Constitutional Law Outline Professor Pursley University of Texas Fall 2009

The Role of the Supreme Court in the Constitutional Scheme I. Origins and History a. Concepts i. Federalism: The vertical separation of powers between national and state governments ii. Separation of Powers: Executive, Legislative, and Judicial branches b. The Federalist No. 10 (Madison): Madison s fear of the power of factions to influence and control democracies dominate his justification for a republic and the need for a national constitution i. Factions are a number of citizens united by some common impulse or passion, and are inherent in the nature of men ii. Factions would be more powerful in smaller republics (states), hence the need for a national government c. The Federalist No. 51 (Madison): Here Madison argues for separation of powers and the idea of checks and balances i. ambition must be made to counteract ambition d. Two things which make C. unique i. Entrenchment: C. makes its own laws hard to change. Article V amendment process only way to do it. ii. Trumping Power: Power to invalidate conflicting ordinary law provisions Theories of Constitutional Interpretation a. Originalism: judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution. Emphasis on the intent of the founders/ratifiers i. If C. is silent on an issue, its not for the courts to decide -> legislature. Courts should not recognize un-enumerated rights ii. C. evolve only by amendment iii. Problems? b. Textualism: judges should decide constitutional issues based on the exact text of constitution, given the ordinary meaning of the words. Outside information is not important or relevant i. Problem? Text alone is often too vague c. Living Constitution/Empathy: meaning of constitution should fit contemporary circumstances (subject to economic, moral, etc considerations) i. If C. silent on issue, the court can interpret C. to protect rights that are not expressly stated or clearly intended ii. C. evolve by interpretation

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d. Constitutional Cannon: court should always choose to interpret statute in such a way that is constitutionally permissible. Federal Judicial Power III. Article III a. Created federal judiciary system and defined its powers b. Vests judicial power of U.S. in one supreme Court and in such inferior courts as Congress may from time to time ordain and establish c. Specifically enumerates the cases and controversies in which the supreme court has original jurisdiction. Issues in which the U.S. is party, issues b/t citizens of mult. States, and others. d. In all other cases, S.Ct. is granted appellate jurisdiction subject to such exceptions and under such regulations as Congress shall make (exceptions clause) Authority to Review of Acts of Congress - Judicial Review a. Marbury v. Madison: Right before leaving office, President Adams appoints several new judges, signs the commissions, but fails to deliver them. Jefferson gets to office the next day and refuses to do so. One of the would-be justices (Marbury) sues secretary of state (Madison) in the S.Ct., giving them original jurisdiction, for a writ of mandamus compelling Madison to deliver his commission. i. Judiciary Act: The then effective judiciary act gave S.Ct. original jurisdiction to issue writs of mandamus to persons holding office under the authority of the U.S. ii. Constitutional? However, Marshall ruled that because the above provision gave the S.Ct. a power that was at odds with Article II of the C (original jurisdiction), it was invalid. iii. Hence, judicial review established: The court ruled that when it identified a conflict b/t a constitutional provision and a congressional statute, the Court has the authority (and duty) to declare the statute unconstitutional and refuse to enforce it. iv. Other issues 1. Could he have reasoned differently using the exceptions clause? 2. If Marshall had ruled in favor of Marbury, would Jefferson have even listen? Probably not, which would be a big blow to power of courts v. Criticisms of Marbury: No where in the C. does it say courts, not Congress, have power to decide what s constitutional and what s not b. Reasons supporting Judicial Review i. Courts are insulated from political pressures 1. Judges appointed for life

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It is emphatically the province and duty of the judicial department to say what the law is c. Criticisms of Judicial Review i. Counter-majoritarian difficulty: judges are not elected by the people, court is undemocratic 1. Response: Constitutional law is higher law; take a lot of effort to get ratified and thus are special compared to normal laws ii. Nowhere in the Constitution is it stated that the courts, not Congress, ought to decide whether a given statute conflicts with Constitution. Authority to Review State Court Decisions a. General Principles of Review: Article III, 2, provides that S.Ct s appellate jurisdiction may be regulated and limited as Congress shall provide. Since the original Judiciary Act in 1789, S.Ct s appellate review of state court judgments has always been limited to the federal questions decided by state courts i. No review of state law issues: S.Ct may determine whether a state court has reached a decision not in conformity w/ Constitution, but may not review state court decisions that merely adjudicate questions of state law. b. Martin v. Hunter s Lessee i. Virginia s argument: Martin involved whether a particular Virginia statute conflicted with a federal treaty. The Virginia courts took the position that if litigation commenced in the state courts, then it was up to the state to say whether the state action violated the federal constitution, the US S.Ct had no right to review their conclusion ii. S.Ct Holding: J. Story flatly rejected Virginia s view, and held that S.Ct could review the constitutionality of a decision by a state s highest court. 1. Sovereignty argument rejected: Virginia court s assertion that it was a sovereign was rejected on the grounds that the Constitution cut back on state sovereignty in numerous respects, and there was no reason to presume that state judiciaries were immune from those limitations 2. Constitutional presumption: Story argued that the C presumed S.Ct could review state court decisions. Since the C creates a S.Ct and gives Congress discretion to create lower federal courts, if Congress didn t create any then the S.Ct would be powerless to hear cases, except for the few that fall into its original jurisdiction 3. Uniformity: There was also a need for uniformity in decisions throughout the nation in interpreting the

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Constitution, lest the interpretations be different in different states iii. Further justifications 1. Possible state hostility to federal rights: Either b/c they lack tenure and salary protections of Article III, and thus are more susceptible to political influence, or b/c they have natural alliance w/ legislative and executive parts of state governments, state judges might be less sympathetic to federal rights. (possibly vulnerable to majoritarian pressure) iv. Cohens v. Virginia: Martin dealt with S.Ct review of state civil cases. Here, the S.Ct s right to review state criminal cases for constitutionality was similarly upheld. v. Cooper v. Aaron: Arkansas claimed that they would not desegregate, contrary to a lower federal court order. S.Ct reaffirmed authority to review state laws and actions of state officials, and that federal judiciary is supreme in the exposition of the law of the Constitution (Marbury) and that every state legislator is bound by oath to support the C. Justiciability VI. Policies served by justiciability doctrines a. Limitation of federal court jurisdiction to issues presented in an adversary context and capable of being resolved by judiciary b. The maintenance of the separation of powers, by assuring that the federal courts do not intrude into areas reserved for the two other branches of government. Constitutional vs Prudential Requirements a. Constitutional: come from article III, 2. b. Prudential: In some cases wise policy militates against judicial review c. Congress may override prudential, but not constitutional, restrictions Advisory Opinions a. Case or controversy requirement: Article III, 2. Federal courts cannot issue abstract or hypothetical opinions, or advisory opinions. That is, opinions which give advice about particular legislative or executive action, when no party is before the court who has suffered injury. i. Example: Washington asks for court s opinion about treaties in European War. Court says sorry, C separation of powers principle limits president to asking members of the executive branch, not judiciary b. Two criteria to NOT be advisory opinion

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i. Need for focused controversy: judiciary can only decide focused, specific conflicts. Must be actual dispute between adverse litigants ii. Substantial likelihood of decision having effect: there must be a substantial likelihood that a decision in favor of a claimant will bring some change or have some effect. If not (executive can ignore decision, e.g.), court will say it s an advisory opinion and wont entertain the case c. Hayburn s Case: Court reviewed whether federal courts could express non-binding opinions on the amount of benefits owned to Revolutionary War vets. Congress passed a statute allowing vets to file claims in federal circuit courts, and for judges to issue opinions on how much they should get. The secretary could refuse to follow recommendation. Justices ruled that making such recommendations was not of a judicial nature and would violate separation of powers since judicial actions could be revised or controlled, and that was inconsistent with independence of judicial power. d. Plant v. Spendthrift Farm, Inc: court applied principle in Hayburn to find unconstitutional a federal statute that overturned a S.Ct. decision dismissing certain cases. In 1991, court ruled that actions brought under certain securities law had to be brought within a year of discovery of facts of violation or three years of violation. Congress then amended law to allow cases to go forward. Court declared act unconstitutional as violation of separation of powers. J. Scalia said Constitution gives court power not merely to rule on cases, but to decide them. Because judicial power is one to render dispositive judgments, the federal statute effects a clear violation of SOP. i. Not illegal to reopen cases, per se (habeas corpos), just illegal to reopen pursuant to Congress s command e. Declaratory judgments: one in which the court is not requested to award damages or an injunction, but rather requested to state what the legal effect would be of proposed conduct by one or both of the parties i. Some actions allowed: Court has permitted federal court review of at least those declaratory judgment actions which are reasonably concrete ii. But not all: if a declaratory judgment action presents only questions that are unduly hypothetical or abstract, federal court may conclude its being called upon to issue an illegal advisory opinion 1. Criminal statutes: A plaintiff seeking declaratory judgment that a criminal statute is unconstitutional must generally show either: (1) a sometimes enforced prohibition on its face clearly applies to conduct which the P regularly engages or will engage; or (2) an actual threat that the statute will be enforced against the P

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Standing a. Generally, to invoke powers of court, litigant must have a significant stake in the controversy. Constitutional requirements for standing are: injury in fact, causation, and redressability. Prudential requirements are no general grievances, no third party, zone of interest i. Remember, Congress can get rid of prudential requirements, not Constitutional ones b. Values served by limiting standing i. Promotes separation of powers by restricting the availability of judicial review. ii. Serve judicial efficiency by preventing flood of lawsuits by those who only have ideological stake in outcome c. Prudential Requirements: i. No General Grievances: Litigant must show that his interest in the controversy is somehow more direct and individualized than that of the general population. (can t sue as a taxpayer, i.e.) ii. No third parties: Litigant may not assert the constitutional rights of persons not before the court 1. Note though, that b/c this is prudential, court has been free to develop exceptions to this rule iii. Within Zone of Interests protected by statute in question: if a plaintiff is suing pursuant to a statutory provision, in order to have standing the plaintiff must be part of the group intended to benefit from the law d. Injury in fact Requirement i. Must be personally suffered injury ii. Must be Actual or Imminent : Lujan v. Defenders of Wildlife 1. P challenges federal agency action that they say will have the effect of endangering certain species abroad. They allege that because they sometimes travel to these places, they have an injury in fact b/c they wouldn t be able to study them anymore. Held, for D, b/c P has not shown the requisite actual or imminent harm. 2. Such someday intentions without any description of concrete plans, or indeed any specification of when the someday will be do not support a finding of the actual or imminent injury that our cases require iii. Sierra Club v. Morton: Held that the Sierra club could not prevent construction of ski valley in California b/c there was no allegation of any Sierra club member actually using Mineral King Valley. A mere interest in the problem (here, conservation of national parks and forests) is not sufficient. e. Causation Requirement

i. The injury would not have occurred but for the challenged action. Fairly traceable to D s conduct f. Redressability Requirement i. A favorable decision would redress the injury ii. Confusion in redressability standard: Sometimes P must show a favorable decision will probably redress the injury. Other times not. g. Allen v. Wright: Can t sue government b/c its policies allow a third party to do something which in turn affects you. No standing. i. Facts: parents of black public school children attacked IRS s grant of tax-exempt status to discriminatory private schools. Claim was that tax breaks allow schools to offer cheaper tuition, thus allowing more whites to go there, thus depriving black students of constitutional right to attend integrated schools ii. Held: line of causation from IRS s conduct to continued segregation was so attenuated that the latter was not fairly traceable to the former iii. For there to be standing, parents would have to show: (1) withdrawal of tax exemptions would have a significant impact on public school integration; (2) that a significant number of schools would, if threatened with loss of exemption, change their polices; and (3) a significant number of parents would switch back to public schools if exemption was withdrawn. 1. Dissent points out that basic economics would show these to be true iv. This case established that causation and redressability are two separate components. Here, though the halting the IRS exemptions would likely redress the situation, b/c the IRS wasn t the party that caused the violation, claimants could not have standing h. Massachusetts v. EPA: when P is a state acting on behalf of citizens, usual rules of standing will be relaxed i. Facts: Mass. and 10 other states sued EPA charging that EPA was required to issue regulations for emissions for cars in U.S., thus reducing global warming. ii. Injury in Fact: Mass claimed rising waters posed danger to its coastlines. Who suffers? 1. Mass suffered both in its quasi-sovereign capacity as representative of citizens, and in state s own capacity as owner of coastal land. 2. Note that usual requirement that future harm be imminent and immediate is relaxed here iii. Causation and Redressability 1. EPA s argument: (1) auto emissions in US account for only small portion of present global warming; (2) even

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if EPA did regulate emissions, it would have only a negligible effect; (3) any EPA-caused reduction would be swamped by ever-growing emissions outside of US 2. Court rejects: a reduction in domestic emissions would slow the pace of global emission increases, no matter what happens elsewhere. 3. Again, as dissent points out, usual requirements of redressability, which includes that requested relief be likely to redress, don t seem to be met. Any action by court would seem to have only a marginal effect on global warming i. City of L.A. v. Lyons i. Generally, the injury in fact requirement is met by those who can show a significant threat of future injury. But this threat must be real and immediate. ii. Facts: Lyons seeks injunctive relief to prevent to use of chokeholds in arrests. Lyons had been a victim of the chokehold, but b/c he could not also show that he was likely to suffer future injury from chokeholds from police, he was denied standing. To show likelihood, he would have to prove either (1) all police in LA always use chokeholds, or (2) the city order police to use chokeholds. Political Questions a. Some allegations of unconstitutional government conduct should be left to the politically accountable branches of government, i.e., some subject matter is simply inappropriate for judicial review. b. Reappointment: Baker v. Carr i. Until 1962, court had refused to adjudicate claims concerning legislative apportionment, on the grounds it was a political question. But in Baker, they changed this. ii. Challenge in Baker was apportionment of the Tennessee Assembly, which had not been reapportioned in 60 years and had changed a lot. iii. Court concluded that the claim involved a violation of the Equal Protection Clause, and did not present a political question c. Baker v. Carr Criteria: Court gave six factors, one of which must be present in order to make an issue a non- justiciable political question i. Commitment to another branch: A textually demonstrable constitutional commitment of the issue to a coordinate political department (i.e., Congress or president) 1. Impeachment proceedings 2. Amendments to the Constitution ii. Lack of standards: A lack of judicially discoverable and management standards for resolving the issue 1. Guarantee clause cases: claims based on Article 4, 4 which provides that the US shall guarantee to every

state a Republican form of government are generally held to be non-justiciable political questions 2. Luther v. Bordon: most famous guarantee clause case. Rhode Island had 2 different governments pop up, and wanted S.Ct. to decide which was the lawful government. Court declined, saying it posed political question iii. Unsuitable policy determination: The impossibility of deciding the issue without an initial policy determination of a kind clearly for non-judicial discretion iv. Lack of respect for other branches: The impossibility for a court s undertaking independent resolution without expressing lack of the respect due co-ordinate branches of government v. Political decision already made: An unusual need for unquestioning adherence to a political decision already made vi. Multiple pronouncements: The potential for embarrassment for multifarious pronouncements by various departments on one question. 1. Echoes the need for a unified voice (especially regarding foreign affairs) 2. For instance, Court has refused to decide whether the president can terminate a treaty without Congressional approval d. Criticism of Baker Criteria i. Usually viewed as confusing and unsatisfactory e. Gerrymandering: a device by which the strength of a particular voting bloc is curtailed by restricting members to carefully and artificially constructed districts. i. Vieth v. Jubelirer: Political gerrymandering could theoretically be justiciable. A 5-person majority concluded that although it is hard to figure out a standard for determining which gerrymanders are so extreme as to violate the C, the Court should not hold them to be categorically non-justiciable. ii. 4 person dissent said that there are no judicially discernible and manageable standards for adjudicating gerrymandering cases The Federal Legislative Powers XI. Concept of Federalism: National and state governments co-exist. a. Federal government has limited powers: Fundamental attribute of federal power under Constitution is that the federal gov. is one of limited, enumerated, powers. That is, the three branches of federal gov can only assert those powers specifically granted by the C

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i. Comparison w/ State powers: power of state gov might be called inherent, state gov has general police powers. A action by state gov is valid unless it violates some specific limitation imposed by C. A federal action, in contrast, must fall within one of the enumerated powers. 1. No general federal police power, i.e., no right of federal gov to regulate for the health, safety or general welfare of citizenry, unless it falls within a specific enumerated power. 2. 10th amendment: powers not delegated to fed gov by C are reserved to the states. ii. Review of gov action: Thus, for an action by fed gov to be valid, it must meet two distinct requirements 1. It must fall within one of the enumerated powers 2. It must not violate any particular limitation on federal power given in the C. (e.g. bill of rights) b. Specific powers: Article I, 8. i. Lay and collect taxes ii. Provide for defense of country iii. Regulate commerce iv. Etc, etc v. make all laws which shall be necessary and proper for the carrying into execution the foregoing powers, Implied Powers: McCulloch v. Maryland a. Doctrine of implied powers: Fed gov can only act when affirmatively authorized by C, but authorization doesn t need to be explicit. By implied powers, fed gov may validly exercise power that is ancillary to one of the powers explicitly listed in C, so long as ancillary power doesn t conflict with specific Constitutional prohibitions b. necessary and proper clause: Notion of implied powers explicitly stated in necessary and proper clause of Art I, 8. c. Facts: Congress chartered second bank of US in 1816. States didn t like and enacted anti-bank measures, here, Maryland imposed tax on federal banks. d. Constitutionality of Bank: Marshall disposed of Maryland s argument that powers of fed gov were delegated to it by the states, and that these powers must be exercised in subordination to the states. Marshall concludes that powers come directly from the people, not the states e. Constitutionality of Maryland s Tax: the power to create a bank includes the power to preserve its existence. Thus, state may not tax bank since doing so would impede its operation and potentially even tax it out of existence. Also, state tax on the bank would essentially be a tax on the other states. Those being taxed were therefore not represented, and the tax is illegitimate. f. Grant need not be explicit

i. Congress has power to create corporation (here, the Bank) if its incidental to the carrying out of one of its enumerated powers. ii. Marshall rejects contention that necessary meant absolutely necessary or indispensable. Instead, he said, let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, and which are consistent with the letter and spirit of the C, are constitutional 1. Basically, as long as means are rationally related to constitutional object, means is also constitutional iii. Support for conclusion: Marshall pointed to a number of other where Congress power to carry out constitutionally specified objectives had been liberally interpreted. For instance, C doesn t not contain any grant to punish violations of federal law, but this power had always been inferred iv. Separation of powers rationale: An examination by the judiciary into the degree of necessity justifying a statute would infringe on Congress domain. Court should only strike down law where it s quite clear no constitutional objective was being pursued. The Federal Commerce Power XIII. Article I, 8: gives Congress the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes Prior to 1933 a. Gibbons v. Ogden (1824): first major case construing commerce clause. Developed broad sweeping view of congressional power i. Facts: Ogden acquired grant from New York legislature to operate steamboats b/t NY and NJ. Gibbons began operating boats in Ogden s territory, which was against Ogden s grant. Gibbon s boats, however, were licensed under federal statute ii. Held: Marshall found NY injunction invalid b/c the monopoly conflicted with a valid federal statute, thus violating the Supremacy clause. iii. Reason: Under CC, congress could legislate with respect to all commerce which concerns more states than one Commerce includes not only buying and selling, but all commercial intercourse iv. Congress has power to regulate activity within a state, so long as the activity had some commercial connection with another state

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v. Marshall claims Congress won t become bad guy and take power away from state b/c political process will prevent that (Fed 45 & 46) 1. People will be more loyal to state government and b/c of that, constituent demand will tend towards keeping power in state 2. Criticism of above is that it s empirically false b/c (1) states may not be able to handle big problems and (2) National emergencies occur, federal steps in. and once it takes power its hard to get it back b. TAKE SOME SPACE HERE TO DRAW 4 BOXES AND PREEMPTION STUFF c. Economic Regulation in this time: S.Ct. review of economic regulatory laws during this time was characterized by dual federalism, that is, there were areas of economic life, which under the 10th amendment, were to be left to state regulation i. CC power could only be invoked when the activities being regulated had substantial economic effect d. Shreveport Rate Case: court used substantial economic effect approach. Interstate commerce commission sought to prevent railroads from setting rates different for routes completely within Texas from those from LA to TX. Railroads said Congress has no right to control intrastate rates of interstate carrier i. Held: Court rejected RR challenge, saying that the CC necessarily included right to regulate all matters having such a close and substantial relation to interstate traffic that control is essential or appropriate to the security of that traffic ii. As long as ultimate object is to protect interstate commerce, congress can regulate intrastate activity e. United States v. E.C. Knight: line drawing. There is some line b/t raw materials, manufacturing, and finally, movement of goods across state lines (Interstate commerce). Congress can only regulate things in the third category. Case involved sugar monopolies. i. 2 Constitutional challenges: Facial challenge, As applied challenge ii. Are the lines arbitrary? iii. DRAW DIAGRAM f. Stream of commerce theory : Activity could be regulated under CC b/c activity itself could be viewed as being in the steam of commerce. g. Prohibiting some interstate commerce: note that the power given to Congress by C only includes power to regulate, not prohibit i. Champion v. Ames (The Lottery Case): Congress passed federal lottery act, which prohibited interstate shipment of

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lottery tickets. Court upheld by 5-4. Began opinion with statement of evil of lottery tickets (moral regulation?) ii. Dissent: Congress can only regulate, not prohibit. Argument based on the purposes of the CC (facilitate movement of goods) h. Hammer v. Dagenhart (Child labor case) i. Holding: court voted 5-4 to strike down federal statute which prohibited the interstate transport of goods produced by companies who used child labor ii. Rationale: Distinguished from other police power/commerce prohibiting statutes the court had upheld; in those cases the interstate transportation being prohibited was part of the very evil sought to be prohibited (distinction from the lottery case, where lottery tickets viewed as inherently evil). Here, only the child labor was evil, and this labor was not directly related to IC. iii. Holmes Dissent: In the long run, the dissent became more important. Holmes argued that so long as the congressional regulation falls within power specifically given to Congress (here, power to regulate IC), the fact that it has a collateral effect on local activities otherwise left to state control doesn t matter. 1. 10th amendment no force: Holmes dissent implicitly rejects 10th amendment as source of limitations on federal authority. So long as congressional action technically comes within an enumerated power, it is valid no matter how substantially it impairs states ability to regulate local affairs. This became the majority view in 1937, and has continued to the present. iv. What is Congress s purpose in Child Labor Act? 1. Child labor morally wrong 2. Economic level competitive playing field 3. But neither of these two is within Congress s power, so they make financial disincentives for having child labor (pretext). 4. Remember Marshall in McCulloch if permissible statute or end is merely pretext for some impermissible end, court must strike it down v. Remember also, police power is power to promote general welfare. Constitution doesn t grant this power to Congress, so by 10th amendment it is left to states. Initial Barriers to New Deal (starting 1933) a. Schechter Poultry v. United States: At issue was the National Industrial Recovery Act (NIRA), which authorized president to adopt codes of fair competition for various trades or industries; the code regulating items such as min. wage, prices, collective bargaining, etc.

i. Schechter was convicted of violating wage and hours provisions. Although the majority of the chicken the company bought came from other states, all of their operations were within NYC. (manufacturing/delivery/etc) ii. Theoretical framework of majority 1. Argument against stream of commerce idea, b/c interstate transactions ended when shipments reached Schechter s slaughterhouse. 2. Benefits of preserving federalism outweigh those by enacting statutes 3. Basically, E.C. Knight s line drawing with another step a. You ve got manufacturing, which is local b. Then you ve got movement, which is part of IC c. But once you get delivery to destination, it s local again 4. Also talked about direct/indirect effects problem. Direct effect on IC are ok, but indirect are not. The worry being that if the court allowed indirect effects, that can be extended to almost anything. Hence, states lose power and there goes federalism. iii. Non-delegation issue: In addition to CC concerns, court ruled that the Act impermissibly gave the president legislative powers b. Carter v. Carter Coal: Challenge to the Bituminous Coal Conservation Act, which set max hours and min wages for coal workers. i. Holding: Unconstitutional, court returned to the distinction in E.C. Knight between production and commerce. Production, which was meant to be regulated here, was a purely local activity, even though the materials produced would eventually be shipped interstate. 1. Local evil: As in Hammer, the issue was the link b/t employer-employee relationship and interstate commerce, and it could not be said that this relationship had a sufficiently direct effect on IC. Also, employeremployee relationship was local, and whatever evil characterized the relationship, Congress had no authority to control ii. Tension b/t wanting to keep C. formalism regarding IC and the need for Congress to do things for the betterment of national economy c. Why aren t court more eager to pass these New Deal statutes? i. Once you give broad reading of CC, its there for good. Powers, once given, are never returned ii. In times of crisis, people are prone to overreact. Mob mentality. Courts are there to prevent that. You can t get rid of Constitution b/c you ll need it tomorrow.

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d. Reality that s becoming obvious in these cases: Interstate commerce encompasses much more than judicial interpretation of it. Everything is interconnected e. Court reluctant to give up judicially enforceable federalism constraints. Didn t do so until FDR s court packing threat After 1937: The Modern Trend a. Generally, went away from past tests of direct/indirect or stream of commerce and upheld statutes as long as they had substantial affects on IC. Only one case since 1937 has court found that Congress overstepped CC powers (Lopez) b. Three Theories: The court expanded the reach of the CC via three theories upon which commerce based regulation may be premised: an expanded substantial economic effect theory, a cumulative effect theory, and an expanded commerce prohibiting protective theory c. Expanded substantial economic effect theory: NLRB v. Jones & Laughlin i. Facts: case involved the constitutionality of national labor and relations act, which make it illegal to fire employees for engaging in labor unions. ii. stream of commerce idea deemed too narrow. Court indicated that current of commerce cases were particular, not exclusive, illustrations of commerce power iii. Only has to be a close and substantial relationship to IC iv. Practical consequences: the abandonment of stream of commerce rationale now made it irrelevant whether activity being regulated occurs before, during, or after interstate movement, so long as there s a substantial economic effect on IC. v. Does regulated activity really have to be substantial? 1. Courts pronouncements on this were generally ambiguous until Lopez in 1995, where majority decided that yes, substantial effect is required vi. Switch in time that saved nine response to court packing, Roberts switched position to uphold statute d. The cumulative effect theory: Wickard v. Filburn i. Theory provides that Congress may regulate not only acts which taken alone would have a substantial economic effect on IC, but also an entire class of acts, if the class has a substantial economic effect. ii. Facts: Involved Agricultural Adjustment Act of 1938, which set quotas for the raising of wheat on every farm on the country. The act allowed not only the setting of quotas on wheat that would be sold interstate, but also on wheat that would be consumed on the very farm on which it was raised. Filburn had his own farm and challenged the act as interfering in a purely local activity

iii. Rationale: the more wheat consumed at home, the less wheat purchased on the open market. Thus, home grown wheat competes with wheat in commerce. While his act alone might not have substantial effect, his decision taken together with others like him do. Since protection of interstate wheat trade in within powers of Congress, the power to regulate home grown wheat also is, by reasoning above. iv. Is there anything Congress can t regulate? Doesn t seem like it. v. Also, from now on, court will not decide these types of cases on case by case basis, but rather will defer decision to Congress 1. When question of Con Law involves some nonconceptual stuff, such as economics, court is outside its institutional boundaries. (Courts can t engage in fact finding, e.g., what is the cumulative economic effect of whatever). This leads to: 2. Rational Basis Review: if someone can articulate a rational basis on which Congress could conclude that imposing some economic policy affects IC, court will uphold it. a. Absent compelling evidence to the contrary, court will assume Congress acted within C limits 3. What about federalism? a. Politics will protect it. States are well represented in Congress. b. But is there ever a conflict b/t an individual senator and his state s interests? e. The commerce-prohibiting technique: U.S. v. Darby i. Held: Court upheld Fair Labor Standards Act, which set min wage and max hours for employees engaged in production of goods for IC. ii. Darby thus flatly overruled Hammer v. Dagenhart iii. Pretext argument: court says its ok; Holmes was right in Hammer dissent. The court disavowed any interested in Congress motive. The motive and purpose of a regulation of IC are matters for the legislative judgment upon the exercise of which the C places no restriction and over which the courts are given no control XVII. Civil Rights Legislation: Commerce clause has been used in civil rights legislation. a. Heart of Atlanta Motel v. U.S.: motel in Atlanta who refused to rent rooms to blacks i. Facts: The motel was near two interstate highways and derived 75% of its occupancy from out of state guests, and solicited advertising in national media

ii. Held: Racial discrimination discourages travel generally, and thus such discrimination could be regulated by Congress in the aggregate. iii. Motive irrelevant: doesn t matter that Congress motive was arguably moral and social. b. Katzenbach v. McClung: even more local than Heart of Atlanta. i. Facts: Involved local bbq place which was far from interstates and there was no evidence that substantially portion of business came from out of staters. However, 46% of food it bought came from supplier who had bought food from out of state. ii. Held: Upheld act as applied to the restaurant. Applied the Wickard rationale: even though Ollie s itself was small, the restaurant s discriminatory conduct was representative of a great deal of similar conduct throughout the country, and this conduct in aggregate had substantial effect on IC. iii. Used Rational Basis review. XVIII. New/Recent Limits on Commerce Power a. U.S. v. Lopez: Court ruled for the first time in 60 years to invalidate a federal statute on the grounds that it was beyond Congress commerce powers i. Facts: Gun free school zone act made it federal crime for anybody to knowingly possess a firearm in a school zone. ii. Connection to commerce? 1. Statute included no explicit findings by Congress that the activity being regulated (possession of guns) affected commerce 2. No jurisdictional nexus. For instance, Congress could have made it illegal to possess a gun that had moved in, or otherwise affected, IC (Compare to Civil Rights cases regulating restaurants that buy food which had moved in IC), but it didn t. iii. Statute struck down, the majority saying that it wasn t enough that activity merely affect IC, it has to substantially affect, which this activity didn t do. 1. Not commercial: Distinguished from Wickard in that possession of guns is not itself a commercial activity. 2. Government s argument: gun possession does have substantial effect. Possession of guns may result in violent crime, and violent crime affects the national economy in several ways: (1) the costs of crimes are insured against, thus spread across state lines b/c of national nature of insurance market, (2) violent crimes reduces tendency to travel across country to such areas, (3) crime reduces school s ability to teach students, who thus become less economically productive

3. Argument rejected: it proved too much. Under such arguments, Congress could literally regulate any activity that was found to relate to productivity of individual citizens (family law, for example). Gov. could regulate anything, like school curriculum, child rearing, etc 4. Rehnquist announced that there are three categories where Congress may validly use their commerce clause powers: (1) to regulate the use of channels of interstate commerce; (2) to regulate instrumentalities of interstate commerce, and (3) to regulate intrastate activity that substantially affects iC iv. Dissent: 1. Rational basis test: could Congress have found a rational basis for finding significant connection b/t gun related violence and IC? a. Accepted gov s argument on this point. Question wasn t whether there was a substantial connection, as majority said, but rather, if Congress could have rationally believed there was a substantial connection b. U.S. v. Morrison: suggests that Lopez will be a major obstacle whenever Congress relies on CC to regulate activity that is essentially non-commercial. Morrison says that just as Congress can t ban gun possession in schools, it also can t broadly regulate violence against women i. Facts: Congress concerned that states weren t taking gender motivated violence seriously enough, and passed Violence Against Women Act, which said that a woman victim to gender motivated violent crime could bring a civil suit in federal court. A female student at Virginia Tech who claimed to be raped by 2 football players sued them under the act. ii. Held: Act was beyond Congress Commerce power. Relied chiefly on the fact that the activity being regulated was essentially non-economic. 1. Congressional findings not enough: Here, unlike Lopez, there were detailed findings that gender motivated crime deters travel, etc. But court gave no deference to these findings, b/c it said this reasoning would allow Congress to regulate any crime. (murder or any other type of violence) c. Gonzales v. Raich: home grown marijuana for medicinal purposes. i. Reliance on Wickard: Congress can regulate purely intrastate activity that it not itself commercial, in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity

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d. Summary: summary of modern court s view of commerce power, in light of Lopez. There seem to be four broad categories of activities which Congress can constitutionally regulate i. Channels: highways, waterways, air traffic. Presumably Congress can do so even if activity in question is intrastate ii. Instrumentalities: People, machines, and other things used in carrying out commerce. For instance, Congress could presumably say that every truck must have a specific safety device, even if the truck in question was made and used exclusively in a single state iii. Articles moving in IC iv. Substantially affecting commerce 1. Activity is commercial: if the activity is arguably commercial, then it doesn t seem to matter whether the particular instance of the activity directly affects IC, as long as the instance is part of a general class of activities that collectively, substantially affect IC. 2. Activity not commercial: probably won t fly. Must be a pretty obvious connection with IC. Main legacy of Lopez and Morrison 3. Little deference to Congress: doesn t use the rational basis test as it used to anymore. th Amendment as Limit on Congress Power 10 a. Missouri v. Holland: U.S. makes treaty with Britain to regulate hunting of some birds. Missouri claims this is infringement of 10th amendment rights when a statute is made making hunting birds in Missouri illegal. Court says no, treaty power trumps. Also necessary and proper to make treaty go into effect. b. National League of Cities v. Usery: gave 10th amendment significance. Court held that 10th amendment barred Congress from making federal min wage and overtime rules applicable to state employees. i. Congress may not exercise power in a fashion that impairs the States integrity or their ability to function effectively in the federal system c. National League of Cities Overruled: Garcia v. San Antonio Metropolitan Transit Authority i. Facts: Issue was whether min wage and overtime provisions of Federal Fair Labor Standards Act (same statute at issue in National League of Cities) should apply to employees of a municipally-owned and operated mass transit system. ii. Difficulty of line drawing: Majority contended that in the 8-yr period following National League of Cities had shown it was difficult, if not impossible, to identify an organizing principle that would distinguish b/t those functions that are traditional government functions and those that are not. For instance,

federal courts had held that licensing of drivers was a traditional governmental function (and thus 10th amendment protected state sovereignty), but that regulation of traffic on public roads was not. iii. Problem of subjectivity: National league of Cities approach leads to judicial subjectivity. Any rule of state immunity that looks to the traditional nature of government functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which it dislikes iv. However, majority contended that there were still procedural safeguards inherent in the federal system which would limit the federal governments power to impair state sovereignty 1. For instance, states are given control over electoral process, each have two senators, etc d. Significance of Garcia: once Congress, acting pursuant to Commerce clause, regulates the states, the fact that it is a state being regulated has virtually no practical significance if the regulation would be valid if applied to a private party, it is also valid as to the state i. Later cut backs: N.Y v. U.S. and Printz v. U.S. seem to cut back on the broad scope of Garcia, both placing limits on the extent to which Congress can force state or local gov. to make or enforce laws. e. New York v. United States: federal gov. may not compel a state to enact or enforce a particular type of law i. Facts: Congress enacted low-level radioactive waste policy Act. The Act attempted to force each state make its own arrangements for disposing (either in state or outta state) of low level radioactive waste general in that state. Included in the Act was a take title incentive, whereby any state which did not arrange for disposal would be required to take title to the waste, and would be liable for damages in connection with disposal of waste. New York sued federal government, arguing that take title provision violated 10 amendment ii. Held: For NY; Congress may not simply commandeer the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program iii. Rationale: NY was given the choice of 2 unconstitutionally coercive regulatory techniques: it could either (1) choose to regulate on its own by making arrangements for disposal of waste generated inside state, or (2) be forced to indemnify waste-generators against tort damages. B/c Congress could not employ either of these methods alone, it could not escape problem by giving NY choice of the two.

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1. Forcing states to do this would essentially be forcing states to implement federal legislation 2. Forcing states to accept ownership would impermissibly commandeer state governments. Allowing Congress to do so would undermine government accountability b/c Congress could make the decision, but states would take the political heat iv. Alternative Methods: So is Congress just powerless to make each state deal with its radioactive waste (or any other problem). J.White dissent suggests these methods 1. Spending power: Congress may condition the receipt of federal funds on the state s solving the problem (provided the funds in question have something to do with the problem) 2. Threat of regulation: Congress could directly regulate (via CC) f. Printz v. United States: federal gov. may not compel state/local official to perform federally specified administrative tasks i. Facts: In 1993, Congress enacted Brady Bill, which ordered all local law enforcement officials to conduct background checks on prospective purchasers of guns, until a national system could be phased in. Printz, a sheriff in Montana, sued, saying Congress could not compel him to do such a thing. ii. Held: for P, by reason of 10th amendment. States are independent and autonomous in their spheres of authority. 1. Also violates separation of powers: Constitution vests all executive authority in president, so Congress can t just make a law transferring that authority to local law enforcement officials. The 14th Amendment as an Alternative Source of Congressional Power a. Generally i. 14th amendment provides that all persons born or naturalized in the U.S. are citizens and that no state can abridge the privileges and immunities of such citizens; nor may states deprive any person of life, liberty, or property without due process of law. Section 5 states the Congress shall have the power to enforce, by appropriate legislation, the provisions of this article 1. Extends bill of rights to states 2. Note it seems to apply only to states, not individuals. In Morrison, Rehnquist said Congress under 5 may regulate only state and local governments, not private conduct. Thus civil damages provision of Violence Against Women Act exceeded Congress power b/c it is

directed not at any state or state actor, but at individuals who have committed criminal acts ii. Key question: What is the scope of Congress power under reconstruction amendment? (1) Is Congress limited to providing remedies for violations of constitutional rights recognized by S.Ct.; or (2) may Congress use its power under these amendments to adopt an independent interpretation of the C, even overruling S.Ct. decisions? 1. Katzenbach: second interpretation 2. Boerne: first interpretation b. Katzenbach v. Morgan i. Facts: Concerned the constitutionality of Voting Rights Act of 1965, which provides that no person who has completed the 6th grade in a Puerto Rican school, where instruction was in Spanish, shall be denied the right to vote b/c of failing a literacy test. This went against S.Ct. decision in Lassiter, where they had upheld constitutionality of literacy tests for voting. ii. Issue: Can Congress overturn, albeit partially, a S.Ct. decision? iii. Held: Yes, court held this was a proper exercise of 5 powers iv. Rationale: 1. Law was constitutional b/c it was remedy for discrimination 2. Congress could find that literacy test denied equal protection, even though this was contrary to S.Ct. s holding in Lassiter. This would accord Congress the authority to define the scope of the 14th amendment. a. State argued that Congress could only provide remedies for things the S.Ct. had found unconstitutional, not decide itself what was unconstitutional. 3. Dissent: If Congress can use 5 power to interpret C, it conceivably could use this power to negate C rights. c. City of Boerne v. Flores i. Facts: Rejected Katzenbach reasoning. Here, court declared Religious Freedom Restoration Act unconstitutional as exceeding Congress 5 powers. The Act was adopted to overturn a S.Ct. decision that had narrowly interpreted the free exercise clause of First Amendment. ( Smith - case involving use of peyote). In response, Congress passed RFRA which basically said that law should go back to how it was before Smith. ii. Held: J. Kennedy: Congress may not create new rights or expand scope of rights; it is limited to laws that prevent or remedy violations of rights recognized by S.Ct., and these must be narrowly tailored, proportionate and congruent, to the constitutional violation

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1. From test online: Congress may not define the reach of constitutional liberty beyond that which the court has already defined. iii. Rationale: Congress does not enforce a constitutional right by changing what that right is Also spoke of the need to preserve court as authoritative interpreter of C. Congress Power to authorize suits against State Governments a. 11th Amendment Immunity i. The 11th amendment says that states are immune from being sued for money damages by private citizens in federal courts. Sovereign Immunity. ii. Only Congress has the power to override this state immunity; and it can do so only when using 13th, 14th, or 15th amendment remedial powers to create valid remedy against state violations of the rights protected by those amendments iii. Seminole Tribe of Florida v. Florida: held that Article One of the C did not give Congress the power to abrogate the sovereign immunity of the states that is further protected under the 11th amendment. But, such abrogation is permitted where it is necessary to enforce the rights of citizens guaranteed under the 14th amendment Fitzpatrick v. Bitzer 1. Question of whether or not a statute is enacted under 5 becomes relevant and non-trivial b. Effect of Boerne v. Flores: sharply limited the scope of Congress s power under 5 i. If Congress makes statute under reconstruction amendments to remedy harms, then private citizens can sue state governments under it. But, the statute must be in congruence and proportionality to the harm done, or states retain their immunity. c. University of Alabama v. Garrett i. Facts: Garrett had breast cancer and took time off to get treated. When she came back, her job was gone. She sued the U of A under Americans with Disabilities Act. ii. Held: Court concluded that while states may often have discriminated against the disabled, since they were not a suspect class (e.g. race), the only discrimination against them that would be a violation of 14th amendment was irrational discrimination (mere rationality standard. C.f. strict scrutiny). Here, Court found Congress failed to identify a pattern of irrational state discrimination in employment against disabled iii. Held: Furthermore, the remedy chosen by Congress in the ADA lacked congruence and proportionality to any equal protection violations that states may have been guilty of. As ADA required states to spend lots of money to modify facilities

for the disabled, this went far beyond what could have possibly been required to address whatever small equal protection violation the states may have been guilty of. Implied Limits on Local Power The Dormant Commerce Clause XXII. Generally: The mere existence of the federal commerce power restricts the states from discriminating against, or unduly burdening, interstate commerce. a. Congress has ultimate say: Because limitations imposed by dormant CC are derived by negative implication, limitations imposed by the court may always be reversed by Congress b. Failure of Articles of Federation: pre-C articles of federation failed largely because state fought destructive trade wars against each other. CC of C was intended to remedy this. c. Congressional Silence: Even though Congress has power to overturn state rules which adversely affect IC, they may not always do so b/c they re too busy, too many other matters they have to deal with. So the fact that Congress is silent on an issue does not mean that it tacitly approves of the state regulation. Thus, S.Ct. has always viewed it as its own obligation to keep the channels of IC free of state-originated impediments d. Gibbons v. Ogden: After giving a broad definition of commerce, Marshall went on to hold that N.Y. statute was invalid b/c it conflicted with federal commerce power. Two steps to reach this conclusion: i. Meaning of Congressional silence: First time court interpreted meaning of Congressional silence. While Marshall thought the argument that federal commerce power was exclusive (meaning the states had no right to take any action which affected IC) was compelling and had great force , he didn t rule on the issue because: ii. Actual Conflict: there was an actual conflict b/t 2 statutes in this case, and thus by way of supremacy clause federal won. iii. Bottom Line: Thus Marshall never made any dispositive holding in Gibbons about the effect of congressional silence on the States regulatory power XXIII. The Modern Approach a. First Question: Is the state discriminating against out-of-staters? Does it facially discriminate? i. If so, strictest scrutiny will be applied and statute can only survive if: 1. It demonstrates compelling state interest and; 2. Proposed measure is least discriminatory way to accomplish above goal

ii. Philadelphia v. New Jersey: NJ law effectively kept landfills in the state exclusively for NJ s use by preventing incorporation of any waste from outside the state. 1. Statute invalidated. Generally, if the statute draws some distinction b/t in-staters and out-of-staters, court will hold it discriminatory. 2. Such laws that reserve in-state resources for in-staters, will be invalidated unless the state identifies a valid purpose that cannot be achieved in a less discriminate way 3. Law that limits access to in-state resources iii. Permissible discrimination: Maine v. Taylor 1. Maine enacted ordinance prohibiting baitfish from out of state. While it was declared discriminatory, it was ok b/c it passed the above two conditions. b. Facially Neutral Laws: facially neutral laws can be discriminatory based on their purpose and/or effect. i. Hunt v. Washington State Apple: North Carolina statute required that all closed containers of apples sold or shipped into the state bear no grade other than the applicable U.S. grade or standard Law was facially neutral in that it applied to both apples grown in state and out of state. But court found it to be discriminatory b/c of its effect on sale of Washington apples. 1. Raise cost to Washington apple growers b/c they have their own system while not hurting in state growers 2. Strips away competitive advantage that Washington growers have earned through their own expensive inspection and grading system 3. Law that limits access to local markets by out-ofstaters c. Second Question: Once court determines that statute is not discriminatory, it balances the law s burden on IC against its benefits i. Gives court enormous discretion b/c there is no right way to burdens on IC with the benefits to state government. 1. Have lead some justices to think we should stop balancing test altogether b/c unpredictable and arbitrary. Scalia: trying to figure out if a rock is heavier than a line is long ii. If there s no discrimination, court will apply rational basis test, with presumption towards constitutionality. If there is discrimination, the strictest scrutiny, with presumption against constitutionality. d. Laws Regulating Size of Trucks:

i. Generally, viewed as non-discriminatory. Court will rule on a case-by-case basis considering the specific evidence as to the safety benefits of the law compared to their burden on IC. ii. Kassel v. Consolidated Freightways Corp: court declared unconstitutional an Iowa law banning 65-foot double trailers. 1. Balancing: Court weighed the asserted safety purpose against the degree of interference with IC 2. Since the state failed to prove that 65-ft trailers were significantly more dangerous than 55-ft ones, and the fact that banning double trailers would substantially burden IC by forcing these trucks to take detours, failed balancing test e. State Taxation of IC: Generally, same analysis that s applied to statutes are applied to taxes. If the tax discriminates, it s usually invalid. Otherwise, usually not. i. West Lynn Creamery, Inc v. Healy: facially neutral tax deemed discriminatory 1. Mass imposed tax on all milk dealers, but the funds from the tax went into a fund to pay subsidies to instate dairy farmers. 2. Net effect was that tax was borne disproportionately by out-of-staters. XXIV. Exceptions: Two exceptions where laws that otherwise would violate the dormant CC will be allowed a. Congress approves state law: Even a clearly unconstitutional, discriminatory state law will be allowed if approved by Congress because Congress has plenary power to regulate commerce among the states i. Of course, if Congress has acted, commerce power is no longer dormant ii. One of the few areas where Congress has clear authority to override S.Ct. decision. If court deems a matter to violate dormant commerce clause, Congress can enact law approving the action, thus effectively overruling S.Ct. decision. b. Market Participant Exception: a state may favor its own citizens in dealing with government-owned businesses and in receiving benefits from gov. programs i. If a state is literally a participant in the market, such as a stateowned business, and not a regulator, dormant CC does not apply ii. Even though law will be permissible under DCC, it might be vulnerable to other constitutional challenges, such as P&I or equal protection iii. Exception to the exception: While state businesses may favor in-state purchasers, they may not attach conditions to a sale that discriminate against IC. (e.g. state may sell state owned

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timber at a lower price to in-staters, but may not require that out of state buyers have their timber processed in state before being shipped Overview of Modern Approach: A state regulation which affects IC must meet each of the following requirements to be upheld: a. The regulation must pursue a legitimate state end: Here, the court has distinguished b/t measures that are designed for promotion of health, safety, and welfare and those that are designed for economic benefits i. Health, safety, welfare: Court is likely to construe these are legitimate state ends, within the traditional police power of the states ii. Economic advantage: Court much more skeptical of regulatory schemes designed to promote economic interests of in-state residents. Protection of state s economic interests generally not considered a legitimate state end if that pursuit materially affects IC b. The regulation must be rationally related to that legitimate end: A mere rational relation is all that s required, it is not required that the means be the best way of achieving that end. i. Deference to legislative fact finding, generally in the same way the court reviews acts of Congress under CC c. The burden imposed on IC (any discrimination against IC) must be outweighed by state s interest in enforcing regulation i. The so called balancing test. Remember this only becomes an issue if the first two criteria are met. Here, if there is discrimination, SS will be applied. Otherwise, Rational basis

The Executive Power XXVI. Generally a. Implied Powers: Unlike Congress, whose powers are closely delineated by the C (Article I, 8), much of the president s power is implied. XXVII. No right to make laws : Youngstown Sheet & Tube v. Sawyer a. Despite its willingness to infer the existence of broad presidential authority, the S.Ct. has adhered to one over-arching limitation on presidential power: The president may not make laws, he may only carry them out b. Facts: During Korean War, Truman tried to seize all the steel mills. Congressional approval was not requested. c. Held: S.Ct. struck down seizure order, concluding that it was an unconstitutional exercise of law-making authority d. J.Jackson s concurring opinion: contended that the president s powers fluctuate, depending on their conjunction or disjunction with Congress.

i. Where the President acts pursuant to express or implied authorization from Congress, his authority is at its maximum ii. Where President acts in the absence of either a congressional or denial, there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution in uncertain iii. Where President acts in contradiction, his power is at its lowest ebb e. Dissent: Temporary seizure was justified because of the emergency nature of the situation, and in order to preserve status quo until Congress could act f. Non-delegation Doctrine: you cant delegate the core of power to another branch. E.g. congress can t delegate legislative authority to the president. But it can give instructions to executive on how to carry out laws Executive Power - War and Foreign Affairs XXVIII. Are Foreign and Domestic Affairs Different? a. U.S. v. Curtiss Wright Corp i. Case arose at a time when the Court was invalidating laws pertaining to domestic affairs as impermissible delegations of legislative power to the executive ii. Facts: Congress issued resolution which allowed president to issue a proclamation making illegal further sales of arms to South American warring nations. iii. Held: Delegation of authority to president ok, b/c fundamental different b/t foreign and domestic affairs. President has much more power in foreign affairs iv. Criticism: 1. View is inconsistent with a written C that contains provisions regarding foreign policy 2. Historically inaccurate XXIX. Implied Acquiescence by Congress: Dames & Moore v. Regan a. Facts: As part of a settlement for a hostage situation, President Carter issued a suspension of all contractual claims against Iran pending in American courts. The issues were to be settled in international tribunal. b. Held: Suspension valid. While Congress had never explicitly delegated to the President the power to suspend such claims, it had implicitly authorized that practice by a long history of acquiescing in similar presidential conduct. (e.g. Congress had implicitly approved the use of executive agreements b/t the president and foreign powers to settle claims. c. Limited Scope: court emphasized that its reading here was narrow. President does not necessarily have constitutional authority to settle

or suspend all claims. But here, where (1) the decision is a necessary incident to the resolution of a major foreign policy dispute, and (2) Congress had before acquiesced to this type of presidential action, the action was deemed within presidential authority d. Jackson s categories: Seems to be in category 2 since Congress hasn t explicitly given the power, or explicating taken it away. But court says that Jackson s categories are over-simplified, its more of a spectrum from clear authority to no authority, and you have to consider the circumstances to choose. XXX. Medellin v. Texas: See notes. Bush tries to make Texas Court comply with non-self-executing treaty. But since the treaty was non-selfexecuting, it is the duty of Congress to make laws that would enact them. Here, the president s action falls into the 3rd category, b/c the fact that Congress hasn t acted (when it knew the treaty was not self-executing) means it doesn t want to act. President can t infringe on state police power. XXXI. Detentions amidst the War on Terror a. President s authority to wage war - Hamdi v. Rumsfeld: an American citizen apprehended in a foreign country and held as enemy combatant must still be accorded some due process and a meaningful factual hearing. i. Intelligible principle requirement: congress can delegate broad discretion to executive, which may look like legislative power, as long as they provide some substantive, intelligible principle to guide the agency s discretion Separation of Powers Issues XXXII. The Legislative Veto a. Generally, legislative veto serves as a check on the actions of administrative agencies, a way for Congress to retain some control over them without having to enact a law every time they wanted to b. INS v. Chadha: Legislative veto ruled unconstitutional i. J.Burger s majority opinion: highly formalistic. By C, Congress may only legislate when there is bicameralism (passage by both house and senate) and presentment (giving the president the option to veto). Since the legislative veto was essentially legislative in nature (having the purpose and effect of altering the legal rights, duties, and relations of people outside legislative branch) and contained neither of these, it was unconstitutional. ii. J. White s dissent: Formalistic. Given the need for administrative agencies (too many laws to make policy on for Congress alone), the legislative veto is an efficient way for Congress to retain some control over legislative powers it has

delegated. Basically, legislative veto is the more functional equivalent of passing a law. 1. Burger s response: Efficiency/functionalsim doesn t matter. There are tons of things in the C which aren t, per se, efficient. But that s what the founders wrote so that s what we have to enforce. XXXIII. Removal of Executive Personnel a. The President s Power of Appointment: The President, not Congress, is given the power to appoint federal officers. (Article II, 2). The section goes on to say that Congress may vest the appointment of inferior officers to whoever they think proper (president, judiciary, etc) i. Distinction b/t principal officers and inferior officers 1. Principal Officers: top level officers. Congress may not take away president s right of appointment (even though they may have the right to approve or disapprove). Examples are members of the cabinet, federal judges and ambassadors. 2. Inferior Officers: Pretty much everybody else. See Morrison where court ruled special prosecutor was inferior official and thus president not need be given appointment power ii. Congress can t make any appointments: Principal or inferior, Congress can t make any appointments of federal officers. The most it may do, in the case of inferior officials, is proscribe procedures for which the executive or judicial shall make appointments b. The President s right to remove appointees: Generally, apart from setting out the process for impeachment, the C does not state whether and when the President, Congress, or both, may remove federal appointees and employees. Accordingly, its been up to the S.Ct. i. Purely executive officers: Morrison v. Olson: Court upholds statute setting up a system of special prosecutors to investigate alleged wrongdoing by executive officials. Rule now is that Congress may limit the President s right to remove even a purely executive officer, so long as removal restrictions are not of such a nature that they impede the President s ability to perform his constitutional duty 1. Facts: statute allowed for appointment of special prosecutor, who could only be removed by the attorney general. 2. Held: Statute is ok. The executive branch still retains ample authority to assure that the counsel is competently performing her statutory responsibilities. 3. Scalia dissent: separation of powers requires that President maintain complete control over the

investigation and prosecution of the law. Since the President s control over the special prosecutor is curtailed, it violates C s separation of power principle. 4. Significance: Executive branch may be deprived of the power to appoint, and the untrammeled power to remove, an inferior officer, even where the appointment relates to purely executive powers. 5. Note: only applies to inferior officers. Presumably, Congress could not do the same thing with top level officers c. Removal by Congress: Bowsher v. Synar: May Congress reserve to itself the power to remove an executive officer? No. i. Facts: The Gramm-Rudman Act (Congress attempt to reduce federal deficits) gave Comptroller General of the U.S. key role in carrying out provisions. Also important was the fact that Congress had the right to remove Comptroller General. ii. Held: invalid. Because (1) the Act uses the Comptroller s executive powers ; (2) executive powers may not be vested by Congress in itself or its agents, b/c Congress is limited to legislative rather than executive functions; (3) b/c Congress can remove Comptroller, he is an agent of Congress; (4) therefore the Comptroller may not constitutionally exercise the executive powers given to him in the Act. (5) thus the act must be invalidated. iii. Take Away: retention by Congress of the right to remove an executive officer for whatever reason (even good ones) converts that officer into an agent of Congress Equal Protection XXXIV. 14th Amendment a. One its face, only applies to states, not federal government or private parties. (Under this court held Civil Rights Act, which made discrimination in public places illegal, invalid.) XXXV. Levels of Scrutiny a. Justification: Generally, court will defer to the government and uphold laws so long as they are reasonable. But this deference will not extend to laws interfering with fundamental rights or discriminating against discrete and insular minorities. U.S. v. Carolene Products, footnote b. Strict Scrutiny: Law upheld only if it is proved necessary to achieve a compelling government interest i. Necessary implies the least discriminatory means to achieve the given end. ii. All race based discrimination subject to strict scrutiny

iii. To survive strict scrutiny, policy must be very narrowly tailored c. Intermediate Scrutiny: Law upheld if it is substantially related to an important government purpose (Craig v. Boren) i. Gender discrimination d. Rational Basis Review: Law upheld if it is rationally related to a legitimate government purpose. As long as there s some reasonably conceivable relation, it passes rational basis. Basically, deference. i. Doesn t need to be actual purpose, some conceivable purpose is enough e. Compelling -> Important -> Legitimate f. Necessary -> Substantially-related -> Rationally-related XXXVI. Race-based Classifications a. Constitutional Provisions Protecting Slavery i. Fugitive slave clause: Any person who s a slave in one state cannot escape to a free state and be free, and further, if he s caught he should be delivered to his owner. ii. Several others. (3/5s clause) b. Court Decisions Protecting Slavery i. Over-riding theme to all these cases is that slaves are considered property, and thus will be according all the usual rights of property (i.e. none, only rights insofar as their owners have property interests in them) ii. Prigg v. Pennsylvania: S.Ct. declared unconstitutional a state law that prevented the use of force or violence to remove any person from the state to return the individual to slavery. iii. State v. Post: S.Ct. of N.J. rejected claim that the state constitution (which contained similar all men are created equal clause as the Declaration of Independence) abolished slavery iv. Dred Scott v. Sandford: S.Ct. declared Missouri Compromise unconstitutional and broadly held that slaves are property, not citizens. c. Justifications for Strict Scrutiny i. Long history of racial discrimination makes it likely that racial classifications will be based on stereotypes and prejudices ii. Purpose of 14th amendment is protect blacks iii. Relative political powerlessness of these groups iv. Race is immutable trait, and unfair to discriminate based on something person has no control over d. Proving Existence of Race Classification i. Facially obvious 1. Only one situation where court has expressly upheld racial classifications burdening minorities: Japanese internment camps

e. f.

g.

XXXVII. a. b.

2. Korematsu v. U.S.: court emphasized that it upheld order because of hardships of war Generally, courts give military tremendous deference in times of war ii. Facially Neutral 1. Might be proved by demonstrating discriminatory impact, but S.Ct. has held that this requires proof of discriminatory purpose Separate but Equal: Plessy v. Ferguson Challenge to separate but equal: Brown v. Board of Education i. Looked at effect of segregation on psychology of black children, which said that segregation leads to low self esteem and in turn interferes with their learning ii. Focused exclusively on education; thus failed to provide basis for declaring segregation illegal in other contexts Other Cases i. Strauder v. West Virginia: declared unconstitutional the law prohibiting blacks from serving on juries ii. Loving v. Virginia: invalidated law prohibiting interracial marriage iii. Cooper v. Aaron: Arkansas gov. didn t want integration. S.Ct., going back to Marbury, said too bad. Racial Classifications Benefitting Minorities Strict scrutiny still used here Affirmative Action Road to Strict Scrutiny i. Objectives of AA 1. Remedying past discrimination 2. Diversity 3. Providing role models for those in minority communities 4. Increasing services for minority communities ii. Regents of California v. Bahke: school set aside 16 slots for minority students. Court said no to have a quota system but affirmed the constitutionality of affirmative action programs in general . 5-4 split, w/ J.Powell opinion deciding. Some said intermediate scrutiny should be applied b/c its remedial, others said strict 1. Interest of diversity? 2. Opinion was affirmed in Grutter v. Bollinger 3. Grutter v. Bollinger: Court upheld U of Michigan s AA program on basis that colleges have compelling interest in creating diverse student body a. Generally, race may be a factor but you cant have quotas or numerical benefits for minorities iii. Fullilove v. Klutznick: AA program designed to help minority contractors. Court upheld act b/c remedial in nature, but no opinion attracted majority of justices. Court notes that a

program that employs racial or ethnic criteria, even in remedial context, calls for close examination. iv. City of Richmond v. Croson: state and local AA programs should be held to strict scrutiny 1. 14th amendment constraint on state power 2. Richmond s claim was not specific enough to be compelling state interest, cannot be merely to remedy broad discrimination in the past. v. Adarand Constructors v. Pena: Did not rule on constitutionality, but remanded to be evaluated under SS. Strict scrutiny should be level of review for all affirmative action programs. 1. Fed gov gave general contractors financial incentive to hire minority sub-contractors 2. Scalia dissent: government can never have a compelling interest in using racial classifications to remedy prior discrimination vi. Arguments for Strict Scrutiny applied to Affirmative Action 1. Racial discrimination based on benign prejudice is just as bad as discrimination inspired by malice prejudice. (J.Thomas) 2. Racial classifications stigmatize and breed racial hostility 3. Foments racial resentment and thereby strains the effort to gain wider acceptance for the principle of moral equality of the races vii. Arguments Against 1. Achieving social equality requires affirmative action at this point in American history, and applying strict scrutiny would greatly impede such remedial efforts 2. Difference b/t majority discriminating against minority and majority discriminating against itself? XXXVIII. Gender-based Classification a. Intermediate Scrutiny Throughout i. Though after Virginia v. U.S. (VMI case), this intermediate scrutiny will be applied in a quite rigorous way, making it closer to strict scrutiny than rational basis. Need exceedingly persuasive justification ii. Stereotypical thinking v. attempt to reverse discrimination: A gender based scheme is especially like to be struck down where it is an older one that arguably stems from traditional, stereotypical ways of thinking about gender roles. (VMI) b. Real difference: A necessary (though not sufficient) condition for benign sex discrimination to be legal is that the men and women be

c. d.

e.

f.

g.

differently situated in a way relevant to statute s purpose. Most obvious real difference: biology (see Michael M.) Traditional deference by Courts: Until 1971, all gender based classifications were merely subject to rational basis review. Reed v. Reed: First case where S.Ct. seemed to give more than trivial review to gender classifications. Involved preferring males to carry out estates over females. The court said it was applying rational basis, but in rejecting the state s contention that the preference reduced the work load of probate courts by eliminating hearings on the merits, the Court was clearly putting more bite into traditional standard that it had previously. Frontiero v. Richardson: rational basis review was explicitly rejected for gender based classifications. Coming out of this case, you know its more than rational basis but not quite up to strict. Craig v. Boren: Court then articulated intermediate scrutiny, whether the classification was benign or not. i. Lower min age to purchase alcohol for women than men ii. classifications must serve important governmental objective and must be substantially related to the achievement of those objectives iii. The majority did not explicitly say it was applying a new standard different from either mere rationality or strict scrutiny , in fact, it said it was just applying standards established in Reed and Frontiero. But concurring and dissently opinions clearly viewed majority as forming a 3rd, middle level of scrutiny. iv. States defense: males are more likely to drink and drive v. Court rejects: the overall fit b/t the means of regulation selected and the end sought to be achieved (traffic safety) was too tenuous to constitute the required substantial relation b/t means and end Intermediate Scrutiny i. Most Interests Important : Most interests are deemed by the court to be important Exceptions have been (1) administrative convenience, Frontiero, and (2) the actual objective (it must be the objective that actually motivated the legislature, not one articulated after the law was adopted, VMI) ii. Substantially related: While this requirement has considerably more bite, it has frequently been satisfied 1. Michael M.: Court held that California could constitutionally make men but not women liable for statutory rape. a. Government objective: protecting teen pregnancy deemed important b. Substantially related? Yes, (1) since only women can get pregnant, males have no direct

disincentive against having sex like females. So a criminal sanction against men equalized the deterrence on the sexes; (2) enforcement was more feasible since if girl was also subjected to prosecution, she might not testify making convictions hard 2. Rostker v. Goldberg: Court upheld male only draft registration. Since the purpose of the draft was to facilitate combat troops, and only men were eligible for combat, male only registration was closely related to purpose of statute. a. Here again, court shows heightened deference to military matters. b. Here, the statute was not the accidental byproduct of a traditional way of thinking about women If it was, court would be much more likely to strike it down (vmi) c. At the time, women were not eligible for combat in the military. Thus, there was a real difference (men could fight, women couldn t) 3. Nguyen v. INS: Even if the fit b/t the means chosen by the legislature and the government objective is far from perfect, there might still be the required substantial relation . a. Here, court held that Congress could make it easier for the bastard child of an American mother to achieve citizenship than for the child of an American father. Mother s child was automatically citizen, while father s child had to go through certain legitimizing steps when the kid turns 18 (e.g. acknowledging paternity through oath) b. Important government objective: fostering parent-child relationship c. Substantially related? Ruled yes, b/c it would encourage the father to bond w/ his kid before he was 18. The fact that none of the legitimizing steps would necessarily indicate a parent-child bond had developed did not mean that substantial relationship b/t means and end was absent. i. Also administrative efficiency was argued: we can be sure of the mother, not the father d. Dissent: J. O Conner: this scheme is an overbroad sexual generalization that reflects a stereotype

that mothers are significantly more likely than fathers to develop caring relationships with kids. h. U.S. v. Virginia: the court is especially like to strike down a gender based classification that seems to be based on faulty generalizations or stereotypes about the differing abilities and interests of the two sexes. Ruled that men-only military academy, VMI, violated equal protection i. Principle defense of single sex policy was that VMI s approach, which included extremely rigorous physical training, depriving students of privacy, and its adversative approach, would have to be materially changed if the school was made co-ed. Instead, state sought to create less rigorous program for women at Mary Baldwin College ii. Held: Violation of equal protection 1. No overbroad generalizations: Court rejected claim that VMI s approach would have to materially change if it admitted women. Even if most women wouldn t like it, there are some that might and you can t categorically exclude them. 2. Diversity policy: Virginia also argued that having a male only college increased diversity in educational approaches within the state. But majority rejected this, claiming it was not an actual state purpose, merely being imposed after the fact. (VMI is old and was created when there were no women-only colleges in Virginia) 3. Mary Baldwin program insufficient: For many reasons, the program at Mary Baldwin wouldn t be comparable to the one at VMI, would be a pale shadow iii. Dissent: Scalia while majority is claiming intermediate scrutiny, it is clearly applying something higher in requiring a exceedingly persuasive justification Basically, he thinks this amounts to strict scrutiny 1. Satisfies intermediate review. 2. End of single sex public education iv. Significance: 1. New Standard: exceedingly persuasive justification seems tougher than intermediate review. But still, its not up to strict scrutiny. a. Real objective: Court will apparently now insist that objective being advance be the one that actually motivated the government, a requirement traditionally left to SS b. Suspicion of Stereotypes: Court generally suspicious of anything that strikes it as being stereotypical thinking about differences b/t sexes.

2. Separate but Equal: In theory, separate but equal could pass this scrutiny, if the two schools are truly equal; but that s going to be hard as a practical matter given the exceedingly persuasive justification requirement. i. Remedial Statutes i. Where a gender classification is used in an attempt to remedy specific, objectively-verifiable past discrimination against women (rather than to perpetuate stereotypes), the statute is much more likely to be upheld ii. Califano v. Webster: Court upheld Social Security provision that allowed women to exclude three more lower-earning years than men could. 1. Because this provision was not the result of archaic and overbroad generalizations, and instead of prior objectively verified discrimination in employment, it was ok. The measure thus directly, though partially, remedied past discrimination iii. Blurry Line: But the line b/t remedying past discrimination and merely viewing women stereotypically not as able to earn a living can be quite blurry. Consider next iv. Califano v. Goldfarb: Court struck down provision which automatically paid benefits to widows but required widowers to prove dependency. 1. Plurality felt that provision wasn t an attempt to held women b/c they were needier, it was merely an attempt to aid dependent spouses of deceased wage earners, with the presumption that wives are usually dependent v. Criticism: Why is the presumption in Webster that women usually receive lower wages less objectionable than the presumption in Goldfarb that most women are dependents. Both are probably true in most cases. Perhaps the different result stems from the fact that one presumption is harder to prove or disprove in a particular case than the other. XXXIX. Sexual Orientation Classification a. Legislation motivated by animus towards unpopular groups i. Court has been willing to strike down such legislation even under rational basis review b/c (1) the desire to harm an unpopular group cannot be a legitimate governmental objective ; and (2) to the extent some apparently legitimate state objective it cited, the means drawn are so poorly linked to achievement of that objective that not even a rational relation b/t means and end is present b. Romer v. Evans: (outline pg 246)

i. Facts: Court struck down Colorado statute that would have prevented the state or cities from passing ordinances which would protect gays and lesbians from discrimination ii. Held: Invalid b/c it flunked rational basis test on two grounds: (1) no legitimate state interest in fact being served, and (2) the means chosen by the state were not rationally related to the interest that the state asserted. iii. Scalia Dissent: accused majority of taking sides in culture war Implied Fundamental Rights Application of Bill of Rights to the States XL. Barron v. Baltimore (1833): First case regarding this issue. S.Ct. expressly held that the Bill of rights was a restriction of federal actions, not state and local conduct Privileges and Immunities? a. 5th amendment: Article V b. 14th amendment declares: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States i. what are the P&I of the United States? ii. Some say Bill of Rights are most basic P&I that a U.S. citizen has, and thus this should apply Bill of Rights to states (J.Black Duncan) c. Slaughter House Cases: The purpose of the 13th and 14th amendments were solely to protect slaves. Very narrow reading. i. Take Away: Bill of Rights does not extend to states through P&I of 14th amendment ii. Although this reading practically robs the 14th amendment P&I clause of all its meaning, it has never been overruled iii. unique among constitutional provisions, the P&I clause of the 14th amendment enjoys the distinction of having been rendered a practical nullity by a single decision of the S.Ct. rendered within five years after its ratification. Incorporation: a. Alternative approach to applying Bill of Rights to the states, incorporation through 14th amendment s due process clause. b. Twining v. New Jersey: S.Ct. expressly recognized the possibility that the due process clause of the 14th amendment incorporates provisions of the Bill of Rights and thereby applies them to state and local governments. i. However, in the case, court held that right to not have lack of self testimony go against you does not apply to the states. Criteria being that some things are fundamental rights, engrained in the collective consciousness of all of us.

XLI.

XLII.

1. Enumeration in bill of rights isn t enough. Must be fundamental c. Palko v. Connecticut: double jeopardy doesn t pass as a fundamental right i. Due process clause included principles of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental d. Adamson v. California: Court held that though under the Bill of Rights, a jury comment would infringe on right to no selfincrimination, this was not a fundamental right i. Frankfurter, majority: court can decide which rights are so fundamental as to be a part of due process ii. Black, dissent: Total incorporation. All the rights that are enumerated in bill of rights should be fundamental, nothing else. All other ways give too much discretion to judges to decide things. e. Duncan v. Louisiana: 6th amendment right to jury trial applicable to states through due process clause of 14th amendment. f. Current State of Incorporation i. Most of bill of rights have been applied to states, but not all. ii. Why does court like due process over P&I? 1. Easier to restrict? XLIII. Substantive Due Process a. Lochner v. New York: court struck down min hours/week law for bakers as violation of due process via liberty of contract i. Statute defended on two grounds: 1. It was a valid labor law 2. It protected health and safety of workers ii. Court rejected both. 1. Court did not find bakers to be an especially endangered group (as it did coal workers a few years before), and working long hours did not affect the public health by making bread more dangerous to eat. 2. Legislative motive suspected: Majority clearly disbelieved that laws had been enacted for health and safety, rather, it was clearly to regulate labor conditions. Thus, court was looking to legislative motive in evaluating due process claims. 3. No deference to legislative fact finding: Didn t matter if legislature thought bakers or bread eating public needed special protection since the court didn t see it, that s all that mattered. iii. Dissent: 1. Holmes: Court has no right to impose its own views about correct economic theory on legislatures. Liberty as found in 14th amendment should only be found to be

b. c.

d.

e.

violated when a rational and fair man necessarily would admit that the statute would infringe fundamental principles as they had been understood by the traditions of our people and our law. By this test, the statute was valid iv. What kind of scrutiny applied here? More than rational basis since court is looking into legislature s motive. Not clear that it s strict scrutiny though. The Lochner Era, 1905-1934: court struck down approx 200 ecnomic regulations, usually under due process clause Nebbia v. New York (1934): court sustained N.Y. scheme for fixing milk prices. Same substantial relation test of Lochner, but Nebbia court was clearly determined not to impose upon legislatures its own views about correct economic policy, as Lochner court had done West Coast Hotel v. Parrish (1937): Court expressly overruled one of Lochner precedents in upholding state min wage law for women i. Abandons heightened scrutiny for economic regulations/commercial legislation for rational basis/super deference. Non-economic rights i. 2-Tier scrutiny: In the case of economic rights, you get rational basis. But where court finds a fundamental right to be violated, you get heightened scrutiny. ii. Right to privacy: Griswald v. Connecticut contraceptives case 1. Conn law prohibits use of contraceptives. 2. Decision didn t explicitly use the due process clause, rather found that several of the bill of rights guarantees protect privacy interest and create penumbra or zone of privacy. Court then concluded that right to use contraceptives fell in this penumbra iii. Criticism of majority: 1. Penumbra theory illogical: J.Douglas, who wrote opinion, points to particular aspects of of the right of privacy in the 1st, 3rd, 4th, and 5th amendments. He then concludes that under the collective penumbra of these amendments, a general, complete, right of privacy must also dwell. (and this was necessary b/c explicit rights addressed in amendments don t touch contraceptive use). But the fact that the C enumerates rights might suggest that a penumbra of privacy is inappropriate. The fact that it explicitly protects some rights of privacy, and not others, suggests that it did not mean to protect those not mentioned.

iv. Roe v. Wade: court held that woman s right to privacy is fundamental under 14th amendment. Therefore legislature can only regulate, not prohibit, abortions.