Constitutional Law Outline s1

CONSTITUTIONAL LAW I OUTLINE

 What section of the C guaranteed individual rights? o A I § 9 – Prohibitions against fed gov . No bills of attainder (an adjudication of guilt in a criminal case by legislature) . No Ex post facto law . Habeus corpus o A I § 10 – Prohibitions against state gov . No bills of attainder . No Ex post facto law . Obligations to contracts

 Why was C approved w/o Bill of Rights? o Original C: 1789 o Bill of Rights: 1791

o A I § 8 – Restrictions on what fed gov can do. (fed gov has limited powers) o States already had their own bill of rights.

 14th amendment is read as: the Bill of Rights covers states too

1. Judicial review

Marbury v. Madison

a. History: i. Outgoing president Adams wanted to appoint judges that will be in his party’s favor (for a strong fed gov) ii. Adams created many judgeships as lame duck president iii. Adams signed the appointments and most – not all – were delivered iv. In-coming president Jefferson claims the ones that were not delivered are invalid

b. Facts: Marbury filed writ of mandamus in Sup Ct (as a trial ct) c. Issues / Answers:

i. Did Marbury have a right to the commission? 1. Yes

ii. Is there a remedy? 1. Yes 2. Note: there are some rights to which you don’t have remedies

iii. Is the remedy a writ of mandamus?

1 1. Yes

A mandamus is a writ that requires officials to perform a duty to an individual

iv. Does the ct have jurisdiction? 1. Does Congressional statute on judicial duty authorize ct to issue writ? a. Yes. b. Statute says writ can be issued by Sup Ct both at original and appellate jurisdiction levels 2. Is statute constitutional? a. No b. A III § 2 ¶ 1 – lists cases a fed ct can hear i. Cases arising under fed law ii. Between citizens of different states (diversity) iii. Admiralty iv. Diplomats v. States as parties c. A III § 2 ¶ 2: Sup Ct’s jurisdiction i. Original: 1. Diplomats 2. States as parties ii. Appellate: (All else) 1. Fed law 2. Diversity 3. Admiralty 4. etc… d. Congress has power to give exceptions and regulations to Sup Ct’s appellate jurisdiction e. Congress can establish lower fed cts as they see fit

* This is the ultimate v. If statute is unconstitutional, does the ct have authority to overturn it? issue * 1. Yes. 2. Supremacy Clause: a. A 6: This C and laws made pursuance thereof, are Supreme Law of the Land b. So Sup Ct should have power to strike down inconsistent Marshall uses these laws arguments 3. Judicial Oath: a. A 6: Justices made oath to uphold C b. Note: but so did Congress 4. Judiciary Clause: a. A 3: Ct can see anything arising under C b. C: limits gov by its nature. So what’s the point if Ct doesn’t have power to limit gov?

2 5. Case law: a. State cts often struck down statutes b. Sup Ct has struck down state law as violating Supremacy Clause c. Sup Ct decided that a fed statute was constitutional (acting as though it could strike it down) 6. Legislative history: a. Debates suggest that framers wanted ct to have jud review

d. Arguably, J. Marshall went out of the way so he could reach final issue.

e. V clever: Marshall strikes down an act of Congress w/o having to make Congress do anything. All cts said was, “Congress gave us a power, but the act is unconstitutional – so the ct won’t see this case.”

Legitimacy of Judicial Review f. Democratic problem: i. If cts can stri ke down acts of legislature, is that democratic? ii. But if majority can decides its own limits, that would weaken limits – to the point that they didn’t exist at all

g. 2 Bodies of Doctrine i. Access doctrine – ct ought to go out of its way to avoid constitutional problems 1. tight standing 2. political question 3. abstain doctrines ii. Methods of decision 1. Strike down only obviously unconstitutional acts. (presumption of constitutionality) 2. Micro-text of C should guide 3. Intent of framers 4. legislative history of convention

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Barriers to Getting into Court

2. Standing

Warth v. Seldin

3 a. Facts: Zoning issue. Ordinances only provided for single family homes. Made it difficult for lower cost housing to be developed b. Rules for standing: i. Constitutional Requirements (Mandatory) 1. Pl is injured 2. Redressability (either injunctive or damage relief)

ii. Prudential Requirements 1. Pl asserts his own rights (not rights of 3rd parties) 2. No “generalized grievances”

Proof of Injury & Redressability: c. 1st group of Pls (low-income minorities) do not have standing b/c they can’t prove injury (1st mandatory req): i. Can’t trace chain of causation of injury back to Pls (too indirect) 1. Zoning affects builders 2. Can’t prove builders would’ve built cheap houses absent zoning 3. Can’t prove Pls would’ve been able to afford cheap houses

ii. Pls must allege facts from which it could be reasonably inferred that there’s a substantial probability that injured was caused by law. 1. Is this fair? Pls must make a mini-showing of the merits (causation) just to get into the door!

iii. Note: indirectness doesn’t preclude standing in all such cases (e.g., if state prohibits doctors from prescribing the pill, the female patients have clear standing, despite indirectness of injury) d. See also Allen v. Wright i. Facts: IRS is supposed to deny tax exemptions to private schools that segregate. (but they don’t) Black children’s parents sue in class action ii. Ct says: No standing 1. Causal chain too remote 2. Can’t show that withdrawal of tax exempt status would cause schools to desegregate

3rd Party Rights: e. 2nd group of Pls (tax payers of next town over) do not have standing b/c they don’t assert personal rights (rights holder is low income ppl; harmed party is taxpayer): i. Causal chain – 1. zoning ordinance…affects developers… 2. …causing low income people to move to town…

4 3. …town must raise taxes to take care of these people… 4. …thus affecting tax payer ii. Ct leaves open possibility that townsmen could assert their right (right not to be subject to taxes arising from a discriminatory law) f. 3nd group of Pls (white members of city) do not have standing b/c they don’t assert personal rights: (like d) i. Pls probably should’ve asserted the right not to live in a segregated community ii. (Instead, they argued that violation of rights of others had deprived them of benefits)

When Pl can assert a 3rd Party’s Rights: g. NAACP v. Alabama (compelling interests) i. State of Ala wanted to look at NAACP membership list. ii. Ct allows NAACP to assert the rights of its members. (If the members were forced to assert their right publicly, it would’ve defeated the purpose of defying Ala’s law. Clearly, Ala was up to no good…) h. Hypo: law prohibits women from getting abortions or the pill (Special relationship) i. Patient holds the right…. ii. But doctors would have standing to assert patient’s rights. Confidentiality issues. iii. Doctors will be a good representative of patient’s interests

Generalized Grievances i. Frothingham i. Facts: Pl sued to enjoin gov from making conditional grants to state programs “to reduce maternal and infant mortality” ii. Ct: No standing 1. Tax payer’s interest is shared w/ millions of others, 2. comparatively minute and indeterminable, 3. effect on future taxation is too remote, fluctuating and uncertain j. Flast (an unusual case) i. Facts: Pl claimed federal aid to religious schools harmed him ii. Ct: Pl has standing! 1. Bar on tax-payer standing should be lowered when law in question is a “derogation” of constitutional provisions restricting spending power k. Valley Forge i. Gov gives land to religious groups – but ct says no tax-payer standing (In- kind transfers are ok?) l. Richardson

5 i. Tax payer wanted to see CIA budget – ct says no tax-payer standing

m. How can these cases be harmonized? No pattern, it seems. Note, however: grave injuries do not preclude generalized grievances. (e.g., if gov ordered everyone to cut off a pinkie, each person has standing)

3. Ripeness

Too early and abstract for standing. (Needs to be concrete)

a. Younger v. Harris i. A state law in Cal said it was a crime to teach the “necessity to overthrow capitalism through violence.” Teachers of Marxism immediately filed for an injunction ii. Ct throws it out for lack of ripeness. We must wait & see for injury

b. Hypo: People protesting Vietnam War. B is not arrested at protest, but is warned that if he does protest again, he will be arrested. B sues for injunction. This case is ripe b/c B has been threatened w/ prosecution.

4. Mootness

Deprivation of standing. After suit is filed, things may happen such that a court order will not help.

a. An exception: Abortion law. Due to timing of pregnancy and long length of trial, mootness will not apply here. Law could potentially evade review while violating people’s rights.

5. Advisory Opinions

There must be an injured party for which the ct can grant relief.

6. Political Question

Baker v. Carr

a. Categories of Political question: i. issues constitutionally assigned to another branch of govt ii. Lack of judicially manageable standard for resolving issue

Nixon v. U.S.

b. Facts: Nixon, a judge, was impeached. He claims the process was unconstitutional, b/c the C says “Senate will try impeachments.” He says he wasn’t tried before the entire Senate – only a committee

6 c. Court declines to extend judicial review to the impeachment proceedings of a federal judge for a number of reasons i. Impeachment is leg’s check on judiciary (note: it’s not their only check – remember, they can set jurisdictional guidelines for fed ct) ii. Nixon will be tried again in criminal ct – can’t have a biased ct (but consider – ct will only be reviewing the impeachment process in 1st case, not the merits) iii. Lack of finality in impeachment decisions will hinder gov

d. Rule: i. Is there a textually demonstrable constitutional commitment of this issue to another branch of gov? ii. Is there a lack of judicially discoverable and management standard for resolving this issue? iii. Does legislative history suggest that this issue was not intended for the Cts?

7. Jurisdiction

A III § 1: The judicial power of the U.S. shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish.

A III § 2: The judicial Power shall extend to…

Congressional Stripping of Power

Ex Parte McCardle

a. Facts: Pl was newspaper editor in military custody for libel. (During military occupation of the south during Reconstruction). He seeks habeus corpus in fed trial ct. He argues that Reconstruction Acts are unconstitutional. He loses at trial, appeals to Sup Ct

b. Act of 1867 gave Sup Ct appellate jur over habeus corpus cases. However, Congress later repeals this clause, taking away Sup Ct’s appellate jurisdiction for habeus corpus.

c. Sup Ct says: we have no jur over this case. i. A III § 2: Exceptions and Regulations Clause: 1. “in all cases affecting Ambassadors and States as parties, Sup Ct shall have original Jur. In all other cases before mentioned, Sup Ct shall have appellate Jur, with such Exceptions & under such Regulations as the Congress shall make” ii. “We are not at liberty to inquire into motives of legis” iii. Seems to say legis has absolute power to control Sup Ct’s appellate jur

7 d. However, they also note that not all pathways to Sup Ct are cut off in habeus corpus. B/c of this “other” path, this case does not stand as a clear holding that Congress has the power to eliminate a Pl’s only path to the Sup Ct.

Arguments e. “Exception” means that something must be left; therefore Congress can not completely strip USSC of all of the appellate jurisdiction granted to it by USC

f. Art 3 §2 cl 2 allows housekeeping regulations but cannot allow Congress to cut USSC’s essential, fundamental judicial functions; cannot cut heart/core of USSC

g. Internal argument: Jur found in A III. Not all fed ct’s powers can be stripped. C says fed cts must look at “all cases of fed law, ambassadors, admiralty.’ They must go through some fed ct. (Could be lower ct, Sup Ct, or both)

h. External argument: Rights found elsewhere in C. Important subject matter must be reviewed by Sup Ct (e.g., can’t cut off from Sup Ct all women’s rights) b/c it violates Equal Protection.

i. Cts still don’t know if Congress has complete discretionary power to cut jur of fed cts. Extent of Congr’s powers never resolved.

j. 2 ways to get to the Sup Ct: i. fed district ct  ct of appeal  Sup Ct

ii. state trial ct  state sup ct  Sup Ct 1. 28 USC § 1257: If highest state ct makes a mistake of fed law, and Sup Ct can correct it, Sup Ct can look at it if they choose 2. they’ll usually take case if systematic problems are occurring and ct wants to send a message

8. Sovereign Immunity

a. State gov’ts are immune to claims where: i. State is a named party 1. This is implicit, from before C was written ii. Damages are sought for past wrongs by state officers

b. What’s not barred: (Basically the same for fed & state) i. State consents to be sued ii. Congress authorizes suit iii. Fed or state gov as the plaintiff iv. Def is a county or local division

v. Suing a state officer in his official capacity. Injunctive relief to:

8 1. Make him stop violating constitutional rights (even if officer is enforcing the law. This is a challenge against the law) 2. Make him do something he’s supposed to be doing

vi. Suing a state officer in his individual capacity (damages come out of his own pocket)

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Federal Powers & Federalism

Federalism is the sharing of powers between federal and state governments.

9. Necessary & Proper Clause

A I § 8: “Congress shall have Power…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…”

McCulloch v. Maryland

a. Facts: State of Maryland purports to tax a federal bank. They sue for unpaid taxes, and argue that statute which created bank is unconstitutional. Feds argue that a state can’t tax a fed instuitution

b. Marshall on Constitutionality of fed banking statute: i. Bank’s pedigree and length of time – no one has ever challenged it since 1791 ii. Establishing a bank is not an enumerated power of feds. However, C gives feds implied powers so they can have reasonable means to express the powers that are given iii. C can’t spell out every power iv. A I § 8: Necessary & Proper 1. Takes on the broader meaning of what’s “helpful” (rather than strictly necessary) 2. Clause is within section for “powers” of Congress, not limitations (therefore, it’s not a restrictive clause) 3. It doesn’t stay “absolutely” necessary. If framers meant that, they would’ve included it 4. Congress has the power to do anything reasonably and naturally convenient in exerting enumerated powers. v. Bank is therefore a constitutional power of fed gov

c. Marshall on Constitutionality of tax: i. True, there’s no text that says states can’t tax fed. ii. However, taxes have power to create and destroy

9 iii. Taxation w/o representation: Can’t tax your non-constituents. People of U.S. not adequately represented in Md’s decision to tax everyone iv. This is a check on state powers

10.The Commerce Power

A I § 8: “Congress shall have Power…To regulate Commerce…among the several states.”

a. CC cases were almost never struck down from 1936~1995. However, the Lopez and Morrison cases have begun to limit this power

Early cases b. Gibbons v. Ogden i. Facts: Pl had a monopoly in NY to operate steamships between NY and NJ. Def got a right from fed law not to be excluded in business. ii. Issue: Did Congress have the constitutional power to give Def the rights? iii. Ct says yes: 1. Only affairs completely internal to a state are excluded from interstate commerce 2. Here, there is an intercourse between states 3. Navigation and transport between states is included in CC

c. EC Knight (Flipped by Wickard) (Narrow view) i. Facts: U.S. gov sued a sugar company that was creating a monopoly. Fed law applied was the Sherman Antitrust Act of 1890. (Def owned 65% of America’s sugar industry; after it bought out a company, it owned 98%) ii. Arguably, it would affect other states b/c prices will go up across borders

iii. Ct says: feds cannot regulate this 1. Manufacturing is not commerce 2. Some things are per se local (fisheries, mining, agriculture), despite their impact on national economy (ct later overrules per se local rule w/ affecting commerce technique) 3. Ct wants to leave some regulation to states

iv. Note: there are 2 ways to defeat a statute: 1. Statute is unconstitutional (difficult) 2. Statute should be read narrowly, thus does not affect my party (easier) a. Ct in Knight does this reading to avoid constitutional question

d. Shreveport Rate (Houston E & W v. U.S.) (Broad view)

10 i. Facts: Trains run between states A & B. Trains also run only in A. Trains within A only are much cheaper than trains that run between A & B

ii. Ct says: under CC, feds can regulate both. (Even tho train in A is purely local) b/c it affects other states – Cost of train in A affects travel between A & B.

iii. Intangible effects, like in Knight, but this ct rules differently e. Lottery Case (Champion v. Ames) i. Facts: Law banned transport of lottery tickets from interstate transport ii. Ct says this can be regulated: 1. State can consider moral evils – so why can’t feds? 2. Feds can regulate the “pollution” of interstate commerce a. (But what’s really being polluted? Commerce or the states?) f. The New Deal i. In post-Depression era, moving toward pro-regulations. (Market doesn’t take care of everything – gov must step in) ii. Min wage, max hours, child labor iii. An anti-regulation Sup Ct attacked fed regs in 3 ways: 1. Violations of CC 2. Interferes w/ Due Process (freedom to contract & do business) 3. Violations of Congress’s delegation of regulatory powers to Executive iv. FDR tries court packing plan to stop Sup Ct from striking down his regulations. Ct starts ruling his way, despite failure of his plan.

* * * Affecting Commerce g. NLRB v Jones i. Law requires employers to permit union activities in industries that involve interstate commerce ii. Ct says law is ok 1. Takes away Knight’s per se local rule. Affects are the criteria, not the source of injury. 2. Right to organize is an essential condition of industrial peace. It has a direct affect on commerce h. Wickard i. Act sets quota on amount of wheat that a farmer can produce (for sale or for personal ues). (Gov wants to limit wheat in market to bring up the price) ii. Ct says law is ok

11 1. Perhaps one farmer alone is not enough to affect commerce. However… 2. Aggregate the # of similarly situated people, and you’ll have an effect that is far from trivial. 3. Even if act is local, it may have a substantial economic effect on commerce, regardless of whether it’s direct or indirect.

iii. Problems: 1. What’s the test? Substantial? “Far from Trivial?” 2. What’s “similarly situated?” (How broadly can it be read?) i. Wirtz i. Ct upholds Fair Labor Standards Act, which extended coverage beyond “employees that produce goods for commerce” to “employees of enterprises engaged in commerce or in the production of goods for commerce” ii. Enterprise is affected by the wages and hours of a group of employees j. Hodel i. Ct upholds an Act that regulates strip mining, rejecting argument that feds can’t regulate “the use of private lands within border of a state.” ii. Ct states: commerce power is “broad enough to permit reg of activities causing air or water pollution…other environmental hazards that may have effects in more than one state” k. Heart of Atlanta Motel i. Civil Rights Act of 1964: prohibited discrimination in facilities whose operations “affect commerce,” ie, places that “serve interstate travelers or a substantial portion of their food has moved in commerce” ii. Motel refused to rent rooms to African Americans. iii. Ct upholds law: 1. Impedes interstate travel of African Americans 2. Discrimination has disruptive effect on commercial intercourse l. Perez (Member of a class) i. Def was convicted under fed law prohibiting “extortionate credit transactions” ii. Ct upholds conviction, even tho all acts were intrastate. 1. Def is a “member of the class” which engages in prohibited conduct. 2. Loan sharking is one way organized interstate crime function – use local funds to finance national operations

Prohibition & Prohibition + m. Child Labor Case (Overruled by Darby)

12 i. Facts: Challenge to a law that excludes products made by child labor from interstate commerce ii. Ct rules law as unconstitutional 1. In cases like Lottery, the transport was necessary to achieve harmful results 2. Here, goods themselves are harmless (unlike rotten eggs or lottery tics) 3. This law doesn’t regulate transport, but nature of its manufacturing. This is state regulated.

iii. Dissent (J. Holmes): Can’t look at what Act’s effects are. So long as Act regulates carriage of goods across state lines, it’s ok. This is the prohibition power. (Not ct’s job to question Congress’s policy) n. Darby i. 2-part statute: 1. Prohibits shipment of certain goods in commerce (those made by people not covered by min wage, max hours) 2. Requires employers to conform to min wage & max hours for employees who produce goods for commerce

Prohibition: ii. Part 1 of law is constitutional b/c: 1. Congress can prohibit anything from interstate commerce, unless it’s a specific constitutional violation (e.g., banning newspapers – 1st Am issue)

Prohibition +: iii. Part 2 of law is constitutional b/s: 1. Necessary & Proper (See McCulloch) 2. This is a furtherance. Allows Congress to effectively accomplish part 1 of the law. It’s easier to regulate commerce by stopping manufacturing in the first place, rather than movement a. E.g., easier to destroy ant’s nest outside rather than swat each ant as it enters your home

Regulating “Future Lives” of Goods o. Katzenbach i. Ct upholds application of Civil Rights Act against a family restaurant in Ala. The restaurant purchased 46% of their food budget from a local supplier who purchased it out of state. ii. Used affecting commerce theory (see Heart of Atlanta, above) iii. Can regulate restaurants that have used food that previously moved through commerce.

13 p. Sorrentino (1995) i. Def challenged law which made it illegal for a convicted felon to possess a weapon that previously traveled through interstate commerce ii. Ct upholds law 1. Distinguishes it from Lopez (see below) b/c it avoids the constitutional deficiency identified in Lopez. 2. Lopez had nothing to do w/ “commerce” 3. It’s enough to prove that weapon traveled thru commerce

11.New Limits on Commerce Power

a. Lopez (1995) i. Ct strikes down Gun-Free School Zones Act, which made it a federal offense for anyone to “knowingly possess a firearm” in a school zone. 1. This is a criminal statute that has nothing to do w/ commerce 2. Possession of firearm in school is “in no sense economic activity” that might, through repetition, “substantially affect commerce”

ii. What has survived Lopez 1. Affects test a. Must be substantial effect b. Can still aggregate 2. Other tests still ok 3. Future lives of goods that passed thru commerce is obviously still ok (Sorrentino, above). This is probably the biggest threat to Lopez

iii. Possible new Limits: Majority seems to 1. Non-economic acts can’t be regulated per se, OR, adopt this one 2. Non-economic acts a. Rebuttable presumption against regulation b. have a higher standard of proof that it affects commerce

3. Opinion also suggests that certain things are traditionally reserved to states (e.g., education, family law) 4. This case could reasonably lead to future cases that call the other techniques into question

iv. Dissent: V difficult to draw line between econ & non-econ

b. Morrison (2000) i. Ct strikes down Violence Against Women Act, which states all people have “the right to be free from violent crimes motivated by gender” and holds perpetrators liable for damages against the victim

14 1. Note: Ct rejects law, despite the fact that it’s supported by findings – on the serious impact of gender-motivated violence on interstate commerce

2. Ct says allowing this reasoning would allow Congress to reg any crime as long as “nationwide, aggregated impact of crime has substantial effects on employment, production, transit or consumption” 3. Ct says feds cannot reg “non-economic, violent criminal conduct” based solely on “conduct’s aggregate effect” on commerce 4. This is an example of feds exercising police power 5. This case is leaning more toward non-econ is per se non-reg. (Affecting commerce – won’t save non-econ acts)

6. Ct also notes that traditional state reg (family law) undoubtedly have impact on national economy, but still shouldn’t be reg by feds

ii. Dissent: 1. Ct should defer to Congressional findings. 2. Just not feasible to separate categories into “economic” and “non- economic” 3. Breyer notes: What if commercial and home furnaces emit same amount of pollution? Is it fair that only the commercial ones can be regulated? Local activities could have massive effects nationally. This should be the test.

iii. Note: Congressional findings not necessary if activity is clearly economic.

12.The Commerce Power over State Activity

Am X: “The powers not delegated to the U.S. by the C, nor prohibited by it to the States, are reserved to the State respectively, or to the people.”

a. The Sup Ct has never doubted outer limits on fed powers over state: i. E.g., Coyle v. Okla, Ct struck down law that allowed feds to condition Okla’s admission to the union on allowing it to specify state capital. ii. These are “essential state powers beyond the reach of Congress”

15 Power to regulate under CC:

10th Amendment Commerce (state autonomy) power

b. Ask 2 questions: i. Does Congress have the power to regulate X under CC? ii. Do states rights push back that power? (Or, any special state sovereignty protections violated?)

Ct upheld reg of states… c. U.S. v. California (1936) i. Can feds reg a state owned RR? (Would certainly be ok under CC if RR was privately owned) ii. Is running RR a state function (as a sovereign)? Or private business activity simply run by state? Justice says he doesn’t have to decide this issue. If this can be regulated by commerce power, we don’t have to ask anything further. iii. No extra protection for states iv. (Only Q 1 asked) d. NY v. U.S. (1) (1946) i. Ct says: Feds can tax state-run mineral water business. ii. An opinion of the ct: suggests that there are state activities and state- owned property that are unique. E.g., ground on which state legislature is located. Also, private people don’t pass laws – only states do. So we should be concerned if feds tax every state law that’s passed. iii. Suggestion: you can’t tax a state in their sovereign capacity iv. Stone (concur): we think states might be entitled to more limits, not just on acts that are in sovereign capacity v. (Maybe there’s a Q 2) e. Wirtz (1968) i. Ct upheld part of Fair Labor standards act, which covered min wage and max hours for employees of state-operated schools ii. Marshall’s majority opinion: limits are implicit in the 10th am. It’s not just a truism. (it’s constitutional policy that feds can’t impair State’s integrity) However, this law is ok b/c law is an emergency measure. iii. (Maybe there’s a Q 2)

16 Then struck down regs… f. National League of Cities (Overruled by Garcia) (1976) i. Ct strikes down Fair labor standards that purported to cover to all employees in state and local gov (min wage, max hours) ii. Rehnquist: This law would interfere with the integral governmental functions of these bodies. These are fundamental employment decisions upon which state systems function. iii. (Ask both Q 1 and Q 2)

Then, new rule for reg states… g. Garcia (1985) i. Ct upheld a part of Fair Labor Standards, which covered municipal transit authorities. ii. Blackmun’s opinion. 1. Rule of state immunity due to “traditional” or “integral” gov functions” is unworkable 2. States do not have different rules. If it’s ok under Lopez’s rule for CC, then it’s ok for states. 3. States don’t need extra protections, b/c they are represented in Congress. We should expect that any state reps in fed gov would object if feds wanted to pass a law affecting state power. 4. Ct has no role in giving state more protection 5. States need to show that there was a defect in the political process. Aside from this small exception, states can be regulated. iii. Rehnquist’s dissent: hopes ct’s decision will be overturned in this case, eventually. iv. (Only Q 1 asked); exception is defect in pol process. h. NY v. U.S. (2) (1992) i. Ct says: Can’t coerce a state to enact state regulations having fed content. (Inconsistent w/ separate existence of states)

ii. A 3-part law. Only part 3 is at issue: iii. State must either 1. Regulate disposal of nuclear waste themselves (create own site, or make law that requires in-state people to dispose waste in a certain manner) or, 2. Take title of the waste generated inside their state.

iv. Ct says 3 is unconstitutional b/c 1. Consequences for non-compliance (not enacting a statute) is so severe, it’s basically compulsory

17 2. Accountability: if state must enact a law that’s shaped by feds, the state legisl will be held accountable for passing a law they didn’t write 3. O’Connor seems to say: 10th am “confirms” that power of fed is limited

v. Is part 3 severable from 1 and 2? (Constitutional parts of statute will still work, even if part of it is unconstitutional. However, if inseparable, then entire law is unconstitutional)

vi. Ct suggests ways to make this law constitutional: 1. Spending power: Bribe the states into enacting a law according to your specifications 2. Give states a choice: enact a state law, or we’ll enact a fed law, and we’ll regulate it ourselves

i. Printz i. Under Brady Bill, local law enforcement was required to temporarily participate in enforcement of fed reg on firearm background checks. ii. Ct says: can’t force a state to enforce a federal law. 1. Ct rejects, despite a seemly small obligation placed on locals

13.The Spending Power

a. South Dakota v. Dole i. Feds want states to enact a law making legal drinking age 21. If states don’t comply, feds will withhold 5% of fed highway funds ii. Ct upholds this law 1. Feds can bribe states into regulating something that is otherwise out of the fed gov’s powers.

iii. Some (possible) limits to spending power: 1. Serves the general welfare a. Ct gives lots of deference to Congressional findings b. Thus, usually easy to prove

2. States in clear terms that there’s a financial condition

3. Doesn’t violate a specific constitutional provision a. E.g., can’t induce states to violate 1st Am or Equal Protections

Ct does not say these are 4. Is not coercive (too much money withheld, e.g.) absolutely required; only suggests they might be 5. Relationship between what Congress is trying to induce state to do considered and the funds forfeited

18 14.Implicit Limits on States

a. Federal Sovereignty i. (See McCulloch, above)

b. Preemption

i. Fed law cannot preempt state law unless: 1. Fed law is valid under Constitution (e.g., Violence Against Women was invalid b/c CC didn’t extend power that far) 2. Fed & state law must conflict w/ each other

ii. Express Preemption 1. Field a. Language in statute says it’ll preempt, or that state won’t be allowed to legislate, in a certain field b. Language won’t always be clear. i. E.g., field – “generation of electricity by nuclear power is preempted” ii. Is this actual operation of plants? Design of plants? Disposal of waste? Unclear c. Pacific Gas: Field of safety of nuclear waste disposal is preempted, but not economics

2. Conflict a. Impossible to comply with both laws

iii. Implied Preemption 1. Field a. Crosby case: fed law gave Pres of U.S. control of economic sanctions over Burma. State of Mass adds an additional sanction. (fed law has no express preemption text, and not impossible to comply w/ both) However, b. Mass law is preempted by implied field preemption: i. Fed law was not a minimum standards act ii. A finely tuned policy of fed gov iii. Foreign policy – a unique fed question iv. Dominant fed interests v. (this could also be implied conflict)

c. Fed gov pervasively legislates within a field. (one would assume every aspect of the field is preempted)

2. Implied conflict

c. Dormant Commerce Clause

19 i. No special part of C where this is set forth. Implied. 1. Reasoning: Before Civil War, states acted like individual nations, not as part of a whole country. Thus, 2. It is implied in C’s CC that free trade is encouraged; better for the capital economy of the nation. ii. Types of state laws struck down: 1. Discriminatory laws 2. Not discriminatory, but unduly burdensome on interstate commerce 3. Burdensome, and suspicion of discrimination. (Ct will accept less burden, if suspicion is there) iii. Baccus 1. Hawaii taxed all liquor except that which came from a certain plant. This plant grew primarily in Hawaii. 2. Ct strikes down state law, saying it draws a line between in-state and out-of-state liquor iv. Hunt 1. North Carolina law said apples sold within the state must be USDA grade or no grade. (trying to undercut Washington apples, which were better grade then any of these) 2. Ct strikes down law, saying it was disguised discrimination (trying to confer competitive advantage to NC apples)

v. Exxon v. Md 1. Md law prohibited producer to petro to operate stations within state. (whether petro producer was Md resident or not). 2. Md is not a big petro producer. Nevertheless, ct does not strike down! 3. (difficult to tell which cases will be found to burden out-of-staters) vi. Exception to DCC: 1. Where state has a legitimate heath and safety interest that can’t be effectuated in any other manner. (quarantine) 2. But see Seaboard: law required a train to stop 124 times within 123 mile trip to blow whistle. Supposedly a safety issue, but affects commerce greatly. Not a valid law.

* * * * * * *

20 Separation of Powers

The separation of powers refers to the sharing of powers between the 3 branches of gov: Legislative, Executive and Judiciary. A I, II and III enumerate the powers of each branch.

15.Executive Powers

a. Youngstown (1952) i. In the middle of the Korean War, a labor dispute erupted in the steel industry. Pres. Truman issued Exec Order to seize mills and run them. Steel companies sued for injunction ii. The opinion of the court: Sup Ct strikes down order, stating that a Pres’s power must come from: 1. Constitution a. Pres’s power as “commander & chief” does not cover seizure, b/c ct defines this as the command of day-to-day operations in “the theater of war” b. Vesting of exec power: gives Pres power to execute a law. He must be given a law by Congress. (narrow view) 2. Statute a. No express law giving Pres authority to seize. b. In fact, such a provision was expressly rejected when an amendment was considered. (However, this is not as strong an argument – afterall, passing a statute by LP is not the same thing as failing to pass a statute)

iii. Frankfurter, concurring: 1. Can’t be confined by the words of C – it has a “gloss” which life has written upon it. 2. Long-standing practices of Pres should perhaps be permissible 3. (Though that is not the case here!)

iv. Jackson, concurring; his trichotomy of Powers: 1. Express or implied authority given from Congress (max power) 2. Incompatible with a statute, which is understood to deny this power (min power) 3. Congress is silent on the issue; only C might confer power (middle ground)

v. All seem to agree that if there were no legislative history prohibiting act, and if there was a domestic emergency, Pres should be allowed to exercise the power

b. 4 levels of Presidential Powers: i. A – untouchable powers. 1. e.g., pardon

21 2. commanding troops at war ii. B – powers he starts out with, but subject to defeasance by statute iii. C – powers he doesn’t start of with, but Congress can grant (delegation of power) iv. D – things pres can’t do, even w/ Congressional grant (non-delegable powers) (Congress can’t delegate powers it doesn’t have, e.g.)

16.Legislative Powers

Delegation of Powers

a. Creating an Agency – what Congress can do, through LP: i. Create an agency ii. Grant and limit its powers iii. Define qualifications of officer who heads agency (e.g., Surgeon General must be a doctor) iv. (sometimes) can limit reasons for removal from office

b. What Congress cannot do: i. No say in the regulations that agency passes (no leg veto) ii. No continuing vote on who runs the department (See Buckley, below) iii. Can’t give Congress the right to remove a department head

Legislative Veto

c. Chada i. Statute says: Attorney General (AG) can stop someone from being deported, but has to report to Congress and get their approval. Either house can veto AG’s decision. ii. Ct says no legislative veto power: 1. It’s legislature’s job to make general laws, not decide (adjudicate) individual 2. If Congressional acts alter the legal rights, duties and relationships of persons outside the legislative branch, Congress must go through the legislative process 3. A I § 7: Legislative process: a. Bicameralism (both houses pass w/ a majority vote) b. Presentment (approval of President) c. If vetoed by Pres, then congressional override 2/3 vote

iii. Note that J. Burger says veto is against the C. However, delegation of legislative powers is also a departure from C. If we changed one rule, why not the other? Counterarguments: 1. Leg veto is not covered by LP – founders couldn’t have contemplated delegation of power

22 2. When Congress began delegating power, they changed the topography of the C. It’s a different document now. (Can’t “map” A I § 7 onto this new doc. Shouldn’t we change the rules a little?) 3. Shouldn’t Congress be allowed to check delegated power? d. Legislative Veto is Dead! e. Some checks Congress retains: i. Approving appointments to an agency ii. Threaten an agency w/ budget cuts iii. Hold investigative hearings iv. Always have power to repeal statutes (through LP) 1. Though it’s unlikely that the Pres will agree to repeal a law granting one of his agencies power 2. So Congress will have to override (v. difficult) f. Hypo: What if a statute (passed via LP), purported to allow Congress to enact laws w/o the Pres? This is not valid, b/c it changes the C. g. Hypo 2: What if a statue (passed via LP) set forth a regulation valid under CC (e.g., can’t take certain fish from Chesapeake). 2nd part of the statute is a time limitation. Law will end – i. 2 years from now. Ok ii. when U.S. Fishery Service adds 100,000 rockfish eggs. Ok iii. when U.S. Fishery Service determines there’s an adequate supply of rockfish. Ok

iv. when Chesapeake fisher’s Assoc. decides there’s an adequate supply. (Delegation to a private group – sometimes Ok)

v. Either House or Senate votes to end law. Not ok. Cannot repeal a statute through non-LP.

Separability h. Hypo: 1st part of a statute delegates power to Sec of Labor. 2nd part of statute gives leg veto power to either house of congress. i. Sup Ct has not struck down delegation of power in a long time. So next step: ii. Argue that 1st and 2nd parts of statute are inseparable. (Congress wouldn’t have granted so much power if they couldn’t exercise veto over it) Therefore, whole statute is moot.

1. If separable, 1st party of law is ok. Can only be repealed via LP (difficult)

23 2. If inseparable, there’s the problem: Many laws have veto provision – are they all moot now?

iii. Separable presumption prevails. (but it’s rebuttable)

Appointments Clause

A II § 2 Cl 2:

“ [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme court and all other Officers of the U.S.”

“…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.” i. 2 tracks of Appointments i. Track 1: Primary Officers 1. Ambassadors 2. Judges of Sup Ct 3. All other Officers

ii. Track 2: Inferior Officers 1. Officers can be moved to track 2 by statute. 2. Absent a statute, they must be appointed via track 1 j. Buckley i. Facts: Fed Election Commission (FEC) – an agency that writes regulations governing electoral process. There are 3 blocks of voting members of FEC: 1. 2 are appointed by President w/ advice & consent of Senate 2. 2 are appointed by House Speaker 3. 2 are appointed by Pres Pro Tempore of Senate

ii. An Officer of U.S.: “any appointee exercising significant authority pursuant to the laws of the U.S. is an Officer”

iii. Appointments clause is exclusive. Every officer must be appointed either via track 1 or 2.

iv. Ct strikes down appointments law: 1. These officers are probably not inferior (writing important law about the democratic process)

24 2. Neither Speaker nor Pres Pro Tempore have authority to appoint, even under Track 2. 3. What this law comes down to: Allows House & Senate to write FEC regulations without LP, since they’ll have 4 out of 6 votes.

Removal Clauses

A I § 2: “The House of Representatives…shall have the sole Power of Impeachment”

A I § 3: “The Senate shall have the sole Power to try all Impeachments” k. There are 2 ways to remove officers: i. Impeachment provisions (A I) 1. (Unlike the appointment clause, this is not exclusive) ii. President can remove (an implied power): 1. at will 2. for cause (if statute so says) l. President’s implied power of removal: i. Pres has obligation to make sure all in his branch faithfully execute the laws. Removal power is a corollary ii. Also, it would be cumbersome to remove inferior officers by impeachment. Need to be more efficient. m. Bowsher i. Congress passed a statute delegating power to make it stop spending money

Congress

OMB & CBO Together, they predict next year’s deficit & propose cuts

Comptroller General (CG) Reviews proposal; can substitute his own prediction

President Executes cuts

ii. CG is removable only for cause, and via: 1. Joint resolution w/ approval of Pres (basically, by statute)

25 2. Impeachment 3. (takes away Pres’s at-will removal)

iii. CBO is appointed by Congress

iv. Possible problems: 1. Congress has delegated too much power 2. Congress has too much control over CBO 3. Congress has too much control over the removal of CG

v. Ct strikes down statute based on the removal of CG provision: 1. Congress can’t reserve itself the power of removal except by impeachment. a. The act permits removal for “inefficiency, neglect of duty or malfeasance.” This standard is much more lax than impeachment: (only for treason, bribery, high Crimes and misdemeanors) 2. To do so would reserve in Congress control over the execution of the laws 3. (Note: writing regulations & adjudicating cases, once delegated to the executive, is now considered part of his Executive function!)

vi. Ct does not address limiting Presidential removal power (for cause) n. Myers i. Statute said, Post Master – can’t be removed by president w/o consent of Senate. ii. Ct strikes this down: Congress can’t have continuing oversight of removal.

Removal Power & Independent Agencies o. Humphrey i. Ct upholds a statute that limits Pres’s removal power of head of FTC “for cause” only. ii. Congress does not have continuing power – it’s merely limiting Pres’s power. 1. But which officers can be under limited removal powers? a. Sec of Def – prob not b. Sec of State – prob not c. Officer in charge of inoculation and quarantine – maybe p. Morrison i. Statute allows for Independent Counsel (IC) for prosecuting high ranking officials, including President 1. Attorney General (AG) investigates violations

26 2. If she finds sufficient grounds, she applies for a special term A special term consists of 3 Circuit Ct Judges, who serve up to 2 years in this special arena. 3. Special term appoints IC to head the prosecution (will also define IC’s powers) 4. AG may remove IC for cause only 5. Congress can always impeach IC

ii. Is appointment constitutional? 1. Is IC a principal or inferior officer? (if principal, statute fails) a. Rehnquist says inferior b. Elements he considered: A balancing test only – none i. Limited tenure of these factors are ii. Limited duties dispositive! iii. Subordinate, since Exec branch has power to remove (tho for cause only) (it’s supervised)

2. Was special term a valid “ct of law” that can appoint under track 2? a. Ct says yes

3. Is appointment incongruous? a. Ct says no i. Judges that appoint will never see a case brought by IC ii. Policy: Can’t trust Pres to appoint IC, since it’s IC’s job to investigate Pres or his close advisors. Need neutral prosecutor. b. Elements to consider: i. Too far: e.g., ct appoints the Under Sec of State for East Asian Affairs – too weird & distant a relation ii. Too close: e.g. A court can’t appoint the prosecutor

iii. Is removal constitutional? 1. Yes 2. Congress has no say in removal 3. Ct says that discretionary power of Pres must be “so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the officer be terminable at will by Pres” 4. Under this rule, only a small # of officers are mandatory at-will employees of Pres. 5. Many officers (e.g., heads of SEC, FTC, FCC) are not so central, and yet have a lot of power, and can be called principal officers. iv. Restrictions on removal limitations:

27 1. Congress must leave enough power to President so it doesn’t burden his control; cannot impede the Pres’s ability to perform his constitutional duty.