Constitutional Law
General Types of Arguments
Textual
Arguments
Words and
placement
Structure of
the
Constitution
(broadly)
Historical
Arguments
Framers
Intent
Mix of
Opinion
Specific
Intent
Natural
Law
At time
Processes
of Gov‟t
Tradition
Contemp.
Values
Precedent
Other Parts of
Constitution
Broad
Interpretations
Social Policy
And/Or
Consequences
of Decision
Narrow
Mix of All of
the Above
(esp. history
and text)
Less
important to
Originalists
Judicial Review
& Marshall’s Opinion in
Marbury v. Madison
Court’s Role in
Interpreting the
Constitution
Constitution is
supreme law of
land and SCOTUS
is in charge of
interpreting
Political & Discretionary Acts
Review of
EXECUTIVE &
LEGISLATIVE
Limits &
Restraints
Non-Discretionary
Political powers, actions
respect the nation & not ind
rights – conscience guides
Directed to perform certain
acts, individual rights,
officer of the law
Rights of Individuals
Beginning of
Political Question
Doctrine
Textual
Defenses
Appellate review of
decisions arising
under the
Constitution
Issues “especially
for the courts”
Judges take an
oath to the
Constitution &
must uphold
(hence review)
Supremacy Clause
– laws are made in
pursuance of the
Constitution
Judiciability Doctrine
Advisory
Opinions
Standing
Article III – “Cases & Controversies”
Linked to Desirability of Judicial Review
Broad & Narrow View – Policy Decision
“Personal injury fairly traceable to the D‟s allegedly
unlawful conduct and redressed by requested relief”
Actual Dispute
between Adverse
Litigants
“Real & not
hypothetical
controversy”
Necessary
Hayburn
Case
No override
by Sec. of
Def of a
Supreme
Court
decision
Washington
Question to
Justices:
Refused to
answer b/c
advisory and
not
necessary
Must Bring
Some
Change
Plout
Case:
No overturn
by C of a
final
judgment
(yes to
prospective
& in
litigation)
consider
Injury In Fact
Causation
Redressabiltiy
(a) distinct &
palpable, (b) not
abstract or
hypothetical, (c)
personally injured
Fairly traceable to the
action of D, generally
measures Ps stake in
the outcome
Whether ruling would
bind D and have an
effect for P
Lyons:
Failure to show
the possible
future injury
(D: Marshall)
Failure to
purchase airline
tickets… whether
imminent enough
of a threat
(speculation)
Triggers for
Standing Problems
Notes:
-Only 1 need standing
-State surrender of rights
Aikan:
Access to
information was
enough to meet
standard
Lujan:
Mass v. EPA:
Congress giving
power to create IIF
– weight of report &
whether concrete
injury is clear
Richard:
Actual payment of
child support not
guaranteed
Considered
together generally
Generalized Grievance:
Third Party Actor:
Gov‟t failing to follow the law and
bringing suit to do so (injury in fact)
That gov‟t is failing to regulate some 3rd party - q‟s about
causation & redressability
(Allen v. Wright – IRS failure on tax exemptions for racially
segregated schools; Lujan: failure of Sec of Interior on
endangered species)
Mass v. EPA:
Third party
Separation of
Powers
Problems:
Court not having
the ability to
determine law,
concerns about
overstepping
Timeliness
Tied to Const.
Mootness
(most
flexible)
Rendering a
decision is no
longer possible or
purposeful, or
would be hypo
Exceptions
Voluntary
Cessation:
(a) no realistic
chance that D
will go back to
harmful conduct
Often occur
together
Ripeness
(like IIF)
Concrete, certain, and ripe for review – normally need
violation; sometimes just never enforced or too
hypothetical – (a) probability that event will occur (b)
hardship to parties if denied, (c) fitness of record to
determine legal issues presented
Political
Question
As a whole, the
question is incapable of
judicial review
A. IV, Sec. 4 =
Guaranty Clause =
always non-justiciable
Final decision would
lead to a political
outcome
(Both sides point
back to Marshall‟s
Opinion in MvM)
Eval through
Baker Factors
Pre-Enforcement Review of
Statute or Regulation
(Abbott Labs)
Factual Development:
*the more facts that can
be developed the less
chance of a review
Capable of Repetition yet
Evading Review
(a) every time that it comes up, it
will be short lived
(b) for individual – likely to find for
the exception
(c) unanswered for ind v. class
Hardship for having to wait
*generally economic
hardship will allow CT to
push through
Class
Actions:
Selfinterested
parties are
still
advocating
Collateral
consequences:
Effect will be
longer lasting
even if seemingly
decided
(Poe v. Ullman –
no actual
prosecution)
Textually
Committed to
Another Branch
Art. I, Sec. 5
Powell v.
McCormack:
House adjudicatory
power of Art I, Sec. 5,
but determined only
as qualifications not
power to not seat
Goldwater:
Rescinding a treaty,
question left for
executive, must look
at terms of
constitution to this
factor
Lack of judicially
discoverable and
manageable
standards for
resolution
(competence)
Goldwater:
Not appropriate if
only left to
inferences, dissent
(Brennan) says that
foreign relations can
be det by SCOTUS
Embarrassment
Potential for another
branch, policy
question, or
deference to another
branch
Goldwater:
If there would be
multiple
determinations from
different branches of
gov‟t
Nixon:
Const. did give
standards House/
Senate to act &
would not be
appropriate for SC to
determine
Vertical Separation of Powers:
FEDERALISM
Enumerated Powers
Necessary &
Proper Clause
(17)
(must be tied to
power in Sec 8)
“All leg powers
herein granted”
Article I
Generally Sec. 8
Rationale
Commerce
Clause
McCulloch v. MD:
Marshall gives a very
broad interpretation of
Necessary & Proper
Clause, importance of
Const in regulation of ppl
not the states; implied/
inherent powers justified
Historical
Understanding of
the Commerce
Clause
Art. I, Sec 8
Gibbons v. Ogden:
Broad interstate, but
considered a broad sphere
of independence
*when only affects 1 state
Commerce = „traffic‟ &
„interstate‟, „navigation‟,
„intermingled‟
Early Interpretation
10th Amendment &
States‟ Rights
Rationales
Effectiveness of
the Federal
Government
Historical Issues
Prevent federal
tyranny
Elections will be limit,
not 10th amd
Protection of States‟
Rights
Enhance democratic
rule closer to ppl
Federalism protects
individuals
Senators no longer
elected by state govt
States as laboratories
for projects
Madison‟s Double
Security
Area for Congressional Regulation = intermingled
and sharing among state commerce
Limits to C reg based on effect on 1 state =
completely internal
EC Knight: direct effects test –
mfer is not commerce, no reg if
w/ no effect on other state
1890s to 1937:
State Sovereignty
(1) Narrow definition of „commerce‟
(2) restrictive of „among the states‟
(3) Cong violates 10th when in area of states
Manufacturing v.
Commerce
Bright Line
Approaches
Direct v. Indirect
Stream of
Commerce
th
10 Amendment Limits: Next Page
Carter Coal: commerce going
elsewhere is NOT subject to
regs when inside state
TX Railway: intrastate cannot
damage industry in another
state (move to intra)
ALA Schechter: not SOC
among states, not direct
Look at effect on
commerce, not injury itself
1937 to 1990s:
Broad Nat’l Power
Very few limits on
Congressional
Power, started by
G. Depression
More of a
Spectrum
Approach to
Determining
Congressional
Power
Hodel (1981):
Strip-Mining: Regulation permitted so long as
rational basis by Congress for regulating
Perez (1971):
Loan-sharking, Congressional enactment
and basis for regulation (even criminal)
1990s to Today:
Shift Back – Cong. Limits
Exclusively State
Rights for Some
Spheres & 10th
amd back in action
Effect on interstate
commerce generally
Broad “Among the States”
Regulation Permitted
Congressional
Authorization
Channels affirmed for reg
Not traditional state
activity (fam, ed, land)
Noneconomic criminal will
likely fail under Comm Cl
Congress should give
expression of justification
Must be tied to Congress
Authorization
10th Amd = Limit on
commandeering and state
acting for fed govt
NLRB v. Jones (1937):
Steel production regs; statute defines
“affecting commerce” - effect on commerce
NOT the injury needed for inspection
Darby (1941):
Overturn Dagenhart, intrastate which so
affect interstate commerce or the exercise of
power of Congress over to make legitimate
end – w/in Cong power
Wickard v. Fillmore (1942):
Broad interstate, but considered a broad
sphere of independence - *when only affects
1 state”; disband ideas of directness,
production, et al
Katzenbach (1964):
Within state = completely within and does not
affect other States & not interfering with other
goals of govt; - the interstate nature of the
restaurant permitted regulation
Heart of Atlanta (1964):
Moral wrong allowed for regulation, disruptive
effect that racial discrimination has had on
commercial intercourse – means must be
reasonably adapted to the end permitted
by Const.
(1) Why created - what‟s regulated?, (2)
Enumerated/Implied, (3) If Implied then
Necessary/Proper - Commerce
Commerce Clause
“A thing in interstate commerce”
Channels of Interstate
Commerce
Instrumentalities
Roads, Waters,
Airways, Internet, et al.
Persons or Things
Moving Between States
Substantial Effect on
Interstate Commerce
Reference to
Lopez/Gonz
Non-Economic
Economic
If within the (1) Channels or (2)
Instrumentalities then often easier for
Congress deference & broad power
Conditioning
federal funds to
state action
Spending
Power Limits
(1) Condition is for
the general welfare
with extensive
deference to
Congress
(2) unambiguous –
st must now what it‟s
losing for funds
“Production,
distribution, and
consumption of
commodities”
Rational Basis &
Aggregate Effect
Examined &
Deference to
Congress
Dole Elements:
Highway Funding
(3) related to fed
interest through
program or project –
Reasonable
Relation Test
(4) not coercive – ex
5% of highway funds
was not, full effect
Broad
Regulatory
Scheme
(Gonzalez)
Factors for Analysis:
(1) type of action linked to
commerce (JX link), OR
(2) statutory authorization
or Congressional findings,
OR
(3) not traditional function
(family, education, landuse) and no national
productivity nexus
(1) Specific Activity
Examination
(Non-Agg) &
(2) No Deference to
Congress &
(3) Link to I/C Required
Wickard =
Governing Law
(Aggregating) &
Deference to
Congress
10th Amendment & Commerce Clause Over Time
Wickard (1942)
Ames
(1903)
Darby
(1941)
Harlan:
Congressional
decision to regulate
interstate commerce
is PLENARY and
complete in self
Thomas: state
highway info
protected from
discovery in civil
cases b/c part of
channels
Overrule Usery,
reject state immunity
and traditional
framework; structure
of govt will protect the
states
If analysis comes
within the commerce
clause, then no need
for 10th amendment
analysis,eliminate
direct/indirect analys
NLRB (1937)
Katzenbach (1964)
Ht of ATL (1964)
TX Railway
Gonzalez
(2005)
Powell/Rehnquist:
Court is wrong, too
broad interpretation
of Cong power, “we‟ll
be back”
O’Connor: Broad
Regulatory
Scheme, places
the issue into
aggregate analysis
Hodel (1981)
Greater
Power
Less
Power
Guillen
(2001)
Garcia
(1985)
Perez (1971)
EC Knight
Carter Coal
ALA Schecter
Dagenhardt
(1914)
Employee regs on
child labor; no power
in Cong to force
states to exercise
police power = child
labor is purely local
decision and does
not affect inter comm
Holmes Dissent:
consideration of
Congress and not the
Court to decide, once
product cross state
lines then open to
regulation
Usery
(1976)
Traditional state
functions are
protected by the
10th amendment,
displacement of
state decisions
(how to fund,
spend) –
Factors: typical for
protection of
citizens
Brennan Dissent:
wrong decision
against Darby
Stevens Dissent:
Should be subject
to fed regulation
Lopez
(1995)
Morrison
(2000)
Rehnquist: defines
3 categories, says
this is sub effect
(crim gun statute) –
a. ess part of broad;
b. tied to Cong
authorization; c. not
traditional function
of state proc by
10th;
O’Connor: need for
judicial certainty
Thomas: sub effect
test is bogus
creation
Rehnquist:
Congress exceeds
bounds with crim
stat on Violence
Against Women
Act; noneconomic &
criminal statute; no
express JX
element; no
Congressional
findings (maybe not
enough)
Thomas:
substantial effect
doc shld be
abolished
Stevens/Souter/
Ginsburg:
Guns are part of
commerce, should
look at aggregate –
should have found
“rational basis”
Stevens/Souter/
Ginsburg:
Data was produced
by Cong & was
sufficient –
formalism criticized
US Corps of
Eng
(2001)
Rehnquist: Ponds
not in open water
are not a part of the
channels; Cong did
not clearly intend
fed to include ponds
Stevens/Souter/
Ginsburg:
More than
commerce power at
stake in question,
comm included in
birdwatching &
hunting; should
include natural
resources
Specifically 10th Amendment Limits &
Guideposts (only when state actor)
Condon
(2000)
New York
(1992)
Printz
(1997)
Rehnquist:
Allow banning
of state info
distribution
O’Connor:
Scalia:
Cannot simply
Fed govt may
(1) applies to
compel states
not compel the
more than just
to eliminate
states to enact
the states –
radioactive
or administer a
also applies to
waste products;
federal
private entities
bad direction to
regulatory
(2) regs not as
states;
program – no
affirmative act
commandeer
issuing of
but as owners
state
directives or
of database info
decisions not
command of
(3) not a
accepted – do state officers or required action
through
those within to
but required
spending power
administer a
prohibition
even if states
program
have accepted
Thomas:
the regs (no
Return to comm
choices given
clause roots is
10th Amend.
to state)
needed, 2nd
Triggers
amd mention
White/
Blackmun/
Stevens:
Seriousness of
the public
problem, irony
of ignoring state
desires, fed is
involved in
other state
areas
(railroads,
prisons, et al)
St/Sout/Gins/
Breyer:
Threat of a
national
emergency,
10th doesn‟t
limit delegated
powers;
historical
arguments that
taxes were
collected by
state agents
Commandeering
Affirmative
actions needed
by state govt
State capacities
Requiring state
legislation
Separation of Powers
Federal Executive Powers
Acting w/ Express
Congressional
Authorization
Inaction by Congress OR
Conflicting
Congressional Action
Article II, Sec. 1 = “Executive powers;” Art. II, Sec. 3 = “Take Care Clause”
“Highest Ebb”
(a) maximum power
(b) strongest
presumptions in favor of
Congress
(c) burden of persuasion
falls on attacking party
Youngstown Framework:
Jackson’s Concurrence
“Lowest Ebb”
Inaction by Congress OR
Conflicting
Congressional Action
(a) Pres takes measure
that is incompatible with
express OR implied will of
Congress
(b) maintained ONLY IF
able to disable Congress
from decision
Debatable
(a) either absence of
Congressional grant/denial
(b) OR acting on independent
presidential responsibility
(c) Cong inertia, indifference
or acquiescence
(d) Doesn‟t necessarily require
a lawmaking process, may
just have leg actions
Must tie the
Presidential action
being challenged to a
statute
Evaluate the
constitutionality of the
statute in question w/
strong deference to
Congress
Example
Youngstown
(1952)
Frankfurter &
Jackson Opinions –
Pres decision is
covered by statute so
in 3rd and NOT a war
power – FF says
clear indication of C
Foreign Affairs
Line Item Veto
Clinton Case:
2 other branches
agree but court
finds invalid
Nature of
Power:
Specific
regulations on
how and why
Pres could veto
spending section
of bill postpassage
Problem:
Not in line with the
“finely wrought
procedures of the
lawmaking
process in the
Constitution” must have an
amendment if
want this power;
even though
following the law,
still not acceptable
Dissent:
Different
form of
government
nowadays,
court has
interpreted
broadly the
ideas of leg
and exec,
no need to
referee
dispute
Curtis
Wright
(1936):
Dames &
Moore
(1981):
No inherent
powers in
states for
foreign
relations –
solely federal
concern; Pres
“sole organ” Pres is better
branch suited
for such
determinations
Executive
Agreements:
Place in bucket
1 b/c Cong has
approved
through statute
in Foreign
Claims
Settlement
Comm, exec
agreement
permitted
War Powers
Resolution:
Inaction by
Congress may
prevent Pres
from being
able to act;
often
dismissed on
standing or
political
question
doctrines
Numerous
challenges – not
how Const looks
“No citizen shall be
imprisoned or
otherwise detained
by US except
pursuant to act of
Congress” - after
WWII det of JA
AUMF:
Hamdi (2004)
O’Connor:
Within statute but
not in line with due
process concerns
for citizens
Process still allowed for US CITIZENS –
challenge status as enemy-combatant
Hamdan (2006)
Writ of habeas corpus is allowed for all
citizens
DTT of NonCitizens:
Standard of Review – “some evidence” v.
private interest of unjust detainment
Must be provided: (a) notice of fact-basis of
classification, (b) fair opportunity to rebut in
front of neutral decision maker
Order for military
tribunals being
established and rules of
procedure for
interrogation/trial
Stevens/Scalia
Dissent:
Thomas Dissent:
Cons Suspension Clause
(I.9.2) says this is illegal
This is war – get over it;
this is an executive
power protected by
for US citizens
Const
Cheney Case:
Permitted –
Criminal v. Civil
Separation of
Powers:
Job of the jud br
to “say what the
law is” - not
shared w/ another
branch – must
have claim of:
(a) military,
diplomatic, or
sensitive national
security secrets
for deference
(b) evaluate
balance of need
of judicial process
over exec priv
Court Martial
instructions
Factors/
Triggers:
- Mindfulness
of burdens on
the executive
branch
- public policy
- whether
criminal or
civil case
Military Commissions
Civilian in
times of
martial law
Temporary
military govt
Stevens Maj:
UCMJ:
Ginsburg/Souter:
Not within the
statute –
Korematzu
Nixon Case:
Arguments
regarding
Executive Priv.
Baker = textually
committed, not
enough that
intra-branch
dispute, regular
course of
criminal
proceeding so w/
in Art. III court
power
US can detain for duration of hostilities of
conflict if engaged in armed against US
“all necessary and
appropriate force
against nations,
organizations, or
persons associated
with Sept 11”
Executive
Privilege
Justiciability:
War on Terror
Non-Detention
Act:
Vinson/Reed:
In Korean War, need
to defer to Pres war
powers – “take care
clause”
Not in line with the
Geneva
convention and
the court is not
permissible –
captured in conflict
and tried in
conflict, not miles
away
Br/Ken/Sout:
No blank check for
the pres
Scalia/Al/Th:
JX was given by
congress through
DTT
“incident to
conduct of
war”
Thomas
Dissent:
Exec should have
expansive power
in FP, in bucket 1
in this case
Alito Dis:
Geneva Art 3
satisfied
Separation of Powers
Administrative Delegation
Non-Delegation Doctrine
Art. I, Sec. 1 = “All Leg”
Appointment & Removal
Powers
Principle that Congress may not delegate its legislative power to
administrative agencies – generally eroded to standards of delegation
Appointments Clause, Art. II, Sec. 2, cl. 2 – President nominates w/ Advice &
Consent from Senate, but may vest power for inferior officers in President, Courts
of Law, or Heads of Departments
Morrison
Analysis
Has Cong delegated a leg power
inappropriately?
Principal
Officer
Standards
Necessary for
Discretionary
Choices Made by
Executive Branch
ALA Schechter:
No restraint on
President‟s legislative
choices – no
standards for trade,
industry, or activity –
unfettered discretion
for enacting laws by
President so invalid
Panama Refining
(1935):
HOT OIL –
Regulation of whole
economy based on 1
standard (“unfair
competition”);
President cannot
have choice of what
is injurious or “unfair
competition” - cannot
make these choices
and act accordingly,
must be left to
legislature
NO other law has
been determined
to be invalid based
on delegation
Intell. Principle:
Criteria to Guide
Agency‟s
Discretion is
Necessary;
Agency cannot
make policy
decision, but may
use benchmarks
Whitman
Trucking (2005):
“Necessary to protect
the public health [air
standards]” “determinable
standard” is not
necessary even for
Broad Regulatory
Schemes – use of
scientific data
allowed
Legislative
Veto as Check =
Unconstitutional,
Bicameralism
Evaluate the
legislative nature
of the decision
Evaluate the
Framers‟ Intent
(limited indp role
for each branch)
Whether efficient
or not is
immaterial, must
protect through
sep of powers and
structure
Includes legislative
veto as uncon for
all agency rules
too, must have
bicameralism to
overturn exec
action
Chadha (1983):
Efficiency alone will
not save an action;
House judiciary
comm tried to revoke
a hold on deportation
for Chadha;
Deemed legislative
and needed
legislative process
Dissent:
Leg Veto is useful
tool and has been
used throughout
statutes
Inferior
Officer
Must be selected by
the President and
consented to by the
Senate
Generally Look
At:
(1) Incongruity
(2) Power Intrusion
(3) Power
Expansion
No reservation of
removal by
Congress
permitted EXCEPT
through
impeachment
Scalia Dissent:
Any restriction on
the executive‟s
power should be
void and invalid;
good cause
restriction did so,
and so should not
be permitted
Principals may be
removed at will of
President, but
agency officers
generally must
have just cause –
measure is NOT
whether “purely
executive”
Must look to
whether removal
power restriction
impedes Pres
executive power to
execute laws – is
the burden
hampering ability
to control the
official?
If quasi-executive
and quasilegislative then
“good cause” is
permitted to
separate from full
executive control
over office
Interference in the
executive branch
functions?
(1) appointed by
President alone, OR
(2) appointed by
heads of depts, OR
(3) appointed by the
judicary
Subject to
removal by
higher executive
official (i.e.
removed by
Attorney General)
Statute only
provides certain,
limited, duties
(not policy making
and no
administrative
duties outside
specific office)
Officer is limited
in jurisdiction –
examine through
scope off
jurisdiction
Limited tenure –
generally
“temporary” to
accomplish
specific task
Outside vesting is
granted Cong
deference but
need to evaluate
separation of
powers concerns –
no
“incongruous”
inter-branch
appointments
Some means of
controlling the
actions of officer
are included –
then does not
violate sep of
powers