I. What Is the Purpose of a Constitution and Judicial Review?

Constitutional Law I Outline

I. What is the Purpose of a Constitution and Judicial Review?

← The Creation of Judicial Review

← Marbury v. Madison (1803) by Marshall – Creates Judicial Review

 This is a case of the Supreme Court’s original jurisdiction in which Marbury sues Secretary of State Madison to enforce his commission as justice of the peace  Marshall sets out three questions:  (1) Does Marbury have a right to his commission o Chief Justice Marshall says it was effective upon presidential signature, but Court could have

avoided judicial review by saying it was only effective upon delivery  (2) “If he has a right, and that right has been violated, do the laws of this country afford him a remedy?”

o Yes because it was a legal right violated, not a political decision

. Courts don’t solve political questions (See Political Question Doctrine)

. Marshall says it’s not political because the law commands a political appointee to do

something, to delivery the commission. It’s not discretionary

 In the alternative - perhaps because that appointee is an executive-

appointed official, the case is too political (also avoids Judicial Review)  (3) If there is a remedy, is a writ of mandamus from SCOTUS the proper remedy?

o The writ is the proper remedy, but the real question is whether SCOTUS is the proper court

to issue the writ?

o Judiciary Act of 1789 gives SCOTUS the authority to issue writs of mandamus in cases

warranted by the principles and usage of law . “Remedy” is the thing sought; jurisdiction is the authority to issue the remedy. The statute says “remedy” but doesn’t relate to jurisdiction o Marshall says that the Supreme Court is the court to hear this case as an original matter; he interprets the Judiciary Act as granting the Supreme Court original jurisdiction, even though it could have been interpreted just to give the Supreme Court the ability to issue a new remedy (the writ of mandamus)  Marshall believes the grant of original jurisdiction in the Judiciary Act is inconsistent with Article III because Art. III enumerates certain cases where SCOTUS has original jurisdiction and says it has appellate jurisdiction in all other cases. To enable SCOTUS to issue a writ, it must be as an exercise of appellate jurisdiction but to issue a writ is to sustain an original action

o But Article III has no limiting words

 Marshall interprets the Constitution to be both a floor and a ceiling to grants of jurisdiction because if Congress can just add cases to SCOTUS’ original jurisdiction, it makes the Constitution meaningless o Art VI Supremacy Clause says Constitution is supreme law of the land and is listed first (>statutes). If statutes can just trump it, it illegitimates the Constitution . Constitution would be “form without substance” o Thus, that part of judiciary act is unconstitutional  Who gets to determine if a statute is incompatible with the Constitution?

o Marshall says judges take oaths to constitution so they get to determine (but so do

President and Congress). He believes courts has a special expertise (institutional capacity) about law and this is what courts do – they apply the law in the cases before them and the Constitution is law o Congress would be biased because they’re self-interested, they’d think everything they pass is Constitutional o “It is emphatically the province and duty of the judicial department to say what the law is”  Counterfactual Arguments o (1) The guy representing Marbury was the Attorney General who drafted the Judiciary Act – the act was passed by the same people who signed the Constitution so they knew their intent o (2) Art. III § 2 gives SCOTUS original jurisdiction in cases involving public ministers – this is a case where Marbury’s suing Madison, a public minister! . Art III. §2 In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. o (3) If SCOTUS doesn’t have original jurisdiction, there must be a court that does. Art. III only established SCOTUS and gives Congress the power to establish “inferior courts”. If there’s no other federal courts, this case can’t be heard in federal system . Makes it hard for plaintiff to get remedy . Technically, Congress could abolish all federal courts except SCOTUS  Other Issue - should Marshall have recused himself from this case? He signed the commission and his brother was involved  Could Marshall have avoided this case by making a complicated Constitutional Argument? o Recusal – “I can’t hear this case” o Common Law – commission not effective unless delivered o Political Question – improper for courts to decide the case o Interpret the Statute as not granting SCOTUS Original Jurisdiction

← Is Judicial Review a Good Idea? ← -Every single session of Congress has featured the introduction of an amendment abolishing judicial review ← Considerations in Favor of Judicial Review (Pro) 2  Checking the other branches of government

o Judges are independent, unelected and unaccountable (life tenure), and therefore can

counterbalance the activities of elected officials

. But who checks courts? What if courts make a mistake (e.g., Dred Scott)?

. Very seldom has Court disagreed with what national majorities want  Participation/Equality

o Because everyone gets to have their day in court, regardless of their political affiliation or

status or anything else, courts permit the powerless to have a voice in our system. A congressman won’t always listen to you but a court will. Judicial review gives people a right to challenge the power of political branches in a neutral setting

. But courts feature the same inequalities that the other branches of government do

(e.g., better or more attorneys or resources)  Consistency – Judges make the law consistent, ensuring predictability ← Concerns about Judicial Review  Undemocratic

o Judges are unelected, and in our democratic system that means they should not exercise

power (e.g., the statement by President Bush about gay marriage – “Sacred institution of marriage should not be redefined by a few activist judges”)

. But perhaps courts are not so undemocratic (they are well known and appointed by

political officials) and the other branches of government are not so democratic – you don’t have access to Congress  Congress can abolish all courts lowers than SCOTUS  Debilitation o Because courts take it upon themselves to review and decide constitutional issues, other branches of government will not because they have no incentive to think about the Constitution . Now, new rule for Congress – when a bill is introduced, they have to cite the constitutionality . Overreliance on judicial review can hamper civil participation by allowing voters to exempt themselves from constitutional deliberation .  Distortion o Because courts talk about and decide issues using a specialized and technical language, it warps the way that other branches of government think about and decide issues o It messes legislators’ heads up. It makes them think about not being overruled instead of legislating the key issues o It’s a weird way of resolving issues of the day – Abortion was decided by 9 people who did well in law school in an opinion that 4,000 people can understand  Because legislative views about Constitution’s meaning may differ from the courts’, the problems of distortion and debilitation may occur simultaneously ← Other ways to control Court:

 Court Stripping - Art. III §2 – “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

3 o Congress can take away questions from court’s jurisdiction when SCOTUS might overstep its bounds (it did this with Reconstruction issues)  Court packing - Most popular method to control court – increasing or decreasing its membership o It was increased to 10 during civil war to keep it anti slavery, Congress lowered it when Johnson became president to make sure he wouldn’t appoint anyone o FDR Court packing o It only requires a majority vote in both houses to add/remove a seat  Nomination/Confirmation Process  Impeachment  Constitutional Amendment

← How Do We Interpret the American Constitution? ← Historical/Originalism  Asks what the Founders (original intention) or the Founding generation (original public meaning) would have thought about the constitutional issue before the Court  It might provide a more objective way for judges to decide constitutional cases (Justice Scalia) o Does it really answer any questions that face us now? Things have changed so much (e.g. censorship on the Internet) and it is hard to determine what people hundreds of years ago felt about issues now o Do we want to be governed by the “dead hand” of past generations? o Breyer says historical arguments aren’t that objective – people surely disagreed about stuff in 1787 o Also, how can it be democratic to be governed by people we didn’t vote for (white wealthy males) who lived 200 years ago? ← Textual  Asks what the words in the Constitution mean for the constitutional issue before the Court  While this is the only part of the Constitution that was actually ratified—no one was voting on other people’s “intentions,” they were just voting on specific words—it also provides very little guidance, because there are so few words in the Constitution ← ← Structural  Asks what the structural principles embodied in the Constitution mean for the constitutional issue before the Court ← Prudential  Asks what decision by the Court about a constitutional issue would lead to the best results, or would have the best consequences o Does the Court know what policies work best? o Do we want unelected judges deciding about issues of policy, as opposed to about issues of law and legal meaning? Does this provide objective guidance for judges to use in deciding cases?  Breyer likes this, he wants a workable democracy in which the values of the Constitution are applied today – equal protection didn’t mean integration in 1860s, but it does in Brown

o Scalia is against this believing it undermines the Constitution. Whether something “works

better” is for Congress/President to decide. Judges don’t make prudential arguments because they’re political in nature and a judge’s expertise is for legal arguments ← Doctrinal  Asks what prior decisions by the Court mean for the constitutional issue before the Court  Why should we care what earlier courts have said about the Constitution? The Constitution is a document created by others and for others 4 5 II. Judicial Power ← Judicial Supremacy

← Marbury was about striking down laws that are inconsistent with the Constitution. How far does it extend? What is the court’s role in interpreting the Constitution?  Cooper – Judicial Finality – What happens when another branch disagrees with a decision made by SCOTUS?  Lockyer – Judicial Exclusivity – Can another branch jump in when courts haven’t interpreted something? ← Judicial Finality ← Cooper v. Aaron (1958)

 After Brown v. BOE, Arkansas didn’t want to integrate and a postponement of the desegregation plan was granted  District court upheld postponement, citing the chaos that desegregating would cause. Appeals court reversed so Cooper (school superintendent) appealed  Issue – Is there a duty (for Gov. Faubus) to obey SCOTUS’ decision

 Constitution says that it’s the Supreme Law of the Land, it doesn’t say who has the final word

o Marbury – Court is supreme in its exposition of the Constitution

 Holding – SCOTUS is the final word in interpreting the Constitution, all other branches must obey

o This case expands Marbury

← ← Arguments regarding Judicial Finality  Textual o Art. VI – Constitution is supreme law of land, thus SCOTUS interpretation of Constitution is supreme law of land

. Ed Meese disagrees – Constitution tells us it’s supreme, not whose interpretation is

supreme. A decision in a case is binding on those parties, it doesn’t establish supreme law of the land on everyone  But then wouldn’t desegregation have to be decided for every school district? Inefficient

o Art. III – SCOTUS exercises judicial power to decide cases/controversies

. Power to judge is the power to resolve with finality. You can’t resolve case/controversy if your decision isn’t final  Prudential

6 o If Court is final word, they’re not elected, there’s no real check on them. You could impeach justices and vote for a president who will appoint your kind of justices but the decision still stands . You’d need a Constitutional Amendment to overrule—that’s tough! . Amendments overruling a SCOTUS decision have only happened 4 times

 11th overruled Chisholm v. Georgia, giving states immunity against suit in

federal court

 14th overruled Dred Scot

 16th overruled Pollock, permitting federal income tax

 26th overruled Oregon v. Mitchell, lowering voting age to 18

o But if every governor had the power to interpret the Constitution, there would be a lack of uniformity and US would be like it was under Articles of Confederation o If there’s no single institution that’s final in its interpretation of the Constitution, does that invite chaos? ← ← ← ← Why is there no revolt against Cooper?  It is hard to amend the Constitution  Citizens love the courts – productivity bias, the more you see it, the more you like it  Who would we give the power to instead? ← ← -SCOTUS interpretations are binding on Congress – Dickerson v. US (2000) – Miranda cannot be overruled by an Act of Congress – they have authority to modify rules not required by Constitution, but they can’t supersede decisions interpreting/applying the Constitution ← ← Judicial Exclusivity ← Lockyer v. San Francisco  California Gay Marriage case. Mayor Newsome refuses to enforce CA’s marriage statutes that limit marriage between man and woman (he’s marrying gays). Courts have not ruled on constitutionality of the statute, Newsome himself has decided he’s not following it  Issue – Can a state/local official interpret the Constitution before the courts do?

 Holding – Subject to a few narrow exceptions, a local executive does NOT have the power to refuse to enforce a law because he believes it to be unconstitutional

7 o They can enforce court’s decision, can’t be go first in deciding it  Reasoning – o (1) Judicial Administrability/expertise – Most local officials have no legal training and thus lack the relevant expertise to make constitutional determinations. No authority to impose their views on others

. But don’t some political officers have better legal training (i.e., OLC)?

o (2) Due Process – Political decisions don’t hear the merits of both arguments. Opponents of his decision didn’t get a chance to be heard

. But couldn’t political institutions structure their procedures to do the same?

o (3) Lack of Consistency – No uniformity in CA because there’s several local officials o (4) Confusion would last a while because it takes time for court to jump in and decide an issue o Also the CA Supreme Court happens to be elected, so there is some democratic control ← Congressional Override legislation – Congress/State Legislature can override SCOTUS interpretation with 2/3 vote  This is unconstitutional because it would mean SCOTUS isn’t final word  Probably just a symbolic message to SCOTUS  Pro – This is democratic and requires a super majority  Con – Courts rarely get it horribly wrong and from state to state, there could be a lack of clarity/consistency ← ← ← ← ← ← ← ← ← Limitations on Judicial Power ← Article III §2 – Judicial power shall extend to “cases” and “controversies”

8  A matter must be concrete, involving parties  “What” – To bring a lawsuit, you need to have standing to sue  “When” – You can’t bring a case too soon (not ripe) or too late (moot)  The Court refused to issue “advisory opinions” as early as 1793 when Washington asked for SCOTUS’ advice on America’s neutrality. It’s not a case/controversy and it gets into political question ← Political Question  Marshall anticipated two strands of modern political question doctrine: o (1) Some matters are committed to the unreviewable discretion of political branches . Has there been a textually demonstrable Constitution commitment of the issue to another branch? o (2) Some otherwise legal questions out to be left to other branches as a matter of prudence . Looks to perception of a lack of judicial administrability ← Baker v. Carr (1962)  Voters in TN claimed that apportionment of their state legislature violated their equal protection rights because the legislature hadn’t been reapportioned since 1901. They wanted an injunction to stop elections in TN until reapportionment  Previously, court in Colgrove said challenges to malapportioned legislatures under the Republican Guaranty Clause were not justiciable (couldn’t be decided on merits) because Constitution gave Congress, the authority to secure fair representation by states

o This claim is brought under 14th Amendment, not Guaranty Clause

 Issue – Is this a political question that is nonjusticiable by the courts?

 Test for Political Questions (need to show one). If political question then nonjusticiable:

o a textually demonstrable constitutional commitment of the issue to a coordinate political

department

o or a lack of judicially discoverable and manageable standards for resolving it (judicial

administrability)

o or the impossibility of deciding without an initial policy determination of a kind clearly for

nonjudicial discretion

o or the impossibility of a court's undertaking independent resolution without expressing lack

of the respect due coordinate branches of government

o or an unusual need for unquestioning adherence to a political decision already made

o or the potentiality of embarrassment from multifarious pronouncements by various

departments on one question.  Political question cases are the kinds people have heard of. When deciding if a case is a political question, ask yourself if it’s the kind of case that would be on the front page of the newspaper  Foreign relations are reserved for other branches because such questions demand a single voice – that’s a political question

9  Guaranty Clause claims involve elements which define a political question so they’re nonjusticiable, but this case (14th Amendment) does not, provided that the 14th Amendment claim isn’t just a veiled Guaranty Clause claim  Case is reversed/remanded for district court determination (SCOTUS decides only political question issue, not the merits of the case) o Dissent says this is a Guaranty Clause case under a different label and that apportionment is a legislative issue, not one for the courts ← -Court in US v. Nixon said question of Senate’s procedure for holding impeachment proceedings was nonjusticiable on textual/prudential grounds because Senate has “sole” authority  But court got involved in Bush v. Gore which was a huge political thicket

← -So what do you do if you disagree with the Court’s decision about what constitutes a political question?  Dismissal for a political question isn’t a remand; it ousts case entirely from federal courts  You still have state courts and Congress. If this a constitutionally-derived doctrine, then after Cooper you can’t pass a statute overturning this decision; you could amend the Constitution; but, more likely than not, courts get to make decisions about their own powers that are final  Political Question Doctrine creates a gap between rights and remedies – in Baker, someone’s rights are violated but the court may not have a remedy (think of the three questions in Marbury) o Courts can only give remedies for justiciable issues ← - Political question doctrine is the Constitution saying certain issues are so political, they’re not “cases or controversies” and the court can’t decide them ← Doe v. Bush  Soldiers, parents, 6 Congressman sue Bush to block invasion of Iraq without a Congressional declaration of war (plaintiffs have standing)  Issue – Whether plaintiffs’ complaint presents a nonjusticiable political question and therefore, must be dismissed  Foreign relations involve political issues reserved for political branches –

o Textual commitment for Congress to declare war, support armies and President is

commander-in-chief. Even though there’s some conflicts, only when disagreement devolves into constitutional gridlock can the judiciary participate . Here there’s no gridlock because Congress has endorsed President’s use of force in Iraq (albeit, not with declaration of war)

o It’s initially a policy question – whether or not we should go to war. Ruling on it might also

cause embarrassment to executive branch ← Al-Aulaqi  Mr. Al-Aulaqi brings case on behalf of son who is living in hiding in Yemen. o Injunctive relief - Have to disclose standards of targeted killing list; take his son off list o Declaratory relief – Statement that it’s illegal to do this without reason  Remedy here is more narrow than stopping the war asked for in Doe v. Bush, also, it’s the guy’s son – more involvement o This may affect political question doctrine

10  Political Questions issues:

o Standards – No judicial standards if Obama is attributed the power to put people on a

targeted killing list – Court can’t determine if Al Aulaqi is a threat

o Embarrassing if they kill Al Aulaqi and then court determines its unconstitutional

o Respect – Obama/Panetta authorized to make these decisions

 Al Aulaqi argues that son’s 4th/5th Amendment rights are not “textually committed” to political branches – judiciary is charged with interpreting/safeguarding those rights o Courts are willing to review a convict’s death sentence, no problem announcing standards there – why not here?

← ← ← ← ← ← ← ← Federal Supreme Court Review of State Court Judgments  Marbury was about SCOTUS review of a coordinate branch of government and what types of cases can be heard by SCOTUS. Martin is from where can courts decide cases  Martin is about how much power SCOTUS has to give Constitution one national meaning

o It’s the paradigmatic case that hasn’t been challenged

o Oliver Wendall Holmes – “US wouldn’t come to an end if Court lost its power to declare an

Act of Congress void, but it would if they lost power to declare laws of States void  Statute at issue was §25 of Judiciary Act of 1789 which said SCTOUS could review final decisions of highest state courts on claims involving federal law

o Constitutional Convention said federal issues can be brought in state and federal court, but

it was assumed SCOTUS could review those decisions to ensure federal uniformity ← Martin v. Hunter’s Lessee (1816) by STORY (Marshall recused)

 Facts - Land dispute. Martin says the land is his because he got it from a British loyalist before Virginia seized the property and distributed it to Hunter

11  Procedure – VA Court said land belonged to Hunter. SCOTUS reversed and said it belongs to Martin. On remand, the VA Court refuses to implement SCOTUS’ decision, believing §25 to be unconstitutional (they recognized Supremacy Clause but said if federal questions were to arise in state courts, then those courts must provide final adjudication). Martin again appeals to SCOTUS.  Issue - Can the Supreme Court review the federal law decisions of state courts pursuant to § 25 of the Judiciary Act (is §25 constitutional)? o Under the statute, you could appeal from state to federal court over a Constitutional right ONLY if the state court ruled against your Constitutional right  NOTE – this is about court’s appellate jurisdiction (Marbury was about original) o Also, Marshall didn’t participate in this because he owned some of the land  Article III

o Article III contemplates a world in which there are no lower federal courts, and Article III

states that “the Supreme Court shall have appellate jurisdiction” in certain cases, so where else would the Supreme Court hear appeals from but state courts?

. Textual argument. Shall = mandatory, not discretionary

. Congress could get rid of all lower courts except SCOTUS. In that world, what

would Supreme Court have appellate jurisdiction over? o If federal courts have power over ALL cases/controversies, but a case originates in state court, then that power over the case must extend by appellate jurisdiction  Article VI o Article VI says “judges in every state shall be bound”

. But what about the Cooper problem that just because another institution beyond the

Supreme Court is bound by the Constitution does not mean that the Supreme Court gets to tell that other institution what the Constitution means—that other institution (here, a state court) can decide for itself . It’s a mistake to assume that Constitution was only designed to act on people and not on state sovereignty – Constitution is filled with provisions that restrain state sovereignty  State Judges Are Biased

o They have local interests and passions at heart; (but so do federal judges because their

Senators have to support them at a district level) . Now, though, they are elected, and federal judges are not o “Elite” argument – Federal courts have status/prestige  The Need for Uniformity (Pragmatic Argument) o If state courts and federal courts could interpret the Constitution, and neither interpretation would be final, the Constitution would mean 51 different things

o But conversely, with thousands of cases in federal courts now, and many more in state

courts, and with the Supreme Court only taking very few cases, there are uniformity problems even with (discretionary) Supreme Court review after Martin . Converse Pragmatic argument – maybe free speech does mean something different in NJ than in UT

12  Holding – Power of SCOTUS to review state court decisions is AFFIRMED. §25 is Constitutional ← -Effect of the holding is that if you’re a national business like Wal-Mart, you like the way this came out because you get a uniform ruling on what Constitution means across the country ← -Cohens v. Virginia (1821) – Court sustained jurisdiction to review validity of state laws in criminal proceedings ← -In years before Civil War, a number of states challenged SCOTUS’ power to review state court decisions – SC’s Nullification Ordinance of 1832 saying sate could block enforcement of “unconstitutional” federal laws within the state ← Disagreement by Justice Parker  He wants judges, because they take and oath and because cases only decide matters as to the parties before them, to ignore Supreme Court precedents  State supreme court judges should not follow obviously wrong decisions simply because they are “precedents”  In the case he talks about, in which a death sentence is thrown out after Roper (can’t execute those who committed crimes as teens), if Alabama court declined to follow Roper, the guy would have appealed it and SCOTUS may or may not have granted cert – the news Roberts could have reversed Roper

← Congressional Control of Supreme Court Jurisdiction

← Court Stripping - Art. III §2 – “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” ← ← Ex Parte McCardle (1869) – STILL leading case on Congressional Control of Supreme Court Jurisdiction

 Facts – Congress gives courts power to grant writs of habeas corpus. Appeals can be taken to circuit court and then to SCOTUS. McCardle alleged unlawful restraint by military force. He sues for writ, loses, appeals to SCOTUS. After case was argued but before it was decided, Congress repeals their law that granted SCOTUS appellate jurisdiction over granting writs o Law in place had to do with Union forces in Reconstruction. To take away habeas corpus is to declare Reconstruction unconstitutional o Laws usually are applied prospectively (going forward) rather than retroactively, but the repeal bill says it applies to cases that “have” been filed – including this one  Issue – Does court have jurisdiction over the case? Is the law that takes away jurisdiction constitutional?  Holding – Court dismisses for lack of jurisdiction; law is constitutional

 Congress cannot generally alter the original jurisdiction of the Supreme Court (Marbury)  Jurisdiction is conferred with “such exception and under such regulations as Congress shall make” o This gives Congress near plenary power to alter the Court’s ability to hear cases o There is no constitutional issue in this case because McCardle still has other ways of trying to convince the Court to hear and decide his case . The repeal doesn’t take away all appellate jurisdiction of court in habeas corpus matters; only those from appeals from Circuit Courts under act of 1867 13 . Court still has general appellate jurisdiction as per the Constitution. If Congress decides to revoke jurisdiction in the middle of the case one way, it’s ok as long as they don’t revoke something given in the Constitution o Also, Congress repealed jurisdiction before a final decision, even though it was after oral argument . Regarding the repeal occurring after hearing the case but before judgment, in two cases it was held that no judgment could be rendered in a suit after the repeal of the act under which it was brought and prosecuted  It’s clear that Congress is targeting this specific case in repealing the act – it may be problematic to oust jurisdiction for one person but law still applies generally so it’s OK (Court says they’re not at liberty to question the motives of Congress) ← -Marbury + McCardle = Court says what law is when Congress consents to it

← Note: There have been many laws introduced to take away SCOTUS’ appellate jurisdiction, but none have passed since McCardle  Depriving SCOTUS of dealing with healthcare litigation seems politically motivated and wouldn’t be very popular ← Pledge Protection Act  Bill to take away jurisdiction from ALL federal courts over cases pertaining to interpretation of, or validity under the Constitution, of the Pledge of Allegiance  This law presents a more serious constitutional issue. While the law in McCardle still kept open the doors of other federal courts, not even mentioning that it kept open other paths to the Supreme Court, this laws shuts the doors to all federal courts in all situations o Article III seems to indicate that the “judicial power of the United States” needs to be vested in some federal court ← Oral Arguments Bill (Televise SCOTUS Oral Arguments)  Less of a problem, because this is more of a “regulation” about the mechanics of how the Court hears cases; it is like setting the number of clerks or the length of oral arguments. But still poses issues because it governs the internal processes of the Supreme Court. o SCOTUS has jurisdiction with such exceptions, and under such regulations as the Congress shall make

. McCardle is an exception, this is a regulation

14 ← III. Federalism ← Introduction Federalism = VERTICAL Separation of Powers between FedGov and States  Horizontal separation = “separation of powers” between branches Art. I §8 of Constitution set forth an enumerated list of powers  Cl. 18 – “Necessary and Proper” Clause gave Congress power to make all laws “necessary and proper” for carrying into execution the foregoing powers… ← 10th Amendment clarified powers not delegated to US are reserved to States but it excluded the word “expressly” in assuring that powers not delegated to US were so reserved ← -Does federalism matter, or is it merely a proxy for other more important debates (a pretext)?  Republicans: “Contract with America” in 1994 gives power to states. o In 2000s with Teri Schiavo, they want to take away state power  Democrats: Usually for a strong federal government o With No Child Left Behind, they want to give power to states -Madison – Powers delegated to FedGov are “few and defined.” Those which remain to State governments are “numerous and indefinite”

← Pro Federalism ← Anti Federalism ← Experiment – Brandeis Dissent – “Happy ← Fragmentation – Because we live separately, Incident” of federal system that states may serve as we only come together to elect President. Not as labs for social/economic experience. If something unified goes wrong, problem is limited in one area ← -Example: Obamacare came out of MA Healthcare

← Representation – State governments are more ← Efficiency – Different laws create lack of responsive to you – governors differ from state to efficiency. Also, state laws may challenge federal laws state = decentralized government ← -SC before Civil War, even in face of Supremacy Clause

← Participation – Government closer to you = ← Liberty – Separating power may constrain easier to get involved liberty, it becomes much easier for a state to pass a bad law. Harder to get a large governmental entity to Check – It’s another way of constraining ← violate rights than a smaller, more homogeneous part power and protecting liberty of the country ← -One party has NEVER held White House, ← -Southern states during slavery Congress, and all Governorships at same time. This may be a reason why Constitution has lasted

← Competition – Through different governments, they compete with one another ← -Example: DE wanted to attract corporations, so they made beneficial corporate tax laws ← ← ←

15 ← ← ← ← ← ← Federalism Fundamentals

← McCulloch v. Maryland (1819) by Marshall – The Marbury of Federalism

 Facts – Congress passed an Act to incorporate 2nd Bank of US. They open branch in B-more

o A year later, MD legislature passed an act to impose a tax on all banks in the state not

chartered by the legislature – only bank at the time like this was Bank of US. McCulloch, head of Baltimore branch, refused to pay  Procedure – MD State Court said since Constitution didn’t specifically state that Congress could charter a bank, the bank was unconstitutional. McCulloch appealed  Issue – (1) Does Congress have the power to create a bank? (2) Was it Constitutional for MD to tax the bank? Congress’ Power to Create Bank  Historical Arguments (Did founders like it? Would people of the day think it’s Constitutional?) o People liked and passed the First Bank, so it must be constitutional

. But in Marbury, Court struck down part of Judiciary Act drafted by same people who

drafted Constitution  Structural Arguments

o Constitution was submitted to the people who acted upon it the only way they could –

through the states – People created federal government, not the states . MDs argument was Constitution is an act of independent states – Marshall rejects this – Constitution is from the people

. Constitution says “We the people”

 Textual Arguments o MD wants a narrow interpretation of “necessary” in necessary and proper clause

o Marshall interprets broadly

. Marshall makes an intertextual argument by looking at other parts of Constitution where necessary appears. In other parts, it’s preceded by “absolutely” so those are things that are essential  Here, necessary means convenient or helpful

16  Not every power is expressly enumerated because it would be too

cumbersome . The reason the Articles of Confederation were bad is because “necessary” meant “absolutely necessary” – they constrained federal power and here we don’t do that . “It is a Constitution we are expounding” – We want Constitution to work so it most evolve with the times – interpret flexibly so it survives . Commerce Clause gives Congress the power to regulate commerce, the bank helps them do this (it’s necessary and proper)  Powers of government are limited, but Congress must have discretion to execute the powers given to it. Test is “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” o There’s a presumption of constitutionality ← Constitutional for MD to Tax Bank?  Supremacy Clause (Art. VI) – If state law contradicts federal law, federal law wins  First we see if federal law is constitutional. If it is, then any state law undermining that law is unconstitutional. This is why Marshall organizes the opinion as he does (first determine if chartering bank was constitutional, then see if MD’s law conflicts)  “Power to tax is power to destroy” – If state gov’t can tax fedgov, they have power to destroy  Representation argument – If one state imposes a tax on its citizens, the citizens can respond by voting out that legislature. If one state imposes a tax on the federal bank, that’s one state taxing ALL of the nation’s citizens and nation can’t vote to kick out MD legislature ← Holding – Act creating Bank is Constitutional. States have no power to impede the operation of the constitutional laws enacted by Congress – MD can’t tax bank (but they can impose property tax) ← ← Note – Hamilton was pro-bank, Jefferson was against it. Jefferson thought it wasn’t “necessary or property”. Hamilton took a more liberal stance on the phrase but Jefferson switched over once he became President and got LA Purchase  Marshall suggests that the Constitution is from somewhere in between “we the people” and “we the states” – “We the people” but that the populations of the states, rather than the states themselves, presided over creation of Constitution

← Commerce Clause

← Art. III, § 8, cl. 3 – “Congress shall have the Power to regulate commerce with foreign nations and among the several States and with Indian Tribes” ← ← Intro – This is the central basis for assertion of national regulatory authority and Congress’ power to act  In early 20th century, Court frequently struck down regulatory laws as exceeding scope of commerce power. From 1937-1995, Court showed deference to Congress ← ← Gibbons v. Ogden (1824) by Marshall – The Marbury of the Commerce Clause

 Facts – NY gave Livingston and Fulton exclusive rights to operate steamboats in NY. They licensed Ogden to operate ferry between NJ and NYC. Gibbons starting a competing steamboat service in violation of Ogden’s monopoly. Clash between state and federal law

17 o SCOTUS has authority over state court decisions (Martin v. Hunter’s Lessee)

o Federal law is supreme over conflicting state law  Issue – What’s the extent of Congress’ power to regulate commerce?

 Opinion in same format as McCulloch – Is federal law valid? If so, does state’s conflict?  Textual

o Commerce: It means “intercourse” and not just interchanging (buying/selling) goods

o “Among the several states” means involving or affecting more than one state

. Commerce among the states can’t stop at the external boundary of each state, but may be introduced into the interior

o Regulate means prescribing a rule of any sort (broad regulatory authority)

 Historical o This practice has been accepted for some time o Articles of Confederation did not work because federal government could not regulate interstate commerce and had limited powers  Structural

o If NY law had stood, it would give NY power over people that don’t have power over it – this

is taxation without representation (same argument as in McCulloch) o Whoever is affected by a rule should have the ability to vote for or against the people passing the rule. If states can regulate here, then people in state not prescribing the rule would have no democratic control over that rule. ← Gibbons is a blank check for FedGov to act, but they don’t “cash” it until 100 years later – no big cases in between Gibbons and Wickard ← ← Wickard v. Filburn (1942)

 Facts – Filburn, dairy farmer, sued Secretary of Agriculture to prevent enforcement of a penalty imposed upon him under Agricultural Adjustment Act of 1938 for exceeding his market quote when he harvested too much wheat o One guy growing wheat seems to be purely intrastate  Issue – Is Agricultural Act limiting wheat production constitutional under Commerce Clause?

 Rule – Even if Filburn’s activity is local and not regarded as commerce, it may still be reached by Congress if it exerts a substantial economic effect on interstate commerce  Aggregation Principle – If conduct is economic in nature, we aggregate all those similarly situated and see if combined conduct affects interstate commerce  Holding – Act is Constitutional

18 o If Wickard wasn’t decided the way it was, it becomes difficult for Congress to create the EPA

or pass the Civil Rights Act – broad authority through aggregation ← United States v. Lopez (1995) – Three Categories

 Facts – Gun-Free School Zones Act makes it a federal offense for anyone to knowingly possess a firearm in a school zone. Lopez was convicted for having a gun  Three Categories of activity that Congress may regulate under Commerce Power:

o (1) Channels of Commerce – Roads, waterways, RRs, etc.

o (2) Instrumentalities of Commerce – Persons/things in interstate commerce – trucks,

Amtrak, etc.

o (3) Substantially affects – the debatable of the categories

. Is it economic? If not, either impossible or very hard to sustain the statute

 If conduct is economic, then under Wickard you can aggregate it

 If you want court to uphold the law, convince them it’s economic because the court has never aggregated conduct and found that Congress couldn’t regulate the activity

 Is the activity here any less economic than in Wickard? Both seem to be

about possession

. Conduct can’t be too attenuated – more of a direct relationship between conduct

and interstate commerce  One sentence rule

. Is there a jurisdictional hook which would ensure that firearm possession affects

interstate commerce . Are there findings?  Should that matter?  It interferes with another branch of government  But that branch of government has greater capacity to research these issues, and should be held accountable for invoking and identifying its constitutional powers  Attenuated causal chain  Application - Court says the government’s rationale behind the act (it can lead to violent schools which can lead to less education, worse economy) is too attenuated in nature. It’s also not economic so no aggregation and thus statute is unconstitutional  Potential Tenth Amendment limitations on what type of conduct can be regulated by conduct; even if it falls within one of these three categories, it might be so tied to areas traditionally regulated by the states that Congress cannot regulate it o Citizens must have some means of knowing which of two governments to hold accountable for failure to do something. If federal government takes over areas of state concern, the lines blur and the lack of accountability is more dangerous than giving FedGov too much authority 19  Holding – Law is unconstitutional  Thomas doesn’t like “substantially affects” test because it would give Congress a police power over all of American life. If Congress had authority over all things that “substantially affect” interstate commerce, there would be no need for Constitution to specify that Congress can enact bankruptcy laws or coin money – Art. I §8 would be surplus  Dissent argues about institutional competence of Congress, that Court should not see if activity substantially affects, but rather whether Congress could have a rational basis for so concluding ← Note – ConLaw I cases are about channeling/redirecting. Here, Court decided the activity needs to be channeled so after Lopez, Congress re-directed gun control laws by adding findings/jurisdictional requirement ← ← ← United States v. Morrison (2000)

 Facts – Violence Against Women Act (VAWA) gives civil remedies to victims

 Court finds that like Gun Free School Zones Act in Lopez, gender VAWA has no jurisdictional element. Even though there are findings, it’s not sufficient to be Constitutional o Extensive congressional findings might not matter that much after all  Substantially Affects test – Connection between VAWA and Interstate Commerce is too attenuated. Gender motivated crimes of violence are not an economic activity

o But, does this involve conduct any less economic than in Wickard?

 Fact that 38 state AGs supported law doesn’t matter – states aren’t a party here and can’t “waive” federalism  In Lopez, Court is more weary of Congress trying to get involved in the first place. Morrison is more focused with the Congressional finding requirements o Congressional findings reasoning could be used for Congress to regulate anything/everything – Constitution requires distinction between what is local/national and the perfect distinction is between police power in states o If findings are flawed and have too attenuated a causal chain, it’s not constitutional  Dissent continues to use rational basis test and defers to congressional findings

← Gonzalez v. Raich (2005)

 Facts - California passed an exception from criminal prosecution for medical marijuana. Raich is a CA resident who needs medical marijuana. He brings this action to prohibit enforcement of Federal Controlled Substances Act (CSA)

o Here there is a conflict between federal and state law (unlike in Lopez and Morrison)

o Note that this is an “as-applied” challenge while Lopez and Morrison were facial challenges

. As applied = you have a client with a unique story and unique issues. These cases are easier to win, but a facial challenge settles more permanently o A test of the “principle” of federalism; conservative tension between respecting states versus anti-drug concerns; liberal tension between respecting national power versus pro- drug concerns 20  Issue – Whether Commerce power includes power to prohibit local growth/use of marijuana in compliance with CA law  Court’s Rule from Wickard – Congress can regulate purely intrastate activity that’s noncommercial if it concludes that failure to regulate that class of activity would undercut regulation of the interstate market in that commodity o Act in Wickard was to control whet, CSA is to control supply/demand of drugs  Expands on three categories described in Lopez and Morrison

o Channels of interstate commerce (not really applicable in Raich)

o Instrumentalities of interstate commerce (not really applicable in Raich)

o Substantially affects . Old concerns

 Economic versus non-economic (is this any more or less economic than

possession in Lopez?)  Jurisdictional hook  Findings  Attenuated causal chains . New additional concerns

 Is this part of a national economic market?

 Interstate drug market – This is larger than weed in CA – this might make law constitutional  Substitution effects  If engaging in intrastate commerce is a substitute for interstate commerce (getting weed abroad), then Congress can go after intrastate commerce  Relation to Wickard and wheat  O’Connor concerned with limitations of this rationale – almost everything you do, if done differently, could be interstate

 If part of a substantial larger regulatory scheme – Marijuana is part of a

larger market, the CSA is designed to eliminate drugs  O’Connor suspicious of large federal initiatives because if you regulate small stuff as a way of regulating the big stuff under necessary and proper clause, you can presumably regulate anything  Necessary and Proper Clause might meaningfully supplement Commerce Clause o You still must point to a Commerce Clause or otherwise constitutionally-provided end and Necessary and Proper expands permissible means

o Raich elevates this Clause’s importance

o This argument gets Scalia to join majority – Congress may regulate noneconomic local activity if it’s a necessary part of a more general regulation of interstate com  Holding - The CSA is constitutional

21  O’Connor Dissent – Here, CA was a lab with state’s police powers including authority to define criminal law. Majority extinguishes CA’s experiment without any proof that personal use has a substantial effect on interstate commerce  Thomas – Weed was never brought/sold/crossed sate lines. If Congress can regulate this it can regulate anything ← Summary – Does law fit into one of the three categories (channels, instrumentalities, substantially affects)? If substantially affects, there are four factors from Lopez: economic in nature, attenuated, congressional findings, jurisdictional hook. Three factors from Raich: national economic market, substitution effects, larger regulatory scheme ← ← United States v. Comstock (2010)  Statute lets FedGov keep prisoners after their sentence if they’re still crazy + sexually dangerous. Person becomes in custody of Attorney General who must make efforts to cause state to take responsibility for them.  Cooperative Federalism – States/FedGov working together

 5 factors lead Court to conclude that statute is a necessary and proper means of exercising federal authority that permits Congress to create federal criminal laws, punish violators, etc. – the means are justified because they have the power to regulate the ends

o (1) Necessary and Proper Clause gives Congress broad authority to act

o (2) Modest Addition to a long-standing area of regulation

. Congress have long been involved in delivery of mental healthcare to federal prisoners and has long provided for their civil confinement

o (3) Congress reasonably extended its power here

. Raich says if you go big (regulate big area), the law will be upheld. This says if you

go small, that’s OK too because it’s only an incremental addition

o (4) Statute provides for accommodation of state interests (Cooperative Federalism)

. Requires AG to reach out to states

. But this seems to be in tension with Morrison where 38 states signed on to VAWA

but court didn’t care. Here court cares that states agree and cite it as a factor

o (5) No attenuation of interests

 Statute is constitutional  Here though, we don’t know which factors are most important and how to balance them – this poses a problem as precedent  Thomas Dissent – Congress doesn’t have the “ends” – no power gives Congress the power to enact federal civil detention of sex offenders ← After Raich, opponents propose Amendment to Constitution – Congress’ power can’t be construed to include power to regulate/prohibit any activity confined within single state, regardless of its effect outside the state; but Congress shall have power to regulate harmful emissions between one state and another 22  This would expressly overrule Wickard and Raich (says Comprehensive Regulatory Scheme)  This could re-channel regulatory power from Congress to other authorities; it wouldn’t outlaw the regulatory authority itself

← Spending Clause

← Art. III, § 8, cl. 1 – “Congress shall have the Power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States” ← ← Intro – This is the second biggest grant of authority for Congress to Act  Commerce Clause is a direct regulation of activity. Spending clause is activity done by state governments but at command of federal government o Like a contract – Fed gives money, states carry it out o Indirect regulation because funding is contingent on obedience with the rules

o You may pass a law under spending clause rather than commerce because it might be

easier under Lopez and Morrison o Congress likes the spending clause because they get credit for the action but don’t have to raise taxes for the act o Not as many spending clause cases because restrictive doctrines regarding standing to sue bar most challenges ← United States v. Butler (1936) – The Gibbons of Spending Clause

 Facts – Agricultural Adjustment Act sought to stabilize farm prices by limiting agricultural production. Act would pay farmers not to plant, with money coming out of a tax paid by the processor. A processor (Butler) sued saying tax was integral part of program that unconstitutionally sought to control agriculture production which is a job for states  Madison vs. Hamilton readings of spending Clause

o Madison – Reference to other powers enumerated in §8 – the grant of power to tax/spend

for general welfare must be confined to Congress’ enumerated powers

. Narrow - You can do things only to carry out powers you already have

o Hamilton – Separate from enumerated powers. Congress has substantive power to tax but

it must be exercised for general welfare . You have new means and ends  Court says Hamilton’s view is correct but court still strikes down the law o (1) 10th Amendment-based suspicion – Power reserved to state . Tax is a means to an unconstitutional end o (2) Has to be voluntary, non-coercive agreement to regulate  By entering into contracts with farmers who reduced their output of selected crops, Congress had placed non-participating farmers at a distinct disadvantage to farmers who cooperated. As such, the program was not truly voluntary as it left the farmers no real choice; the options for the farmers were either cooperation or financial ruin. Under those circumstances, the regulatory scheme essentially required submission of farmers to a regulatory scheme Congress had no power to impose on its own.  Law is unconstitutional 23  Dissent says it makes no difference that there’s a promise to do an act which the condition is calculated to induce – condition and promise are both in furtherance of the national purpose o Threat of loss, not hope of gain, is the essence of economic coercion ← Note: After Butler, Court upheld against state autonomy challenges the unemployment compensation and old age benefit schemes of Social Security  Steward Machine v. Davis (1937) and Helvering v. Davis (1937) are in reading but not discussed in class ← ← ← ← South Dakota v. Dole (1987) – Like Lopez – gives doctrinal test

 Facts – Challenge to federal law that directed Sec. of Transportation to withhold 5% of Federal Highway Funds from states that had a drinking age of lower than 21. South Dakota let 19 year olds buy beer and sought a judgment that federal law was unconstitutional o 21st Amendment gives states the exclusive right to regulate the manufacture, transportation, and consumption of alcohol  Court found that Congress acted indirectly under its spending power to encourage uniformity in States’ drinking ages – Objectives not within Art. I’s enumerated powers may be attained through use of spending power (Hamilton view) o Much more discretion to pick the means and the target  But power is not unlimited. Limitations:

o Must be for General Welfare – As determined by Congress, this element isn’t as important

o Clear Statement – If Congress wants to condition states’ receipt of federal funds, it must do

so unambiguously, enabling States to exercise their choices knowingly . Context specific; case by case determination . Technical proficiency – how clear were you in drafting the law?

o Germaneness – There must be a relatedness between benefit Congress wants to obtain and

the punishment states would face if they didn’t comply . Here, money they’re threatening to withhold is related to what they want states to do because increasing the drinking age makes highways safer

. O’Connor Dissent - This is an attempt for Congress to regulate sale of liquor which is

outside power to regulate because it’s within 21st Amendment  Over inclusive because it stops teenagers from drinking when they’re not going on interstate highways  Under inclusive because teenagers are only part of drunk driving problem

o Independent Constitutional Bar – Can’t do something unconstitutional

. This is what SD challenges – believe it conflicts with 21st Amendment . This limitation is NOT a prohibition on indirect achievement of objectives which Congress is not empowered to achieve directly; power may not be used to induce states to engage in activities that would themselves be unconstitutional – like giving money to discriminate

24 o Coercion (Mentioned in Butler) – Must be voluntary on both sides – Can’t contract with a

gun to their heads . Here, the amount of money (5%) is relatively modest . But this could be different for each state – it might be more coercive for a smaller state o If there’s a problem with any one of these elements, law is unconstitutional  Note: Congress could have passed this act via the Commerce Clause by regulating instrumentalities “Trucks transportation alcohol interstate cannot give alcohol to places where drinking age is under 21”. They may also claim a law that raises drinking age to 21 “substantially affects” via substitution effects

o Regulated under spending clause because it’s much more permissive (Dole is more

permissive than Lopez), spending clause might give a better chance of being upheld ← No Child Left Behind Act Case (Pontiac School Dist. v. Sec. of Ed. (6th Cir. 2008)

 Facts – School Districts seek judgment that they need not comply with No Child Left Behind (NCLB)’s requirements where federal funds don’t cover the increased costs based on unfunded mandate provision o “Noting in this act shall be construed to authorize an officer/employee of FedGov to mandate a State to spend any funds or incur any costs not paid for under this act”  5 factor test from Dole:

o Clear Statement is the issue here

. Clarity is viewed from lens of the state – would the average state official know what they’re getting themselves into?

. Court eventually decides the clause in contention is too ambiguous, so that part is

unconstitutional

o The Act deals with billions of dollars but coercion isn’t really an issue here

. After Dole, it’s tough to prove an agreement is too coercive (like unconscionability in

K)  Note: Could Congress have passed this under the Commerce Clause? Hard because it’s substantially interstate. You could make the argument about books travelling to various states but in Lopez, Court was suspicious about effects of education on interstate commerce so this is a tough one ← Bill of Federalism – Proposed Amendment  Congress shall not impose upon a state any obligation/duty to make expenditures unless they will be reimbursed by US; nor shall Congress place any condition on expenditure of funds requiring a state to enact a law or regulation restricting liberties of its citizens o This is a target at “coercion” and is a Tea Party tenant

o Rather than preventing federal activity, this may redirect it to Commerce Clause

← §5 of 14th Amendment

25 ← 14th Amend. § 5 – “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”  Third Grant of Congressional Power under the Constitution o Different trigger situation than commerce or spending (must be violation of rights) o Different structure than spending but similar to commerce (direct federal enforcement)  Least utilized (after Commerce and Spending Clauses)  Commerce and Spending Clause cases tend to mute the real controversial issue (i.e., gun control in Lopez). When Congress acts under §5, it’s to defend Constitutional rights  It’s a direct regulatory authority, like Commerce Clause ← Key Textual Issues  What does “enforce” mean? What does “appropriate” mean? ← South Carolina v. Kazenbach (1966)  Sustained §5 of the Voting Rights Act of 1965 (barring any new standard or practice for voting in covered areas where discrimination existed) as a proper exercise of power under §2 of 15th Amendment (similar to §5 of 14th) o 15th says right to vote can’t be denied (by state) on account of race; §2 gives Congress the power to enforce it o Voting Rights Act retroactively vetoed certain state legislation. If it infringed on right to vote, it had to be approved by Voting Rights Division of DOJ  “Congress may use any rational means to effectuate constitutional prohibition of racial discrimination in voting”  Case was filed under SCOTUS’ original jurisdiction as it involves a State  Asymmetrical Federalism: Gun Free School Zones Act applied everywhere; Spending Clause legislation applies everywhere; here, under §5 , Congress has power to say its laws apply in some places but not others, because problems are worse in certain places (covered areas)  One of the reasons the law is upheld is because it’s Geographically constrained (only in states where there’s discrimination) and substantively constrained (certain areas of law) ← Katzenbach v. Morgan (1966)

 Facts - §4e of Voting Rights Act of 1965 said no person who has completed 6th grade in PR shall be denied right to vote because they can’t read/write English. NY challenged it because their laws require the ability to read/write English  For §4e to be regarded as an enactment to enforce equal protection, it must be plainly adopted to that end and be consistent with the letter and spirit of Constitution o Congress can’t use pretext of 14th/15th Amendment to regulate everything. There has to be a relation between rights being violated and Congress’ attempt to fix those rights violations  Court gives Congress broad power to define what it means to have rights violated  The law (§4e) does not violate 14th Amendment (law upheld) ← City of Boerne v. Flores (1997)

 Summary: Put to rest any doubt after Morgan over whether Congress has substantive power to reinterpret Constitution by statute rather than Constitution Amendment – power to “enforce” civil rights is strictly remedial and Congress lacks any power to set forth new substantive interpretations of 14th Amendment so as to overrule prior interpretations of the Court 26  Facts – The Court in Smith held that neutral, generally applicable laws may be applied to religious practices when not supported by a compelling governmental interest (didn’t apply the balancing test). In response, Congress passed Religious Freedom Restoration Act (RFRA) which said if gov is passing a law that affects religion, the gov must have a very good reason for doing so  Issue – Does Congress have the authority to enact the RFRA? Did they exceed their powers under §5 to remedy violations of the Free Exercise Clause?  Court announces Test for §5:

o “There must be a congruence and proportionality between the injury to be prevented or

remedies and the means adapted to that end.” . In other words, Congress must identify violations of certain rights related to constitutional guarantees, and then provide for a remedy proportionate to these rights violations (the power is remedial) . The broader the right being violated, the broader the power to remedy  Justification: o Textual . “Appropriate legislation” suggests some kind of limitation . Congress can’t enforce a right by changing what a right is – they can’t define what a right is, they only have the power to enforce (remedy) it o Historical . Bingham Amendment gave Congress broad power to act but it was not accepted – suggested 14th Amendment drafters wanted to limit power to act o Prudential

. If Congress has power to define what Constitution means, then they’re the final

expositor and this would overrule Marbury, Cooper, Lockeyer  Application – RFRA is a substantive change in constitutional protections – its reach and scope distinguish it from other measures passed under enforcement power – in Katzenbach, statute was limited to areas with a problem

o Right – How many rights violations are there that Congress wants to combat? Not much

evince of generally applicable laws passed targeted to religious bigotry . Small right = remedy must be small

. Congressional findings become important here, as in Morrison, Raich

o Remedy – This would apply to every level of government, every state, every area of law,

strict test . RFRA is not congruent/proportional – too broad geographically (no special covered areas) and too broad substantively (it affects all laws)  Makes it hard for any state law to be upheld, because states need “compelling interest”  Does Congress have any power to go beyond what Court says 14th Amendment means?

o Morgan says yes, this overrules it and says no

o By constraining by who and how Constitutional rights can be determined, this debilitates Congress’ ability to protect rights . Debilitation – Congress has disincentive to look into Constitutional matters 27  To make a law constitutional under Boerne, target it geographically (like Voting Rights Act), target it substantively by only affecting certain laws, establish termination dates  §5 deals with violating by state governments. Says nothing about Congress’ power to constrain its own powers, so RFRA can still apply to FedGov ← United States v. Morrison (2000) – same case as Commerce Clause (VAWA)  Congress justified VAWA through Commerce Clause and §5  Court found substantial Congressional record insufficient to uphold civil damages provision of VAWA. Damages provision exceeded Congress power to enforce Equal Protection Clause  VAWA is aimed at individuals who have committed crimes, not states themselves o 14th/15th are limitations on state actions, not personal actions and there’s insufficient evidence of state violations of the right o You can’t infer from personal violations that there are also state violations . You also can’t infer misconduct by one state as misconduct in other states  Still same Congruence + Proportionality test – tailor the laws.  Rights violations must involve state acting, not merely the state as a conduit for rights violations by private citizens ← Kimel v. Florida Board of Regents (2000)

 5-4 vote that Congress exceeded its remedial authority under 14th Amendment in allowing state court employees to sue states (abrogating sovereign immunity) for violations of ADEA o Discrimination because of age is less of a problem than on basis of race, so remedy must be smaller  Because remedial power is less, ADEA goes too far in applying to all facets of employment relationships – Employment Law is a huge field, so law is too broad ← Board of Trustees v. Garrett (2001)

 Court held invalid Congress’ attempt to abrogate sovereign immunity for state-employer violations of ADA Title I  ADA has a big effect on legal system. Congress is trying to target discrimination against the disabled – remedies are “reasonable accommodations” for state employees  There’s not a lot of history of discriminating against disabled o Evidence is qualitative and anecdotal, evidence is also from local government and not states . Cannot use societal discrimination to prove state discrimination . Cannot use local discrimination to prove state discrimination o Power to remedy is thus narrow o Concurrence by Justice Kennedy (a potential deciding vote in these cases) states that specific judicial decisions noting rights violations of this type in the past would help  Remedy of requiring “reasonable accommodation” unless there’s an “undue burden” is asking a lot

28  This scales back Katzenbach decisions where it says Congress need not rely on what Court said about violations (it would help to have had judicial opinions about violations) ← Note – There are a series of cases scaling back Congress’ authority to act – there’s more uproar over §5 cases than with Commerce Clause cases, but with Hibbs and Lane, Court upholds some power ← ← Nevada Dept. of Human Resources v. Hibbs (2003)

 Court distinguished Kimel and Garrett, upholding Congress’ power to apply the Family Medical Leave Act (FMLA) to the states  Right o Can use evidence of discrimination in one area by the state (state gender discrimination in parental leave) to infer discrimination in another area by the state (state discrimination in the area of family leave) and evidence of one public sector actor to prove violations of rights by another . Perhaps more lenient standard of evidence is permitted, not just broader remedy, when more important right is at stake? o Gender-based discrimination in the workplace is more problematic and widespread than disability or age-based, thus Congress has more remedial power  Remedy

o Applies just to employment law – more discreet and limited in time (only during maternity

time), applies to men and women  This seems to undermine Garrett because there’s less evidence of direct violations of state actors of that particular right

o Also, law applies nationally and isn’t limited like Voting Rights Act in Katzenbach

o But Hibbs just may be difference because right defined is more important

← ← Tennessee v. Lane (2004)

 Title II of ADA is a permissible exercise of Congress’ civil rights enforcement power  Title II’s requirement of program accessibility is congruent/proportional to its object of enforcing the right of people t access the courts. Failure to accommodate persons with disabilities will often have same effect as outright exclusion

o Right – Importance of right being violated (access to courts) matters. If it’s a fundamental

right, Congress can act and can do so more broadly . Lane here is a sympathetic client and this is an as applied challenge – you can play on the facts more (more dramatic than in general facial challenge)

o Remedy is more limited – requires only “reasonable modifications” for access of judicial

services  Scalia Dissent disavows the entire congruence and proportionality test as too malleable and inviting to judicial arbitrariness o He would limit Congress under §5 to remedying conduct that itself violates a provision of 14th Amend., but grandfather in Voting Rights Act in race discrimination 29 ← ← 10th Amendment ← 10th Amend. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Assuming that a particular statute is within Congress power via Commerce, Spending Clauses or §5 of 14th Amendment, these are other Limitations on Congress’ Authority to Act  Test: (1) Does it fall within Congress’ authorizations to act? (2) If so, are there certain prohibitions on Congress from acting? ← Three different lines of cases under 10th Amendment – Who does the statute regulate or target?  Private Parties – Lopez, Morrison, Butler o If statute regulates private parties and the area of regulation is something states traditionally regulate, then it’s probably unconstitutional under the 10th Amendment

o Sometimes unconstitutional (if it’s traditional regulation of states)

 Private Parties/States – National League of Cities, Garcia o Is this regulating something states have traditionally regulated and is it important for states to regulate it?

o After Garcia, Court stays out of this category

o Never unconstitutional

 State Governments – NY, Printz

o Law cannot “commandeer” state legislatures or state executives to enact or implement a

o Always unconstitutional

← Private Parties/States ← National League of Cities v. Usery (1976)  Amendments to Fair Labor Standards Act (FLSA) extended minimum wage/hour provisions to state/local employees are held within Commerce authority but unconstitutional o It does “substantially affect” interstate commerce  Regulating something traditionally regulated by the states and is important for states to regulate – employer-employee relations  Federal Government cannot regulate areas that are traditionally part of state operations, and are integral to state operations o If there are no boundaries on federal power to act, FedGov can prevent states from having an important existence o If FedGov can tell states how to make fundamental decisions like how to pay their employees, that violates their autonomy  Brennan in dissent urged judicial restraint by recognizing that the political branches are structured to protect interests of States –States can protect themselves

30  Test becomes do states traditionally regulate this/is it important for them to do so ← Garcia v. San Antonia MTA (1985) – Overrules National League

 Same FLSA statute as in National League – San Antonio MTA was subject to minimum wage/hours laws of FLSA  Blackmun, who concurred in National League wrote the opinion saying the effort to define what was integral/necessary government functions was unworkable as courts were divided and it became too arbitrary o Previous cases showed there was no rhyme or reason – this isn’t workable through the courts  Political Safeguards Argument - Political process protects states rights – they have influence in federal government as house is elected by district, Senate by states, President by electoral college o 1/5 of state’s budget comes from FedGov  POWELL Dissent says politics fails to protect states – elections are by people, not the states. Politics are nationalized, partisan, national media. Legislation is drafted by committee members who don’t know State issues  O’Connor Dissent – True essence of federalism is that States have legitimate interests which FedGov is bound to respect even though its laws are supreme ← Opinion is surprising because Court unilaterally withdraws from constitutionally evaluating this category of cases, reducing its power, unlike Cooper, Lockyer, Boerne – this is better resolved by politics  Also it’s a pro FedGov response because now courts won’t intervene when Congress passes laws within this category ← Notes:

← Substantive Values of Federalism – State/local gov’t can tailor policies to fit local constituencies; citizens can move to government they like; state experimentation; smaller government = more citizen involvement  Centralized Power when local regulations will be undesirable/ineffective, can deal with negative externalities – protect against tyranny of local majorities ← Political Safeguards of Federalism – States are effective lobbyists for their own causes in federal policymaking.  After Garcia, Congress amended FLSA to reduce federal hour/wage requirements  States have remained primary training ground for federal officials ← States ← Commandeering State Governments – Congress cannot commandeer the legislative processes of states by directly compelling them to enact/enforce a federal regulatory program ← New York v. United States (1992) – Commandeering of the legislature  Low-level Radioactive Waste Police Amendments Act gave states three incentives to deal with their radioactive waste – Monetary incentives (spending power) – money if you take other states’ waste; access incentives; take title sanction – if state didn’t provide for disposal of waste, it becomes liable for it o Passed under Commerce Clause (radioactive waste between states = instrumentalities) 31  Issue here is over the take title sanction – Commerce Clause doesn’t authorize Congress to regulate state governments’ regulation of interstate commerce  The statute says states can own waste or regulate about it; Congress can’t mandate states to take possession of waste or mandate states to pass regulations so law is struck down o Structure - Commandeering blurs lines of accountability, much more so than spending clause because states can turn it down  Congress can still regulate waste by doing it directly, regulating private producers of radioactive waste to limit production according to federal standards (commerce) or attach conditions under spending power – this doesn’t involve commandeering o Commerce power isn’t coercive because any burden caused by State’s refusal to regulate will fall on those who generate waste, not the States themselves ← ← ← Printz v. United States (1997) – Commandeering of the executive  Brady Bill required state/local law enforcement officers to conduct background checks on prospective handgun purchasers  Different from New York because there the Court said FedGov can’t commandeer state legislatures; here, this law commandeers state executives  Law is held to be unconstitutional  Historical Arguments – Federalist Papers say FedGov can’t commandeer state executives

o Stevens Dissent says there are situations where state official implement laws (collecting of

taxes), but majorities counters saying Congress gets them to do this through enticing (spending clause) or state officials do it voluntarily – no notion that they could force officials

o In early statutory history, there’s no support for idea that Congress could commandeer

state executives, but just because they didn’t do something didn’t mean they thought that they couldn’t do something  Structural Arguments – Dual Sovereignty – power of FedGov would be augmented if it were able to impress into service at no cost the police of 50 states o Dissent says by not enlisting state officials, Court creates incentives for FedGov to create national bureaucracies . Prophetic because after 9/11, Dept. of Homeland Security is created  Also states bear financial burden and responsibility if something goes wrong, while Congress gets the credit – same accountability argument ← Notes:  Conditional preemption under Printz is OK – You better do background checks or we’ll do them – to threaten is not to commandeer. States voluntarily doing it is OK too  This was decided when conservatives disliked what FedGov was doing, but after 9/11, city of Berkeley used this case as a shield to resist PATRIOT Act  Printz and NY are “rule” decisions, not standards. Solicitor General in Printz tries to get a de minimis exception where if it’s cheap it’s constitutional, but Court said no  How do New York and Printz make sense in light of Garcia? What is it about laws targeting state governments in particular that makes them constitutionally problematic? o The indignity of being singled out

32 o Fewer political checks on these laws because of politically weak state governments, so more need for judicial protection  Could Congress pass a law requiring state governments to give state employees off for MLK? o You can have a federal holiday, but telling states to give their employees off is unconstitutional  But, Congress can commandeer state courts all it wants! o Art. VI – “and the judges in every state shall be bound thereby”  In Reno v. Condon, Court upheld a federal law limiting commercial vending of personal data by states – it regulates states as owners of databases, doesn’t require legislature to enact laws (more like Category 2 than Category 3) ← ← ← ← ← ← ← Gay Marriage case – Massachusetts v. HHS (D. Mass 2010)  Defense of Marriage Act (DOMA) defines marriage as between man and woman and prohibits federal funding for any law which recognizes same sex marriage. Mass challenges this because they bury the gay husband of a veteran and they want their money back

o Reimbursement also applies to private companies who bury veterans so it’s a Category 2

case  Should be Constitutional as long as it’s in Commerce, Spending, or §5  Judge here doesn’t agree and says 10th Amendment attack on a federal statute needs three things: (1) statute must regulate States as States; (2) Concerns attributes of state sovereignty; (3) compliance with statute would impair state’s ability to structure integral operations in areas of traditional gov’t function

o This seems inconsistent with Garcia as it regulates states and private parties.

o Judge confuses tests under the 10th Amendment – suggesting that regulating states as

states (commandeering) is problematic

o Test he uses was the one used by National League, overruled by Garcia

 Judge ruled DOMA unconstitutional based on his test, but based on what we’ve learned, his test is wrong ← ← Healthcare Materials

← What the law does:  Provides incentives for expanded group plans through employers, tax breaks for low income people, extends Medicaid, prohibits insurers from denying coverage to those with pre-existing conditions  Minimum Coverage Provision – Every citizen, unless excepted, must maintain minimum coverage. If not, there’s a penalty in person’s tax return

33 o Individual Mandate that is essential for regulation of larger economic activity. The

absence of this provision (people not having healthcare) would undercut the regulatory scheme by increasing individuals’ incentives to wait to purchase health insurance until they needed it – shifting costs on 3rd parties (taxpayers) ← Challenges to the law under the Commerce Clause –  Challenge the individual mandate that requires people to get health insurance.

 This regulates people’s refusing to enter into the interstate commerce market – criticism is that Government conflates activity with inactivity ← Is the law economic in nature?  Barnett & N.D. FL Opinion (anti healthcare):

o Law regulates not buying insurance and “inactivity” is not economic in nature

 Chemerinsky & W.D. VA Opinion (pro healthcare)

o Not buying insurance substantially affects the interstate market

o Substitution argument (Raich) – Not buying health insurance is substituting for activities –

at some point you’ll need health care and that cost will get passed on to the public o It’s an “active” decision not to buy insurance o They widen the lens from the moment you decide not to buy to when you need health care later on ← Does it matter if its activity/inactivity?  Barnett (activity only): o Precedent – Every single case in the Commerce Clause were regulating activity, regardless of whether they were struck down or not. . Counterpoint is that precedent only matters if its material to the decision . This only matters if Commerce Clause can only be used to regulate activity

. Court has never upheld a requirement that people who do nothing must engage in

economic activity by entering into a contract with a private company o Prudential – Where would this stop? You have to draw the line somewhere . The fact that everyone will need healthcare is not a good argument because there are many markets that people can’t “opt out” of like food or cars – could Congress require everyone to eat broccoli or buy a GM? . Too attenuated – uninsured only have effect if they get sick, seek medical care, unable to pay for it or make a payment plan  Chemerinsky o Congress already regulates inactivity – you need to pay taxes, register for draft, serve on a jury, etc.

o Court said Congress can regulate hotels from racially discriminating even though their

conduct was refusing to engage in commerce

34 o By choosing to forego insurance, people make an economic decision to pay for healthcare

later which substantially impact the healthcare market by shifting costs, undermining regulatory scheme ← Challenges under Spending Clause –  Medicaid provision o Florida raises the issue that spending clause actions can’t be coercive . They say they can’t give up Medicaid because it already benefits their citizens; but they can’t afford it under the bill’s new scheme – Catch 22 o FL judge doesn’t want to dismiss this issue on summary judgment – there are factual disputes as to whether or not this will lower/raise Medicare costs . Judge says it doesn’t matter, it’s constitutional under spending clause either way

← Federal Constitutional Limitations on State Governments ← -There are limitations on what Congress may do – Affirmative Powers (Commerce, Spending, §5), Negative Prohibitions (10th Amendment) ← -Now, there are also limitations on states’ ability to act:  Dormant Commerce Clause  Preemption  These cases are the biggest issue in modern constitutional law challenges ← Test – (1) Is this a limitation on Congress or the States to regulate interstate commerce in a particular area? If it’s the states, then (2) Did Congress act in this area? If yes – preemption, if no, state action can still be limited by Dormant Commerce Clause (if state activity affects interstate commerce)  Preemption – Ultimately becomes a question of congressional intent; did Congress intend to preempt state law o Express preemption o Field preemption o Conflict preemption  Dormant Commerce Clause

o (1) Is this state law discriminatory against out of state interests?

. If it does, then the law will almost always be struck down (virtual per se rule of

invalidity)

o (2) If no, then we do Pike balancing – benefits vs. negatives of the law

. This gives the law a 50-50 shot – sometimes struck down

35 o (3) Market participant – Is the state doing something a private party could do, then we

don’t ask if law is discriminatory or do Pike balancing. The dormant commerce clause doesn’t prohibit the law – never struck down . State can do things as a market participant ← ← ← ← ← ← DORMANT COMMERCE CLAUSE ← Gibbons v. Ogden (1824) by Marshall – Origin of Dormant Commerce Clause

 Case is significant for commerce clause, but also founding of dormant commerce clause  Case is decided on the merits of preemption because both Congress and NY passed laws about regulating shipping trafficking – Supremacy Clause says Congress>state  Dormant Commerce Clause is in dicta o When states regulate interstate commerce, they’re doing the thing Congress is authorized to do

. It’s not in the clause, it’s inferred

. Even if Congress hasn’t authorized its power to regulate commerce, it’s still their power to do so . By not mentioning state governments, Constitution impliedly gave power only to Congress (it’s a floor and a ceiling) . Prudential arguments – Congress needs power to create national policy o Shared powers – states have some power to act along with Congress (i.e., tax) . Inspection laws are NOT commerce laws because they act upon the subject before it becomes an article of commerce

. We look at purpose of state regulation. If regulate commerce, it’s bad

← Counterpoint – Scalia/Thomas (strict constructionists) do not believe the Dormant Commerce Clause exists – It’s nowhere mentioned in the text, and the silence is deafening, particularly when one remembers that Article I, Section 10 includes limits on state powers, and this Dormant Commerce Clause limitation is not one of those limitations on state powers mentioned ← ← First Category – Is State Law Discriminatory Against Out of State Interests?

← Philadelphia v. NJ (1978)

36  1973 NJ law prohibited importation of waste that originated outside NJ. Law was challenged by operatives of private landfills in NJ and by cities who sent trash to NJ  Determination needs to be made if law is for economic protectionism (bad) or for health/safety of in state citizens with incidental commerce effects (good)  Court looks to what the law is actually doing, not to what NJ drafters’ intent was

o If it’s economic protectionism, it’s a “virtual per se law of invalidity”

 If other states tried to say NJ couldn’t export its trash into their state, the Commerce Clause would protect them; thus the law here is unconstitutional  Dissent says this is like a quarantine law – the fact that NJ has to dispose of its own noxious items doesn’t mean it has to be a depositor for other states’ trash  If a state law is discriminatory, say the state is regulating something inherently bad, if that fails then say state has a compelling interest in passing law. o That has failed in all but one case ← Are there other ways of checking discriminatory state regulation besides judicial review?  Other states could have elected people to Congress to pass laws to preempt NJ law  Institutional Logic - States are represented in Congress and Congress can invalidate inappropriate state laws o But it is not realistic to expect that Congress can police all state and local laws for their burden on interstate commerce – shared oversight between Cong and Courts  Economic argument - The Constitution was supposed to create an efficient national market. Without Dormant Commerce Clause, you’re allowing protectionist state law o Protectionist state laws will decrease national welfare because each state will hoard benefits o Utilitarian Argument – Evaluate total welfare by comparing benefits to NJ landfill users + out of state landfill operators vs. costs to NJ landfill operators + out of state users . Problem – Courts might not be competent to weigh costs/benefits  Political Safeguards - State discrimination against out-of-state interests is problematic because the people negatively affected by the regulation are not represented in the body that makes the decision o But can’t there be virtual representation – NJ’s in state landfill operators provide virtual representation in NJ for out of state waste producers o Out of state interests can give money to NJ campaigns ← ← Second Category – Facially Neutral Laws with Disproportionate Adverse Effect on Commerce

← Pike v. Bruce Church (1970)  AZ statute requires AZ-grown Cantaloupes to advertise their state of origin on each package. Church as an AZ grower but packaged them in CA. Compliance with the requirement would have cost $200K  NOT discriminatory because even though it’s made to negatively affect out of state business, it’s not facially discriminatory

37 o Disadvantage does not equal discrimination – states have a legitimate interest in protecting

their growers. Effects on out of state are incidental  Test – Interests of state vs. interests of private party? o How important is it to AZ to have this sticker on the cantaloupe vs. how important is it for Church to package his cantaloupes in CA?

o This is an as applied challenge – the $200K burden on the small grower does not justify the

law . Because the inquiry is fact sensitive, cases come out 50-50 in this category  Scalia declines to participate in Pike balancing because he thinks it’s outside court’s institutional competence – it’s a task for Congress o Politics may be a more appropriate substitute here because Church lives in AZ, he’s not an out of state interest ← Third Category – Market Participant Exception

 Exception from facial discrimination when the government acts as a private business would – buyer/seller of goods/services or engages in a program of subsidies to aid in-state businesses o Market Participant doctrine allows states to favor its own residents in courts of its dealings o Is the state action something unique to states or is it something a business could do? If it’s something a business could do, law is OK ← South Central Timber v. Wunnicke (1984)  South Central is a timber buyer that ships elsewhere for processing; AK says they’ll sell their timber, subject to the condition that the buyer process timber in AK.  Dormant Commerce Clause applies to everything states are doing that involves interstate commerce – it doesn’t matter if it’s a state contract or laws/executive order  Market Participant Exception does NOT apply here because AK is attaching conditions to sale of timber – private businesses can’t do that o Conditions are limited to the market they’re in; this put limitations on downstream o Wal-Mart can’t tell you what to do with an item after you buy it o There needs to be some limitation to market participant exception  History:

o Alexandria Scrap – MD imposed more stringent documentation requirement on out of sate

scrap processors. MD was purchaser of scrap and they’re allowed to favor their own citizens in the market

o Reeves, Inc. v. Stake – SD policy of restricting sale of cement to state residents is ok – in

business, you can deal with whomever you want . Commerce Clause scrutiny may be more rigorous when foreign commerce, a natural resource, and restrictions on resale are present, as they are here

o White v. Massachusetts – Boston requirement that all public construction projects be

performed by at least 50% city residents is ok  Since this case isn’t a market participant exception, it goes into category 1 or 2. Since its discriminatory, it goes into category 1 and is per se invalid

38  If you’re AK and you want to protect in-state processing interests: o Limit sale to companies who have processing plants in state o Directly subsidize processing industry in AK o Process logs themselves with state producers then sell it

o Congress could pass a law saying timber from AK can only be processed in AK

. Content of the law here isn’t problematic, it’s the fact that AK passed it ← -Market participant exception does NOT apply in Pike because AZ wasn’t selling cantaloupes; nor in Philadelphia because NJ is telling private parties how to deal with trash – that’s acting like a state ← -Justification for Market Participant Exception  Text – Subsidies are not regulations o Issue of distinction between tax and subsidy  Investment Capture – allows a state to capture benefits of citizens’ tax investments  States have entitlements to dignity and to be treated fairly – must be given same advantages to be competitive in business ← ← PREEMPTION  If federal law preempts state law, the state law is essentially vetoed  Look at what Congressional sand state law were trying to do  No limitation on preemption if its within Congress’ constitutional powers  Two categories – express and implied preemption o Express – Law says we’re preempting state law (ERISA preempts state law on retirement provisions) o Implied

. Implied occupation of regulatory field (Field Preemption) – Scheme of federal

regulation may be so pervasive as to make reasonable the inference that Congress left no room for states to supplement it

 Is the area traditionally done by Federal Government (e.g., foreign affairs –

Crosby)?

 Raich – Is law (CSA) so broad that by its nature it preempts?

. Conflict preemption – Is there any way to abide by both federal and state law?

 If it’s impossible to comply with both, state law is preempted

39 ←

40 IV. Separation of Powers

 Federalism is the vertical separation of powers (Federal/State)

 Separation of Powers is horizontal (among branches)

o Designed to constrain government, not to make it work faster (safeguard from tyranny)

o Separation isn’t airtight – powers are blended. Congress legislates but President has veto; President can make treaties but Senate ratifies

← Legislative Authority over the Executive Branch ← Bicameralism and Presentment – Art. I § 7 – Bill passed by both houses goes to President to sign or veto. If he vetoes, it goes to house where it originated where they can override it with 2/3 vote ← ← Appointments – Art. II § 2 – President has power to make treaties, appoint ambassadors, public ministers, judges; Senate must ratify by 2/3 vote. Congress may give power to appoint inferior officers to the President, Courts, or Heads of Departments ← ← First line of cases – What can Congress do to the President?  Non-Delegation – Theory that Congress may not constitutionally delegate its legislative power to another branch. Congress can delegate some authority but it has to provide limitations o Not since New Deal has a court struck down a non-delegation case  Non-Delegation is weaker in foreign affairs – President has sole power to speak for US  Executive has grown a lot more than Congress – Congress attempts to control executive lawmaking and the personnel of the executive branch  Congress has two ways to control executive action – control the way the laws are made or retain control over executive officers’ jobs ← ← How Can Congress Affect the Way Laws are Created?

← Based on Chadha, Clinton, Court won’t permit that much formal discretion for Congress to change the way a bill becomes a law ← Ins v. Chadha (1983)  Immigration and Nationality Act gave the House the power to invalidate decision of Executive Branch (Attorney General) in suspending deportation of an alien o Chadha had overstayed his student visa. AG suspended his deportation but House “vetoed” this under the statute

41 o The “One House Veto” was common in statutes at the time  Issue – Once Congress has empowered a member/agency of the executive branch to act, can they regulate it by use of a One-House veto?  Rule – Presentment and Bicameralism clauses require involvement of both Houses and President before creating a law – this is exclusive o Bicameralism – This is only one house doing it; not House + Senate o Presentment – Executive never had a chance to handle this  A law is an exercise of Legislative Power if it “had the purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the legislative branch”; if this is the case, then “laws” are being made all of the time without satisfying Presentment and Bicameralism requirements o The House was clearly altering the legal rights/duties of Chadha – deporting him! o Only way to disagree with AG’s decision is through bicameral passage and presentment to President . Congress must abide by its delegation of authority until it’s legislatively altered or revoked  One House Veto is Unconstitutional  Not every action taken by Congress is subject to bicameralism/presentment requirements

o Example – Honoring Jazz as National Language is symbolic and not legislative – not subject

to presentment/bicameralism  Berger looks to history/text ( formalism ) o When framers gave one house authority to act alone, they did it narrowly and precisely – House starts impeachment, Senate conducts trial, ratifies treaties, appointments o No support in Constitution or precedent for proposition that delays encountered with complying with Constitutional standards may be avoided, either by Congress or President  White dissent ( pragmatic )

o We have legislative veto because House can’t legislate everything

o It makes House relevant by securing accountability of executive and independent agencies o Without the veto, House has a catch 22 – refrain from delegating authority, leaving itself with the task of writing specific laws (leaving major national police problems unresolved), or abdicating lawmaking function to Executive branch/agencies (policymaking by people not elected to do so)  What can Congress do to check the executive branch after Chadha?

o Congress can pass clearer laws to constrain executive discretion – never give AG power to

overrule deportations in the first place o Congress can cut funding for an agency o Congress can exercise oversight by holding hearings and embarrassing officials o Congress can advise and consent and determine who will be an executive official

42 ← Clinton v. City of New York (1998)  Line Item Veto Act gives president power to cancel (1) any discretionary budget authority; (2) any new direct spending; (3) any limited tax benefit. President must send message to Congress notifying it of cancellation. They can then pass a disapproval bill to “override” the cancellations that must past both houses and be presented to President

o Chadha is Congress giving themselves more power; this is about Congress giving President

more power  Issue – Is Line Item Veto Constitutional?  Presentment and Bicameralism Clauses are central issues again

o A Veto takes place before a bill becomes a law and is of the entire bill; this is after bill is law

and is only for part of it o Constitution is silent on subject of unilateral presidential action that repeals/amends part of statutes ~ express prohibition o This is president making laws without going through bicameralism/presentment!  Scalia believes that Line Item Veto isn’t much different from what’s done today – it’s Congress delegating to President to “fill in the gaps” o Line Item Veto is different than President’s authority to decline to spend appropriated funds, this gives president unilateral power to change text of statutes o Division between text/structure (Stevens with bicameralism/presentment) vs. this is a delegation (Scalia)  Breyer – Looks at Constitution and says nothing about line item veto is expressly out of bounds. Turns to separation of powers principles and says this doesn’t violate any o Prudential arguments – Line Item Veto can equate branches under current circumstances

o His dissent is like White’s dissent in Chadha – What works in light of circumstances, equates

branches ← Applying Chadha & Clinton – Signing Statements  Depends on what legislative action is. If it was legislative in Stimulus Bill that Obama can decide to spend money or not and he makes a signing statement pursuant to it, that seems OK  Issue with challenging signing statements is standing to sue – it’s unclear their legal affects so we don’t know who can sue ← ← ← How can Congress affect the identity of the officials enforcing the laws? -Appointments and Removal  Appointments o Appointments Clause sets rules for how somebody becomes a federal officers

. Superior Officers – Appointed by President with advise/consent of Senate

43 . Inferior Officers – Congress can give power to President, Courts, or Department

Heads to appoint  They CANNOT give themselves the power to appoint

o To decide if someone’s superior or inferior, look to how important they are – Job

description, length of appointment, breadth of authority  Removal

o Appointments clause says nothing about removal. Maybe it follows appointments clause

(whoever can appoint can remove) or perhaps it’s ambiguous and Congress can do what it wants o Two different removal cases – . Where Congress wants to remove the person themselves  Myers . Where Congress wants to limit the conditions under which other actors can fire officials  Humphrey’s Executor

o Form vs. Function – If officer is strictly doing executive action, then executive alone has

power to remove. If its mixed, then Congress can have some input

o For executive officers, Constitution doesn’t give Congress an active role in supervising

officers – Once the appointment is made/confirmed, their participation ends (unless impeachment) - Bowsher

o Distinction between executive and legislative actions/officials remains, but in Morrison the

Court indicates another consideration is the functional control exercised by President rather than the nature of the official’s responsibilities, centering on whether Congress can remove the official (more problematic) or limits the conditions under which others can remove the official (less problematic)

. A double layer poses a separate and significant problem (PCAOB)

← Myers v. United States (1926)  Court held that a statute saying removal of postmasters must have advise/consent of senate is unconstitutional  Statute is problematic – If you’re in charge of executing the laws, then you need to have control over the people who execute the laws  Test – Look at what the officer is doing. If it’s something executive, then executive has power to remove ← Humphrey’s Executor v. United States (1935)

 Congress could limit President’s power of removal of FTC Commissioners to removal for cause – o Congress trying to limit conditions of removal on someone else  FTC Commissioners do legislative and judicial functions – make rules and adjudicate cases o Different mix of functions – not exclusive “executive” o They decide and implement the rules so it makes sense that multiple branches may have influence in removal

44  It’s the same rule as Myers – look at Form vs. Function. But here, there’s a different function

o Thus, Myers becomes limited to purely executive officers

← Bowsher v. Synar (1986)  Comptroller General – House/Senate makes a short list and President picks one

o Act says he’s removable by impeachment or joint resolution (for inefficiency, neglect of

duty, malfeasance) o He’s to remain an independent actor – substantive and procedural limitations for removal  Rule – Constitution doesn’t give Congress an active role in supervision of officers charged with execution of laws it enacts. Once the appointment is made/confirmed, Constitution says removal upon conviction (impeachment)  Holding – Strikes down a scheme that reserved for Congress the power of removal of an officer charged with execution of the laws, except by impeachment  This is decided on Removal issue but there’s appointment issues as well – he’s appointed with advise/consent of senate but through a list of three names o Maybe limiting list of names is part of “advice”  Is Comptroller General doing legislative stuff? o He’s making discretionary decisions – it could be argued that this is legislative in nature (and Congress would have some role in removal)

o If it’s legislative in nature, this poses a problem under Chadha because CG would be making

legislative decisions without bicameralism/presentment ← Morrison v. Olson (1988) – Independent Counsels  Morrison was appointed to investigate possible obstruction of congressional investigations. Ted Olson was subpoenaed and moved to quash it on ground that Independent Counsel Act was unconstitutional o Act required Attorney General to investigate possible criminal violations. He then reported to special division of D.C. Circuit to see if further investigation is needed. If so, AG applies to special division to appoint Independent Counsel o IC is removable by AG only for good cause  Appointment Issue – o If Morrison is a principal officer, you need presidential appointment + advice/consent o If she’s inferior, anyone non-Congress can appoint – Court thinks she’s inferior . Jurisdictional (limited duties) and time (office was temporary) limitations

. Scalia thinks principal officers because it’s precisely the discretion and independence

of the independent counsel that makes them principal – their decisions are unreviewable o Because she’s inferior, it’s OK for a three judge panel to appoint her  Removal Issue –

45 o Act says limited removal by AG (procedural limitation) for cause (substantive) o Majority is concerned with whether Congress reserve the power to remove the person themselves, or if they’re limiting power of someone else to remove . Statute is not problematic because Congress lets executive branch remove, but puts restrictions on removal – that’s OK . The “good cause” restrictions don’t impede on President’s ability to do his job

. This modified Myers test

o More problematic from Separation of Powers perspective if Congress is taking executive

power than if they’re limiting exec’s power  SCALIA Dissent – VERY prophetic because independent counsels weren’t as widespread as they are later, during Clinton. They do wind up becoming quite important – Ken Starr’s jurisdiction kept expanding and his tenure wasn’t as limited o He believes law should be unconstitutional because “Executive Power shall be vested in a President” means ALL executive power . Criminal prosecution is a purely executive power . Primary check against prosecutorial abuse is political – prosecutors who exercise discretion are selected/removed by President. When crimes aren’t investigated, President pays political price ← ← ← ← ← ← Free Enterprise Fund v. PCAOB (2010)  From SOX, PCOB is composed of 5 members appointed by SEC. SEC can remove for “good cause”, President can remove SEC commissioners for “inefficiency, neglect, malfeasance” o They’re performing executive functions  Appointments Analysis – o It’s OK for SEC to appoint because they’re inferior officers – not many officials, nothing they do has any binding legal effect, can’t do much without SEC  Removal Analysis – Court strikes down removal provisions of SOX

o They perform executive functions but president doesn’t have any control – there’s a double

layer of oversight that Court says is not OK . POTUS can’t hold SEC accountable for PCAOB’s conduct to the same extent that he may hold SEC accountable for what it does – this impacts his ability to execute the laws

o Congress could put limitations on removal for president to remove PCAOB (Morrison) but it’s

the double layer of removal that makes it problematic

46 ← US Attorney Legislation  President shall only be able to terminate U.S. Attorneys for serious and gross misconduct  Under Myers line of cases – unconstitutional because it’s an executive function

 Under Morrison – Constitutional because it limits executive, not takes away power from executive, giving it to Congress ← Presidential Czars  Russ Feingold puts Presidential Czars into three categories: (1) Created by statute with advise/consent; (2) Positions that report to a Senate confirmed officers; (3) People in White House itself o (1) Category 1 is constitutional if the officer is principal

o (2) Appointed by president, subject to control of cabinet officer – This is OK, Congress has

delegated the appointment of these inferior officers to president . If they’re principal officers, then it’s problematic (you need advise/consent) o (3) This is a larger group, WH staffers – Appointed by president and not subject to control of cabinet secretary. Obama alone hires and fires . If they’re principal officers, Senate should have more input  Category 3 may not be an “officer” of the US – thus far we’ve focused on people with lawmaking powers, sometimes people are staffers – immune from appointments clause o But, Congress determines President’s executive budget – how much his staffers get paid ← ← Executive Power Fundamentals ← What can President do to constrain other branches of government? ← Youngstown Sheet & Tube Co. v. Sawyer (1952) – The Marbury of executive power  During Korean War, dispute arose around collective bargaining between steel owners and employees. There was notice of a nationwide strike and as steel was indispensible to war, Truman seized the steel mills. The next morning, he told Congress of his action and Congress did nothing  Quick procedural history – it gets to SCOTUS really fast  Black’s Opinion – Textualist/Formalist Approach - President’s power must stem from an act of Congress or Constitution o Statutes . Selective Service Act – Truman didn’t claim that as his authority to act . Taft-Hartley – There was an amendment debated authorizing government seizures but it was rejected o Truman relies on his Constitutional Power

47 . Commander in Chief clause – part of war effort, etc.  Does not extend domestically . Take Care Clause (President should take care that laws are faithfully executed) and Vesting Clause (Executive power in President)  Do not comprehend this type of legislative action  Black’s majority opinion says President is legislating by seizing steel mills, not acting as an executive. Congress could do this (Commerce Clause power), not the President

o He’s directing Secretary of Commerce – that’s not executing laws and it’s not involving

Commander in Chief power  Jackson’s Concurring Opinion – This is what becomes the law!

o Three Categories (but perhaps it’s a spectrum, as said in Dames & Moore)

o First put the case in a given category, then ask whether the act is Constitutional given the categorization . (1) Acting pursuant to Congressional Authorization

 President’s power here is almost unlimited, only way an action here will be

unconstitutional is if the action violates another part of the Constitution (Reid)

 Can get here through treaty (Missouri v. Holland) as well as executive

agreement (Dames & Moore)  President can do by treaty what Congress sometimes can’t do by statute

 Congressional authorization can come explicitly or implicitly (Dames)

. (2) Acting pursuant to Congressional silence  Rarely is this category relevant anymore since there are so many congressional statutes and so Congress is rarely truly silent about an issue  An act here would be 50/50

 Particularly after Dames & Moore, Presidential actions are rarely placed in

this category because courts will look to “general tenor” of the legislation . (3) President acts in the face of Congressional disapproval  Action is unconstitutional unless President can point to specific part of Constitution that gives him the authority to act

 Youngstown action falls in this category – you can make inferences from

rejection of power in Taft-Hartley Act and other congressional legislation o Note that these things are paradigmatic ConLaw principles – it doesn’t mean President can or cannot do something, it just shows framework . If Congressional action says President can’t do something, then he can go get Congressional approval – moves from Category 3 to 1 . This encourages channeling of political activity and cooperation – encourage President to get Congressional approval

48 o Note: There is sparse caselaw when it comes to executive action. It’s usually decided

politically or dismissed as a political question ← ← Executive Power over Foreign Policy – Intro

← Missouri v. Holland (1920)  President and Congress try to protect migratory birds but the attempts fail. As another way to do it, President tries to do it through treaty clause. Missouri sued, saying it infringed on state’s rights o President has power, with advice/consent of Senate, to make treaties o This is different than passing laws via bicameralism/presentment o Article VI says treaties preempt inconsistent state law  Even though this law was unconstitutional via the Commerce and Spending clause, it’ OK through treaty clause – another way of passing Federal Law! o Difference = tighter procedural requirement (2/3 majority for treaties)  The point – Congress can regulate under the treaty power on subjects beyond it’s enumerated power o Something can be Constitutional even if its prohibited elsewhere o This is another way for President to obtain Congressional Authorization (Category 1), this time in a foreign context ← Reed v. Covert (1957) – Strikes DOWN Presidential Action  Even if you make a treaty (Category 1), it can still be struck down if it violates some other part of the Constitution ← Dames & Moore v. Regan (1981)  After Iranian hostage crisis, Carter freezes Iranian assets. When they’re released, Reagan ends all lawsuits against Iran in Federal Court. Dames & Moore sue because they were owed $3 million from an Iranian company  Two issues: Constitutionality of nullifying attachments and extinguishing ongoing litigation

o This is done by executive agreement, not through treaties. For executive agreements, you

need Congressional approval (not 2/3 vote of Senate)

o Question becomes – where does this fall within Youngstown Spectrum?

. Note – This is first case where the Jackson concurring opinion becomes law  Nullifying Attachments

o International Emergency Economic Powers Act says President can regulate any foreign

assets, also the Hostage Act – this is OK (EXPLICIT Authorization)  Extinguishing Ongoing Litigation

49 o No explicit Congressional authorization, but Congressional approval can be implicit from

their actions in other areas . Longstanding practice of governments settling claims to avoid friction . Congressional acquiescence – they’ve known about it but haven’t done anything  This is why Category 2 fades! If there’s a longstanding practice of Congressional silence in the face of Presidential action, that = acquiescence which = approval = Category 1 Obama’s Action in Libya  Congress (trying to get it into Category 3) o Congress has done nothing to approve actions in Libya (no war, no statute) so President can only act if it’s a national emergency on the US (from War Powers Resolution (below)) o Constitutional Argument – Art. I §8 – Congress has power to declare war and raise an army/support troops  President o It’s a category 1 case (or not a category 3 case) because War Powers Resolution applies to “introduction of US armed forces into hostilities” . It’s UN troops  Could also say he’s acting pursuant to treaty power (UN Resolution) . No ground troops (do unmanned drones count as US armed forces?) o If it is a category 3 case, President can act in the face of the War Powers Resolution . Commander in Chief Clause . Too small to be a war over which Congress has any power to declare anything . Congress rarely declares was and has acquiesced in the face of president’s military action  If this case ever went to trial, there would be issues over whether or not it can be decided on its merits

o Political Question – Potential risk for embarrassment to a branch, textual commitment to

other branches

o Congress can also hold hearings, not confirm future appointments, stop paying for it, could

impeach if it’s a high crime or misdemeanor

← ← Executive Power over Foreign Policy – War on Terror ← War Powers Resolution of 1973 (after Vietnam/Watergate) – Insure that collective judgment of Congress & President will apply to introduction of armed forces

50  President can introduce troops only with (1) declaration of war; (2) specific statute; (3) national emergency by attack on the US o President must “consult” with Congress beforehand – unclear what that entails  Within 2 days, President has to submit a report of the circumstances necessitating the introduction of armed forces.  Within 60 days, he has to remove troops unless Congress declares war, passes a statute, or is physically unable to meet  Note – It seems to be a stringent statute but it it’s politically tough for Congress to say no to military efforts; also, President has the institutional capacity with Defense Secretary, Joint Chiefs, etc.  Is it Constitutional? Commander in Chief Clause vs. Congress’ power to declare war/support troops ← ← Emergency Constitutionalism  US doesn’t really have a state of emergency exception to suspend constitution, other nations do  One view 0 Constitution is continuous even in times of crisis (Milligan)  Other View 0 In wartime, all bets are off and executive must have latitude to assume greater unilateral discretion o Lincoln – Are all the laws, but one, to go unexecuted, and the government itself to pieces, lest that one be violated?  Middle Ground – Rehnquist – “Laws will not be silent in time of war, but they will speak with a somewhat different voice” ← ← Presidential Power to Detain American Citizens ← Ex Parte Milligan (1866) – Can a US Citizen be tried before a military tribunal?

 1863 - Congress suspends writ of Habeas Corpus in all of US – Category I case  Milligan, citizen of Indiana, was detained in Indiana for allegedly conspiring against US. He’s NOT a Confederate soldier and Indiana was not a belligerent state o He was convicted/sentenced by military commission but a civil grand jury after the war failed to indict him  Even though suspension of writ was legal (category I case), it could not constitutionally authorize the trial and conviction of a citizen detained during the war by a military tribunal rather than a civilian court o Milligan’s rights were infringed when he was tried by a court not ordained and established by Congress (civilian court) and when he was denied Jury trial  It’s essential that we provide for suspending of habeas but Constitution goes no further – if it had intended so, it would have said so o Even in a Category I case, there are still other Constitutional-based limitations to Presidential action  US Citizen, Civilian Courts Open, Not an unlawful combatant, violated regular law (not law of war)

51 ← Ex Parte Quirin (1942)  German nationals (one is a US citizen) took a boat from Germany to US in German uniforms seeking to sabotage stuff in the US.  FDR proclamation said any subjects of nation at war with US charged with sabotage shall be subject to law of war and military tribunals. o Quirin wants civilian courts with a jury  Court decides to uphold military commissions – distinguishable from Milligan

o They were charged with a violation of laws of war

. We’re actually at war via Congressional declaration

o They’re enemy (unlawful) combatants, not like soldier POWs

. Milligan was part of Indiana militia, we weren’t at war with them

o Much more of a threat on our soil versus on neutral or foreign soil ← Milligan/Quirin factors for trying US citizens before military commissions:  Are civilian courts open?  Was defendant allied with a state with which we are at war?  Was defendant a lawful or unlawful combatant?  What crime was defendant charged with? Violation of laws of war? ← Executive Response to 9/11  After 9/11, Congress passed the Authorization for Use of Military Force (AUMF) – President can use all necessary/appropriate force against those nations, organizations, and persons who planned 9/11  Court hears GitMo cases related to Alien combatants at GitMo, saying district courts must hear habeas petitions (Rasul) but the issue becomes what happens with US citizens obtained in Afghanistan o John Walker Lindh (tried/convicted in civil criminal system) o Yasir Esam Hamdi – Detained in Military facilities. He wants habeas petition ← Hamdi v. Rumsfeld (2004) – Detention if Captured on Battlefield  Case goes to SCOTUS via “next friend” procedure – Hamdi has standing but can’t physically bring it because he’s being held with no access to lawyer.  Issue 1 – Does President have the authority to detain Hamdi (ConLaw I issue)

o AUMF gives President the power to detain – “Detention of those captured on the battlefield

is so fundamental and accepted as an incident to war as to be an exercise of the ‘necessary and appropriate force’ permitted by the AUMF”

52 . AUMF partially repealed the Non-Detention Act, at least as applied to American

citizens captured on the battlefield . Hamdi was arrested doing an act of war in a combat area; Milligan was captured in neutral territory o But indefinite detention is NOT authorized, only for the duration of the conflict (but conflict is indefinite) o Category I case

o Court’s opinion here is a plurality (4) – Justice THOMAS is the 5th vote because he believes

President could detain even if it were a Category III case . We look to the narrowest opinion to find the holding, that AUMF authorized detention . THOMAS views Commander in Chief power as a “ticking time bomb” – President has authority to protect national security and sometimes there’s no time to get Congressional approval but that’s OK o SOUTER Disagrees – Non-Detention Act entitles Hamdi to be released. AUMF is about military power, not detention.

. He relied on a “clear statement” – there’s no clearly expressed Congressional

opinion about detaining Hamdi. If Congress wants President to do something here, they have to do it explicitly not implicitly (differs with Dames & Moore)  No imminent threat, Hamdi’s been locked up for 2 years! . He thinks it’s a category III case – we need government accountability o SCALIA Disagrees – Only way for President to detain is for Congress to explicitly take away writ of habeas corpus

. Commander in Chief power gives no time; AUMF is not a suspension of the writ

 Issue 2 – What are the limitations on the President’s power to detain Hamdi (ConLaw II issue) o Plurality (O’CONNOR) says you need to give some rights, not all

. Balancing test from (Matthews v. Eldridge) - Weigh private interests vs.

government interests (being free from detention vs. ensuring that those who fought with enemy don’t return to battlefield)  Presumption in favor of government, as long as presumption is rebuttable . He must receive notice for basis of his enemy combatant status and a fair opportunity to rebut assertions . But proceedings can be tailored to alleviate potential burden to executive – you don’t need a civilian trial, you can use hearsay evidence and don’t need a jury

o THOMAS (and President’s argument) – If President determines Hamdi is a threat, he can

waive all his rights as he is an “enemy combatant”

o SCALIA/STEVENS – If you don’t suspend habeas corpus, Hamdi gets all rights

← Presidential Power to Try Non-Citizens ← After 9/11, Government announced plans to try certain non-citizen enemy combatants by military tribunals

53  Bush relied on his Commander in Chief Powers and AUMF  C-Certs – Government reviews detainments periodically, giving detainees some rights as a result of Hamdi  Detainee Treatment Act – Congress limited jurisdiction to DC Circuit Court of Appeals ← Hamdan v. Rumsfeld (2006) – Can non-citizen detainees be tried via Military Commission

 Hamdan was Osama’s driver. He’s a Yemini in custody at GitMo. After two years he finally is charged with conspiracy to commit offenses triable by military commissions. He petitions for writ  First issue is SCOTUS Jurisdiction o Detainee Treatment Act limits these issues to DC Circuit, thus leaving open an avenue for an Article III court to be open.

o SCOTUS says they have power to hear this case because they read Detainee Treatment Act

to be prospective – this case existed before the act was passed to SCOTUS has review

. Unlike McCardle where the act was explicit in saying SCOTUS had no jurisdiction

 Court believes the creation of Military Commissions to be a Category 3 action

o In Quirin, Congress established Military Commissions when they declared war

o Here, UCMJ, AUMF, and DTA at most acknowledge an authority to convene military commissions in circumstances when justified under Constitution and laws . Justified during (1) Martial Law (no); (2) Temporary Military government over occupied territories (no); (3) Law of War Commission  Conspiracy charge is NOT triable by a law of war commission o Also, regardless of whether charge is an offense against law of war, military commission doesn’t comply with UCMJ and Geneva Convention . UCMJ – Military Commissions to have same rules as courts martial unless such uniformity is impracticable – nothing says it would here  Different procedural protections and regulations . Geneva Convention –You must afford all judicial guarantees which are recognized as indispensable by civilized peoples  Includes right to be tried in one’s presence, be privy to evidence against you  Holding – Military Commission convened to try Hamdan lacks the power to proceed because it’s structure and procedures violate UCMJ and Geneva Conventions

o Of course, they can still detain him (Hamdi)

o So this channels Bush – he can create military commissions, but he needs Congressional

authorization (BREYER Concurrence)

. Hamdan does not terminate democracy, but it facilitates it and encourages it by

saying Congress can respond and amend the UCMJ (which they did in the Military Commissions Act)  Part of skepticism around these military commissions is “no taxation without representation” – It’s only for foreigners – there’s a skepticism about laws made by

54  Note – A decision the other way would have been huge because then the only way Congress could override the action is by a 2/3 vote  Lawyering o Hamdi/Hamdan . Bush Administration pushed the more extreme argument that courts have no role at all to play, and there is broad inherent executive authority, rather than pointing to statutes, or rather than saying that these matters are reviewable (albeit very deferentially) by courts, arguments for which there is broader agreement  He went too far in his arguments  You could always make a Baker v. Carr political question doctrine argument, but it’s hard to find a textually demonstrable commitment of this case – it’s conflict between Congress and President ← Padilla – 2nd Circuit – Can US citizen arrested in US and detained in US be held indefinitely?  Padilla, American citizen (like Hamdi) was flying from Pakistan and was detained domestically when he landed in O’Hare, originally under a civil material witness warrant. He’s later designated as an enemy combatant  The issue of whether or not he can be detained was raised similarly in Hamdan, Milligan, and Quirin

 Has Congress authorized Padilla’s continued detention (Category I)? No!

o Non-Detention Act says no citizen shall be detained by US except pursuant to act of

Congress o 10 USC §956 (Funding Statute) - Authorizes expenditure of money for POW, nothing more o AUMF – Doesn’t specifically say anything about American citizens domestically. Maybe on battlefield, but not here

. Hamdi (Decided AFTER this case) – Capturing someone overseas might mean they

are more likely to be dangerous, and we’re less worried about what their capture means in terms of anti-civil liberties spillover for regular domestic matters

 This is more like Milligan where there are domestic courts available

. But it would seem obvious Padilla’s more threatening than Hamdi, so being on American soil makes him even more worthy of capture o Congress files amicus briefs saying that in passing AUMF, they meant to authorize this kind of detention

. But in Chadha, for a law to change a right or a duty, it needs to go through

bicameralism/presentment  A later Congressional interpretation is not law  Bush’s Category III Argument o Court gives deference to Commander-in-Chief powers, but separation of powers issues are heightened when used domestically

. Youngstown – Congress, not President should control war domestically

o Qurin doesn’t control because it was a Category I case. It doesn’t speak to whether the

President may impose military authority upon citizens domestically without authorization

o Habeas can always be suspended, but that course of action was not followed here

55  Holding – In domestic context, President’s powers don’t extend to detention as an enemy combatant of a US citizen seized away from combat  On appeal in SCOTUS, Court decides on jurisdictionally grounds saying the petition was improperly filed in SDNY, it had to go in SC (he was detained there for most of the time). He winds up getting transferred to civilian court ← ← In Re Guantanamo Bay  17 Uighur detainees are captured and they alleged their detention is unlawful. US admits they’re no longer enemy combatants but Bush says its too soon to release them o Bush is basically saying you’re right but you get no relief  A right to bring a habeas petition—plus the “judicial power” granted to courts in Article III—seems to require that if you win your habeas petition a court will grant you an actual remedy  “Wind Up” Authority ceases once (1) detention becomes effectively indefinite; (2) reasonable certainty that petitioner won’t return to battlefield; (3) alternative legal justification has not been provided for continued detention o But what about in this case, where the actual remedy might violate other parts of the Constitution (Congress’s control over immigration, the President’s role as Commander-in- Chief)? ← Justice Department Wiretapping Memo  Because Al Qaeda poses a risk and wiretaps are part of the defense, NSA can intercept a communication if there’s reasonable basis to conclude that one party has something to do with Al Qaeda o It’s monitored for legality, reviewed every 45 days, only for international calls  One issue is standing – people can’t bring suit if they don’t know they’re being tapped  Is it a Category 1 case? o AUMF o Historical argument – wiretaps have been authorized by Presidents since FDR  What if it is a Category 3 case? o Maybe as part of being the Commander-in-Chief the President needs to obtain information about those trying to harm the United States . Structural advantages in having president do it ← National Security Courts  They might bring specialized expertise to the discussion (draw from a pool ofwatwa federal judges with a permanent staff and special security clearances) – like special courts for tax, patents, etc.

o But do we need specialization in this area? And do we already have it because so few courts

deal with these cases (DC, SDNY)  They might better protect intelligence information (some procedural protections but not all – like O’Connor’s opinion in Hamdi) o But what is the matter with closing procedures in regular civilian courts?

56  Would these courts be captured by certain repeat players, because there would be a selection bias leading to the appointment of those with a more pro-government background and perspectives? o Also in regular courts we’re worried about the coherence of courts—same people deciding across vast arrays of law. If you cut off one area, it ruins the coherence ← ← Executive Power over Foreign Policy – War on Terror & Judicial Process

← State Secrets Privilege  An example of executive power that segues into privileges and immunities

 Rule (from US v. Reynolds (1953)) – US may prevent disclosure of information in a judicial proceeding if there is a reasonable danger that such disclosure will expose military matters which, in the interest of national security, should not be disclosed  Three Prongs: o (1) Procedural Requirement . Must be asserted by US, via a claim lodged by head of department which has control over the matter after he personally reviewed it o (2) Is information privileged under the doctrine?

. If there’s reasonable danger, information should not be divulged – deference to the

executive! . In some situations, a court can do an in-camera review

. After information has been determined to be privileged, it is absolutely protected

from disclosure, regardless of countervailing interests o (3) Going Forward, How should claim proceed after privilege is determined? . If proceeding involving state secrets can be fairly litigated without resort to privileged information, it may continue. If it can’t, then dismissal is appropriate  State Secrets privilege provides exceptionally strong protection because it concerns areas of Art. II duties in which court have traditionally shown utmost deference to Presidential responsibility o President’s constitutional authority is at its broadest in realm of military/foreign affairs ← ← El Masri (4th Cir.)  El Masri sues civilly Tenet, CIA, and private corporations that were involved in his rendition. His claims are violation of 5th Amendment right to Due Process; Claims related to Alien Tory Claims Act including prolonged arbitrary detention, cruel punishment  He says no state secrets doctrine because CIA rendition operations were discussed in public forums  State Secret Test:

o (1) Privilege was asserted by Tenet (head of department), NOT by the corporation – US

intervenes to assert privilege

57 o (2) The heart of his case is that facts have been made public, but trying a case in court is

different than in the court of public opinion. CIA would have to disclose confidential information about their rendition program, as well as any possible defenses o (3) Complaint can only be proven by showing how CIA organizes, staffs, runs its most sensitive intelligence operations; CIA’s defenses are embedded in this information as well  Case Dismissed  Note – Inconsistency with Marbury o “For Every Right, there is a remedy” – because of privilege, the protections afforded to El Masri don’t apply and the claim is ousted from federal courts  Court is declining to enforce a federal statute because the President has asked them not to  Exceptions to Marbury, Chadha o Maybe it’s every right has a remedy except for those that aren’t excluded by political questions or state secrets doctrine o Maybe it’s a bill must become a law via bicameralism/presentment, except those excepted by state secrets doctrine Al Aulaqi  Targeted killing suspect. His father brings lawsuit to stop from killing him without any process and to disclose the targeted killing program  Before we looked at this as a political question issue. It’s also a state secret issue Al Aulaqi (P) Argument Government (D) Argument Information is already public – no additional harm The public stuff is broad information, it’s not in allowing him to sue based on that information about the actual procedures/methods/sources Death is different! This isn’t like El Masri who Poses a problem under steps (2) and (3) – they wants monetary relief need specifics State Secret privilege has been recognized since earliest days of US ← ← Mohammad (9th Cir.) – On Cert to SCOTUS  Extraordinary rendition program with five plaintiffs. They sue Jeppesen Dataplan, a contractor under the Alien Tort Statute for forced disappearance and for torture  Court does NOT believe that this case (they should have known this action was wrong) is apt for the Totten Bar to apply – when they very nature of the action is a State Secret; they apply the Reynolds test instead o (1) The Government intervenes and follows procedure for asserting doctrine o (2) Government asserts privilege regarding information on whether Jeppesen assisted with CIA; whether foreign governments collaborated; the scope of the program

. Court reviewed evidence and reluctantly decides for the government

o (3) Lawsuit can’t go forward because information is so important to proving liability/allowing for defenses

58 . Court can’t give reasons why the information is really secret because of the need for secrecy  Non-judicial relief the Plaintiffs can seek out: o Reparations (like they did with Japanese during WWII) . But this may be overstepping the President’s authority in an ongoing military effort o Congress can investigate the Executive Branch o Enact Private bills – refer case to Court of Federal Claims o Enact Remedial Legislation  Note – Totten Bar – Difficult to apply, only been used three times

o Is the very nature of the subject matter a state secret?

o One of the reasons SCOTUS is hearing this case is because of a circuit split. The 4th Circuit

in El Masri conflates the Totten Bar and Reynolds Privilege ← Proposed State Secrets Legislation  Trying to regulate procedures by which state secrets are made; provide for appointing of special masters to help them evaluate the information they’re given  Is it a good policy change? o Gives plaintiff “something” – they get substituted information that might not infringe on national security and can allow you to push your case forward  Does it infringe on judicial power? o Congress is creating rules regarding how the court can proceed; it’s not denying access to courts nor denying SCOTUS jurisdiction . It’s like a rule of evidence regarding what to do with state secrets o Special Masters – may be problematic if they’re like an Article III judge (making decisions); but if he’s advising it’s presumably OK . Depends on the specifics – when do they get to the level where they’re an “officer”? Then we have appointments clause issue  Does it infringe on executive power? o Provides boundaries but still allows President to have ultimate discretion in raising the state secrets privilege

o It might go too far in impinging on Commander in Chief Power if Congress were to say he

can never raise state secrets privilege ← ← Executive Power, Privilege, and Judicial & Legislative Process

59 ← The Constitution says Members of Congress are privileged from arrest during their attendance, but no such privileges or immunities are explicitly in the Constitution for the President  When is the President subject to the legal process of other branches of government, either to submit information or to be held civilly or criminally liable?  These cases vary on four different fronts:

o Informational privileges or liability immunity?

. State Secrets is an informational privilege

. US v. Nixon is about informational privilege

. Clinton v. Jones, Nixon v. Fitzgerald are about immunity from suit

o Civil or Criminal Liability? o Privileged or Immune from what? Judicial or Congressional Process

. Clinton, Nixon were about Judicial Process

. The Harriet Miers stuff is about Congressional Process

o Is conduct that’s being litigated official or private conduct?

. Nixon v. Fitzgerald – Official Conduct

. Clinton v. Jones = Private Conduct before presidency

o Also – How far does the privilege extend? To the President himself? To advisors?  Not a lot of law on this! Even though it’s been around for a while, it rarely goes to trial ← United States v. Nixon (1974) – Informational Privilege, Criminal Proceeding  After Watergate, Nixon is subpoenaed by Special Prosecutor and Nixon moves to quash it  This is an informational privilege. o It’s still an open question of whether a President can be charged with a crime while in office  Nixon is important for judicially recognizing that some kind of executive privilege (not explicitly in Constitution) exists. Presidents since Washington have used it but it was never before recognized

o Comes from separation of powers because to be a separate branch, you must have control

over the information in your branch

. But this logic extends to other branches – Maybe different because there’s only one

Executive  Court – There is such a thing as executive privilege to withhold documents, but it must be balanced against other considerations (no absolute privilege):

60 o For disclosure:

. There’s no claim of needing to protect national security secrets

. Difficult to accept the argument that important interests of confidentiality of

Presidential communications is diminished by production of material for at least an in camera inspection

. This is a CRIMINAL PROCEEDING

o Against Disclosure - Nixon – General Confidentiality

. Subpoena should be quashed because it demands confidential conversations between a President and his close advisors that it would be inconsistent with public interest to produce

o Strongest Argument for (criminal proceeding) vs. a weak argument against

(general confidentiality) – No privilege here  Judicial Review is important here because there’s different things Congress and the Courts can do. o Congress can impeach , but that doesn’t put him in jail – court can put him in jail

o Political remedies don’t always serve as a check on assertions of executive privilege

 Shows how powerful SCOTUS is – this decision essentially brings down Nixon’s presidency  Unresolved questions – What if president asserts a more specific interest in confidentiality? What if crimes being investigated were minor? ← Nixon v. Fitzgerald (1982) – Civil Suit, Official Conduct  Fitzgerald wants money for lost wages arising out of Nixon’s official conduct as President  Court says the President is absolutely immune from civil damages for his official acts, at least in absence of explicit affirmation from Congress  Considerations:

o Threat of suit may chill or affect President’s execution of his official responsibilities

o Suit may occupy much of President’s time that can be better spent doing his job

. Unique Constitutional position of the President – it’s just him in the Executive

Branch  White’s Dissent – He wants more of a functional rule – A civil case can’t go forward if it would substantially impair president’s official responsibilities; doesn’t like blanket immunity ← Clinton v. Jones (1997) – Civil Suit, Private Conduct before Presidency  Paula Jones seeks to recover damages from Clinton based on sexual harassment, IIED allegations before his term began  Nixon v. Fitzgerald does not hold here because this isn’t Clinton’s official conduct o Historical practice is also inconclusive

61  Clinton wants temporary immunity – he looks to structural arguments o Anything that takes President away from being president is a source of Constitutional Concern – Unique Constitutional position of the sole Executive  Court is not persuaded by the structural arguments because there’s not really a threat of frivolous lawsuits o Only 3 sitting Presidents have been sued civilly for private action o Assumption that what came before will come after – is this true in this day of Glenn Beck?  Even if there was frivolous lawsuits, Court can manage it o Most frivolous litigation is terminated at pleading state or at Summary Judgment, or ended with threat of sanctions o If it does need to go to discovery, court will work around President’s schedule  Holding – Permitting civil lawsuits for unofficial actions against a sitting President would NOT be a major distraction o BREYER (concurring) isn’t so sure about this… ← Nixon and Clinton are statements about judicial power!

 If US v. Nixon comes out other way, Nixon serves 2 full terms

 If Clinton v. Jones comes out in favor of Clinton, Clinton is never deposed, he never perjures himself, there’s no impeachment ← U.S. Attorney – Harriet Miers Situation – Informational Privilege for Advisors from Congressional Inquiry  House Judiciary Committee wants Harriet Miers, former Counsel to the President, to appear before them regarding the resignation of several US Attorneys in 2006, Bush claims executive privilege o Committee votes her in contempt of Congress which gets the case in Federal Court to compel the subpoena  Miers (Bush) Rationale o Administrations of both parties have said President and his advisors are immune from testimonial compulsion . But cabinet secretaries testify before Congress a lot

. President himself could be forced to give over certain information (US v. Nixon)

o Separation of Powers – President can’t compel Congressmen to appear before him, they can’t compel him to appear before them – same principles apply to advisors o It would undermine executive privilege to compel her testimony because her roles and responsibilities are essential to President’s job  Usually there’s some kind of political settlement but here there is a decision o Unanimous opinion on D.C. Cir, they say case is moot because the later Congress may decide to withdraw the contempt order

62 . But every election runs risk of power changing hands!  Ways to get courts to prevent deciding this case on the merits: o Political Question! Central political actors involved, branches in conflict, etc.

o How important is information to functioning of Presidency vs. how important does Congress

need it? Issa Request  Darrell Issa wants information for the Government Oversight Committee from the Office of Special Counsel

o Office of Special Counsel is an independent part of the Executive branch

 If this goes to court, Issue is how far does the privilege extend? Does it extend to executive agencies that are independent from the President? o Different from Miers who was helping the President directly

63 Rules and Statutes

64 22/10/2012 01:54:00

← Everything in the exam is there for a reason! ← There’s no “clear” right answer – address the ambiguity!  Analyze! Think! ← ← Advantage of spending clause – don’t need to create agency, hire people  They have to pay for some, but not all because they’re not enforcing all  Maybe you want people in the local areas enforcing it – they know it better ← ← Critique of NY/Printz is that it’s indistinguishable from spending clause

 NY/Printz would say that in spending clause, at least you can say no – it’s a contract

 There’s no veto option in Printz/NY

← ← For Youngstown, the law needs to be valid to be in Category 1 – only for valid Congressional laws! ← ← Substitution effects – you can regulate for intrastate because it’s substituting for the interstate conduct ← ← Al Aulaqi overlap between state secret and political question – it’s likely Gov’t will raise both because of the issue itself  Result in favor of it is the same – case can’t be resolved on the merits  State secret doctrine “sells” better than political question

← State judges can be commandeered (Art. VI) but not state legislatures ← ← §5 of 14th Amendment – Congruence and Proportionality  Right & Remedy ← ← Can US Citizens captured abroad be tried by military commissions? Yes, under certain situations