cases, the Court ruled that the president had the power to impose a blockade on Southern states without a congressional declaration of war. Limits on Congressional Power under the 10th Amendment Treaty and War Powers - The 10th Amendment provides that "the powers not delegated to the U.S. by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people." However, the powers of the federal government concerning foreign or external affairs are different in origin and nature from those involving domestic or international affairs. In external affairs, federal power is exclusive; The states may not conduct foreign affairs. There is no allocation of this power between the states and the federal government. Treaties - Article II, section 2 grants the President the power to make treaties with foreign nations, provided two-thirds of the senators present concur. Such treaties become the supreme law of the land under the Supremacy Clause. The 10th Amendment is not a limitation on the treaty power. Thus, pursuant to a treaty, Congress may legislate on matters over which it otherwise would have no power. When a federal statute and a treaty relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other. Treaties cannot violate the Constitution (Reid v. Covert). However, the 10th Amendment does not limit the scope of the treaty power (Missouri v. Holland). Missouri v Holland (p. ) – 1920 US and UK (controlled Canada) signed a Migratory Bird Treaty protecting certain birds from hunters. Congress passed a similar law prior to this that was struck down because of federalism. The Supreme Court upheld the constitutionality of a treaty between the US and Great Britain protecting migratory birds. The Court explained that he Constitution expressly grants the federal government the power to make treaties, and thus states could not claim that the treaty, or the statue adopted pursuant to it, violates the 10th Amendment. The Court explained that the Constitution expressly grants the federal government the power to make treaties, and thus states could not claim that the treaty, or the statute adopted pursuant to it, violates the 10th Amendment.
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What is the scope of the Treaty Power under Missouri v. Holland? Does this case stand for the proposition that there are no constitutional constraints on this power? Can Congress use the Treaty Power to achieve objectives that would be impermissible under the Commerce Clause power? For instance, could Congress reenact the civil remedy for gender-motivated violence struck down in United States v. Morrison pursuant to an international treaty on gender equality?

Implied Limits on Congressional Power

One approach is that the 10th Amendment is not a separate constraint on Congress, bu rather is simply a reminder that Congress only may legislate if it has authority under the Constitution. Under this approach, a federal law never would be found unconstitutional as violating the 10th

amendment, but it could be invalidated as exceeding the scope of Congress’s powers under Article I of the Consitution or for violating another constitutional provision. The alternate approach is that the 10th Amendment protects state sovereignty from federal intrusion. Under this approach, the 10th amendment is a key protection of states’ rights and federalism. The 10th Amendment reserves a zone of activity to the states for their exclusive control, and federal laws intruding into this zone should be declared unconstitutional by the courts. The court has taken both approaches, more recently, the former approach. However in the 90’s back to the latter. National League of Cities v. Usery 1976: The enforced application of FLSA to the states violated the principle of federalism as embodied in the 10th Amendment. Court says the government cannot interfere in areas traditionally under state control. Congress violates the 10th Amendment when it interferes with traditional state and local government functions. The court did not attempt to define what is a traditional function; the Court only held that forcing payment of the minimum wage was unconstitutional. Hodel v. Virginia Surface Mining Association 1980: Court made it clear that Usery only applied when Congress was regulating state governments, not when Congress was regulating private conduct. The Court upheld the constitutionality of a federal statute regulating the operation of strip mines. The statue required strip-mine operators to return the area to its "approximate original contour," which substantially increase the cost of operating certain strip mines. The court held that the statute did not affect "state as states", directly impair the states’ ability to ―structure integral operations in areas of traditional governmental functions‖, such that ―the nature of the federal interest justifies state submission‖, and therefore did not violate a state's constitutional immunity from regulation. United Transportation Union v. Long Island Railroad 1983?: Upheld the constitutionality of applying the Railway Labor Act's collective bargaining provisions to the state-owned Long Island Railroad. Did not violate 10th Amendment because there was no evidence that the application of the federal law ―would likely hamper the state government’s ability to fulfill its role in the Union and endanger its separate and independent existence. Garcia v SAMTA (p. ) – 1985: Court overturns Nat League of Cities saying that the ―traditional government functions test‖ was unworkable and that the fed government can interfere with areas in traditional state control up to a point. States are not exempt from generally applicable federal law. The Fair Labor Standards Act applies to state employees. States don’t get a free pass because the law was intended to apply to all employees. Court says that federalism is supposed to be protected by the political process, not the courts, and that Congress (as state reps) should make the necessary judgments on how much to infringe on state sovereignty. New York v US (p. ) – 1992 – The Carrot is OK, the Stick is not, Can’t force states w/coercion. This is a challenge to the fed laws dealing w/ disposal of low-level radioactive waste. The law encourages states to build disposal facilities or pay other states to use theirs. The law gives 3 incentives: (1) Monetary (from fed government); (2) Access (states w/ facilities can impose surcharges or ban other states’ waste) and; (3) ―Take title‖ (states without facilities will take title

and assume liability for their waste). NY couldn’t get a facility built, so it hurts them. Hold: It is unconstitutional for Congress to compel state legislatures to adopt laws or state agencies to adopt regulations. Ct says #1 & #2 b/c not coercion. Provision #3 is unconstitutional ―commandeering‖ of state legs and Congress can’t do it. This provision leaves NY no option but to enact the Congressional legislation, so the state government is essentially acting as Congress’ agent to do what Congress wants it to. Congress can say to a state, you can’t do this (i.e. discriminate against blacks) but it can never say you must do this. This does not overturn Garcia. Anti-Commandeering Principle Printz v US – 1997 – Forcing local law enforcement to participate.The Brady (gun) act required that local law enforcement check into the backgrounds of gun purchasers. The same principles in NY that apply to state government apply to state officials too. Congress can’t commandeer local law enforcement (use the FBI). Reno v. Condon 2000: Upheld the federal Driver's Privacy Protection Act. The Act regulates the disclosure of personal information in the records of state motor vehicles departments. Some States had received substantial income from sales of such information to commercial enterprises. The act prohibits state officials from disclosing "personal information" such as a person's photograph, name and address, and medical or disability information unless the driver consents to the disclosure. The act requires disclosure "matters of motor vehicle or driver safety or threat, motor vehicle emission," and automobile recalls, and other circumstances. Does not violate the anti-commandeering principle, even though it required time and effort by state employees, because it did not require the states to regulate their own citizens. The act regulates the States as owners of the databases, as opposed to as states (so it is in their business/commercial capacity) Moreover, it applied to all owners of databases, not just states. Are Reno and Printz distinguishable? Are they distinguishable from NY? Garcia and Reno involve laws generally applicable to both private parties and governments alike. NY and Printz require governments to do things as governments.

Separation of Powers
Article two of the Constitution begins, ―the executive Power shall be vested in a President of the U.S.‖ Article II then enumerates specific powers of the president. Some people think that this language means that the president has inherent presidential powers not enumerated because article I expressly grants the powers. Overview on Presidential Powers: Youngstown lists 4 approaches to determine what inherent powers, if any, the President has: 1) There is no inherent presidential power; the president may act only if there is express constitutional or statutory authority. 2) The president has inherent authority unless the president interferes with the functioning of another branch of government or usurps the powers of another branch. 3) The president may exercise powers not mentioned in the Constitution so long as the president does not violate a statute or the Constitution.

4) The president has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated. Overview on War powers: The Supreme Court rarely has spoken as to the constitutionality of the president using troops in a war or war-like circumstances without congressional approval. Challenges to the president’s use of troops in a foreign country are likely to be dismissed on political question grounds. Also, it is unresolved as to what constitutes a declaration of war sufficient to fulfill the requirements of Article I of the Constitution. Last, it is unclear whether and how Congress can put other limits on the president’s use of troops in foreign countries. Youngstown v Sawyer (p. ) – 1952 – Presidential Steel Seizure Case Pres Truman seizes steel mills to prevent a strike and keep a steady stream of materials for the Korean War. He cites 3 authorities; (1) Nature of Exec Branch power; (2) the power to execute laws and; (3) his power as Commander-in-chief. Things like this have happened in the past but only with an Act of Congress. Hold: The seizure is Unconstitutional. Power must come from an act of Congress or the Constitution itself. Ct does not want to define the powers of the Commander in Cheif but says that this seizure does not fall under the war powers. Congress was against the seizure (significant) and here the president is making laws, not enforcing them. Frankfurter, Concurring: Says Pres would probably have the power if there were a continuous, uninterrupted history of the act and Congress remained silent. Overview on executive agreements: A treaty is an agreement between the US and a foreign country that is negotiated by the president and is effective when ratified by the Senate. An executive agreement, in contract, is an agreement between the US and a foreign country that is effective when signed by the president and the head of the other government. The Court has sided with the president each tine there has been a challenge to an executive agreement! Dames & Moore v Regan (p. ) – 1981: As part of the agreement for the Iranians to release hostages Carter (and then Reagan) agreed to suspend/release all claims in the US against Iran (for this incident) and submit them to binding arbitration. DM brought a claim after this agreement against Iran for breach of K and won. Then the orders came down and overturned. Hold: President can use the IEEPA to freeze assets but he can’t use it to suspend claims. Court says Pres can do this because there is a long constitutional practice known to and acquiesced to by Congress, which raises the presumption that the action is taken with Congress’s consent.

War & Foreign Affairs
Executive Authority Inherent powers in foreign affairs - The President has special powers in foreign affairs due to the need for decisive action and a uniform policy with regard to sensitive foreign relations. Congress however, retains certain powers over foreign affairs, including the power to declare war, appropriate funds, and ratify treaties. Constitutional Provisions - Article II Section 2 provides that he President shall be the Commander in Chief to the Army and Navy and the state militias when they are called into the service of the United States. 1. The use of armed forces - Although the Constitution specifies that the President is the Commander in Chief of the Army and Navy, only Congress has the power to

initiate or declare war. The interplay of these powers was not made clear in the Constitution. 2. Deployment - However, in the event of insurrection or invasion, the President may deploy our military forces against any enemy, foreign or domestic, without waiting for congressional declaration of war. [The prize cases] S.C. upheld Lincolns ability to blockade Southern ports when southern states succeeded.

Executive detention of enemy combatants - The Constitution does not contain any general "state of emergency" exception to its provisions that would suspend constitutional rights in the event of a national emergency. The 5th Amendment does relax the requirement for a grand jury indictment for military cases in actual service in time of war or public danger. The Supreme Court has held that the constitutional protections apply even in time of war, such as in Youngstown Sheet & tube CO. v. Sawyer. In Ex Parte Mulligan, the Court held that President Lincoln could not suspend the writ of habeas corpus during the Civil War and could not try civilians in military tribunals. In 1948, Congress enacted the Non-detention Act, which provides that no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress. Enemy Combatants in military tribunals - in Ex Parte Quirin, the Court upheld the conviction before a military tribunal of 8 Nazi saboteurs, including a U.S. citizen, who landed in the U.S. armed with explosives. The Court stated that the capture, detention, and trial of unlawful combatant were important incidents of war. Congress authorized detention to prevent enemies from returning to the battlefield.. The court found that American citizenship of a captive enemy does not limit the government's power to deal with him under the usages of war. Joint resolution authorizing the use of Military force - in response to the attack on September 11th, 2001, Congress passed a joint resolution titled "authorization of Use of Military Force" that gave the President broad authority to use force against nations, organizations, or persons that the President determines aided the terrorist attacks. No particular enemy was defined. President Bush committed the United States Military to combat in Afghanistan and Iraw and detained alleged enemy combatants inside the U.S. and at Guantanamo Bay, Cuba. Detention of enemy combatants at Guantanonmo Bay - The United States military captured several hundred foreign fighters in Afghanistan and held them as "enemy combatants" at Guantanamo Bay, a territory leased by the US from Cuba since 1903. Under the lease, the territory remains under the "ultimate sovereignty" of Cuba. Some of the prisoners sought writes of habeas Corpus in the federal district court for the District of Columbia. In Rasul v. Bush the Court held that federal judges do have jurisdiction to consider such habeas petitions from Gutmo detainees. The court reasoned that although technically Cuba has sovereignty over the territory, under the lease, the U.S. exercises "complete jurisdiction and control" over the base and may continue to exercise such control permanently if it chooses. As such, Gutmo is in every practical respect a territory of the U.S. Another consideration is the indefinite status of the detention and the lack of any legal procedure to determine the detainees' status. The dissenters argued that the decision extends the habeas statute to aliens beyond the

sovereign territory of the U.S. to anywhere in the world and that Congress could have changed the habeas jurisdiction of federal judges if it wanted to. In Rumsfeld v. Padilla, Padilla, a U.S. citizen was arrested in the U.S. on a material witness warrant in connection with a federal grand jury investigation of al-Qaeda-sponsored terrorism. Padilla was later taken into military custody after the President declared him to be an enemy combatant. Padilla filed a habeas corpus petition. After the circuit court held that the President did not have authority to detain Padilla, the S.C. remanded, holding that there was no reason to reach the merits of the case because Padilla had filed the petition in the wrong venue. Justice Stevens, joined by three others, waned to reach the merits of the case. Stevens asserted that Pdilla's protracted incommunicado detention for purposes of interogation was like the Star Chamber ad was a violation of due process. US v Curtiss-Wright Corp (p. ) – 1936 – Executive Authority Curtiss-Wright conspired to sell arms to Bolivia in defiance of a Pres order (along with Congress Joint Resolution). Hold: The Pres is the sole foreign policy head and he gets a much longer leash in foreign affairs than in domestic affairs. Congress has given Pres a lot of leeway for a long and continuous time. Also, this is a joint resolution with Congress so there is really no basis for finding this Unconstitutional. Hamdi v Rumsfeld ( ) – 2004: US detains Hamdi, a US cit, as an enemy combatant and doesn’t try him. Hamdi caught on the battlefield in Afghanistan with an AK. Can the Pres do this? Hold: The AUMF allows the Pres to detain enemy combatants and it doesn’t really matter if they’re US citizens. Court assumes that the Pres would need Congress’s approval and he got it here. Court says H can be detained as long as it’s proven he was an enemy combatant (doesn’t say he gets a trial, only a proceeding). They can’t detain him indefinitely Hamdan v. Rumsfeld (5-3)2005: Whether the United States Congress may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place and whether the special military commissions that had been set up violated federal law (i.e. UCMJ & Geneva Conventions), and whether courts can enforce the articles of the 1949 Geneva Convention. The federal government asserted that they had the authority to try prisoners of war before military commissions under AUMF. The Court held that it had jurisdiction to hear the case, that the federal government did not have authority to set up these particular military commissions (not given by AUMF), and that the military commissions were illegal under both the Uniform Code of Military Justice and the Geneva Convention. The UCMJ and Geneva Conventions require greater protections than the US military commissions afforded the defendants/Hamdan. War Powers - The Vietnam War called into question the whole matter of the relationship between Congress and the President in the conduct of war. Some commentators argues that the President had acquired more power in this area than was originally intended by the Constitution. Until President Theodore Roosevelt unilaterally sent troops into Panama in 1903, the President did not initiate military action against foreign state without congressional approval. After World War II, troop were sent to several location without congressional action, including Korea and Lebanon. The exact scope of executive and congressional powers in this area is not clearly

defined by the Constitution. Consequently, each branch has been free to take initiatives to make national policy in this area. The basic issue is whether the President has the power to use armed forces against a foreign nation without the authorization of Congress. The War Powers Resolution - In 1973, Congress adopted the Joint War Powers Resolution 50 U.S.C. sections 1541-48, which spells out the President's authority to use the armed forces. If the President uses the armed forces in foreign nations under specified conditions, without a congressional declaration of war, he must formally report to Congress. In the absence of any congressional action, the forces must (in most cases) be removed within 60 days. The constitutionality of the resolution has not been considered by the courts. Enacted in 1973 (in response to Vietnam) over Nixon’s veto – all subsequent Presidents have said this is Unconstitutional. Is it unconstitutional? Is Congress usurping President’s power as C-in-C? This is rarely invoked (but was in Iraq Resolution). Probably a non-justiciable Q Executive Privilege & Impeachment Impoundment - Impoundment refers to the Presidents power to refuse to spend funds appropriated by Congress. Congress passed the Congressional Budget and Impoundment Control Act to limit the President's power to defer spending (he cannot do so if one house passes a resolution requiring him to spend the money) or to terminate a program or cut spending authorized by Congress. The statutory scheme contemplates a congressional response to presidential proposal to defer or rescind a budget program. Both the President and Congress have generally followed the framework of this Act. Executive Immunity Immunity from civil damages - In Nixon v. Fitzgerald, the court held that absent explicit affirmative action by Congress, the President is absolutely rather than qualifiedly, immune from civil liability for his official acts. In this action brought by a whistleblower who charged violation of his First Amendment and statutory rights when he lost his job with the Department of Defense, the court stated that absolute presidential immunity is a functionally mandated incident of the President's office that is rooted in the doctrine of separation of powers. Just as with judges and prosecutors, who have absolute immunity, the President must make decisions on matters likely to arouse the most intense feelings. The public interest in his ability to deal fearlessly and impartially with these duties is a compelling one. The President's prominence would make him a target for numerous suits for civil damages. The President could not function if he were subject to inquiry about hi motives and subject to trial on virtually every allegation of unlawful conduct. The proper protection against presidential misconduct is the constitutional remedy of impeachment. The dissenting Justices argued that this holding put the President above the law and that the better approach would make the scope of immunity depend on the function, not the office. Qualified immunity for presidential aides - The court held in Harlow v. Fitzgerald, that presidential aides are entitled to only qualified immunity. This is the normal type of immunity for executive officials, and it balances the interests of those citizens who suffer damages against the public need to protect officials who must exercise their discretion in an official capacity. Absolute immunity is available to such aides when the responsibilities of their offices include

such a sensitive function that such immunity is required and the liability claim is based on performance of that protected function. Executive Privilege - Although not mentioned in the Constitution, a privilege has been recognized to protect against the disclosure of presidential communications made in the exercise of executive power. This privilege derives from both the doctrine of separation of powers and the inherent need to protect the confidentiality of high level communication. Military, diplomatic, or national security - When presidential communications relate to military, diplomatic, or sensitive national security, the claim of privilege is given the utmost deference by the courts. However, other presidential communications are only presumptively privileged. Overview on impeachment: There are still two issues that remain unresolved concerning impeachment. One is, what are ―high Crimes & Misdemeanors‖? Second, what procedures must be followed when there is an impeachment and removal proceeding? Look to US v. Nixon to see that impeachment proceedings have been considered a non-justiciable question. Nobody can get an injunction against the Pres to prevent him from performing his duties. Pres is also immune from damages resulting from his duties (not complete immunity for Pres’ subordinates). There is no immunity for stuff happening while he was not Pres (Paula Jones). Immunity does not extend beyond the scope of official capacity. US v Nixon (p. ) – 1974 N may have had something to do with Watergate. He appoints (through the Justice Dept) C as special prosecutor. C wants White House records including tapes (subpoena duces tucem). N seeks to quash subpoena and Dist Ct says no. Then N says case is non-justiciable (sep of powers – C works for N so N chooses the course of lit). N could make this go away by firing C (which he eventually does) and not pursuing the case, but he doesn’t initially do that for fear of political backlash. N argues Executive Privilege. Hold: Case is justiciable and N must answer subpoena. There is Executive Privilege, but court is not going to give N a free pass. Certain things need to be private but the priv can’t be sustained by a blanket claim. Each branch has some privilege to conduct some of its internal business in private, but it doesn’t apply to everything. Nixon considered telling the ct to fuck off (like Andrew Jackson), but didn’t. This led (in the 80’s) to the creation of an independent counsel to be free from Exec Branch so that the Pres couldn’t claim it was an internal matter. The court upheld the independent counsel provision (in the 80’s) by a 7-1 vote w/ Scalia as the lone dissent. Mississippi v. Johnson (p. ) – 1867: Courts cannot give an injunction against the President Nixon v. Fitzgerald (p. ) – 1982: President is immune from an action for damages Harlow v. Fitzgerald (p. ) – 1982: Presidential immunity is not extended to presidential aids

Clinton v. Jones (p. ) – 1997: No immunity in private matters, only as to duty as President. ―We have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity‖ Presidential Impeachment - Clinton was impeached (like an indictment, does not mean removed from office) - House has ―sole power‖ of impeachment - Senate has ―sole power‖ to try an impeached Pres (and judges too) - Senate can only make a judgment to remove the Pres from office and disqualify him from further public office (they can’t do anything else, like censure) - Pres can be impeached for treason, bribery and other high crimes and misdemeanors o What are other high crimes and misdemeanors? Almost certainly a nonjusticiable issue


				
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