Constitutional Law I
Prof. Karl Manheim
May 28, 2015
slides: www.lls.edu/jls/materials
copyright © 2015 – Karl Manheim
The Federal Constitution
2
Our Constitutions
1. Articles of Confederation (1781-1789)

Each state with 1 vote (and veto)
2. Federal Constitution (1789
“It is obviously impractical in the federal government
of these states, to secure all rights of independent
sovereignty to each, and yet provide for the interest
and safety of all….” Geo Washington
3. Const’n of the Confederate States (1861-1865)


Modeled after Federal Constitution
Major difference in states' rights
50 State Constitutions
3
The Federal Constitution
Creates a “union” (federal gov’t) Preamble
Arts. 1-3
Vests power in three branches

Specifies their modes of operation
State/fed’l relations (supremacy) Arts. 4, 6
Limits federal power (indiv. rights)


Original Constitution
Bill of Rights
Art. 1, § 9
Amds 1-10
Limits state power


Original Constitution
Citizenship, Eq.Pro, Due Process
4
Art. 1, §
10
14th Amd
The Federal Constitution
Creates a “union” (federal gov’t)
Vests power in three branches



Article I – the Congress
Article II – the Executive
Article III – the Judiciary
every President also
claims “inherent” power
Limits state powers
Protects individual rights
5
Gives rise to notion of
Separation of Powers
Nominally, each
branch can exercise
only those powers
specified in the
constitution
The Federal Constitution
Creates a “union” (federal gov’t)
Vests power in three branches



Article I – the Congress
Article II – the Executive
Article III – the Judiciary
Federalism
Executive Power
Judicial Review
these structural issues have generated the
most const’l law controversies since the founding
Limits state powers
Preemption
Preclusion
6
Major Themes in Con Law – Recap
Federalism (States’ Rights)

Limits on federal power; immunity; preemption
Executive Power (Separation of Powers)


Conflicts with congress, courts
Executive privileges; immunities
Judicial Review


Power of courts to review (invalidate) laws
Theories of interpretation (strict, fluid, etc.)
Individual Rights

Limits on (state & federal) government power
7
Case Studies
(from 2012-2014 terms)
Federalism - Federal Power


NFIB v. Sebelius (2012) – Affordable Care Act
Shelby County v. Holder (2013) – Voting Rights Act
Federalism – State Power

Arizona v. United States (2012) – Preemption
Executive Power – Separation of Powers


King v. Burwell (2015) – Agency powers
Texas v. United States (2015) – Executive power
Judicial Power – Justiciability

Clapper v. Amnesty Int’l (2013) - Standing
8
Federalism / Federal Power
Article I – the Congress

Section 8 – Congress shall have power to ....
Tax & spend for common defense, gen’l welfare
2.
Regulate Interstate Commerce
Every law passed by
5,6
Currency and banking
Congress must be
8.
Intellectual property
sourced in an
10-16 Military & foreign affairs
enumerated power
1.
18
clauses
in all
18.
Congress shall have power … To make all laws which shall
be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by the
Constitution in the government of the United States
9
Federalism
Article I – the Congress

Section 8 – Congress shall have power to ....
 Tax & Spend for common defense & gen’l welfare
 Regulate Interstate Commerce
 Currency and banking
 Intellectual property
 Military & foreign affairs
federalism lives in the
tension between §8
and 10th Amendment
 Necessary & proper clause

Tenth Amendment reserves state powers
“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.”
10
Issues:
1. Whether Congress has power under Article I to
mandate uninsured individuals buy health insurance.
 Interstate Commerce Clause
 Tax and Spend Clause
2. Whether the Medicaid expansion violates the 10th
Am. by “coercing” states to implement a federal
program
3. Whether the ACA must be invalidated in its entirety if
any part is found unconstitutional because it is not
“severable” from the remainder of the Act.
11
Federalism in Affordable Care Act
Whether Congress has power under Art. I
to mandate people buy health insurance
Art. I, § 8 - The Congress shall have
power:
1. To lay and collect taxes, duties, imposts and excises,
to pay the debts and provide for the common
defence and general welfare of the United States;
2. To regulate commerce with foreign nations, and
among the several states, and with the Indian tribes;
12
The Interstate Commerce Clause
Congress’ most prolific source of power

Everything from highways to employment to
crops to drugs to civil rights
Is the lack of insurance (being self-insured)


A species of interstate commerce, or
Related to interstate commerce?
13
The ACA and Federalism
Art. I, § 8, cl. 3 - Congress has power to:

regulate
includes licensing, prohibiting.
Does it include “mandating”?

interstate

commerce
at one time, read very restrictively;
now nearly all commerce is interstate
insurance is clearly “commerce”
but can congress create
commerce in order to regulate it?
Also has power to:
is the $695 a “tax” or a “penalty”?

lay and collect taxes

to provide for the general welfare
14
Congress can only tax & spend for
gen’l welfare, not “regulate” it
These seemingly technical questions go to the heart of
government – should it be small & decentralized; or large
enough to handle issues of our post-industrial society
The ACA and Federalism
Art. I, § 8, cl. 3 - Congress has power to:

regulate
includes licensing, prohibiting.
Does it include “mandating”?

interstate

commerce
at one time, read very restrictively;
now nearly all commerce is interstate
insurance is clearly “commerce”
but can congress create
commerce in order to regulate it?
Also has power to:
is the $695 a “tax” or a “penalty”?

lay and collect taxes

to provide for the general welfare
15
Congress can only tax & spend for
gen’l welfare, not “regulate” it
Nat’l Fed’n of Ind. Bus. v. Sebelius (2012)
The Commerce Clause

Power to [regulate] [interstate] [commerce]
Holdings:
1. although insurance is interstate commerce,
lack of it (or self-insurance) is not commerce
2. lack of insurance is not related to commerce
3. power to regulate commerce does not include
power to create commerce
16
Comparing Medical Expenditures
17
50 Million Uninsured in US
18
1. Lack of insurance is not commerce
Nature of insurance



3rd party insurance transfers risk of loss
self-insurance retains risk of loss
assumption of risk is an economic act
 but not an economic activity
 Does congress lack power to regulate insurance
deductibles?
Commerce Clause formalism (act vs activity)
reminiscent of late 18th / early 19th C. cases
19
2. Lack of insurance is not related to IC
Art. I, § 8, cl. 18 - Necessary & Proper Clause
“Congress shall have power … To make all laws which shall be necessary
and proper for carrying into execution the foregoing powers, and all other
powers vested by the Constitution in the government of the United States”
ACA reforms cannot work w/o mandate


w/o mandate, premiums for insureds  $1,000 each
Uninsured cost treasury & economy hundreds $Billion
Case law on N&P Clause

Gonzales v. Raich (2005)
Roberts: Mandate not “proper” because it “undermines
the structure of government established by constitution”
20
3. Power to regulate is not power to create
What does “regulate” mean?



Does it include the power to license?
Does it include the power to prohibit?
Does it include the power to create?
Roberts:

can only “regulate” a thing already in existence
 Congress cannot originate (bring into existence) the
object of its power
Compare Congress’ enumerated powers
21
Art. I, § 8 - The Congress shall have power:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
To
To
To
To
To
To
To
To
To
To
To
To
To
To
To
To
To
To
lay and collect taxes …
➔
borrow money …
➔
regulate foreign, interstate and Indian commerce ➔
establish rules of naturalization and bankruptcies ➔
coin money
➔
punish counterfeiting
➔
establish post offices and post roads
➔
[grant copyrights and patents]
➔
constitute inferior courts
➔
define and punish piracies
➔
declare war
➔
raise and support armies
➔
provide and maintain a navy
➔
govern the land and naval forces
➔
call forth the militia
➔
organize and train the militia
➔
legislate in the seat of government
➔
make all laws necessary and proper
➔
22
power to originate
power to originate
no power to originate
power to originate
power to originate
power to originate
power to originate
power to originate
power to originate
power to originate
power to originate
power to originate
power to originate
power to originate
power to originate
power to originate
power to originate
augmenting power
Insurance Mandate as a Tax
Congress shall have power: To lay and collect taxes, duties,
imposts and excises, to pay the debts and provide for the
common defence and general welfare of the United States
Relation to § 8 substantive powers


A penalty is a form of regulation (enforcement)
A tax need not be related to substantive power
Is the noncompliance penalty a “tax”

Roberts: The “penalty” merely induces behavior; it
does not compel behavior; thus it is akin to a tax
 Resurrects Hamilton/Madison debate on tax power
23
ACA Medicaid Expansion
Congress shall have power: To lay and collect taxes, duties,
imposts and excises, to pay the debts and provide for the
common defence and general welfare of the United States
Medicaid is Congress’ largest grant to States

ACA expands coverage
 Additional $450 Billion by US over 10 years
 Additional $20 Billion by States

Non-complying States lose all Medicaid funding
 “Conditional” federal funding is ok, but
 “Coercive” federal funding is not
Congress cannot “commandeer” the States
24
Shelby County v. Holder
(2013)
Civil War Amendments:



13th (1865) – slavery
14th (1868) – citizenship, individual rights
15th (1870) – voting
§ 1 – “The right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude.”
§ 2 – “The Congress shall have power to enforce this article by
appropriate legislation.”
note the similarity to the
necessary & proper clause
25
Shelby County v. Holder
(2013)
Voting Rights Act of 1965 (VRA)



Fruits of the civil rights movement
§ 2 prohibits any voting qualification or procedure
that results in a denial or abridgement of the right to
vote on account of race, color, or language status
§ 5 prohibits “covered jurisdictions” from changing
voting procedures without “pre-clearance” from AG
 covered jurisdictions are defined in § 4 as those
states with a history of disenfranchising minority
voters

Change allowed only if it "neither has the purpose
nor will have the effect of denying or abridging the
right to vote on account
of race or color."
26
Shelby County v. Holder
CJ Roberts’ Opinion


VRA violates state sovereignty to extent it does
more than simply “enforce” the 15th Amend.
past discrimination is not sufficient basis for
pre-clearance
 especially since the VRA has been so successful

also violates “equal sovereignty” principle
§ 4 formula can no longer be used


§ 5 not invalidated, but inoperative
§ 2 still being enforced by DoJ
27
The Great Federalism War
28
28
Federalism Limits on States
Dormant Commerce Clause
Privileges & Immunities Clause
Preemption
29
Federalism Limits on States
Dormant Commerce Clause
1 States Can’t Regulate Interstate Commerce
the DCC is an example of const’l preclusion – state law
that is prohibited by the const’n (explicitly or implicitly)
because congress has exclusive power in the matter
Privileges & Immunities Clause
Preemption
Business Entry
Extraterritorial Effect
Sam Francis Fnd’n v. Christies (9th Cir. 5/5/15)
(invalidating part California Resale Royalty Act)
30
Federalism Limits on States
Dormant Commerce Clause
1 States Can’t Regulate Interstate Commerce
2 States Can’t Discriminate Against IC
Privileges & Immunities Clause
Preemption
Higher taxes for out-state business;
Regulatory preference for in-staters
31
Federalism Limits on States
Dormant Commerce Clause
1 States Can’t Regulate Interstate Commerce
2 States Can’t Discriminate Against IC
3 States Can’t Burden IC
More
Privileges & Immunities Clause
Preemption
Amazon claimed
that collecting
sales tax in Calif
would be
burdensome
“constitutional
law” cases in
fed. ct. involve
DCC than 1st Am
Burdensome business regulations
Balancing – on its way out
32
Federalism Limits on States
Dormant Commerce Clause
Privileges & Immunities Clause

States can’t discriminate against non-residents
 In enjoyment of “fundamental rights”
Preemption
Practicing trade, professions
But not voting, subsidies
33
Federalism Limits on States
Dormant Commerce Clause
Privileges & Immunities Clause
Preemption


Express preemption (in text of federal law)
Implied preemption (infer from text, history)
 Reading tea leaves of congressional intent
State labor, environmental, banking,
health, insurance regs, tort liability
34
Arizona v. United States (2012)
SB 1070 - Operative terms:
§ 11-1051B - state officials must make “reasonable
attempt” to ascertain immigration status whenever
reasonable suspicion exists that a person is an [unlawful]
alien
§ 11-1051E – arrest without a warrant if probable cause to
believe that the person is removable from the US
§ 13-1509A - in addition to any violation of federal law, a
person is guilty of trespassing if the person is (in Arizona)
in violation of 8 U.S.C. §§ 1304(e) or 1306(a).
 § 1304(e) – failure to carry authorization
State & local law enforcement personnel not
typically trained in immigration matters
35
Arizona Immigration Law – SB 1070
or what if you’ve filed
any of these forms?
36
Arizona Immigration Law – SB 1070
Purpose of SB 1070:

“to discourage and deter the unlawful entry and
presence of aliens and economic activity by persons
unlawfully present in the United States”
 Does Arizona have power to deter unlawful entry?
Preclusion:

States lack power to regulate immigration
 Where power does not exist, it does not spring into
being by need or failure of the US gov’t to act.
 Thus, even where state law is consistent, or where
congress is silent, states would be powerless to act
37
Arizona Immigration Law – SB 1070
Preemption:

SB 1070 is impliedly preempted by federal law
 frustrates congress intent in alien regulation
 federal immigration law “occupies the field”

Especially true where dominant federal interest
 National security
Matters of
national
sovereignty
 Foreign affairs
 Immigration
"In respect of our foreign relations generally, state
lines disappear. As to such purposes the State of
New York does not exist." US v. Belmont (1937)
38
Executive Power
Express (textual) Powers

Domestic affairs
 Issue pardons & reprieves
 Fill temporary vacancies
 Take care that laws are “faithfully executed”
 Appoint judges & officers
 Recommend / approve (or veto) legislation

Military & Foreign Affairs
 Commander-in-Chief of the armed forces
 Make treaties
 Appoint & receive ambassadors
39
Executive Power
Express (textual) Powers

Domestic affairs
 Issue pardons & reprieves
 Fill temporary vacancies
 Take care that laws are “faithfully executed”
 Appoint judges & officers
 Recommend legislation

Military & Foreign Affairs
 Commander-in-Chief of the armed forces
 Make treaties
 Appoint & receive ambassadors
40
King v. Burwell (2015, pending)
Affordable Care Act



§1311(b)(1) ”Each State shall, not later than 1/1/14,
establish an American Health Benefit Exchange.”
§1311(c) If a state fails to set up an Exchange itself,
then the Secretary of HHS shall "establish and operate
such Exchange within the State.”
§1411 Premium Assistance Tax Credit, based on
 monthly premiums for health plans offered in the individual
valid
interpretation

by IRS?
market within a State ... and which were enrolled in through
an Exchange established by the State under §1311
26 C.F.R. § 1.36B-1: Premium tax credits available to
 “State Exchanges, regional Exchanges, subsidiary
Exchanges, and a Federally-facilitated Exchange.”
41
King v. Burwell (2015, pending)
Lawsuit


Pl’s claim absent tax credit they’d be exempt
is IRS rule ultra vires (contrary to statute)?
Chevron Rule (Chevron v. NRDC)


drafters
claim the
language
was simply
inadvertent
Where legislative text or intent is clear, courts will
interpret de novo
Where text is silent or ambiguous, courts defer to
agency interpretation unless unreasonable
 text is ordinarily read in context, not isolation
 4th Circuit found IRS interpretation was plausible
 based on Congress’ intent to maximize coverage
42
Texas v. U.S.
(May 26, 2015)
Challenge to Obama’s DAPA program

Deferred Action for Parents of Americans (2014)
 eligible for federal public benefits (incl. Medicare) and
work authorization
 possibly state benefits (e.g., drivers’ licenses)
 “prosecutorial discretion” similar to DACA (2012)
26 States suit

Violates Administrative Procedure Act (APA)
 Notice and Comment req’d for substantive law
 Review because non-enforcement imposes costs on TX

Take Care Clause (faithfully execute the laws)
43
Administrative Agencies
Rise of the Administrative State


Due to breadth of federal regulation
Develop institutional expertise
What do they do?

Legislate, Execute (administer), Adjudicate
Constitutional Framework


Agencies are nominally in executive branch
 But Congress can create “independent agencies”
Exercising powers delegated by congress
 “Intelligible principle” principle
 Chevron test for validity of agency actions
44
Administrative Agencies
Federal Government
Art. II
Legislature
creates and
delegates
power
Executive
Judiciary
reviews
controls
Administrative Agencies
45
Examples of Admin Agencies
46
47
Functions of Admin Agencies
Executive functions

administer/enforce federal law
Quasi-Legislative Functions

promulgate rules, regulations,
& (micro) policy
 congress can override by statute
Quasi-Judicial Functions

adjudicate disputes involving agency functions
48
Administrative (Agency) Courts
Article I Courts

Usually resident within an agency
 Ex: USPTO, FCC, FDA, FTC, HHS, SEC

Some are free-standing
 Ex: Bankruptcy court; Ct. of Federal Claims

Administrative Law Judges look like real judges
 Hired, not appointed

Ultimate review by Article III courts
 Guantanamo tribunals
Similar role in state systems
49
Administrative (Agency) Courts
Agencies adjudicate “public rights” disputes


Controversies involving government
Not “inherently judicial” matters
Guantanamo Trials



Combatant Status Review Tribunals
Outside of (Article III) federal courts
SCt rejects effort to insulate from judicial review
 Boumediene v. Bush (2008)
50
Phenomenon of Agency Capture
Failure of government oversight

Cozy relationship with industry
 Agencies become “regulated” by the industries they
oversee, rather than regulate them
Structural features allowing for capture


No direct accountability (except through Pres.)
Little public oversight
 Complexity of functions/industry
 Lack of press investigation

counter-example:
Net neutrality rule
adopted by FCC
Reduced “standing” to challenge actions
51
The Judicial Power
Creates a “union” (federal gov’t)
Vests power in three branches



Article I – the Congress
Article II – the Executive
Article III – the Judiciary
 Federal judicial power is limited Each branch can
 in furtherance of federalism
in our dual judicial system, limits on
federal courts protect the jurisdiction
(hence power) of state courts
52
exercise only
those powers
specified in the
constitution
Federal Courts
Supreme Court


only court created by Article III
original jurisdiction
 cases involving states and foreign states/diplomats
 cases between states => mandatory jdx


usually heard by Special Master
appellate jurisdiction
 all other cases within the S.Ct’s judicial power
 jdx is discretionary (currently ~ 80 cases / ~3,000)

certiorari usually granted when conflict among lower cts
53
Federal Courts
Inferior Federal Courts

created by Congress (pursuant to Art. III)
54
Federal Courts
Limits on jurisdiction (apply to all fed cts)


Standing / Justiciability
Statutory limits
Non-Article III courts

created by Congress under Art. I
55
State Courts
State judges are elected, may be
less faithful to the constitution
Derive “jurisdiction” from state constitutions

“General” jurisdiction (not “limited” like fed cts)
Federal issues in state court

States must hear federal claims & defenses
 unless congress vests exclusive jurisdiction in fed. ct


USSC can review fed issues in state decisions
Lower federal courts can’t review state cases
 Exception: habeas corpus
State issues in federal court
56
Choice of forum
can be critical
State Constitutional Law
Parallel to federal constitution


Structure
Rights
 Bill of Rights did not apply to states before 14th Amd
 Some states have expanded rights
Example Equal Education Funding

Federal Law
 No right. San Antonio v. Rodriquez (1973)

State Law
 In many state const’ns (Edgewood v. Kirby, 1989)
57
Standing
Justiciability – “cases or controversies”

Standing – is this the right plaintiff?
 Discrete & Palpable Injury (no generalized grievances)
 Caused by Defendant (Traceability),
 Redressable by the court
 Asserting Personal Rights (no 3rd party standing)



Ripeness – is it too soon?
Mootness – is it too late?
Political Question –
 Some constitutional provisions were intended to be
enforced solely by the political branches (not courts)
58
Clapper v. Amnesty Int’l
(2013)
FISC

Foreign Intelligence Surveillance Act of 1978
created Foreign Intelligence Surveillance Court
 11 judges appointed by the Chief Justice
 meet in secret; issue secret opinions
FISA Intercepts Issued by FISC

§ 215
bulk
metadata
collection
If purpose is foreign intelligence gathering
 Do not have to meet 4th Amd. standards
 Pre-PATRIOT Act - intercepts can be used only for
intelligence purposes–NOT in criminal cases
 Post-PATRIOT – information sharing for crim purposes
59
Clapper v. Amnesty Int’l
(2013)
Background
 NY Times discloses massive illegal surveillance
 Congress passes FISA Amendments Act (FAA) to
retroactively authorize warrantless intercepts
 Attorneys representing foreign nationals and
journalists communicating with foreign sources
challenged FAA as violating 1st Amendment
Holding (5-4, by Alito)
 Plaintiffs lack standing – no particularized injury
 cannot show their communications were likely to
be surveilled by U.S. intel agencies
60
Major Themes in Const’l Law
Judicial Review
Federalism
Executive Power
Individual Rights
Saturday
61