Standing Mootness Ripeness
In order to bring a case before the Supreme Court, at least one plaintiff must meet the
requirements of standing, mootness, and ripeness. Standing involves an inquiry into whether or
not the person bringing the suit is the correct person. Standing requires an injury infact; that is
an injury which is an injury which is concrete and particularized, and actual or imminent.
Standing also requires Causality; that the injury fairly traceable to the conduct of the
defendant. Finally standing requires redressibility; that it is likely the the injury can be
redressed by a favorable ruling and that a federal remedy is possible to redress or prvent the
injury.
Prudential (can be circumvented by congressional action):
1. Must only be asserting his own rights, not that of a third party
2. May not sue as a taxpayer who shares an injury with all other taxpayers (bar
on citizen suits is constitutional, cannot be circumvented)
3. Must raise a claim within the zone of interests protected by the statute in
question
Mootness requires that there be an actual case or controversy throughput all judicial
proceedings. If events occur prior to the filling which rexolve the case or controversy, the
case has become moot and can no longer be heard.
Ripeness focuses on the temporal nature of the suit; is it the right time to bring the suit
forward. The main question underlying ripeness is if the case and controversy is sufficiently
progressed so as to provide the court with sufficient facts to form the basis of a judicial
decision.
Political Question Doctrine
The non-justiciable political question doctrine is a doctrine of justiciability which at its
essence states that certain matters are of such a “political” nature that they ought not be
subject to review by the federal judiciary. Constituional issues arising around these matters, the
Court asserts, ought to be resolved within the two political branches subject to the political
process. Since Marbury, the court has asserted that there are certain constitutional matters
that are unreviewable by the Court, most commonly because of a textually rooted
demonstratable commitment of the issue to the discretion of a coordinate branch, or because
the question lacks any judicially manageable standard. The political question doctrine is
generally tooted in practical and prudential concerns, and serves to
Issues the court has declined to hear based on the non-justiciable political question doctrine
include the Rupublican Form of Government Clause, the time-frame for constitutional
amendments, treaty abrogation, and senate impeachment trials.
In Baker v. Carr, the court ruled that the issue of voter malapportionment, via the Equal
Protection Clause as a vehicle, was not a non-justiciable political question. The court reasoned
that the issue of malapportionment was not committed to a coordinate branch via any text,
and the court already regularly applied the Equal protection clause and thus the court had a
judicially manageable standard. Furthermore, based on the political process theory, the court
felt it had an obligation to step in to preserve the fairness and responsiveness of the political
process when politics failed to do so.
Ultimately, the Court ‘s decision in Carr laid the framework for to the establishment of the oneperson-one-vote rule established in later cases.
(a) commitment of the issue to a branch of government other than the judiciary; (b) lack of standards for
resolving the issue; (c) impossibility of the judiciary to resolve the issue without first making a policy
determination; (d) a judicial decision of that matter as a lack of respect for other branches of government;
(e) a political decision has already been made; or (f) the potential for multiple pronouncements by various
branches on one question.
In Rucho v. Common Cause, the Court held that the issue of partisan gerrymandering was a
political question beyond the reach of intervention by the federal courts. The court based their
decision primarily on the fact that no judicially manageable standard existed to address the
problem, because while the court was able to point to a number of potential methods that
could be used to render district lines in such a way as to better promote proportional
representation, the court had no practical standard to base such a decision on. Furthermore,
the court stated that the Equal Protections clause did not neccessaitate proportional
representation, and the court further pointed to historical evidence that partisan district
making was in practice at the time of the founding and the founders apparently did not
disapprove of the practice. Thus ultimately the Court decided it had no place in “allocate[ing]
political power and influence in the absence of constitutional directive or legal standard[.]”
In her dissent Justice Kagan primarily based her opinion on the political process theory
The court, Kagan reasoned, had a duty to interpret the constitution especially when the failure
to do so would threaten the foundation of our democratic form of government. Kagan argued
gerrymandering threatened one of the most fundamental constitutional rights of citizens; the
right to vote in free and fair elections. Our system of representative governance was designed
to be a government of the people, and relies on the idea of political safeguards; that elected
officials would face political pressure to respond to the will of the people. Because
gerrymandering allowed ruling parties to entrench themselves into power without respect to
popular support, the people were being deprived of their representation, and the Court is
compelled to step in to correct the political process, when it is rendered unable to correct itself.
SCOTUS Authority to Review State Judgements
In Hunter’s Lesee the Court established that the Supreme court had the ability to review
state court judgements. They the decision primarily on a structural argument, based on the fact
that the constitution allowed but did not require congress to establish lower Article III courts,
but in the absensce of congress extabloishing such lower courts, the Supreme Court would be
rendered powerless to hear any cases except those seldom few that fell within its original
jursidiciton; such a construction would be unreasonable. The court decided that federal issues
would arise in state court, and the Supreme court was given the power to hear “cases” arising
under the constitution. Furthermore, there was a need to maintain consistency among
interpretation of these federal issues.
The Adequate Independent State Grounds doctrine is a prudential check on SCOTUS review, if
a court bases a decision only on state grounds, and provides a clear statement saying that
much, SCOTUS will be unable to review.
Federalism Necessary and Proper Clause
In McCulloh the two questions presented to the Court was the constitutionality of the
establishment of a central bank, and furthermore whether or not the State of Maryland could
tax the bank of the United States. In answering the first question, the Court, relying on the
Necessary and Proper Clause in Article 1 Section 8, rejected the argument that congress was
limited to only those enumerated acts delineated in the constitution, and instead ruled that
Congress could use any means, necessary and proper, to fulfill its constitutionally granted
perogatives, so long as Congress did not violate the Constitution. Furthermore, Justice Marshall
affirmed that it was the people, not the states, who ratified the Constituion and empowered
the Federal government, not the states. Through their broad reading of the necessary and
proper clause, the Court substantially expanded the power of the Federal government to act
outside the confines of the powers delineated in the constitution. Thus, the power to establish
a central US Bank, though not mentioned in the text, was constitutional.
The court ruled that States could not tax the Federal government as the power to tax was the
power to destroy.
Commerce Clause
*The Commerce clause of the Article I, section 8, grants congress to the power to
“regulate commerce… among the several states.” What is “commerce” so as to fall within the
purview of Congress’s regulation power has been the subject of shifting interpretations
throughout the history of the Court. The modern commerce clause grants congress the power
to regulate private parties, or states through generally applicable laws in so far as the use of
channels of interstate commerce, the instrumentalities of interstate commerce, and activities
which substantially affect interstate commerce. Congress can not regulate “non-economic
activity”, despite potential substantial effects on commerce. While interstate commerce is
generally subject only to rational basis review, the Court has recently seen fit to question the
adequacy of congressional findings and congressional motives. The fractured Sebelius opinion
also suggests that the commerce clause power may be limited to only economic activity, and
that congress cannot seek to regulate inactivity, though this limiting principle has yet to be
tested for staying power.
Following a twenty year period of laissez-faire minded conservative justices
interpretating the comngressional commerce clause power narrowly, during the new deal era,
the court reinvigorated the commerce clause into the wide and expansive monolith of today.
*The modern commerce clause grants congress the power to regulate the use of
channels of interstate commerce, the instrumentalities of interstate commerce, and activities
which substantially affect interstate commerce; but congress can not regulate non-economic
activity, despite potential effects on commerce. While interstate commerce is generally subject
only to rational basis review, the Court has recently seen fit to question the adequacy of
congressional findings and congressional motives.
In NLRB v. Jones, the court expanded the interpretation of “commerce” subject to
Congress’s regulation, to include not only transactions interstate, but also the manufacture and
production of goods that substantially affect commerce. Furthermore the court granted great
deference to congress’s motives in enacting commerce regulation, and applied loose rationalbasis review. In Darby, the Court found wage and hour regulations, and the banning of certain
goods from interstate commerce, to be within the congressional scope of regulation through
the substantial effects theory. In Wickard, the court interpretated the commerce clause power
to even reach into the realm of strictly intrastate activity, such as local wheat private
production not for sale interstate. Via the aggregation theory, the Wickard court deemed that
even small intrastate non-commerical production could be deemed to substantially affect
interstate commerce, because of the potential aggregate effect of numerous small local
productions of wheat could have on the great interstate market demand.
In Lopez, the Court , in an attempt to create some sort of limiting principal to the
seemingly limitless Commerce Clause power, invalidated the Gun-Free School Zones Act. The
court revived 10th amendment and federalism arguments, that an unchecked Commerce power
would allow Congress to functionally usurp state police powers. Without invalidating Wickard,
the court created a limiting caveat to the scope of the Commerce Clause power, by ruling that
Congress could not create laws regulating “non-economic activity,” and in this case gun
possession was non-economic activity. In a shift to the usual defference paid to Congressional
motives, the court lamented the lack of congressional findings backing the law, despite Rational
basis review usually not requiring such. In Gonzalez the court struct down the Violence Against
Women Act, under the non-economic activity theory despite congress coming equipped with a
detailed finding record. The court raised proximity concerns, that the effects on commerce
were too attenuated from the scope of the act.
Question remains whether a juridicitional nexus could save the laws in Lopez and
Gozalez, seems unlikely given non-economic distinctin. I see no reason the court would have
the power to regulate interstate non-commerce or non-economic activity.
In Raich the court reaffirmed Wickard, upholding a the controlled substances act’s ban
on strictly intrastate, non-commercial, medical marijuana. The court signaled it was not willing
to overturn the new deal trilogy, perhaps satisfied with the limitating principle of the noneconomic activity exception exposed in Lopez.
Anti-Comandeering and the 10th
The anti-comandeering doctrine, is a constitutional doctrine derived from, though not
explicit in, the 10th Amendment and structural principles of Federalism contained in the
Constitution. The anti-comandeering doctrine essentially states that the Federal Government
cannot force or “commandeer” state governments or state officials as vehicles of enforcing
federal laws. A second strand of justification for the Anti-Comandeering doctrine revolves
around the idea that a certain set of traditional government functions of the state government
(waste, police, fire, sanitation) should be retained under state autonomy without Congressional
interference.
In New York v. United States the Court invalidated the “take title” provision of a
radioactive waste disposal under anti-comandeering grounds, as the provision was seen as
impermissibly commandeering the States’ legislative processes, as congress was essentially
forcing a congressional action in forcing the taking of property. Furthermore in Printz, the Court
ruled that Congress could not commandeer local law enforcement officers to enforce
backround checks on handgun purchases. Besides respect for the principal of Federalism and
respect for State autonomy, the court has also rationalized the Anti-Comandeering doctrine on
the theory that commandeering state enforcement agencies water’s down the political
accountability that serves as a check to government actions.
Alternatives to Comandeering
While Congress has essentially been limited in its ability to forcefully commandeer state
apparatuses in order to enforce a legislative scheme, Congress can still use the Spending Clause
to encourage states to comply with enforcing policy by tying tax funding to the adoption of
such policies. This method is limited by the coercion limitation outline in Sebelius as well as the
Dole test, so the amount tied up cannot be so large as to functional coerce the states into
adopting policy, the spending must be directed to serve the general welfare, and the condition
placed on the state must be constitutional, unambiguous, and relate to a particular federal
program.
• Reno v. Condon (2000): No anti-commandeering problem when Congress prevented States
from selling DMV data
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Conditional Preemption: threaten to use the Commerce Clause if States don’t comply
Federal bureaucracy: feds could simply supplant States, assuming a valid federal power
Eleventh Amendment / Soverign Immunity
The Eleventh Amendment limits the ability of the federal judiciary to hear suits brought
against States as defendents, SCOTUS has interpreted the amendment as prohibiting suits
against a State by either its own citizens, citizens of other states, or foreign nationals. Generally,
States cannot be subject to suit unless they waive their own immunity.
In Seminole Tribe of Florida the Court ruled that Congress could not abrogate state soverign
immunity though the use of the commerce clause.
In Alden v. Maine, the Court extended Seminole to apply to federal suits brought in state court,
by state citizens, despit the fact that the text of the Eleventh Amendment does not go nearly so
far.
Pre-emption
Under the Supremecacy clause of Article VI, congress may pre-empt state law with
federal law. The intention to preempt state law can be express, where congress includes a
specific pre-emption clause in a statute, or conserversely congress can choose to include a
savings clause into a law to expressly not preempt state law. Generally, there exists a
presumption against preemption, except in certain circumstances such as the Elections clause,
where there is no presumption against preemption, or in matter regarding foreign affairs where
the presumption of preemption is much weaker. There is also the more complicated issue of
implied preemption, which is generally of two species; field and conflict. Field preemption
generally occurs when congress has created laws so broad in scope and comprehensive in
regards to a particular field, that it is apparent Congress intended to totally occupy the laws in
that given field. Conflict preemption is found in situations where state and federal law conflict
in such a way where it is impossible to comport with both, or in situations where the state law
undermines or conflicts the policy goals of federal law. The question of whether a state law
undermines or conflicts with the goals of federal law requires an inquiry into the underlying
statutory purpose of the federal law, as well the state law which is being accused of being
preempted.
For example in PG&E, the court inquired into California state’s nucleaur waste regulations, and
whether or not they were preempted by federal nuclear waste regulations, via a theory of
implied preemption. The court found there was no field preemption because the federal laws
were not so borad in scope or comprehensive as to indicate that Congress sought to regulate
the entire field.
The court found that there was no preemption because the underlying policy objectives of the
California waste regulations were economic, while the federal regulations were primarily
grounded in the policy objective of promoting safety. Given that both the California and federal
law were not of such a nature that both could not be possibly comported with simultaneously,
the California law which sought to promote the economic viability of nuclear power production
did not undermine or conflict with the objective of federal nuclear waste regulations whose
primary purpose was to safely dispense of the waste, and thus there was no implied
preemeption.
Separation of Powers
Seperation of powers concerns often arise when Executive action appears to be encroaching
into the realm of actions and powers that constitution has reserved for the Legislative branch,
or when Congressional action is seen as encroaching upon such powers reserved to the
executive. In Youngstown, Justice Jackson’s concurrence set forth a theoretical frame work
which still underpins seperation of powers inquiries today. The famous Youngstown
concurrence set forth three categories of presidential action each with its own corresponding
zone of power. First, when the President acts pursuant to express or implied congressional
mandate the presidents power is the greatest; in such a situation the President has the power
to act in furtherance of the mandate, limited only by constituitional restrictions on the
authority federal government as a whole. Second, when the president acts subject to a
situation of which Congress has been silent, the presidents power is intermediate; this situation
necessitates a judicial inquiry into whether or not the presidential and congressional powers
are concurrent or contested. Third, when the president acts contrary to express or implied
Congressional will, the president’s power is its most diminished; the president will only be
exercising proper authority if Congress’s will has usurped the Constitutional powers of the
executive. However more recently in Zivotosky, and even more so in Dames & Moore, the court
has taken added a more functionalist spin to the Youngtown factor approach, describing the
presidential power as more of a continuum rather than three strict categories, accepted the use
of historical-gloss justifications, and generally granted strong deference to the executive in
matters of foreign affairs.
In Youngtown the Court found that President Truman’s executive order to seize steel
mills was an unconstituional encroachment on congressional legislative authority. The court
reasoned that, given congresses prior decision not to mandate such a seizure, the President
could only act pursuant to the powers granted to the executive in the constitution, and the
seizure of the mills was not one of them. The court rejected the argument that combining the
Vesting, Take Care, and Commander in chief clauses in the aggregate could justify the
Presidents action in light of Congressional disaproval. The take-care clause and vesting clause
authorized the president to execute congress’s commands, not to create legislation, and the
commander-in-chief clause did not authorize such action on its own.
In Zivotovsky, the court dealt with a situation in the third category of Jackson’s
Youngstown framework, as congress wanted to pass a law allowing people to list Israel on their
passports when born in Jerusalem and the President refused. In this case, the Court reasoned
that President was acted within the constitutional authoirity of the executive based on the fact
that Article II authorized the president to receive ambassadors, that historically the recognition
of other nations was a presidential power, and the general assumption that the president had
primary power in foreign affairs. Analogizing the act of acknowledging, via place of birth on a
passport, that people born in Jerusalem were born in Israel was akin to recognizing the Israel as
the soverign over Jersulam, the Court found such power was reserved for the president not the
executive.
War Powers
Article I of the constitution grants congress the power to declare war, to raise and
support armies, and to call forth the militia. Article II makes the president the commander in
chief of the army, navy, and militia when they are called into service. Furthermore, Article I
section 9 states that the Writ of Habeus Corpus shall not be suspended save for cases of
invasion or reblleion as the public safety may require.
The War Powers Resolution was enacted in 1973 in response to the Vietnam war. The
resolution provided strict guidelines regarding when the President could engage in military
“hostilities”, limiting such action to only cases where the president was acting pursuant to
congressional approval in the form of a declaration of war or explicit statutory approval, or
under a national emergency created by an attack against the United States. The president is
further required to report to congress within 48 hours of beginning “hostilities.” Within sixty
days of issuing said report, the president must then terminate the military hostilities unless
they receive some form of congressional approval, and Congress can order the removal of
military forces by concorruent resolution.
In Ex Parte Milligan the court granted Habeus to a US citizen who was detained outside
of the theater of combat, during Lincoln’s suspension of the Writ during the civil war. The court
declared that the Writ of Habeus Corpus was primarily concerned with detention and not trial
and conviction, and that at least in the situation where a civilian citizen non-combatant was
detained outside of the theater of combat military commissions could not be used when civilian
courts were open and available, and absent congressional approval.
In Ex parte Quirin the Court ruled that unlawful enemy combatants whom had violated
the laws of war, regardless of US citizenship, could be deprived of habeus on US Soil and tried
by military commission when the president had congressional approval
In Eisentrager the court ruled that habeas did not extened extra-terretorially to Nazi
prisoners held in Germany. Key factors in the decision were that, was an enemy alien that has
never been or resided in the US, who was captured outside US territory and held in military
custody as a POW, who was tried and convicted by a military commission sitting outside the US
for offenses against the laws of war and is and was at all times imprisoned outside the US.
In Hamdi the court ruled that that a citizen-detainee must be given an opportunity to
challenge his classification as an enemy combatant and must receive notice of the factual basis
for his classification and a fair opportunity to rebut the Government’s factual assertions before a
neutral decisionmaker, assuming his detention was authorized by Congress.
In Hamdan the court ruled that statutory Habeus extended to Guatanamo bay, so absent
Congressional approval, the use of military commissions required the same procedural
safeguards as those outline in Hamdi.
In Boumediene, the court decided that even Constituional habeus reached unlawful
combatants in Guantanamo bay. The court based its decision on the grounds that the US was the
de-facto soverign over Guantnmo bay, despite Cuba being the de-jure soverign, distinguishing
the situation in Boumediene from the situation in Eisentrager which regarded detention in
Germany where the US was not a de-factop soverign. The court set forth a multifactor test for
determining when constitutional habeus etends extraterrorially based on “the citizenship and
status of the detainee and the adequacy of the process through which that status determination
was made”; “the nature of the sites where apprehension and then detention took place”; and
“the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.” Thus the
Government was compelled to honor the writ or provide a sufficient substitute which the
combatant status review tribunals being used were not. Since Boumediene, the D.C. circuit has
rejected an attempts to extend constitutional habeus to Bagram Air base in Afghanistan, thus the
high water mark of extraterritorial habeus has yet to be explored beyond GITMO.
Scalia’s Boumediene Dissent
• What textual and historical arguments does Scalia make against extra-territoriality?
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Text: Suspension Clause’s limitation to invasion and rebellion suggest it doesn’t extend
extra-territorially
History: This is unprecedented
• How does Scalia view Eisentrager?
• As a formalist test that turns on de jure sovereignty
• What does Scalia think about the separation of powers issues here?
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Accuses the Court of being insufficiently deferential to the political branches acting in
wartime
Condemns judicial supremacy
Fourth Branch / Nondelegation
The non-delegation doctrine essentially mandates that congress cannot delegate its
legislative powers to other entities such as administrative agencies. Supreme court precendet
has generally provided the doctrine with very little teeth, as the general standard is simply that
congress need only supply a guiding “intelligible principal” to guide the discretion of
administrative agencies to avoid falling within the scope of the non-delegation doctrine.
As a method of implementing congressional oversight on administrative agency action,
congress has tried to implement legislative vetoes into statutes.
In Ins v. Chadha, congress attempted to exercise a unicameral legislative veto against the
attorney general, which only required a congressional vote to overturn the attorney general’s
decision to suspend an alien’s deportation and compel deportation. The court invalidated the
use of the unicamercal legislative veto, based primarily on the idea that the use of such a veto
violated the Presentment and Bicameral clauses, as well as general historical and structural
principles of the division of powers and bicameralism. The court ruled that any action which
was legislative in character in that it sought to alter legal rights and duties, was subject to
restrictions of bicameralism based on the constituion.
Dissent: The constituion is silent on the use of the legislative veto. Furthermore, any statute
containing a legislative veto is the product of the typical bill process, and thus certified through
bicameralism. The separation of powers ought to be felixble and accomadating, there is no
need for rigid formalism, and the court ought to defer to the legislative branch in exercising
what it thinks is best, which in this case was the legislative veto.
In Clinton v. City of New York, the Court invalidated the line-item veto which allowed the
president, after being presented with a bill, to cancel certain provisions in the bill subject to
certain requirements, while allowing the rest of the bill to become law. The Court found the
practice unconstitutional because they viewed the president’s action as essentially acting in an
impermissibly legislative fashion. The court did not find that the line-item veto provided the
executive with an intelligible principal upon which to base its discretion, and thus the matter
fell within the scope of the non-delegation doctrine.
Appointments Clause
The Appoinments clause of Article II, Section Two, provides the president with the
power to nominate ambassadors, public ministers and consuls, Supreme Court Judges, and
other officers of the United States, under the advice and consent of the senate. The Clause also
permits the Congress to empower the President, the courts, or the heads of departments to
nominate inferior officers as necessary. The court determined, in Buckley and Lucia that the
principal dinstinction between officers and mere employees is that officers are able to exercise
significant discretion in the completion of their duties. The difference between a principal or
inferior officer is not so clear, but it appears inferior officers are officers with discretionary
power, but who report and are supervised by principal officers.
The presentment clause contains a provision that empowers the President to appoint
officers during the Senate recess, whose commission will expire upon the end of their next
session. In Noel Canning, the Court was presented with a challenge of Presidents Obama’s
practice of appointing officers during the Senatorial intra-session recesses. The court ruled that
the appointments were appriate, and that the president could exercise the recess appointment
power regardless of whether the senate was in a intar- or inter-session recess, based largely on
a historical gloss argument that both practices have proved accepted for some time. The only
limitation they put on the power was that the recess must exceed ten days in length.
Congressional Removal
The language of Article II is silent as to the Presidents ability to remove officers from
their commissions, but congress can invoke the impeachment process to remove such officers.
In Bowsher v. Synar, congress invoked a provision of the Gramm-Rudman-Hollings Act,
which allowed the congress to remove the comptroller general for cause, via a joint resolution
which must pass both house of congress, and then be presented and signed by the president.
The Court invalidated the removal provision of the statute because they determined the
Comptroller General was an officer oof the United States given his significant discretionary
powers over the budget, and thus Congress had to use the tradition impeachment process to
remove the comptroller general. The decision was based on similar formalist reasoning as that in
Chadha, that Congress could not legislate around constitutional limitations of bicameral
constitutional limitations, and the Court found congresses was acting in usurpation of Executive
power.
Dissent: Joint resolution already a Bicameral process.
Presidential Removal
The President’s power to remove executive officers can be restricted in certain regards
by congress.
In Myers, the court invalidated a statute which mandated that the Congress must
consent to a Presidential removal of a postmaster, which represents the high-water mark for
presidential removal power, but the Meyers decision has been limited strictly to the removal of
purely executive officials.
In Humphrey’s Executor the Court upheld a “for-cause” restriction on the removal
provision for FTC Commissioners, and the Humphery’s ruing has subsequently been used as the
basis of applying restrictions to the removal officer’s for the officers of the many independent
agencies.
In Morrison the ethics of government act established a provision for the appointment of
an independent counsel to investigate criminal activity among federal officials. Upon
reasonable grounds to investigate, the attorney general could request the commission of an
independent counsel from the special division of the U.S. court of appeals, who would appoint
said counsel. The Attorney could only remove the special counsel “for-cause.” The court upheld
the appointment process under the theory that the independent counsel was only an inferior
officer, and thus the Appointment Clause permitted such an officer to be appointed “by courts
of law.” The court also upheld the “for-cause” removal provision based partly on Humphrey’s
reasoning that the Executive still had the power to remove the independent counsel, and the
restriction did not usurp executive power.
Dissent: Prosecution is a classic example of a purely executive officer, unitary executive
theory, president should be able to remove for any reason
War and Treaty Power
In Woods the court upheld the Rent Act of 1947 under the presidents War Powers,
despite Germany and Japan surrending in 1945. The court reasoned that the presidents war
powers extended past the date of official surrender or subsequent peace declarations, as in
many regards the nation was still in a post-war decompression period. Many troops were still
overseas, and the country was facing a massive housing shortage based on the deactivation of
the armed forces. Thus through the Presidents War Power and the necessary and proper
clause, the court ruled that the President was within his power to address the war-created
housing shortage, while the court acknowledged the potential “slippery slope” argument, the
court did nout find the present situation to represent an abusal of the War Power or a
usurpation of legislative power.
In Missouri v. Holland, the state of Missouri challenged a migratory bird treaty which
preempted state law as violating the tenth amendment. The Court upheld the treaty paying
great defference to the President’s supreme power to enter into treaties pursuant to Article VI,
and dismissing federalism concerns.
In Reid v. Covert (1958), the Court invalidated a statute extending courts martial
jurisdiction over the family members of service members located overseas. The Court rejected
the Treaty Power justification, ruling that Congress could not use the treaty power to enact laws
which they otherwisewould be unable. Distinguished the Tenth amendment Federalism concerns
in Holland , from the individual rights issue present here, the court echoed Justice Jackson’s
concurrence in Woods. The court appears particularly cautious to allow use of the Treaty Power
to infringe on individual rights.
Executive Privelage / Immunity
In certain situation the President can be subject to suit even while in office. In Nixon, the
court ruled that the President had an absolute immunity to civil suits in regards to official
actions, as allowing such suits would distort the Presidents ability to fuilll the duties of his office
by potential limiting his policymaking abilities for fear of civil liability, and defending such suits
would furthermore distract the president from his obligations.
Although in Clinton v. Jones, the court ruled that the President could face civil suits for
pre-presidential conduct while in office. The court reasoned that the main objective in applying
the absolute bar to civil suit in Nixon was to preserve the President’s ability to freely make
policy, and such policy distortion concerns would not be present when the president was facing
suit for non-official conduct which occurred before the president was in office. The court put
less weight onto the second argument underlying Nixon, which concerned distracting the
president with having to defend civil suits, downplaying the potential situation where the
president was bogged down by a multiplicity of civil actions.
Reconstruction Amendments
In Barron v. Baltimore (1833), Barron sued the city of Baltimore under the takings clause of
the fifth amendment. The Court definitively rejected the argument on the basis that the bill of
rights was limited in application the federal government only.
The Reconstruction-era Hierarchy of Rights
• The Thirteenth Amendment abolished slavery, the Fourteenth Amendment constitutionalized
the Civil Rights Act of 1866, and the Fifteenth Amendment enfranchised Black men nationwide
In The Slaughter-House Cases the court rejected a challenge to the state of Louisiana’s
monopolization of slaughterhouses that was based on the theory that the Privelages and
Immunities Clause of the Fourteenth Amendment protected the slaughterhouse workers’ right
to “exercise their trade.” The court cabined the Privelages and Immunities act and applied a
very strict intreperation that said the privelages and immunities act only protected the rights of
National Citizenship and was not intended to be a vehicle to upend state laws.
In turn the Due Process clause of the Fourteenth Amendment become the vehicle to
incorporate the bill of rights to the States, via the theory of selective incorporation.
In Duncan v. Louisiana, the court incorporated the sixth amendment right to a jury trial
as applying to the states via the Due Process Clause. Similarly, in McDonald v. City of Chicago,
the court incorporated the second amendment right to bear arms as applying to the States via
the Due Process clause, despite the substantive nature of the Amendment.
There are three principles of incorportation. The first is non-incomporation, which states
that the Due Process clause of the Fourteenth was entirely separate and independent from the
bill of rights. The theory of non-incorporation is based on the idea that there is are an ethereal
set of right based on “the canons of decency and fairness” which form the basis of the rights
provided by the Due Process clause The theory of selective Incorporation of the Bill of Rights
follows the idea that the court must examine each individual provision of the bill or rights,
determine whether or not that provision grants a right “implicit in the concept of ordered
liberty.” Total incorporation is based on the theory that the Framers of the Fourteenth
Amendment explicitly intended the entireity of the Bill of Rights to be incorporated onto the
steps, with the entireity of the Fourteenth Amendment as its vehicle.
Thomas would incorporate by overruling lsaighterhouse, and using the privelages and
immunities clause.
Scalia doesn’t like substantive due process but followed stare decisis
State Action Doctrine
The Fourteenth Amendment is generally held to require state action in order ot be
enforce. In The Civil Rights Case the Court invalidated the Civil Rights Act of 1875, on the State
Action doctrine, which distinguished the 14th Amendment as applying only to state action and
not to the action of private individuals. The court based this doctrinal opinion on the text of the
fourteenth amendment which explicitly contains the language that “No state shall make or
enforce any law.” Furthermore, the court reasoned that the main purpose of the 14th
Amendment was to eradicate laws which discriminated against Black Americans, not general
discrimination. Thus, because racial discrimination in public accomadation was private action
and not state action, the Civil Rights Act of 1875 could not be supported via the 14th
amendment.
The Thirteenth Amendment on the otherhand, applies to private conduct on its face.
The court found that Congress was empowered to pass all laws necessary and propoer, to
enforce the 13th Amendment in regards to both private and state action. Although, the court
rejected the claim that the Civil Rights Act of 1875 could be supported via the thrinteenth
amendment because the court ruled that public accomadations were not “badges or incidents
of slavery.”
Under the Fifteenth Amendment the court de see fit to regulate arguably private
conduct of party primaries wich were racially exclusive.
The “high-water-mark” of Fourteenth Amendment enforcement is widely considered to
be the approach taken in Shelley v. Kramer. In Shelley, the court refused to enforce a racially
restrictive covenant against a black family who purchased a home whose title was burndened
by such a covenant. The covenant was a contract which was entirely private in nature,
nonetheless the Court found that Judicial enforcement of the contract would represent
impermissible state action in violation of the 14th amendment.
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Thirteenth: covers private action
Fourteenth: no private action, just state action
Fifteenth: applies to state action, but more broadly defined than the 14th
Congress Reconstruction Enforcement Power
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Thirteenth: covers private action
Fourteenth: no private action, just state action
Fifteenth: applies to state action, but more broadly defined than the 14th
In Katzenbach the court embraced an extremely defferential approach to congresses’ 14th
Amendment (and 15th) enforcement powers. The court, ruling on the constitutionality of
section 4(e) of the VRA, applied a rationality standard, congruent to the rationality
standard applied in McCulloh. The court articulated to rational theories underwhich
Congress could uphold section 4(e); first, to combat discrimination; second, the eradication
of discriminatory suffrage qualifications. Interestingly, the second rationale treats congress
as a coointerpreter of the constituion, as it bases it motives on an interpretation of the 14 th
and 15th amendments. The court established the “one-way rachet theory” to limit the scope
of this proposed constitutional interpretation theory of congressional power, in that
Congress could interpret more rights into the 14th and 15th amendments and seek to
enforce them, but could not undermine rights that have been identified by the court.
In City of Boerne, the court largely undercut the scope of congressional enforcement
power outlined in Morgan, when the Court found the RFRA could not be extended to the
states under Congress’ enforcement power of the Fourteenth Amendment. The court while
not explicitly overturning Morgan, chose to cabin the rationality standard used in the case,
instead applying a more rigoropus and probing “congruence and proportionality test” and
rejecting the tenant that Congress was any sort of co-interpreter of the constituion. The
Boerne congruence test requires the court to first determine the scope of the Constitutional
right at issue; the court must then examine the sufficiency of the legislative evidentiary
record compiled by congress; and finally the court must whether the enforcement
regulation is “congruent and proportional” to the constitutional violation that it seeks to
remedy.
Thus while under Morgan the court would defer to congress interpret what substantive
rights are imparted by the language of the Fourteenth and Fifteenth amendment and allow
congress to enforce those rights subject according to rationality; under Boerne the Court
decides the scope of the substantive rights of those amendments, determines if the
congressional record is sufficient to show some sort of intentional violation, and then
examines the if the remedial enforcement is proportional.
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Assume the 15th Amendment prohibits only intentionally discriminatory voting laws
Under Katzenbach, the Court would ask whether it was rational for Congress to prohibit
state laws with a discriminatory effect
Under Boerne, the Court would look at the legislative record of intentional discrimination
by States and then determine whether a discriminatory-effects standard was congruent
and proportional
Tiers of Scrutiny - Facially Discriminatory Laws
• Race, ethnicity, national origin, and religion are “suspect classifications” entitled to “strict
scrutiny”
• The law must be “narrowly tailored” to achieve a “compelling governmental interest”
• Sex and (in some circuits) sexual orientation are “semi-suspect classifications” entitled to
“intermediate scrutiny”
• The law must be “substantially related” to an “important governmental interest”
• Age, disability, and poverty/wealth are not suspect classes and thus statutes differentiating on
that basis receive rational basis review
• The law must be “rationally related” to a “legitimate governmental interest”
Post-Lochner State Commercial Regulation
The Lochner court invalidated a great deal of federal and state economic and
commercial regulation based on a substantive due process “right to contract.”
In Nebbia the court rejected the Lochner Court’s liberty of contract theory, and upheld a
New York State law establishing price controls on milk. The court framed the rights of
property and liberty of contract to not be absolute, but rather be subject to government
regulation for the common good. The court, in granting substantial defference to the state
legislatures judgement, ruled that the State was free to adopt any economic policy it
chose,to promote the welfare of its people, and the court was not permitted to question its
chosen ends. The state can also enforce that policy by legislation reasonably tailored to
meet those legislative ends.
In Lee Optical the court adopted an even more defferential approach, applying a
rational-basis review, and allowing he determination of the rationality to be based even on
ex-post justifications.
Footnote Four of Carolene Products laid the groundwork for what would become political
process theory.
Substantive Due Process
In Griswold v. Connecticut the Court invalidated a statute which banded the use of
contraception on substantive due process grounds. The rooted their substantive due process
theory in the idea that the 14th Amendment includes the “penumbras” of the bill or rights; that
is rights which are derived from the bill of rights by implication of those which are specifically
enumerated. In this case, the decision was based on an implied unenumerated right to privacy,
which the court derives from precepts of the third, fourth fifth, and ninth amendments. The
court rules that the contraception ban infringes upon this fundamental right to privacy, which is
particularly strong in reagrds to the personal, sexual, and familial decision of married couples
and their doctors.
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Goldberg concurrence: “implicit in the concept of ordered liberty” incorporation
precedent. term “liberty” in the Fifth and Fourteenth Amendments protects personal
fundamental rights. Rejects the majority’s penumbra theory.
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Dissent: Rejects a right to privacy and any rewording or refashioning of constitutional
rights
Compares substantive due process to Lochner and the Court acting as a legislature
Reflects Black’s view of total incorporation of the Bill of Rights
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Obergefell v. Hodges (2015)
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How did the Court rule?
• It invalidated bans on same-sex marriage, citing both the Due Process and Equal
Protection Clauses
• What was Justice Scalia’s argument in his dissent?
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The Court is acting as a super-legislature and taking the decision away from the People
Criticizes how unrepresentative of society the Justices are
The Independent State Legislature Doctrine
Review from Last Class: Substantive Due Process Today
• Modern substantive due process developed from Lochner-era cases like Meyer and Pierce but
concerns individual autonomy rather than economic liberty
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In Griswold, the Court invoked substantive due process to invalidate a Connecticut law
prohibiting the use of contraception
 The Court’s majority opinion invoked “penumbras” from the Bill of Rights
 Justice Goldberg focused on the Ninth Amendment
The Ninth Amendment provides: 'The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people.
'” Finally, the Court concluded that privacy within marriage was a personal zone
off limits to the government.
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In Obergefell, the Court invalidated state bans on same-sex marriage under the Due
Process and Equal Protection Clauses
Discussion Points
• Going back to Griswold, what source, if any, for the “right to privacy” is the most persuasive?
• Penumbras, liberty, or the Ninth Amendment?
• Is Obergefell best viewed as a due process or an equal protection decision? • What are the
downstream consequences of that framing?
The Elections and Electors Clauses
• The Elections Clause appears in Article I, Section Four, Clause 1:
• “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations . . .”
• The Electors Clause appears in Article II, Section One, Clause 2:
• “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of
Electors,
equal to the whole Number of Senators and Representatives to which the State may be entitled
...”
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In Ohio ex rel. Davis v. Hildebrant (1916), the Court permitted the use of a referenda in
the approval/disapproval of a congressional redistricting plan
In Smiley v. Holm (1932), the Court permitted gubernatorial vetoes of congressional
redistricting plans
In Arizona v. Inter Tribal Council of Arizona (2013), the Court held that Congress’s
authority under the Elections Clause is broad and there is no presumption against
preemption
Arizona State Legislature v. Arizona Independent Redistricting Comm. (2015)
• Arizona voters used the initiative process to create an independent redistricting commission
empowered to draw state-legislative and congressional maps
• The Arizona State Legislature challenged the commission’s authority to draw congressional
maps • How did the Court rule?
• It rejected the challenge, holding that the Elections Clause’s use of the term “Legislature”
“encompasses all legislative authority conferred by the State Constitution, including initiatives”
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What textual and historical arguments/concessions did the Court make?
 Founding-era dictionaries defined “Legislature” capaciously
 The Founders did not foresee the development of the initiative process
What federalism-based arguments did the Court make?
• States should be free to allocate their legislative authority
• What prudential argument did the Court make?
• Many election regulations are protected by state constitutions or were enacted via initiative
AIRC ... continued
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What textual and historical arguments did Chief Justice Roberts make in dissent?
 The term legislature was understood at the Founding to mean a representative
body
 Looks to state constitutions and the Federalist Papers
 Notes that initiatives had not been developed at the Founding
 Intra-textual analysis of other uses of the term Legislature
How did the Chief respond to the Court’s prudential argument about other election
regulations?
• The initiative here created an “unelected, unaccountable institution that permanently and
totally displaces the legislature from the redistricting process”
• What argument about constitutional change did the Chief make at the end of his opinion? •
The constitutional amendment process should be used to make this change
AIRC and the 2020 Election
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The Independent State Legislature doctrine was hotly contested before/after the 2020
election
The COVID-19 pandemic forced many States to make changes to how they run elections
 Some of these changes were enacted by state legislatures
 Other changes were implemented by State Executives (mostly Secretaries of
State)
 Still others came from state courts interpreting state law
In a series of “shadow docket” decisions, several Justices questioned AIRC
 Both Gorsuch and Kavanaugh signaled disagreement with AIRC
 Still haven’t heard from Barrett
Whether the Court will overturn AIRC in the 2020 redistricting cycle is a huge open
question
The Electoral College
Review from Last Class: The Elections Clause
• In Hildebrant, Smiley, and AIRC, the Court consistently interpreted “legislature” in the Elections
Clause to mean a State’s normal lawmaking process
• Allows for referenda, gubernatorial vetoes, initiatives, and independent redistricting
commissions to play a role in drawing congressional redistricting plans
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A majority of Justices have questioned AIRC’s validity and this issue remains hotly
contested going into the 2020 redistricting cycle
Under Inter Tribal Council of Arizona, Congress retains broad authority under the
Elections Clause to supplant state laws governing federal elections
• Many provisions of the For the People Act are premised on the Elections Clause
The Electoral College
• The Electors Clause appears in Article II, Section One, Clause 2:
• “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of
Electors,
equal to the whole Number of Senators and Representatives to which the State may be entitled
...”
• The original Electoral College broke down because Founders failed to foresee the rise of
political parties
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Jefferson became Adams’s VP
The 1800 election was sent to the House of Representatives after Jefferson and Burr
received the same
number of electoral votes
• The Twelfth Amendment (1804) established different selection methods for Presidents
and Vice Presidents
• Five Presidents have lost the popular vote but won the Electoral College
• John Q. Adams (1828); Rutherford Hayes (1876); Benjamin Harrison (1888); George W. Bush
(2000); and Donald Trump (2016)
Chiafalo v. Washington (2020)
• In the 2016 election, several “faithless” Electors cast ballots for individuals who they had not
pledged to vote for in an attempt to persuade GOP Electors to not vote for Trump
• 33 jurisdictions required pledges, and 15 of them enforced the pledges through either a fine or
the Elector’s removal
• How did the Court rule?
• It upheld States’ faithless electors laws
• What doctrinal argument did the Court rely on?
• Ray v. Blair (1952) permitted States to pass pledge laws
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What constitutional provision did the States get their authority from?
 Article II’s Electors Clause
 Justice Thomas’s concurrence argued that this is a Tenth Amendment case
What historical arguments did the Court rely on?
 The early history is ambiguous (dismisses Petitioners’ text-based arguments)
 The Twelfth Amendment was ratified to help facilitate party-line voting
 Historical gloss: States have passed these laws for 100 years and faithless electors
are aberrational
Discussion Points
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How does the Twelfth Amendment implicate the “political safeguards” arguments that
we’ve seen in federalism and Commerce Clause cases?
What do you make of the Court’s historical gloss arguments? Why are faithless elector
laws gloss but the Petitioners evidence of faithless votes not?
Under Chiafalo, could a state legislature prospectively or retrospectively decide that it
would award its slate of electors to a particular candidate and dispense with the popular
vote?
• Chiafalo’s fourth footnote says that there are still external restraints: “[c]hecks on a State’s
power to appoint electors ... can theoretically come from anywhere in the Constitution,”
including the Equal Protection Clause