CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 12: More on Congressional Powers: The Dormant
Commerce Clause
I.
Central Themes
II.
Basis for the Dormant Commerce Clause (“DCC”): Textual?
III.
Contrast: Preemption and Dormant Commerce Clause
IV.
Relationship of DCC to other constitutional provisions that we
will study later in the course (Privileges and Immunities Clause
in Article IV, Equal Protection Clause of the XIV Amendment)
V.
Should there be a DCC? Arguments pro (e.g. Justice Jackson)
and con (e.g. Justices Scalia and Thomas)
VI.
Historical Approach to the DCC
i.
Gibbons v. Ogden (1824) “commerce”-“police power”
distinction
ii.
Early Taney Court – deep divisions on the DCC
iii. Cooley v. Board of Wardens (1851) (CB p. 251)
“national”-“local” distinction
iv.
Di Santo v. Pennsylvania (1927) (CB p. 255) “direct”“indirect” distinction
VII. Modern Approach to the DCC
i.
State laws that facially or overtly discriminate against
out-of-state interests: prima facie presumption of
invalidity
1. West Lynn Creamery v. Healy (1994) (CB p. 264)
2. General Motors v. Tracy (1997) (CB p. 266)
3. Camps Newfound/Owatonna, Inc. v. Town of
Harrison (1997) (CB p. 266)
4. Home processing cases (CB p. 268)
ii.
State laws that are not facially or overtly discriminatory
but are protectionist in purpose or effect
1
iii.
iv.
1. Exxon Corp. v. Governor of Maryland (1978) (CB p.
303)
2. Minnesota v. Clover Leaf Creamery (1981) (CB p.
304)
Nondiscriminatory state laws
1. Balancing Approach: Pike v. Bruce Church, Inc.
(1970) (CB p. 286)
2. South Carolina State Highway Department v.
Barnwell Bros. (1938) (CB p. 288)
3. Southern Pacific Co. v. Arizona (1945) (CB p. 289)
4. Bibb v. Navajo Freight Lines (1959) (CB p. 293)
5. Edgar v. MITE Corp. (1982) (CB p. 306)
6. CTS Corp. v. Dynamics Corp. of America (1987) (CB
p. 306)
The Market Participation Exception
1. Hughes v. Alexandria Scrap Corp. (1976) (CB p. 312)
2. Reeves, Inc. v. Stake (1980) (CB p. 312)
3. White v. Massachusetts Council of Construction
Employers, Inc. (1983) (CB p. 312)
4. South-Central Timber Development, Inc. v. Wunnicke
(1984) (CB p. 311)
5. Should there be a Market Participation Exception?
CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 13: More on Congressional Powers: Limits on State
and Local Regulation - The Dormant Commerce Clause cont’d, The
Privileges and Immunities Clause, Preemption, Intergovernmental
Immunities
VIII. Central Themes: Limits on state power
i.
Where Congress has acted by enacting legislation and
legislation preempts state/local laws (Preemption)
ii.
Where Congress has not acted or federal law does not
preempt state laws – (Dormant Commerce Clause,
Privileges AND Immunities Clause (Art. IV § 2), Equal
Protection Clause of Amendment XIV)
2
IX.
Modern Approach to the DCC (we finished some of this on
Friday, Feb. 2)
i.
State laws that facially or overtly discriminate against
out-of-state interests: prima facie presumption of
invalidity
1. West Lynn Creamery v. Healy (1994) (CB p. 264)
2. General Motors v. Tracy (1997) (CB p. 266)
3. Camps Newfound/Owatonna, Inc. v. Town of
Harrison (1997) (CB p. 266)
4. Home processing cases (CB p. 268)
ii.
State laws that are not facially or overtly discriminatory
but are protectionist in purpose or effect
1. Exxon Corp. v. Governor of Maryland (1978) (CB p.
303)
2. Minnesota v. Clover Leaf Creamery (1981) (CB p.
304)
iii. Nondiscriminatory state laws
1. Balancing Approach: Pike v. Bruce Church, Inc.
(1970) (CB p. 286)
2. South Carolina State Highway Department v.
Barnwell Bros. (1938) (CB p. 288)
3. Southern Pacific Co. v. Arizona (1945) (CB p. 289)
4. Bibb v. Navajo Freight Lines (1959) (CB p. 293)
5. Edgar v. MITE Corp. (1982) (CB p. 306)
6. CTS Corp. v. Dynamics Corp. of America (1987) (CB
p. 306)
iv.
The Market Participation Exception
1. Hughes v. Alexandria Scrap Corp. (1976) (CB p. 312)
2. Reeves, Inc. v. Stake (1980) (CB p. 312)
3. White v. Massachusetts Council of Construction
Employers, Inc. (1983) (CB p. 312)
4. South-Central Timber Development, Inc. v. Wunnicke
(1984) (CB p. 311)
5. Should there be a Market Participation Exception?
X.
Privileges and Immunities Clause (“P & I Clause”)
i.
Text: Article IV §: “The Citizens of each State shall be
entitled to all Privileges and Immunities of Citizens in the
several States.”
3
ii.
iii.
iv.
Don’t confuse with Privileges OR Immunities Clause in
Amendment XIV: “No state shall make or enforce any
law which shall abridge the privileges or immunities of
citizens of the United States”
Contrast with Dormant Commerce Clause
a. P & I Clause can only be used if there is
discrimination against out-of-staters
b. P & I Clause is limited to citizens of the United
States – inapplicable to corporations (Paul v.
Virginia (1869) (CB p. 316) or aliens.
c. Congressional approval and market
participation exceptions do not apply to P & I
Clause
Test for Violation of P & I Clause
a. Has a state discriminated against out-of-staters
with regard to “privileges and immunities” and
is there no substantial reason for the differences
in treatment and the discrimination between instaters and out-of-staters bears a substantial
relationship to the State’s objective?
b. What are Privileges and Immunities? No clear
definition, but they are only “fundamental
rights” not all commercial activity. Corfield v.
Coryell (1823) (did not include clams in state
waters) Privileges and Immunities can be
i.
ii.
Constitutional Rights (e.g., right of access to
courts, access to medical treatment)
Important Economic Activities
 United Building & Construction Trades Council v.
Mayor and Council of Camden (1984) (CB p. 317)
(compare with White v. Massachusetts Council of
Construction Employers, Inc. (1983) (CB p. 312)),
 Supreme Court of New Hampshire v. Piper (1985)
(CB p. 323)
 but not, e.g. recreational elk-hunting, see Baldwin
v. Montana Finsh and Game Comm’n (1978) (CB
p. 319 n. 4)
4
v.
When is discrimination “substantially related” to a
“substantial state interest”?
 Supreme Court of New Hampshire v. Piper
(1985)
XI.
Preemption
i.
Supremacy Clause in Article VI: This Constitution, and
the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall
be made, under the Authority of the United States, shall be
the supreme Law of the Land . . .
ii.
Explicit Preemption
iii. Implied Preemption
a. Field Preemption, Rice v. Santa Fe
Elevator Corp. (1947) (CB p. 329),
immigration (Hines v. Davidowitz (1941)
(CB p. 329), foreign policy (Crosby v.
National Foreign Trade Council (2000)
(CB p. 331)
b. Conflict Preemption, e.g. Florida Lime &
Avocado Growers, Inc. v. Paul (1963) (CB
p. 330), Gade v. National Solid Wastes
Management (1992) (CB p. 330)
c. State Laws that Impede Achievement of
Federal Objectives, e.g. Pacific Gas &
Electric v. State Energy Rseources (1983)
(CB p. 324) compare with Gade, supra
XII. Consent: Congress can approve state laws burdening commerce
even if they would otherwise violate the DCC
 Wilson Act - Wilkerson v. Rahrer (1891) (CB p.
334)
 McCarran Act – Prudential Insurance Co. v.
Benjamin (1946) (CB p. 335)
 Northeast Bancorp v. Board of Governors (1985)
(CB p. 337)
5
 Exception: if there is a violation of another
constitutional provision, like equal protection
clause or privileges and immunities clause: E.g.
Metropolitan Life Insurance Co. v. Ward (1985)
(CB p. 337)
XIII. Intergovernmental Immunities: Really, a distinct type of
preemption arising when a state attempts to tax or regulate the
federal government. Generally barred because inconsistent
with Surpremacy Clause
i. McCulloch v. Maryland (1824) (principle first expressed)
ii. When are State Taxes of Federal Activities Allowed?
 Well settled that State and local taxes cannot be
applied to federal property without express
Congressional authorization Massachusetts v.
United States (1978) (CB p. 340)
 States can apply income tax to federal employees
and federal government can tax state employees as
long as the government is not taxed E.g. Graves v.
New York (1939), Helvering v. Gerhardt (1938) (CB
p. 339)
 Scope of immunity usually based on congressional
statements recognizing or waiving immunity
iii. When is State Regulation of Federal Activities Allowed?
Only if state law is neutral and does not interfere with
operation of federal government, e.g. Johnson v.
Maryland (1920) (CB p. 341)
CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 14: More on Limits on State and Local Regulation Preemption, Intergovernmental Immunities
XIV. Central Themes: Limits on state power
i.
Where Congress has acted by enacting legislation and
legislation preempts state/local laws (Preemption)
ii.
Where Congress has not acted or federal law does not
preempt state laws – (Dormant Commerce Clause,
Privileges AND Immunities Clause (Art. IV § 2), Equal
6
Protection Clause of Amendment XIV)
XV. Consent: Congress can approve state laws burdening commerce
even if they would otherwise violate the DCC
 Wilson Act - Wilkerson v. Rahrer (1891) (CB p.
334)
 Webb-Kenyon Act – Clark Distilling Co. v.
Western Maryland (CB p. 334)
 McCarran Act – Prudential Insurance Co. v.
Benjamin (1946) (CB p. 335);
 Northeast Bancorp v. Board of Governors (1985)
(CB p. 337)
 Exception: if there is a violation of another
constitutional provision, like equal protection
clause or privileges and immunities clause: E.g.
Metropolitan Life Insurance Co. v. Ward (1985)
(CB p. 337)
XVI. Preemption
i.
Supremacy Clause in Article VI: This Constitution, and
the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall
be made, under the Authority of the United States, shall be
the supreme Law of the Land . . .
ii.
Explicit Preemption
iii. Implied Preemption
d. Field Preemption, Rice v. Santa Fe
Elevator Corp. (1947) (CB p. 329),
immigration (Hines v. Davidowitz (1941)
(CB p. 329), foreign policy (Crosby v.
National Foreign Trade Council (2000)
(CB p. 331)
e. Conflict Preemption, e.g. Florida Lime &
Avocado Growers, Inc. v. Paul (1963) (CB
p. 330), Gade v. National Solid Wastes
Management (1992) (CB p. 330)
7
f. State Laws that Impede Achievement of
Federal Objectives, e.g. Pacific Gas &
Electric v. State Energy Rseources (1983)
(CB p. 324) compare with Gade, supra
XVII. Intergovernmental Immunities: Really, a distinct type of
preemption arising when a state attempts to tax or regulate the
federal government. Generally barred because inconsistent
with Surpremacy Clause
iv. McCulloch v. Maryland (1824) (principle first expressed)
v. When are State Taxes of Federal Activities Allowed?
 Well settled that State and local taxes cannot be
applied to federal property without express
Congressional authorization Massachusetts v.
United States (1978) (CB p. 340)
 States can apply income tax to federal employees
and federal government can tax state employees as
long as the government is not taxed E.g. Graves v.
New York (1939), Helvering v. Gerhardt (1938) (CB
p. 339)
 Scope of immunity usually based on congressional
statements recognizing or waiving immunity
vi. When is State Regulation of Federal Activities Allowed?
Only if state law is neutral and does not interfere with
operation of federal government, e.g. Johnson v.
Maryland (1920) (CB p. 341)
XVIII. Central Theme: Scope of Executive Powers – What is the
scope of the power of the executive branch in the U.S.
constitutional system?
XIX. Scope of Executive Powers: Inherent Powers?
i.
Text Compare Art. II § 1 cl. 1: “The executive Power
shall be vested in a President of the United States of
America” with Art. I § 1: “All legislative Powers herein
granted shall be vested in a Congress of the United States .
. .”
ii.
To what extent, if at all, does the President have inherent
powers beyond those specified in Article II? (See
8
iii.
Youngstown Sheet & Tube Co. v. Sawyer “The Steel
Seizure Case” (1952) (CB p. 344))
Possible answers to the question in (ii) above:
1. There is no inherent presidential power; the president
may act only if there is express or implied constitutional or
statutory authority;
2) The president has inherent authority to act unless the
president interferes with the functioning of another branch
of government or usurps the powers of another branch
(interstitial executive power);
3) The president may exercise inherent powers not
mentioned in the Constitution so long as he does not violate
the Constitution or a federal statute, or if the act is in
keeping with a long course of historical practice;
4) The president has inherent authority, at least in some
areas, and can act unless such conduct violates the
Constitution.
iv. Which of these possibilities, if any, were endorsed by the
following justices in their opinions in The Steel Seizure
Case?
 Justice Black (majority opinion)
 Justice Frankfurter (concurrence)
 Justice Jackson (concurrence)
 Justice Douglas (concurrence (see n. 3 at CB p. 350)
 Justice Vinson (dissent, joined by Justices Reed and
Minton)
v.
Does the President have greater policy-making powers in
the realm of external affairs than domestic affairs?
 Power to enter into executive agreements that are
supreme over conflicting state laws? E.g., United States
v. Belmont (1937) (CB p. 354), Dames & Moore v. Regan
(1981) (CB p. 355)
9
CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 15: Executive Power
XX. Central Themes: Limits on state power
i.
Where Congress has acted by enacting legislation and
legislation preempts state/local laws (Preemption)
ii.
Where Congress has not acted or federal law does not
preempt state laws – (Dormant Commerce Clause,
Privileges AND Immunities Clause (Art. IV § 2), Equal
Protection Clause of Amendment XIV)
XXI. Scope of Executive Powers: Inherent Powers?
i.
Text Compare Art. II § 1 cl. 1: “The executive Power
shall be vested in a President of the United States of
America” with Art. I § 1: “All legislative Powers herein
granted shall be vested in a Congress of the United States .
. .”
ii.
To what extent, if at all, does the President have inherent
powers beyond those specified in Article II? (See
Youngstown Sheet & Tube Co. v. Sawyer “The Steel
Seizure Case” (1952) (CB p. 344))
iii. Possible answers to the question in (ii) above:
1. There is no inherent presidential power; the president
may act only if there is express or implied constitutional or
statutory authority;
2) The president has inherent authority to act unless the
president interferes with the functioning of another branch
of government or usurps the powers of another branch
(interstitial executive power);
3) The president may exercise inherent powers not
mentioned in the Constitution so long as he does not violate
10
the Constitution or a federal statute, or if the act is in
keeping with a long course of historical practice;
4) The president has inherent authority, at least in some
areas, and can act unless such conduct violates the
Constitution.
iv. Which of these possibilities, if any, were endorsed by the
following justices in their opinions in The Steel Seizure
Case?
 Justice Black (majority opinion)
 Justice Frankfurter (concurrence)
 Justice Jackson (concurrence)
 Justice Douglas (concurrence (see n. 3 at CB p. 350)
 Justice Vinson (dissent, joined by Justices Reed and
Minton)
v.
Does the President have greater policy-making powers in
the realm of external affairs than domestic affairs?
 Power to enter into executive agreements that are
supreme over conflicting state laws? E.g., United States
v. Belmont (1937) (CB p. 354), Dames & Moore v. Regan
(1981) (CB p. 355)
XXII. War Powers – Shared between Legislative and Executive
i.
Text:
Art. I § 8 cl. 11 Congress has the power to “declare war”
Art. I § 8 cl. 12 and to “raise and support armies”
Art. I § 8 cl. 13 and to “provide and maintain a navy”
Art. II § 2 “The President shall be commander in chief of the
Army and Navy of the United States”
ii.
Debate over judicial role in judicially reviewing legality
of executive decisions to lead the nation into hostilities should political question doctrine apply to bar judicial
review?
11
iii.
iv.
Debate over legislative role restricting presidential war
powers: War Powers Resolution of 1973 (a statute
enacted over the veto of President Nixon)
Domestic regulation via war power (e.g. Woods v. Cloyd
W. Miller, Co. (1948) (CB p. 236)
XXIII. Executive Powers During Periods of Crisis
i.
Unlike many other constitutions (e.g. India, South
Africa), the U.S. Constitution has no specific “state of
emergency” provisions. Debate over whether they
would be desirable, as well as over whether
Constitution’s protection of civil liberties should be the
same in times of peace and times of emergency.
ii.
Text:
 Art. I § 8 cl 15 “The Congress shall have the Power . . . To
provide for calling for the Militia to execute the Laws of
the Union, suppress insurrections, and repel Invasions.
 Art. I § 9 cl. 2 “The privilege of the Writ of Habeas
Corpus shall not be suspended unless when in cases of
Rebellion or Invasion the public safety may require it.”
 Art. I § 10 cl. 3 “No State shall, without the Consent of
Congress, lay any Duty of Tonnage, keep troops or Ships
of War in time of Peace, enter into any Agreement or
Compact with another State or with a foreign Power, or
engage in War, unless actually invaded, or in such
imminent Danger as will not admit of delay.”
 Art. II § 2 cl. 1 President shall be Comander in Chief
“of the militias of the several states, when called into the
actual service of the United States.”
 Art. IV § 4: “The Congress . . . shall protect each of [the
states] against Invasion; and on Application of the
Legislature, or of the Executive [when the Legislature
cannot be convened) against domestic violence.”
 Third Amendment: prohibits soldiers from being
quartered in homes without consent of owners in
peacetime “nor in time of war, but in a manner to be
prescribed by law.”
 Fifth Amendment: “No person shall be held to answer for
capital, or otherwise infamous crime, unless on a
12
presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Mlitia, when
in actual service in time of War or public danger”
XXIV. Executive Discretion over Detention and Trial During
Wartime
i.
President Lincoln’s 1861 suspension of the writ of habeas
corpus w/o congressional authority. Rebuked by Justice
Taney in Ex parte Merryman (1861) (CB p. 365)
ii.
Lincoln’s indefinite suspension of the writ in 1862,
ratified by Congrses in 1863.
iii. Ex parte Milligan (1866) (CB p. 365)
iv.
Ex parte Quirin (1942) (CB p. 367)
v.
Rasul v. Bush (2004) (CB p. 371)
vi.
Hamdi v. Rumsfeld (2004) (CB p. 373)
vii. Hamdan v. Rumsfeld (2006) (supplement)
viii. Reaction to Hamdan : Military Commissions Act
CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 16: Executive Power and Limits on Executive Power
XXV. Central Themes: Executive Powers and Limits on Executive
Powers – formalist vs. functionalist intepretation
XXVI. Executive Powers During Periods of Crisis – Cont’d from
last class
i.
Unlike many other constitutions (e.g. India, South
Africa), the U.S. Constitution has no specific “state of
emergency” provisions. Debate over whether they
would be desirable, as well as over whether
Constitution’s protection of civil liberties should be the
same in times of peace and times of emergency.
ii.
Text:
 Art. I § 8 cl 15 “The Congress shall have the Power . . . To
provide for calling for the Militia to execute the Laws of
the Union, suppress insurrections, and repel Invasions.
13
 Art. I § 9 cl. 2 “The privilege of the Writ of Habeas
Corpus shall not be suspended unless when in cases of
Rebellion or Invasion the public safety may require it.”
 Art. I § 10 cl. 3 “No State shall, without the Consent of
Congress, lay any Duty of Tonnage, keep troops or Ships
of War in time of Peace, enter into any Agreement or
Compact with another State or with a foreign Power, or
engage in War, unless actually invaded, or in such
imminent Danger as will not admit of delay.”
 Art. II § 2 cl. 1 President shall be Comander in Chief
“of the militias of the several states, when called into the
actual service of the United States.”
 Art. IV § 4: “The Congress . . . shall protect each of [the
states] against Invasion; and on Application of the
Legislature, or of the Executive [when the Legislature
cannot be convened) against domestic violence.”
 Third Amendment: prohibits soldiers from being
quartered in homes without consent of owners in
peacetime “nor in time of war, but in a manner to be
prescribed by law.”
 Fifth Amendment: “No person shall be held to answer for
capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Mlitia, when
in actual service in time of War or public danger”
XXVII. Executive Discretion over Detention and Trial During
Wartime
i.
President Lincoln’s 1861 suspension of the writ of habeas
corpus w/o congressional authority. Rebuked by Justice
Taney in Ex parte Merryman (1861) (CB p. 365)
ii.
Lincoln’s indefinite suspension of the writ in 1862,
ratified by Congress in 1863.
iii. Ex parte Milligan (1866) (CB p. 365)
iv.
Ex parte Quirin (1942) (CB p. 367)
v.
Rasul v. Bush (2004) (CB p. 371)
vi.
Hamdi v. Rumsfeld (2004) (CB p. 373)
vii. Hamdan v. Rumsfeld (2006) (supplement)
viii. Reaction to Hamdan : Military Commissions Act
14
XXVIII. Limits on Executive (and Legislative Power)
i.
Nondelegation Doctrine: What is it? Constitutional
basis?
i. When has the Court struck down legislation or
regulations on the basis of the non-delegation doctrine?
a. Panama Refining Co. v. Ryan (1935) (the “Hot
Oil Case”) (CB p. 386)
b. Schechter Poultry Corp. v. United States (1935)
the “Sick Chicken Case” – see Class 7
Commerce Clause I) (CB p. 386)
ii. Current status of the nondelegation doctrine in our
modern Adminstrative State – delegation permissible “[s]o
long as Congress ‘lay[s] down by legislative act an intelligible
principle to which the person or body authorized to [act] is
directed to conform” (Touby v. United States (1991) (CB p.
385). See also Loving v. United States (1996) CB p. 386)).
iii. Nondelegation doctrine especially toothless with regard
to foreign affairs. United States v. Curtiss-Wright Export
Corp. (1936) (CB p. 386)
ii.
Legislative Veto: Developed in the 1930s
i. Could be unicameral or bicameral.
ii. Very common: hundreds of laws contained legislative
vetoes.
iii. Is a legislative veto constitutional? INS v. Chadha (1983)
(CB p. 387)(compare formalist and functionalist approach
of majority and dissent)
iv.
Relevant constitutional text requiring presentment
and bicameralism: Art. I § 1 All legislative Powers
herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and a
House of Representatives; Art. I § 7 cl. 2 (Every Bill
which shall have passed the House of Representatives
and Senate, shall, before it become a Law, be presented
to the President of the United States.”; Art. I § 7 cl. 3
(Every Order, Resolution, or Vote to which the
Concurrence of the Seante and House of
Representatives may be necessary . . shall be presented
to the President of the United States.”
iii. Can Congress expand Presidential powers beyond those
in the Constitution?
15
i. Clinton v. City of New York (1998) (CB p. 396)(compare
formalist and functionalist approach of majority and
dissent)
ii. See also Legislative Line-Item Veto Act of 2006 (passed
House of Representatives, killed in Senate)
V. Appointment and Removal Power
A. Constitutional Text: Art. II § 2 cl. 2 provides that the
President “shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint [Ambassadors], Judges of the Supreme Court, and
all other Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law: but the
Congress may by Law vest the Appointment of such inferior Officers, as
they think proper, in the President alone, in the Courts of Law, or in the
Heads of Departments.” Is there any provision governing removal of
executive officers?
B. Appointment Power
i. Can Congress appoint executive officers? Buckley v.
Valeo (1976) (CB p. 403)
ii. Who is an “inferior officer” Morrison v. Olson (1988) (CB
p. 410)
C. Removal Power
i. Can Congress give itself the power of removal? Bowsher v.
Synar (1986) (CB p. 404)
ii. Can Congress place limits on the President’s power of
removal? Myers v. United States (1926) (CB p. 409);
Humphrey’s Executor v. United States (1935); Wiener v.
United States (1958) (CB p. 409, Morrison v. Olson (1988)
CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 17: Executive Power and Limits on Executive Power
16
XXIX. Central Themes: Executive Powers and Limits on Executive
Powers – formalist vs. functionalist interpretation
XXX. Executive Privilege
i.
ii.
iii.
iv.
v.
What secrecy does executive privilege protect?
Does the Constitution mention executive privilege?
Constitutionality and scope of executive privilege: United
States v. Nixon (1974) (CB p. 420)- is there executive
privilege; is it absolute?
Congressional power to take custody of and screen
presidential papers: Nixon v. Administrator of General
Services (1977) (CB p. 435)
Cheney v. U.S. District Court for the District of Columbia
(2004): requests for information in a civil case;
distinguished United States v. Nixon
XXXI. Presidential Immunity to Criminal and Civil Suits
i.
Criminal Prosecutions
 Can a former president be criminally prosecuted?
 Can an impeached president be prosecuted after leaving
office?
 Can a sitting president be criminally prosecuted?
ii.
Civil Actions
 Can a president be sued for injunctive relief while in
office? Mississippi v. Johnson (1866)
 Can a president or ex-president be sued for money
damages for conduct during term in office? Nixon v.
Fitzgerald (1982)
 Can a president be sued for conduct prior to taking
office? Clinton v. Jones (1997)
iii. Do other executive officials have any immunity in
lawsuits for damages?
iv.
What about members of Congress? See Speech and
Debate Clause in Art. I § 6 barring them from being
“questioned in any other Place” for “any Speech or
Debate in either House.” And Hutchinson v. Proxmire
(1979) (CB p. 441)
17
XXXII. Impeachment Power
i.
Text:
 Article I § 2 cl. 5: “The House of Representatives . . . shall
have the sole Power of Impeachment”
 Article I § 3 cl. 6: “The Senate shall have the sole Power
to try all Impeachments”
 Article I § 3 cl. 7: “Judgment in Cases of Impeachment
shall not extend further than to removal from Office, and
disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment according to
Law.”
Article II § 4: “The President, Vice President and all civil
Officers of the United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or
other high Crimes and Misdemeanors.”
ii.
What are High Crimes and Misdemeanors? Is the
Supreme Court likely to determine this issue? Why or why
not?
iii. What procedures must be followed when there is an
impeachment and removal proceeding? Is the Supreme
Court likely to determine this issue? Why or why not?
Remember Nixon v. United States (1993) from Class 4.
iv.
Impeachments and Serious Efforts to Impeach
Presidents
i. Andrew Johnson
ii. Richard Nixon
iii. Bill Clinton
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Outline for Class 18: Protection of Civil Rights and Civil Liberties
I.
II.
III.
Central Themes: We have previously focused mainly on the
structure of American government and the allocation of power
between the branches of the federal government and between
the federal government and the states and among the states.
Now we are starting the second part of the course, which
focuses on individual liberties and civil rights. Of course,
these issues are related. The structure of government was set
up to safeguard individual rights. Separation of powers
concerns arise over the propriety of the judiciary striking
down legislative enactments. Federalism concerns arise over
the extent to which individual rights should be applied to state
governments.
Bill of Rights BOR ratified due to concerns by some states that
even though federal government was one of limited powers,
individual liberties and rights would not be adequately
protected.
Other textual provisions protecting rights include:
 Art I. § 9 “the privilege of the Writ of Habeas Corpsus shall
not be suspended, unless when in Cases of Rebellion or
Invasion, the public Safety may require it.” . . . “No Bill of
Attainder or ex post facto Law shall be passed.” [A bill of
attainder is a law that directs the punishment of a
particular person]
 Art. I § 10 “No State shall . . .pass any Bill of Attainder, ex
post factor Law, or law impairing the Obligatio of Contracts.”
 Art. III § 2 “[t]he trial of all Crimes, except in Cases of
Impeachment, shall be by jury; and such Trial shall be held in
the State where the said Crimes shall have been committed.” .
. . “Treason against the United States, shall consist only in
levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort. No person shall be convicted
of Treason unless on the Testimony of two Witnesses to the
same overt Act, or on Confession in open Court .”
 Art III § 3: the punishment prescribed by Congress for
Treason shall not include “Corruption of Blood, or
Forfeiture except during the Life of the Person attained.”
19
 Art. IV § 2: the “privileges and immunities clause” “The
Citizens of each States shall be entitled to all Privileges and
Immunities of Citizens in the several States.”
 Art. VI: “no religious Test shall ever be required as a
Qualification to any Office of Public Trust under the United
States.”
IV. Do the BOR apply to the States, or only to the federal
government? Early case, Barron v. Mayor & City Council of
Baltimore (1833) held that BOR applied only to federal
government, not state or local governments and thus restricted
only federal conduct (despite the wording of some provisons,
suich as the takings clause of Amendment V, that are not
limited to the federal government).
V.
After Barron, many were troubled that state and local
governments could violate constitutional rights.
VI. Privileges or Immunities Clause of XIV Amendment: No State
shall make or enforce any law whicih shall abridge the privileges
or immunities of citizens of the United States – could this be a
basis for applying the BOR to the States? The Slaughter-House
Cases (1872) (CB p. )
VII. Revival of the Privileges or Immunities Clause: Saenz v. Roe
(1999) (CB p. )
VIII. Incorporation of Bill of Rights into the Due Process Clause of
the XIV Amendment.
a. In early 20th C, Court found that due process clause of XIV
Amendment protected fundamental rights from state
infringement
b. Debate over which liberties are safeguarded: total
incorporationists (e.g. Justices Black and Douglas) (fear of too
much judicial discretion) vs. selective incorporationists (e.g.
Justice Cardozo and Justice Frankfurter; Justice Thomas (who
believes Establishment Clause of Amendment I should not
apply to state/local governments) (federalist arguments)
c. Current status of incorporation: which rights are
incorporated?
First Amendment’s establishment clause, free exercise clause,
protections of speech, press, assembly, petition
Fourth Amendment’s protection against unreasonable search and
seizure, requirement for warrant based on probable cause,
exclusionary rule
20
Fifth Amendment’s prohibition of double jeopardy, protection
against self-incrimination, requirement that government pay just
compensation when takes private property for public use
Sixth Amendment’s requirements for speedy and public trial by
impartial jury with notice of the charges, the chance to confront
adverse witnesses, and have compulsory process to obtain
favorable witnesses, and to have assistance of counsel if sentence
involves possible imprisonment
Eighth Amendment’s prohibition against excessive bail and cruel
and unusual punishment.
d. Which rights are not incorporated?
Second Amendment right to bear arms (lots of case law that not
incorporated; Court has held not incorporated in Presser v.
Illinois (1886))
Third Amendment right not to have soldiers quartered in a
person’s home (but if a case ever went to the Supreme Court, it
would likely find this right incorporated)
Fifth Amendment right to a grand jury indictment in criminal
cases (Supreme Court has held, in Hurtado v. California (1884),
that not incorporated)
Seventh Amendment’s right to jury trial in civil cases (Court
ruled not incorporated in Minneapolis & St. Louis R.R. Co. v.
Bombolis (1916))
Eighth Amendment’s prohibition of excessive fines (Court never
has ruled on this)
e. Remember that, since Barron v. Mayor & City Council of
Baltimore has not been overruled, a provision of the BOR can
only be applied to the states through the due process clause of
the XIV Amendment; the BOR does not apply directly to state
or local governments.
f. If a provision of the BOR applies to the states (through the due
process clause) is its content the same as when it applies to the
federal government?
CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 20: Incorporation and Substantive Due
Process
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IX.
Central Themes: Which rights in the BOR apply to the states?
(incorporation), substantive limits on government provided by
the Due Process Clause in V and XIV Amendments
X.
Other textual provisions protecting rights include:
 Art I. § 9 “the privilege of the Writ of Habeas Corpsus shall
not be suspended, unless when in Cases of Rebellion or
Invasion, the public Safety may require it.” . . . “No Bill of
Attainder or ex post facto Law shall be passed.” [A bill of
attainder is a law that directs the punishment of a
particular person]
 Art. I § 10 “No State shall . . .pass any Bill of Attainder, ex
post factor Law, or law impairing the Obligatio of Contracts.”
 Art. III § 2 “[t]he trial of all Crimes, except in Cases of
Impeachment, shall be by jury; and such Trial shall be held in
the State where the said Crimes shall have been committed.” .
. . “Treason against the United States, shall consist only in
levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort. No person shall be convicted
of Treason unless on the Testimony of two Witnesses to the
same overt Act, or on Confession in open Court .”
 Art III § 3: the punishment prescribed by Congress for
Treason shall not include “Corruption of Blood, or
Forfeiture except during the Life of the Person attained.”
 Art. IV § 2: the “privileges and immunities clause” “The
Citizens of each States shall be entitled to all Privileges and
Immunities of Citizens in the several States.”
 Art. VI: “no religious Test shall ever be required as a
Qualification to any Office of Public Trust under the United
States.”
XI. Incorporation of Bill of Rights into the Due Process Clause of
the XIV Amendment.
g. In early 20th C, Court found that due process clause of XIV
Amendment protected fundamental rights from state
infringement
h. Debate over which liberties are safeguarded: total
incorporationists (e.g. Justices Black and Douglas) (historical
arguments, fear that states will not adequately protect rights,
fear of too much judicial discretion) (see e.g. Black’s dissent in
Adamson v. California (1947) (CB p. 470) (joined by Douglas)
22
vs. selective incorporationists (e.g. Justice Cardozo (see Palko
v. Connecticut (1937) (CB p. 469) and Justice Frankfurter
(concurrence in Adamson) (CB p. 472); Justice Thomas (who
believes Establishment Clause of Amendment I should not
apply to state/local governments) (historical arguments,
federalist arguments, judicial discretion arguments)
i. Current status of total incorporation vs. selective incorporation
debate: who won? Duncan v. Louisiana (503) (CB p. 475)
(Sixth Amendment right to trial by jury)
j. Current status of incorporation: which rights are
incorporated?
First Amendment’s establishment clause, free exercise clause,
protections of speech, press, assembly, petition
Fourth Amendment’s protection against unreasonable search and
seizure, requirement for warrant based on probable cause,
exclusionary rule
Fifth Amendment’s prohibition of double jeopardy, protection
against self-incrimination, requirement that government pay just
compensation when takes private property for public use NOTE:
Palko was overruled in Benton v. Maryland (1969) (holding that
protection against double jeopardy is fundamental to the
American scheme of justice)
Sixth Amendment’s requirements for speedy and public trial by
impartial jury with notice of the charges, the chance to confront
adverse witnesses, and have compulsory process to obtain
favorable witnesses, and to have assistance of counsel if sentence
involves possible imprisonment
Eighth Amendment’s prohibition against excessive bail and cruel
and unusual punishment.
k. Which rights are not incorporated?
Second Amendment right to bear arms (lots of case law that not
incorporated; Court has held not incorporated in Presser v.
Illinois (1886))
Third Amendment right not to have soldiers quartered in a
person’s home (but if a case ever went to the Supreme Court, it
would likely find this right incorporated)
Fifth Amendment right to a grand jury indictment in criminal
cases (Supreme Court has held, in Hurtado v. California (1884),
that not incorporated)
23
Seventh Amendment’s right to jury trial in civil cases (Court
ruled not incorporated in Minneapolis & St. Louis R.R. Co. v.
Bombolis (1916))
Eighth Amendment’s prohibition of excessive fines (Court never
has ruled on this)
l. Remember that, since Barron v. Mayor & City Council of
Baltimore has not been overruled, a provision of the BOR can
only be applied to the states through the due process clause of
the XIV Amendment; the BOR does not apply directly to state
or local governments.
m. If a provision of the BOR applies to the states (through the due
process clause) is its content the same as when it applies to the
federal government? See, .e.g. Apodaca v. Oregon (1972) (CB
p. 482), Williams v. Florida (1970) (CB p. 481)
XII. Substantive Due Process
a. Text: V and XIV Amendments provide that neither the
United States nor state governments shall deprive any
person of “life, liberty or property without due process of
law.”
b. Procedural vs. Substantive Due Process: Hypo - A state law
provides that anyone suffering from AIDS shall be
incarcerated in a special state facility until he or she is
cured of the disease. The law provides that no one shall be
incarcerated until after there has first been a full judicial
determination that the person is suffering from AIDS. The
alleged victim is entitled to a trial type hearing with
appointed counsel and an adverse determination by the trial
court may be appealed as of right to the state supreme
court. Does this law deprive an AIDS victim of liberty
without due process of law?
c. 2 basic standards Court usually uses to decide whether a
law violates substantive due process: strict scrutiny (law
struck down unless it is shown to be the LEAST
BURDENSOME MEANS of achieving a COMPELLING
GOVERNMENTAL INTEREST) or rational basis (law will
be upheld if there is any legitimate goal that a rational
legislature might have thought the measure would further)
Note – in some cases, such as abortion, Court may employ a
variation of the strict scrutiny test.
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d. Economic vs. noneconomic due process and applicable
standard of review
e. Pre-Lochner era:
Ratification of XIV Amendment 1868
Slaughter-House Cases (CB p. 449) (narrow reading
of privileges and immunities clause; LA law did not
violate substantive due process)
iii. Cases moving toward e.g. Munn v. Illinois (1877)(CB
p. 490), Munger v. Kansas (1887) (CB p. 491)
iv.
Liberty of Contrast Allgeyer v. Louisiana (1897) CB
p. 491) (be careful not to confuse with Contracts
Clause in Art. I § 10)
f. Lochner era 1905 to mid 1930s
i. Lochner v. New York (1905) (CB p. 492) (Court
protected freedom of contract as a basic right
protected as liberty and property rights under the
due process clause of Amendment XIV; government
could only interfere with freedom of contract to
serve a valid police purpose (protect public safety,
public health, or public morals); judicial role was to
closely scrutinize legislation interfering with
freedom of contract to make sure it served a police
purpose)
ii.
Laissez-faire economics/Social Darwinism (Herbert
Spencer) were a great influence on justices in this
era (but see Holmes dissent in Lochner)
iii. During Lochner era hundreds of regulations struck
down (such as minimum wage regulations in Adkins
v. Childrens Hospital (1923) (CB p. 502); laws
protecting unionizing in Coppage v. Kansas (1915)
(CB p. 501), Adair v. United States (1908) (CB p.
502); laws restricting business entry (e.g. New States
Ice Co. v. Liebman (1932) (CB p. 502); price
regulation in private sector (distinguishing Munn v.
Illinois) (e.g. Williams v. standard Oil Co. (1929)
(invalidating law setting maximum price for
gasoline)
iv.
During Lochner era many regulations sustained (e.g.
maximum hours regulations in Muller v. Oregon
i.
ii.
25
(1908) (CB p. 500) (effect of Brandeis brief?),
Bunting v. Oregon (1917) (CB p. 501). Some thought
v.
What, if anything, was wrong with Lochner?
g. Post Lochner era
i. Nebbia v. New York (1934) (CB p. 503) (beginning of
the end)
ii.
West Coast Hotel v. Parrish (1937) (CB p. 505)
(overruled Adkins, abandoned principles of
Lochner)
iii. United States v. Carolene Products Co. (1938) (CB p.
506) - famous footnote 4: “There may be narrower
scope for operation of the presumption of
constitutionality when legislation appears on its face
to be within a specific prohibition of the Constitution,
such as those of the first ten amendments. . . . It is
unnecessary to consider now whether legislation
which restricts those political processes which can
ordinarily be expected to bring about repeal of
undesirable legislation, is to be subjected to more
exacting judicial scrutiny under the general
prohibitions of the Fourteenth Amendment. . . Nor
need we enquire . . whether prejudice against discrete
and insular minorities may be a special condition,
which tends seriously to curtail the operation of those
political processes ordinarily to be relied upon to
protect minorities, and which may call for a
correspondingly more searching judicial inquiry.”
iv.
Simultaneous overruling of limits placed on
Congress’s commerce power during Lochner era in
e.g. United States v. Darby (1941)
v.
Current basis of review of economic regulations that
are alleged to violate liberty of contract: rational
basis review, e.g. Williamson v. Lee Optical (1955)
(CB p. 509), Ferguson v. Skrupa (1963) (CB p. 511)
vi. Punitive damages: BMW of North America, Inc. v.
Gore (1996) (CB p. 512), Philip Morris USA v.
Williams case no. 05-1256 (decided Feb. 20, 2007)
(see handout)
vii. Retroactive Legislation Eastern Enterprises v. Apfel
(1998) (CB p. 512)
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