Constitutional Law - Kmiec

CON LAW – FED STATE - KMIEC I. The Philosophical and Natural Law Basis of American Order a. John Winthrop i. Winthrop was trying to create a religious government. Purpose was to create a government that obeyed God, worked for His purpose, and in working for His, accomplish their own. Wanted to create a ―City on a Hill.‖ ii. Winthrop thought, as did the Framers, that a good, worthy government would be a reflection of its people, of what human nature consists of. Behind our government is a perception of what people are. iii. John Adams held that the Hebrew notion of God is a pretty handy god for the purposes of creating good government. This is b/c the Hebrew God governs human freedom, gives consequence to it. Adams believed that those schooled in such a religion would not need a heavy-handed government, because such people would govern themselves. iv. The Founders lived in a very religious world, and were in many cases very religious themselves. 1. In Federalist 55, Madison claimed that the best form of government for men would be where the actual ruler was God. b. Aristotle i. Aristotle‘s prescription for good life and good government: seek the mean. Moderation. Goodness consists in moderation. ii. What type of government would appeal to people in the middle? A mixed constitution that will have a balance between democracy and oligarchy. 1. this is precisely what the Founders tried to create. iii. Compared with Plato 1. Plato was an idealist, Aristotle an empiricist trying to figure what actually works. American, then, is more Aristotelian in its approach to government, b/c of view of human nature. iv. Importance of a rule of law: believed it superior to the rule of a single citizen, even if that citizen is an enlightened monarch, ―he who commands that law should rule commands that God and Reason should rule.‖ c. Cicero i. Holds that there is a natural law that is discoverable by human reason. He believes everyone can discover this law, can know what is bad and what is good. ii. Provides a non-religious basis for natural law by saying it‘s knowable by everyone, even those without religious instruction iii. Holds that law cannot depend on what people or judges make it. iv. ―True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions.‖ v. Cicero favored a constitution blending monarchy, oligarchy, and democracy d. St. Augustine i. Recognizing government as the means to larger ends: the original conception of limited government 1. Augustine, in comparison with Greeks and Romans, did not regard citizenship and governance as ends to themselves. The political world had no intrinsic significance for him. He regarded the state as a restraint imposed on man 1 CON LAW – FED STATE - KMIEC because of his sinful nature. All that could be expected from government is a moderation of the consequences of sin. 2. America could be said to derive from his thought a conception of a transcendent nature of mankind (as expressed in the Declaration) and a conception of human limitations and imperfections (as expressed in checks and balances). ii. Importance of intermediate associations: intermediate associations, such as the family, local church, and civic associations, help inculcate a spirit of liberty and morality, which in the end help to promote democracy iii. Compared with Thomas Aquinas 1. For Augustine, the state is little more than a necessary evil, to restrain men from their sinful tendencies 2. For Aquinas, government would be required even if there were no evil doers or breaks of the peace. As long as men are in society, he contends, someone must attend to the common good. Government has a positive role, attending to the moral well-being of citizens and ensuring material well-being. Also, very much believed in Natural Law. iv. Tocqueville‘s reliance upon religion to make society suitable for law 1. T believed Christianity and liberty were linked in America; that Christianity contributed to the maintenance of a Democratic Republic. It did so by enabling men to see themselves as equals, because they are equal in the sight of God, and to be moral, facilitating good government. II. Constitution and Declaration: Means and Principle a. Constitution: Means or End? i. Pattern of CL reasoning that pre-existed Henry the VII had 3 parts: God‘s law, natural law, positive law (enacted conventions) ii. The revolution was a breaking of the law justified by higher laws: natural law and god‘s law. iii. Common Law comes from law of nature, and the ability of reason to discover it, and use it to solve dispute. This forms a body of case law that can be applied thence after. iv. Dec Ind. mentions God. ―The Laws of nature and nature‘s God.‖ v. Declaration thus clearly rests on natural and divine law. vi. Constitution is a means for realizing the ends espoused by the declaration b. Common Law and Natural Law i. Richard O‘Sullivan on St. Thomas More 1. More viewed the king‘s separation of the Church of England as illegitimate, because it violated God‘s law and the natural law. The law of men is subordinate to both. ii. Blackstone 1. Was widely read by almost all the founders, providing the legal training for such as CJ Marshall with his Commentaries. 2. Holds that the will of God is the law of nature, and that the law of nature can be reduced to one precept: ―that man shall pursue his own true and substantial happiness.‖ 3. Holds that human laws are of no validity if they are contrary to natural law 2 CON LAW – FED STATE - KMIEC 4. Declares as absolute rights the right of personal security, the right pf personal liberty, and the right of private property 5. Would hold that all governments are subject to the ends of natural law, and are supposed to be means towards those ends. iii. Roscoe Pound: America rejected legislative/parliamentary supremacy, and thus deliberately linked the Constitution to natural law iv. Clarence Manion: Declaration is the best possible condensation of natural law – common law doctrines that had been developed prior to it. c. The Declaration as the Constitution‘s Principle and End i. Preamble: ―We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness - That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.‖ ii. The Declaration and the Formation of the Constitution 1. Federalist 43 (Madison) a. Addressed how a Constitution that could be ratified with less than unanimity (9/13) could be binding, and what relation dissenting states would have to ratifying states b. Answered the first by saying that natural law, which declares safety and happiness as objects of all societies, mandates that governments that get in the way of this must be sacrificed, and that the Confederacy must then be sacrificed, even if not all of its members agree to it. 2. Anti-federalists also argued based on the Declaration, saying that the Constitution does not secure natural rights iii. Constitution: a substitute for the Declaration? 1. Answer: no. Constitution is a source of authority in and of itself, but there is no evidence it was intended to displace natural law as expressed by the Declaration 2. Natural Law and the Constitutional Convention a. Madison, 1787 debates i. Wilson does not limit unconstitutionality to the text, but includes injustice ii. Ellsworth and Madison include in unconstitutionality evaluations natural law iii. In debate over whether to include a bar of ex post facto laws, Wilson thought inclusion entirely necessary since it was already barred under ―the first principles of legislation.‖ 3. Need for a Declaration of Bill of Rights in the Constitution? a. James Iredell: argues that BR not necessary because government is limited to powers given it by the Constitution, and that it is thus excluded from other powers, leaving rights outside delegated powers unimplicated. 3 CON LAW – FED STATE - KMIEC 4. Natural law and the Ratification Debate a. Federalists and Anti-federalists were in agreement that human rights cam from God and human nature, but they disagreed as to whether these rights should be put in writing. b. Brutus: surrendering natural rights would counteract the end of government: the common good. Want to have these rights expressly laid out, because rulers have the same propensities as other men and are apt to take them away c. Federalist 84 (Hamilton): responded by saying that putting the natural rights in writing would be dangerous because no enumeration could possibly capture all the rights of man, and those not enumerated would be argued to be conceded to the government. iv. The Bill of Rights introduced: unenumerated natural law rights preserved 1. Annals of Congress, 1789: Madison takes special care to say that the Constitution is not the source of natural rights, that they precede and are not superceded by the Constitution, and that the enumeration laid out in the Bill of Rights is not an exclusive list. v. Natural Law in the Early Supreme Court 1. Does Ninth Amendment (―the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.‖) make natural law rights judicially enforceable against Congress? Madison seemed to think so, but the Amendment has not been interpreted in this way. 2. Corfield v Coryell a. Says that meaning of ―privileges and immunities‖ in the eponymous clause (art.4, §2) is the natural rights of citizens. b. Thus, content of privileges and immunities clause is defined by natural law. 3. Calder v Bull a. Chase majority: i. Holds that the people erected their constitutions to attain the natural law ends of the Declaration. ii. Holds that the nature and ends of legislative power will limit the exercise of it, and since the ends are natural rights, legislative power can not abrogate natural rights. iii. ―An act of the legislature contrary to the first principles of the social compact cannot be considered a rightful exercise of legislative authority.‖ b. Iredell dissent: Court does not have power to declare a law in violation of the natural law to be void. This is because, according to Ire., natural law has no fixed standard, and is disagreed upon by able men. vi. The Modern Supreme Court and the Declaration and Natural Law 1. Antonin Scalia: Scalia believes in natural law, but he as judge upholds the Const and only those laws wanted by the majority. Scalia holds that declaration has not figured prominently in cases he‘s seen. 4 CON LAW – FED STATE - KMIEC 2. The use of history and common law inquiry as a substitute for natural law reasoning a. Justice Scalia, though disclaiming the use of natural law, freely admits to using historical/common-law traditions in interpreting the Constitution. He cites Bowers v Hardwick as a case that relies on history and tradition. b. J Scalia views Ct‘s function as preserving society‘s values, not revising them. Says ct‘s legal standards should reflect, not supercede, traditions. III. The Structural Allocation of Powers: Judicial, Legislative, Executive a. Historical Antecedents i. Montesquieu and division of governmental powers 1. Purpose for dividing powers is to protect liberty a. The unification of powers in one hand leads to tyranny 2. He allocates power into its 3 functions: legislative, executive, and judicial 3. He describes the judicial power as next to nothing a. Repeated by Hamilton in Federalist 78 4. He advocates putting executive in a single hand b/c it is an office for action, where dispatch is more important than deliberation 5. He says it‘s bad for congress to always be in session b/c it overburdens the executive 6. He placed the spending power with the legislature, as did our Constitution 7. He holds that turnover is needed in the legislative branch to prevent corruption. ii. Checks and balances: protecting the public good from individual interests 1. Our conception of government is what the founders understood as human nature a. Founders were of 2 schools. The optimistic says most people would do the right thing most of the time. The negative side advocated affirmative checks in offices to keep them from encroaching on each other b. Constitution was designed to have ambition check ambition 2. Federalist 47 (Madison) a. Madison argues for blending of power in order to keep it separate. This blending is a check and balance process. Ex: legislation is a blending of the congress in law-making and the president in vetoing. b. Argues that when Mont. Argued for separate branches, he did not mean they should have no partial agency/control/checks over each other. 3. Federalist 51 (Madison) a. Argues that balancing interest against interest, giving each branch a way to defend itself from the others, is necessary. This does not mean all will be equal. Legislative will by necessity be the strongest, and this is why it is divided in two branches. 4. Can‘t serve simultaneously in legislative and executive branch. Forbidden by ―Incompatibility clause‖ (art.1 §6 cl.3). 5 CON LAW – FED STATE - KMIEC b. The Judicial Power i. Who should choose judges? There was an argument at ratification of whether senate or pres should. Argument against senate was that it was big and likely to involve vote trading in its nomination. Argument for pres is that he would be more accountable. 1. Solution was to have pres nominate, senate advise and consent, and pres appoint (conditional on senate approval). ii. Should there be inferior fed courts? Const gave legislature power to create fed ct. Lower courts exist by virtue of statute and statute alone. This was a compromise. Many did not want them. They wanted the state courts to do it. However, the fear was that this would lead to forum shopping iii. Justiciability 1. Deals with suitability of cases for being in federal ct 2. Defines scope of judicial role 3. Not laid out in Art. III. They are a gloss on the Constitution arising from the Ct‘s decisions 4. Standing a. Determines whether a specific litigant has the interest to be a plaintiff b. Standing requirements derived from Article III. Requirements: i. P must allege that he suffered an injury ii. The injury must be traceable back to D iii. Ct must be able to redress the injury c. Injury can be a violation of Const, Statutory, and Common Law rights d. The injury must be personal and concrete i. No generalized grievances. Ex of generalized grievance: taxpayer who doesn‘t like the way the government is spending money. ii. If based on a government program being challenged, must concretely affect the P iii. Exception: Establishment clause 1 st amendment grievance creates standing for generalized taxpayer grievance (Grand Rapids Sch. Dist.). e. Causation i. But for test. ii. Ex: charities receive benefits under the tax code. Charities, to receive the benefits (to be a not for profit org), must engage in certain activities. IRS subseq made the reqs to be a NFP entity. This means the NFPs offered less charitable services. Could those who are now receiving reduced services sue the IRS? 1. Cts said no. NFPs didn‘t have to offer less services b/c of the IRS action. Thus, the injury was not caused by the IRS iii. The farther away you are from the defendant being the direct cause, the more difficult it is to establish this element iv. Allen v Wright: injury must be ―fairly traceable to the D‘s unlawful conduct.‖ f. Redressability 6 CON LAW – FED STATE - KMIEC i. Can the ct give the relief that the P is seeking ii. The requested ct action must redress the actual injury iii. Example: Texas deadbeat dad program – jailing the father provides no relief because the mother and father were not married (Linda R.S. v Richard D.). Prudential Limits on standing i. You can only assert your own rights (no 3 rd p claims) 1. Exceptions to 3rd p standing reqs a. When 3rd p can‘t assert his or her own rights b. When there is a close relationship between a p and a 3rd p (like doctor patient relationship) c. Overbreadth. (Broderick v Oklahoma). Allows a challenge on behalf of a 3p where a statute violates free speech rights of 3 rd p not before the ct, even if the law is constitutional as applied to the litigant. Only applies to political speech. Must substantially chill political speech to give rise to claim ii. The injury you are reciting falls within zone of interest congress was seeking to protect by the passage of the statute 1. plaintiff must be part of the group Congress intended to benefit from the law. Laidlaw: citizen can bring suit under Clean Water Act seeking injunctive relief as long as the three standing requirements are met. Fine monies would be paid to the Treasury, not the citizen, but Court claims the citizen would still have an interest in this form of deterrent. i. Thus, the sufficient personal stake requirement of Baker v Carr was met. ii. Contrast this with Sierra Club, where the Court held that the petitioner lacked standing because it failed to provide evidence its members used the park that was the subject of litigation, or that they would be ―significantly affected‖. In addition to violation of constitutional rights, statutory rights, and common law rights, a plaintiff has standing if he/she asserts an injury the Court finds sufficient for standing purposes. i. Injury requirements may vary based on relief sought 1. City of LA v Lyons: plaintiff seeking injunctive or declaratory relief must show a substantial likelihood of future injury. Legislative Standing i. Courts do not like to recognize this. Why? 1. Don‘t want to give the losing side in Congress a second shot and involve the court in political contests 2. Makes ct into a second legislative chamber ii. 2 narrow exceptions: g. h. i. j. 7 CON LAW – FED STATE - KMIEC 1. legislator has suffered a personal injury in his ability to take his seat (this is b/c he has been denied something he is individually entitled to) (Adam Clayton Powell case) 2. Coleman v Miller. State legislators in Kansas argued that their votes if properly counted would have determined a specific legislative outcome. 5. Ripeness a. Separates imminent, likely, or existing injuries from those that may never occur b. A question of probability of injury, harm to the p from not hearing the case, and general fitness of the record for the courts review c. Abbott Laboratories: identifies 2 considerations for ripeness inquiry: the hardship to the parties of withholding court consideration, and the fitness of the issues for judicial decision. i. The Court has found hardship in 3 situations 1. the plaintiff is faced with either foregoing an action he contends is lawful or facing likely prosecution for not foregoing the action 2. enforcement of a statute or regulation against the plaintiff is certain and imminent 3. even if no immediate injury, there are collateral injuries ii. Whether second prong is met determines if the question depends heavily on facts. Questions that do are less likely to be found ripe. 6. Mootness a. Some injury is continuing. b. However, voluntarily ceasing illegal behavior doesn‘t necessarily moot the case. Must show good faith ceasing. c. Also covers wrongs capable of repetition but avoiding review i. Such as abortion, b/c pregnancy is usually over before case is heard ii. In these cases, there must be a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein). d. Also, class actions may continue even if a specific plaintiff‘s claim is rendered moot (Sosna). 7. Political Questions a. Where there are no standards for cts to apply, and where they should thus not intrude iv. Subject Matter Jx of the Supreme Ct 1. Federal Question Jx (appellate jx) a. Plaintiff must base his coa on federal law (well-pleaded complaint rule: a federal question does not arise when P claims that his coa arises b/c of the D‘s anticipated affirmative defenses (Louisville & Nashville R.R.)). 8 CON LAW – FED STATE - KMIEC b. Generally state cts of general jx may hear federal question claims, unless Congress make those claims the exclusive jx of federal cts (like bankruptcy, antitrust, etc.) Diversity Jx (appellate jx) a. Citizens must be of different states and the amount in controversy must exceed $75K. Diversity is measured by citizenship at the time of the filing of the complaint b. Strawbridge complete diversity rule: each defendant must be a citizen of a different state than each P. Admiralty (appellate jx) Controversies naming the US as a party (appellate jx) Original Jx a. Controversies between 2 or more states (original and exclusive jx) i. Ct will refuse to adjudicate if case contains no federal interest (California v West Virginia). b. Actions in which ambassadors or similar agents of foreign states are parties (original and non-exclusive – shared with lower federal courts) c. Controversies between US and a state (original and non-exclusive – shared with lower federal courts) d. Actions by a state against the citizens of another state or against aliens (original and non-exclusive – shared with lower federal courts and state courts) e. Congress may not add to or subtract from the Court‘s original jx (Marbury v Madison). Routes to Supreme Ct: Certiorari, Appeal, or Certification a. Cases usually come before the Ct on Writs of Cert., which are almost entirely discretionary Exceptions to Appellate Jx a. Ex parte McCardle i. McCardle was trying to argue that the Court had general appellate jurisdiction – but the Court says NO, unless Congress enacted affirmative statutory grants of jurisdiction, there is not appellate jurisdiction. (Limited to only that Congress granted, ―an implied negation of that not granted.‖) ii. Court has to decide whether it has jurisdiction to hear this case, to be heard by a military tribunal. iii. Congress had revoked Court‘s jurisdiction by repealing the statute (for writs of habeus corpus) that originally granted it in the middle of trial. b. Power of Congress to make exceptions to Fed Jx: Congress can‘t touch original jx, but it has sweeping textual authority to make exceptions to Supreme Court‘s appellate review i. See Article III, Section 2 – ―In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.‖ 2. 3. 4. 5. 6. 7. 9 CON LAW – FED STATE - KMIEC v. Judicial Review 1. Federalist 78 (Hamilton) a. Court‘s duty is to declare all acts contrary to the ―manifest tenor‖ of the Constitution void. i. This is to prevent the people from being judges in their own case through the legislature b. Hamilton - the People are paramount. The people are vindicated when the ct speaks c. Hamilton relied on the specialization of judging for its competence d. Hamilton says that if judges abuse their discretion, check upon them ultimately falls back on the people, who are to alter or abolish their government through some solemn and authoritative act. e. 2. Marbury v Madison a. §13 of judiciary act gives ct jx to issue writ of mandamus i. Ct finds this section to be Unconstitutional, as it expands Original jx ii. writ of mandamus: requires an official to do a nondiscretionary function he is required by the law to do b. Ct lacks SMJ under art. III, and Congress can‘t give SMJ explicitly against the text of the Const. c. Marshall ultimately relies on the supremacy clause to hold that ct has capacity to tell both Congress and the Executive that they have failed to properly follow the Constitution d. Holds that the Court is the final arbiter of Constitutional meaning, subject only to overthrow of government by the people, or amendment. 3. Pre-Marbury evidence of judicial review a. The power to declare legislative enactments unconstitutional was expressed previously by Justice Patterson in Vanhorne’s Lessee v Dorrance. Declared a state statute unconstitutional. Said every act of the legislature repugnant to the Constitution is utterly void. b. Madison also declared that violating the Constitution would be considered by judges as null and void. 4. Is the Ct to be the sole expositor of Constitutional meaning? a. No. It is the final, but not the sole. b. Executive may exercise independent constitutional judgment through the use of the veto, vetoing laws he considers unconstitutional. Presidents have also sometimes refused to enforce particular laws they consider unconstitutional, but they probably can‘t really do this because they must take care that the laws are faithfully executed. c. Congress may attempt to exposit through legislative enactment, but it can be struck down. See US v Eichman (flag burning case). 5. Binding nature of judicial opinions on the States a. Martin v Hunter’s Lessee i. Virginia confiscated land according to its own laws, but it does so after a treaty was signed, vesting the British owner‘s rights. 10 CON LAW – FED STATE - KMIEC ii. US supreme ct gives it to British. VA S.Ct. says it too can interpret the US Const and the Supremacy clause, and be a final arbiter of fed law. Ct rejects this, saying fed appellate power extends to all cases under article 3, saying state cts bound by fed const. iii. Const guarantees SCt final review in all cases iv. This is about the Judicial supremacy of the Sup. Ct. of being the final review of constitutionality over everyone (Marbury stood for their power of review over the other branches) b. Cooper v Aaron i. State governor can not ignore or resist fed ct order ii. ―it is emphatically the province and duty of the judicial department to say what the law is.‖ 6. Checks on judicial review a. Court can overturn Constitutional Law (what the law means) but not the Constitution (the law) itself. b. Ct is also checked by different levels of judicial review (bill of rights is given closer review than other sorts of cases (like economic questions)). c. The Legislative Power i. Legislation: that action that has the purpose and effect of altering the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and individual citizens, all outside the legislative branch ii. INS v Chadha 1. D was going to be deported, but got an exception allowing him to stay from Attorney General (AG). AG had power to give this exception if D falls into certain category, which AG held D did. House, however, overruled AG‘s decision through legislative veto. Legislative veto is useful b/c law needs such particularity and detail that it would be too slow for congress to execute them. So it passes laws in general terms, giving discretion to executive, but giving a veto over use of that discretion to itself 2. Issue: is legislative veto Const? 3. Ct says it‘s not b/c legislative veto doesn‘t require bicameral passage and presentment a. Definition of bicameralism and presentment = the bill has to go through both houses and must be given to the president to be signed b. Houses can only act outside this role under limited instances enumerated by the Constitution (such as senate power to ratify treaties). 4. Ct also holds that it is Unconstitutional because it is not subject to judicial review. 5. The reason for this ruling is b/c of the way leg veto effects separation of powers. It merges executive and leg, which is something founders feared a. legislative veto is in direct conflict w/ this principle and are going unchecked when they use this device (cutting out further deliberation, 11 CON LAW – FED STATE - KMIEC making it easier for laws to be passes, less well-thought out laws and more improvident laws) 6. Chief Justice Burger (and majority in Chadha) follows the Formalist view (the textual view) of the separation of powers doctrine (opposite of functional test above)?? a. Simply asks: What does the text say? i. For example, if you are passing a law, according to the Constitution, if you are passing a law, then it MUST go through bicameralism and presentment 7. Indented quote pg. 160: White‘s view (and minority in Chada) on the Functional Test of the separation of powers a. Does the constitution assign a function specifically to the executive? b. Does an action that congress has taken usurp or interfere w/ the executive action? c. If so, is there an overriding interest that should allow this interference with the executive action? iii. The elements of the ‗Political Question‘ doctrine 1. Baker v Carr. a. Held that political questions arise when there has been 1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or 2) where there is a lack or judicially discoverable and manageable standards for resolving it. 2. Nixon v US. Here, Ct found that the issue of whether it was unconstitutional for senate rules to not allow for an evidentiary hearing before the full senate in the impeachment of a federal judge was a political question. It based this decision on Art. I, §3, cl.6, which gives the senate sole power to try impeachments. 3. Foreign affairs questions are likely to be held to be political questions. iv. Why isn‘t president estopped from objecting to leg veto that he signed into law? 1. President‘s signature does not shield legislation from judicial review if it‘s unconstitutional v. Inherent Power for Line Item veto? 1. Bundling a. Putting together bills to ensure passage b. Does president have inherent line item veto over bundled legislation? i. No. ii. George Washington has said, ―When a bill comes before you, you must sign all or none.‖ 2. Is a Const amendment necessary to have line item veto? a. Yes. In 1996 Congress passed a line item veto. Clinton exercised it, and it was challenged. In Clinton v New York, Ct held that an act of Congress cannot authorize the President to create a law whose exact text was not voted on by either house. Thus, line item veto was struck down. 12 CON LAW – FED STATE - KMIEC b. Violation of Article I, § 7 – signing a bill that neither house had approved c. President was amending or repealing by a method not in the Constitution i. Back to the formula, bicameral passage and presentment Isn‘t there an intelligible principle here, shouldn‘t delegation be allowed? Congress debated a bill with CERTAIN provisions, involving compromise. Text of the bill was examined by all 535 congressmen, and decided THIS will be law. President, with line item veto, is making his own decision as to what will be law; he is turning into more of a law maker than an implementer Legislative empowerment of administrative agencies and the non-delegation doctrine 1. Non-delegation doctrine – Congress must give the President (the executive agencies) “an intelligible principle‖ – anything which gives literally no direction whatsoever 2. Congress can ―give away‖ its legislative authority. BUT the legislature cannot retain for itself a mechanism by which it can disapprove of the vast authority the executive has been given 3. This gives a great disparity of power to the executive. Reason for this is the need for quickness of action. Other justification is that it is a practical necessity in the modern administrative state. There would be too much for Congress to do, so delegation to Bureaucracy is necessary. This greater executive/bureaucratic power would be checked by judicial review (NOTE: legislative veto would have no such check) 4. In light of this doctrine, why can there be no statutory line item veto? a. Line item veto is different b/c it allowed president to amend or repeal legislation by a method not authorized in the Constitution. The Severability of legislative enactments found to be partially invalid 1. As a general matter, the Court severs invalid portions of a statute, unless it is evident that the legislature would not have enacted the statute without the invalid portion. Buckley v Valeo. Often Congress will attach a Severability provision expressly stating its will on the matter. Alternative oversight mechanisms for legislative veto 1. budgetary oversight and other legislative hearings 2. require administrative agencies to report new regulations to Congress, and wait a reasonable time before putting them into effect, thus giving Congress time to respond. This approach was approved in Sibbach v Wilson. Whitman v American Trucking 1. Appellate Court attempted to cure what it thought to be an over-delegation, not by invalidating the over-delegation, but by remanding to the administrative agency with instructions to limit the delegation. 2. Court found there was over-delegation here. Different from the delegation in the past b/c it had always been conditioned on the President making certain legislatively determined findings, here, w/o this requirement, merely a delegation to approve or disapprove. He was merely a lawmaker vi. vii. viii. ix. 13 CON LAW – FED STATE - KMIEC 3. Scalia and Court disagreed. Scalia said there was no over-delegation, and even if there was, ―an agency can [not] cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of it.‖ x. Judicial Limit on the Legislative CR Power? 1. Eldred v Ashcroft a. Court applies rational basis as test if CTEA meets goals of CR clause (progress of arts and science) (ie: is there a rational basis for this legislative choice). b. Holding: limited time is still limited even if it is extended; there is a rational basis to extend CR. d. The Executive Power i. Founders wanted to guard against concentration of power ii. Wanted to guard against monarchy 1. Idea of monarchy goes against the ‗created equal‘ in the constitution iii. Limits on Presidency 1. Limited term 2. No hereditary line 3. Subject to removal (not above the law) a. Although pres is immune for things done in scope of office 4. Founders (Hamilton), however, wanted someone at least capable of acting w/ energy, dispatch, and secrecy. 5. ―The Executive Power shall be vested in a POTUS of America.‖ Vesting clause. U.S. Const. art.2 §1 cl.1. Source of presidential power. 6. Unitariness of executive guards against king-like abuses. This is b/c it is easier for public to watch/guard against one man than many. 7. Article two (Exec) starts with vesting clause, then talks about how he becomes president. Oath of office is actually in article 2. 8. President is sole head of foreign affairs. Pres has sole power to decide who the lawful representative of a country is. Art. II, §3. 9. Take Care clause: ―[The President] shall take care that the laws [are] faithfully executed.‖ Art. II, §3. iv. How presidency is executed depends on the person elected 1. Ex: Theo Roosevelt admitted extending pres power (he argued he could do whatever he wants unless prohibited by Const or statutes). Taft however, would not act w/o explicit authority. Lincoln took a number of unconst. steps, such as suspending Writ of Habeas Corpus. To do this, Lincoln relied on Locke (p235), arguing ―was it possible to lose the nation, and yet save the Constitution?‖ v. The Source and Scope of Domestic Authority 1. Youngstown Sheet & Tube Co. v Sawyer a. Truman seized steel mills for gov production use b/c of threatened strike. We were in the middle of an undeclared war in Korea. b. Truman did this through an executive order. c. Truman argues he has power to do this via vesting clause, take-care clause, and commander in chief clause. d. Owners of steel co‘s sue to get back their mills 14 CON LAW – FED STATE - KMIEC e. Ct, 6-3, invalidates Truman‘s executive order. f. In Justice Black‘s maj opinion, he notes there is no statutory authority for pres to do this. He then looks at Truman‘s claims of Const authority, and rejects them, saying this is a legislative action, not delegated to presidents. Since pres has no explicit stat. or const. authority, he can‘t seize the steel mill g. Douglas concurrence: says Pres can seize property (citing Kohl for proposition the fed gov can condemn property for any public purpose), but must pay for it b/c of takings clause. Since only Congress can pay for it, pres action is illegitimate unless congress appropriates the money. h. Franfurter: says pres may confiscate so long as it doesn‘t violate a statute or clause of Const. Says here it violates Taft-Hartley act, which gives a procedure for seizing steel mills, which was ignored. i. Jackson‘s Concurrence i. Gives three categories for executive authority: 1. Express or implied authorization through Const or Statute a. Here pres power is at its zenith, b/c he has his power + Congress‘s 2. Twilight zone where Congress and President have concurrent authority and Congress has passed no contrary act a. Congress hasn‘t acted. No express disapproval. 3. Presidential measures incompatible with the implied or express will of Congress. Pres here can rely only on his Const powers minus Congress‘s Const powers a. Lowest ebb of pres authority. Pres must have some sort of Const. trump card ii. Frankfurter didn‘t like Jackson‘s attempt to comprehensively delineate presidential power. j. Vinson‘s Dissent i. Holds that President‘s have inherent authority not subject to Congressional authorization 1. Cf. Few cases have recognized any inherent authority in the Executive in domestic matters. To act without legislative authorization, President must usually be taking some sort of protective action to preserve the status quo. See, e.g., In re Neagle, and US v Midwest Oil Co. ii. Gives many examples of Presidents acting w/o Congressional authorization 1. George WA declaring neutrality 2. T. Jefferson making Louisiana Purchase (no Const. power to acquire new territory) 15 CON LAW – FED STATE - KMIEC 3. Reagan expanded territorial sea boundary line from 3 miles out to 12 miles out vi. The Presidential Appointment Power 1. Federalist 77 (Hamilton) a. Power to nominate and appoint is in the president singly and absolutely. Senate is to subject to external influences and fluctuates too much. 2. Necessity of proper appointment to act on behalf of the US in executive function: a. Buckley v Valeo. The Court held here that FEC Commissioners were performing important executive functions, and thus had to be appointed under Art.II, §2, cl.2. 3. the advise and consent role of the senate a. Fed. 76 (Hamilton) - the Senate only ratifies or rejects, does NOT choose. This is so as to fix responsibility in one place, creating a greater sense of duty. (about ACCOUNTABILITY) b. Distinctions between appointees: i. Principle Officers – who are they? 1. Ambassadors, Public ministers, Consuls, Justices of the Supreme Court, (these are explicitly listed) and then there is a residual category of officers (the Cabinet and often times into one level below that to their deputies or assistants) 2. Congress creating an office and subjecting them to Senate confirmation = then they are Principle Officers ii. Inferior officers: Congress can invest appoint of these in Presidents, Courts of Law, and Department heads. Not subject to advice and consent. Congress can also make officers principles by its acts. 1. Ex: 3 judge panel appoints independent counsel 4. Myers v US a. Does President have sole power to remove a principle executive officer? Myers Ct says yes b. Here, Senate did not give its consent to removal. c. A statute created a requirement of senatorial consent for removal of a principle executive officer. d. In 1789, while creating a department, House debates whether they need to explicitly give president power of removal, or whether has it constitutionally. Congress strikes this explicit assignment of duty in order to create inherent presidential removal authority. They did this b/c of separation of powers, risk that a requirement of senatorial consent to removal would give senate executive powers e. For executive power to be unitary as intended, executive needs sole removal power. f. Senate advice and consent on nominations was intended to make sure small states got appointments 16 CON LAW – FED STATE - KMIEC g. Inferior officers who exercise quasi-judicial and quasi-legislative functions are not subject to this specific power of sole presidential removal i. These sorts of officials form a sort of separate independent branch, an administrative state ii. Congress can limit removal of these officers by department heads. US v Perkins vii. The Power of Removal 1. Myers a. With regard to a principle officer, president has sole removal power. They are removable at his will b. Congress can limit the removal of inferior officers, at least inferior officers appointed by a department head or court of law. US v Perkins. 2. Humphrey’s Executor v US a. There are such things called independent agencies, and those who run them can only be removed for cause, or at the end of their defined terms. (ex: Independent counsel) b. Creates a sort of fourth branch of gov, creates administrative state, subject to capture by interest groups viii. The Executive bounded by statutory meaning 1. FDA v Brown & Williamson a. FDA trying to label cigarettes a drug, Ct finds against FDA b. FDA would have to ban tobacco as it fits the definition of misbranded. c. NO way for FDA to regulate tobacco to make them safe – if used, even as intended, they are harmful to a person‘s health d. Court says Congress could not have intended that tobacco be taken off the market – they have spoken several times i. How important the tobacco industry is to the economy of the US ii. Passing of statutes, precluding tobacco advertisements on electronic media, prohibiting the marketing to minors e. Breyer‘s dissent – Chevron says this is ambiguous, since it is ambiguous, court must defer to agency i. Chevron v. NRDC 1. If Congress has spoken to an issue, the agency must follow that lead (Court must determine whether agency has misconstrued the statute) meaning statute is unambiguous and Court can interpret it themselves 2. If Congress has not spoken, deferring regulatory authority, or if there is ambiguity, the court must defer to the agency (―Congress hereby gives the power to promulgate rules, regulations, and decisions of this type‖) if the statutory interpretations are reasonable. (Whether the court agrees with that interpretation or not) 17 CON LAW – FED STATE - KMIEC f. Text of legislative history of the statute you are construing, NOT subsequent statutes, those texts are the ones that have relevant authority to explain what they intended to confer on the agency. 2. US v Mead Corp a. Reduced the deference given to the agency. Court now exerts more oversight over an agency‘s interpretation as to informal rulings (give less deference to the agency than they do when the agency does note and comment rule making). b. Deference only from the persuasiveness of the ruling (this case was a letter ruling, an informal interpretation). Skidmore. The more persuasive, the more deference it gets. c. Scalia argues that this is a total subversion of the Chevron doctrine. The regulatory structure will be less dynamic. Once a policy is put in place, part of the analysis is consistency. This is ―an ossification‖ of the administrative process. These decisions should be made by agencies NOT judges. ix. Executive Privilege 1. US v Nixon a. Issue of executive privilege is difficult b/c it is not explicitly in the Constitution b. No absolute executive privilege b/c it would make the president the judge in his own case c. Dealt w/ Justiciability: is there a case or controversy? d. Bork as solicitor general fired the first special prosecutor. He did this against DOJ regulations e. Regulation giving Congress a say in firing an inferior officer seems to have Chadha problems f. Special prosecutor must always meet 17(c). Ct holds this must be meticulously met. This is a high threshold that must be met. This question must be dealt with before privilege is even raised. g. Ct. rejects absolute privilege here b/c executive privilege must be weighed against criminal justice process, and criminal justice system outweighs it here. h. Pres immunity is absolute. His officers have qualified immunity for official acts that do not clearly violate a well-established, objectively knowable constitutional or statutory right. i. There is a parallel set of immunities for legislators for criminal or civil suits related to performance of legislative acts (speaking, voting, etc.). 2. Different levels of executive privilege a. Privilege hierarchy: i. Top – military secrets (with military secrets executive privilege is well nigh absolute); ii. Middle – privilege in regards to criminal prosecution; open litigation files (pres less likely to be able to claim it if he is target of prosecution); 18 CON LAW – FED STATE - KMIEC iii. Lowest: Right to receive complete honest and unfettered advice (if people know their advice is subject to publicizing, advisor candor will be compromised) 3. Contemporary claims of executive privilege: rejected claims of government attorney-client privilege a. Hilary Clinton tried to create a privilege against gov‘t attorneys testifying. Ct holds, though, that gov‘t attorneys work for US, not the president or the first lady. 4. Sitting President not immune from civil lawsuit for actions outside the scope of his office: Clinton v Jones a. Another example: VP Agnew was prosecuted for tax evasion while still VP 5. Sitting President immune from civil lawsuit for presidential decision making: Nixon v Fitzgerald a. Nixon v Fitzgerald creates absolute immunity from civil damages for decisions w/in scope of office (broadly construed). x. The Independent Counsel 1. Morrison v Olson a. Ethics in Government Act of 1978 – the Independent Counsel law. Attorney General is supposed to upon receipt of a referral, decide whether to appoint an independent counsel, refusing to ONLY if ―there are no reasonable grounds to believe that further investigation is warranted.‖ This act emerged out of Watergate, an attempt to create a process where we would have an independent counsel to investigate high ranking officials like President, Vice-President and Olson, where it would be incongruous to have the Department of Justice do the investigating. Theory is quite benign. b. IC law emerges out of principle that no man should be the judge in his own case. c. IC is supposed to, but doesn‘t have to, apply the general guidelines of the DOJ. d. IC is different in 2 ways from normal prosecutor: it does not have limited funds, and IC doesn‘t have to apply probable cause standard. There must merely be ‗reasonable grounds to investigate‘. e. IC here tried to indict Olsen. Olsen tries to quash indictment by challenging IC law. f. Olsen‘s 3 objections: i. Responsibilities of IC are so serious that he should be a principle officer, but IC law calls for him to be appointed as an inferior officer 1. Ct rejects this, saying IC has limited jx and can be removed for cause by AG, and IC serves for limited time. 2. This reinforces the distinction between principle and inferior officers that looks only at how they are appointed, giving deference to Congressional choice 19 CON LAW – FED STATE - KMIEC ii. Incongruous to have a Ct appoint a purely executive official. 1. Ct not troubled by this. Said it would be improper if there was a conflict here between panel of judges‘ decision and their ability to hear cases. iii. There is a violation of separation of powers. 1. Ct says qualification of removal to good cause only is ok b/c in Humphrey’s Executor Ct had said that individual can have a removal condition if the character of the office allows it, if office is not solely for presidential functions 2. Ct says ‗good cause‘ removal std. does not impermissibly burden presidential supervision 3. Ct says there is no separation of powers issue because power taken from the executive is not given to Congress or the Judiciary. g. Scalia dissents i. Says Const. gives all exec power to pres, prosecution is exec power, so an act that gives exec power to another not under meaningful supervision by the pres is unconstitutional. h. Interbranch appointments are permissible i. Ct will not readily second-guess Congress on whether an officer is principle or inferior. 2. IC law has died. The Department of Justice has gone back to creating Special Prosecutors who are a part of the Executive branch. 3. Morrison refocused inquiry for independent agencies from focusing on whether an officer is removable at will to whether an officer is performing executive duties. If performing executive duties, removal limitation (ex: IC can only be removed for cause) will only be upheld if it doesn‘t impermissibly burden the President‘s power to control or supervise the officer. Thus, it replaced the inquiry from Humphrey’s Executor. 4. Test now for inferior officers discharging executive duties is if the removal provision impermissibly burdens the President‘s power to control or supervise the officers, then it is not allowed. xi. The President and the World: Foreign Policy Powers 1. US v Curtiss-Wright Export Corporation a. Congress passed a joint resolution that empowered the president to make findings and make a proclamation banning the sale of arms to a certain country. This of course raised delegation issues. To delegate its powers, Congress must give specific guidelines for what it delegates. i. A joint resolution is passed by both houses and is presented to president. Concurrent resolutions are merely passed by Congress, and do not have the force of law b. Now, if Congress merely gives president an ―intelligible principle‖ it can delegate its powers to him. 20 CON LAW – FED STATE - KMIEC c. Modern intelligible principle standard is low. Pretty much all you need now is words on paper d. There was a genuine issue of whether this delegation was ok e. Ct says power of foreign affairs for president predates the Constitution: the sovereignty existing in the Union of the US following its break away from Britain had to go somewhere, and the logical place for it is in the president. f. By necessity, foreign affairs power is given to pres g. John Marshall describes the pres as the sole organ of the nation with regard to external affairs h. Ct holds that Congress can broadly delegate to president on matters of foreign affairs, whereas it can‘t in the domestic sphere. 2. Balance of foreign affairs powers between President and Congress a. Jefferson believed foreign affairs power belongs entirely with the president, except where it is delegated Senate, and that the delegation to the senate should be strictly construed. Presidents tend to view Curtiss-Wright as embodying this principle. b. Specific Congress foreign affairs powers: Senate, however, has power to approve treaties (art. I, §8, cl.11); Congress has the power to declare war (art. I, §2, cl.2); the power to regulate foreign commerce (art. I, §8, cl.3) i. Const Convention: changed ‗power to make war‘ to ‗power to declare war‘ because nation needs an immediate defense to attacks. c. General Congress foreign affairs powers: power of the purse (art. I, §8, cl.7). 3. Presidential authority to maintain intelligence and military secrets a. Department of Navy v Egan: expressly recognizes the constitutional authority of the president to protect diplomatic and intelligence secrets (citing Commander in chief clause (art.II, §2) as source of authority) 4. The negotiation, ratification, and termination of treaties a. General pattern for treaties is that president negotiates and 2/3 of senate ratifies, and then treaty copies are exchanged. b. Self-executing treaty vs non-self-executing. First, look to language of the treaty itself. If language says it will ―seek enactment of…‖, it is non. If it says mere exchange is a completion of the treaty, it is selfexecuting. If it requires funds it can‘t be self-executing. c. Treaties have status of fed statutes. When in conflict w/ pre-existing statute (fed or state), treaty governs (this is only with self-exec). i. If statute comes after treaty and is in conflict with the treaty, the treaty is over-ruled ii. If US does this, the foreign country the treaty was with has no coa other than political action d. Pres can terminate treaties upon giving of proper notice i. Goldwater v. Carter – appellate court relied on President‘s authority to receive ambassadors, and said that treaties might 21 CON LAW – FED STATE - KMIEC be terminated upon the giving of proper notice. Supreme Court refused to hear the case, saying it was a political question and non-justiciable. Executive agreements a. Pre authority for exec agreements comes from Const from vesting clause. Or it can come from Congressional authorization or from previous treaties that anticipate exec agreements b. Some argue that later in time Exec Agreements should even overturn statute and treaty. This is sound in regards to congressionally authorized executive agreements, but Exec Agreements on pure inherent authority are an open question. c. Same status as treaties if based on statute or treaty d. If based on inherent authority, they clearly supersede state law, but arguable on the subject of conflicting federal law e. Dames & Moore v Regan: i. Executive Agreement pre-empted state causes of action. ii. Exec Agreement was based on IEAPA statute – Court said this was helpful…but required (in order to preempt state cause of action)? Court did not say. The Treaty as an independent source of Federal Power: Missouri v Holland a. Congress can exceed its constitutionally enumerated powers if empowered to do so by a treaty. b. This is checked, however, by the later case of Reid v Covert, which prohibited the US from exercising power whose source is an international agreement, if the power exercised conflicts with a Constitutional prohibition (individual rights) c. Thus, under int‘l agreement, Congress can regulate migratory birds (Missouri), but cannot infringe a citizen‘s right to trial by jury (Reid). The War Powers Act a. War powers act says Congress can require president to bring troops home immediately by concurrent resolution (since been amended) or within 60 days by majority vote. b. Kosovo was arguably implicitly authorized because of congressional consent to NATO. Also, Congress appropriated money for Kosovo. Zadvydas v David a. Aliens being removed cannot be indefinitely detained. Can only be detained for a period ―reasonably necessary‖ to secure removal. Johnson v. Eisenthroger a. WWII; German nationals who kept fighting after war was over for Japan who hadn‘t surrendered, captured and tried by military tribunal for war crimes b. Unanimous Supreme Court said they had no rights to habeas corpus Rasul v. Bush a. detaining of enemy combatants in Guantanamo Bay, foreign nationals in a foreign place, U.S. has a lease over the military base b. whether the detainees had a right of habeas corpus, could they ask 5. 6. 7. 8. 9. 10. 22 CON LAW – FED STATE - KMIEC Federal court to examine why they were being held?? *this involves the sentence: c. Stevens (5 to 4 majority); as a statutory matter, the habeas statute is Congress contemplating that it could extend to a jurisdiction such as Cuba d. Do foreign nationals have constitutional rights within the U.S.? or a similar area such as Cuba *They have some….protected by due process clause, equal protection clause e. Not necessarily overruling Johnson below, here they just said that the statutory right did extend to the foreign nationals in the quasi-sovereign place (Cuba) but they did not reach the Constitutional issue *could say that Constitutional issue was already decided in Johnson and that it is resolved that foreign nationals don‘t have the protection of the constitution f. Military has since began using ―status reviews‖ that is a more informal proceeding than a trial to investigate why the prisoner is being held 11. Hamdi a. Hamdi: Congress suspends a writ of habeas corpus -American citizen, held against his will, isn‘t being told what the charges are against him -Congress has power to take away the writ but they have not in this case -Executive branch, explain how you have power to do this, bring a specific criminal charge or release him b. Pres. says: This is different from a regular war, these captives are NOT prisoners of war, they are enemy combatants, so….Geneva Convention rules do not apply to enemy combatants *Enemy combatants can be killed after being interrogated, *Enemy combatant is an individual who is part of or supporting forces hostile to the United States or one of the U.S.’s coalition partners c. Supreme Court has created an elastic, sliding scale for determining what process is due: 1) What is the nature of the interest asserted by the private individual 2) What is the countervailing gov‘t interest 3) Whether or not there is an alternative form of process that can better reconcile the above interests d. What process is due to Hamdi?? -alleging his interest is freedom -gov‘t interest is protection and fighting the war, etc. -O‘Connor says there are sub. interests on both sides of the scale, applying Matthews test: 23 CON LAW – FED STATE - KMIEC *some evidence standard is not enough, credible evidence standard (charges against the enemy combatant) – allows for testing of gov‘ts evidence by 3rd party -what kind of testing does this include? Hamdi gets notice of proceeding, opportunity to present evidence on his behalf, opportunity to be represented by counsel, would have to overcome presumption of gov‘ts evidence and the gov‘t is not bound by the Federal Rules of Evidence, basically…they can use hearsay Summary of Class So Far: Historical Origins Natural Law Promise; Constitutional Fulfillment Immediately Preceding English History The Structural Constitution – Separation of Powers The Judicial Power Case or Controversy Justiciability: Standing, Ripeness, Mootness, Political Q Subject Matter: Diversity/Federal Q Judicial Review/Judicial Supremacy Executive Power Legislative Usurp – Chadha Limits of Domestic Authority Oversight of Bureaucracy Prosecuting the Executive / Indep. Counsel Foreign Affairs 24 CON LAW – FED STATE - KMIEC IV. A Limited Government of Enumerated Powers a. Enumerated Powers of the Federal Government i. Article 1, §8 The Congress shall have 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 United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and Post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or 25 CON LAW – FED STATE - KMIEC Officer thereof. ii. Constitutional Convention – relationship between federal and state power. Convention focuses on two related issues: 1. 1. Should Congress be able to veto individual state laws. (this was to be included in the Constitution at one point during the Convention—Supremacy Clause in Art. 6 replaced this proposal) a. Supremacy clause gives rise to pre-emption doctrine 2. 2. Strictly enumerated powers or implied powers a. Virginia plan – Randolph presented on Madison‘s behalf i. Line should be drawn where ―separate states are incompetent or the harmony of the union would be interrupted or disadvantaged…‖ ii. Some concern that too much power will be taken from the states – Madison says it‘s impractical to enumerate all the powers. iii. Morris – thinks states should have limited powers (disliked tricks like issuing paper money) b. Committee given responsibility for resolving this comes up with Article I, Section 8 of the Constitution. iii. Federalist 33 (Hamilton) 1. He says the necessary and proper clause means nothing – just logic. 2. If anyone attempts to go farther than that, the courts and the people will reject any usurpation or extension of powers (Doesn‘t tell us how people can do this though) b. Implied Powers of the Federal Government i. Implied Power through ―necessary and proper‖ and ―supremacy‖ clauses 1. McCulloch v Maryland a. Maryland has challenged Congress‘ power to establish the bank, and in addition has taxed the bank at a rate that would bankrupt it if paid. b. Does Congress have the power to charter a national bank? Even though it is not one of the enumerated powers. c. Marshall says YES: i. Power to incorporate a bank is implied by several enumerated powers such as power to levy taxes ii. Says power of creating a corporation is not substantive power such as power to make war. It is instead a means to such powers (and constitutional under necessary and proper clause) iii. First, historical practice – we‘ve always been doing this. (Same argument made by Frankfurter in Youngstown Steel.) iv. Second, the people created the United States, NOT the states. The People were deciding to reallocate power between the states and the federal government. 1. US is not a delegation of power by the States but by the People. 26 CON LAW – FED STATE - KMIEC 2. But See Article VII of the Constitution – the ratification language seems to support the opposite premise, that the States were delegating this power v. Government of enumerated powers – 1. Constitution has landmarks, but not specific terrain 2. 10th amendment provides that all not enumerated are reserved – Marshall says ―expressly‖ has been omitted – because it was asked for and rejected. vi. ―Necessary and Proper‖ -- does not mean ―absolutely necessary‖ but more like ―convenient, worthwhile, pragmatically necessary‖ vii. Context – in the GRANT of powers NOT in the DENIAL of specific powers (Art. I, section 9) -- should be given more generous interpretation 1. Points to Article 1, section 10 – prevention of levying tariffs unless ―absolutely necessary‖ d. Three part test devised by Marshall – i. Let the end be legitimate, ii. Let it be within the scope of the constitution iii. And all means which are appropriate (modern – ―proportionate‖) which are plainly adapted to that end, which are not prohibited (Rehnquist court– not prohibited by structural concerns as to 10 th and 11th amendments), but consistent with the letter and spirit of the constitution are constitutional 1. City of Flores v. Boerne: Congress held that separation of powers limits what is allowed under the necessary and proper clause (see later explanation) e. Marshall‘s 3 points i. Identify one enumerated power being advanced ii. How – are the means appropriate – is that power being advanced iii. Is the means prohibited – not only expressly but also impliedly (see 10th and 11th Amendment) Rehnquist sees limits in federalism, in the authority states possess, in the limits of federal power 2. Marshall‘s method of Const interpretation a. First, look at the Const as a whole, read it in context b. Second, Const is a doc where great outline is marked. Thus, should be read as if it was built to endure for ages and meet the unforeseen. 3. The principles of express or implied preemption a. Preemption is an outgrowth of the supremacy clause i. There is a general federal immunity from local regulation 1. Ex: postal workers need not get local drivers licenses, unless congress so requires 27 CON LAW – FED STATE - KMIEC 2. Fed gov itself is immune from state and local taxation, unless it voluntarily agrees to pay (does not mean gov workers are immune from taxes) b. What can preempt i. Legislation ii. Regulations from regulatory authority iii. Self-executing treaties iv. Federal common law v. Any authorized exercise of federal power c. Express – fairly obvious – Congress has put a provision in the statute specifically for preemption. (Morales v. TWA – Federal statute provided that states may not enforce any law relating to rates, routes, or services of an air carrier) d. Implied (2 types): i. Field 1. Occasionally one sees express field preemption, where regulation is so pervasive as to rule out other state regulations. Uses language such as ―no state shall require…‖ 2. Difference between field and conflict: does not depend on a conflict. State must merely be legislating in a place it‘s not supposed to legislate. Does not have to conflict, or frustrate. It can even advance a fed purpose. But if it‘s not supposed to be there, it‘s field preempted ii. Conflict: 1. Impossibility of performance (ex: fed health law requires use of certain type of preservative; state law prohibits its use) – applies where one can’t comply with both, so must comply with fed law 2. Frustration of purpose (Geier supp note 7 is example) – first, define federal objective; then, determine extent of interference with that objective by state enactment a. ―where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.‖ 4. What role can states have in foreign affair? a. Courts extremely reluctant to declare field preemption, on foreign affairs b. American Insurance Association v Garamendi: insurance companies required to divulge Holocaust era policy information i. Case dealt with international relations, foreign affairs, international commerce ii. Court did not rely on implied field preemption but rather conflict preemption and specifically, frustration of purpose. 28 CON LAW – FED STATE - KMIEC 5. Judicial reluctance to imply preemption, at least in absence of a direct conflict between state and federal law a. Field preemption is more likely to be found where the government has substantial interests of expertise. See, e.g., Hines v Davidowitz (states can‘t require registration of aliens). 6. Judicial reluctance to find field or implied preemption despite an express preemption provision: Cippolone v Liggett Group, Inc. (finding a federal cigarette labeling law to only partially preempt state failure to warn and misrepresentation claims). 7. Geier v American Honda Motor: driver sued for negligence because car was not equipped with airbag, Dept. of Transportation regulation required some manufacturers to equip some, but not all, vehicles with passive restraints. Express provision in the standard allowing the continuation of state law, a ―savings clause‖ – explicit non-preemption clause. Majority of the Court concluded that there was preemption based on frustration of purpose – two necessary factors a. Nature of Federal objective (exercise of interpreting statute) i. Majority – gradual adoption of standards, balancing of costs and safety 1. Breyer says the administrative agencies have the experts, the specialists, the careerists – strongly defends giving weight that a tort suit would frustrate the standards and federal gov‘t objectives ii. Minority – said safety was the only objective, period. 1. Vehement dissent – police power of state at issue, unprecedented extension of doctrine of preemption – federal judges get to decide applicability of state tort law based on their own predilections (atmosphere/history of federal regulations) 2. Presumption AGAINST preemption argued for – in this area ―frustration of purpose‖ a. Would allow Congress‘ intent to govern b. Imposes on Congress an obligation to be clear and unequivocal if they are going to set aside state sovereignty or prerogatives c. Prevents federal judges from running amuck d. More important to apply to independent agencies – should be required to be even more specific – no directly accountable representative function b. Determination of extent of interference 8. US v Locke: state law provides for remedies in case of oil tanker oil spill in the Puget Sound. a. Court was unanimous in overturning the state law. b. Express savings clause – but in the wrong Title, not dealing with the same sorts of provisions as the state law 29 CON LAW – FED STATE - KMIEC c. Federal legislation was comprehensive. d. Oil tanker regulation was an area of ―traditional federal concern‖ ii. Federal Common Law? 1. US v Worrall a. Does Federal Government have common law? Are there federal common law offenses? b. Heard by Justice Chase, sitting as a Circuit ct judge, and Judge Peters c. Starts off giving arguments of sides i. Argument for jx: jx is implied. Since it would be logical to indict official for accepting bribe, it is also logical to indict offeror of bribe ii. Argument against: argues that all judicial authority of Fed courts derives from either Const or acts of Congress. US gov. is a gov. of enumerated powers given to it, with the rest of powers reserved to the state. Every power is a power of definite and positive grant iii. Held: ―the power to declare the common law was an aspect of sovereignty, a necessary and inseparable concomitant if the Union was to be able to preserve itself‖ THIS DIDN‘T LAST, see below d. This was a major issue b/c of seditious libel being used against opposing parties, seditious libel being a Common Law offense i. Seditious libel: words that cause offense or damage. Crime to criticize pub officials. 2. US v Hudson & Goodwin a. Contrived indictment – this is a feigned case, Jefferson‘s friends used the law they hated to prosecute the person(s) promoting the law, to get the issue before the Supreme Court. (Note that no one would even argue the case) The case was decided without any oral argument. b. Court held that ―[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers.‖ c. Limited government – power must be enumerated. No separate delegation/grant of authority from people or states to federal government unless specifically enumerate (or necessary means) d. Note 2 nd paragraph – ―Although this question is brought up now for the first time to be decided by this Court, we consider it as having been long since settled in public opinion.‖ e. Held: no federal common law of crimes 3. Swift v Tyson a. Related issue – is there a civil federal common law? b. Issue in the case – based on a negotiable instrument (similar to the modern check) – a question of commercial law c. Diversity jurisdiction, applying (modernly) the law of the forum state 30 CON LAW – FED STATE - KMIEC d. Justice Story – says the Court is bound by the laws (statutes) of the state but that does NOT include the judicial common law of the state. (judicial decisions, precedent of state court decisions) e. The Court is not bound by the state common law – and so created a federal common law (a general common law – commentators call it) f. Overruled by Erie R.R. Co. v. Tompkins i. Holding that when sitting in diversity, federal courts are to use the state common law of the forum in which they are sitting. Broadens the definition of state law, past the limited Swift view of only positive law. So it includes statutes, judicial decisions, etc. g. Created general law (federal common law) was NOT binding on the states, only on Federal court system. Erie means that Federal courts are now interpreting state law – but their decisions are NOT binding on the states. 4. End of most Federal CL in Erie, and continued debate a. Fed CL still exists in regards to some areas like admiralty, boundary disputes between states, property disputes related to Natives Americans b. Area in ferment. Some want to expand scope of fed CL into other areas, such as customary int‘l law i. Based on grant of authority to Congress given it the right to enact punishments for violation of law of nations ii. Concern is that this gives ct foreign affairs power iii. Banko National de Cuba v Sabatino 1. Can customary int‘l law invalidate Cuban expropriation of property. Ct said it couldn‘t. iv. Filartiga 1. Allows aliens to bring torts coa‘s for violations of int‘l law 2. Alien tort act defines jx, but it is debatable as to whether it defines coa‘s. Says law of nations is part of fed CL, and gives remedy. v. Implications: customary int‘l law can preempt inconsistent statutes and treaties, at least on the fed level, and maybe to the states, and possibly, customary int‘l law becomes a fed question, and president must faithfully execute it. vi. Sosa v. Alvarez-Machain *Alvarez was present during torture of DEA agent and participated, U.S. wanted to try Alvarez in the states and asked Mexico to extradite him, Mexico said no, U.S. hired Mexican nationals (including Sosa) to grab Alvarez (also a Mexican national) and bring him to the U.S.; they do this and bring him back for trial -Alvarez is acquitted and he sues U.S. for false arrest, kidnapping, etc. under the Alien Tort statute (Enacted 31 CON LAW – FED STATE - KMIEC in 1789); gives district court original jurisdiction over civil claims by aliens where the cause of action originates from a ―violation of the law of nations‖ *This asserts that the law will be made by discerning the customs of the world (whether something violates the law of nations) -Court says that Alvarez‘s claim, the alien tort statute was not creating any causes of action, but did open the court to a set of cases that any civilized nation must allow a cause of action for *Attacks against ambassadors *passport *actions of tyrants -Souter says the cause of action brought by Alvarez doesn‘t fit the pattern of claims allowed under the alien tort statute, *Congress makes the law, judges shouldn‘t do it, BUT… *he leaves the door open, ―the cause must be founded on an international law norm with no less definite content and acceptance among civilized nations that the handful of actions protecting ambassadors and the like that existed in the 18th century when the ATS (alien tort statute) was first enacted‖ *Argument for this is ―natural law‖ quote from Story on 307 and 308 -Principal argument against using international law is that judges don‘t make law; only those things that Congress wants to criminalize (or state legislatures) will be made criminal c. The Commerce Clause i. ―To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes‖ (art. III, §8, cl.3). ii. What is ―Commerce‖? 1. Gibbens v Ogden a. 2 men given monopoly over steamboat navigation in NY waters. Ogden was licensee of these men. Gibbens, licensed by fed gov to engage in interstate navigation, drove steamboats between NJ and NY. b. Ogden contends that Gibbens is not engaged in commerce b/c navigation is not commerce. Also claims that this particular commerce is not included b/c it is entirely w/in NY state. c. Technical question? 32 CON LAW – FED STATE - KMIEC i. Can Congress grant a license, and if so, what is the effect when the state has issued a license to a different operator (direct conflict) ii. Article 6, Supremacy Clause – federal law is the supreme law of the land… iii. But does Congress have the right to legislate in this area? iv. Is this commerce? What is commerce? i. Buying and selling – sale of goods and services ii. Does this have anything to do with the sale of a good? 1. This was a service—transporting people and goods 2. BUT – here, commerce can happen solely intrastate, which the states claim as their sovereign domain – but intrastate and interstate commerce overlap. 3. New York wants claim over control of its navigation and ports a. It claims – commerce does not include navigation b. OR this commerce is wholly within its state iii. It does involve navigation. Is navigation a part of commerce? Marshall says that Commerce does include navigation at least in an interstate setting i. Why? Constitutional convention intended to create a national commercial marketplace. ii. And…since the Constitution says that Congress shall not give preferences to one state‘s port over another state‘s, it must mean that Congress has the power to be regulating the ports in the first place Did Marshall set any limit? Yesi. ―It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other states. Such power would be inconvenient, and is certainly unnecessary…‖ ii. commerce that does not affect the STATES generally or the functioning of the federal government or an international government Congress can affirm or ratify the existing state laws that affect interstate commerce – but it becomes federal law, states cannot choose to ignore it and make up their own once Congress has exercised power to regulate under Commerce Clause Is this a shared power? i. Partial answer – shared if Congress wants it to be a shared power d. e. f. g. h. 33 CON LAW – FED STATE - KMIEC ii. Infer that there was some propriety in the states to regulate in the first place – so this must be a shared power if the states can legislate in the area to begin with i. Bottom line: Marshall is inclined to believe that the Federal Commerce Power is exclusive, but he is not willing to say it. There is no need for him to say it, since Congress has acted here and the Supremacy clause gives their action primacy. i. This leaves for another day what the extent of the state‘s police power truly is. ii. Intimated in this opinion: Marshall hints that state actions even before Congress has legislated might be too burdensome on interstate commerce. Supreme Court recognizes this as the Dormant / Negative Commerce Power iii. Congress can even allow states to act even after the S. Ct. has declared state action to be in violation of the Dormant Commerce Power. Therefore, Congress has the final say. (Different from disagreeing w/ Court about a Free Exercise of Religion interpretation b/c Congress had the right to regulate in this area in the first place – action is not unconstitutional) iii. Distinguishing Commerce and Police Powers 1. US v E.C. Knight Co. a. Holds that manufacturing precedes commerce, and thus that Sherman Antitrust act can‘t be constitutionally applied to manufacturing (it‘s within the state‘s police power to regulate). b. Said also that act was intended to affect commerce solely within a state, because of the affect across state lines. Court held this to not be within the commerce clause. c. ―Commerce succeeds to manufacture, and is not a part of it. The power to regulate commerce is the power to prescribe the rule by which commerce shall be governed, and is a power independent of the power to suppress monopoly.‖ 2. Champion v Ames (―The Lottery Case‖) a. Harlan writes the majority opinion, CJ Fuller writes the dissent. b. Congress passed this law prohibiting lottery tickets – moral objection to lotteries in general c. Fuller says this more properly belongs to the states – police power – public health, good order, and prosperity i. There should be room in the country for multiple points of view – Federalism exists. d. Beginning of widespread commerce power: Harlan says the power is broad and plenary – prohibitions and regulations related to moral objections are now included within it iv. What is ―Interstate‖? 1. Great Depression and the Court packing plan as the turning point in the Court‘s willingness to patrol the commerce line 34 CON LAW – FED STATE - KMIEC a. Roosevelt planned to dilute the Court by adding justices (―Courtpacking plan‖). This, plus his overwhelming reelection, supposedly caused 2 justices to switch their votes. b. National Labor Relations Board v Jones & Laughlin Steel Corp. i. Court changed direction, saying that intrastate activities that have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions are within Congress‘ power to regulate. ii. Example; without uniform national standard for wages, states might have a race to the bottom – states could lower wages below what other states could compete with. iii. Deference to Congressional judgment – rational basis standard – whether Congress could have conceived that there was a rational reason to believe there was a close relationship between the regulation and interstate commerce. 1. Basically, give Congress the benefit of the doubt, if they think they have the power to regulate the Commerce then all they need to show is that there was a rational belief that there was a close relationship between the regulation and interstate commerce. 2. Wickard v Filburn a. Farmer grew too much wheat. Part of it to use for flour, part for seed, part to feed his animals. b. Agricultural Adjustment Act of 1938 – trying to prevent wide price swings i. Time of the Great Depression ii. Attempt to control supply and drive up prices c. Court looks at affect of homegrown wheat on the overall market for wheat i. Homegrown production affects the market because were it not produced; there would be additional purchases on the open market. (the people eating their homegrown wheat would instead be buying wheat in the market) d. Moves beyond the word interstate – NONE of the activity has to involve crossing state lines, another doctrinal shift – the question is whether Farmer Filburn’s activity, when considered with all similar farmers (its aggregate or cumulative effect) the aggregation test – has a substantial effect on interstate commerce.? v. What are the Limits, if any, to the Commerce Power? 1. US v Lopez a. Law prohibiting possession of a gun within a school zone or near one b. First time in 60 years Congress has been said to have acted in excess of the Commerce Power c. Court declares the proper test to be – whether the regulated activity “substantially affects” interstate commerce. 35 CON LAW – FED STATE - KMIEC d. Rehnquist traces historical roots: i. Federalist 45, Madison – federal powers few and defined, state powers numerous and indefinite. ii. Gibbons v. Ogden – commerce power is not unlimited 1. Cannot touch intrastate commerce iii. E.C. Knight 1. Substantive limits: commerce did not include: a. Production b. Manufacturing c. Mining iv. A.L.A. Schecter Poultry Corp. v. United States 1. Court said regulating the wages and hours of a wholly intrastate business affected interstate commerce only indirectly and therefore regulating such wages and hours was beyond Congress‘ commerce power. v. NLRB v. Jones & Laughlin Steel Corp. (result of the switch in time that saved nine) 1. Court basically overruled Schecter and expanded definition of commerce (see description above) vi. United States v. Darby 1. ―The power of Congress over interstate commerce is not confined to the regulation of commerce among the states.‖ vii. Consider the time period and Roosevelt‘s attempt to pack the court. viii. Wickard v. Fillburn – 1. Even a local activity may exert a substantial economic effect on interstate commerce, regardless of whether such effect is direct or indirect. e. What can Congress regulate under its commerce power: i. 1. channels of interstate commerce ii. 2. instrumentalities of interstate commerce, persons and things in interstate commerce iii. 3. activities having a substantial relation to interstate commerce – those activities that substantially affect interstate commerce f. Rehnquist says this is: i. Not one of the first two ii. This act punishes mere possession of the item iii. Criminal act – normally the states use their police power to punish criminals iv. Rehnquist says that education and family law might be out of bounds for Congress v. Must be economic activity – is that different from commercial activity? 36 CON LAW – FED STATE - KMIEC vi. Must have a jurisdictional element – something that ensures that there is an express finding that the crime affected interstate commerce vii. Rejects Breyer‘s rational basis test, saying it lacks any real limits. (Does rejecting the rational basis test here overrule NLRB v. Jones & Laughlin Steel??) g. Thomas concurrence – i. Thinks substantial effects test goes too far. ii. Offers no solution h. Substantial effects category i. Commercial activity or an activity necessary to the regulation of commercial activity ii. Statute requires a jurisdictional nexus – each regulated instance of the regulated activity affects interstate commerce So, for this statute to have passed this part of the test, there must have been a requirement that the police (prosecutor) show that Lopez‘ possession of the gun near the school was somehow affecting interstate commerce. iii. SUMMARY: Substantial affects prong cannot rely on inference piled on inference, so… a) must be an economic activity b) must have a jurisdictional hook c) must have real affect on interstate commerce, cannot simply infer from an inference, has to be more proximate than that 2. The interrelationship between civil rights and commerce a. One of the reasons the expansion of commerce power has been so resistant to change is that it has secured modern civil rights legislation. 14th amendment only prohibits discrimination by states, not businesses and individuals. Thus, to get at private discrimination, another basis is needed, and that is found in the commerce clause. b. Heart of Atlanta Motel, Inc. v US: (banning discrimination by hotels because of affects on interstate commerce) c. Katzenbach v McClung: (extension of Heart of Atlanta Motel to restaurants). 3. Making Sense of the Substantial Effects Prong a. US v Morrison i. Rehnquist court faces the problem that pushing back Commerce power will undermine the Civil Rights Acts, an unpopular and socially unjust result. ii. Court invalidates this fed.VAWA (violence against women act) 1. Any presumption of constitutionality given a statute is tempered by the judicial duty to decide what is national and what is local 37 CON LAW – FED STATE - KMIEC 2. Definition of the 10 th amendment is left to Congress, Souter in dissent says basically the same thing with regard to this type Commerce power case – the definition of Commerce should be left to Congress, as long as a rational basis exists. 3. LAW: instrumentalities of commerce, channels of interstate commerce, or (largest category) regulate those things that substantially affect interstate commerce individually or in the aggregate a. Wickard is not overturned because doing so might threaten the civil rights establishment. 4. In the ―substantial affects‖ prong, the court applies something more than rational basis, they are more likely to find that affect if the purpose of the law is economic in nature, and if there is a jurisdictional finding required in the statute, and if there are findings by Congress indicating the effect on interstate commerce. b. Dewey Jones v. U.S. i. At issue was a federal arson statute that Congress was trying to claim reached residential houses and therefore a person could be prosecuted for a federal crime for setting a house on fire ii. Court used common sense, and in a surprisingly unanimous decision, said: 1. ―‗unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance‘ in the prosecution of crimes‖ – meaning that prosecution of crimes is left up to the states unless Congress can show that there is an actual sub. effect on interstate commerce iii. don‘t want to raise unnecessary constitutional questions, simply do a statutory interpretation if you can c. Solid Waste Agency v. U.S. Army Corps of Engineers i. EPA wanted a broad interpretation of navigable waterways to reach a completely intrastate wetland so that when someone wanted to try and develop or get a permit for that land they would have to get approval by the local and the federal gov‘t ii. does the activity (the proposal for a landfill) constitute a commercial activity that affects interstate commerce? 1. argument for this being commerce says that the birds 2. but…what is the economic activity?? The industry in migratory birds (people that move in interstate commerce to go see them or shoot them) – This is what the lower court said, BUT…Supreme Court said no iii. Supreme Court thought that the deposit of waste in the landfill 38 CON LAW – FED STATE - KMIEC being harmful to the environment, the Court said they needed an explanation of the federal gov‘ts interest (the migratory birds OR the landfill activity) d. Pierce County of Washington v. Gillum i. Statute allowed Congress to dictate the evidentiary rules that applied in state court 1. Person killed at a bad intersection, discovery processthe locality relied on a federal statute to try to suppress certain studies and findings the locality had made trying to get federal money to fix it. ii. Court said this was channel and instrumentality e. Agencies: First question for an agency is does the commerce power give me authority to act? If not, where else can you look? -Has the executive said something about the subject regarding an executive agreement, or even better, an executive treaty? -Money (Spending clause) – bribing states, undertake this program, don‘t have power to direct you to do it, you can take this money if you set up the program we want you to undertake *if you accept the money for these purposes, then you have to do… (whatever the program may be) 4. Kmiec suggestions for commerce clause a. Kmiec definition: any market-oriented gainful activity is commerce i. This would leave out criminal statutes, civil rights laws, moral judgments ii. Commerce Clause emerged out of VA Resolution: Founders were worried about states acting as hostile competitors towards each other iii. 6th VA Resolution: Power fed gov‘t should have: 1. general interests of the union 2. to promote harmony among the states 3. to address regulatory questions that the states cannot accomplish separately 5. Kmiec‘s thoughts on Federal/State Balance a. 10th Amendment: Cannot command state to participate in federal programs or legislate in a certain way b. 11th amendment: states have immunity from enforcing money damages causes of action, unless they are enforcing the 14 th amendment and not the commerce power c. BUT…How do they protect Federalism? Has the decision in Lopez created a sufficiently sharp/capable tool to protect the state from federal overreaching of power under the commerce power? i. If Wickard is gone (if you can‘t really aggregate) is this (activity in Ashcroft v. Raich) a commercial activity that can be aggregated for purposes of the substantial affects test? ii. Raich Argument from Kmiec‘s Brief: 39 CON LAW – FED STATE - KMIEC 1. use under a doctor‘s care does not have the kind of cumulative affect on a market 2. go back and ask the question: What does Gibbons v. Ogden mean for this case? Is there an overriding national interest that needs to be vindicated that is so great that a state should not be allowed to regulate it themselves?? 3. neither is there an overriding national interest to displace the state‘s traditional authority over health care and neither would CA‘s legislation affect another states‘ in a way that the federal gov‘t should get involved iii. d. d. The ―Dormant‖ Commerce Power i. Facially Discriminatory statutes – virtually per se invalid, unless the state can show that it advances a substantial local purpose that cannot be advanced by any nondiscriminatory means (no state has ever been able to show this in trying to defend a facially discriminatory statute) 1. Discrimination is defined as any differential treatment of in-state and out-ofstate economic interests that benefits the former and burdens the latter. ii. Law or regulation that doesn‘t overtly discriminate, but it has that effect – court performs a balancing test – facially nondiscriminatory state regulation will be valid notwithstanding a discriminatory effect unless the burden of the regulation on interstate commerce is clearly excessive compared to the local benefits. Pike v. Bruce Church, Inc. iii. Cooley v Board of Wardens 1. Three statutes in play in this case – two federal and one Pennsylvania a. 1789 Federal statute – existing local law governs, later local law will also govern b. 1837 Federal statute – licensed pilot from either state on body of water bounded by multiple states is acceptable c. Pennsylvania statute – if Penn. Pilot not used, ½ fee must be paid to Pennsylvania or a Pennsylvania pilot used when entering or leaving Philadelphia i. Might have a health and safety justification – port might be trickier than ports in nearby ports on same body of water d. Is there a preemption problem? 2. Is the Federal Commerce power exclusive, or can the states also regulate interstate commerce a. Some powers are exclusive – war power, minting money, foreign affairs b. Remember Marshall in Gibbons v. Ogden – persuaded the power was exclusive, but he did not rule on the question c. If it is exclusive, the power may not be delegated to the states d. Why did the court here find it was not an exclusive power: 40 CON LAW – FED STATE - KMIEC i. Textual argument – word exclusive not used ii. Historical argument – 1789 Act was contemporaneous, and they considered it NOT exclusive e. Justice Daniel‘s concurrence argument – the power to regulate pilots etc is an original state power i. Uniform regulation? ii. States incompetent to regulate? iii. Daniels looks at these two and says no – therefore this should not be under the commerce power at all, not within the scope f. McLean (concurring) proposition, Congress incorporated State law into Federal law, and allowing them to change this is giving the States the power to change Federal law i. It is NOT shared w/ the States, cannot be shared, Congress can adopt state standards and make them federal standards, but it is then a federal standard ii. Thinks this is WHOLLY national g. Congress can incorporate by reference state law – but not later enacted state law – it would not have been approved bicamerally and be presented – OPEN QUESTION – See Chadha – some have argued that Congress could authorize this iv. Oregon Waste Systems v Dept. of Environmental Quality 1. Discriminatory statute – out of state waste is more expensive to dispose of than in state waste a. In state waste supported/subsidized by local taxes and fees – the regulatory commission was trying to compensate for those already paid fees in charging more for out of state waste 2. Chemical Waste Management, Inc. v. Hunt – struck down different prices for in and out of state waste, but the case had suggested that if a difference in cost equalized the position of in and out of state shippers, it might survive dormant commerce power analysis 3. Courts uphold use taxes as being constitutional a. So Oregon thought this solid waste system would pass constitutional muster 4. Justice Thomas says that if a system is discriminatory, and thus per se invalid, unless it can be shown that ―it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives‖ 5. Thomas says it has to be an apple to apple comparison – compare the costs of in state shippers with those of out of state shippers, the fees and costs of shipping that waste a. Even though in state shippers are also taxed, those taxes are unrelated to the costs of shipment and disposal of waste b. There are no specific fees that are paid by one side that are not paid by the other, the out of state shippers –specific fees that are directly imposed on shipment of solid waste 6. Oregon argues that it is conserving natural resources 41 CON LAW – FED STATE - KMIEC a. Court says ―no state may attempt to isolate itself from a problem common to the several states by raising barriers to the free flow of interstate trade‖ 7. Rehnquist dissents – dislikes the per se test – a. health and safety interest NOT economic protectionism – in this case, states should be given greater flexibility v. Camps Newfound / Owatonna, Inc. v Town of Harrison 1. Maine statute gave a tax deduction to charitable institutions that committed themselves to serving in-state residents 2. Justice Stevens rejects all arguments, finds unconstitutional the tax treatment Maine had set up b/c it is discriminatory a. Court has historically drawn distinction between exemption and subsidy 3. Dissent: Because of this opinion, Justice Thomas (and Scalia somewhat) has rejected the dormant commerce clause approach, says that this case does not involve interstate commerce and the negative commerce clause test should not have applied to this case a. State choosing to give a tax break to charities that take on responsibilities usually done by the state (taking care of citizens) should not invoke the commerce clause (it is just giving charities a tax break b/c they are helping to do something the State would otherwise have to pay to do) b. Dormant commerce analysis asks judges to weigh local benefits against national economic concerns, since this use (to invalidate Maine‘s tax break to charities) is broader than what the Framers envisioned for the neg. commerce clause (was supposed to be used to strike down discriminatory commerce clause regulations) c. Thomas‘ theory: throw over dormant commerce clause analysis and replace it with Import-Export clause jurisprudence – Article I, Section 10[2] i. The essential purpose of the dormant commerce clause can be fulfilled to the textual words, states cannot impose tariffs or higher taxation that are unrelated to their quality, etc. ii. Get rid of the balancing, per se tests, that the court is applying to things that should not even invoke the commerce clause to begin with vi. South-Central Timber Development, Inc. v Wunnicke 1. Alaska will sell timber only if buyer agrees to have first processing done by Alaska processors 2. Justifications: a. Federal statutes set up these sorts of contractual requirements for timber from federal forests in Alaska -- Congressional authorization – i. REJECTED – if Congress wishes to do this it must be EXPLICIT, not implicit b. Alaska is a market participant, not a market regulator in this particular case 42 CON LAW – FED STATE - KMIEC i. REJECTED – Alaska may not control what happens to the timber once they sell it – this is unacceptable tying – limitation on resale is not related to the sale, but is an attempt at regulation downstream ii. Reeves, Inc. v Stake: South Dakota placed terms restricting the sale of cement from a state owned plant to state residents. Ct held it was acting as a market participant so it was okay. 1. Rehnquist would apply these decisions more broadly to include natural resources cases like Oregon Waste and South-Central Timber 2. Court requires a natural resource that has been manufactured into something else (like rock turned into cement), pg. 386 quoted in Oregon Waste: ―The Commerce Clause does not require a State to abide this outcome where the natural resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens…‖ iii. Why give the State more latitude if it is a market participant (vs. a market regulator?) 1. acting more as a business and less as a regulator 2. when they are acting as a market participant, they are on a more level playing field with private companies (their power is less as a market participant and therefore there is less concern of any distorting affect that a state may have on the interstate or national market) iv. Ct distinguishes Reeves by saying in this case, attempting to control what buyer does with the timber after buying is acting as a regulator, not a market participant. In Reeves, they were acting as a business does in choosing their customers (there, they were in-state customers) but they wouldn‘t have been allowed to then tell the customers what they were allowed to do with the cement (that would‘ve been acting like a regulator, not just a market participant) 3. States have been largely unsuccessful in using market participant arguments – may not use it as in South Africa and Myanmar, to interfere with foreign affairs and foreign commerce vii. South Central Bell 1. Alabama imposed a higher ‗compensatory tax‘ on out of state corporations, saying that it was to equalize their tax burden with that of the in-state corporation. Ct said no to this based on Oregon Waste. Said that to uphold tax, Alabama would have had to prove roughly approximate burdens on in and out of state corporations due to the tax, and that the taxes are similar in substantive character; here, they weren‘t able to prove this e. Term Limits: State Law and Federal elections i. US v Thornton 43 CON LAW – FED STATE - KMIEC 1. Arkansas passed a law limiting ballot access for term limit purposes: 3 terms in the House, 2 terms in the Senate, only allowing incumbents serving longer to run as write-ons. 2. Policy behind term limits? a. Keep representatives on a short leash, keep them responsive entrenchment b. Advantages of incumbency during elections – ability to send out free mail, make headlines, access to federal budget process, name recognition 3. Holding – court rejects this as an additional qualification for members of Congress – majority thinks this is not a power the States have. a. People have a right to choose representatives. b. Non-uniform national legislature would be result c. Contrary to text of Constitution. 4. Both sides in this closely divided debate rely on the text of the Constitution: and a. Historical experience b. Powell – Supreme Court precedent c. Original intent 5. Constitutional text: a. Qualification clause, Art. I, sec. 2-3 – age, residence, citizenship i. Nothing suggests exclusivity b. Powell v. McCormack – House refused to seat a duly elected member for ethical reasons, Court refused to allow Congress to set additional requirements other than those found in the text of the Constitution. (Powell was expelled after finally being seated). i. Note that this holding applied to Congress, not to the States. ii. Stevens says that this means States cannot impose additional req‘s either iii. Thomas says this has nothing to do with whether States may impose req‘s (only dealt w/ Congress in that case) c. 10th Amendment – i. Stevens says the power to set qualifications is not an original power and may not therefore be reserved to the states. ii. Thomas says you can reserve something that you‘ve never had (b/c States have all power not enumerated to the Federal gov‘t) d. Salary of Representatives i. Stevens – National Government pays salary, Art. I, § 6, if states don‘t pay, they shouldn‘t be able to set qualifications – representatives owe their allegiances to the people NOT the states. ii. Forward note: cross reference with Garcia -- states are protected, not having too much encroachment on their sovereign powers – representatives from the States have the States‘ interests at heart. e. Art. I, § 4 – Times, places, and manner of holding Elections clause 44 CON LAW – FED STATE - KMIEC i. States get to set the time, place and manner of US Congress election – but Congress has power to alter those regulations except as to place ii. Are term limits a time, place, or manner of setting elections? 1. Procedural delegation (Thomas would argue they are a duty placed on the States, not a delegation of power) 2. NOTHING about substantive qualifications f. Constitutional Convention & Ratification Debates i. Stevens – no discussion of a States‘ power to add qualifications ii. Thomas – no discussion cuts in both directions g. Natural right of the people to select their representatives i. Stevens – says term limits conflicts with this ii. Thomas – says no, the people of Arkansas passed this law, they have exercised their natural right (that here, people want to have more selection of who to elect by limiting incumbents terms) h. State practice after Constitutional ratification i. Thomas says the states immediately enacted additional qualifications – at least 5 1. If the qualifications clause precludes adding term limits, what about the current qualifications precluding the mentally ill, those currently in prison, etc.; are these unconstitutional?? i. Thomas‘ argument about silence – i. Cross reference to McCulloch v. Maryland – the people are giving power to the federal government, and the balance goes to the states. Never a grant from the states but from the people. ii. See bottom of pg 457 – ―Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress.‖ j. Thomas Jefferson quote i. ―Had the Constitution been silent, nobody can doubt but that the right to prescribe all the qualifications and disqualifications of those they would send to represent them, would have belonged to the State.‖ k. Original draft of Qualifications had an ―excepting provision‖ which was excluded in the final draft – Thomas suggests that the States therefore had the right to add other qualifications. l. Senators were originally chosen by the State legislatures (prior to the 17th Amendment) and Thomas argues that because they enjoyed virtually unfettered discretion over whom to appoint to the Senate, shouldn‘t the people (now that they choose both reps and senators) be able to adopt eligibility requirements for Senators as well as for Representatives ii. Cook v. Garalike (see pg. 415) 45 CON LAW – FED STATE - KMIEC 1. Missouri decided to put a statement next to senators‘ and reps‘ names (on ballots) that had opposed term limits 2. Defended this by the right of people to instruct their reps b/c this right is reserved to the people by the 10 th Amendment 3. Supreme Court (Stevens for majority) struck it down as being in opposition of decision in Term Limits case 4. Kennedy(concurring) says this is of concern, what the people are allowed to require of their senators/reps; he‘s worried that the people‘s speech is being limited and as a matter of history, First Amendment has always protected requests/petitions to the reps but has never permitted a binding direction from the people; they say a binding direction would defeat purpose of deliberative body (Congress) 5. Thomas concurred but said that States have the 10 th amendment power to impose term limits in federal elections V. Dual Sovereignty – a. Traditional State Functions (Congress‘ ability to regulate individuals and private entities is governed by a Commerce Clause analysis (Lopez); Here – the question is how is Congress‘ ability to regulate the States as States governed??) i. New York v US (1946): Congress can‘t impose taxes directly on states, even if it does so in a non-discriminatory manner. ii. National League of Cities v Usery 1. States challenge Congress‘ authority to regulate the overtime and wage requirements applying directly to State and Local authorities (State employees) 2. Traditional state functions – police, fire, sanitation, parks and recreations 3. See also, pg 428 highlight, Blackmun‘s opinion in Garcia laying out the National League of Cities requirements: a. 1. Federal statute regulates states as states b. 2. Statute must ―address matters that are indisputably attributes of state sovereignty‖ c. 3. state compliance with the federal obligation must directly impair the States‘ ability to structure integral operations in areas of traditional governmental functions d. 4. Relation of state and federal interests must not be such that the nature of the federal interest justifies state submission. (Meaning, federal interest may trump state interest in some cases) 4. Majority distinguishes Fry v US. There, Ct upheld the temporary freezing of wages of state and local officials. There, Ct says that was okay because it was an emergency measure, thus the degree of intrusion on state sovereignty is much smaller. 5. Majority (Rehnquist) says that they realize private employers face the same struggles as the State govt‘s w/ federally imposed wages and hours, but he says that ―a State is not merely a factor in the shifting economic arrangements of the private sector of the economy but is itself a coordinate element in the system established by the Framers for governing our Federal Union‖ pg. 423 46 CON LAW – FED STATE - KMIEC 6. Dissent: Brennan says this is within the Commerce Power – and it is not within the textual guarantees of the Bill of Rights. (Excluding the 9 th and 10 th Amendment). a. But see Chadha – this is a structural provision, saying the Legislature is off the reservation when it exercises a legislative veto. Rehnquist is saying the 10th amendment operates the same way. b. See also Myers – President‘s authority to remove executive officer without advise and consent of the Senate. Inherent in power of appointment to remove – Senate cannot fetter that ability to remove by requiring approval. c. But those cases deal with relations between federal branches – they are coequal. In this case, the States are not equal to the Federal government d. And, Chadha was decided based on the text of the Constitution, bicameral, presentment, but traditional local functions are not found in the text i. Who gets to decide then? Judges or legislature? Doesn‘t that leave out the actual party – the State or local government. iii. Garcia v SAMTA 1. No change in membership of the court, but Blackmun flips sides 2. In this case, the state function is Mass Transit. Majority says it can‘t figure out why courts are finding some things to be local functions and some not. 3. Majority says of these tests from Nat’l Cities: ―Any rule of state immunity that looks to the traditional, integral, or necessary nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes.‖ a. This is a policy argument against having the judiciary decide 4. Majority then switches to an argument that the States do not have the same rights under the Constitution that they had before Admission to the Union -means they were giving up something -- see Article I, § 10 (but this is a very specific enumeration of powers denied) a. when the States seek to regulate individuals, the feds can come in with the supremacy clause and preempt b. federal courts will supervise state decisions made on the basis of the federal constitution c. Only sees two areas of enumerated state sovereignty protections i. Article 4, section 3: States territorial integrity will be preserved ii. not in the object, but in the political process – gives political examples on pg. 432 (says states protect their sovereignty through the political process) 1. selection of the executive and legislative branches of the federal government -time, place, and manner of elections to Congress and the States get to regulate the qualifications for voters -electoral college: legislature can decide where their electoral votes go to for Presidential elections 47 CON LAW – FED STATE - KMIEC -equal representations in the Senate 5. Local governments protected by Structure of Federal government: a. State representatives to the Federal government will protect State interests b. Admission to the Union means they were giving up something -- see Article I, § 10 (but this is a very specific enumeration of powers denied) 6. If the power is granted in light of the commerce power, then the federal government can impose its regulations directly on the States as States a. Dissent – Says a second question should be asked. Is there another reason to immunize the States from federal regulation? (Such as the 10th Amendment) 7. J. Powell in dissent: Most troubling – federal political officials are the sole judges of the limits of their own power. a. Very concerned with 10 th Amendment and how majority disregards it i. States are not administrative sub-agencies of fed government: no commandeering b. Pg. 437: Federalist 45 – those (powers) that remain in the State governments are numerous and indefinite c. possible to maintain state sovereignty only if judicial review remains i. if in fact its appropriate under the dormant commerce clause whether a state law unduly burdens the federal system, why is it not equally appropriate, whether a federal law unduly burdens the states as states in the integral operations, merely court patrolling boundary between federal and state authority d. If you allow Congress to have this free unregulated hand, you must recognize that these people are remote from you – they don‘t live in your community, they live in McLean. Ability to interact with them and influence them is remote. This impacts your freedom. i. The Remoteness of federal regulation – AND the uniformity and singularity of it. There will be ONE rule, not FIFTY. More freedom if there are FIFTY different rules, allowing variation by region, by area, by locality. ii. People love their State governments in ways that they don‘t love/respect nat‘l government iv. Printz v US 1. New York v US (1992) a. Law passed saying states must either enact a specific regulatory framework, or take title to, low level radioactive waste b. This was held unconstitutional because states can not be compelled to enact or administer a specific federal law (―no commandeering‖) c. This is unlike Garcia, because there Congress was regulating public and private in the same way. Here state is not directly regulating private parties. Rather, gov is commanding that state legislature enact a particular law (not allowed) 48 CON LAW – FED STATE - KMIEC d. State legislatures are not subject to federal direction e. Federal government may not compel the States to enact or administer a federal regulatory program. (Scalia applies this directly to Printz) 2. Here, Congress passed a law (Brady Act) requiring CLEOs (chief law enforcement officers) of local governments to do background checks for firearms dealers. CLEOs don‘t have to notify if the sale would be unlawful. If they do undertake to notify though, they must destroy the records submitted to them. 3. Gov argues that judges apply federal law all the time, so this is no different 4. Ct disagrees, says judges are different because historically they have applied the law of other sovereigns, and because Const imposes an obligation (art3, §1) on state cts to apply federal law. a. So where Const anticipates that state officials will have to cooperate with fed gov, that was provided for in the Const text. 5. Const of 1787 creates concurrent authority of both states and federal gov over citizens 6. Constitutional provisions that give meaning to what the States retain as part of our system of Dual Sovereigns a. Art. IV, § 3 – no involuntary reduction or combination of state territory b. Art. V – amendment requires approval of 3/4s of states c. Art. IV – Guarantee clause – republican form of state government d. Enumerated powers + 10 th amendment – powers not delegated are reserved e. Concurrent authority from both federal and state governments over the people 7. Federalist 51: ―In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence, a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.‖ 8. Scalia (for majority) says it also violates the take care clause (executive will take care that [federal] laws are faithfully executed), as state agents aren‘t under meaningful supervision of president. 9. Scalia also says that this doesn‘t fall under the necessary and proper clause‘s gloss on commerce power. Commerce power was not to extend to commandeering the state, so additional means to achieve the goal don‘t help an illegitimate end 10. Gov tries to distinguish this from New York by saying that in that case there was mandated policy-making, whereas this mandates a mere ministerial task. a. Scalia rejects this, saying a similar line had previously been drawn between proper congressional conferral of Executive power from unconstitutional delegation of legislative authority, and that line had proved unworkable. Thus, such a line is likely to prove unworkable here as well. See Schecter Poultry Corp, Panama Refining Co. 49 CON LAW – FED STATE - KMIEC 11. Scalia also argues that this unfairly shifts blame for unpopular policy from fed gov. to state officials. v. Reno v Condon 1. Challenged based on above case, but failed. 2. Here, statute regulated the disclosure of personal information found in the records of state DMVs. a. The names are clearly commodities b. Here, was trying to regulate state as a market actor, rather than as a state. c. Here, not directing state to regulate private citizens, directing state as market actor, and the latter is ok. d. This is apply rule from Garcia, b/c Nat’l Cities had said that feds couldn‘t regulate states as states OR as market actors (Garcia said feds can regulate States when states are a market actor/individual) b. Regulation of States under the Spending Power i. South Dakota v Dole 1. Facts: fed gov. passed spending bill conditioning receipt of highway moneys on banning drinking under the age of 21. If states allow drinking under that age, they lose 5% of their highway moneys. 2. 21st Amendment gives states the right to regulate importation/transportation of alcohol into them. Thus, it is an ―exception‖ to the commerce causing, taking away Congress‘ power to regulate alcohol (even if it constitutes interstate commerce) 3. Gov contends that the drinking age condition of the states receiving the money is legitimate under the spending power (found in art1, §8). Under spending power, Congress can do indirectly what it may not do directly. Thus, it can spend on general welfare, even if not spent on any enumerated power. This was Hamilton‘s view. Madison wanted spending power to extend only to the enumerated powers. (But Court has adopted Hamilton‘s view) 4. Spending power has the following limitations: a. The exercise must be in pursuit of the general welfare i. Congress should be substantially deferred to here b. If Congress desires to condition receipt of federal funds, it must do so unambiguously, enabling States to exercise their choice knowingly c. Conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs d. Also, other Constitutional provisions may provide an independent constitutional bar to the conditional grant of federal funds. i. Rehnquist interprets this as merely saying that Congress can not require states to do anything they cannot constitutionally do, like inflict cruel and unusual punishments. O‘Connor, though in dissent, agrees with this interpretation of independent constitutional bar 5. Here, State, conceded first three, but held that under 4 th, independent bar, 21 st amendment gave state plenary power, and that this provision was a violation of that plenary power 50 CON LAW – FED STATE - KMIEC 6. O‘Connor agrees with this, saying ―of the possible sources of congressional authority for regulating the sale of liquor, only the commerce power comes to mind. But in my view, the regulation of the age of the purchasers of liquor, just as the regulation of the price at which liquor may be sold, falls squarely within the scope of those powers reserved to the States by the 21 st amend.‖ 7. O‘Connor in dissent also says the conditions on receipt of federal funds can only extend to how those monies are spent. If the condition is a regulation, it is not within the scope of spending power, and must be justified by an enumerated power. So general welfare is enough if condition is on how money is spent, enumerated power is needed if it is a regulatory condition (telling states what the minimum drinking age needs to be to get the $). 8. O‘Connor also disagrees with the majority that (#3 has been met) she thinks the regulation is not related to the federal purpose (the drinking age is not related to highway construction). 9. Last limitation on spending power: the regulation is not legitimate if state is unduly coerced to accept it. a. Court has never ruled a regulation unconstitutional under this. ii. Extent of the Spending Power: just to other enumerated powers, or to the general welfare? 1. US v Butler: through the Agricultural Adjustment Act Congress sought to raise farm prices by limiting production. Tax was raised on the 1 st processor of each farm commodity and those revenues were paid to farmers to limit their production. This case said that Congress could spend for the general welfare, just as Hamilton had argued iii. Barnes v Gorman: Court held punitive damages were unavailable to Plaintiffs suing the States because gov‘t did not expressly tell states they would be subject to punitive damages. (And the cause of action was a contract case which does not usually have punitive damages available). Any condition that States are alleged to accept with the federal funding must be unambiguous. iv. Sabri v. U.S. 1. local property developer didn‘t think he could get all the permits, he offered a city council member a bribe, he was charged with 3 counts of violating a Federal statute that makes it a federal crime to offer a bribe to any state official in a state that receives $10,000 or more 2. Congress could not have directly made this a federal crime under the commerce power b/c it is completely intrastate, so….they had to use the Spending Power 3. Here, you would think that the Justices would agree with Sabri b/c the federal gov‘t is not required to prove a connection between the offense and a federal interest and that it therefore exceeds Congress‘ power under the Spending Clause 4. The Court says that the relationship requirement is only that it has to be related to a generalized national interest and that the statute did NOT have to be written in a way that forced the prosecutor to prove that the actual federal dollars given were the ones being misappropriated, (unlike what they said in Lopez where the prosecutor, when using a federal statute based on the 51 CON LAW – FED STATE - KMIEC commerce clause, would have to show that the crime actually had an affect on interstate commerce) c. State Sovereign Immunity i. Eleventh Amendment 1. Seminole Tribe v Florida a. Indian Gaming Regulatory Act of 1988 – contained authorization to allow a State to be haled into court, to order a State to negotiate in good faith with the native Americans. b. 11th Amendment – ―The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.‖ i. Referring to diversity cases. Lawsuit by A, citizen of State A, against state B. Article III jurisdiction in the Constitution. ii. Eliminates diversity jurisdiction against a State itself. iii. Why the 11th Amendment? - Chisholm v. Georgia (1793) – 11th amendment added as a direct reaction to this case – designed to overturn this case 1. Chisholm v. Georgia – action for debt, for supplies furnished to Georgia, debt unpaid, out-of-state holder of debt filed suit against GA under original jurisdiction. S. Court held that debt was owed, and state had to pay. a. Remember states under common law could consent, or waive sovereign immunity. c. On its terms, 11th amendment does not prohibit suits by a states OWN citizens. Seminole tribe is in Florida. i. This is a federal question matter – federal question jurisdiction ii. Only one case has federal question jurisdiction been extended to include a suit by a state‘s citizen against a State. 1. Union Gas d. Other ways a state can be sued: i. if it consents, or if Congress abrogates the immunity; Two requirements: 1. Congress must have unequivocally expressed its intent to abrogate the immunity, and 2. Whether Congress has acted pursuant to a valid exercise of power. ii. if it participates in an interstate compact; OR as a result of federal spending ii. Dellmuth v. Muth 1. ―To temper Congress‘ acknowledged powers of abrogation with due concern for the Eleventh Amendment‘s role as an essential component of our constitutional structure, we have applied a simple but stringent test: Congress may abrogate the States‘ 52 CON LAW – FED STATE - KMIEC constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.‖ Two different ways to abrogate immunity: i. § 5 of the 14th Amendment – valid abrogation, state power was curtailed/limited by this amendment. 14 th did follow 11th amendment, thus it modifies the amendment. Text of the amendment reads ―No states shall….‖ Valid. See Fitzpatrick v Bitzer. ii. Interstate Commerce Clause, Art. I, § 8, cl. 3 – 1. Pennsylvania v. Union Gas Co. (1989) – plurality opinion, not well-settled 2. ―The plurality‘s conclusion – that Congress could under Article I expand the scope of the federal courts‘ jurisdiction under Article III—―contradicted our unvarying approach to Article III as setting forth the exclusive catalog of permissible federal court jurisdiction.‖ Hans v. Louisiana (1890) – court stated that it recognized here that Chisholm was contrary to the well-understood meaning of the Constitution. i. This too was a case of a citizen vs. his own state – the Court held for the State, using the 11 th Amendment. History – States are sovereign and cannot be brought into court unless they consent—common law i. Souter says common law is overruled by the legislature, and argues that this is what happened. Congress exercised its plenary power and decided to hold States liable if they did not negotiate in good faith. Is there a form of common law that cannot be overridden by state legislature or Congress? Irrevocable? Bullet-proof? i. Rehnquist says yes – States can‘t be sued for money damages without their consent. ii. Says Chisholm v. Georgia was simply wrongly decided – no 11th amendment was needed. iii. Hans found its roots not solely in the common law of England, and in the much more fundamental ―jurisprudence of all civilized nations‖ [Natural law] iv. Pierce v. Society of Sisters – absolute prohibition against sending children anywhere BUT state school 1. Court said the right to educate your children in the way you see fit is fundamental to the concept of ―ordered liberty.‖ Ex Parte Young -- exception allowing you to sue a state officer for a continuing violation of a federal right, so long as it is not an indirect e. f. g. h. i. 53 CON LAW – FED STATE - KMIEC attempt to bind the state, and so long as it involves only injunctive relief and NOT monetary damages. i. The fallback in this case for the Seminole Tribe was Ex Parte Young – but Court says that the complex remedial measures in the IGRA precluded the implication of an Ex Parte Young right to sue the named state officer. 2. Limitation on Ex parte Young doctrine: Idaho v Coeur d’Alene Tribe of Idaho a. Ct held the exception could not be used to settle a title dispute between an Indian tribe. This case suggests disagreement on the Court as to the availability of the Young exception, with CJ Rehnquist and J Kennedy tendering the view that the exception applies as the result of a balancing test evaluating whether there is an adequate state forum in which to vindicate a claimed federal right, the need for uniform interpretation in federal courts, and the level of intrusion to state sovereignty. Js O‘Connor, Scalia, and Thomas strongly disavowed any balancing notion, stating simply that Young applies whenever there is a need to remedy a continuing violation of state law by a federal officer. 3. Immunity in state ct: Alden v Maine a. Sovereign immunity is a concept that is alive and well in both federal and state court b. Extends the concept of sovereign immunity to state as well as federal courts c. Congress cannot create a private individual coa to sue the state for money damages in either federal or state court d. Concept of sovereign immunity does not apply to federal government suing a state. Federal gov can bring the precise coa that an individual cannot e. Sovereign immunity does not apply to suit by one state against another f. Why allow suits by fed gov and not individuals? i. Principle of Monaco: when states entered union, they conceded as the price of entrance to suits by federal gov against themselves, and to resolve conflicts between themselves through litigation. They did not consent to private suits against them. g. Congress cannot abrogate sovereign immunity under article 1. h. Sovereign immunity is traced by CJ Rehnquist not just to mere CL or text of Eleventh Amendment, but to something that is implicit in our Constitutional structure. This is the majority (5 judge) view. (called by Kmiec “Rehnquist’s revenge‖ b/c of his dissent in Garcia (case held that tenth amendment is not judicially enforceable, that it does not put a limit on the commerce clause)) i. Rehnquist would say that Chisholm v Georgia was wrongly decided. The reaction to that case is an affirmation of Rehnquist‘s view of history. The reason eleventh was focused on diversity alone was to 54 CON LAW – FED STATE - KMIEC overturn a precedent, not to establish sovereign immunity. That already existed and did not need to be established. j. Article III and its grant of jurisdiction is what tends to mislead people on sovereign immunity. Rehnquist views it as a grant of jx, but not as a waiver of sovereign immunity. k. Sovereign immunity does not preclude a coa against individual state officers for injunctive or declarative relief (Ex parte Young). This is only not true where Congress constructs an elaborate remedial mechanism. This exists b/c of supremacy clause, to make sure states follow federal laws. l. Why have sovereign immunity at all? i. Always been there. ii. OW Holmes: exists b/c you cannot sue the source of your own rights. This explanation sits uneasily with natural law heritage of the Const. iii. Gives life to the dignity of states –CJ R iv. Prevents an unexpected financial drain on the state‘s treasury. Forces states to pay based on policy choices they did not make. v. If a state is liable, it should be based so on its own policy, not on federal policy. vi. Allowing states to make these decisions themselves w/o the federal government, the buck will stop at their desks 4. Implied Consent: College Savings Bank v Florida Prepaid a. Sovereign immunity can be waived by the states, but not constructively. States must expressly waive. Waiver must be clear and unequivocal. General recitals not enough. i. College Savings Bank expressly overturned Parden, which had held that when a state participated in a federal program, there is an express waiver. CSB held that this would allow circumvention of Seminole Tribe and that would not be okay. b. Sovereign immunity can be abrogated by Congress under amend. 14 §5. This is b/c 14th rebalanced and superceded previous federal state balance of power. i. In CSB, ct found no §5 abrogation under property rights from due process clause. Property is ability to exclude somebody, and the claim does not implicate this ii. §5 empowers Congress to legislate to enforce 14 th Amendment against States. iii. What if there is a 14 th amendment interest? What is the scope of 14th amendment abrogation? 1. Remedy must match injury. In order to be well matched, there must be defensible findings of a pattern of state violation of a 14th amendment right. There has to be a showing of “Congruence and proportionality” between the constitutional injury and the abrogating cause of action. 55 CON LAW – FED STATE - KMIEC ii. Congress‘s Power to abrogate State Sovereign Immunity under the Fourteenth Amendment 1. Kimel v Florida Board of Regents a. Elaboration of College Savings Bank. Must be congruence and proportionality. Is age a suspect class? No. Since everyone ages, state employers can discriminate based on age. Must just have a compelling rational justification. (When it is not a suspect class, use a rational relation standard) Congress can not legislate broader than the right protected under 14 th amendment. Congress was giving the aged protection broader than what the Const required here under 14 amend. Thus, no abrogation. 2. Board of Trustees v. Garrett a. Disability is not a suspect or quasi-suspect class (like race and gender respectively) so, states could draw rational distinctions based upon this trait. 3. FTC v South Carolina State Port Authority: South Carolina sued Fed Maritime Commission. Said they had sovereign immunity that applied even before a trial like proceeding of a federal agency. Ct agreed. a. South Carolina saw a cruise ship coming, told it to go away, cruise ship line brought an action against S.C. in an agency proceeding (by Federal Maritime Commission) alleging that S.C. was violating the shipping act. Had the agency concluded the merits, then S.C. would‘ve been liable but the courts held that Sovereign immunity barred the agency from adjudicating a private party‘s cause of action, b/c the proceeding is basically a lawsuit (if 11 th amendment precludes states being liable in federal and state courts, then they are immune in federal administrative proceedings) 4. Nevada Dept. of Human Resources v Hibbs a. Deals with family and medical leave act and a coa against NV based on gender discrimination. Was the remedy sufficiently congruent and proportional to the showing of state misbehavior? Must show a pattern of state unconstitutional behavior to abrogate. Kimmel says you have a non-suspect class, and if Congress creates a remedy for it, must show a pattern of unconstitutional behavior. b. With a suspect class, pattern need not be at all extensive. Here it WAS a quasi-suspect class (gender) and therefore requires a higher standard than a rational relation (between the statute and the interest). ―Any use of gender in a law, by a gov‘t, must serve an imp‘t governmental objective and the use of it must be substantially related to the achievement to that objective.‖ c. Congress can abrogate 11 th amendment immunity if it is acting under section 5 of 14th amendment, must be congruent and proportionate to a states‘ pattern of discrimination that is within the 14 th amendment, Congress‘ ability to legislate under section 5 is going to be given more deference when it is dealing w/ suspect classes such as race and quasisuspect classes such as gender (states need to show an imp‘t 56 CON LAW – FED STATE - KMIEC governmental objective and that it is substantially related to achieve that objective) and less deference when it is dealing w/ non-suspect classes such as age or disability (states only need to show rational basis and a reasonable relation to that basis) d. Dissent: Kennedy, Scalia, Thomas i. 11th amendment ensures fiscal responsibility of the state (protects state treasury) AND evidence that is shown against states regarding the gender discrimination, most of it is private entity discrimination, most of it relates to parental leave and not family leave, and then he points to difference between the genders, says that it makes sense for the states to give pregnancy leave to women and not men. Does not violate equal protection clause b/c that clause says that you treat similarly situated people similarly. So…Congress and the states are allowed to treat women differently in that they can give birth and men can‘t so they aren‘t similarly situated. 5. Tennessee v. Lane a. Criminal ∆ was disabled, etc., relied on Title II under ADA to sue state for not making a reasonable accommodation for him in prison i. Garrett had held that Title I of ADA (dealing w/ employment Q‘s) was blocked by 11 th amendment immunity when brought against a state employer b/c States are allowed to draw rational distinctions based upon this trait. ii. Here, no suspect classification, but there is a fundamental right (due process) using Title II to vindicate access to the courts iii. Using principle in Hibbs they say that Congress has wider latitude to legislate regarding a fundamental right (Due process), just like they do when it is a suspect class (gender discrimination) d. Individual Rights Limitations on the Power of States: Judicial Incorporation i. Barron v Mayor of Baltimore 1. Plaintiff argued that fifth amendment applied to the state (just compensation for takings) 2. Ct disagreed. Marshall said Fifth Amendment, and none of the amendments, apply to the states. 3. He gives a textual reason for this: when the framers wanted a constitutional provision to apply to the states, they did so expressly. See Art. I, §10. Also Fifth Amendment speaks of itself as expressly applying to Congress. Says nothing about applying to states. 4. Matters such as that covered by the Fifth Amendment were usually covered by state constitutions, or at least natural law. 5. Ct simply held that when founders intended to limits states, they did so expressly ii. Palko v Connecticut 57 CON LAW – FED STATE - KMIEC 1. Introduces judicial incorporation: the incorporating on a case by case basis of the Original 8 amendments (selectively) against the states. Some are incorporated against the states, others are not. 2. Standard for whether to incorporate under the 14 th amendment against the states: must be “found to be implicit in the concept of ordered liberty.” Must be a principle so rooted in the traditions of our people to be ranked fundamental. (Benton v Maryland overruled Palko). 3. Though overruled as to result, this standard and language are still the judicial incorporation test of the courts. 4. It is an evolving standard 5. Example: 7th Amendment not incorporated against the states iii. Adamson v California 1. Applied Palko standard, allows prosecutor to comment on D‘s failure to testify. Says fifth doesn‘t apply to states. This is later overruled 2. Here, Frankfurter defends Palko test, and Black argues that 14 th Amendment incorporated the Bill of Rights 1-8 against the states, and gives much history supporting his view. He thought this would be easier to apply, and the absence of his std would be an invitation to judicial misbehavior, allowing judges to incorporate whatever they want. 3. Frankfurter goes back to text of constitution, says Congress knows how to limit states when it wants to, so it could be expected that if they wanted to incorporate the first 8 amendments against the states, they could do so explicitly. He is saying text doesn‘t support Black‘s incorporation theory. 4. Frankfurter and Black debate the utility of natural law as a tool of Const interpretation. 5. Frank. says incorporation of all of the first 8 amendments, puts due process in a cage 6. Kmiec says selective incorporation is a very weak and perhaps inappropriate form of natural law. 7. Theory: Judges will incorporate as they believe principles of justice and fairness in the interest of ordered liberty require. a. So….Which one (all amendments apply or judicial incorporation) is more loyal to democratic ideals; separation of power, etc.?? i. Don‘t know, BUT…Judiciary hasn‘t been content to simply apply the bill of rights to states; they have begun to invent them (ex: right to privacy), so it‘s possible that applying all amendments and taking the judiciary out of it may be more in line w/ democratic ideals and separation of powers, etc. iv. City of Boerne v Flores 1. Church wants to expand, but it is not allowed to do so, due to zoning law. 2. Church argues it is allowed to expand despite the zoning law because of the Religious Freedom Restoration Act (RFRA). 3. In Employment Division v Smith, Ct held that as long as a law is neutral and generally applicable, free exercise/establishment cause is not implicated. The law must just not be directed at harming a particular religion 58 CON LAW – FED STATE - KMIEC 4. Congress didn‘t like this, and passed the RFRA, which prohibits government from substantially burdening a person‘s exercise of religion, unless the gov can demonstrate that the burden is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling government interest. 5. Ct strikes this down. Allows Congress to pass enforcement legislation, but says that Congress can not redefine at will constitutional provisions. Amendment 14 §5 is solely remedial, does not give Congress substantive power of final Constitutional interpretation, because allowing such a power goes against the very rationale for having a Bill of Rights in the first place: taking some things out of the Congressional domain. So, not allowed to redefine what free exercise of religion means (Court did this in Smith and only way for Congress to alter this definition is to overrule Smith or to pass a Constitutional amendment) 6. ―While preventive rules are some times appropriate, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented‖ a. Here, court said there was not enough of a showing of a pattern of constitutional violations occurring from the passage of generally, applicable laws so…Congress passing RFRA to make gov‘ts defend these laws under strict scrutiny analysis is not remedial and it does not suffice to deter (b/c it is redefining the right rather than deterring a present violation of the right) 7. This is the same as the test for abrogating the eleventh amendment for 14 th amendment reasons: congruence and proportionality. 59