Marbury v. Madison
—(Marshall unan.) Where there is a right there is a remedy. Courts = adjudication, but must not answer political questions. May not give л commission b/c that is a political question.
It is emphatically the province of the court to say what the law is. Est. judicial review.
Cooper v. Aaron
– (unan) SC is the ultimate interpreter of the constitution; state officials unable to nullify FCt. order;
14 th Am. Makes © binding on states; judicial exlusiveness rather than judicial authority to interpret. Dickerson v. US —(Rehnquist) SC has supervisory auth. over FCts; Miranda valid despite
Congressional act. Dissent Scalia & Thomas
—expansion of ©.
McCulloch v. MD
—(Marshall) “Let the end be legitimate, let it be within the scope of the ©….
US Term Limits v. Thornton (Stevens,
1995) —No state can reserve what it never possessed. C to be exclusive source of qualifications for congress. Kennedy (conc.)—“Framers split the atom of sovereignty” National G is an must be controlled by the people without the collateral interference of the states. Thomas (diss.) —C is silent on the issue; states can exercise all powers that the C doesn’t confer to the fed. G.
The Commerce Clause Cases
Gibbons v. Ogden
—established narrow view of commerce. Commerce as “intercourse.” Congress may regulate where there is an effect on other states.
1887-1937
—court strongly disfavored government regulation of economics. Struck down many statutes as unconstitutional under the commerce clause. United States v. E.C. Knight (sugar refinery cases) —congress can not regulate manufacture; preservation of state autonomy. Addyston Pipe and Steel
—price fixing agreement directly related to interstate commerce.
Shreveport Rate Case
—(1914) Hughes Instruments of commerce : “As it is competent for congress to legislate these ends, unquestionably it may seek their attainment by requiring that the agencies of interstate commerce shall not be used tin such a manner as to cripple, retard, or destroy it.
” Substant. effect approach. Swift v. US (1905) – sustaining Sherman Act injunction against meat price fixing: “Commerce among States is not a technical conception, but a practical one, drawn from the course of business.” Stream of commerce theory.
Stafford v. Wallace (1922)
—stockyards are but a throat through which the current flows.
Champion v. Ames
(1903)
—the lottery case, “The suppression of nuisances injurious to public health or morality is among the most important duties of gov’t…The possible abuse of power is not an argument against its existence.
” Fuller dissent: transformation of non-commercial items into commercial because they travel state lines invalidates the 10 th amendment.
Hipolite Egg v. US (1911) —unanimous court rejected the idea that the eggs were not the subject of interstate co mmerce once they had passed out of interstate commerce; “outlaws of commerce may be seized wherever found.” To give them immunity would defeat…the provision for their confiscation.
Hoke v. US (1913)
—McKenna unan. Upholding Mann Act: “The principle established is a simple one, that congress has power over the transportation amoung the united states; that power is complete in itself, and that Congress, incident to it, may adopt no only means necessary but convenient to its exercise, and the means may have the quality of police regulations.”
Hamner v. Dagenhart (1916)
—Day: “There is no power vested in congress to require states to exercise their police power so as to prevent possible unfair competition…The far reaching result of upholding the act cannot be more plainly indicated than by pointing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and thus our system of government be practically destroyed. Holmes,
McKenna, Brandeis, Clarke diss.: Congress is given power to regulate such commerce on unqualified terms. It would not be argued today that the power to regulate does not include the power to prohibit.
RR Retirement Board v. Alton RR (1935) —5-4 J. Roberts—RRA was not in purpose or effect a regulation of interstate commerce within the meaning of the constitution. Schechter Poultry Corp. v.
United States (1935)
—Hughes: rejects notion that poultry provisions relate to the stream of commerce (Swift) or affect commerce (Shreveport). Cardozo (conc.)—to find immediacy and directness here is to find it almost everywhere; activities local in their immediacy do not become interstate and national because of distant repercussions. Carter v. Carter Coal
—(1936) incidents leading up to and culminating in the mining of coal do not constitute intercourse. Production is merely a local activity. Direct vs. indirect effects on interstate commerce. Cardozo diss.: direct and indirect must not be read too narrowly. NLRB v. Jones & Laughlin (5-4; 1937)
—the power to regulate commerce is the power to enact all appropriate legislation for its protection and advancement…the power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it.
“Although activities may be intrastate in character when separately considered, if they 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, Congress can not be denied the power to exercise that control. McReynolds (diss.)
—by this chain of indirect and progressively remote events we finally reach the evil with which it is said the legislation under consideration undertakes to deal.
US v. Darby (Stone, 1941)
—lumber manufacturer in violation of FLSA; competition by a small part may affect the whole and that the total effect of the competition of many small producers may be great. Our conclusion is unaffected by the tenth amendment which states by a truism…There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between state and ntn’l gov’t. Overrules Hamners production distinction.
Wickard v. Filburn (Jackson, 1942)
—Once an economic measure of the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be production nor can consideration of its economic effects be foreclosed by calling them indirect.
Rejects indirect and direct categorization in favor of substantial effect formulation. Hodel v. Virginia Surface Mining (Marshall, 1981) —When congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational. Renq. Diss. Some activities may be so private or local in nature that the simply may not be in commerce. Our cases have consistently held that regulated activity must have a substantial effect on interstate commerce. Heart of Atlanta Motel v. US (Clark, 1964) —“That congress was legislating against moral wrongs in many of these areas rendered its enactments no less valid…the power of congress to promote interstate commerce also includes the power to regulate local incidents thereof, including the local activities in both the states of origin and destination, which might have substantial and har mful effect upon that commerce.”
Katzenbach v. McClung (Clark, 1964)
—Ollie’s BBQ; upholds rational basis review in determining that Congress validly applied Title II to the restaurant. Black (conc.) —“not every remote, possible, speculative effect on commerce should be accepted as an adequate c’l ground to uproot and throw into the discard all our traditional distinctions between what is purely local and what affects the national interest. Douglas (conc.)
—wants reliance on 14 finds rationale under 14 th
and 5 th th
amend. in decision. Goldberg (conc.)
—
amends. Perez v. US (Douglas, 1971)
—loan sharking case; although extortionate credit transactions are purely intrastate in character, they nevertheless directly affect interstate and foreign commerce. Stewart (diss.)-sees no further relation to commerce than all other crime. US v. Lopez (Rehn, 1995) —Guns free school act exceeds the commerce clause power of congress. Areas that congress may regulate: (1) channels of interstate commerce (Darby, Heart of Atlanta); (2) instrumentalities of commerce (Shreveport); (3) substantial relation to commerce (Jones &
Laughlin). We conclude that the proper test…is whether the regulated activity substantially affects interstate commerce. “Legal uncertainty” in commerce clause cases, making congressional power a question of “degree.” “To uphold G’s contentions here we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the commerce clause to general police power of the sort retained by the states…To do so would require us to conclude that the c’s enumeration of powers does not presuppose something not enumerated, and that there will never be a distinction between what is truly national and what is local. Kennedy (conc.)
—“Were the federal G to take over the regulation of entire areas of traditional state concern…the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory. The resultant inability to hold either branch of government answerable to the citizens is more dangerous than devolving too much authority to the remote central power. Thomas (conc.)
—substantial effects test an innovation of the 20 th
c. Bryer (diss.)
—prefers rational basis approach to substantial effect doctrine. Rejects majority’s distinction between commercial and non-commercial activities.
US v. Morrison (Rehn, 2000)
—adopts the reasoning of Lopez; “Indeed we can think if no better example of the police power, which the Founder s denied the N’l G and reposed in the States, than the suppression of violent crime and vindication of its victims. Thomas (conc.)—substantial effects doctrine inconsistent with original understanding of congressional power; Souter (diss.)
—info regarding effect of violence against women on interstate commerce available (dist. from Lopez).
Other Powers of Congress
Child Labor Tax Case (Bailey v. Drexel, Taft, 1922) —post-Hamner adoption of tax penalty on child labor. Prohibitory and regulatory effect and purpose are palpable…the presumption of validity can not prevail. The primary motive of a tax must be generating revenue. But there comes a time in the extension of the penalizing feature of the so-called tax when it loses its character as such and becomes a mere penalty. United States v. Kahriger (Reed, 1953)
—wager tax upheld; A federal tax does not cease to be valid merely because it discourages or deters activities…nor is it invalid because the revenue obtained is negligible. Frankfurter dissents. Jackson concurs. US v. Butler (Roberts, 1936) —invalidated subsidizing farmers to reduce their productive acreage. “It results that the power of congress to authorize the expenditure of public moneys for public purpose is not limited by the direct grants of legislative power found in the constitution. Stone (diss.)
—Statute not coercive; legitimate means to an end; favors judicial restraint. Charles Steward Machine Co v. Davis (Cardozo, 1937)
—federal tax with credit to those who contribute to state unemployment is valid.
Helvering v. Davis
(Cardozo 1937) —discretion given to congress to levy tax on workers to pay old age benefits. SD v. Dole (Rehn, 1987) —withholding of 5% fed highway funds to states allowing EtOH use under 21 valid as spending in pursuit of t he general welfare because it is not coercive. O’Conner (diss.)—drinking age not sufficiently related to fed. Highway funds. Need some way to limit spending power. War
Power. Woods v. Cloyd W. Miller Co, (Douglas, 1948)
—Whatever may be the consequence when war is officially terminated, the war power is not necessarily terminated; upholds post war rent controls when war contributed to housing deficit. Jackson (conc.)
—war powers usually invoked in haste and should be scrutinized with care Missouri v. Holland (Holmes, 1920)—upholds treaty re: migratory birds; treaty supreme law of the land; statutes under it must also be supreme.
State Limits on Federal Power
National League of Cities v. Usery (Rehn, 1976) —state autonomy defense enough to invalidate applicaton of FLSA against the states overruling MD v. Wirtz. Impermissibly interferes with state functions. 3 part test: statute regulates state as states, addresses matters that are attributes of state sovereignty, and compliance would directly impair ability to structure State G fcns. Brennan (diss.)
— congl restraint should be political not judicial. Garcia v. San Antonio MTA (5/4, Blackmun, 1985)
—federalism adequately protected through political process. C’l app. of FLSA to MTA. O’Conner
(diss.)
—fed. diminished to weak essence. True essence is states have legit. interests which bind the fed. G. suggests balancing test between state auton. Vs congressional means. Usery balancing test is unworkable in practice. Rehn diss.
—I’ll be back. New York v. US (O’Connor 1992) —radioactive waste; Accountability is thus diminished when due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not preempted by federal regulation. States are not mere political subdivisions of the US. White (diss.) —states chose to adopt the regulation; Stevens (diss./conc.) —10 th amendment doesn’t prohibit congress from commanding states under Art. I. Printz v. US (5/4; Scalia, 1997) —textual and historical approach to Brady Bill. Return to pre-Garcia.
Congress can’t impose duties on the states without their consent. O’Conner (conc.)—some actions may be provided for under the commerce clause. Thomas (conc.)—second amendment places the burden on the federal government. Stevens (diss.) —pressing need outweighs state concerns. Reno v. Condon—(Rehn, unan, 2000)-drivers priv. protect. Act C’l—no affirmative mandate
Civil Rights Power
US v. Guest (Stewart, 1966)
—reversal of dismissal of conspiracy to deprive blacks of free exercise of rights. Suggestion that under the N&P clause of the 14 th
amend. Congress may enact leg. to reach private actors. Commerce clause
—conspiracy may prevent interstate movement. “But if the predominant purpose of the conspiracy is to impede or prevent the exercise of the right of interstate travel, or to oppress a person because of his exercise of that right, the conspiracy becomes the proper object of the federal law under which the indictment in this case was brought.” Clark (conc.)—there can be no doubt that the specific language of §5 empowers congress to enact laws punishing all conspiracies…that interfere with 14 th
Amend. rights. Harlan (conc./diss.) Brennan (conc/diss.)
—And I can find no principle of federalism nor word of the C. that denies congress power to determine that in order to adequately protect the right to equal utilization of state facilities, it is also appropriate to punish other individual…who engage in the same brutal conduct for the same misguided purpose. Jones v. Alfred Mayer (Stewart, 1968) —refusal to sell home to blacks; when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery. Harlan (diss.)
—there is an inherent ambiguity in the term right.
Voting Rights
SC v. Katzenbach (Warren, 1966) —case by case litigation in voting discrimination cases difficult. Congress entitled to pass law dealing with the problems—may use any rational means necessary. “The record here sho wed that…various test and devices have been instituted with the purpose of disenfranchising negroes, have been framed in such a way as to facilitate this aim, and have been administered in a discriminatory fashion for many years. Under these circumstance, the 15 th amend. has clearly been violated. Lassiter v. Northampton County Election Bd. (Douglas, 1959)
—unan.
Rejection of attack on literacy test voting requirement. Literacy and illiteracy are neutral on race, creed, color, and sex…Of course a literacy test, fair on its face, may be employed to perpetuate discrimination which the 15 th
amend. was designed to uproot. No such influence is charged here. Katzenbach v. Morgan (Brennan, 1966)
—Ratchet test: congressional deference in equal protection cases necessarily gives congress power to abridge as well as expand rights. C hallenge to NY voting laws prohib. PR who didn’t speak English from voting. Expansive prophylacticly and substantively.
“…it was congress’ prerogative to weigh these competing considerations…we are guided by the familiar principle that reform may take one step at a time.” Harlan (diss.)—feels NY literacy requirement is rationally related to voting rights. State and congressional enactments should be given the same presumption of validi ty. “[I]t should be recognized that the 14 th
amened. Is a brooding omnipresence over al state legislation, the substantive matters which it touches are all within the primary legislative competence of the states.
” Oregon v. Mitchell (Black, 1970) —no person over 18 denied vote. “No function is more essential to the separate and independent existence of the states than the power to determine within the limits of the constitution the qualification of power to determine within the limits of the C the qualifi cations of their own voters for state, county, and municipal offices.” Brennan (diss. in part)—“If discrimination is unnecessary to promote any legitimate state interest, it is plainly unconstitutional under equal protection, and Congress has ample power to forbid it under §5.” Stewart (diss.)—age is not protected class as race is, and therefore the statute did not invidiously violate rights. Harlan (conc./diss.)
—congress has exceeded its powers and substituted its judgment for the states.
Rome v. US (Marshall, 1980)
—pre-clearance required to make electoral changes; ban on electoral changes had the purpose and effect of promoting the 15 th
amend. Powell diss.
—pre-clearance like any other remedial device can only be imposed in response to harm. Rehn (diss.)—today’s

decision is nothing less than a total abdication of authority, rather than an exercise of deference…the intrusion is all the more offensive to our constitutional system when it is recognized that the only values fostered are debatable assumptions about political theory which should be properly left to the local democratic process.
Congruence and Proportionality
City of Boerne (Kennedy, 1997) —challenge to RFRA; Congress has been given the right to enforce, not to determine what the right is. Wide latitude to determine the line. There must be a congruence and proportionality between the injury to be prevented and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. Congress can invalidate any law which imposes a substantial burden on a religious practice unless it is justified by a compelling government interest and is the least restrictive means of accomplishing that interest. The precedent of the court must control in areas of constitutional interpretation. Congruence and proportionality is the test for prophylaxis. Lane
– ADA; Hibbs – FMLA
Executive Power and the Separation of Powers
Youngstown Sheet & Tube v. Sawyer —the Truman Steel Seizure Case (Black, 1952)—It is clear that if the president had authority to issue the order he did, it must be found in some provision of the C.
In the framework of our C, the P’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. Frankfurter (conc.)—it is an inadmissibly narrow conception of American C law to confine it to the words of the C and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the C, making as it were such exercise of pow er part of the structure of our G, may be treated as a “gloss” on executive power vested in the P. Jackson (conc.)
—Joseph and Pharaoh anal. 3 divisions of presidential power: (1) pursuant to an express or implied authorization of congress—strongest; (2) in the absence of either congressional grant or denial of authority
—zone of twilight; (3) incompatible with the expressed or implied will of congress—lowest ebb. Upholding the seizure would not “plunge us straightway into dictatorship, but it is at least a step in that wrong direction.” Vinson (diss.)—historical precedents show that the president acted within his authority. Dames & Moore v. Regan (Rehn, 1981) —Iranian hostage crisis; crucial to our decision today is the conclusion that congress has implicitly approved of the practice of clai m settlement by executive agreement.
Not broad statement of president’s power to settle clams rather narrow focus on executive control of foreign affairs. Ex Parte Milligan (Davis, 1866)
—Okay to suspend writ of habeas corpus during war, but not proceed to trial: “the C of the US is a law for rulers and people, equally in war and peace, and cove rs with the shield its protection to all classes of men, at all times, and under all circumstances.” Contrast with 1998 Rehn.—“the laws will not be silent in time of war, but they will speak with a somewhat different voice.”
Ex Parte Quirin (Stone, 1942)
—German national soldiers caught on US soil during WW2 and tried by military tribunal; Case specific balancing: “C’l safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty. But the detention and trial of petitioners…are not to be set aside by the courts without clear conviction that they are in conflict with the C or laws congress C’lly enacted. Unlawful combatants subject to trial my military tribunal.
Rasul v. Bush (Stevens, 2004)
—agreeing with Johnson v. Eisentrager in holding of military detainees on any territory where the US is not sovereign, however, supporting sovereignty of US over
Guantanamo Bay.
Hamdi v. Rumsfield (O’Conner, pl., 2004) —Detention to prevent a combatants return to the battlefield is a fundamental incident of waging war, in permitting the use of necessary and appropriate force, congress has clearly and unmistakably authorized detention…indefinite detention for the purpose of interrogation is not authorized…It is beyond question that substantial interests lie on both sides of the scale in this case…our C recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them….combatant must have opportunity to hear the factual basis for his classification and rebut G’s presumption before a neutral decision maker…whatever power the USC envisions for the executive in its exchanges with other nations or with e nemy organizations…it most assuredly envisions a rile for all 3 branches when individual liberties are at stake. “Some evidence” standard=nebulous. Interest could be met by military tribunal. Scalia (diss.)
—Hamdi is entitled to a habeas corpus decree unless (1) criminal proceedings are promptly brought or (2) Congress has suspended the writ of habeas corpus…otherwise the suspension provision would be a sham. Thomas (diss.)—G acting within the scope of its powers. No need to second guess. Habeas corpus challenge should fail. No need to remand. Souter (diss./conc.)
—“the defining character of Americ. C. G. is its constant tension between security and liberty, serving up both by partial helpings of each. In a G of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or in war is not well entrusted to the E B of G. For reasons of inescapable human nature, the branch of G asked to counter a serious threat is not the branch on which the N entire reliance in striking the balance between the will to win and the cost to liberty on the way to victory the responsibility for security will naturally amplify the claim that security leg. raises. A reasonable balance is morel likely to be reached in a different bran ch…hence the need for Cgn’l assessment. Hamdi’s detention is forbidden.
American Trucking v.
EPA (Scalia, 2001)
—statute contained sufficient intelligible principle to sustain rulemaking author. of EPA. Thomas (conc.)—although statute falls within jurisprudence C’l text grants all leg. auth. to congress. No one asked us to look at the text, so follow precedent. Stevens (conc.) —the proper characterization of power should generally depend on the power and not the person exercising it.
Rulemaking v. legislation distinction is worthless. INS v. Chada (Burger, 1983)
—One house veto; the fact that a given law or procedure is efficient, convenient, and useful in facilitation functions of government, standing alone, will not save it if it is contrary to the C. Explicit and unambiguous provisions of the C prescribe and define functions of the C and the E. in the leg. process. Bicameralism and presentment. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked
…The choices we discern as having been made in the C’l conv. Impose burdens on
G’l process that often seem clumsy, inefficient, and even unworkable, but those hard choices were made consciously by men who had lived under a form of G that permitted arbitrary G’l actions to go unchecked…we have not yet found a better way to preserve freedom than by making the exercise of power subject to carefully crafted R spelled out in the C. Powell (conc.)—decide on narrow grounds; congress may not act as the judiciary and therefore act violates sep. of powers…exercise of unchecked power. White (diss.)—should have decided on narrow grounds; far reaching consequences of majority decision. Hobson choice of not delegating and being faced with endless decisions. Leg. veto response to sprawling G. The C does not directly authorize or prohibit
…we should not find the lack of specific C auth…surprising and I would not infer disapproval if the mech. from its absence. The C does not contemplate the total sep. of powers. Today’s decision strikes down in one fell swoop provisions in more laws enacted by congress than the court has invalidated in history. I fear I will now be more difficult… Clinton v. NY (Stevens, 1998) —line item veto act violates Art. 1 §7 impermissibly disrupting the balance of powers; procedures not authorized by the C; allows the P to create a different law. Kennedy (conc.)
—A nation can not plunder its own treasury without putting its C and its survival in peril. Concentration of power in the hands of a single branch of G is a threat to liberty. Scalia (conc./diss.) —there is not a dime’s worth of difference between Congress’s authorizing the P to cancel a spending item, and Congress’s authorizing money to be spent at the P’s discretion. The act could have authorized the P to decline to spend and be constitutional…presentment primarily a doctrine of technicalities. Breyer (diss.)
—congress cannot divide the bills into thousands of separte bills to be signed separately. P not actually repealing or amending any law. Act does not violate sep of powers.
Congressional Control Over executive Officers
Buckley v. Valeo (PC, 1976)
—composition of Fed. Elec. Comm. Determined by speaker of the house and Pres. Pro tem. Of senate in violation of appointments clause.
Bowsher v. Synar (Burger,
1968)
—Congress can not appoint executive officers. Reservation of the power to remove him a violation of sep. of powers. White (diss)—too formalistic and unrealistic; type of power executive, but nature is legislative; removal is not at will of congress, necessary. Meyers v. United States (Taft, 1926) —unitary executive theory; P should select those who will aid him in the execution of the laws.
Humphrey’s Executor (Sutherland, 1935) —congress may limit executive power of removal; Meyers stands only for the removal of purely executive officers.
Weiner v. US (1958)
—as to officers who are not purely executive, removal power exists if congress has conferred it. Morrison v. Olsen (Rehn, 1988)
—independent counsel provisions; our present considered view is that the determination of whether….The analysis contained in our removal cases is designed to…the real question is whether the removal restrictions are of such nature that they can impede the P’s abil. To perform his C’l duty…independent counsel has executive function. Good cause limit is not impermissible. Scalia (diss.)—the fact that the powers are wholly exec. should be enough to invalidate the provisions. Wolf comes as a wolf. The potential of the asserted principle to effect important cha nge in the equilibrium of power is not immediately evident…unitary executive not only reason…need to preserve indiv. f reedom. Primary check against prosecutorial misconduct should be political. “The ad hoc C’l adjudication has a real attraction even apart from its work saving potential. It is guaranteed to produce a result in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely on the judgment of wise men who constructed our system…” Mistretta v. US (Blackmun, 1989) —sentencing commission removal for good cause; framers did not intend that all branches of G be totally separate. It is this concern of encroachment and aggrandizement that has animated our separation of powers jurisprudence and aroused our vigilance against hydraulic pressure inherent within each of the branches to exceed the outer limits of its power...diffusion of power among branches. Scalia (diss.)
—“I can find no place without our c’l system for an agency created by Congress to exercise no G’l power other than making of laws…Today’s decision may aptly be described as the Hump. Exec. of the judic. Branch and I think we will live to regret it. Rejects case by case analysis of sep of powers.
United States v. Nixon (Burger, 1974)
—balancing test: general interest of the president in confidentiality is outweighed by the specific interest of a criminal prosecution. P must have a specific need for confidentiality. Nixon v. Fitzgerald (Powell, 1982, 5/4)
—whistleblower case: President has absolute rather than qualified immunity from civil damages for his official acts absent explicit affirmative action by Congress. Don’t want the P to be unduly cautious; P must concern himself with matters likely to arouse emotions. C’l remedy is impeachment. White (diss.)—places the president above the law “The king can do no wrong.” The scope of immunity should be determined by the function not the office. Harlow v. Fitzgerald—immunity does not extend to Sr. Aides.
Clinton v. Jones (Stevens, 1997)
—never suggested that P’l immunity extends past actions taken in official capacity. P claims that his office demands his unitary attention. (Jackson, Youngstown—presidency concentrates exec. Auth. in single head whose choice the whole N has a part, making him the focus of public hopes and expectations. Sep of powers does not bar every exercise of jurisd. over the P. Hx indicates unlikely that many suits will be brought (harassment litig.) Fed. Dist. Ct. has jurisdic. Breyer (conc.)
—should be able to postpone trial until P out of office if trial will interfere with discharge of public duties.
Nixon v.
Administrator of Gen Svcs (Brennan, 1974)
—screening and returning of personal materials to Nixon; the touchstone for determining whether SOP principles have been violated is whether one branches actions vis-
à-vis another constituted undue disruption. Burger (diss)—congressional coercion; sweeping modification of C’l and historical Exec. confidentiality.
Limits on Judicial Power
Political questions
—(1) textually demonstrable commitment to coordinate polit. department, (2) lack of judicially manageable standards for resolving an issue and (3) too controversial or would produce enforcement problems or institutional difficulties —respect for coord. Branches, potential embarrass., policy. Colgrove v. Green (Frankfurter, 1946) —Ill. redistricting scheme; courts ought not enter the political thicket. Baker v. Carr (Brennan, 1962 )
—Tennessee electoral redistricting conflict; the mere fact that the suit seeks protection of a political right does not mean that it is a nonjusticable polit. quest.
Even though appellants may not be heard under Art. IV §4 guarantee clause, they may still be heard under equal protection. Frankfurter (diss.)—apportionment questions do not lend themselves to judicial analysis…forces of partisan politics…overwhelmingly party or intraparty contests. Reynolds v. Simms (Warren, 1964) —One person, one vote is sufficiently judicially manageable standard.
Powell v. McCormack (Warren, 1969)
— qualifications for house membership not a political question; textual commitment to House in C are basic, not total considerations. our system of G requires that fed. Cts. In occa sion interpret the C in a manner at variance with the construction given the document by another branch…conflict can not justify the Ct avoiding C’l repsonibl.
Goldwater v. Carter (Rehn, pl. 1979) —unilat. Exec. Treaty termination; C silent as to the issue; branches should work it out. Powell (conc)—issue lacked ripeness. Brennan (diss)—would have decided on the merits that unilat. term. was okay. Nixon v. US (Rehn, 1993)
—can the senate set procedures for trying impeachments? Judicial review of impeachments improper b/c impeachment is the sole check on judicial power. No relief available anyway. Stevens (Conc.) —C granted impeachment pwr to leg. Can’t second guess. White (conc)—the majority’s conclusion that try is incapable of meaningful judicial…Souter (conc.)— judicial review may be appropriate where the senate’s action is far beyond reasonable.
Doctrine of Strict Necessity/Standing : Rescue Army v. Municipal Ct. of LA (1947). Standing: Actual or threatened injury as a result of the conduct of the defendant and that injury is likely to be redressed by favorable decision. Prudential: no third party standing, no airing of general grievances, zone of interested dictated by statute or C. Warth v. Seldin (Powell, 1975) —It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and exercise of the court’s remedial powers. Brennan diss.—case can only be explained by hostility on the merits. The Ct. wanted them to prove their case before trial. Lujan v. Defenders of Wildlife (Scalia, 1992)
—injury in fact must be concrete and particularized and actual and imminent. Craig v. Boren—bar owners; Allen v. Wright—tax exempt status in segre. schools.
Ex Parte
McCardle (Chase, 1869) —congress has power to repeal jurisd. that it has granted. we are not at liberty to inquire into the motives of the legislature, we can only examine into its power under the C.
The tenth Amendment
—two approaches: (1) reminder that congress may only legislate under the C, so any act is valid if under Art. 1 and (2) protects states from fed. intrusion. Framers ideal too simplistic in a modern national economy. States as laboratories for politics. States susceptible to corruption like Fed. G. Should state sovereignty be politically or judicially checked? Disting. State/private.
Non-delegation doctrine
—not enforced in 60 years. Legislative veto—should sep of powers lie in framers intent or the function in modern society? Does it make sense for Cong. To delegate leg. power to exec, but not delegate exec power to leg.? Impeachment —political question: balance the extent of the harm with the harm caused by the impeachment. Precedents not binding. Eijudsem generic: treason and bribery are the kinds of crimes meant; structural argument: separation of houses means no rules made in advance; prudential/pragmatic arguments: how does impeachment affect the political and world climate & how much was known about the P’s character before elected; means whatever congress wants it to mean; don’t want the P at the mercy of “no confidence” voting; legal norms might be part of the process even without judicial review. Ex post-facto: may congress impeach on grounds not reasonably foreseeable by people of good will? What if he transgresses a basic moral law not illegal?