JUDICIAL REVIEW
Marbury v. Madison (1803)
Facts: Marbury sought mandamus to SCT under orig. jurisdiction est. by statute
Majority (1) Const. (Art. III) = absolute limit of fed. ct. jurisdiction (2) Judicial Review of Legislative Acts, binding on other branches b/c:
-SCT must say what the law is (i.e. decide which of two contrary laws operates)
-Checks and Balances requires Judicial Review (otherwise ct. would be bound by unconst. laws)
-SCT must enforce Const. over laws merely “made pursuant to Const” (otherwise Const. would be meaningless)
-SCT takes oath to uphold Const.
-SCT judicial power extends to all cases arising under Const.
-W/O judicial review SCT could not strike down ex post facto, ect.
(3) Judicial Review of Exec. Actions where indv. rights & therefore gov. duties exist
-No judicial review where Exec. has discretion (pol. process = only check)
Criticism
(1) Const. interpretation is flawed (SCT could have held that Art. III is a floor on orig. jur. not a ceiling)
Article VI Supremacy Clause: states that the const. is supreme not the SCT interpretation of the constitution. (2) Statutory interpretation is flawed (could have interpreted stat.
as granting app. jur.) (3) Weak assertions as to why SCT holdings are binding on other branches. (4) Counter-majoritarian Dilemma: Appointed judges invalidate laws
enacted by elected branches.
Counterarg: Constitution must protect minorities. SCT has no sword or purse.
Martin v. Hunter’s Lessee (1816) (holding that states must follow judicial review in the interest of uniformity (public policy))
Facts: VA ct. held that SCT had no power to review state ct. decision its law seizing Brit property. Contrary to US/Brit treaty
Majority
(1) Structure of Const. presumes SCT can review state ct. decisions
-Art. III does not preclude it: If not, and Congr. had not created lower cts. SCT could only hear a few cases in it orig. J (2) Supremacy Clause (3) Const. limits state actions (e.g.
ex post facto) (4) SCT review of state ct. decisions promotes uniformity (public policy) (5) As such SCT can review state supreme ct. decision if there is a national interest
Criticism: Federalism: state interests may not be fully taken into account
Cooper v. Aaron (1958) (AR says they do not have to adhere to Brown v. Board of Ed. SCT says yes you do)
Law of the Land: (1) Controversial: Court’s interpretation of the Const. is the supreme law of the land. Constitution = Supreme Court (2) Alternative: Court’s
rulings are an exercise of judicial power under the Constitution and the Supremacy Clause. Constitution > Supreme Court.
Limits on Judicial Power
Ex Parte McCardle (1868)
Facts: Congress repealed part of SCT app. review of writs of habeas corpus
Majority
1) App. J. conferred by Const. subject to exceptions/regulations from Congress. Exception Clause (Article III Sec. 2) “Such exceptions under such regulations as the Congress
shall make”
2) Repeal of a law affirming App J is a constitutional exception by Cong. SCT cannot examine congressional motives.
Criticism Structural => structure of Const. suggests SCT role is interpreting Const. and providing uniformity
Jurisdiction Stripping
(1) Broad approach: Congress can’t strip federal jurisdiction over constitutional claims (2) Middle ground: depends on the issue (3) Third approach: Congress has
plenary authority to do so b/c state courts are always of general jurisdiction *problem: no uniformity of laws
Baker v. Carr (1962) (holding that a voting district malapportionment claim is not a political question)
* Political question doctrine dismissed on Equal Protection grounds
* Institutional check on incumbents
Nixon v. U.S. (1963) (holding that the Senate has the sole power to determine impeachment procedures)
* Checks and Balances: other checks on impeachment power (articles from House, supermaj. req.)
* “Try, all”= no criteria in the constitution to determine what a trial in the Senate entails
* Sup Ct. should not review matters involving federal judges
* Counterarg: is no one else can interpret due process but the Sup Ct. and there is no appellate jurisdiction
Powell v. McCormack (1969) (House of Rep. cannot change Const. qualifications in refusing to seat Clayton Powell)
* No political question SCT must interpret Art I
*Framers did not intend to allow Congress to restrict elected members in this way
* structural/public policy argument: Powell has been elected and to deny a seat goes against democratic principles
Political Question Doctrine
(1) Textually Demonstrable Commitment of power to Pol. Branch (2) No Meaningful Legal Criteria for resolution (3) Potential for Embarrassment (e.g. foreign
policy) (foreign credibility problems if, e.g., President acted and Court later held it unconstitutional) (4) Scope: narrow: generally applies when judiciary is asked to
tell another branch what to do procedurally, or to risk embarrassment, or when there is no legal criteria
Standing
Allen v. Wright (1984)
To have standing plaintiff must allege:
1) Injury 2) Causation: fairly traceable to Δ’s conduct 3) Redressability: problem can be remedied by court
Traditional Model
i. Two parties fighting it out ii. Decision significant for those parties only
Public Rights Model
i. mega-cases and controversies ii. certain decisions seem to take on much greater importance
CONGRESSINAL POWER
McCulloch v. Maryland (1819)
Facts: Congress created Second Bank of the U.S. and MD taxed money issued by the bank
Holding: 1) creating a bank is not an enumerated power, but is ok to promote other enumerated powers: taxing, raising money for armies, commerce regulation 2) Necessary
and Proper Clause gives Congress power to use means to expediently carry out enumerated powers (textual) 3) Rejects the Compact Federalism Theory, which says states
joined to create nation so can’t infringe on states
Necessary and Proper Clause
1) What enumerated power is Congress promoting? (If none then no authority) (2) Has Congress chosen means suitable for carrying it out? (Reasonable connection
between means chosen and the enumerated power)
Taxing and Spending Power: Art. I § 8 cl. 1: The Congress shall have the power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defens
the United States…
US v. Butler (1936)
Facts: Agricultural Adjustment Act allowed Farmers to sign contracts limiting production and get subsidies from congress. They are bound by the contract.
Majority (1) Taxing & Spend Power is a independent power to provide for general welfare (Hamilton) NOT limited by enumerated powers (i.e. distinct from Nec. & Proper) (2)
10th Amendment bars use of Tax & Spend power to regulate in state areas**10 th Amendment holding probably no longer good law** (3) AAA goes too far by using Taxing &
Spending power coercively Dissent (1) Regardless of intent/effect, act is valid use of Tax & Spend Power (2) Court should defer to Congress
Competing views: Madison’s view: language about laying and collecting taxes means that the taxing and spending power can be used to promote one of the other enumerated
powers ie raising an army. Hamilton’s view: Congress can do any kind of taxes and spending in order to promote general welfare. Taxing and spending does not have to be
linked to an enumerated power. Court adopts Hamilton’s view. Why would you need a taxing and spending clause if it can only promote an enumerated power. The necessary
and proper clause can do this. Third view: general welfare language means that congress can do anything that is the general welfare of the country. This is problematic b/c
Congress does not have general police power.
Chas C. Steward Mach. Co. v. Davis (1937) Big Deal Case
Facts: Congress imposes unemployment tax scheme on employers. The states can get out if this if the state sets up its own state unemployment fund.
Holding: Given the severe conditions and the fact that states are not doing this on their own the court says this is not coercive under Butler and constitutional. Implements
Hamilton’s view on spending and taxing.
Congress feels the need to create incentive or states will not do this on their own. Political will: Local business will have the political influence to lobby against this tax at the
state level. If states are too generous everyone will want to move there.
South Dakota v. Dole (1987) (big deal case. Test is still used.)
Facts
(1) Congress withheld 5% of highway funds from states that allowed drinking under 21 (2) Classic conditional spending case: state loses money unless it complies w/ a condition
Majority: (1) Law upheld
(2) Elements of a constitutional conditional spending program. (i) No coercion (Nature of incentive) (ii) Clear condition (iii) Nexus btw the condition and the funds
(must be unambiguous) (iv) General Welfare requirement
O’Connor Dissent: Relationship prong too broad (can always be found). Drinking age imposed on the states w/ no connection btw regulation and money. Insufficient nexus.
Nothing conditional about this. Brennan Dissent: 21st Amendment reserves drinking age to state.
Sabri v. United States (2004)
Facts: Congress made it a federal crime to bribe state/local officials whose agency receives over $10k in federal funds
Majority: (1) Upheld under the Necessary and Proper clause. Power to ensure fed $ is spent on general welfare. (2) Rational basis test applies to ensure that federal dollars are
spent for the general welfare. (3) Application of Dole rule. No matter where money is lost in an agency receiving $, it is a misuse of federal dollars.
Thomas Concurring (1) Nec. & Proper Clause, under McCullough, NOT Rational Basis Test (2) Must be obvious, simple, direct relation btwn. act and enumerated power
Treaty Power
Art. VI: All treaties made … under the authority of the US shall be the supreme law of the land *Treaties are not self-executing w/o explicit language (req. implementation leg)
Missouri v. Holland (1920)
Facts: Congress passed law protecting migratory birds pursuant to treaty with Canada
Majority: (1) If treaty is valid, statute under it is valid under Nec. & Proper Clause (2) Under Treaty Congress can do MORE than otherwise (i) Policy: treaty = national interest;
states must be bound (ii) Text: Laws of Congress must be made pursuant to Const. but Treaties are supreme law when made under the authority of the US (3) 10th Amendment is
not a limit on fed power to protect national interests BUT SEE Reid v. Covert (holding that treaty power cannot be used to take away express constitutional rights such as right to
a jury trial)
Congressional Power Under the Civil War Amendments. 14 th Amendment Equal Protection, 15 th Amendment Voting Rights
Katzenbach v. Morgan & Morgan (1966) *still good law
Facts: Voting Rights Act bars denial of right to vote to person who completed 6 th grade in Puerto Rico b/c of inability to read/write English. SCT had previously upheld literacy
tests under Lassiter v. Northhampton County Bd.
Majority (1) 14th Amendment § 5 is broad like the Nec. & Proper Clause. It gives Congress wide discretion to enact the Voting Rights Act. (2) Ct. applies Rational Basis Test to
Congress’ Acts under 14 th Amendment§ 5 (deference to congress) (3) Preserving right to vote operates to protect other rights and combat discrimination so it is essential to Equal
Protection. (4) As such Congress can intrude into state spheres (5) One-Way Ratchet: Congress can expand rights beyond judicial minimum, but not decrease them, under § 5:
Problematic b/c expanding one groups rights may limit another’s, Inconsistent to jiggle upwards but not downwards
Dissent: (1) Separation of Powers: SCT should define scope of 14 th Amendment not congress (inconsistent with Marbury Judicial Review) (2) Federalism: Congress cannot
overrule Constitutional state action. Voting rights and services are usually state problems (3) Too much deference. Why not enact a law requiring NY to provide more services to
Puerto Ricans. *Amounts to amending Const. thru legislation*
Rule Regarding 14th A §5: IF CONGRESS IS PROMOTING EQUALITY, EVEN W/OUT A LOT OF FINDINGS, DEFERENCE WILL BE SHOWN
City of Boerne v. Flores (1997)
Facts
(1) Free Exercise Clause of 1 st Amend. protects right of people to exercise their religious choices (2) Oregon v. Smith (1990): A law that burdens religion will get lenient rational
basis review so long as it is neutral and does not single out a particular religion. (3) This opinion angers political groups and leads to alliance btw left wing ACLU and right wing
Moral Majority. This strong political alliance results in Congress passing Religious Freedom and Restoration Act (RFRA). Designed to prevent discrimination on basis of
religion. (4) RFRA says a law may substantially burden religion only if the law: (i) Furthers compelling gov’t interest (ii) Uses least restrictive means to further it (iii) Basically
requires strict scrutiny instead of rationality review of any law that burdens religion
Holding: (1) RFRA goes too far, is invalid as applied to state laws (valid for federal laws though): (i) No findings of widespread discrimination (ii) Insufficient evidence of
inadequate remedies offered by the states (iii) Yet RFRA scope reaches beyond VRA in Morgan
New Test: In order to enforce 14 th Amendment §5: (i) Proportional (a) evidence of a problem (findings) (b) proportional response to the findings (ii) Congruent (a) type
of problem that exists must correspond to the law’s remedy (2) Proportionality/Congruence ensure Congress is acting appropriately under 14 th Amendment §5 and limits the
one way ratchet to remedial acts. (3) Avoids slippery slope of Congress determining constitutional rights. Counteranalysis: RFRA was just Congress operating the one-way
ratchet
STATE POWER
11th Amendment Sovereign Immunity
Sup Ct Made Exceptions
(A) Sue the individually in their official capacity (generally only an injunction can be awarded, only for federal claims) (B) Waiver
(C) Abrogation Exception: maybe Congress, by law, can nullify state sovereign immunity. (1) if § 5 of 14th Amend. (enforcement clause) supports a statute, then the 11 th
Amendment doesn’t apply (2) have to show that person or harm involved is of the class or type designed to be protected by the 14th Amendment (i) mainly to enforce
equal protection and due process (3) Note: as w/ all 14th Amend. equality issues, need to consider proportionality/congruence
Alden v. Maine (1999) (11th Amendment extends to state courts)
Commerce Power: functional approach
Gibbon v. Ogden (1824)
Facts: Congressional law provided for licensing of coastal trade vessels (btwn states)
Majority (1) Enumerated powers to be narrowly construed (2) Commerce = intercourse (incl. navigation) = broad [framers intent] (3) Among = all commerce except
completely internal commerce that does not affect other states (4) Commerce Power can potentially be exercised w/in a state (depends on nature of commerce)
(5) Commerce power (like all) = complete power, only limits = those in Const.
Three Kinds of Commerce Clause Cases
1) Regulation of Channels of Interstate Commerce (2) Regulation of Instrumentalities of Interstate Commerce
(3) Regulation of Intrastate Activity w/ Substantial Effect on Interstate Commerce *Most controversial*
Garcia v. San Antonio MTA (1985)
Facts: Act imposed min. wage on state governments. Overrules National League of Cities v. Usery the only case to ever hold that a fed law violated the 10th A.
Majority: (1) Process-Based Federalism: Structure of Fed Gov designed to protect states from Congress (i.e. state participation in fed gov) *States are the fundamental limit on
Commerce Clause Power (2) Adequacy evident in results (e.g. grants to states, fed laws that exempt states) (3) Moreover, fed min wage already covers private employers, this is
merely an expansion to state employees Dissent: (1) Maj. disregards 10th Amendment (esp. against Commerce Clause) *Court responsibility to enforce 10th Amendment v.
Congress (2) Naïve: fed gov doesn’t look out for states and has expanded since New Deal *and fewer process protections (e.g. 17 th Amendment) (3) Pol. process not proper means
for enforcing Const. (courts are) Effect: (1) Theoretically great expansion of fed power (2) Reality: 11th Amendment protects states from private enforcement in fed ct.
Champion v. Ames (1903) The Lottery Case
Facts: Congress prohibits interstate shipment of lottery tickets
Holding: (1) congressional power over commerce is plenary unless it is a purely internal matter (2) functionalist approach: federal gov’t protecting states who don’t like
lotteries by supplementing state laws and filling a gap in state laws (3) formalist approach/public policy: lottery ticket are harmful item crossing state lines
Seminole Tribe of Florida v. Florida (1996)
Facts: Act (passed under Commerce Clause) authorized tribe suits v. state
Majority: (1) Congress cannot nullify 11th Amendment (even using enumerated power) (2) Congress can abrogate ONLY under 14 th Amendment § 5
(3) Test: Congress must: (i) Unequivocally express intent to abrogate, and (ii) Act under appropriate power (§ 5)
(4) Basis for holding = federalism (clear in intent of 11 th and early precedent) Stevens Dissent: 11th Amendment does not apply to congressional authorization of suits against
state by its own citizen Souter Dissent: 11th Amendment grants immunity only against citizen-state diversity jurisdiction suits (NOT federal question suits)
NLRB v. Jones & Laughlin Steel Corp (1937)
Facts: Act prohibited unfair labor practices affecting interstate commerce
Majority: (1) Acts which directly burden/obstruct commerce can be regulated: Congress has plenary power to regulate commerce (SCT should defer)
(2) Commerce Power = legislation can be passed for its protection or advancement of interstate commerce (3) Congress can regulate acts that substantially affect commerce
Dissent: Regulation of production leads to regulation of internal state industrial activity
US v. Darby (1941) (overruling Hammer v. Dagenhart))
Facts: Act barred interstate shipment of goods produced by employees making less than fed min. wage or working more than fed max of hours.
Majority: Interstate shipment is necessarily under the commerce clause. Congress has plenary power when there is a substantial effect on interstate commerce. (1)
Commerce Power is only limited by Const. (2) Congress can regulate interstate commerce to protect health (3) 10th Amendment is truism. Any powers that are not granted to
congress by the broad commerce clause are reserved for the states.
Wickard v. Filburn (1942)
Facts: Federal Agricultural Adjustment Act of 1938 is applied to regulate production of wheat for home use (not sale)
Majority: Aggregation Principle: Cumulative Effect rationale. If effect of activity on commerce, taken together w/ that of others similarly situated is substantial, it can be
regulated. *Outer limits of Commerce Clause regulation
Commerce Power: Formalist Approach
US v. E.C. Knight Co. (1895)
Facts: Act of Congress to suppress monopoly in sugar manufacture
Majority (1) Manufacture is not commerce (formalist) (2) Laws against monopolies only incidentally affects commerce Dissent (1) End of national government = achieved
by broad construction (2) Commerce Power granted by the people, not states (3) Only Congress can practically and constitutionally remove restraints to interstate commerce
Carter v. Carter Coal Co. (1936)
Facts: Congressional law provides price controls of coal, bars unfair competition, provides right of employees to organize.
Majority (1) Production = (1) purely local (2) NOT commerce (interstate effect = indirect) (2) Congress limited to regulation of commerce (3) Federalism
Hammer v. Dagenhart (1918)
Facts: Congressional act barred interstate shipment of goods manufactured in factories w/ child labor.
Majority: Commerce Power limited: (1) Def. of Commerce = does not include production (formalist) (2) 10th Amendment = reserves powers to state. Including the power to
reg. production (federalism) (3) Here intent of act = regulate production (i.e. age of workers): Congress cannot require states to exercise police power. Dissent (1) If act is w/in
enumerated powers, its indirect effect and congressional motive don’t matter (2) Commerce Power = unqualified (regardless of indirect effects) (3) Ct. must defer to Congress
on propriety exercises of its powers
Commerce Clause: Modern Construction
Hammer v. Dagenhart (1918)
Facts: Congressional act barred interstate shipment of goods manufactured in factories w/ child labor.
Majority: Commerce Power limited: (1) Def. of Commerce = does not include production (formalist) (2) 10th Amendment = reserves powers to state. Including the power to
reg. production (federalism) (3) Here intent of act = regulate production (i.e. age of workers): Congress cannot require states to exercise police power. Dissent (1) If act is w/in
enumerated powers, its indirect effect and congressional motive don’t not matter (2) Commerce Power = unqualified (regardless of indirect effects) (3) Ct. must defer to
Congress on propriety exercises of its powers
US v. Morrison (2000) (part of Rhenquist Federalism Trilogy)
Facts: Act barred violence against women based on substantial findings
Majority: (1) Invalid b/c not an Economic Regulation (Formalist Category) (2) Such regulation is part of state police power (3) Congressional findings are indirect and
irrelevant since the law is not supported by the commerce clause.
Dissent (1) Majority disregards precedence and does away with the substantial effect test. (2) Commerce clause test is reduced to; is it economic and is there an interstate
element.
Gonzales v. Raich (2005)
Facts: The Federal Controlled Substance Act barred production/possession of weed for personal medicinal use *Challenged as applied
Majority: (1) Wickard held that congress can regulate noncommercial intrastate activity if failure to regulate would undercut reg. of interstate market in that commodity.
Cumulative Effect rationale. (2) Act is part of a valid Comprehensive Leg. Scheme (Rational Basis Test) In order to regulate transfer (economic) possession must also be
regulated (noneconomic) (3) Activity here is ECONOMIC (production, distribution, consumption) Scalia Concurrence (1) Substantial Effects Test based on Nec. & Proper
Clause (2) Congress can reg. any activity (regardless of its effect) when nec and proper for comprehensive regulatory scheme of interstate commerce O’Connor Dissent: (1)
Not an Economic Activity under Lopez/Morrison (2) No Congressional findings of aggregate econ effect *Rejects Rational Basis Test => SCT must assess congressional
findings (3) Federalism: (a) State Police Power (2) States as labs of Exp. *Courts must enforce federalism/enumerated powers (4) Even using Nec. and Proper, no underlying
Enumerated Power shown (5) SCT cannot defer to every broad regulatory scheme: creates incentive for congress to always claim they are acting under a broad regulatory
scheme Thomas Dissent (1) Commerce = buying/selling/transporting (Originalism)
**Reconcile w/ Lopez/Morrison:
(1) If there is a comprehensive regulatory scheme, Rational Basis Test
(2) If no such scheme, ct. does its own substantial effect analysis
Modern Approach to the Commerce Clause
(1) Is it economic? (2) Has Congress made findings? (3) Are there substantial effects on interstate commerce?
Tennessee v. Lane (2004)
Facts: (1) ADA bars public entities (incl. state) from discriminating in public services (2) πs sued TN over lack of access to courthouse (for crim. hearing and to work)
Majority: (1) Prong 1: Act unequivocally expresses intent to abrogate (2) Prong 2: Abrogation under § 5 = Boerne Analysis (Congruent & Proportional) (i) Problem =
fundamental right (access to Court by crim ∆) *Hints that something other than fundamental right not sufficient (ii) Problem demonstrated by evidence of violations of Equal
Protection (iii) Leg: requires only reasonable measures Rehnquist Dissent (1) Fails Boerne test b/c no evidence of Const. violations by state gov Scalia Dissent (1) Boerne test
has proven to be arbitrary (2) New Test: (i) Remedial/Enforcement = rational basis test (ii) Preventative = only on states w/ identified history of relevant constitutional violations
10th Amendment: Commandeering and Process Based Federalism
The powers not delegated to the US by the Constitution nor prohibited by it to the States are reserved to the States respectively, or to the people
(a) Construction 1: 10th Amendment NOT a judicially-enforceable limit on Congressional power *Merely reminder that Congress can only legislate w/in delegated powers =>
laws are NEVER unconst. as violating 10 th Amendment (b) Construction 2: 10th Amendment protects state sovereignty from fed intrusion *Fed law otherwise w/in scope of
delegated power can be unconst under 10 th Amendment *Contrary interpretation makes 10 th Amendment meaningless.
Printz v. US (1997) (part of the Rhenquist federalism trilogy)
Facts: Congress made interim provisions before full Brady Act req. state/local cops to do background checks on gun buyers.Chief local enforcement officer was to make
reasonable effort to determine whether a gun sale was legal.
Majority: (1) Unconstitutional commandeering of state officer (2) Separation of Powers/Executive power argument (structural) (i) Executive branch is to “take care” that
federal laws are enforced (ii) Undermines the executive’s function where Congress can commandeer state actors to do such (3) No historical justification for feds to commandeer
state officials. (i) NY v. US: recent case holds that fed gov. cannot force states to pass legislation to dispose of nuclear waste. This is even worse b/c at least in NY v. US states
have legislative discretion. Furthermore, this is not a clerical request b/c the cpu systems are not in place and local police make a fraction of what the FBI agents make.
Dissent:argues that this amounts to a clerical request unlike NY v. US (4) Accountability issue: (i) If state officials must enforce the federal law, they will take the blame when
people don’t like it and Fed gov will take the credit if they do (5) Dual Sovereignty: Can’t blindly trust process-based federalism, Court has to decide there is a line where state
sovereign authority begins Thomas Conc: Commerce Power does not cover intrastate sales (e.g. of guns here) Stevens Dissent: (1) Pol. branches should decide whether
commandeering is valid (2) During emergency fed gov. can commandeer (3) Nec. & Proper Clause supports commandeering (textual) (4) 10th Amdt does not limit delegated
powers (Process-Based Federalism) (5) History = fed commandeering (e.g. tax collectors, judges)
Breyer Dissent: (1) Unintended consequence: bigger federal govt. not vindication of state rights b/c feds will have to create more positions, bureaucracy, and interfere in more
local gun sales (2) Switzerland argument: In Switzerland it is uncontroversial for Nat. Govt. to tell the states to help enforce fed laws. Counter argument: (i) Switzerland is
much smaller and homogenous than US (ii) Foreign law is not binding (iii) Breyer is not expert on Switzerland. Cherry picking of foreign law. Effect: Combined w/ Alden,
Garcia effectively overturned.
10th Amendment Bottom Line
(1) Printz undermines Garcia theory of federalism, Alden seems to undermine Garcia’s holding (i) Only remedy left is to convince federal Labor Dept. to sue the state on your
behalf (2) Garcia has not been formally overturned (i) Could argue facts are distinguishable (a) Garcia: not singling out gov’t officials, just extending a law already applied to
others (b) Printz: singles out state gov’t officials alone for federal control.
Dormant Commerce Clause
Cooley v. Board of Wardens of Port of Philadelphia (1851) (Early Dormant Commerce Clause)
Facts: State law req. ships entering its port to use local pilots or pay fine to retired pilots
Majority: The law is valid (1) Economic protectionism Dormant Commerce Clause prevents one state from acting solely to promote its econ interests to the detriment of another
state (EARLY construction of clause) (2) Reg. of inherently local activity for any purpose does not interfere w/ interstate commerce
H.P. v. Du Mond, Commsr of Ag and Markets of NY (1939)
Facts: NY denied distribution facilities to MA mild producer
Majority: Dormant Commerce Clause (1) Framer’s Intent: to prevent state interference w/ interstate commerce (2) Econ: econ better if state/local obstacles to interstate
commerce are invalidities (3) Public Policy: State laws harm those out of state w/o representation Counter-Argument (Thomas) (1) No textual basis (2) Silence of Congress
NOT controlling (3) Application: invalidating discriminatory laws invites arbitrary/policy decisions. Should not be a decision for unelected judges =>Federalism: minimize
invalidation of state/local laws =>Sep. of Powers: task suited to legislative determination Counter-Argument (Scalia) (1) Balancing Test cannot balance two incomparable
things (2) National Interest, State Interest = subjective (legislative)
So. Pacific C. v. Arizona (1945)
Facts: State law limits train lengths in state; lengths not restricted outside state
Majority
(1) ACTIVIST: ct. assesses legislative findings/motivation
(2) Facially-neutral law = Balancing Test (i) State interest (as assessed by ct.) against (a) The court does not enjoy the states safety argument. More trains means more
accidents. (ii) National interest in free flowing interstate commerce (a) major interference with interstate commerce due to massive economic impact (3) Lowest Common
Denominator Effect
Facially Discriminatory State Laws: (1) Is the Law Discriminatory on its face: (2) If so strict scrutiny applies (i) compelling interest (ii) narrowly tailored (law must
also be drafted almost perfectly.
Dean Milk Co. v. Madison (1951)
Facts (1) Madison ordinance bars selling milk pasteurized more than 5 miles away (2) applied to all milk sold in Madison, regardless of what state it came from. (3) Supposedly
designed to ensure high health standards
Majority: (1) Law is facially discriminatory (2) Discrimination against out-of-staters substantial; in-staters discriminated against have apolitical remedy (3) There are less
restrictive alternatives
Philadelphia v. New Jersey (1978)
Facts: NJ law prohibits importation of trash unless NJ decides it won’t hurt health/safety
Majority: (1) Dormant commerce clause allows incidental, unavoidable burdens on state health/safety leg. (2) garbage is commerce. This law is almost a per se violation of
commerce clause (3) States can prevent importation of inherently toxic substances (Quarantine Laws)
Rehnquist Dissent: Trash = toxic substance, health hazard
Maine v. Taylor & United States (1986)
Facts: Maine bars importation of certain baitfish b/c of threat or parasites to fishing industry
Majority: Rare case where Court upholds facially discriminatory law (1) Strict scrutiny applies to facially discriminatory laws (2) Strict scrutiny performed by trial ct. (clear
error) (3) Here Maine interest and lack of less restrictive means meets test (a) undeniable state interest in protecting natural wildlife (b) No scientific alternative
Stevens Dissent: Facially discriminatory laws are presumptively invalid
Facially Neutral State Laws: If a state law is only discriminatory as applied. (1) Is there legitimate state interest? (2) If so do the balancing act: state interest must be
weighed against the burden on interstate commerce ie incidental vs excessive (3) Are there less restrictive alternatives? Scalia Alternative Test: Facially neutral laws
are valid
Hunt v. Washington State Apple Ad. Comm (1977) (economic protectionism is not a legitimate state interest)
Pike v. Bruce Church Inc (1970) (law req cantaloupe packing to be done in AZ found to be unconst.)
West Lynn Creamery Inc. v. Healy (1994)
Facts: MA tax on all milk; $ distributed as subsidy to MA dairy farmers (purpose = help MA milk)
Majority: (1) Tax + subsidy to taxed in-staters removes political protection by in-staters (a) Neutral tax generally upheld (in-staters pol. influence checks abuse) (b) Internal
Subsidy also Valid (c) putting them together in this way is unconstitutional=> Breaking Thru Formalism (since each alone is ok)
2) Where purpose of facially neutral law is discriminatory, balancing test (a) Political aspect- state’s political processes aren’t reliable b/c group that would lobby against the
tax benefits from the subsidy
Market Participant Exception
Justifications for Market Participant Exception
a) Federalism/State Sov: state can enter the market and look out for its citizens
b) State as Market Participant: When state is market participator and not a market regulator they are like any competitor and therefore not subject to dormant commerce clause.
c) taxes finance the state activity, state citizens should get benefit of their taxes
Natural Resources: market participant exception only applies if the resource is processed into some product. Does not apply to raw materials.
Reeves Inc v. Williams Stake (1980)
Facts (1) SD built and operated a cement plant (2) When there was cement shortage, it favored selling its cement to SD citizens
Holding: Market participant exception: DCC does not apply.
Dissent: Since favoritism is to SD private entities and not SD govt. projects this is economic protectionism
White v. Mass. Council of Construction Employees (1983) (allowing Boston to require Boston residents make up ½ of all workers on city funded construction projects)
State laws burdening commerce are permissible if approved by Congress (under Commerce Clause Power)=>Issue: was Congressional Approval valid use of Commerce
Power
Privileges and Immunities Clause 14th Amendment, Section 1, Clause 2
(1) Privileges and Immunities Test: (i) Does the state law discriminate against non-citizens in terms of one of the privileges and immunities? (a) Only fundamental
rights included: jobs, access to courts, property (ii) Is there a substantial state interest to justify the discrimination
(2) State cannot discriminate against out-of-staters in regard to constitutional rights and important economic rights. (i) Only triggered when the law is discriminatory on its
face. (ii) States cannot treat out-of-staters worse than its own citizens (iii) Unlike dormant commerce clause (a) Textual provision exists. (b) Has no mkt. participant exception.
only protects US citizens and not aliens, not corps.
Preemption
Preemption Doctrine: federal law preempting state law. When there is some conflict btw state and fed law Supremacy clause makes Federal law supreme so it “preempts state
law”
Three Kinds of Preemption Cases (1) Express preemption cases: Fed law expressly says if there is conflict fed law wins. Express language. (easy case) (2) Occupying the
Field Preemption Cases: Law is so broad that it occupies the field and by implication congressional intent is obvious that fed law should trump ie someone works and is in
union and gets fired and wants to sue under state law wrongful discharge. However, if they are in a union they may be prohibited or restricted (exhaust admin remedies) from
bringing lawsuit under state law. Federal act is so broad that it occupies the whole field and must be consulted. (3) Conflict Preemption cases: direct conflict btw what fed law
and state law says (pretty easy case) ie CA law says no more nuclear plants. Fed law says build more nuclear plants. Fed law wins.
EXECUTIVE POWER
Art. II § 1:The executive power shall be vested in a president of the United States of America
(1) Presidential Power (i) Pres. has explicit Const. authority (a) *Issue Is Pres. acting w/in that grated authority (b) Is Pres. violating some other Const. provision
(2) Statute authorizes Pres. conduct (a) *Issue: Is statute constitutional (3) Implied Powers? (i) Art I: “All legislative power herein granted…” v. Art II: “The executive power
shall be vested…” (ii) Suggests Exec. Power of Pres. is broader Counterarg: Language merely indicates single exec, and Art. II enumerates powers
Implied Presidential Authority
Youngstown Sheet & Tube Co. v. Sawyer (1952)
Facts: Pres. Truman Executive Order seizing steel mills to prevent wartime strike
Majority (Black: Strict Construction/Formalist)
(1) Pres. power must be based on Const. or act of Congress (a) Pres. is not Commander and Chief of private industry (2) Const: Take care clause, “Execute Laws” means NOT
a lawmaker (3) Textual Powers strictly construed: vesting clause does not mean implied authority (4) Clarity and legal predictability
Jackson Concurrence (Functional Approach): Three categories of Presidential actions re: Implied Powers
(1) Pres acts w/ express/implied Congressional authorization (implied power at its highest) *Great Deference (Pres. power = Pres + Congress) => invalid only if
Presidential act is unconstitutional
(2) Pres. acts w/o Congressional approval or disapproval/Congress is silent * Act is typically ok if it is not challenged * Twilight Zone => case-by-case (look at
situation) * “Imperative of Events” must be considered => Act more likely to be valid if it is an emergency situation.
(3) Pres. acts contrary to Congress’s (express or implied) intent (implied power at its weakest) *Rigorous scrutiny => Pres probably has no power to act
Douglas Concurrence: (1) Sep. of Power: inefficiency is acceptable alternative to arbitrary power (2) Formalist: Efficiency of executive branch is NOT controlling
Frankfurter: (1) Historical approach to determine implied powers. In this case Pres. has gone too far.
Dissent: (1) Context of Action: in urgent times court should defer to Pres. (2) Pres has power indp. of Congress (not mere messenger boy)
Foreign Affairs and War Powers
US v. Curtiss-Wright Export Corp. (1936) (Delegation Doctrine)
Facts: Curtiss-Wright (D) is indicted for violating arms embargo and challenges a joint resolution from Congress authorizing the Pres. to prohibit the arms sales to Bolivia and
Paraguay during Chaco border dispute as an unconstitutional delegation of leg. power.
Holding: (1) Historical (i) As the rep. of the sovereign the president has much broader powers in regards to foreign affairs (ii) States have no international powers and
Presidential powers are only limited in domestic matters. (2) Public Policy (i) embarrassment concern (ii) Pres. sole rep for the nation (3) Special knowledge (i) Pres. in better
position to handle external affairs. Has intelligence not open to everyone in Congress
Counterargument: Seems inconsistent w/ Youngstown as the decision seems to grant unlimited ability to act. Presidential intelligence is also subject to leaks and
misinformation. Furthermore, the Constitution is not silent on foreign affairs and framers did not intend expansive, inherent presidential authority.
Dames & Moore v. Regan, Secretary of the Treasury (1981) (Executive Orders and Agreements)
Facts: During Iran hostage crises Pres. Carter acting pursuant to IEEPA puts a freeze on all Iranian assets in US. Pres. makes Executive Agreement under which all claims
against Iranian govt. must be suspended and even attachments on judgments are nullified. Subsequently Pres. issues an Executive Order to make a tribunal for claims against
Iran to which Iran pledges assets.
Holding: There is historical practice and statutes on the books for the President to enter such Executive Agreements. (International Claims Settlement Act of 1949 to settle
claims with Yugoslavia). Under Youngstown Sheet this may fit into congressional approval.
Counterargument: However, this is not Yugoslavia and no statute on the books to deal with this crisis. This may be a congressional silence in which case this is a major crisis
in which Pres. action is justified.
War Powers Act of 1973
After Vietnam Congress passes legislation to make sure they are not left out of the war process. Constitutionality of war powers act is questionable.
(1) Within 48 hours of committing troops Pres must notify Congress (2) Within 60 days if congress does not approve troops must be withdrawn (potential 30 day extension)
(3) Congress says the act is necessary and proper to carry out the enumerated leg. power of declaring war. This is the way to solve the problem of troops being committed
without leg. approval. (4) Pres. argues that this leg. negates pres. power as Commander in Chief. (5) General agreement that Pres. has unilateral power to respond to an attack
on the US but... We have troops all over the world; Complication over what country to attack (Al-Qaida); What about threats? What about pre-emptive attack?
Options for Dealing with Enemy Combatants
(1) Treat prisoners not as POWs or any other categories: Govt. chooses this option.
(2) Treat them as POW and acknowledge Geneva Conventions: (a) Will not restrict ability to defend the nation by GC (b) No court martial (c) Govt. should have done this in
order to maintain leverage in protected our captured troops
(3) Criminal trial (a) Other terrorists have been tried in US ie McVeigh (b) Logistically how do you get the witnesses if you can’t admit hearsay (c) Public trial is impracticable
b/c of classified info being released endangering national security (d) However, there are mechanisms to address these concerns.
Rausul: controversial holding of suspected Al Qaeda combatants in Guantanamo. SCT holds that Guantanamo bay is not outside US jurisdiction.
Padilla: US citizen must file habeas corpus in proper jurisdiction.
Hamdi v. Rumsfeld (2004) “EC Hamdi DP Handy”
Facts: Hamdi, a US citizen captured by Northern Alliance in Afghanistan was turned over to US, held in a VA naval brig and declared an enemy combatant.
Holding (O’Conner for the plurality):
1) President can in certain instances declare individuals to be enemy combatants
(a) Meaning they are not POWs whose treatment is governed by Geneva but not criminal suspects w/ protections of regular criminal process.
(b) Holding that under Authorization for Use of Military Force (AUMF) congress has authorized Pres. to do so. Holds that Statute 4001 does not govern b/c AUMF is the
congressional mandated exception
(c) Youngstown Category 1: President acting with Congress’s approval does not indicate how this would come out if it were a twilight zone case
(2) Enemy combatants are entitled to due process
(a) Balance must be struck: (i) risk of error vs. probable value of procedural safeguards (ii) individual vs. government’s interests
(b) Due process: (i) Entitled to notice of charge (must be charged) (ii) Opportunity to be heard (iii) hearsay evidence could be admitted and presumptions for the govt. made.
Souter: Under Statute 4001 Congress has prevented Pres. from declaring someone to be an enemy commandment. Under Statute 4001 govt. generally cannot hold American
citizens w/out due process unless Congress authorizes such. Since AUMF does not cover enemy combatants it is not a congressional exception on to Statute 4001. AUMF
only governs Pres. war acts abroad.
Scalia (strict, literal, textual interpretation): The only way an American citizen can be held on American soil without due process is if Congress suspends the writ of habeas. Or
he can be charged with treason. Rules against govt. despite reputation for being conservative and ruling for the govt. on la w enforcement and military matters.
Thomas: This is war time so whatever test you use the government wins. This is a national security danger. Well known that during war time due process rights can be limited
to enhance national security. “The constitution is not a suicide pact.”
Counterarg: hypocrisy of invoking war powers without following int’l restrictions (Geneva and rules for POWs)
Hamdan v. Rumsfield (2006)
Facts: Hamdan brought to Gitmo to be tried under military commission rules created unilaterally by president. Hamdan does not dispute that he was Bin Laden’s driver.
Detainee Treatment Act was passed by Congress in response to torture allegations. Also makes it difficult for enemy combatant to access courts.
Issue: Is it within president’s to authority classify someone as an enemy combatant then try them under military commissions created by president. Holding: No
Majority Analysis
Ex Parte Quirrin case that the gov’t uses did not extend presidential power to establish military commission.
(1) Charge of conspiracy is not a violation of law of war, under UCMJ or Geneva Convention. (a) This argument does not have majority support of the court
(2) Commission procedures violate the UCMJ (a) Ex Parte Quirrin does not give pres power to establish military commissions. (b) UCMJ is the common law of war. (c)
Under Ex Parte Quirrin military commissions do not comply with common law of war codified in UCMJ (i) *Hamdan and counsel can be excluded (ii) Evidence may be
obtained by coercion (iii) Hearsay is admissible
(d) UCMJ standards do not have to be met if it would be impractical to do so (i) Govt. has shown insufficient evidence to show minimum protections are impractical
(3) Commissions Violate Geneva Convention (a) Problematic for court to invoke Geneva when gov’t claims Geneva doesn’t apply in this situation and Gitmo is not on US soil.
(b) Geneva conventions call for Article 3 Regularly Constituted Courts (c) This is said to be an unnecessary slap in the face but supported by majority
Breyer: NO blank check (separation of powers) Kennedy: Pres cannot act unilaterally. Pres authority must be limited. Pres. is exceeding congressional authority.
Scalia: DTA should prevent Hamdan from even getting into Court.
Thomas: (1) Defer to the Pres in military and Nat Security matters. He has the expertise and intelligence (2) Protections given are more than sufficient. (3) Also argues that
AUMF gives the Pres. authority in the same way O’Conner said he could declare someone an enemy combatant in Hamdi.
Counterarg: Defeated by the fact charges are not during wartime. Goes too far to set up new judicial system. AUMF does not authorize this. Not a traditional war. Cannot be
limited to traditional war restrictions
Boumediene v. Bush (2008)
Background: Pres goes to Congress and they create new Military Commissions Act. Non-citizen enemy combatants cannot access habeas. They must go through military
commission and can only appeal to DC court of appeals.
Issue: Is the MCA’s habeas stripping constitutional? Holding: No
Analysis: Govt argues they can deny habeas since they have given them alternatives to habeas.
Court rejects these argument (rarely will court reject pres. and congress collaboration in a war time situation)
Majority (1) Under Rausul gitmo is US soil. (2) Johnson case used by govt. is distinguished: (a) Unlike here the allies were involved. (b) In Germany there was lack of control
and sovereignty. (c) No access to witnesses and many hazards. (d) Johnson case had better processes than CSRT which: (i) Only requires one judge (ii) Allows no lawyer only
an officer who is not the prisoners advocate (iii) Is a rubber stamp in which there are no formalities (iv) Govt. gets a redo
3) Framers intended for non-citizens to have habeas. This is an unacceptable alternative to habeas: (i) CSRT cannot question govt evidence (ii) Prisoner cannot admit
exculpatory evidence. (iii) Court of Appeals is bound by findings of CSRT and appeal is limited to legal questions (iv) Insufficient procedural mechanisms to prevent error
Dissent (Roberts): (1) These procedures grant more procedural protections than any military tribunal in any context ever: (a) CSRT to prove you are not enemy combatant
(b) Even after failing to show you are not enemy combatant you can have a military trial (c) Even after losing you can appeal to American Federal Court (d) Legal
representation (2) Bait and switch argument. CSRT is what O’Conner called for in Hamdi. (a) Court, in war time, must not step in and reject Congress and President response
to SCT decision in Hamdan. The Pres went to congress and got the authority and it is held unconstitutional.
Dissent (Scalia): Death and destruction argument. Majority ignores Quirrin and Johnson undermining govt. authority during a war
Policy Issues in War on Terror
1) Pres Obama releases formerly secret memos about wartime techniques: (a) There is no more plausible deniability. (b) Technique list includes water boarding (one person 180
times), walling (fake wall softer than real wall so you can slam there head into the wall), stripping clothes, stress positions. (c) Pres Obama also said the CIA will not be held
responsible or prosecuted. (d) Pres Obama says no rendition which is sending prisoners to other places to be tortured.
2) Bush administration says releasing this was bad for national security: (a) Exposes dirty laundry. Administration was successful in preventing another attack (b) Did not release
other memos that show these techniques save lives (c) Will stop our interrogators from using acceptable techniques b/c they will be chilled and afraid to have their name released.
At war you must have people willing to do it.
3) Guantanamo Now What: Pres Obama says he is going to appoint to govt. commissions to decide what to do.
Two types of Guantanamo Prisoners: (i) Relatively harmless: not many countries will take them and those that will may hurt them (ii) Some are very dangerous but really hard
to try. No crimes or close connections to al Qaeda. Hard to try b/c of lack of evidence or evidence obtained by coercion.
Three Alternatives to Gitmo: (i) People argue that during the campaign Pres Obama said you have to release them or prosecute them (ii) Prosecute them. Fed justice model,
POW model? Just be creative. (iii) Another military commission or Nat. Security Ct. Preventive Detention: hold them under more reasonable standards. Britain does this but
has rules. Maybe hold them for the duration of hostilities. What level of proof is necessary to justify. Something btw the govt thinks so and reasonable doubt.
Appointment and Removal Power: Article II Sec 2: Presidential powers include making treaties, nominating ambassadors, choosing SCT judges and all other officers of US.
I) Appointments: (1) Principal officers (a) cabinet heads, etc (b) only President can appoint principal officers (2) Inferior officers (a) agency officers on down
(b) Congress can vest power to appoint in… (i) President (ii) Courts of Law (iii) Department Heads (c) But Congress can’t retain appointment power itself
II) Removal: (A) not explicitly in the Constitution (B) implicit idea that President has control over executive branch and so must be able to fire people
Alexia Morrison, Independent Counsel v. Theodore B. Olson (1988)
Facts: Post water-gate statute allows for Independent Counsel to be appointed to investigate Pres/justice department. President can only remove IC for good cause.
Issue: Are appointment and removal mechanisms for the independent counsel constitutional.
Majority Holding (Very Functional)
(1) An independent counsel is an inferior officer: (a) Engages in investigation of one or more individuals (b) Does not make policy like an AG or Sec of State. (c) Given a
limited mandate/focus about who to investigate. (d) Limited power: just decide whether to charge. No power to impeach cannot actually charge. Can be fired in certain
instances by executive so no unlimited power.
(2) Requiring removal for good cause is permissible unless it unduly impairs executive branch functions: (a) Not an undue impairment here.
3) Test for when restriction on Presidential removal power is unconstitutional: (a) Do the restrictions impede President’s ability to perform his constitutional duty
(b) Burden on Presidential power to control/supervise Officer vs importance of functions of the official in question
Dissent (Scalia) (Formalistic)
(1) Independent Counsel is not an inferior officer: (a) IC is not an ordinary prosecutor but a prosecutor on steroids. (b) Has unlimited time and resources and does not have to
prioritize cases. This is a license to find something wrong. (Ie Starr investigation cost $50 million) (c) IC is outside checks and balances or separation of powers.
(2) Difficulty in justifying removal is a burden on the executive: (a) Almost impossible to find good cause. Cannot be removed b/c it will look like interference with investigation
(b) Good cause is an unclear standard. (c) If they do remove an official investigating them they will probably be impeached.
Bottom line: (1) Independent Counsel statute has expired. Now justice dept would have to name Pres as unindicted co-conspirator like in Nixon. (2) Can appoint special
prosecutors but they are more limited by exec branch and do not have insulation from firing like IC.
Two Approaches to removal power. (a) formal approach: purely executive official or not? (b) functional: restriction impedes President’s duties?
Executive Privilege and Immunity
US v. Nixon (1974)
Facts
Watergate conspirators indicted and Pres Nixon is named as an unindicted co-conspirator. Prosecutors want documents, tapes from Nixon and who claims privilege.
Majority: (a) This is not a political question an is more than an internal executive branch dispute. (b) President has a qualified privilege not to turn over documents but it can be
overcome if reasons for seeking the documents outweigh it (c) Here, 5th/6th Amend. rights at stake for people on criminal trial outweigh executive privilege
(1) There is an executive privilege but it is not absolute: (a) important military/diplomatic/national security objectives (b) Concern about getting candid advice from officers
(c) Concern about frivolous attempts by other branches to cause embarrassment
(2) Executive Privilege Balancing Test: (a) Weigh importance of general privilege of confidentiality of Pres communications in performance of presidents responsibilities
against the inroads of such a privilege on the fair administration of criminal justice. (3) Burden is on those requesting production to overcome privilege by showing of
need: (a) criminal context greater need than civil (b) specific request more likely to succeed than broad
(4) In Camera procedure: court can verify whether there are legitimate concerns and review documents/tapes to see if they should be classified.
Clinton v. Jones (1997)
Facts: Clinton sued for sexual harassment that occurred before he was President
Majority: (1) Immunity doesn’t apply to acts done before taking office. (2) Civil suit will not cause a substantial distraction from responsibility to serve the nation or hurt the
national interest. (3) Jones has a right to seek justice. If stay is granted witnesses may have fuzzy memory or die and it would be unfair to not allow her to exercise civil rights.(4)
Historically presidents are not sued frequently and will not be subject to an influx of harassing lawsuits
Absolute Immunity Doctrine: (1) Pres cannot be sued for official acts while in office. Court has broad definition of official capacity. (2) no immunity from civil actions for
acts done before in office (3) Can president be sued for unofficial acts while in office? No case law.
Impeachment: What are high crimes and misdemeanors: most scholars agree this does not have to be a crime. Can be serious misconduct.
DELEGATION DOCTRINE
Agencies: Unconstitutional 4th Branch of Govt?
(1) Pros: (a) Necessary b/c of volume regulated by Congress (b) Quicker and more efficient than Congress. Less bureaucracy. (c) More expertise than Congress (d) Apolitical.
Not elected so theoretically no political motivation.
(2) Cons: (a) Red tape bureaucracy. (b) Unelected but not apolitical. (c) Undemocratic: lack of accountability to the people. (d) Limited checks and balances: (i) regulations
not subject to veto (ii) Court action, legislative repeal take time. (iii) Oversight concerns. (e) Copout- Congress can blame them for screw-ups (f) Capture: industry captures the
agency b/c of over familiarity and friendliness become tools of industry
Yakus v. United States (1944)
Involved delegation issue. Housing price administrator was given the power to cap rental prices. Concern about inflationary prices during depression.
Court developed a Yakus Delegation Doctrine Test: (1) goals: control rental prices (2) standards: basic criteria based on earlier rentals (3) tools: must be prescribed. Here the
tool is caps on prices. This test has evolved into much more lenient and flexible intelligible principal test. However still useful to determine what an intelligible principal is.
Whitman v. American Trucking Assn (2001)
Facts: Act req. EPA to promulgate standards for air requisite to protect public health
Majority : (1) Art. I permits NO DELEGATION of legislative power (2) Congress must give decision-making agencies INTELLIGIBLE PRINCIPLE *Broad deference to
Congress (Intelligible Principle = easy standard) (3) Agency cannot cure unlawful delegation by narrowly interpreting it (4) EPA does not engage in cost benefit analysis. This
removes some discretion from the agency. C/B analysis is policy making for lawmakers to do. (5) From a constitutional perspective this ok as long as it is not a complete blank
check. (6) Effect: Yakus Test is boiled down to much fuzzier Intelligible Principle standard
Big criticism: political disaster in the country b/c all these agencies actually make all the laws and none of them are elected. This is like a fourth branch of government.
Intelligible principal is not enough.
Argument that tarp violates delegation doctrine: US Sec of Treasury given too much power to distribute $700 billion. However, has 7 factors sec of treasury must consider.
Would probably survive intelligible principal doctrine but maybe this shows doctrine is too vague.
Modern Approach to the Delegation Doctrine: (1) Is there an Intelligible Principle? (2) Yakus (3) Whitman: Goals, standards, and tools
Chevron doctrine: courts are deferential to administrative agencies when acting within their area of expertise
INS v. Chadha (1983) (Demise of the Legislative Veto)
Facts: Congress has plenary power over immigration. Congress has a law that allows Attorney General to suspend deportation.
Congress “keeps a string” b/c after decision comes back from AG, House of Rep unilaterally reviews suspension and can overturn suspension. This is the legislative veto.
Chadha overstays his Visa and is granted suspension of deportation by Attorney General which is vetoed by House of Reps.
Majority: (1) Lawmaking (affecting indv. rights) req. Bicameralism and Presentment (a) Congress has no implied powers (2) Constitutionality is not based on efficiency;
specified procedures must be used (*formalist) (3) Cont. specifies the only exceptions to Bicameralism/Presentment req. (*textual) (a) Congressional acts not textually specified
are not allowed (4) Therefore legislative veto is unconstitutional
Concurring (Powell) (Sep of Powers): In this particular delegation the problem was that legislative branch acts like judges. Should be a narrower decision.
Dissent (functional): (1) Consistent w/ Bicameralism and Presentment b/c original Act was passed (2) Now Congress must retain all the power or delegate all the power.
(3) Greater includes the lesser: If Congress can delegate all, it can delegate in part and retain in part. (4) Veto useful middle ground necessary for delegation (5) Allow Congress
to keep a check on executive power (6) Extreme Functional Approach: sup ct doesn’t understand there will always be legislative veto all they have done is drive it underground
Postscript: (1) Leg. Veto continues by unofficial understandings btwn Congress & agency (2) Unclear if Leg. Veto of spending reallocations are valid (used Post-Chadha)
(3) Line-Item Veto struck down under Bicameralism/Presentment req.
Bicameralism and Presentment: (1) Bicameralism: (a) Constitution lays out specific procedure for passing laws (b) Both houses pass bill (2) Presentment: (a) President signs
or vetoes it (b) Congress can override Presidential veto (3) Violation of this is unconstitutional. (4)Court is very formalistic in this area
Con Law Symposium
Abdullah (1) Idea of Islamic law or Islamic State is problematic (a) Islamic Law is also a way of living private life (b) Once a state codifies Sharia it becomes state law (2) State
must be careful to protect religious freedoms (3) Public Reason: cannot justify political issue on religious grounds
Farr (1) Diplomacy and nat security should take more account of role of religion. (poorly trained diplomats and state dept) (2) Diplomats should be aware of promoting religious
liberty b/c it goes hand in hand with promoting American interests (3) Means more than promoting Christianity. Not about Imperialist Americans telling the would to be
Christian or that our system is better. This is about freedom of religion and human rights.
Jenkins (1) Hindu is dominant in India (2) Major point is that in India there are laws against forcible religious conversions. What motivates this law is not altruistic and real
motive is to make it hard to convert away from Hinduism. (3) Also a lot of personal laws. Quasi judicial entities decide things and this still exists despite constitutional attempts
to end this.
Gunn (1) France and secularism. France has strict policy of secularism called laicite. Some say most secular state in the world. Biggest separation of church and state.
(2) Reality is more complicated in fact particularly Catholic church gets more benefits b/c France is historically Catholic. Huge Catholic cathedrals are owned and subsidized by
govt. (3) Controversial b/c doctrine is used to bar people from wearing head scarves. Just don’t want over exaggerated religious worship. Maybe more about immigration.
Ravitch (1) Israel is a Jewish state that honors freedom of religion. (2) Not the tensions you would think. Main religious conflict is btw Orthodox and Reform/Liberal Jews
(3) Orthodox jews are more dominant than their numbers would justify b/c coalition govts never get a huge majority and have to work with more radical views (4) Freedom of
religion in Israel is well protected.
Garnett (1) Concern about church’s having too much power (2) Church’s are important source of limitation on govt. power (3) Not a risk to the govt. (will not take over govt) but
rather crucial to making sure there is a entity in society with a lot of authority that can provide a buffer from govt. to go too far. (4) Secularism is good for the church.
Constitutional Powers
Congressional Enumerated Powers Article 1 § 8 To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several
states, and with the Indian tribes; To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; To coin money,
regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; To provide for the punishment of counterfeiting the securities and current coin of the
United States; To establish post offices and post roads; To promote the progress of science and useful arts, by securing for limited times to authors and inventor s the exclusive
right to their respective writings and discoveries; To constitute tribunals inferior to the Supreme Court; To define and punish piracies and felonies committed on the high seas, and
offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but
no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and
naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
Executive Powers Article 2 §§ 2,3 Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when
called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to
the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. He shall have
power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur ; and he shall nominate, and by and with the advice
and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, 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. The President shall have power to fill up all vacancies that may happen during the recess
of the Senate, by granting commissions which shall expire at the end of their next session.
Section 3. He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary
and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment,
he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and
shall commission all the officers of the United States.
Judicial Powers Article 3 § 2 The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or
which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to
controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of
different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or
subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all
the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress
shall make. The 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; but
when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
The States: Privileges and Immunities Article 4 § 2 The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.
The 14th Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any
person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be
apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right
to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or
the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way
abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall
bear to the whole number of male citizens twenty-one years of age in such state. Section 3. No person shall be a Senator or Representative in Congress, or elector of President
and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an
officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such
disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in
suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection
or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.