I. The Role of the Supreme Court in the Constitutional Order A.

Creating a Constitution that Binds the Future

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F2. Standing (2 o

nd

doctrine after Advisory Doctrine; Court will leave as much as possible to the

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Hammer v. Dagenhart (The Child Labor Case) (1918) conservative free-market Lochner Ct narrows CC even tho case clearly regulates interstate commerce, saying purpose & direct effects are intrastate. CC cant threaten state police power so as to prevent unfair competition. Child Labor Act invalidated via realism. Overruled in US v Darby (1941) Wickard v. Filburn (1942): CC expanded & broadly interpreted to cover any economic activity that has a substantial economic effect on interstate commerce Agricultural Adjustment Act setting wheat production quota & penalties for overproduction upheld. But Court would again back away from this strong federalist/expansive position during New Deal when it would restrain fed growth. Overrules ALA Schechter. 5 years later NLRB Ct combines real economic effects + Wickard aggregation to open door to plenary congressional control over all economic activities.

Why/how did it come about? To create a more perfect union not about rights but rather about setting up a form of govt. Needed a powerful national yet limited govt. Articles of Confederation too weak (like UN; couldnt tax; depended on states). USC varied from AofC in that: Created Presidency; Created Court; Gave Congress power to tax The text: not very democratic but rather built a republic, has become more dem over time. Preamble: to form more perfect union; power is with the people

political process) Allen v. Wright (1984): citizens denied standing to sue a federal agency (IRS) based on the influence that the agency's determinations might have on third parties (not carrying out its obligation to deny tax exempt status to private schools that discriminated on the basis of race decided in Bob Jones U v US); no causation. Art III standing requirements (cannot be amended by Congress): (1) personal injury [not conjectural] (2) fairly traceable to the Ds allegedly unlawful conduct & (3) likely to be redressed by the requested relief. Prudential standing requirements (judicially imposed): (1) no raising 3rd partys legal rights; (2) no generalized grievances that are more appropriately addressed in the representative branches; and (3) claim must fall within zone of interests protected by the law invoked.

Art I: Legislative structure, powers & limits. HR only directly-elected group, and
even this is determined by state govt; Senate state-elected until 17th amend so represented state govt rather than ppl.
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Art II: Executive powers.

Congress power exclusive clarified in 10 amend State legislatures determine how electors are elected (direct dem not required); 12
Full Faith & Credit, Privileges & Immunities; Fugitive slave clause
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Batson v Kentucky prosecutors cant use peremptory challenge to dismiss jurors on

account of race (1st prudential waived)

Wickard revisited & CC expanded: Gonzalez v Raich (2005) - Congress can

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amend modified this after 1800 tie (Burr-Jefferson) Art III: Judiciary

Art IV: States powers and limits to unify the states Art V: Amending the Constitution extremely difficult, so as to quell turmoil & slow
things down (compare w/ CA simple maj vote!) Art VI: Federal powers [relationship w/ states]

Supremacy clause doesnt necessarily establish judicial review be/c doesnt say
judiciary is ultimate decider, just that fed>state law

Art VII: Ratification 9/13 only, so coercive & unconstitutional under AofC. TX v
White held TX (& rest of Confederacy) never left the Union during the Civil War, because a state cannot unilaterally secede from the United States.

Amendments: BofR (Framing period); 10 seen as a truism (powers not delegated to fed
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regulate purely intrastate activity that is not itself commercial, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. Raich defined economic activities as those involving the in-fact (speculative) for the ESA citizen-suit provision. ESA procedural right not enough to production, distribution and consumption of commodities pass substantive right standing doctrine. Court is setting a floor on the kinds of procedural rights Congress can create. Follows City of Los Angeles v. Lyons (1983 - denied black C. The Evolution of Commerce Clause Doctrine: The Lessons (?) of History standing to challenge the city police department's alleged chokehold policy for want of a o Interstate Commerce Act of 1887 and Sherman Antitrust Act of 1890 ushered in new era sufficiently plausible threat of future injury) US v. E.C. Knight (1895): introduces formalist direct/indirect test to narrow Massachusetts v. EPA (2007): P sovereign (MA) granted standing via special CC eschewing Gibbons. Rejects US argument for invoking Sherman Antitrust Act to set solicitude to require EPA to regulate GHGs under CAA be/c suffered a particular injury-inaside acquisition by American Sugar Refining Company of 4 competing refineries. Ct allows fact for which it can seek relief (like GA v TN Copper 1 century earlier). Injury deemed acquisition be/c the Act did not reach the monopoly since CC does not cover imminent and just because widely-shared did not mitigate its injury-in-fact status (court manufacturing. Fuller has formalist temporal sequence in mind (manufacturing < relies on FEC v Akins - 1998); but CAA lacks citizen suit provision as has ESA in Lujan. interstate commerce < retail). But see Stafford v Wallace (1922) Ct upheld Packers and Here Court pushes standing aggressively. Stockyards Act of 1921, which authorized commerce sec to regulate rates for stockyards before livestock enter interstate market. Injury-in-fact. Association of Data Processing Services Organizations v Camp (1970) The Shreveport Rates Cases (1914): Ct expands CC via aggregate impact broadened standing by giving beneficiaries of government action standing to sue. theory to allow ICC to set price ceiling so as to prevent RR from discriminating against But standing was later denied in 1972 on injury-in-fact grounds in Sierra Club v interstate commerce. Congress authority extended to interstate carriers as instruments of Morton because members didnt allege using the park slated to be torn down. Goldberg interstate commerce, which necessarily embraces the right to control their operations in all matters having such close and substantial relation to interstate traffic v. Kelly (1970) then held due process of 14th requires evidentiary hearing before a welfare recipient can be deprived of benefits. Champion v. Ames (The Lottery Case) (1903): formalism upholds statute Lujan v. Defenders of Wildlife (1992): Ps denied standing under ESA; no injury-

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stay w/ states & ppl)-; 13 (abolished slavery); 14 (= protection); 15 (black franchise); 16 (income tax power: states lost militias & financial independence); 17 (direct election of senators); 18 (prohibition); 19 (womens suffrage)

Threatened injury. Duke Power v Carolina Environmental Study Group (1978

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states)

Forms of constraint:

sufficiently concrete injury found for constituents in vicinity of potential power plant) & United States v SCRAP make clear that there must be a sufficient threat of future injury, which means it must be real and immediate rather than merely speculative.

banning interstate traffic of lottery tix, really on moral grounds. Narrowed by Hammer, which was overruled by Darby. Ct holds Congress' power to regulate interstate traffic is plenary. Absent Champion, motive would become relevant federal narcotics laws at risk! Binding. Evolution: McCulloch (1819 just need legitimate ends & appropriate means to be constitutional); Gibbons v Ogden (1824 Congress cant regulate purely state matters); E.C. Knight (1895 no power to regulate manufacturing). 2 strategies emerge to interpret enumerated powers like commerce clause: (1) formalist/literal (E.C. Knight; Champion; Darby); (2) expansive (McCulloch; Shreveport rate cases; Hammer; Wickard). New Deal crisis spawns mixed results but Court works to limit CC: upheld FDR administrations repudiation of contractual duties to repay debts in gold (Norman v Baltimore & Ohio Railroad, 1935) but invalidated (i) a portion of NIRA, holding that it excessively delegated power to the President (Panama Refining Co v Ryan, 1935) and (ii) the Railroad Retirement Act of 1934, holding that Congress lacked power to establish compulsory retirement and pension plan (Railroad Retirement Board v Alton Railroad Co., 1935). Court response to ND was extremely hostile (Schechter; Carter) and doctrinal basis for striking these down was direct/indirect test. Cardozo realistic/economic assessment prevails in NLRB v Jones & McLauglin.

Judicial review; Separation of powers (Across 3 co-equal branches; Between fed & Others: representation (as opposed to direct democracy); popular constitutionalism
(regular political intervention elections, demonstrations, public pressure); military force deployed by people via 2nd Amendment B. Origins of the USC

Widely diffused harms. US v Richardson - CIA secret budget case denied standing
for widely diffused injury associated w/ taxpayer standing, except w/r/t establishment clause/religious appropriations (Flast v Cohen; confined to its facts in Hein v FFRF general appropriations cannot be challenged but specific ones can). But see FEC v Aikins (granted standing be/c Congress created cause of action & injury consisted of inability to obtain info)

Arguments over ratification:

Nexus. Simon v Eastern Kentucky Welfare Rights Organization denied standing to

indigents suing IRS for granting favorable tax treatment to certain nonprofit hospitals that limited aid to indigents (speculative causation). But see Regents v Bakke (1978) granting standing to affirmative action policy challenge because P did not have equal opportunity to apply. Also Northeastern Florida Chapter of Associated General Contractors v Jacksonville (1993) granting standing (injury in fact caused by city ordinance laying aside 10% taxes for minority owned business contracts).

Federalists (Madison, Hamilton, John Jay): pushed for representative republic.

Represented elite; distrusted layman & feared too much democracy. For indirect civic involvement. Designed toward inaction & status quo. Federalist 10 (Madison, 1787): problem of factions. Federalist 51 (Madison, 1788): Checks and balances proposed as cure to both factionalism and self-interested representation.

Antifederalists (Jefferson) valued civic virtue of citizenry as safeguard against tyranny.

Represented layman; distrusted strong central govt for fear of tyranny. For direct civic involvement. C. Origins of Judicial Review o Constitution, Art. III, 1, 2.

Speculation/probabilistic injuries: Steel Company v Citizens for a Better Environment (1998 no standing for P be/c pollution had stopped so no redressibility) vs Friends of the Earth v Laidlaw Environmental Services (2000 standing granted be/c pollution was ongoing and civil damages would deter future pollution).

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A.L.A. Shechter Poultry v. United States (1935): restricts CC & returns to EC Knight direct/indirect. Be/c Schechters distribution entirely local, feds cant regulate their wage/business practices. Here commodity at rest after interstate commerce ends. Carter v. Carter Coal Co. (1936): restricts CC again via EC Knight direct/indirect. Coal Conservation Act (NIRA replacement) still not within Congress CC power. Just because a commodity (coal) will, in the future, be sold in interstate commerce does not give Congress the right to regulate it before the event occurs (aka to regulate mining, which is local). Commodities are at rest before interstate commerce begins. Cardozo dissent points to Shreveport Rate cases to say that whats important is effects. Court swings in other direction: WestCoast Hotel, 1937 (upholds state min wage statute) NLRB v Jones & Laughlin, 1937 (switch in time that saved 9 held Congress can regulate labor relations)

Marbury v. Madison (1803): judicial review over Congressional acts; SC has last say. Congress couldnt extend Courts original jx beyond what Constitution granted. Defines check & balance system. Court can tell other branches what to do, esp here where exec act (granting writ) was admin rather than discretionary.

F3. Political Question (3rd passive virtue doctrine; from Marbury)

o Constitution, Art. IV, 4

Extended in Cooper v Aaron (1958) Arkansas failed to comply w/ District Court order
to desegregate schools (after Brown v Board of Ed); Court disagreed by applying Marbury reasoning (SCOTUS decides what law is) and 14th Amendment (law applies to the states) states also bound by SC decision.

Baker v. Carr (1962): reapportionment justiciable B sued TN SOS for not redistricting since 1901, thereby diluting his vote and denying him = protection under 14th. Court says this is a case where system cant self-correct unless feds step in; democratic process wont work this case opens door for fed oversight over state affairs. Court reformulates PQ to say its about separation of powers rather than federalism: (1) USC textually & clearly allocates the issue to one of the branches [US v Nixon 1993 citing PQ to deny judge right to impeachment trial; comp w/ Powell v McCormack 1969 denying PQ and allowing Powell suit declaring that his being prevented from taking House seat was unconstitutional]; (2) no judicial standards for resolving; (3) impossible to decide w/o an initial policy determination; (4) impossible for court to hear case w/o disrespecting other branches; (5) need to respect previously made political decision; (6) need to speak w/ 1 voice [winner in foreign affairs PQ threw case out: Goldwater v Carter 1979, Senators sued Carter for unilaterally recognizing PRC as sole government of China and agreeing to terminate mutual defense treaty with Taiwan; Mora v McNamara 1967 challenging constitutionality of Vietnam; El-Shifa Pharmaceutical v US - Clinton 1998 bombing on private pharma factory in Sudan]; articulates 1 person-1 vote (enunciated formally in Reynolds v Sims, 1964).

Both Schechter Poultry & Carter Coal maj & dissents agree some things must be left to
states but MAJ draws the line formalistically whereas minority (Cardozo) draws it realistically/economically.

Martin v. Hunters Lessee (1816): judicial review over state court decisions

involving fed law, be/c fed power transferred/came from people, state courts had power to decide FQ and USC says SC has appellate jx over FQ, and moreover its interpretation wins via Supremacy cl. Story appealed to need for uniformity of decisions & checks over states as well as other branches. Affirmed in Cohens v VA (review over state criminal proceedings). D. The Sources of Judicial Decisions o Constitution, Art. I, 8, cl. 18

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NLRB v. Jones & McLaughlin Steel Corp. (1937): expands CC via Cardozo economic effects/pragmatic approach, upholding National Labor Relations Act of 1935. workers win as they cant be discriminated against for unionizing; 75% of its steel shipped outside of PA. Court overturns Schechter & Carter Coal eschewing hard-and-fast direct/indirect Landmark represents end of direct/indirect test & huge expansion in national power. But problem of degree will be resolved in Wickard (combines effects w/ aggregation). United States v. Darby (1941): overrules Hammer. CC expanding & Ct upholds Fair Labor Standards Act of 1938, giving Congress power to regulate employment conditions (to prevent states from exploiting interstate commerce thru cheap labor/unfair competition). Formalist approach: act is N&P to directly regulate interstate commerce. Later developments: Perez v US (1971) upheld federal criminal statute prohibiting loan sharking (purely local) enforced by threats of violence; US v Bass (1971) struck down ambiguous(ly broad) statute limiting convictions of gun possession w/o proof gun had been possessed in commerce or affecting commerce.

McCulloch v. Maryland (1819): N&P cl gives Congress implied powers (derived

from all ppl, not just MD citizens, to pass laws in furtherance of express powers), and state action cant impede Congressional power. MD tax of natl bank unconst. Broad, structural (federalism balance between fed & states) interp approach: its a Const we are expounding. Necessary construed to mean appropriate, so long as ends are legit. Representation reinforcement = states cant tax fed entities. E. The Power of Political Control Over the Supreme Court o Constitution, Art. III, 2

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Republican form of government clause. Art 4 4 court has rendered it a

dead letter with PQ doctrine. =Luther v Borden (1849); Pacific Telephone Co v Oregon (1912) F4. Questions of Timing Ripeness and Mootness Ripeness. Laird v Tatum (1972 class action seeking injunctive relief against alleged surveillance of lawful citizen political activity by the Army); Socialist Labor Party v Gilligan (1972 - refusing to hear challenge to a statute requiring party members to pledge that they were not engaged in an attempt to overthrow the government by force) Mootness. DeFunis v Odegaard (1974 challenge to preferential admissions program at UW Law school but by the time the case reached court, he was a 3L) comp w/ Roe v Wade

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Checks: amendment (4/24 overturn SC precedent - XI limiting federal court jx to hear suit brought against states; XV giving blacks vote; XVI expanding Congressional tax power; XXVI 18 vote); exec power to appoint; impeachment; life tenure; Congress confirms Justices Ex parte McCardle (1869): Congress can limit SC appellate jx per Art III, 2, not original jx (comes from Art III) so Congress has plenary power over SC appellate jx. Confederate sergeant McCardle cant challenge denial of habeas in fed ct.

Significance: NEPA, CAA, CWA, min wage, etc made possible o o o

Heart of Atlanta Motel v. United States (1964): CC broadly available to fight racial discrimination. Title II of 1964 Civil Rights Act - restaurant is covered if it serves/offers to serve interstate travelers or if a substantial portion of the food it serves has moved in commerce. 75% of hotels guests were from out of state, and it was strategically located near Interstates 75 and 85 as well as two major U.S. Highways. Katzenbach v. McClung (1964): Affirms Heart of ATL via aggregate effect test, applying it to Ollies BBQ on state hwy but had take-out service to negroes. food bought out of state. Local effects hurt rest of businesses and any new ones that might want to open. One step beyond Champion be/c Civil Rhts Act doesnt regulate interstate movement at all! United States v. Lopez (1995): first CC restriction since Depression on account of slippery-slope to granting Congress states general police power. Reversing expansionary era/trend of J&L Steel, Darby & Wickard to instead hold that CC has outer limits; possession of gun in local school in no sense an economic activity in the way wheat growing & consumption was in Wickard (wheat is a commodity; gun is not). Ct identified the three broad categories of activity that Congress could regulate under CC: (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, and (3) [local] activities that substantially affect or substantially relate to interstate commerce. we [would] have to pile inference upon inference which would eliminate states powers. Followed in Morrison (2000) and SWANCC (2001). (1) & (2) are plenary but it will not aggregate or defer as to (3).

Recently revived by Scalia in Hamdan v. Rumsfeld be/c Congress repealed the statute G. The Jurisdiction of the Supreme Court rare appellate process via statute; most by cert
that was being used by Guantanamo detainees to petition for habeas corpus. Govt argued cases should be dismissed but not all paths were closed to McCardle.

US v Klein (1872): Congress cannot prescribe to the court how to interpret the USC
Marbury affirmed.

II. Federalism at Work: Congress and the National Economy A. Introduction: The Values of Federalism o Constitution, Art. I, 8

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Enumeration ensures limited federal govt. But US Term Limits V Thorton, 1995 states cannot impose term limits on Congress, be/c USC set up a uniform system Values of federalism: efficiency; promoting individual choice; encouraging

F. The Case or Controversy Requirement and the Passive Virtues judicially-imposed

limits as different from those imposed by Congress F1. Introduction and Advisory Opinions

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experimentation; promoting democracy; preventing tyranny B. Federalism and Judicial Review o Constitution, Art. I, 8, cl. 3 Gibbons v. Ogden (1824): Broad CC interp means cant stop at state lines (covers everything except exclusively intrastate activities - production, agriculture). Congressional grant to Gibbons upheld & NY Court reversed; NY monopoly invalid under supremacy cl.

Article III cases and controversies jx has concrete implications: no advisory opinions & no deciding political questions. P must have standing or stake in the case. Only ripe non-moot cases allowed Advisory doctrine: SC does not give them; need real case & controversy

United States v. Morrison (2000): Refines Lopez (3): VAWA struck down be/c gender-motivated crimes of violence are not economic activity. No Wickard aggregation

be/c indirect economic effects of crimes against women could not be addressed thru CC.

D. State Regulation of Interstate Commerce Dormant Commerce Clause o

Hunt v. Washington State Apple Advertising Commission (1977): Struck down NC statute requiring all closed containers of apples sold/shipped into NC to bear no grade other than applicable US grade be/c (1) practical effect of burdening interstate sales AND discriminating against them; (2) leveling effect which insidiously operates to advantage of local apple; (3) fraud protection claims implausible. But see Minnesota v Clover Leaf Creamery (1981) upheld MN statute prohibiting milk sales in plastic disposable containers but allowing it in paper nonreturnable cartons be/c statute served stated environmental purpose despite trial court findings to contrary! Ct says discriminated evenhandedly so unlike Phila & Hunt.

D1. The Fundamental Framework o Constitution, Art. I, 8, cl. 3 o No textual basis. Judicially-created doctrine that defers to Congress unless collective action renders it too slow to act. Classical framework: (1) Direct/indirect: DiSanto v PA (1927) invalidated a licensing statute for those wishing to sell international tickets for travel on grounds that Congress had exclusive control to regulate foreign commerce - statute directly interfered with or burdened foreign commerce. (2) Inherently local/national. Cooley v Board of Port Wardens (1852) upheld a PA statute that required all ships entering/leaving port of Phila to use a local pilot or pay a fine into a fund to support retired pilots and their dependents.

suggests feds can use conditional spending to induce states to waive sovereign immunity. Alden v ME holding was fortified in Kimel v FL Bd of Regents (2000 Congress could not use 5 to authorize a prophylactic damages remedy under the Age Discrimination in Employment Act (ADEA) for state employees - disproportionate remedy be/c states free to treat workers differently based on age so long as the treatment was not irrational. Similarly in FL Prepaid Postsecondary Education Board v College Savings Bank (1999 disproportionate for lack of legislative record showing states engaged in patent discrim).

Board of Trustees v. Garrett (2001): strikes down Title I of ADA for want of congruence & proportionality - legislation that treats ppl w/ disabilities differently from others only requires rational basis review applicable to general social & economic legislation, so 14th does not require states to make accommodation; special accommodations must come from positive law and not = protection cl. But see Nevada Department of HR v Hibbs (2003) upheld the abrogation of state sovereign immunity under the Family Medical Leave Act of 1993 (FMLA) on account of findings that danger of gender-based discrimination in violation of 14th amend rendered FMLA family-care leave provisions congruent and proportional. See also TN v Lane (2004) upholding abrogation of state sovereignty under Title II of ADA (Title II, unlike Title I which dealt only w/ employment which is not in itself an independently recognized constitutional right, seeks to enforce a variety of basic constitutional guarantees, infringements of which are subject to more searching judicial review due process cl 14th Title II congruent and proportional. US v GA (2006) affirms this holding (Ct rejected GA sovereignty in face of paraplegic inmates Title II claim since injury was actual not future, so no disproportionate prophylactic defense)

Exxon Corp. v. Governor of Maryland (1978): upholds MD law precluding any producer or refiner of oil products from operating gas station in MD be/c discriminates evenhandedly (just so happens all gas comes from out-of-state). Ct distinguishes Dean Milk by saying that the fact that the burden of state regulation falls on some interstate companies does not, by itself, establish a claim of discrimination against interstate commerce. Instead, Ct says need benefits in-state at expense of interstate (Dean Milk) but the MD statute has no impact on the relative proportions of local or out of state goods sold in MD.

Modern view: (1) Purely political. purpose or effects inquiry. (2) Purely economic. (3) Mixed political and economic. (4) Formalism.

Early formulations of Congressional power to consent or preempt. Brown v MD (1827)

states could not tax items of interstate commerce if in original packaging. Leisy v Hardin (1890) Leisys brewed beer and shipped to Iowa where it was confiscated because Iowa had outlawed beer sales, so Leisys sued & won on preemption.

Compensating use tax upheld in name of promoting equality in Henneford v Silas

Mason (1937 taxes goods purchased elsewhere for privilege of using them in WA so as to avoid losing local business to retailers in other But see Oregon Waste Systems v Department of Environmental Quality (1994) where $2.25 fee on disposal of waste generated out-of-state was discriminatory and not compensatory be/c not imposed on substantially equivalent events. Compensating use taxes are not facially neutral.

D2. Discrimination Against Interstate Commerce o General considerations: Cost-benefit analysis. Exporting costs. Dean Milk v Madison (1951 - municipal
ordinance requiring all milk sold in Madison, WI to be pasteurized at an approved plant within 5 miles of the city unconstitutionally discriminated against interstate commerce)

Kassel v. Consolidated Freightways Corp. (1981): struck down Iowa statute enacted to prevent use of 65 foot doubles within its borders, except in cities abutting state line or for carrying farm equipment into Iowa be/c unconstitutionally burdens interstate commerce: trucking, which is an instrumentality of interstate commerce, backed by strong national interest in uniformity. Balancing test employed. But see Buck v Kuykendall (1925) forced WA to give Buck (WA citizen) license/certificate to operate auto stage line between be/c denial of the license would obstruct interstate commerce.

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13th amend. understood to apply to private as well as governmental action (Civil Rights Cases, 1883) & Jones v Alfred H Mayer Co (1968) applied 1982 to private conduct (Ps had alleged private seller refused to sell be/c they were black) - broader than Boerne. 14th amend. US v Morrison (2000) struck down civil remedy VAWA provision be/c disproportionate & incongruence since directed mainly against private individuals, not against state actors (whereas rights granted by 1 are good only against state action).

City of Philadelphia v. New Jersey (1978): struck down NJ statute prohibiting importation of waste originating or collected out of state as violating dormant CC be/c (a) not local in character but rather regulates an item of commerce (disposal of waste) (b) based on its origin; (c) per se invalid because stops flow of interstate commerce at state borders; (d) evil of protectionism. Considerations: costs v benefits (local, out-of-state, both); discriminatory intent; retaliatory also not OK (Sporhase v Nebraska (1982) struck down NE statute prohibiting groundwater withdrawal from within NE to be used in another state unless that state granted reciprocal water rights - reciprocity reqt retaliatory; A&P Tea v Cottrell (1976) reciprocity could not be justified as response to another states unreasonable burden on commerce). But see Permissible discrimination. Maine v Taylor (1986) upheld ME statute that prohibited the importation of live baitfish even in the face of scientific uncertainty - unusually fragile ME fisheries argument worked!

Preemption: (1) Express. OSHA preempting IL worker safety laws. (2) Field

preemption: scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it (Farmers Educational & Takeaway: After Boerne, Congress cant do much except (1) find factual Cooperative Union v WDAY (1959) holding that Federal Communications Act, which violations; (2) enact prophylactic or preventative remedies, but these must be congruent & required broadcasters to carry some political speeches without censoring them, occupied the field and therefore immunized broadcasters from liability under state libel laws). (3) Conflict proportional (deference in traditional areas like race discrim but not in periphery - age preemption: compliance w/ both federal and state regulations is a physical impossibility. discrim). Florida Lime & Avocado Growers v Paul (1963). 2 kinds: (i) actual conflict / physically C. The Tenth Amendment impossible (min fed law 55; max state law 50); (ii) obstacle to Congress purpose and objectives. Crosby v National Foreign Trade Council (2000) which relied on a statute Missouri v. Holland (1920): affirms its a truism; fed bird treaty > state 10th delegating broad power to the President to devise a strategy for imposing economic sanctions amend even when feds negotiated to deliberately trump states! N&P power to implement on Burma to say preempted MA statute (state as obstacle to exec foreign affairs). treaty into domestic law wins. But see Medellin v TX (2008) Vienna Convention was not Analytical Framework: facially discriminatory or discrim purpose/intent? C & A Carbone, Inc. v. Clarkstown (1994): Private local recycler sues self-executing so ICJ judgment & Bush order it was based on unenforceable - could not be self-executing be/c this would invite interference w/ state crim procedural rules. municipality be/c its flow control ordinance designed to subsidize new private waste transfer station & requiring all solid waste within the town to be deposited within the station increased Non-neutral statute: yes Phila; Hunt [strict scrutiny/per se invalid]. Is it absolutely Modern revival of 10th-based restraints on feds: National League of Cities v his costs. Struck down ordinance be/c (i) adverse economic effects on out-of-staters necessary to protect local interests (ME v Taylor)? If statute (1) seems to impose serviced by Carbone & (ii) deprives out-of-state business from local market which (iii) favors disproportionate burdens on out of state commerce and (2) reasons state gives are Usery (1976 CC did not empower Congress to enforce the minimum wage and O/T the local operator only. Cites Dean Milk. Since municipality chose to use the open market to implausible, then violation of dormant CC. provisions of the Fair Labor Standards Act against the states in areas of traditional earn revenues for the project, town may not use their regulatory power to favor local governmental functions). When feds tell states how much they need to pay workers, they enterprise by prohibiting patronage of out of state competitors. But see United Haulers Assn. Neutral statute: no (effects only incidental) Kassel (balancing) v Oneida-Herkimer Solid Waste Management Auth. (2007) where similar flow control are telling the state how to spend its federal tax dollars but this is rejected in Garcia v. III. Other Powers of Congress San Antonio Metropolitan Transit Authority (1985 - traditional governmental functions test public facility ordinance upheld since government was acting in its government rather than deemed unworkable & Congress has the power under CC to apply the FLSA to employees market player role. Dept. of Revenue of Kentucky v Davis (2008) relied on United Haulers A1. The Taxing Power (when its not for revenue-raising purposes) of state and local governments (noting that the same Congress that extended the FLSA to to uphold a state law that imposed taxes on income from out-of-state bonds while cover government-run mass transit systems also provided substantial funding for those exempting income from Kentucky-issued bonds. Bibb v Navajo Freight Lines (1959) systems). Garcia represents high-water mark of expansive CC until Lopez (1995) reasserted US v Doremus (1919) upheld the indictment of a doctor under the Narcotic Cts power to limit Congress CC authority in areas that have only an insignificant invalidated IL law requiring that trucks in the state use rounded mudguards be/c would Drug Act for selling heroin to a person popularly known as a dope fiend Congress need connection with interstate commerce. But see Gonzales v Oregon (2006) rejecting AG burden interstate commerce sans local advantage rare case where local nondiscriminatory only uniformly tax & motives irrelevant. But see Bailey v Drexel Furniture (1922) struck interp of fed CSA as contrary to ORs Death With Dignity Act (in so doing protecting safety measures place unconstitutional burden on interstate commerce. down the Child Labor Act be/c used tax as penalty taxes must have primary revenueCSA). raising purpose. But mixed motives OK (sin taxes on booze & tobacco) West Lynn Creamery, Inv. v. Healy (1994): Struck down MA combined NY v US (1992): "Take Title" provision of the Low-Level Radioactive Waste A2. The Spending Power nondiscriminatory tax + subsidy program which taxed all milk in the state and then o Constitution, Art. I, 8, cl. 1 redistributed the funds through subsidy to MA milk producers only. Purpose & effect of the Policy Amendments Act of 1985 exceeded Congress's power under the CC be/c coercive. $

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program is to divert interstate market share exclusively to MA dairy farmers.

Alternatives to subsidies: Tax incentives as subsidies. Camps Newfound/Owatonna, Inc.

v Town of Harrison (1997) struck down tax statute that exempted property owned by local charities but did not exempt organizations run principally for nonresidents be/c = to export tax targeting out of state customers; New Energy Co. of Indiana v Limbach presumption that subsidies rather than tax incentives are constitutional (form matters subsidies are active, cost is clear and they are up for debate every budgetary period; tax breaks are passive, their cost is unclear and they are presumptively permanent).

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Steward Machine Co. v. Davis (1937): upheld social security be/c did not involve coercion of states - conduct to be encouraged/induced must (1) be for general welfare & (2) related to the tax itself. Butler said spending power is independent and Congress can spend on any natl purpose (provided not coercive i.e., no threat of loss but incentives OK), Steward then said conditional spending OK too provided its not coercive. Modern view. South Dakota v Dole (1987) where 21 y/o drinking age requirement

& access incentives permissible. Congress cant commandeer the legislative processes be/c engenders accountability problem. NY does not overrule Garcia be/c in NY state is required to legislate whereas in Garcia state is merely being regulated as an economic actor Printz v. United States (1997): struck down Brady Act, which required AG to establish a national instant background check system, as unconstitutional delegation of the executive power to enforce the law from the Pres to state officers. But feds lack police power to achieve this otherwise, & Congress has been paying states to enforce the law since 1790.

MP exempts states from judicial supervision under CC; P&I reimposes scrutiny (less
rigorous?) in cases involving individuals; and = protection reimposes it in cases involving corporations (again maybe under less rigorous standard).

was upheld in order for states to get federal highway funds be/c the spending power in that There are limits to NY anti-commandeering: (1) does not apply to state case satisfied 4-part test: (1) for general welfare, (2) condition must be stated unambiguously, (3) condition must be unrelated to federal program, & (4) there can be no independent Other Doctrines Concerning Discrimination: courts/judiciary (supremacy clause but see Medellin); (2) Garcia; (3) federal courts can still constitutional bar. see also Cutter v Wilkinson (2005) prisoners in facilities that accept issue injunctions against state officials requiring them to comply w/ law. But see Reno v federal funds cannot be denied accommodations necessary to engage in activities for the Market-participant doctrine allows state to discriminate. Hughes v Alexandria Scrap Condon (2000) upheld federal Drivers Privacy Protection Act, which compels the states to practice of their own religious beliefs. Corp (1976) upheld MD program designed to reduce the # of abandoned cars in the state A3. The War Power refraining from taking certain action - be/c didnt require states in their sovereign capacity by purchasing junk cars but paying premium for those w/ MD plates and imposing more to regulate their own citizens, but rather the DPPA regulates states as owners of databases. stringent documentation for non-MD plates; Reeves Inc. v Stake (1980) upheld state Congress power to declare war, provide for common defense, raise and support policy restricting sale of cement produced in a state-owned plant to state residents. But Historically: Great Depression spawns New Deal federalism Cooperative armies and to provide and maintain a Navy extends to every matter and activity so related to see South-Central Timber Development v Wunnicke (1984) struck down AK law war as substantially to affect its conduct and progress (Hirabayashi v US, 1943), including federalism recovers 10th balance New Federalism requiring purchasers of state-owned timber to process it in AK before shipping it out be/c state may not impose conditions that have a substantial regulatory effect outside of that dealing w/ aftereffects (Woods v Cloyd W. Miller Co (1948) upheld constitutionality of IV. Separation of Powers and the President particular market. the Housing and Rent Act of 1947, which froze rents at their wartime levels). Also see B. Presidential Power -- The Steel Seizure Case Constitution, Art. II, 1, cl. 1; 2, cl. 1; 3 Rumsfeld v FAIR (2006) upheld Solomon Amendment, which withholds federal funds 4 types of subsidy via: (1) regulation; (2) tax break; (3) market participation; (4) from educational institutions that deny military recruiters the same access as other Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952): direct appropriations from general revenues. (1) & (2) are subject to close scrutiny. employers (campus optionality to comply renders it permissible under 1st amend). Same considerations that justify market participant doctrine seem to justify United Foundational separation of powers case. Black: (absolutist view no emergency powers) Haulers be/c acting in its government rather than market player role & Davis Jackson concurrence divided exec auth vis--vis Congress into: (1) express/implied B. Section 5 of the Fourteenth Amendment Congressional auth, (2) Congressional silence, & (3) in defiance (as here since ignored other options like Taft-Hartley emergency provisions which clearly withheld auth from Pres - or P&I clause of Article IV. Protects peoples fundamental rights wherever CC doesnt Congress can create causes of action, including: Complex remedies. (SC v Selective Service Act). reach (like MP). United Building & Construction Trades Council v Camden (1984) where Camden required 40% of city contractors & subcontractors to be Camden residents, held Katzenbach 1966 upheld Voting Rights Act, notwithstanding its preclearance process. Note Art I grants legislative powers enumerated herein while Article II has no that a city can pressure private employers to hire city residents, but the same exercise of Preventive or prophylactic remedies. (Rome v US, 1980 VRA preclearance again power to bias private contractors against out-of-state residents may violate P&I (be/c herein qualifier, suggesting as Hamilton/FDR did that exec powers are not limited to Art upheld as requiring rejecting changes that either discriminatory effects or purpose (not they lack recourse to political process think representation reinforcement. However, II. public employment not necessarily fundamental right under P&I. See also Supreme Court just purpose/facially). of New Hampshire v Piper (1985) holding that rule limiting bar admission to local C. Foreign Affairs domestic tyranny concerns are absent residents violated P&I clause. Note corporations are not citizens for purposes of the City of Boerne v. Flores (1997): Marbury on steroids. States power at risk so Ct clause. If Camden had imposed the residency requirement on all Camden businesses, struck down RFRA be/c (1) 5 extends only to enforcing 14th amend provisions (aka would have violated P&I of out of state patrons. So ordinance is facially discriminatory, Constitution rests in Congress the power to declare war, to raise and support remedial power as in SC v Katzenbach) and cannot alter the meaning of the free exercise but MP might exempt Camden (so long as it doesnt violate P&I which Ct here said it clause there must be congruence and proportionality between injury to be prevented or Armies and to provide and maintain a Navy, and to define and punish offenses against the might). remedied and the means adopted to that end, and (2) RFRA is not preventive or remedial be/c law of nations. Senate is empowered to advise & consent on making of treaties. Pres is its disproportionate - imposing heavy litigation burden on states curtailing state general given the exec power and made Commander in Chief, and also can make treaties, appoint The equal protection clause. AL taxed 1% on gross receipts of local insurance regulatory power. Ct striking back at Congress after it passed RFRA be/c it thought ambassadors and other public ministers (although only by and with consent of senate) and Employment Division v Smith (1990 state can discriminate against peyote ceremonial companies but 3-4% on out-of-state companies & MetLife v Ward (1985) held that ALs to make policy chief & primary diplomat. users) was wrong. Changed ratchet-up permissibility Katzenbach v Morgan back into purpose of encouraging formation of new insurance companies in AL was impermissible. complete judiciary oversight over Congress enforcement power, reclaiming judiciary Equal protection distinct from CC legitimate purpose inquiry constitutional interpretation power. C1. Executive Authority - Constitution, Art. II, 2, cl. 1

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11th amend: (i) doesnt apply if suit is brought by US govt or another state; (ii) immunity only applies to state itself, not to state officials (liable under 1983), (iii) permits suits against officials on behalf of states only (not cities & counties; Ex Parte Young); & (iv) has allowed SC to limit Congress enforcement power. But held that Congress can abrogate state immunity (PA v Union Gas, 1986) but in Seminole Tribe v FL (1996) it rejected that view held for states citing 11th. Again in Alden v ME (1999) held that Congress could not require state courts to entertain suits by individuals seeking damages for violation of a federal statute, where the state courts refused to do so on the basis of state sovereign immunity rules that do not discriminate against national claims - creates wedge between Congress essentially plenary power to regulate state economic activity and its ability to enforce its regulations by making damages remedies available. But SD v Dole

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United States v. Curtiss-Wright Corp. (1936): Congress can delegate power to pres to criminalize things. Foreign affairs enhances pres domestic power (this is a domestic criminal prosecution, but decision to impose an arms embargo is a foreign policy issue). Upholds Joint Reso of Congress authorizing Pres to prohibit arms sales if he finds doing so would help establish peace in Bolivia; CW indictment for selling arms stands. Dames & Moore v. Regan (1981): Modern reprise about scope of Youngstown. Ct upholds Congress power to delegate the decision to create/eliminate legal claims. Upholds exec order (which doesnt need to be signed by Congress or approved like a treaty) invalidating Iran hostage crisis claims in US courts (includes D&Ms claim) and requiring arbitration. No contrary legislative intent indications (IEEPA & Hostage Act) + history of

D3. Facially Neutral Statutes w/ Significant Effects on Interstate Commerce o South Carolina Hwy Dept. v Barnwell Brothers (1938) upheld state law
prohibiting use of large trucks on state highways only rational basis reqd. But see Southern Pacific Co v Arizona (1945) struck down statute limiting train lengths be/c too burdensome on interstate commerce (also lack of safety benefits & need for uniformity in the industry).

congressional acquiescence (International Claims Settlement Act of 1949) = Congressional implicit approval of claim settlement by executive agreement

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its own powers but mixing it with other branches, Court tolerates: giving little bit of rulemaking to independent sentencing comm. (Mistretta), prosecutorial power to independent prosecutor (Morrison), legislating to exec agencies (Humphreys) court But see Medellin v. Texas (2008): invalidates Bush order & limits D&M to its applies loose balancing test. facts as distinguishable narrow circumstances of claim settlement. Unilaterally converting a V. The State Action Doctrine non self-executing treaty into a self-executing treaty is not within scope of exec power but rather within Congress powers, which has power after ratifying a treaty to enact the N&P A. State Action and Inaction: Basic Issues - Constitution, Amend. XIV, 1, 5 laws (Hamdan v Rumsfeld; Ex parte Milligan). Pres in Jacksons category3

Hamdi v. Rumsfeld (2004): although Congress authorized detention of combatants in narrow circumstances, due process demands that a US citizen held in US as enemy combatant be given meaningful opportunity to contest factual basis for that detention. Only applies to indefinite detentions & US citizens. Ex parte Quirin - capture, detention & trial of combatants are important incidents of war. Hamdan is to Congress was Hamdi is to the courts SC is policing them both! Hamdan v Rumsfeld (2006) struck down military commission system granted Bush by Congress for non-US citizens was illegal be/c violated both Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. Congress responded to Hamdi & Hamdan by enacting Detainee Treatment Act but Boumediene v Bush (2008) strikes down the Act as unconstitutionally restricting writ of habeas corpus and that the limited review provided was inadequate substitute for habeas (extends Hamdi to non-citizen combatants).

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The Civil Rights Cases (1883): 5 only remedy for state rather than private discrimination; Ct substantially limiting Congress enforcement power but only as to African-Americans DeShaney v. Winnebago County Department of Social Services (1989): easy case be/c pure inaction except D is govt!. No state action nothing in due process clause requires state to protect the life, liberty & property of its citizens against invasion by private actors; clause is phrased as limitation on states power to act, not as a guarantee of certain minimum levels of safety & security; purpose was to protect people from the state, not from each other. Inaction is not state action BUT selective inaction might be. But see Baltimore City Dept of Social Services v Bouknight (1990) quasi-state custody means state action.

Shelley v. Kramer (1948): restrictive covenants OK but judicial enforcement is

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not. (1) pervasiveness of the covenants operated like zoning + (2) racial discrimination, Unanswered questions: Torture. Yoo/Bush Feb 7, 2002 memo permits; McCain where court has been most aggressive is stretching limits of state action, be/c at this point Amend doesnt; Bush signing statement qualifies. Wiretapping. 2008 Congress amended its sufficiently morally condemned. See also Strauder v WVa invalidating statute FISA in ways that expanded Pres authority to order wiretapping but no litigation be/c no Ps. restricting jury service to whites; Ex parte VA similar discrimination imposed by action of state judge denied rights protected by the 14th. C2. Legislative Authority -- The War Power Redux - Constitution, Art. I, 8, cl. 11 B. State Subsidies and the Public Function Doctrine War Powers reso (weak), which was designed to halt the perceived atrophying of Congress power to declare war. 1st consultation requirement w/in 2 days (reporting requirement); 2nd within 60 days removal; 3rd & and finally if congress passes concurrent reso then troops must be removed. Pres cites City of Boerne v Flores to say at least last prong is unconstitutional. Congressional control over agreements with foreign states. Treaties. Art II 2

Burton v. Wilmington Parking Authority (1961): finds discriminatory state action due to mutual benefits to state and to Eagle exist (Eagle improved on the space and enjoyed Authoritys tax exemption). Also public signage indicates public character of the building (state & natl flags are flown). Land & building are publicly owned and generates revenue for state. Guests are also afforded convenient parking. It is irony amounting to grave injustice that in one part of a single building, erected and maintained with public funds by an agency of the state to serve a public purpose, all persons have = rights, while in another portion also serving the public, Negro is 2nd class citizen. But not all state subsidization of discriminatory conduct is unconstitutional (police & fire protection is constitutionally provided to all establishments, whether or not they discriminate). Also see Norwood v Harrison (1973) struck down MS statutory program whereby textbooks were purchased by state and lent to students in both public & private schools without reference to whether any of the schools had discriminatory policies; McGlotten v Connaly struck down tax-exempt status of discriminatory fraternal orders; Bob Jones U v US upheld IRS decision to deny tax-exempt status to private racially-discriminatory schools. State monopolies like electricity, water, police & fire protection do not by mere involvement constitute state involvement in discrimination.

grants Pres power by and with the advice and consent of the Senate, to make treaties provided 2/3 senators concur. Executive agreements. If Pres lacks 2/3 vote, he may make domestic law w/o acquiescence of either house by entering into executive agreements w/ foreign states (American Insurance Assoc v Garamendi (2003) invalidated CA statute as preempted by exec agreement between US & Germany, which authorized settlement of claims through special fund established by German govt) D. Domestic Affairs

D1. Executive Authority - Constitution, Art. II, 4 o United States v. Nixon (1974): subpoena upheld; exec privilege claim rejected.
Pres argument is that this is an interbranch dispute and this makes it non-justiciable [but its really a conflict between judicial power (to issue subpoena) and pres power to exec immunity]. Notwithstanding deference, Court still interprets the law (& scope of privilege). (i) no absolute privilege be/c would plainly conflict w/ judiciarys job to do justice in criminal prosecutions, (ii) unqualified privilege is unjustified given evidentiary privileges built into the criminal justice system; (iii) balancing test (immunity v. criminal justice) weighs against Pres. But see Fitzgerald v Nixon (1982) immunizing Pres from damages from misconduct while in office (firing Fitz and allegedly compromising his 1st amend rhts). Harlow v Fitzgerald (1982) then declined to extend absolute presidential immunity (from any official acts while in office) to aides. Clinton v Jones (1997) then rejects argument that w/r/t pre-official actions theres right to stay proceedings or immunity. But see Cheney v. United States District Court (2004) allowing Cheney not to disclose overly broad discovery requests for meeting minutes of the Energy Task Policy Force (also civil rather than criminal as in Nixon).

Rendell-Baker v. Kohn (1982): limits Burton to its facts. Here and in Blum announces coercive power or significant encouragement test. Employees of New Perspectives School, privately-owned institutions specializing in problem kids but heavily-regulated by public authorities and between 90-99% of its budget came from public funds. Petitioners were discharged after disagreeing w/ school policies and claimed violation of their constitutional rights to free speech and procedural due process. School is no different than private corp w/ govt Ks to build roads, bridges, dams, etc., and such acts dont become govt acts in virtue of their significant or total engagement in performing public Ks. But see Ex parte VA (1880) where state judge discriminated against blacks in jury selection and court found state action & West v Atkins (1988) where Court held that private physician under K with state to provide medical services to state prison inmates was a state actor.

San Francisco Arts & Athletics, Inc. v. United States Olympic Committee (1982): establishes that Burton is limited to its facts: new test is coercion or significant encouragement no subsequent case found state action except under extreme circumstances. No state action. Fact that Congress granted the committee a corporate charter does NOT render it a government agent; all corporations act under charters created by a government. Nor is fact that it has exclusive rights to Olympic dispositive be/c all enforceable rights in trademarks are created by some government act. But see Lebron v National RR Passenger Corp (Amtrak is plainly the government itself, so Lebrons claim that Amtrak refusing to rent Penn Station billboard so that Lebron could post political ads was a valid 1st amend rights violation claim - Penn Station was owned by Amtrak, corp created by Congress; US govt owned all preferred Amtrak stock and Pres appointed maj of BOD); Brentwood Academy v TN Secondary School which held that statewide assoc incorporated to regulate athletic competition among public and private secondary schools was a state actor when it enforced a rule against a private member school (pervasive entwinement to the point of largelyoverlapping identity, based on 84% public school membership); Edmonson v Leesville Concrete held that a private civil litigant who used peremptory challenges to exclude jurors on account of race was a state actor (relying on Burton) be/c judge enforced the peremptory challenge system. Also see Georgia v McCollum also held that defense attorney in criminal trial who uses peremptory strikes on racially discriminatory basis is a govt actor for constitutional purposes.

Art II 4 provides that President, VP and all civil officers of the US shall be removed from office on impeachment (House impeaches; Senate tries, if Pres w/ Chief Justice presiding). High crimes and misdemeanors: treason or bribery, public/private? No crim penalties

D2. Legislative Authority - Constitution, Art. I, 7; Art. II, 2 o Nondelegation. Panama Refining (1935) invalidated provision of NIRA
authorizing Pres to prohibit transportation in interstate commerce of oil produced in violation of state-imposed production quotas; then ALA Schechter (1935) invalidated 3 of NIRA as unconstitutional delegation of legislative authority to trade or industrial groups to reach ambiguous unfair competition standards. Now dead letter (Amalgamated Meat Cutters v Connally (1971) upheld statute authorizing President to impose wage & price controls on the ground that implicit standards of broad fairness and avoidance of gross inequity; Whitman v American Truckers (rejecting nondelegation attack on CAA); Loving v US

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INS v. Chadha (1983): strikes down all ALL leg vetoes as violating Art I 7 cl 2 bicameralism & presentment requirements, which are integral to separation of powers. Applies only to acts that are legislative in its character and effect (this one altered legal rights, duties & relations of persons, including AG, exec branch officials and Chadha, all out of legislative branch). Also see Clinton v NY striking down line item veto. Chadha has broad reach! Removal (USC silent): Myers v US struck down statute limiting postmaster removal by advice & consent of Senate be/c contrary to unitary exec. But see Humphreys Executor v US (1935) upholding limiting Pres power to remove independent FTC commissioner, distinguishing and confining Myers reach & saying that postmaster is purely exec officer whereas FTC comm is quasi-leg & quasi-judicial. See also Wiener v US (1958) where Court read in removal limits on War Commission (be/c quasi-adjudicatory so must be free from political control) spawn independent agencies sans accountability.

Marsh v. Alabama (1946): State action be/c public function - nothing distinguishes the town from any other, but its company owned. Ownership though doesnt mean complete dominion and the more owner opens up property to public, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Most people live in company owned towns, and it cant be that their rights are therefore limited their rights to be informed and have access to info are guaranteed. Also see white primary cases: Nixon v Herndon held that 14th had been violated when blacks were denied ballots in the state Dem primary pursuant to TX statute; Nixon v Condon then again held that denial of franchise was unconstitutional, after TX had rewritten statute to provide that state exec committee of the party in power could prescribe the qualifications of its members for voting). Smith v Allwright, then held that where privilege of party membership was also qualification for voting in primary, there was state action. Terry v Adams though no majority emerged as to reasoning, 8 justices agreed that the exclusion of blacks from pre-primaries held by the Jaybird Dem Assoc violated the 15th amend; Blacks opinion focused on states failure to control private conduct that effectively deprived blacks of political power.

Appointment (Art II): Buckley v Valeo (1976) strikes down Federal Election Campaign Act as violating Art II (Pres shall nominate, and by and with advice & consent of senate, shall appoint ambassadors, other public ministers & consuls, judges of the supreme court and all other officers of the US whose appointments are not otherwise herein provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments). Appointee exercising significant authority is an officer of the US and must therefore must be appointed pursuant to the appointments clause. See also Bowsher v. Synar (1986): striking down GRHA as unconstitutional delegation of power to exec be/c improperly keeps power to discharge w/ Congress. (Comptroller, deemed legislative, was to execute law, which amounts to an unconstitutional Congressional veto).

Jackson v. Metropolitan Edison Co. (1974): Metropolitan, privately-owned utility holding a cert of public convenience issued by PA Public Utility Commission, terminated Jacksons electrical service for alleged nonpayment of bills and Jackson claimed her due process rights were violated be/c she was not accorded a hearing prior to the termination. Rule/Analysis: No state action by utility notwithstanding its the only private electric company in town, be/c does not perform a public function. Though has monopoly and it was granted to them by the state, monopoly is not enough. Its only when the function has been traditionally exclusively reserved to the state that it becomes state action, and electricity providers are traditionally private rather than traditionally associated w/ sovereignty (the state). Also see Flagg Bros held that dispute reso (UCC provision which allows a warehouse to enforce a lien upon repossessed goods by selling said goods) between creditors & debtors is not a public function (1978) and Blum v Yaretsky decided on same day as Rendell-Baker held that nursing homes in receipt of fed Medicaid payments were not performing a public function when they decided on level of care for their patients be/c day-today nursing home admin decisions were not necessarily the kinds of decisions traditionally & exclusively made by the state.

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Bowsher, Chadha & Buckley = extreme constraints on Congress (no role in appointment Buckley); Congress cannot get involved in implementation of fed law except for new legislation (Chadha); no congressional officer can be involved in execution of federal law (Bowsher); Congress cannot appoint members of Congress to positions of exec authority (Metropolitan Washington Airports Authority v Citizens for Abatement of Aircraft Noise). So basic rule is, once Congress passes a law, it cant do anything else, but pass a new law. Morrison v. Olson (1988): Court upholds Title VII of Ethics of Govt Act, which allows for appointment & limited removal of independent counsel be/c (i) doesnt impede Pres job (balancing test) & (ii) Congress isnt trying to aggrandize power Scalia vehement dissent goes back to Myers to say inferior officers must be under control of exec-appointed officer, but the independent counsel doesnt answer to AG/exec. Edmond v US, Scalia writes maj opinion that he adopts his definition of inferiority, and cites his dissent in Morrison. See also Mistretta v US (1989) rejecting separation of powers challenges to the US Sentencing Commission, which had 7 Pres-appointed members 3 of whom were fed judges, and which was an independent commission located in the judicial branch.

So after Jackson test, what is a public function? Selecting jurists but not running a school or an Olympic committee. Tough calls: Privatized prisons (8th amend); certain law & order functions like running policing should still make you state actor, right? (Blackwater?). IF Court treats Jackson test literally, you start erasing large swathes of constitutional protections. Suggests Marsh was a narrow decision, in light of its reinterpretation, notwithstanding how momentous it seemed at the time.

Summary: Pres can fire Heads of departments (Clinton), entire cabinet. Rest is unclear. Dominant position in the court is to get involved in removal (Myers, Humphreys), appointment (Buckley), executing laws (Bowsher), implementation of nonlegislative acts (Chadha) Court does not tolerate. But when Congress is not aggrandizing