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I. Constitutional Structure

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I. Constitutional Structure I. CONSTITUTIONAL STRUCTURE - Article III does not give the federal courts the right to judicial review A. Judicial Review Marbury v. Madison (1803) - pg. 2 - Est. judicial review - fed executive subject to judicial orders, fed judic can strike down laws of congress B. Congressional Power 1. Introduction - Necessary and Proper Clause - Article I § 8 [18] - congress has all powers necessary and proper to carry into execution the powers const granted McCulloch v. Maryland (1819) - pg. 101 - Federal law is enumerated - 10th Amend does not say just “express”, subject to interpret - Article I § 8 - when enumerated power exercised, federal will always trump state law 2. The Commerce Power Commerce Clause - Article I § 8 [3] “Congress shall have the power to regulate commerce w/foreign nations, and among the several states, and among the Indian tribes” Three main questions in commerce cases: 1. What is commerce? 2. What is “among” the several states? 3. Is there a 10th amendment zone of authority? The Four Eras of Commerce Clause Jurisprudence: 1. Early American History - 1890’s = broadly defined but minimally used 2. 1890’s - 1937 = narrowly defined and used 10th amendment as a limit 3. 1937 - 1990’s = expansive scope and refusal to use 10th amendment to limit 4. 1990’s - current = narrowed scope and 10th amendment as an independent, judicially enforceable limit a. Early American History - 1890’s: Define the Commerce Power Gibbons v. Ogden (1824) - pg. 113 - YES, can use FCP - For commerce to be “among the several states” use “intermingled” approach - concerns more than 1 state - Enumerated presupposes something non-enumerated - completely internal commerce of a state b. 1890’s - 1937: A Limited Federal Commerce Power Three Doctrines in this Era: 1. narrowly defined “commerce” 2. applied restrictive conception of what is “among the states” 3. Congress violates the 10th amendment when it regulates matters left to state governments 1. What is “Commerce”? United States v. E.C. Knight (1895) - pg. 117 - NO, cannot use FCP - Commerce is limited to trade between two states - does not include manufacturing Carter v. Carter Coal (1936) - pg. 118 - NO, cannot use FCP - Commerce is “intercourse for the purposes of trade” - transportation, purchase, sale, and exch commod - Does not include production or mfc, just trade - even if “leading up to” trade 2. What does “among the states” mean? Shreveport Rate Cases (1914) - pg. 120 - YES, can use FCP - Congress may regulate intrastate transactions if they affect interstate commerce - When affecting interstate commerce, affects both fed and state - so fed should trump ALA Schechter v. US (1935) - pg. 122 - NO, cannot use FCP - Stream of commerce only applicable while still in the stream - here, already out of stream in final dest - Restricts Congress to only intrastate matters with a “direct effect” on interstate commerce, not “indirect” 3. Does the 10th amendment limit congressional powers 10th amend - Powers not delegated to Fed nor prohibited to the States are reserved to the States Two approaches of interpreting 10th: 1. Reminder to Congress that they are limited to Constitutional rights - not a separate constraint (Gibbons) 2. Reserves a zone of activity to the States for exclusive control - cannot be intruded upon by Fed Hammer v. Dagenhart (1918) - pg. 125 - NO, cannot use FCP - Uses second approach - 10th amend prevents Fed from intruding on State zone of activity (labor laws) - DISS - MFC of goods to be sold in other states should be considered interstate commerce Champion v. Ames (1903) - pg. 128 - YES, can use FCP - Morality (lottery) allows limit of interstate commerce - 10th amend fails - more obvious IC than Hammer c. 1937 - 1990’s: Broad Federal Commerce Power - Depression Era - FDR in power, upset with court preventing New Deal legislation - From 1937-1995, not one federal law was declared unconst for exceeding commerce power 1. Changing the FCP NLRB v. Jones & Laughlin Steel (1937) - pg. 131 - Commerce power extends to activities with “close and substantial relation to interstate commerce” - Power to regulate commerce is power to enact all appropriate legis for its protection or advancement United States v. Darby (1941) - pg. 134 - Overrules Hammer - Commerce also includes production and MFC, not just trade - Claims 10th amend is just a truism to allay fears of states - 1st approach - no State zone of activity Wickard v. Filburn (1942) - pg. 136 - Substantial economic effect on IC - effectively makes FCP unlimited - here, farmer growing own food 2. Meaning of “commerce among the states” Three areas for considering the meaning of “commerce among the states”: 1. Civil rights laws 2. Regulatory laws 3. Criminal laws Heart of Atlanta Motel v. US (1964) - pg. 139 - Hotel discrim against blacks affects interstate travel/commerce - no 14th for discrim in private actions Katzenbach v. McClung (1964) - pg. 141 - Again morality issues of racial discrim prevented by extending commerce clause to “affects” of IC National League of Cities v. Usery (1976) - pg. 145 - Applying FCP directly to States is limited by 10th when integral operations of traditional govt function Garcia v. San Antonio Transit Authority (1985) - pg. 148 - Overrules Usery - 10th is truism again - unworkable standard to determine what is trad vs. non-trad func - Process federalism - Congress elected to rep States - won’t enact legis unfairly impeding state power - DISS - PF won’t work, Congress won’t police itself as Fed members when it comes to State rights d. 1990’s - Present: Narrowing of FCP and Revival of 10th as Constraint 1. What is Congress’s authority to regulate “commerce among the states”? United States v. Lopez (1995) - pg. 153 - Reverses trend of allowing tenuous “substantial effects” - raises rational basis to actual subst effects test - Gun control near schools no subst effect - infringes on State police power United States v. Morrison (1996?) - pg. 165 - Rape case - more facts but still not enough for subst effect - not economic in nature - policing the States Solid Waste v. US Army (2001) - pg. 170 - Migratory birds - not covered in federal statute - States’ traditional and primary power over land/water use Gonzales v Raich (2005) - Supplement pg. 1 - Counter to era - homegrown medical marijuana can be regulated by FCP - like Wickard - rational basis 2. Does the 10th amendment limit Congress’s authority? New York v. United States (1992) - pg. 177 - Commandeer State legis to enact laws violates 10th - regulation ok, not forcing to enact (waste disposal) - Federal must regulate directly instead of telling State govt to do so Printz v. United States (1997) - pg. 186 - Fed cannot circumvent legis in NY v. US by directly compelling State agents to enforce those laws Reno v. Condon (2000) - pg. 195 - 10th challenge fails b/c fed law applies to State and private - not forcing state to enact/enforce but to abide 3. The Taxing and Spending Power - Article 1 § 8 - Congress has duty to lay and collect taxes to pay debts, provide common defense, etc. United States v. Butler (1936) - pg. 198 - Hamilton - separate power not restricted by enum powers; Madison - restricted by § 8 enum powers - Hamilton wins, but unconst b/c using Taxing/Spending to get around 10th (NY v US) and enact legislation Sabri v. United States (2004) - pg. 201 - Sets broad scope for Fed spending clause - Fed can condition money given to entities to protect gen welf - If broad Fed interest, no need for Congress to state jurisdictional hook South Dakota v. Dole (1987) - pg. 205 - 3 part test: 1. for general welfare, 2. unambiguous/clear wording, 3. somewhat related to fed interest - Congress has power to place conditions and fixing terms on money allotted to States - Still harder than straight legislation - clear wording harder to agree on - forces legislators to take a stand 4. Congressional Power Under the Post Civil-War Amendments - 13th amend - prohibits slavery; Congress has power to enforce - 14th amend - State can’t abridge P or I, nor deprive life, lib, prop w/out DP, or deny EP; power to enforce - 15th amend - No denial or abridge of right to vote based on race, color, slavery; power to enforce Two main questions about Congress enforcement power: 1. May Congress regulate private conduct or just government actions? 2. What is the scope of Congress’s power? a. Whom may Congress Regulate under the PCW Amends? - Civil Rights Cases - cannot use § 5 of 14th to apply amendment to private individuals United States v. Morrison (2000) - pg. 209 - After trend in Guest toward using § 5 for private entities, court overrules here and says no - DISS - using § 5 on State actors for inaction in providing adequate protection against private actors b. What is the scope of Congress’s Power? Two approaches: 1. Narrow - Congress only has auth to prevent/provide remedies for violating rights recognized by Sup Ct 2. Broad - Congress may expand the scope of rights or create new rights not yet recognized by Sup Ct - Argument over “enforce” - enforce means no new rights vs. enforce Amendment by adding protections Katzenbach v. Morgan (1966) - pg. 212 - Court takes broad approach - Congress may add new right under § 5 - literacy tests are unconst City of Boerne v. Flores (1997) - pg. 216 - Congress power is remedial or in some cases preventative, but not substantive change or definitional - Law must be proportional or congruent between means adopted and ends achieved - what is P or C? - REREAD - confusing as shit C. Executive Power/Separation of Powers - See notes for full rundown of executive rights and history - current changes with party politics - Party politics so important that Congress backs Executive based on party instead of limiting power 1. The Non-Delegation Doctrine and Its Demise ALA Schechter Poultry v. US (1935) - pg. 293 - Non-delegation doctrine - Congress cannot delegate Exec unfettered discretion to enact legislation Whitman v.
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