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Con Law Outline Spring 2009 Professor Wright
Chapter 1: The Federal Judicial Power
(A) The Authority for Judicial Review
Article III Created the federal judicial system Supreme court is explicitly created, with congress having the power to create inferior courts No express granting of federal courts power to review the constitutionality of federal or state laws or executive actions (created through Marbury v. Madison)
Allocation of judicial power between SC and lower federal courts SC has original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party
SC has appellate jurisdiction, both as to law and fact, subject to “such Exceptions and under such regulations as Congress shall make”
Contemporary practice: SC’s original jurisdiction is limited to disputes between two or more states Marbury v. Madison (p.2)(p.39)(The authority for Judicial Review of Congressional and Presidential actions)
Court considered jurisdiction last, arguably making the rest of the opinion improper and dicta; may have been for Marshall to show non deliver was wrong Issue 1: Does Marbury Have a Right to the Commission Yes; all the appropriate procedures were followed Marshall may have ruled different and decided delivery was necessary, but court found delivery to be a mere custom Withholding the deed violated a vested legal right Issue 2: Do the Laws Afford Marbury a Remedy? Judiciary can afford relief against an executive when there is a specific duty to a particular person, but not when it is a political matter left to executive discretion (discretionary issues are only checked by elections)
This is the difference between discretionary and ministerial decisions Judiciary can provide remedies against the exec when there is a specific duty to one person Issue 3: Can the Supreme Court Issue this Remedy (Writ)? Court found § 13 of Judiciary Act of 1789 authorized writs of mandamus on original jurisdiction Statute may have read to only pertain to Court’s appellate jurisdiction; or only giving authority when within jurisdiction (Court didn’t think so)
Court found that Article III enumerated its original jurisdiction and that Congress can’t enlarge it This is another point that could have gone either way; Marshall may have interpreted Article III as the floor (still Marshall’s way now)
This also means that federal courts are courts of limited jurisdiction Can the Supreme Court Declare Laws (judiciary act) Illegal? Court: constitution limits governmental powers, and limits are meaningless unless subject to judicial enforcement;
Yes; law repugnant to the constitution is void If SC identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority and the duty to declare the statute unconstitutional and refuse to enforce it
Marbury stands for several propositions – Constitution is regulatory Congress can’t increase authority of fed courts beyond what is given under Art. III Court can review exec and legislative actions – Court is final reviewer Authority for Judicial Review of State Judgments
In general, S/C may only review decisions of state court as appellate jurisdiction and may be limited by congress (e.g. no review of state laws) Martin v. Hunter’s Lessee (p.9; 47) two claims to land; SC found the Const. presumed authority to review state court decisions
SC review is important to check the State’s attachments to certain topics and to ensure uniformity in the interpretation of fed law Cohens v. Virginia (p.10; 48) sold lottery tickets in violation of VA law; state courts can’t be trusted because judges are dependant for office/salary (crim. can seek SC review when their conviction violated the Constitution )
Independent and Adequate State Grounds – fed question must be involved to hear State court appeal; can’t hear state issue even if part of fed question
(B) Limits on the Federal Judicial Power (1) Interpretive Limits
Originalism (Framers Intent): judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written constitution
Amendment is the only legitimate means for constitutional evolution Look to framer’s intent Mid-originalist: ‘big picture intent’ Original Meaning: what did the people of the day think they meant Traditionalist: interpret based on current social norms; when society gets to the point where they are ready to recognize new social norm constitutionalize through interpretation
Contemporary Practice: constitution is meant to promote democratic ideasdon’t interpret in a way that restricts this
Nonoriginalism: courts should go beyond the set of references and enforce norms that cannot be discovered within the four corners of the document Meaning and application of constitutional provisions should evolve by interpretation; use contemporary norms and values
What role should the framers’ intent have on interpretation of 2nd^ amendment US v. Emerson (p.14; 27) examined the text/history of 2 nd^ amend and found it protected the right of individuals to possess firearms ( individual rights model ) Silveira v. Lockyer (p.19; 27) 2nd^ amend doesn’t protect individual right to have firearms, but only limits Congress from regulating guns in a way that would keep states from protecting themselves ( collective rights model )
What weight should prior SC precedent have? US v. Miller rejected 2 nd^ amendment as protecting individual right to have guns (Emerson court found this only to relate to the specific type of gun being used)
What weight should tradition have on interpretation? What weight should social costs of gun violence have?
(2) Congressional Limits
SC has jurisdiction with such exceptions, and under such regulations as the Congress shall make; how far does this apply?
Exceptions and Regulations Clause Ex Parte McCardle (p.25; 156) Used by advocates of proposals to limit SC jurisdiction ; McCardle was newspaper editor arrested for writing articles critical of reconstruction
Court found a lack of jurisdiction after Congress repealed the power of SC to hear appeals for writs of habeas corpus; result oriented ruling, however this court found the exception clear
Supporters of proposals to restrict SC jurisdiction use McCardle as precedentargue that this establishes that congress may prevent SC review of constitutional issues
Hayburn’s Case: judges were supposed to evaluate amount to be paid to veterans, but their recommendations could be changed/not followed; since they could be changedlegislative control and not judicial in nature Plaut v. Spendthrift Farm, Inc. (p.32; 56) statute allowed actions to be reopened that had already been decided through Congress’s retroactive statute
Court found Hayburn distinguishable, but found that the principle of finality applicable Judiciary must have power to decide cases, not just rule on them Otherwise, courts would just be issuing advisory opinions whenever they ruled on a case Declaratory Judgments Suits for declaratory judgments are justiciable so long as they meet the requirements for judicial review Cases do not need to be presented in a traditional form, all that is important is the substance Nashville v. Wallace (p.34; 58) company sought declarative judgment that a tax was unconstitutional
Since the matter could have been justiciable as a request for injunctionthe suit for a declaratory judgment was capable of federal court adjudication
(e) The Political Question Doctrine (i) The Political Question Doctrine Defined
The political question doctrine refers to the subject matter that the court deems to be inappropriate for judicial review due to the blending of the ideas of the separation of powers/discretionary considerations
Even though there is an allegation of constitutional violation, federal courts refuse to rule and instead dismiss the case; political process resolves the issue Uncertain whether the political question doctrine is constitutional, prudential, or both Guaranty Clause and Republican Form of Government (Article IV §4) Court generally finds cases alleging a violation of the clause as nonjusticiable political questions Luther v. Borden (p.78; 135) drafting state constitution; broke into ’s house, but claimed acting on government orders; argued that it was an unconstitutional gov’t
Court found it was Congress to decide what government is established; SC has never deemed a state government or state action to violate the republican form of government clause
Cases under the guaranty clause are nonjusticiable Baker Criteria (at least one must be present to make it a PQ)
■ Textually demonstrable commitment of the issue to a coordinate political department
■ Lack of judicially discoverable and manageable standards for resolving it
■ The impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion
■ Impossibility of a court’s undertaking independent resolution without expressing lack of the
respect due coordinate branches of gov’t
■ An unusual need for unquestioning adherence to a political decision already made
■ Potentiality of embarrassment from multifarious pronouncements by various departments on
one question These are all fairly useless; must examine specific areas that SC has invoked political question doctrine Reapportionment Baker v. Carr (p.78; 137) SC found a claim of malapportionment justiciable based on equal protection clause
Didn’t overrule Luther Court went for this claim because the standards were ‘more developed’ under the E/P clause than under the guaranty clause However, both clauses are equally vague; dissent makes this point, and addresses issue with not having remedy or ability to enforce
It was important because the political process was unlikely to resolve the constitutional violation Apportionment must meet the standard of one person, one vote Gerrymandering
Vieth v. Jubelirer (p.81; 138) reconsidering whether challenges to partisan gerrymandering is a political question; plurality held that challenges to partisan gerrymandering are inherently non-justiciable political questions
Court found Davis v. Bandemer (finding challenges to gerrymandering are justiciable) standards impossible to implement
There are no judicially discoverable or manageable standards to decide when partisan gerrymandering offends the Constitution
A majority of justices said challenges may be heard if there is a manageable legal standard Kennedy (concurring with judgment) Concurred in judgment, but said he believed that such standards could be developed in the future First amendment may offer a better place for intervention: concentrates on whether the legislation burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association
Stevens (dissent)(sole intent/bad motive test) When partisanship is the legislature’s sole motivation, the governing body cannot be said to have acted impartially
(1) If no neutral criterion can be identified to justify the lines drawn, and (2) the only possible explanation for a district’s bizarre shape is a naked desire to increase partisan strength no basis should exist to save the district from an equal protection challenge
Souter (dissent)(equal protection test) must identify a cohesive political group to which he belonged must show district of his residence paid little to no attention to traditional districting principles must establish specific correlation between district’s deviations from traditional districting principles and distribution of the population of his group
must present court with a better plan must show acted intentionally to manipulate the shape of the district to pack or crack his group Breyer (dissent)(process based test)
Unjustified use of political factors to entrench a minority in power is only justiciable gerrymandering issue League of VLA v. Perry (supplement p.46) current state of law
i. argues for the sole purpose test proposed by Stevens above
ii. Not enough votes to determine all political gerrymandering cases are non-justiciablestill open
(ii) The PQD Applied: Congressional Self-Governance
Does the political question doctrine prevent federal court review of congressional decisions concerning its process and members?
Court usually does not review Powell v. McCormack (p.90; 143) house of representative wouldn’t seat even though elected by constituents; presented false travel vouchers and other illegal things; issue here was not expulsion, it was exclusion
Court found the constitution did not allow exclusion of anyone who meets all requirements expressly prescribed in the constitution (age, citizenship, residence requirements)
Rejected the idea that the court should dismiss the case rather than interfere with or risk conflict with another branch of government
Courts must first do an initial interpretation before determining justiciability
(iii) The PQD Applied: Foreign Policy
SC usually finds cases dealing with foreign affairs as political questions Areas that Pose a Political Question Determination of when war begins or ends is left to political branches
Chapter 2: The Federal Legislative Power
(A) Introduction: Congress and the States
Congress may act only if there is express or implied authority to act in the Const. Questions to ask when evaluating constitutionality of an act of Congress: What is the scope of congressional authority? ( McCulloch v. Maryland ) What is Congress’s authority under specific constitutional provisions? Does state sovereignty limit congressional power? What limits, if any, exist on Congress’s ability to delegate legislative power? Necessary and Proper Clause: Congress has the power to make all laws ‘necessary and proper’ for carrying out its enumerated powers E.g.) if congress is seeking an objective that falls within specifically enumerated powers, may use any means that is rationally related to the objective and not specifically forbidden by Const. Can’t Violate other Powers: even when Congressional action appears to fall within a specific grant of power, the federal action may not violate some other specific constitutional guaranty It must fall within some specific grant of power under the Constitution; and It must not violate any specific constitutional provision Enumerated Powers: lay and collect taxes provide a defense for the country borrow money on the credit of the US regulate commerce w/ foreign nations, and interstate commerce among the several states regulate immigration and bankruptcy establish post offices control the issuance of patens and copyrights declare war, pass laws need to govern DC and fed military enclaves make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested in this Constitution in the government of the US. Power to regulate foreign affairs is implied by the nature of the Union, and by the impracticability of having each state conduct its own foreign affairs.
Implied Powers McCulloch v. Maryland (p.101)(p.236) whether Maryland could collect tax from the US Bank; State governments were angry at the bank for many reasonsadopted taxes on it Implied Authority and constitutionality to create the Bank Historically: the first Congress enacted the bank (prescription) States don’t retain ultimate sovereignty because the people ratified the constitution Compact Federalism: sees states as sovereign because they ratified the constitution People are sovereign, not the states Authority to create the bank was through implied powers Congress isn’t limited only to those acts specified in the Constitution Congress may choose any means not prohibited by the Const. to carry out its lawful authority Meaning of the necessary and proper clause First interpretation (present case) is that Congress may choose any means to carry out its express authority; necessary means useful/desirable and not indispensible/essential Second interpretation is that the clause is a limit on Congress’s power and allows congress to adopt laws only truly necessary (indispensible) Constitutionality of Maryland’s Tax Federal law has to be supreme (otherwise states indirectly tax other states)
There must be implied prohibitions to protect federal supremacy What role should concern over protecting States have in defining congress’s powers? (10th amendment argument used later) Those who oppose judicial protection of states as a limit argue that national legislation is needed to deal with national problems Others argue for judicial use of federalism as a constraint on Congress’s power
Lessens the chance for federal tyranny , enhances democratic rule through government closer to the people, and uses states as laboratories
(B) The Commerce Power
A. Article I, § 8: “The congress shall have the power … to regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes…”
B. Three Questions
B.i. What is ‘commerce’?
B.ii. What does ‘among the several states’ mean?
B.iii. Does Tenth Amendment limit Congress?
- The Initial Era: Gibbons v. Ogden Defines the Commerce Power
Gibbons v. Ogden (p.113)(p.243) ( navigation ) NY gave monopoly on ferry transportation; started competing service and violated the rights; Fed law preempted NY lawNY monopoly was an impermissible restriction of interstate commerce (ISC)
A. What is ‘Commerce’?
A.i. Commerce is ‘something more’ than just traffic; it is intercourse
A.ii. Gibbons court says commerce includes all phases of business (navigation)
B. What is ‘Among the States’?
A.iii. The word ‘among’ means intermingled with; not broadest definition
B.a. Congress can regulate when commerce has interstate effects, even when commerce
occurs within a state
A.iv. Completely internal commerce of a state can be reserved for State
C. Does State Sovereignty (10th^ Amendment) Limit Congressional Power?
A.v. No limitations (as stated by “any means” argument in McCullough)
A.vi. Sole check on Congress is the political process
- The 1890s-1937: A Limited Federal Commerce Power
A. Court developed a philosophy known as ‘dual federalism’
B. Dual Federalism: federal and state governments were separate sovereigns that each had separate zones of
authority and it was the judicial role to protect the states by interpreting and enforcing the constitution to protect the zone of activities reserved to the states
B.i. Court narrowly defined the meaning of commerce to leave zone of power to state
B.ii. Court restrictively defined among the states as allowing Congress to regulate only when there
was a substantial effect on interstate commerce
B.iii. Tenth amendment reserved a zone of activities to the states and federal laws within the
commerce clause were unconstitutional if they invaded that zone
C. Courts were more likely to follow the above principles when dealing with federal economic regulations
and least likely to adhere with federal morals regulation
A.iv. Court believed the consequences of allowing this regulationall freedom of commerce will be at an
end and power of States over local powers will stop
A.v. Holmes Dissent: (becomes significant opinion) so long as the congressional regulation falls
within power specifically given to congress, the fact that it has a collateral effect upon local activities otherwise left to state control doesn’t render the statute unconstitutional Champion v. Ames (1903)(p.128; 253) federal law was upheld that prohibited the interstate shipment of lottery tickets; sought to stop intrastate activity of gambling in lotteries
A.vi. Court found that power to regulate interstate commerce includes the ability to prohibit items
from being in interstate commerce
A.vii. Without regulation, one state may impose morals on another
B. The two cases may be distinguished on principle (probably not) or more likely the Court’s willingness to
defer to moral laws than economic regulations
A.viii. No clear zone of activities reserved to the states; clear belief in dual sovereignty
- 1937 – 1990s: Broad Federal Commerce Power
A. Political pressures developed to change from other arbitrary laws of the past
B. Three Key Decisions Changing the Commerce Clause Doctrine
NLRB v. Jones & Laughlin (1937)(p.131; 256) constitutional challenge to NLRA that created rights for employees bargaining/union etc power; J&L are huge company with lots of IC
B.i. Seems to be major departure because company is clearly interstate commerce
B.ii. Major departure: production is not determinative of intrastate activity
B.a. Regulation may be enacted to protect interstate commerce no matter what the source of
the dangers which threaten it
B.iii. Close and Substantial Relationship Test : if intrastate activities have such a close and substantial
relationship to interstate commerce that their control is essential or appropriate to protect commerce from burdens and obstructions, Congress cannot be denied power to control US v. Darby (1941)(p.134; 257) act prohibited shipment of goods from manufacturers not prescribing to minimum wage; complete departing from pre-1937 cases
i. Expressly overruled Hammer and rejected 10 th^ amend limits to Congress
ii. The 10th^ amend states a ‘truism’; law is constitutional as long as reasonably adapted to the permitted
end Wickard v. Filburn (1942)(p.134; 258) quotas set for wheat production; farmer grew and used wheat on his own and didn’t ship ; no regulation of interstate commerce here
ii.i. Court expressly rejected earlier distinctions of ‘direct/indirect’ and ‘commerce/production’
ii.ii. Test: Court upheld law because of the substantial cumulative effect of home grown wheat
A. New Test After Three Cases: Substantial Effect on Interstate Commerce
ii.iii.(1) No longer distinguishing between commerce and other stages; (2) direct and indirect; and (2) 10 th
amend was not a limitation
ii.iv.Federal law would be upheld so long as its within scope of Congress’s power; commerce clause
interpreted so broadly that seemingly any law works
A.a. Cumulative effect is used, not just individual
ii.v. Court gives deference to Congress because of its institutional advantages (e.g. findings, hearings,
studies, hiring of experts etc)(better situated to make choice)
Civil Rights Laws and the Meaning of ‘Commerce Among the States’
A. Civil Rights Act was enacted based under the commerce clause because 14 th^ amendment was only a limit
on state discrimination; private action can only be regulated under the Commerce Clause Powers
B. Court was unwilling to limit Congress to act under commerce clause exclusively to advance economic
efficiency
Heart of Atlanta Motel v. US (1964)(p.139; 261) court upheld constitutionality of Civil Rights Act when motel refused rooms to blacks
i. In evaluating law and application, only questions are (1) whether Congress had a rational basis for
finding racial discrimination affected commerce and (2) if there was a basis, whether the means were reasonable
ii. Means are exclusive discretion of congress and ok as long as reasonably adapted to the end
permitted by the constitution (moral motives don’t matter) Katzenbach v. McClung (1964)(p.141; 262) upheld CRA to small business that didn’t serve out of town people; used cumulative effect and getting meat out of state as a tie
Using the rational basis test, court concluded that cumulative effect cause restaurants to sell less goods; Congress’s power is broad and sweeping
Criminal Laws
A. Congress has used commerce power to enact federal criminal laws
Perez v. US (p.143; 263) prohibition of loan sharking; ’s activity was only in NY and no proof that he engaged in organized crime
i. It was rational to conclude that even intrastate loan sharkingsufficient effect
ii. Particular findings were no required for a law to be upheld
Regulatory Laws
A. Congress can regulate purely intrastate activities, including all aspects of business, if there is a rational
basis for believing there is an interstate effect Hodel v. Indiana (p.143; 260) law stands as long as there is a rational basis and reasonable connection between the means and the asserted end
B. Is the Broad Definition Desirable?
B.i. Although complex problems facing society necessitates congressional authority to regulate, core
constitutional law provides federal government as a limited power
B.ii. Who should protect the state sovereignty? Should the judiciary protect the states, or should the
only check be the political process? See cases below National League of Cities v. Usery (p.145; 319) declared unconstitutional the application of minimum wage payments to state employees because Congress violates 10th^ amend when it interferes with traditional state and local government functions (didn’t define ‘traditional functions’)
B.iii. The Usery case was rarely applied and expressly overruled by Garcia
Garcia v. San Antonio Transit (p.148; 321) overruled Usery
B.iv. The Usery approach was unworkable (traditional functions)
B.v. The protection of state prerogatives should be through political process and the Judicary has no
place to be the one to limit Congress
B.a. Supposedly, the political process ensures that the laws that unduly burden the States
will not be promulgated
B.b. This is a processed based argument; so long as states are represented, they process will
protect them
B.vi. Dissent: courts are abdicating from responsibility to at least police the boundaries between the
states (Majority makes this political question issue)
B.c. You can establish a workable application; ‘liberal majority didn’t want to’
x. Sort of uses 2-prong test: rational basis w/ teeth and substantial effects
xi. Souter Dissent (Stevens, Ginsberg, Breyer)
i.r. Advocates congressional deference; Congress has the institutional capacity to gather
evidence and we should use rational basis instead
Narrowly Interpreting Laws to Avoid ‘Constitutional Doubts’
A. Supreme court has attempted to narrowly interpret federal laws to avoid the constitutional doubts as to
whether Congress exceeded its commerce power Solid Waste Agency v. US Army Corps of Engineers (2001)(p.170; 270) Army Corps tried to apply federal Water Pollution Control Act to intrastate waters based on presence of birds
A.i. To avoid the constitutional question, the court interpreted the law not to include the migratory bird
rule under the Act and that the administrative branch overextended its power
A.ii. When the administrative interpretation invokes the outer limits of Congress’ power (regulating
dried up lake as waters)must be clear Congressional indication that it was meant to extend to the outer limit
A.iii. Stevens Dissent (Souter, Ginsburg, Breyer)
A.a. CWA was ‘watershed legislation’ and should have allowed regulation
A.b. The regulation doesn’t encroach upon ‘traditional state power’ over land use; instead, it
is environmental regulation
B. Lawyer’s Tool: lawyers need only show that the application of the law would raise ‘constitutional
doubts’; not that the statute is unconstitutional on its face or as applied
A.iv. SC has never explained how serious the constitutional doubts must be
Reaffirming Congress’s Ability to Regulate ‘Channels of Interstate Commerce’
Pierce County v. Guillen (2003)(p.175; 271) affirming federal statute dealing with road safety and governmental immunity from discovery; the roadway is a channel of interstate commercetherefore it is regulable Gonzalez v. Rauch (Supplement p.53) whether medical marijuana may be prohibited by federal law
A. Court used the rational basis test without teeth; cited Wickard (wheat case) and used the same aggregation
argument
A.i. Stands for the idea that intrastate production of a commodity sold in interstate commerce is
economic activitymay use aggregation
B. Scalia’s Flip
A.ii. Necessary and Proper Test – allowing behavior will undermine congress’s ability to regulate
drugsany undermining of Congressallow regulation
C. O’Connor Dissent
A.iii. This isn’t economic activity we should be using rational basis test w/ teeth
A.iv. Use the test similar to Lopez and Morrison
Implications of the Current Decisions
A. Morrison, Jones, and Solid Waste Agency show this is the beginning of a major change in Court’s approach
to the commerce clause (5 conservative justices, usually for advocating judicial restraint, are the ones advocating for the unconstitutionality)
B. Questions that Arise:
B.i. How far can Congress go to protect channels of interstate commerce
B.ii. What is a ‘substantial effect’ on interstate commerce
B.iii. How do you define the difference between ‘economic and non economic’ activity
b. Does the 10th^ Amendment Limit Congress’s Authority?
New York v. US (1992)(p.177; 323) 2nd^ time in 55 years that court invalidated a federal law as violating the 10 th amendment; Congress may regulate disposal of radioactive waste , but the take title provision (forcing accepting ownership) impermissibly commandeered state governments
A. Congress may either
A.i. Use incentives; or
A.a. Attaching strings to state and local government grants
A.ii. Preempt and take over
A.b. Setting standards that state and local governments must meet
B. Commandeering in this manner undermines government accountability because Congress could make a
decision, but the states would take political heat
A.iii. If a federal law compels state legislative or regulatory activity , the statute is unconstitutional even
if there is a compelling need for federal action
C. White Concurrence/Dissent (Blackmun, Stevens)
A.iv. States wanted this as welleveryone came together to decide these regulations
A.c. Encourages preemption which wouldn’t be collaborative effort
A.v. Majority would say that you can’t consent to a violation of the 10th^ amendment
A.d. You shouldn’t be able to collude to consent a violation of the balance of pwr
Printz v. US (1997)(p.186; 324) whether the Brady Act violated 10 th^ amend by requiring state/local law officers conduct background checks on prospective handgun purchasers; the provision was found unconstitutional because I commandeered state executive officials to implement a federal mandate
A. The court violates the 10th^ amendment when it ‘conscripts state governments’
B. Congress may not give the executive authority to implement the law to state and local law enforcement
absent particularized constitutional authorization
B.i. Collusion among the branches will not permit this because it is a violation of the separation of
powers
C. Scalia – also violates separation of power because compels state officials to act
D. Stevens Dissent (Souter, Ginsburg, Breyer)
B.ii. The consitution authorizes this (disagreeing with NY v. US and Printz) because Congress may
impose affirmative obligations; we’ve also been doing this anyway Reno v. Condon (2000)(p.195; 325) challenge of Driver’s Privacy Protection Act prohibited disclosure of personal information gained by department of motor vehicles; upheld the law
A. Court upheld the law because it was constitutional as an exercise of Congress’s commerce clause
powerStates sold the information and it generated great revenue
B. Law didn’t violate the 10 th^ amend because it was a negative prohibition of conduct, not an affirmative
mandate as NY v. US and Printz
B.i. Congress may prohibit state governments from engaging in harmful conduct (particularly if law
applies to private entities as well) so long as the prohibition doesn’t involve affirmative duties (bill making etc)
B.ii. Most duties, however, may be characterized as prohibitions of conduct/duties
C. Case indicates the Rehnquist Court’s commitment to federalism and State’s rights has important limits
Executive Privilege Sep. of pwrs doesn’t preclude liability because judiciary has final word on the meaning of the constitution (judicial review = equivalent of Pres.’s veto)
Executive privilege is an inherent power (unlike Black’s majority opinion in Youngstown which rejected any type of inherent power)
Power is not absolute – would interfere w/ judiciary’s const. function Withholding demonstrably relevant infoharm of due process Cheney v. US District Court for D.C. (p.359) whether s seeking of mandamus to stop discovery order was proper
Distinguished from US v. Nixon – this is a ‘civil suit’ the need for information is not as important as it would be in a ‘criminal suit’; discovery here was broad
Court said that the decision could be raised without invoking executive privilegeno real decision on executive privilege was made here
(B) The Authority of Congress to Increase Executive Power
A. Line Item Veto Act – president could veto particular parts of appropriation bills while allowing rest to go
into effect Clinton v. NY (p.288; 344) cancelled 4722(c) because reduced federal deficit and 1042 because lacked safeguards of tax benefits
A.i. Presidential power must still fall within Art. I – no presidential ability to enact/amend/repeal (must
be limited to veto/recommend changes
A.ii. Veto takes whole bill, line item veto changes bill after already law & hinders the carefully crafted
bill made by Congress
A.a. President effectively amends the bill with the line item veto
A.iii. Kennedy Concur
A.b. This may stop spending but still unconstitutional
A.c. The convenience doesn’t outweigh the constitutionality
A.iv. Breyer Disent (O’Connor, Scalia)
A.d. Historically we’ve done similar; now our bills are too complex for full veto
A.e. We should broadly interpret presidential power
(C) The Constitutional Problems of the Administrative State
Congress has the legislative power, but recently has delegated some to executive agencies (first was the Interstate Commerce Commission (1887))
The agencies have executive, legislative, and judicial power (sep. of pwrs issue)
1. The Non-Delegation Doctrine and Its Demise
A. The non-delegation doctrine was the principle that congress couldn’t delegate its legislative power to
administrative agencies A.L.A Schechter Poultry v. US (1935)(p.293; 328) court declared regulation under National Industrial Recovery Act unconstitutional; code was designed to ensure quality poultry
B. Court determined it was impermissible delegation of legislative power because Congress ‘may not
abdicate/transfer essential legislative functions’ Panama Refining Co. v. Ryan (1935)(p.294; 328) court declared a provision of National Industrial Recovery Act unconstitutional; act allowed president to prohibit shipment in interstate commerce of oil produced in excess of state-imposed production quotas
C. There should have been ‘some more control’ because there was no criteria to measure the agency’s
action or to limit president’s discretion Whitman v. American Trucking (2001)(p.296; 330) demise of nondelegation doctrine; court unanimously rejected challenge to federal Clean Air Act as impermissible delegation of legsl.
D. Despite lack of intelligible principle, court upheld constitutionality because there are ‘some sort of
guidelines’ (protect public health)
D.i. Court didn’t want to ‘second guess Congress’s regarding the permissible degree of policy judgment to
be left to those executing/applying the law’ (done above 2)
E. Normatively, court’s refusal to enforce a non-delegation doctrine can be criticized as undermining gov’t
accountability as violating the separation of powers
(2) The Legislative Veto and Its Demise
A. How do you control and check power of administrative agencies?
B. Congress included legislative veto provisions in the statutes authorizing Congress to overturn an agency’s
decision by a resolution of one house INS v. Chadha (p.299; 332) Chadha was deported and house of reps alone voted to stay the deportation; court declared the legislative veto unconstitutional
B.i. Congress may legislate only if there is bicameralism (passage by house, senate and presentment)
and there is not in legislative veto
B.ii. White’s Dissent
B.a. Without legislative veto, Congress will have to either refrain from delegating authority,
or abdicate lawmaking function to Exec. Branch
B.b. Majority dismisses function concern as to why legislative veto was made
C. Result: Anything less than bicameralism unconstitutional; Process to overutn executive action (through
administrative agency):
B.iii. Passage by the house; passage by the senate; and signature/veto by President
(D) Separation of Powers and Foreign Policy (1) Are Foreign Policy and Domestic Affairs Different?
US v. Curtiss-Wright Corp (p.321; 367) Congress adopted a law that empowered president to issue proclamation making illegal further sales of arms to warring nations
A. Court declared that foreign policy and domestic affairs are different powers; gives broad inherent
presidential power in the area of foreign policy
A.i. Some contend that this is inconsistent with the constitution containing specific provisions
concerning foreign policy
A.ii. The historical analysis (giving foreign power to gov’t) isn’t accurate
(2) Treaties and Executive Agreements
A. An executive agreement is an agreement between the US and a foreign country that is effective when
signed by the president and the head of the other government
B. A treaty is an agreement between the US and a foreign country that is negotiated by the president and is
effective when ratified by the senate
B.i. If a document is labeled ‘treaty’ then Senate approval is required; if ‘executive agreement’ no
Senate ratification is necessary Dames & Moore v. Regan (p.325; 369) Pres negotiated an agreement with Iran freeing American hostages in exchange for lifting a freeze of Iranian assets
B.ii. President’s actions were taken pursuant to specific congressional authorizationssupported by
strongest presumptions and the widest latitude of judicial interpretation (burden is on those challenging)
B.iii. Both federal statutes authorizing action and history of executive settlement
C. The cases could be seen as narrowly construing executive privileges prevail over conflicting state law
and are permissible when authorized by federal statute; or
President Bush issued an order providing for military tribunals to try non-American citizens accused of participating in or assisting terrorism
Does pres have authority as commander-in-chief to create military tribunals, or is creating courts entirely a congressional power?
Does it violate the 5th^ and 6th^ amendments to try individuals in military tribunals where these protections are not fully provided? Ex Parte Quirin (WWII)(p.347; 381) eight Nazi saboteurs carried explosives and uniforms; Pres issued executive order providing for their trial through military tribunal; Exec. Order precluded judicial review, but SC agreed to hear the case and the tribunal was suspended
Distinction between lawful and unlawful combatants Lawful combatants (wearing uniform) are treated as prisoners of war; Unlawful combatants are subject to trial and punishment by military Tribunals Court didn’t define the ultimate boundaries to persons according to law of war Law of War – uncodified common law; Articles of War - codified/accepted by congress as law AofW gave Pres the power; courts will then give president deference unless clear conviction that they are in conflict
Quirin to Support the Current Attempt to Use Military Tribunals Quirin may be different from current war on terror because it was a declared war and statutes authorized military tribunals
Supporters (Bush administration) argue Quirin is on point; critics ague that it is a discredited decision that shouldn’t be followed
Current legality of military tribunals: Hamdan v. Rumsfeld (2004)(supplement p. 71; 382) Hamdan filed habeas corpus to challenge use of military commission; should be court-martialed in accordance with Uniform Code of Military Justice (UCMJ)
A.iii. Court determined that commission lacks power to proceed because its structure and procedures
violated the UCMJ and the Geneva Conventions
A.iv. Military commission – the military tribunal created out of military necessity
A.v. Clarifying Quirin
A.j. Quirin recognizes that Congress had preserved what power, under the Constitution and
common law of war, the president had to create military commissions
A.k. President and those under command had to comply with the law of war
A.l. So, court must decide if military commission meets standards
A.vi. Common law Military Commission:
A.m. Substituting for civilian courts at times and places where martial law has been
declared
A.n. To try civilians as part of a temporary military government over occupied enemy
territory
A.o. Convened as an incident to the conduct of war when there is a need to seize and subject
to disciplinary measures those enemies who have violated the law of war in their attempt to thwart or impede our military effort
A.vii. Since in Guantanamo(no martial law; occupied territory)use (c) above
A.p. Government has the burden to make a substantial showing that the crime seeking to try
by military commission is acknowledged under law of war
A.viii. What Does Hamdan Get?
A.q. President hasn’t made sufficient showing that procedures should be changedmust use
court martial standards of UCMJ
A.ix. Scalia – this is exigency and president should be able to do what is necessary at time of war
Boumediere v. Bush (supplement) determining whether detainees at Gitmo have the constitutional privilege of habeas corpus; court found they did
Detainee Treatment Act (DTA) wasn’t adequate substitute for habeas corpus Court found being in Gitmo as not US was a fiction Dissents: we shouldn’t be giving them this much freedom
(F) Checks on the President (1) Suing and Prosecuting the President
A. Civil Suit
Nixon v. Fitzgerald (p.354; 361) a president, or ex-president, may not be sued for money damages for conduct in office ( absolute immunity in office )
A.i. If the suit is based on official acts absolute immunity (courts shouldn’t be able to intrude on
President’s decision making
A.ii. Qualified immunity isn’t appropriate because frequent suits may be brought
A.iii. Impeachment/political pressure provide valid deterrents
A.iv. Dissent: there is no compensation to those injured by unconstitutional presidential actions;
absolute immunity = above the law Clinton v. Jones (p.357; 362) court ruled that a suit against a president should not be stayed or dismiss if based on a conduct occurring prior to taking office
A.v. There is no basis for immunity for unofficial conduct
(2) Impeachment
A. Article II § 4 – removed from office for conviction of treason, bribery, and other high crimes and
misdemeanors
A.i. House of Representatives has sole power to Impeach
A.ii. The trial is held in the Senate
B. High Crimes and Misdemeanors
A.iii. One view – limited to acts that violate the criminal law and that can be deemed a serious threat to
society
A.iv. Second view – whatever the majority of the house of representatives thinks it is
A.v. No case addresses either and court deems impeachment as nonjusticiable
C. Procedures to Follow
A.vi. Is it permissible for to hear evidence through committee? Etc; (non justiciable)
