- TA sessions – one hour before class.
- Make appointments through Cynthia at ext. 2832
- Sum & Substance 12th edition written by Prygoski
- Exams: 2 or 3 essay questions, 30-33 multiple choice questions 3 points each.
- Make a list of “how the bar exam tests this material.”
CON LAW I: THE STRUCTURE OF GOVERNMENT
This class is about power – who has the power, and how do the different branches of the government share the power.
Whenever you make a constitutional argument, tie it to the document; take it back to the document and point to a specific provision.
ARTICLE I: LEGISLATIVE
SECTION 1 All legislative Powers are vested in Congress
SECTION 3
[6], [7]: Impeachment
Here’s how it goes: The House impeaches (charges are brought, probable cause that the president committed a high crime or misdemeanor).
Bar Exam: When the House impeaches, it takes the majority (1/2) of the House to impeach. Then the Senate tries the president. It takes 2/3 of Senate to convict.
SECTION 7
[1]: All bills raising revenue shall originate in the House.
Bills for money for the war originate in the house. Can congress impose conditions on the president in a spending bill? Nobody knows – this is one of the constitutional crises – Congress telling the president that, we are not going to give you money unless you pull the troops out. Bush says that Congress has no power to tell the Commander in Chief when I must bring the troops home. The Supreme Court will decide if constitutional.
A condition on the receipt of money (bribe) Examples:
Drinking age: Asking states to raise the drinking age to 21 in order to receive federal funds. Also used for speed limits.
[2]: Every bill which shall have passed the House and the Senate, shall before it become a law, be presented to the President.
Exam Question: Every law passed by Congress must be passed by both the House and the Senate.
Bicameralism: Having two separate and distinct lawmaking assemblies, for example, the Senate and the House of Representatives in the
Presentment: It must be presented to the President for signature. It doesn’t mean that the President has to sign it, just has to be presented.
If a bill does not meet bicameralism and presentment, it is no good.
War Powers Resolution example (passed during Vietnam War): If the House and the Senate pass a concurrent resolution, they may direct the President to withdraw troops from hostilities overseas within 90 days.
It’s useless because it was never presented to the President for signature – it was just a resolution.
Exam Question: When the president vetoes a bill, 2/3 of the House and Senate have to vote to override.
This creates a procedural issue as well as a substantive issue.
Exam Question: The question gives you a law and simply asks you, what provision of the Constitution most likely supports this law?
Here is the main list of powers of Congress:
SECTION 8
[1] Congress has the power to:
1. Tax;
2. Pay the debts and provide for the common defense and general welfare of the
Explanation: Congress has the power to tax, then as a separate matter, Congress has the power to spend for the general welfare.
Definition of the General Welfare: Whatever of what Congress says it is (but generally meaning for the whole country).
Two ways Congress may spend:
1. They spend. Example: They’ll pay for the HeadStart program, space program, roads and highways, veterans’ hospitals, etc.
2. They bribe – they impose conditions on the receipt of money. The will create financial inducements for states or individual people.
TESTED ON EXAM:
Congress has the power to spend for the general welfare. A spending measure (either just spending or bribing) does not force anybody to do anything. It doesn’t force the states to lower their drinking age, they have a choice.
Congress may spend for the general welfare BUT Congress may not regulate for the general welfare. Congress has the power to regulate in two areas only (see below) and in interstate commerce.
Regulate = Taxing a coercive law. Regulate = Requiring or prohibiting.
Regulation Example: If Congress says to the States: You must lower your drunk driving limit to .08 – you don’t have a choice. Congress does not have the power to do that just for the general welfare. In other words, Congress has no general police power over the country.
A State has the power to regulate for health, safety, welfare, and morals. A State can pass laws for its citizens if it thinks it is for the general welfare of the State.
Regulate = passing a coercive law. Requiring or prohibiting. A regulation would be: you must lower the drinking age.
General welfare means: For the whole country.
Exception: Interstate commerce Congress can regulate interstate commerce. Congress has to tie the regulation to the Commerce Clause.
[3]: Congress has the power to regulate commerce with foreign nations and
among the several States and with the Indian tribes.
We are going to focus on among the several States, a.k.a. the Interstate Commerce Clause.
Congress can regulate firearms because they travel in interstate commerce. Congress can regulate discrimination (Civil Rights Act).
Examples:
Title VII: Prevents racial discrimination in employment. Title VI: Prevents racial discrimination in receiving federal funds. If something is tied to interstate commerce, Congress can regulate it directly under the Commerce Clause – not because they are regulating it for the general welfare, but because they have the power to regulate interstate commerce.
Federal Controlled Substances Act example: Sick lady growing marihuana – she argues the Act is illegal because she had nothing to do with interstate commerce. Result: Clause is good – convicted.
Congress cannot regulate for the general welfare. Congress can regulate interstate commerce. Even if Congress is honestly doing something for the general welfare, Congress has to make the argument that what is being regulated is in or affects interstate commerce.
[4]: Congress has the power to establish the uniform rule of naturalization.
[9]: Congress has the power to constitute tribunals inferior to the Supreme Court. Congress has the power if it wants to, to set up federal trial courts and courts of appeals.
[11]: Congress has the power to declare war and make rules concerning captures on land and water. The President has the power to send troops when we are attacked anywhere in the world, when our interests or American citizens are in danger. Policy: The President shouldn’t have to wait to debate.
Does Congress’s power to declare war mean anything? These are huge overlapping responsibilities
[12]: Congress has the power to raise armies. The don’t ask, don’t tell policy interferes with Congress’s power to raise armies. It is a limitation on their power of who gets into the army.
[17]: Congress does have the power to regulate in two areas:
1. The District of
2. Congress has police power over federal property. Congress can make whatever rules it deems necessary for the operation of federal property, i.e. national parks, post offices, military bases, etc.
[18]: (Called the Necessary and Proper Clause) Congress has the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers (the powers before this clause), and any powers vested by this Constitution in the government of the United States, or in any Department or Officer thereof.
The Necessary and Proper Clause gives Congress power to pass laws for the other branches.
Bar exam: Never, ever use the Necessary and Proper Clause by itself. You have to use it along with some other power, e.g. it has to be necessary and proper to effectuate the Commerce Clause, necessary and proper for taxing, necessary and proper for spending, etc.
Tricky part: What if Congress passes a law for the president or for the courts? Here’s what you do. They will ask, what provisions of the Constitution justify this law? If Congress passes a law for the President, it is necessary and proper in Article II. If Congress passes a law for the Courts, it is necessary and proper in Article III.
Ken Starr Example: Ken Starr was the Special Prosecutor against
SECTION 9
[2]: The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion of the public safety may require it.
Writ of Habeas Corpus: What you ask for is a declaration by the court that you are illegally or unconstitutionally detained. They violated your Fourth Amendment, Sixth Amendment rights, etc. It is important because of
Here’s the argument: It’s not an invasion in the classic sense, but an invasion nonetheless. O’Connor: for as long as the hostility is going on. Is September 11 an ongoing invasion? It may not be a classic kind of invasion, but it is an invasion. It’s a war, but we are fighting against individuals. Do the rules of war apply when there is no country?
[3]: Frequent pick on the Bar exam. No ex post facto law shall be passed.
Ex post facto: A retroactive criminal law that changes the law in a way that is substantially detrimental to the defendant. Ex post facto laws must be criminal. Example: What you did last Wednesday is now a crime. You can’t make something a crime that wasn’t a crime when you did it.
Sometimes the government will increase the sentence for a crime after you’ve been charged – they cannot do it – it’s an ex post facto.
Deportation example: The Supreme Court held that it was OK to deport someone for something someone did after he or she has been charged because deportation is not punishment. For an ex post facto law, it has to be a criminal law or it has to affect the functional equivalent of a criminal punishment.
ARTICLE II – EXECUTIVE
SECTION I
[1]: The executive power shall be vested in the President.
Not all executive power is vested in the President. Taking away the ability to fire a Special Prosecutor is taking away some power from the President.
Two Theories of Interpretation:
The Ethics in Government Act said that the President cannot fire a Special Prosecutor who is under the President. Is the you-can’t-fire-that-person requirement of the law a violation of the separation of powers? The majority of the Court said no, it’s ok because Congress did not take away too much power from the President. How much is too much? Scalia (the lone dissenter) would have struck down the rule under the literalist theory – he looks at the Constitution, sees what is says and applies it. It says the executive power shall be vested in the President. That means all executive power. The question becomes, did Congress take away any power from the President? Scalia says it is unconstitutional.
ARTICLE III – JUDICIAL
All of these principals will apply in state courts as well. On the exam, if I give you a State, Governor = President. State Legislature = Congress and Courts = Courts.
SECTION 1
The judicial powers of the
Congress could wake up one morning and abolish all lower Federal Courts but they obviously are not going to do that. What Congress tries to do though is take away jurisdiction in Federal District Courts in certain kinds of cases, e.g. abortion cases, school prayer cases, and the Pledge of Allegiance cases.
Federalism: The relationship between the federal government and the states.
Federal Judges are appointed for life. The Constitution provides for appointments so that judges are not subject to political whims and pressures.
Congress cannot create a law and overrule Roe v. Wade – it’s based in the 14th Amendment; therefore, it’s the law. The Court is the problem.
Jurisdiction Stripping Example: Under Article III, Section I, it looks like Congress could say no Federal Court can hear an abortion case coming out of a State or a case that deals with a State abortion law. If that is upheld, the abortion cases are going to get litigated at the State Court level where most judges are elected.
Congress can’t change the result of a Supreme Court decision so Plan B is, we won’t let the Federal Courts hear these cases.
THEME OF THE COURSE: HOW DO YOU INTERPRET THE CONSTITUTION?
Two Views:
Scalia’s View: Textualist: look at the document, read what the words say and that dictates the rule. It’s easy but does it always reach tenable results?
Balance View: Balance all its provisions – don’t look at any provision in isolation, look at the purpose of the Constitution and look at other provisions and balance it.
Separations of Power problems if Congress takes away jurisdiction from Federal Courts:
If Congress took away the power from Federal Courts to hear abortion cases as an original matter and took away the power of the Supreme Court to hear those cases on appeal or pledge of allegiance cases, and Federal Courts cannot hear those cases, how many branches of government would we have involved? What if the Court does not act as a check and balance on the other branches? We go from a three-branch system of government to a two-branch system of government. If Congress passes a law regulating abortion and the President vetoes it and 2/3 of the Senate and House override, then the courts can’t hear the case, we are down to a one-branch system of government. The issue then becomes, are checks and balances an essential part of the Constitutional system?
Then Congress may not exercise one of its enumerated powers in such a way as to detract from essential notions of separations of powers. If Congress could act unilaterally to deprive women of their abortion rights, it would also be a violation of individual rights.
The Theory:
Each branch has to serve as a check on the other branches. That’s why we have an independent Judiciary and three branches – so that power cannot be concentrated in just one branch. An essential function of the constitutional structure is the checking system – each branch checks the other one.
Part of the checking function of the branches is judicial review. The Federal Courts have to be able to check the other branches to limit legislative power and to limit executive power.
There is an argument that an essential function of courts is to protect rights. The issue here is, may Congress exercise even one of its enumerated powers – the power to take jurisdiction away from the courts. Could Congress exercise one of its enumerated powers in such a way as to destroy the checking function of the other branches? Can Congress pass a law that would take the court out of the equation? There is a strong argument that no, they can’t because if the court is not in the equation to serve as a check and balance on the other branches, then power gets concentrated. The purpose of that checking function by the court is to diffuse power – to spread it out and protect against too much power for just the President or just Congress. If Congress takes that review power away, it may violate the separation of powers.
SECTION 2
[2]: In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction.
Original Jurisdiction: The power to hear the case first. In almost all cases, Congress has granted concurrent original jurisdiction to lower Federal Courts. If the State of
Bar exam: There is one kind of case where the US Supreme Court has exclusive original jurisdiction (you have to go to the Supreme Court first) and that is when a State sues another State. When that happens, the plaintiff must bring the case before the Supreme Court. Policy: So the
CHAPTER 1: NATURE AND SCOPE OF JUDICIAL REVIEW
These principals apply in every State and every State court. Ultimately someone has to say what the law is. In Marbury v. Madison, the Court established the power of judicial review over the executive branch and over Congress. This case establishes federal judicial review over the other branches of the federal government. The Court says that it has the power to review acts of Congress and decisions of the President. The crux: It is the province and duty of the Court to say what the law is. This is the basis for our entire legal system.
Marbury v.
5 U.S. (1 Cranch) 137 (1803)
S & S page 15
Facts: Marbury sued to compel delivery of his commission as a Justice of the Peace after President Jefferson and Secretary of State Madison failed to deliver it to him after President Adams had appointed him.
Chief Justice Marshall held that Section 13 of the Judiciary Act of 1789 was unconstitutional because it sought to confer on the Supreme Court original jurisdiction over a type of dispute over which the Constitution gave it only appellate jurisdiction. Where a statute violated the Constitution it was the duty of the courts to apply the Constitution as paramount law which superseded inconsistent statutes.
These two principles–the preeminence of the Constitution and judicial review–were not explicitly provided for in the Constitution but are supported by various types of constitutional argument.
Marbury can be read as giving the judiciary power of judicial review or as giving the judiciary the ultimate power to interpret the Constitution. Although many have argued that other branches also have the power and duty to interpret the Constitution, the Court increasingly contends that it has the ultimate power to do so.
Prygoski: The real party of interest is the President. Can a sitting president be indicted?
Two Positions:
1. Yes
2. No, must be impeached.
Presidents can be subject to process. This case was the basis for Nixon losing on absolute privilege
The writ of mandamus is telling the executive branch that it should do what they are already supposed to do. Marbury is asking the executive branch to do something – to tell
1. Does the applicant have a right to the commission he demands? Yes
2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? Yes
3. Is he entitled to a writ of mandamus? This depends on the nature of the writ and the power of this Court. Yes, a public official has a duty to perform some act (the delivery of the commission) and did not perform it.
Mandamus is the appropriate remedy. It is appropriate for a Federal Court to issue a writ of mandamus telling the Secretary of State to deliver the commission no matter what the President says – that judicial review is power.
4. Can a mandamus issue from the Supreme Court? No. A mandamus is the appropriate writ but Marbury is not in the right court so he doesn’t get the remedy. The Supreme Court cannot issue the writ of mandamus.
For Federal Court: Must cite a provision of the federal code that gives the court jurisdiction to hear the case. There has to be a congressional statute that confers jurisdiction on courts. In this case, Marbury files his writ right to the Supreme Court. It has to be based on a statute. The statute the Marbury relies on is Section 13 of the Judiciary Act of 1789. The Court looks at Section 13 and says it’s unconstitutional and Congress cannot under that statute give the Supreme Court the power to hear the case. The Court established judicial review over acts of Congress and the President. The Court says it can review both of those.
They established judicial review (or control) over acts of the president and laws passed by Congress. This happens in question 3.
He looks at a statute passed by Congress and says it’s unconstitutional. By the Supreme Court saying that Section 13 is unconstitutional, it establishes judicial review over Congress. Federal Courts now have power to force the executive branch to do something and have power to review laws passed by Congress and declare them unconstitutional. We’ve got judicial review over other branches of the federal government.
Section 13 is unconstitutional because
Bar exam: Why can Congress not add cases to the original jurisdiction of the Supreme Court as set by the Constitution? Article V gives the amendatory process and the only way to amend the Constitution.
Congress was attempting to pass a statute, changing the Constitution which violates the process that is required by Article V. The Constitution is the paramount law; it can’t be changed by just Congress passing a law.
RULE: It is emphatically the province and duty of the judicial department to say what the law is (including the Constitution). The Constitution is a species of law.
The court is the least dangerous (least powerful) branch. The Court does not have the power to initiate legislation. It has to wait for cases to come to it. Also, it doesn’t have any independent way of enforcing its powers. The President executes the law including federal opinions. Federal Courts do not have the power of the sword or the power of the purse.
Cooper v. Aaron
Supreme Court, 1958 (The Implementation Decision)
The Court rejected an attempt by State officials to nullify Brown by preventing black students from attending public high schools.
Holding: School districts had to integrate with all deliberate speed (as quickly as practicable).
Article VI – Supremacy Clause. Article VI of the Constitution makes the Constitution the supreme law of the land. It is the fundamental and paramount law of the nation. The Constitution, federal laws and treaties take precedence over State laws (preemption).
Ten Commandments example: Establishment of religion in a courthouse violates separation of church and state. They attempted to nullify the Supreme Court rulings. Federal Courts and the Supreme Court say what the law is.
SCOPE OF JUDICIAL REVIEW
What can Federal Courts review?
Marbury It is the Court that has the final say, ultimately what the law is. The Court’s ruling is the final word. What it does spec is establish judicial review over the other branches of government. Who’s actions are they reviewing? In marbury review laws to see of constitutional. Congress was trying to enlarge. Establish the power of Federal Courts to acts of Congress.
The other thing is this case established the power of the courts to review and control certain acts of the president. It does that when the Court says mandamus is the appropriate remedy. If Federal Courts can order to do something, that is power.
This case establishes judicial review within the federal government. The law means Cons treaties statutes…
The court refers to one of the main exceptions to judicial review. They are also called Rules of Avoidance. Federal Courts are avoiding hearing certain cases. There are certain cases they cannot hear and chose not to hear.
Two kinds:
1. Not in jurisdiction
2. In jurisdiction but they don’t want to hear it.
Desert Shield example: Bush deployed troops, someone filed a lawsuit against it. There are problems with litigating a case like that. A Federal Court is not going to litigate a war while it’s going on.
It’s not ripe. Desert Shield becomes Desert Storm. Plaintiffs go back to court, case dismissed – political question. It should be decided by the President or Congress. Again, how are you going to litigate it? Is Congress going to order troops by a date certain? It is not justiciable (Able to be adjudicated).
Not justiciable:
1. Not constitutional; or
2. Prudential political question – the court can hear it but it’s “too hot to handle.”
Political Question comes from Marbury: political questions cannot be made in this court
Page 22
Together these cases give total judicial review.
Exceptions to Judicial Review
Presumably are all part of the same sovereign. Martin has to do with State courts, State legislature and the governor. Federal Court can review on appeal decision of State courts. They can review laws passed by State legislature.
Federalism: The relationship between the government and the States.
States are separate sovereigns. When Federal Court state messin with States, States have a special argument – you are intruding upon our sovereignty.
MARTIN V. HUNTER'S LESSEE
14
NATURE OF THE CASE: This is an appeal of a land title dispute in a state court involving issues of federal law. Writ of error based on a state court's refusal to obey the Supreme Court's order on remand reversing the state's original judgment in an ejectment action.
FACTS: This was a dispute over the ownership of land in
Hunter (D) claimed that the land was his, because in 1789 VA confiscated lands owned by British subjects. Martin (P) claimed that the confiscation was ineffective due to treaties between the
The
When Federal Courts…
Hunter takes pursuant to State law
Martin takes pursuant to Federal law.
Supreme Court takes the side of Hunter.
Supreme Court ordered VA court of appeals to rule in Martin’s favor. This is where sovereignty gets involved. The VA court of appeals. They say the courts of one sovereign are telling another sovereign what to do. It gets litigated again and back up to the Supreme Court. Section 25 gives Supreme Court appellate jurisdiction over State courts. This means they have the power to review state court decisions. The second time they do not order the VA court of appeals but directly to the district court where the case started
1. The court again reviews an act of Congress. All it was doing was exercising its power under Marbury.
States had certain powers before the constitution was written. States delegated some of their powers to the federal government. Whatever the states didn’t give away, they kept.
Within the power of the States:
1. Police power – regulate health, safety, welfare, and morals
2. Property rights – mainly defined by States.
3.
Southern States wanted to define property because of slavery. States’ rights was a codeword for slavery.
The argument in the case was VA had certain things…the Supreme Court says that under section 25 it has the power to review things coming out of states as long as there is a federal question.
RULE OF LAW: The United States Supreme Court has appellate jurisdiction over issues of federal law in state courts.
The Court upheld the constitutionality of section 25 of the Judiciary Act of 1789 which empowered the Supreme Court to review certain decisions of the highest state court which, generally speaking, ruled adversely to some federal right or claim. The Court rejected
Judgment of the court of appeals of VA reversed, judgment of the district court affirmed.
Theory underlying judicial review by the Supreme Court:
1. Uniformity: if you didn’t have the Supreme Court ruling things coming out of states, it would be a mess.
2. That State judges are going to advance their State’s interest.
Bar exam: Article VI (Supremacy Slause) The constitution treaties and federal laws will take precedence over state laws.
Hypo: Segregation: the 14th Amendment rights of black school kids has been violated. If judge orders bussing plan. If there is a finding that the cont was violated, that takes precedence. Federal stuff stumps state stuff.
1.
2. Direct to take actions
Martin completes the picture
1. State acts
2. State
Marbury Horizontal – branches of the same government
Martin vertical – goes down to state
SECTION 2: POLITICAL QUESTIONS
This is a rule of Avoidance. Federal Courts avoid hearing cases.
Two kinds:
1. Constitutional Political Question. The Constitution itself gives a particular dispute for some resolution. The cont says someone else decides this case – it is not within their jurisdiction.
2. Prudential Political Question. A Federal Court can hear a certain kind of case, within their jurisdiction and they choose not to because it is too hot to handle.
Nixon v.
Supreme Court, 1993
Bar exam: an executive officer gets impeached by the house and then goes to Senate.
High crimes and misdemeanors (probably a political question)
They get together a sub-committee of senators. Nixon sues. His argument is that the whole senate has to try him. The Supreme Court does not hear it because it is not justiciable because it is a political question because the const gives to the senate the power to try impeachments. Because of that Federal Courts may not get involved. Rehnquist says there are prudential reasons why:
Too hot to handle.
The main standard for a prudential political questions: If a court cannot come up with judicially discoverable (discoverable evidence) and manageable standards (how is the court going to craft a decree).
Here’s the problem: if the Federal Courts are going to get involved in this decision on how impeach are tried in the senate, what’s next? What standard of evidence is used (beyond a reasonable doubt or…)
1. This is committed to another branch
2
RULE: Procedures for trying impeachments involve a political question.
Powell v. McCormack.
Powell runs for another term and gets elected. Art I section 2 to be elected age, residency and citizenship and requirements. Either house may upon a 2/3 vote may expel one of its members. 2/3 vote to not let him take his seat. Powell sues speaker of the house, McCormack. Powell’s argument was he never became a member. They excluded somebody who was elected. The court said it is not a political question.
It added an argument. If they had let him take his seat, it would have been a political question. If they expel him because of his race, no longer a political question because of Fifth Amendment argument.
RULE: injecting a fundamental right changes a political question into a justiciable one.
Coleman v. Miller
Equal Rights Amendment: 10 year limit on ratification. They need three states, Congress extends the time another two years, some states switched their votes.
1. Can someone..
2. Can states…
Gilligan v. Morgan
Art 1 Section 8 clause 16 constitutional pQ but some prudential
Baker v. Carr (Malapportionment case)
1962
At large voting system: One rep or senator represents the whole State.
District voting system: House of Representatives.
TN apportioned itself in the early 1900s. in the early 1960s
This affects the weight of a persons’s vote. The lawyers injected a fundamental right in the case. The court said now justiciable.
Reynolds v. Sims
Two years later the Court came up with
Political questions: wars and foreign affairs
SECTION 3. CONGRESSIONAL REGULATION OF JUDICIAL POWER
Art. III gives you jurisdiction of Federal Courts, Supreme Court. It says the SC shall have original jurisdiction…that is the exclusive, exhaustive list.
Bar exam. Congress cannot pass a statute enlarge.
SC shall have appellate jurisdiction in all other cases involving federal questions with such exceptions…exceptions and regulations clause. No linguistic exceptions.
Ex Parte McCardle
Supreme Court, 1869
Exceptions and Regulations Clause
Files petition for habeas corpus in
Reconstruction Act – Congress is trying to heal the wounds of slavery and bring the country together. If the Supreme Court takes his petition, they are going to decide…Congress felt that if it got to the merits it would invalidate it. They were scared to death that it would be found unconstitutional. To keep the court from looking at it, it makes an exception to it. Congress Appeals it.
They dismiss the case for lack of jurisdiction. Congress wins this round.
Important: McCardle did have an avenue to file his writ with the Circuit Court. Under the consti it says Art III there shall be one sc. And such lower courts that congress may from time to time.
Hypo: What if Congress took away all review under habeas. Bush is taking habeas review from Gitmo detainees. Could it be abridged if no…no separation of powers.
This case simply was Congress taking away one avenue. What we have is Congress exercising its powers so it could…
A Balance between an enumerated unlimited power of Congress – power to make exceptions and set jurisdiction of lower courts balanced against other constitutional concepts – due process, separation of powers, and individual rights.
In other words, if congress cant withdraw jurisdiction in…can it withdraw from…
Bar exam. Balance: When Congress passes a law, it does not have to point to the Cont. when it is challenged, they have to point to…The first way to invalidate a law is to eliminate the power. Second way is to balance. Congress can point, presumptively good, look at const and see of some other provision or structure will invalidate.
Hypo: First Amendment – specific power, specific right. An essential function of one of the branches. Is it an essential function of the SC to protect rights.
Congress may not
The whole design of the document
SECTION 5. PREREQUISITES TO FEDERAL JURISDICTION AND JUDICIAL REVIEW
Page 51
Bar exam: Can get to SC out of
Discretionary and mandatory.
RULE: A denial of a discretionary is not a decision on the merits and may not be cited as precedent.
RULE: by statute, there must be a final decision by the highest appellate court of a State. Can go to Supreme Court by filing a writ of certiorari.
You file a petition for cert. simply means asking the Supreme Court to please take the case. It is a discretionary appeal.
RULE: Rule of 4 – it takes four justices to grant cert. it directs to Supreme Court. All cases coming out of state court go to Supreme Court by writ of cert.
Bar exam: Every once in a while 4 will grant cert but If the court looks at it, dismiss writ as improvidently granted (functional equivalent of we never granted it in the first place). A denial of cert is not citable. Sometimes there is a dissent – of persuasive value only.
All cases coming up by lower Federal Court go up by cert. One kind of case where there is a mandatory appeal. Some statutes where plaintiff may invoke 3 judge federal district judge must grant or deny injunctive relief. Under civil rights statutes a plaintiff may ask to empanel and grant or deny, bypass court of appeals and go right to Supreme Court and they must hear the case.
Policy: Civil rights act,
Exam: is an appeal of right.
SCOPE OF JUDICIAL REVIEW
- Marbury v.
- What is the general ruling of Marbury v.
- Marbury not only established judicial review, but it also said the Court has the power to control certain acts of the President. It does that when it said that Mandamus is the appropriate remedy. Mandamus is a writ under which the Court orders an executive officer to do something that he has an obligation to do. Thus, the power of judicial review includes the power to control.
- When the Court says that it is the power of the Judiciary to decide what the law is, the law means the Constitution, Treaties, Federal Statutes, Administrative Rules, and anything else federal.
- Martin v. Hunter’s Lessee (vertical review over states)
- Martin wins according to federal law in state court. Court of Appeals rules in favor of
- This case established the right of the U.S. Supreme Court to review the constitutionality of state laws (i.e., where there is a federal constitutional question—such as the supremacy of a treaty involved).
i. The Supreme Court said that the power comes from Congress in Section 25 of the Judiciary Act (Remember that Article III requires there to be a statute to confer jurisdiction). In Section 25 of the Judiciary Act, Congress gave federal courts the appellate review over state courts as long as there is a federal question.
ii. “The Courts of the
- NOTES ON SCOPE:
i. When the federal courts intrude in the state’s sovereignty then this brings up Federalism. Federalism is the relationship of the federal government and the States.
ii. Tenth Amendment says that “the powers not delegated to the
iii. What is the argument that the Supreme Court has judicial review?
1. Uniformity: If not, then you would have 50 versions of the 1st Amendment.
2. Federal judges are appointed while State judges are elected and thus there are state attachments, state prejudices, state jealousies, and state interests that might obstruct or control the regular administration of justice.
iv. Article 6: The Supremacy Clause
1. This says that the Constitution, Treaties, and Federal Laws will take precedence over State laws.
EXCEPTIONS TO JUDICIAL REVIEW (or Rules of Avoidance)
- POLITICAL QUESTIONS:
- Where does this idea of Political Question come from? It comes from Marbury v. Madison.
i. “Questions in their nature political, or which are, by the Constitution and laws, submitted to the executive, can never be made in this Court” (or any federal court). This means that political questions can never be made in any federal court.
ii. “Where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable.” For example, Attorney General Gonzales has been firing federal prosecutors across the nation for political reasons. Can anyone sue Attorney General Gonzales? No. Why not? Because he and the President have constitutional or legal discretion which their acts are only politically examinable.
- There are two types of Political Questions
i. CONSTITUTIONAL QUESTIONS: First, there are Constitutional cases which the court cannot hear because the case is not within the Court’s jurisdiction; it belongs to another branch.
ii. PRUDENTIAL QUESTIONS: Second, there are cases within the Court’s jurisdiction, but they do not want to hear it. For example, a federal court is not going to litigate a War when the War is going on. The Court has no way to litigate the case. In other words it is Not-Justiciable. It is a political question which belongs to the other two branches. The Court “lacks judicially discoverable and manageable standards for addressing them.”
- Nixon v.
i. Former judge was convicted of making false statements and sent to prison. However, he was still collecting his paycheck until Congress impeached him. A sub-committee of the senate hears the case and then gives the report to the body of the senate. Nixon argues that the Senate has the sole power to impeach and not some sub-committee.
ii. ON EXAM: (Impeachment by the house requires a majority vote. Impeachment by the Senate requires 2/3rd vote).
iii. The Supreme Court does not get involved because the case is not justiciable since it is a political question. It is a Constitutional political question since the Constitution gives the Senate the whole power of impeachment and thus the Supreme Court cannot get involved. It is also a Prudential political question because the Court lacks judicially discoverable and manageable standards for resolving the case. Thus procedures for trying impeachments are Political Questions.
- Powell v. McCormick
i. To be a house member you need to be a certain age, residency, and citizenship. Powell meets the requirements. However, there is another clause that says that either house can expel a member by 2/3rd vote. Powell was voted out before he took his oath because of allegations of lying about travel expenses and making illegal salary payments to his wife. So there was no expulsion since he didn’t take his oath; he was only excluded. Expulsion is non-justiciable while exclusion is justiciable. The house screwed up and kicked him out too early. Therefore the court could get involved because it was no longer a political question. If he took the oath first and then there was the vote there is a political question and the court would be unable to get involved.
1. What would have happened if he was expelled after taking his seat? Then this would be a Political Quesiton
2. Would it still be a political question if he was expelled because of his race? Yes, the rule is that injecting a fundamental right into the case changes it from a Political Question to a Justiciable Question.
ii. The Court invalidated the decision of the House of Representatives because the problem was that by refusing to allow him to take his seat, despite being elected and meeting age, citizenship and residency requirements, the House was, in effect, adding a “good citizenship requirement” to those listed in the Constitution.
- Coleman v. Miller
i. When Congress adopted the Equal Rights Amendment they gave 10 years for the states to ratify it. Congress then extended the ratification a couple of more years because not all of the states were ratifying it. At that time a few states withdrew their ratification. The Supreme Court said it was a political question that was too hot to handle. It is up to Congress to decide.
- Gilligan v. Morgan
i. This is at a time when the Vietnam war is going on. Some students are demonstrating at
ii. Court said they weren’t getting involved in the organizing, training, and discipline of Military. This is a Political Question which is mostly Constitutional. Art. 1, § 8, cl. 16 gives Congress the responsibility for organizing, arming, and disciplining the militia.
- Baker v. Carr (malapportionment case)
i.
ii. In this case malapportionment turned from political question to a fundamental right question because the Court now looked at Equal Protection rights.
- Reynold’s v. Simms
i. This case says that the apportionment needs to give the same rights to vote to each citizen.
CONGRESSIONAL REGULATION OF JUDICIAL POWER
- Article 3 gives you the jurisdiction of the Supreme Court. It says that the Supreme Court shall have original jurisdiction over ambassadors, public ministers, or when a state is a party. (Supreme Court has “exclusive” jurisdiction when a State sues another State).
- TEST: Congress cannot by statute enlarge the jurisdiction of the Supreme Court. Marbury v.
- However, Article 3 says that the Court shall have appellate jurisdiction in all other cases with such exceptions and regulations that congress shall make. (This is the Exceptions and Regulations Clause).
- Ex Parte McCardle (Application of the Exceptions and Regulations Clause).
- McCardle was held in military custody. He brought a writ of habeas corpus under an 1867 Reconstruction Act. When the Supreme Court took the case Congress revoked the portion of the 1867 Act to prevent the Supreme Court from hearing the case. They withdrew the appellate jurisdiction from the Court.
- The Court dismissed the case for lack of jurisdiction. Although the Supreme Court derives its appellate jurisdiction from the Constitution, the Constitution also gives Congress the express power to make exceptions to that appellate jurisdiction.
- However, McCardle had another avenue. He could have gone to the Circuit District Courts. This is important. Congress can’t take away all federal courts power of habeas corpus because it would allow Congress to overcome the checks and balances. This would do away with the separation of powers. (Here we are talking about balancing enumerated powers against individual rights and separation of powers). If Congress can eliminate jurisdiction of school prayer for lower federal courts and Supreme Court then there is no checks and balance. It puts it at Two Branches instead of Three. You are balancing enumerated powers of congress against implied limitation of the Constitution.
- The Supreme Court’s essential function is to protect rights and to preserve checks and balances.
- NOTE: (We will cover this later)
- There are two ways of invalidating a law created by Congress:
i. First, eliminate the Power Source
ii. Second, is to balance. This is when Congress can point to the power source, but there is another provision of the Constitution which will invalidate the law Congress passed.
1. For example, in McCardle, we could balance the Exceptions and Regulations Clause with the Essential Function of One of the Branches. Is it an essential function of the Supreme Court to serve as a check and balance of the other two branches? Yes. Is it an essential function to protect individual rights? Yes. So Congress cannot exercise an enumerated power to destroy the essential Constitutional structure of checks and balances. So if Congress had eliminated all of the federal courts power of habeas corpus this would be unconstitutional because it would allow Congress to overcome the checks and balances.
HOW DO YOU GET TO THE SUPREME COURT BY APPEAL?
- A state can get to the Supreme Court by either out of state court or out of lower federal courts.
- There are two kinds of appeal: Discretionary or Mandatory.
- In discretionary appeals the Appellate Court does not have to take the case
- In mandatory appeals the Appellate Court does have to take the case.
- Why do we care? Because a denial of a discretionary appeal cannot be cited as precedent.
- State Avenue
- There needs to be a federal question.
- There must be a final decision of the highest appellate court of a state. The party then files a petition for a Writ of Certiorari. This is a discretionary appeal. It takes four justices to grant a Cert. If they grant the petition then they issue the Writ which is directed to the State Supreme Court which tells the court to send the case to the Supreme Court. TEST: Only takes four justices to grant Writ. If the Court looks at the case and decides it shouldn’t have been accepted then they will dismiss the Writ as “Improvidently Granted.” Then the holding of the State Supreme Court is upheld. A denial of a petition for Cert is not precedent. Sometimes when there is a denial of a Cert there is a dissent. This also is not precedent value, it is only persuasive value.
- All cases going up out of lower courts go by Cert.
- One kind of case where there is a mandatory appeal: Under Civil Rights Act of 1964 a plaintiff may ask for a 3 District Court Judge panel. The 3 District Court will either grant or deny injunctive relief. If the plaintiff is denied injunctive relief then they skip the court of appeals and go directly to the Supreme Court. This is a mandatory appeal. (Don’t miss this)
MCCULLOCH V. MARYLAND
17
NATURE OF THE CASE: This is an action arising out of a violation of a state statute. The Supreme Court reviewed a judgment of a statutory penalty imposed upon the Bank of the
FACTS: A Maryland (P) statute prohibited any bank operating in the state without state authority from issuing bank notes except upon stamped paper issued by the state. The law specified the fees payable for the paper, and provides for penalties for violators. An Act of Congress established a U.S. Bank. McCulloch (D), the cashier of 2nd National Bank, issued bank notes without complying with the
ISSUE: (1.) Does Congress have the implied power under the Constitution to incorporate a bank? (2.) Does the State of
RULE OF LAW: (1.) Certain federal powers giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it are to be implied from the necessary and proper clause. (2.) The Federal Constitution and the laws made pursuant to it are supreme and control the Constitution and the laws of the states, and cannot be controlled by them.
HOLDING AND DECISION: (Marshall, C.J.) (1.) Does Congress have the implied power under the Constitution to incorporate a bank? Yes. (2.) Does the State of
SS page 49: Congress may choose any reasonable means. The Supreme Court has interpreted the Necessary and Proper Clause to mean that Congress may choose whatever means it deems convenient to carry out some power of government. Thus, “necessary” does not require that the only, or even least drastic, means to achieve a congressional goal be used.
U.S. Term Limits, Inc. v.
514 U.S. 779 (1995)
The Court articulated different visions of the Tenth Amendment. Five justices argued that the Tenth Amendment reserved to the states only powers they possessed before the Constitution was created. Four justices contended that the states retained all power not denied them.
SS page 20: State attempts to add to the constitutionality prescribed requirements for membership in Congress. A state may not impose limits on the number of terms that the state’s congressional delegation may serve.
The Court invalidated a provision of the Arkansas Constitution which prohibited a candidate’s name from being on the ballot for a congressional election if that person had already served three terms in the House of Representatives or two terms in the Senate. The Court ruled that the Arkansas provision violated the Qualifications Clauses of the US Constitution, and that state limitations could not be justified under either the Tenth Amendment state police powers provision or under the Elections Clause of the Constitution (Article I, section 1) that gives states the power to regulate the “Times, Places, and Manner of holding Elections.”
Gibbons v.
22 US (9 Wheat.) 1, 6 L.Ed. 23 (1824)
Justice Marshall articulated a broad vision of the commerce clause
a) “Commerce” extended beyond navigation to include commercial intercourse.
b) “Regulate” involved the power to prescribe the rule by which commerce could be governed
c) “Among the states” did not include “that commerce, which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or effect other states.” Implicitly, it did include commerce which affected another state even though it did not involve crossing a state line.
FACTS: Mr. Ogden was assigned the right, from Livingston and Fulton, to operate a steamboat between
ISSUE: Whether the NY law (regulating interstate commerce) granting exclusive use of the waterways to specific members of society is unconstitutional?
HOLDING: Yes.
PROCEDURE:
RULE: Congress shall have power to regulate commerce with Foreign Nations, and among the Several States, and with the Indian Tribes.
COURT’S RATIONALE: Commerce among the states cannot stop at the external boundary line of each state, it extends within the interior. The rule does not limit the power to commerce governing solely traffic within. The rule applies to the regulation of commerce as it relates to the character of the whole government. The external concerns of the nation, the internal concerns of the States, but not limited to the concerns completely within a State. To do so otherwise would interfere with the State’s individual power. Inspection laws are regulations of commerce, and are a power retained to the States. They act upon a subject before it becomes an article of foreign commerce.
PL A: (
Def A: (Gibbons) The NY mandate and the injunction are unconstitutional, b/c Congress issued the Def license to navigate and conduct commerce therein, and Congress shall have the power to regulate commerce.
Postulate- belief, premise, assumption
1. That a State may legislate in all cases of concurrent power, though Congress has acted under the same power and upon the same subject matter.
2. That the question of supremacy cannot arise, except in the case of actual and practical collision.
3. That such collision must be direct and positive, and the State law must operate to limit, restrict, or defeat, the effect of a statute of Congress.
4. That in such case, the State law yields in those particulars, in which such actual collision arises, but remains valid in all other respects.
OUTCOME: On appeal, the court reversed, finding that the act of Congress gave full authority to defendants' vessels to navigate the waters of the
RULE OF AVOIDANCE CONTINUED
ADEQUATE AND INDEPENDENT STATE GROUNDS
- The adequate and independent state grounds analysis is another limitation on Judicial Review (in addition to Political Questions). The doctrine arises when the highest appellate court of a state decides a case involving both state and federal issues. The Supreme Court will not review such a case if the state court based its decision solely on state law. This is true despite the presence of a federal issue in the case. So if a state supreme court excludes evidence because of violation of state constitution but also said in the decision that the evidence should be excluded because of the violation of U.S. Constitution but misapplied the U.S. Constitution, the Supreme Court will not get involved. Even if the U.S. Supreme Court had ruled on the federal question, they would not change the result because a State Constitution can provide more protection then the U.S. Constitution.
- Analysis
- Steps in an Adequate and Independent State Grounds Analysis
i. Has the highest appellate court of a state ruled on the case;
ii. Does the case involve questions of both federal and state law; and
iii. Can the Supreme Court change the result of the case by ruling on the federal question? (Remember that the Supreme Court has no business ruling on questions that solely address state law.)
- If the answer to all three questions is yes, the Supreme Court may take the case.
LEGISLATIVE POWER – COMMERCE CLAUSE
TWO WAYS TO INVALIDATE A STATUTE
- There are two ways for a court to invalidate the acts of Congress:
- Eliminate the Constitutional Power Source relied on by Congress to justify the law. Under this approach, the plaintiff asserts that the legislature exceeded the scope of the constitutional provision on which it relied to pass a law.
- Balance. Under the balance approach, the law is presumptively within a constitutional power source, but it is invalid if it contravenes some other provision of the Constitution.
i. Examples:
1. Congress passes a law restricting abortion according to Commerce Clause. However, the law violates the individual fundamental rights of women.
2. Federal government requires the state to do background checks every time a gun is sold. Their power comes from the Commerce Clause. The federal government is affecting the State’s power to both police (since it is taking time away from the Sheriff) and it affects the state’s ability to regulate (structure) itself. The Court will balance the state’s interest against the federal interest.
3. Note: Congress has no enumerated power to regulate for the general welfare of the country as a whole (it has no general police power), but it does have a specific power to pass police power regulations for the
NECESSARY AND PROPER CLAUSE
- Under Article I, § 8, cl.18, Congress has the power to pass laws to enable itself or any branch or officer of the federal government to carry out any constitutional power. It must be coupled with some other constitutional provision. (Never use the Necessary and Proper Clause by itself).
- The Supreme Court has interpreted the Necessary and Proper Clause to mean that Congress may choose whatever means it deems convenient to carry out some power of government. McCulloch v.
- McCULLOCH v.
- FACTS: The State was taxing a federal bank.
- ISSUE: There were two questions:
i. (1) can Congress incorporate a bank, and
ii. (2) can a state tax a federal institution?
- RULE:
i. (1) Yes. Certain federal powers giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it are to be implied from the Necessary and Proper Clause with the power to tax, coin money, spending, etc.
ii. (2) No. The Federal Constitution and the laws made pursuant to it are supreme and control the constitutions and laws of the states and cannot be controlled by them.
- NOTE: When can a state impose a tax on the federal government? A state cannot directly impose a tax on a branch of federal government. However, the state can impose a tax on an employee of the federal government. This is called an indirect tax
TERM LIMITS
- TERM LIMITS v. THORTON
- Neither a state nor Congress can impose term limits on federal Representatives and Senators. You cannot impose more standards on the Qualification Clause: age, residency, citizenship, etc.
- But a state can impose limits on state representatives and senators.
COMMERCE CLAUSE (Definitely on Exam)
- Under Article I, § 8, cl.3, Congress has the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
- Two Main Issues Under Commerce Clause
- What is the Scope of the Commerce Clause?
- Does a Congressional Act unduly abridge State’s rights?
- Scope of Commerce Power
- In the Lopez case, the Court has said that there are three categories of activity that Congress may regulate under the commerce power.
i. First, Congress may regulate the use of the channels of interstate commerce.
ii. Second, Congress may regulate the instrumentalities of interstate commerce.
iii. Finally, Congress may regulate people or activities that have a close and substantial relation to interstate commerce.
- HISTORY OF COMMERCE CLAUSE
- GIBBONS v.
i. FACTS:
ii. ISSUE: May the states constitutionally supersede congressional regulation of interstate commerce?
iii. RULE: NO. If both laws passed by the
- THE LOTTERY CASES
i. Court held that lottery tickets were subjects of traffic among those who trade in them and thus, that the carriage of such tickets by independent carriers from one state to another involved interstate commerce. The Court also held that such carriage was subject to regulation by Congress under the Commerce Clause of the United States Constitution. Since the Commerce Clause granted Congress plenary authority over interstate commerce, it was within Congress' power to invoke the Act and prohibit carriage of such tickets among states.
i. FACTS: A complaint was filed against the railroads, alleging that the railroads were discriminating against interstate commerce by charging higher rates for interstate travel than for intrastate travel. The commission ordered the railroads to cease the discriminatory practice, and the commerce court upheld the commission's order.
ii. RULE: The Court upheld the commerce court's order. Where the power of Congress to regulate commerce exists, it dominates.
- HAMMER v. DAGENHART
i. FACTS: Congress enacted an Act which prohibited interstate transportation of products from factories that used child labor.
ii. HOLDING: The court struck down the law since the law was outside the commerce clause and was within the police power of the states. The Court said that Congress is really trying to regulate child labor. This is a pretext in limiting child labor. This is the Isolated Transaction Theory: the Court looks just at what is being regulated, which is stuff being made by kids. The Court looks at the place of manufacture. However, under the String of Commerce Theory the Court would be looking at where the materials come from and where the product goes. If the Court would have used the String of Commerce Theory, the outcome would have been different.
iii. Remember this is no longer the Standard.
TA Session, Commerce Clause
On the exam, Prygoski wants to see 1937 forward. Everything pre 1937 got overruled.
1. Government power as a sword and shield: Any provision of the constitution which is a source of power for a particular government may also serve as a defense against action by another government or branch of govt. IE- the 10th amendment can be used as a source of power for a state when it passes a law (such as criminal law). However, when congress passes a law which arguably abridges a states powers, the state may assert the 10th amendment as a defense against that congressional action (such as the argument that a federal law requiring local police to investigate & report on purchasers of handguns violate a state’s ability to decide how to deliver police services to its citizens).
For the exam:
2. There are two ways to invalidate a statute: when analyzing the constitutionality of a
congressional action, there are two ways for a court to invalidate the action:
a) Eliminate the power source. Show by case law that it doesn’t apply or it isn’t
working. Plaintiff asserts that the legislature exceeded the scope of the
constitutional provision on which it relied to pass a law.
Or, if that doesn’t work:
b) Balance it out under the 10th Amendment. The shield – the states would say,
because of our 10th Amendment right to be sovereign, you can’t do this. Under the balancing approach, the law is presumptively within a constitutional power
source, but it is invalid if it contravenes some other provision of the constitution.
Outline dump!
Refer to Cheat Sheet…
Prygoski likes to use cases as multiple choice questions. Ex.: McCulloch v.
Prygoski’s own explanation that should appear on your Blue Book:
NLRB established stream of commerce. To include intrastate activity, which is any intrastate activity that has a close and substantial effect on interstate commerce can be regulated by Congress. This is the beginning of the shift towards more power for Congress. Next, Wickard explained and expanded the rule from NRLB and explains what substantially related is via aggregation theory, which just says if this conduct is universalized, would this conduct have a close and substantial effect on interstate commerce? If yes according to Wickard, they can regulate it. Then, Perez goes further and says that if a class affects interstate commerce, they can get anyone in the class. Then you have Darby to put the icing the cake to take away the states’ power under the 10th Amendment. Basically from about 1941-1991, Congress could get to about anything they wanted. This was a huge expansion of federal power.
Divide Outline into four groups:
1. Scope of the authority:
a) Judicial
b) Legislative
c) Executive
2. Limitations:
a) Judicial
b) Legislative
c) Executive
3.
Expressio unius est exclusio alterius (The express mention of one thing excludes all others)
Items not on the list are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes."
Not all congressional powers are located in Article I, § 8.
COMMERCE CLAUSE
What can be regulated by Congress?
Lopez & Morrison
i. Channel: Highways, waterways, airways, Internet.
ii. Instrumentalities: Ships, planes, trucks – the stuff that goes on the channels.
iii. Substantial Effects Test (Substantial is in the eye of the beholder):
A. Economic or Commercial. Is the nature of the conduct or activity being regulated economic? Is possession of a gun a commercial transaction? The more economic
or commercial the activity is, the more likely Congress can regulate it under the
Commerce Clause and the Substantial Effects Test.
B. Jurisdictional Element or Jurisdictional Nexus. Definition: The law should
mention crossing state lines at some point. We look to see if Congress included
a jurisdictional element or nexus in the law.
C. Congressional hearings/Make Findings: In Lopez, Rehnquist said that there
wasn’t anything to go on – no questions, no findings. How are we supposed to
conclude that there is a connection between guns near schools and interstate
commerce if there is no evidence?
D. jAttenuation (to make or become weaker). How many steps do you have to take
to get from possessing a gun around a school to impacting the national economy?
The more steps you have to take, the less likely that it is a valid regulation of
interstate commerce. If you won’t expose yourself to violence, you won’t leave the house (VAWA or Morrison example). Guns in schools, kids won’t go to school,
won’t get good jobs, poor quality workmanship, etc. (Lopez example).
For Exam: Can Congress regulate this activity? The deeper issue is, does that activity have a substantial affect on interstate commerce? When you analyze that question, the Supreme Court wants you to look at the Substantial Effects Test (and don’t forget to define each one). If the law is valid, go through Rehnquistian steps under Attenuation.
[§ 155] Wage and Hour Restrictions
The Court held that Congress could not require certain bituminous coal producers to comply with federal minimum-wage and maximum-hour requirements. The mining of coal was a purely local activity that fell outside the reach of the Commerce Power. Carter v. Carter Coal Co. 298
[§ 158] Close and Substantial Effect on Commerce
Congress can, under Commerce Power, reach intrastate activities if those activities have a close and substantial effect on interstate commerce.
The Court adopted Justice Cardozo’s approach, thus Congress could restrict the ability of a steel company to discharge employees because of union activity. The Commerce Clause was held to be a sufficient basis for the National Labor Relations Act which Congress passed to deal with labor-management issues. The Court suggested that it would proceed on a case by case basis to determine if the activity Congress was regulating had a close and substantial relationship to commerce. NLRB v. Jones Laughlin Steel Corp., 301
312
Held: Congress could regulate productive activity that had a substantial effect on commerce.
Rule: The power to Congress to regulate interstate commerce extends to the regulation through legislative activities intrastate which have a substantial effect on the commerce of the exercise of the Congressional power over it.
Facts: Purpose of the Fair Labor Standards Act is to prevent goods made under substandard working conditions from entering into interstate commerce. It is a regulation of health laws posing as wage legislation.
Procedural History: The District Court held that the Act was unconstitutional because it sought to regulate hours and wages of employees in local manufacturing activities.
Issues:
1. Does Congress have constitutional power to prohibit the shipment in interstate commerce of prohibited goods (lumber manufactured by employees whose wages do not meet the prescribed minimum)?
2. Does the Congress have the power to prohibit the employment of workmen in the production of goods for interstate commerce other than prescribed wages and hours?
Holding and Reasoning:
1. Yes. If the shipments are reaching other customers in other states, then the long arm of Congress may extend to those companies and regulate their activity (under the Commerce Clause). Substandard wages competes with industries in other states.
2. Yes. Congress has the power to use any means to accomplish a legitimate end.
- In the current case, Congress can regulate intrastate activities as long as the end is to control interstate commerce.
- “Congress, having by the present Act adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards, may choose the means reasonably adapted to the attainment of the permitted end, even though they involve control of intrastate activities”.
Darby also expanded Congress’ ability to regulate through the Commerce Clause by endorsing a bootstrapping approach which linked the Commerce Clause and Necessary and Proper Clauses. Since Congress could under the Commerce Clause regulate the interstate movement of goods made using certain labor it could also regulate production of such goods as a means reasonably adapted to achieve the permitted end.
Judgment: Reversed.
Note 2, page 82: Darby’s revival of Lottery and its progeny encouraged widespread use by Congress of its “police” power to exclude from interstate commerce commodities and activities thought harmful to the nation, though the harm itself often occurred only at a local level. Additional uses of this power include prohibitions on interstate transportation of stolen vehicles or other stolen goods, and of persons in furtherance of a scheme to defraud; interstate shipment of gambling devices and wagering materials, and of firearms to or by persons indicted or convicted of a serious crime; and interstate travel to incite, encourage or participate in a riot, or in aid of “racketeering enterprises.”
332
Conviction of retail druggist for failure to affix warning label
The federal Food, Drug and Cosmetic Act was designed to safeguard the consumer by applying the Act to articles from the moment of their introduction into interstate commerce all the way to the moment of their delivery to the ultimate consumer.
The Court affirmed the constitutional power of Congress under the Commerce Clause to regulate the branding of articles that have completed an interstate shipment and are being held for future sales in purely local or intrastate commerce.
Here we learn about the jurisdictional nexus. Anywhere in the transaction, if you put state lines in there, you’ve now made it a matter of an interstate activity instead of an intrastate activity.
Scarborough v.
431
The Court interpreted a federal statute as making it a crime for a convicted felon to possess a firearm as long as there existed “the minimal nexus that the firearm have been, at some time, in interstate commerce with little concern for when the nexus with commerce occurred” – even before the accused was convicted.
Citing
When to use jurisdictional element vs. jurisdictional nexus: Jurisdictional element = criminal elements. A prosecutor has to prove all elements to win his case.
Aggregation Theory
[§159] Congress can, under the Commerce Power, reach an intrastate activity which, by itself, has a minimal impact on interstate commerce, if that activity, taken together with all other examples of that activity, has a substantial impact on interstate commerce.
Wickard v. Filburn
17
The Court upheld, as applied to a small farmer, a federal law limiting the amount of wheat that could be grown by one person. Even though Filburn’s activity by itself had a negligible impact on commerce, Congress could regulate him because, in the aggregate, Filburn’s activity, together with that of other farmers across the country, had a substantial impact on interstate commerce.
The Agricultural Act of 1938 prohibits growing too much wheat. “Aggregation Principal.” What if every farmer was doing it? What would be the impact? The limit: Enough of anything has an impact on national commerce. If it’s not an economic activity to begin with, cannot aggregate.
i. Is wheat a channel of interstate commerce? No.
ii. Is wheat production an instrumentality of interstate commerce? No.
iii. Therefore, you have to demonstrate that wheat production is an activity that has a substantial effect on interstate commerce to uphold this law.
A. Magic words on an exam: This case is like…or this case is distinguishable
from…Is growing wheat like possessing a firearm or is it distinguishable? Your
answer should be something like: With regard to this wheat, I wasn’t going to sell it; I was going to use it on the farm – not for commercial purposes.
D. You would argue that Filburn is of no consequence. 239 bushels compared to the
national economy? Get lost. The question becomes, do we isolate the activity of
the one person who’s violated the act, or do we look at whether everybody
subject to the act was doing the same thing? The Court comes down to the
aggregation theory. This case is widely applied. Even though your client’s
conduct has no impact on the national economy, the question really is, if
everybody was doing what your client was doing the impact would be
substantial.
Rehnquist said that we only apply aggregation to economic activity. The Court is likely to decline aggregation on non-economic activity.
Wickard allowed Congress to regulate farm production intended solely for consumption on the farm. The cumulative effect of such production, when aggregated could have a substantial effect on commerce, thereby justifying federal regulation.
392
[§168] The Court upheld the application of the Fair Labor Standards Act minimum-wage and maximum-hour provisions to state schools and hospitals. The Court reasoned that the law did not contravene the Tenth Amendment because states were simply held to the same standards as private employers.
[§159.1] Regulation of Class of Activities
Where a class of activities is within the reach of the Commerce Power, Congress may regulate any particular actor or activity within the class.
Perez v.
402
Loan sharking case
The Court upheld Congress’ ban on purely intrastate extortionate credit transactions because they may affect interstate commerce. The federal Consumers Credit Protection Act legitimately was applied to local loan sharks because Congress could reasonably conclude that loan sharking is an integral part of organized crime which, in the aggregate, affects interstate commerce. The Court said that where a class of activities is within the Commerce Power, courts have no power to excise, as trivial individual instances of the class.
If it’s not an economic activity, the Court is not likely to aggregate. Why is it economic? What is loan sharking? It is a financial transaction.
You would argue that my client’s activities have no impact on commerce. Commerce should be regulating a class of activities.
Shivo case: Congress passes a law saying Federal Courts have jurisdiction to review Terry Shivo’s case. Usually those types of issues are left up to states. When medical care applies to one person, what’s the problem with the Commerce Clause? In order for it to affect the national economy under Perez, it has to be a class of activities. In other words, could Congress conceivably have regulated the healthcare of all persons similarly situated? Yes, but what about one person? It was a political maneuver way beyond Congress’ scope.
Woods v. Cloyd W. Miller Co.
333
[§ 190] Under Article I, Section 8 of the Constitution, Congress has the power to declare war, raise armies and navies, and provide for the national defense.
When used together with the Necessary and Proper Clause, Congress may exercise this power in peacetime as well as in wartime. Not only may Congress declare war, it may also prepare for future wars, wage war once it has begun, and deal with the social and economic consequences of past wars.
In this case, the Court upheld the continuation of federal rent control after the end of WW II. The Court said that the war power does not necessarily end with the cessation of hostilities; Congress must be able to remedy conditions created by the mobilizations of persons and materials for war. As long as the effects of war continue to be felt in society and are reasonably traceable to the war, Congress may use the war power to alleviate problems which flowed from the hostilities.
Heart of Atlanta Motel, Inc. v.
379
The Modern Commerce Clause jurisprudence followed from Darby and Wickard and featured extensive deference to Congress.
The 1964 Civil Rights Act rested on the Commerce Clause. The Court upheld the Act in Heart of
If you run something that’s open to the public, you may not discriminate on the basis of race or ethnicity. 14th Amendment deals with state actors and how a state may treat citizens. Because restaurants, hotels, etc. were private and not public, Congress did not have power over them until 1964 and the use of the Commerce Clause. The Court was asked to reanalyze the same law but under a different congressional authority.
If you don’t like a law passed by Congress, you argue that it exceeds the scope of congressional authority to regulate commerce.
Issue: If all motels continue to discriminate on the basis of race, will that have a substantial impact on commerce?
Evidence: Travelers cross state lines. People are not going to take interstate trips if you have no place to stay.
[§163] Civil Rights
Katzenbach v. McClung
379
Issue: Whether Title II, as applied to a restaurant receiving about $70,000 worth of food which has moved in commerce, is a valid exercise of the power of Congress.
Spending is less from blacks after discounting for income differences in areas where discrimination is widely practiced
The Court upheld the ability of Congress to pass Title II of the Civil Rights Act of 1964 which forbade discrimination by race or color in hotels, motels, or restaurants that are in interstate commerce. The Court upheld the application of Title II to Ollie’s BBQ, a small restaurant in
Hodel v. Virginia Surface Mining and Reclamation Ass’n.
452
[§160] Congressional Finding of Effect on Commerce
The Court will defer to a congressional finding that a regulated activity or person affects interstate commerce if there is any rational basis for such a finding. If Congress meets this de minimis standard, the only remaining question for the Court is whether the means chosen is rationally related to achieving the legitimate congressional goal.
[§164] The Commerce Power Does Not Allow Congress to Regulate Purely Local Activities.
Congress may not use the Commerce Clause as a justification to criminalize local activity when that activity does not, even when aggregated with similar activity across the country, have a substantial effect on interstate commerce.
US v. Lopez
510
The Court invalidated a federal criminal law that prohibited the possession of a firearm within 1000 feet of a school. The Court, 5-4, reasoned that gun possession in a school zone is not an economic activity that, even when considered along with similar activity nationwide, has a substantial impact on interstate commerce. In this case, the Court said that the federal law is invalid because it did not provide for any case-by-case determination that a particular act of gun possession had a direct relationship with interstate commerce. The Court said that there are three categories of activity that Congress may regulate under the commerce power. First, Congress may regulate the use of channels of interstate commerce. Second, Congress may regulate the instrumentalities of interstate commerce. Finally, Congress may regulate people or activities that have a close and substantial relation to interstate commerce.
Exam: If your exam question says, Congress bans the possession of ______, you are being tested on: Is possessing anything economic?
529
A. Is hitting a woman a commercial transaction?
B. No jurisdiction
C. This time there were hearings and findings (not going to leave home, etc. but Rehnquist thinks they are bogus)
D. Rehnquist doesn’t want a but-for type of cause but a proximate cause
The Court, by a 5-4 vote, invalidated a provision of the 1994 Violence Against Women Act that created a civil cause of action for crimes motivated by gender bias. The plaintiff alleged that she was raped by three students at VA Tech, and she filed a federal lawsuit under VAWA. The Court ruled that Congress exceeded the scope of its commerce power by criminalizing what was a purely local, non-economic activity. The Court, applying Lopez refused to aggregate the effects of localized criminal activity, reasoning that to do so would allow Congress to regulate virtually any local activity whose combined impact affected commerce, such as family law, marriage, divorce, and childrearing.
ISSUE: Is gender motivated violence against women an activity that substantially affects interstate commerce? May Congress regulate non-economic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce? Does the Fourteenth Amendment give Congress the authority to regulate the activities of private parties? Is a state's failure to enact a criminal statute a breach of duty that can satisfy the Fourteenth Amendment's requirement for state action?
RULE OF LAW: Gender motivated violence against women is not an activity that substantially affects interstate commerce. Congress may not regulate non-economic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Fourteenth Amendment does not give Congress the authority to regulate the activities of private parties. A state's failure to enact a criminal statute is not a breach of duty that can satisfy the Fourteenth Amendment's requirement for state action.
This case is like Lopez, not distinguishable from Lopez.
[§163.1 Intrastate noncommercial use of marijuana
Gonzales v. Raich
545
Is it growing it or possessing it?
The Court upheld, under the Commerce Clause, Congress’ power to proscribe the intrastate, noncommercial cultivation and use of marijuana, even when done in compliance with state law. In 1996, the State of
A. If everyone grew their own, it would affect the commodity as a whole
B. No jurisdiction
C. No hearings
D. The federal law at issue in this case is part of the national war on drugs. There is only one step between the war on drugs and national economy.
TA – COMMERCE CLAUSE
G. The Commerce Clause is found in Article I, §8, cl. 3.
H. The Commerce Clause is important because it is a broad and encompassing scope gives Congress a lot of power because the Constitution says so.
I. Give the history of the Commerce Clause in your own words.
J. 1936-1937 a. Switch in time saved nine.
b. New Deal
K. a. NRLB v. Jones:
b. Stream of commerce theory:
L. a. Define Wickard:
b. Aggregation Theory: Not one incident, look at the national level. If every farmer did it, would it have an effect? Look at the product itself.
M. a. Perez (loan shark case):
b. Class of people: What are they doing? If you allow the activity all over the country, would it affect commerce? You are regulating a specific class of people.
Tenth Amendment: If Congress passes a law that impedes on a state’s interest, the state will raise the Tenth Amendment shield. Congress cannot tell a state how to use its state’s police officers. It protects a state to make its own decisions for itself. The concept is based upon Federalism and the Separation of Powers – a weak federal government and a strong state.
N. What does Darby say? (Icing on the cake) It’s a Tenth Amendment issue but it happened during the Commerce Clause history. Darby takes the states’ “shield” away and takes it away – for a while – but it comes back.
O. What case begins to pull back the power of the Commerce Clause? Lopez.
a. Lopez: It tightened NLRB
b. What does Lopez say? Three area of regulable activity:
i. Channels:
iii. Instrumentalities:
iii. Substantial Effect that is economic/commercial in nature:
Remember: Congress may not use the Commerce Clause as a justification
to criminalize local activity when that activity does not, even when
aggregated with similar activity across the country, have a substantial
effect on interstate commerce.
P. What case uses Lopez? Morrison
a. They cut the “power source.” The VAMA law was not economic
Q. What is the current state of affairs?
Gonzales? What happened?
Sample Essay Question:
On
Answer: Issue: Commerce Clause. Under the Commerce Clause, Congress must pass a law under Art. 1…
State the case and the rule behind it
Under NRLB v. Jones, anything that has a close and substantial effect on commerce…
Wickard, Aggregation Theory…
Perez, Class Effect…
Lopez…
Morrison…
Gonzales…
Tenth Amendment answer on page 65
Write on policy and history on exam. Give both sides – make the argument.
Professor Prygoski
COMMERCE CLAUSE
There are two ways to invalidate a law:
1. Blow out the Power Source; and
2. Balance.
The First Method of Invalidating a Law
Blow out the Power Source (Scope of the Commerce Clause): Congress passes a law, allegedly under the Commerce Clause, and somebody challenges it and says, the people or activities regulated are not in interstate commerce. If they are not in interstate commerce, Congress has no power source; therefore, the law is bad.
Narrow Definition of the Commerce Clause
Early in the last century, 1910, 1920s, 1930s, the scope of the Commerce Power was narrow – there was a very narrow scope for interstate commerce. That meant, with the New Deal laws originally (Carter case for example) the Court fairly regularly struck down Commerce Clause laws because what Congress was trying to regulate was not in interstate commerce.
If Congress does not have the power under the Commerce Clause to regulate these activities, who’s got the power? The states. As Commerce Clause shrinks, state power gets bigger – You cannot define one without the other. Conversely, as the Commerce Clause gets bigger, state power shrinks to the point where, if you have a real big Commerce Clause, Congress could preempt the states and the Tenth Amendment wouldn’t mean anything. The Tenth Amendment is the source of state power.
A Switch in Time that Saved Nine.
In the 1920s and 1930s, mining, manufacturing and agriculture were not in interstate commerce – that’s how narrow it was. Justice Thomas still thinks that’s the case. The Depression hits and Congress’ job was to pull the country out – to help the country economically. What Congress does in an absolute state of economic ruin, Congress starts to pass laws for industries – manufacturing, mining, farming, etc., to help pull the country out of the Depression. Originally, the Court initially strikes down law after law. The Court became the bad guy because Congress is trying to help the country and the Court keeps saying the Commerce Clause doesn’t cover that. Finally in 1936, Roosevelt, who had enough of this, proposes his court packing plan. He would appoint up to six more justices for every justice over 70 years or older until we get to 15 on the bench. All of a sudden the Court begins to rethink the Commerce Clause and they switch gears to avoid having six more people on the Court.
After 1937, with Darby, Wickard, and NRLB, the Commerce Clause starts to get big. From 1937 up until Lopez, everything in the country was within the scope of the Commerce Clause. The Commerce Clause was enormous. The 10th Amendment was not a limitation on congressional power. You couldn’t invalidate a congressional Commerce Clause law either way – you couldn’t say that something was outside the scope of the Commerce Clause and you couldn’t say that the 10th Amendment served as a check on congressional power.
Redefining the Commerce Clause
More conservatives are appointed to the Court – Scalia, Thomas, and Rehnquist. Conservative justices are going to be state’s rights justices. They believe in limited government, they don’t think the federal government should have unfettered power and they really, honestly think that the states have to mean something in our federal system. As of Lopez, you start to get the Court reinvigorating the 10th amendment and they do that by redefining the Commerce Clause. In Lopez, Congress passed a law stating the private possession of a handgun within 1000 feet of a school is a crime.
For Exam: States have police powers. States have the ability to regulate for the general welfare. A regulation is a mandatory law. A state can say, a gun within 1000 feet of a school is a crime – it’s a Tenth Amendment police power. Congress has no general police power. Under our system, Congress cannot just past a criminal law for the whole country because it thinks it’s a good idea. If Congress wants to do police power stuff, it has to tie that law to the Commerce Clause. So, if Congress wants to prohibit guns within 1000 feet of a school, somehow they have to say it’s related to interstate commerce.
Jurisdictional Element
Lopez’s argument is that a gun within 1000 feet of a school has nothing to do with commerce. The majority of the court (5-4) says Lopez is right – it is not in interstate commerce. The prosecutor has to prove that this particular gun was related to interstate commerce. If the prosecutor can prove that, then they can go forward with the prosecution. The jurisdictional element simply means that in the law passed by Congress there is a provision that says (Prygoski didn’t finish the sentence!) There was no jurisdictional element in Lopez.
Three Categories of Lopez
Lopez gives us three categories of things that can be regulated under the Commerce Clause.
For Exam: Damn well better say Lopez and the three categories.
1. Channels;
2. Instrumentalities; and
3. Close and Substantial relationship to interstate commerce.
1 and 2 are self evident. Most often what comes up is whether the people or the activity regulated has a close and substantial relationship to interstate commerce.
Close and Substantial Relationship
The standard is, Congress may regulate anything that has a close and substantial relationship to interstate commerce. The question becomes, how do you prove close and substantial relationship?
Two ways to show a close and substantial relationship:
1. Stream of Commerce. How direct is the relationship? You look at the stream of commerce. For instance, In Katzenbach v. McClung (Ollie’s BBQ) or in Heart of Atlanta (a great stream of commerce case and direct relationship), what kinds of relationships point to Heart of Atlanta? Where do they advertise? Where do they get their stuff for their hotel? Interstate right? You just place the hotel right in the middle of the stream of commerce. They are engaged in a commercial activity – they get people from out-of-state, they advertise out-of-state, they get their stuff for the hotel from out-of-state – it’s right in the middle of it.
2. Aggregation theory. The aggregation theory from Wickard v. Filburn is a means – a way to show that what is regulated has a close and substantial relationship to commerce. That’s why you do the aggregation stuff – you are showing a close and substantial relationship. The aggregation theory is nothing more than, what if everybody did it? It’s the add ‘em up theory. IMPORTANT: With the aggregation theory, the Court looks at the activity in the aggregate – the activity added up against the country. And then the Court says, does that aggregated activity have a close and substantial relationship to interstate commerce? We have 300 million people. I don’t know what in the aggregate that doesn’t closely and substantially effect interstate commerce. The rule is: If the aggregated activity closely and substantially effects interstate commerce, Perez tells us that Congress may then reach any individual actor in the class even if that actor has nothing to do with interstate commerce. If the aggregated activity has a close and substantial relationship, Congress can reach that activity and reach anybody engaging in it even if the person has nothing to do with interstate commerce.
Perez Example: Loan shark at Cooley who gives out student loans and charges 38% interest. The feds come after him. His argument is I have nothing to do with interstate commerce. I’ve never been out of
For Exam: If you get one of these questions, TELL ME HOW. Don’t be conclusory. With loan sharking, what’s the connection? How does loan sharking across the country in the aggregate effect interstate commerce? Is it going to effect the rates at banks?
Gonzales Example: She’s sick, got six plants and she’s smoking a little weed to make herself feel better. She’s not selling it, she’s not even buying it. The lunatic government comes in and DEA agents have a standoff with this woman. Under Federal Controlled Substances Act, Congress can reach those plants. She didn’t have a damn thing to do with interstate commerce. The right question is, does the illegal growing of marijuana in the aggregate across the country effect interstate commerce? The Court says, in the aggregate, nationwide, the illegal growing of marijuana has close and substantial impact on interstate commerce because lots and lots of it is sold interstate. If the aggregated market effects interstate commerce, they can get Ms. Raich out in
For Exam: I don’t care where you come out on this. What I care about is how you get there. On the exam, please talk about both sides. Make your answer a memo, not a brief.
If you use your own marijuana, you’re not using prescription drugs; therefore, you are effecting interstate commerce by not purchasing from pharmaceutical companies.
Does the activity have to be commercial? The test is from Wickard, Lopez, Morrison, and Gonzalez. The test is whether it has a close and substantial relationship to interstate commerce. Does the activity aggregated have to be commercial? In Lopez there is language where the court says yes it does and if it’s not commercial, you can’t aggregate. However, after Gonzales, I don’t know if that is still the case.
Two Cases I Asked About On an Exam
There’s a federal law that says that if you are a dead-beat dad, and you have a state court child support decree ordering you to pay for a kid in another state and you don’t pay for your kid, it’s a federal crime. In one year there were 6 billion dollars in un-paid interstate child support ordered by state courts. In two separate circuits, two guys were arrested under this law for not paying for their out-of-state kids. The both made the same argument – child support payments are not in interstate commerce. One court used the test and said, does $6 billion in interstate payments have a close and substantial relationship on interstate commerce. If you ask it that way, sure it does.
The other court struck down the law saying a child support payment is not commercial – nothing is bought or sold. Payments are ordered by the court. It’s not a question of bargaining – it’s not commercial.
For Exam: If you want to pick up a lot of points on the exam, talk about what I just talked about. Ask whether the activity itself is commercial in nature, which means, does the activity itself involve buying or selling? But then say, there is this other theory that seems to be supported by Gonzales v. Raich that if the activity simply effects commerce, it may be regulated even if it all by itself is not commercial. Growing six marijuana plants in your back yard isn’t commercial right? Is it intrinsically commercial?
All that has to do with the scope of the commerce power – channels, instrumentalities, close and substantial. How do you show close and substantial? (1) The stream of commerce, including the direct relationship; and (2) The aggregation theory.
If something is not within the scope of the commerce power, there is no power source for the law and the law is bad.
Page 132
Blow Out the Power Source
Blowing out the power source involves determining whether the people or the activities regulated are in interstate commerce. If they are, the congressional law is good. If they are not, there is no power source and you throw it out. Once you have done the analysis having to do with the scope of commerce power, what you have done is presumptively established that Congress may regulate those people or the activity. Then you have to balance.
Balance
You have to see if the congressional law is interfering with any other constitutional rights or powers. In this course, the main balance is going to be the Commerce Clause versus the Tenth Amendment – it’s a federalism balance. The question is going to be whether the congressional law which is within the scope of the commerce power interferes with states’ rights or state’s powers. The question becomes, does this presumptively valid congressional law interfere with states’ rights too much? How much is too much?
Divide states’ rights into two main categories:
1. States’ ability to structure itself to determine how it is going to look – cameral legislation or bicameral legislation. To determine how it is going to operate – are you going to elect or appoint judges? The state’s ability to structure itself is a purely corporate right; it has nothing to do with citizens other than citizens vote on it. It is a state deciding what it is going to look like and what it is going to do.
2. Ability of the state to provide services to its citizens. Fire, police, health, schools, infrastructure, etc. The question becomes, under one theory, the Court determines what are essential attributes of state sovereignty? Then the Court will balance the congressional interest with the states’ interest. The question being, how much is Congress interfering with an essential attribute of state sovereignty. The Court defines the state attribute and the Court decides whether Congress is screwing it up too much.
National League of Cities v. Usery
426
Good example of Balancing Test case
Congress extends the Fair Labor Standard Act to cities, municipalities and counties. It is challenged by the National League of Cities.
Two ways to invalidate a law:
1. Blow out the Power Source: You can’t in this case – wages and hours in the aggregate have a close and substantial impact on interstate commerce.
Plan B:
2. Balance: The Court asks whether the law interferes too greatly with an essential attribute of state sovereignty.
The Court considered
Garcia v. San Antonio Metro. Transit Auth.
489
Overruled National League of Cities
One of the dumbest cases in the history of the Supreme Court.
For Exam: If you get a question involving a federal law that is mandatory – a prohibition (can’t do this) or a requirement (you must do this). Look at who’s regulating and what are they doing? If it’s Congress passing a mandatory law, chances are its commerce. The first step is to run through a Lopez aggregation analysis to determine if what is regulated is in interstate commerce. If you say no then the law is bad BUT argue both sides. I think the law is bad but… Then go to the second stage of the analysis which is to see if it the congressional law interferes with some attribute of state sovereignty. Here’s the deal after Garcia. Before you get to the balancing analysis, please ask this question: Who is regulated by the congressional law?
Two Choices:
1. If the congressional law regulates states and private parties – do Garcia
2. If the congressional law regulates only states – do Printz and New York v. US
What Garcia Means: States and Private Parties
Garcia involves the application of the Fair Labor Standards Act, wage and hour provisions to municipally owned and operated mass transit systems. Congress extends wage and hour laws to municipally owned mass transit systems. One thing to keep in mind: The wage and hour laws applied to a bunch of other people before they were extended to the Metropolitan Transit Authority – it applies to private and government entities.
This case applies to states and private parties. What the Court does in Garcia is reject National League of Cities. Do not cite National League of Cities as precedent; however, For Exam: If you talk about the theory of National League, you’ll pick up some points. The theory is Congress cannot interfere with states too much. But the Court is not going to balance. The Court rejects National League (Blackmun) because Federal Courts are not competent to decide what essential attributes of state sovereignty are.
“Any rule of state immunity that looks to the traditional, integral, or necessary nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes.”
How are states protected from a law that applies to states and private parties? The Court is not going to protect them. Congress gets to decide how much power the states’ get. Congress gets to make the call whether states are protected if they get to play. It was designed to protect the states from overreaching. Let me tell you what’s wrong with that. The design of Congress is set up to protect states from congressional overreaching. Is the design of Congress set up to protect Congress from overreaching in relation to a particular state? Under this theory, if it’s a state and a private party affected, Congress will protect the states.
Powell’s dissent: Today’s decision effectively reduces the Tenth Amendment to meaningless rhetoric when Congress acts pursuant to the Commerce Clause. Prygoski: Absolutely right.
For Exam: The Tenth Amendment means absolutely nothing when Congress, under the Commerce Clause, regulates both states and private parties. When Congress regulates both states and private parties, the Court has no role to play in terms of protecting the states and the Tenth Amendment means absolutely nothing. When Congress passes a generally applicable law that applies to states and private parties, it’s good. The question becomes whether the law is within the scope of the commerce power. Once it’s within the scope of the commerce power, the game is over and it’s good.
Second Scenario: Where Congress Regulates Only States
From a federalism perspective, why should regulation of just states be more suspect as opposed to Congress regulating states and private parties? If they’re going after McDonald’s, the purpose of the law is not to interfere with sovereignty. If they’re regulating McDonald’s they’ve got to have some federalism neutral reason for the law. If Congress goes after just states – if the law is crafted so that it effects just states – then the fear is that it will mess up the federalism balance is greater.
The federal government and every state in the union has three branches of government. When we talk about Congress interfering with states under Printz and
505
Congress passed a law dealing with the disposal of low-level radioactive waste. For Exam: What is the first question you ask if you see that on an exam?
Step 1 – Scope of the Commerce Clause: Is the disposal of low-level radioactive waste in the aggregate closely and substantially related to interstate commerce? The Court is going to say yes in a heartbeat, which they did. The law is presumptively good as a Commerce Clause law.
Step 2 – Whom is it regulating? If this law only applied to states, it isn’t a Garcia. It only applied to states.
1. Is the law presumptively valid under the Commerce Clause? Yes.
2. Whom is it regulating? Just states.
The Court said that law commandeered the state legislature. Congress required the
How is it that all the nuclear waste has to be shipped to
Printz v. US
521
Congress commandeers state executive officials (there’s an added argument)
The Court, by a 5-4 vote, invalidated a provision of the Brady Handgun Violence Prevention Act (the Act) that required the chief law enforcement officer of each local jurisdiction in the country to conduct background checks on prospective handgun buyers and to perform other ministerial tasks related to the purchase of handguns. The Court ruled that, similar to
First step on exam:
Step 1: Is it within the scope of the commerce clause? What is being regulated here? The purchase and sale of handguns. In the aggregate does the sale of handguns have a close and substantial impact on interstate commerce? Yes, so this law is presumptively good. Who is regulated by it? Just local cops – local executive branch officials. This law involves an unfunded mandate. Congress is telling a state to do something without giving them money. Congress is forcing the state executive branch officers to do something and not paying for it.
What argument are you going to make on behalf of the law enforcement officers – what is wrong with this congressional law from a federalism perspective? They are interfering with a state’s ability to structure themselves and provide services. How? Who ought to control local cops? The chief of police should decide what he or she is going to do and what the cops are going to do. They are interfering with the state’s ability to protect themselves because they’re not out catching the bad guys. They are pushing paper for the feds – doing reports, background checks at the behest of the federal government. Congress is controlling local cops. They cannot structure themselves and their ability to provide services, mainly to protect citizens, is going to be impaired. You have the accountability problem here as well. The state legislature is supposed to be accountable to the constituents. Who controls what local cops do? The people in the jurisdiction so you have the accountability problem. Those problems are common to Congress regulating state legislatures and Congress regulating state executives.
The Added Issue When Congress Commandeers the State Executive Branch – The Separation of Powers
This is a separation of powers issue. The theory: Federal law is passed by Congress. The president and the executive branch of the federal government execute the law. Who’s executing the federal law here? The state officers. That’s why having state cops execute a federal law interferes with the proper functioning of separation of powers because it takes power away from the executive branch of the federal government to carryout the laws passed by Congress.
If it’s just a state, please ask which branch of state government is being commandeered. If it’s state legislature you have accountability problems and the ability to structure themselves, maybe provide services, etc. If it’s the state executive branch, you have the same problems plus a separation of powers issue.
For Exam: I asked a question just like this 3-4 terms ago. I had Congress commandeering the executive branch of state government and virtually everybody talked to me about accountability, inability to structure themselves and federalism and all that. Only about 20% of the people talked to me about the separation of powers problem when Congress commandeers the executive branch of a state and has executive officers carry out federal law. If I give you a problem where Congress commandeers a state executive branch, make sure that you talk to me about the separation of powers as well as the other stuff. The key issue is that if you take just a normal look at the functioning government at the federal level, Congress passes the laws and the executive branch of the federal government is supposed to carry them out. What’s going on here is, when Congress commandeers executive officers from a state, they are bypassing the executive branch of the federal government. They are cutting them out of the loop, thus creating a separation of powers issue.
1. Establish the scope of the Commerce Clause. Lopez, Wickard, Gonzales. Are the people or the activities regulated in interstate commerce?
(a) First method of invalidation:
i. if they are not in interstate commerce, you say the law is bad
ii. if the people regulated are in commerce, go to Step 2
2. Balance. Who is regulated by the federal law?
(a) States and private parties: Garcia.
(b) If it’s just states: Printz and/or
528
The Court upheld the federal Driver's Privacy Protection Act (DPPA) which restricts disclosure by state motor vehicle departments private parties of certain personal information about any person contained in motor vehicle records. The Court held that because drivers' information is an article of commerce, the law is within the scope of Congress' commerce power. The Court also ruled that the DPPA did not run afoul of the anti-commandeering rule of
A state motor vehicle department cannot sell information. How come this doesn’t fall within Printz and
“The DPPA does not require the state legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals. Nor does the DPPA regulate the states exclusively.”
THE NATIONAL TAXING AND SPENDING POWERS
Congress has the power to spend and they have the power to tax. Congress can spend in one of two ways:
1. Spend. Build a bomber, a highway, etc.
2. Bribe. Impose conditions on the receipt of money. They create financial inducements. Congress can bribe individuals as well as states.
[§175] Tax as a Revenue-Raiser
When is a tax valid? Two ways:
1. A tax can be valid as a means for a legitimate regulatory goal. Bumper sticker version: If Congress can regulate something, they can tax it.
2. If the tax is designed to raise money and does raise money.
Bailey v. Drexel Furniture Co.
259
As long as the purpose of a taxing measure is to raise revenue, it will be upheld, even if the amount of the tax is oppressive or even destructive.
This is a regulation in drag. You only get socked on the tax if you know that the kid is a kid. The scienter requirement plus the lack of a proportionality made this a regulation.
This would be valid today through the Commerce Clause and if they can regulate it, they can tax it.
How Tax Is Tested On The Exam
The Bar Exam likes to test on Selective Tax.
Example 1: Congress imposes a tax on the five highest grossing sports events of the year. Is that tax valid? Only taxing five events? What about the rest of them? Apply the rules: Is the tax designed to and does it raise money? Yes, the tax is valid.
Example 2: Congress imposes a tax on the five highest grossing airports in the country. Is the tax valid? Is it designed to and does it raise money? Yes, the tax is valid.
REGULATION THROUGH SPENDING
SPENDING POWER
[§180] Under the Spending Power, Congress has the power to spend “for the general welfare.”
Sabri v. US
541
Remember that Congress does not have any explicit constitutional power to regulate for the general welfare (even though it may do so under the Commerce Power). In other words, Congress has no general police power similar to that of the states. Remember that Congress does have a constitutionally-based police power over the
[§182] Is the Law Voluntary?
297
Coercion by economic pressure
We don’t have the Commerce Clause yet so under the spending power, Congress offers a bribe to farmers under the condition that farmers do not grow too much crop in order to keep the prices high during the depression. The Court said the bribe was not valid because the farmers had no choice. For a bribe or financial inducement or a condition on the receipt of money to be valid, there has to be a choice on the part of the person being bribed to accept or decline the inducement.
If the law leaves the recipient with a theoretical choice to accept or reject the federal "strings" accompanying the grant, the law will be upheld. The last time the “Court” invalidated a spending measure on the basis that it was coercive rather than voluntary was in 1936. In United States v. Butler, the Court struck down a federal law under which the government contracted with farmers to limit the number of acres of specified crops they planted. The Court ruled that the regulation was not voluntary because, due to the Depression, the farmers had no choice except to agree to the terms offered by the government.
RULE OF LAW: Congress cannot tax in an area of local concern. The taxing power cannot be used to purchase compliance with a regulation that Congress has not power to enact.
For Exam: Congress passes a law. If you get a financial inducement to do something or to refrain from something, and you look at it and say, that’s not voluntary – they do not have a choice. For instance, a congressional law aimed at states that said, we’ll give you 2% more highway money to reduce drunken driving limit. There’s a choice. What if Congress said reduce your drunken driving limit or we will withhold 100% of your highway money.
Step 1: Look to see if that law was valid under the spending power. Is that a legitimate spending measure, in other words, is it a legitimate right? It is not because it is not voluntary. If it is not voluntary it’s coercive or mandatory.
Step 2: Then analyze the spending measure through the Commerce Clause. It still may be valid if it meets the Commerce Clause rules. Remember: If Congress passes a law it does not have to say what provision it relied on. They have to step up to the plate later when it is challenged but if the law is invalid under spending because there is no choice, it devolves and collapses into a Commerce Clause analysis because of choice. If the operation of it is such that it has no choice, then it becomes US v. Butler and gets analyzed under the Commerce Clause
Tenth Amendment
Since the
Individual Rights
Congress may not spend money in a way that violates the constitutional rights of individuals.
[§183] Is the Condition on the Receipt of Money Related to the General Purpose of the Federal Grant?
483
Use this case if it is voluntary. If it’s mandatory, use Commerce Clause analysis.
Although the Court has never invalidated a law on the basis that a condition on the receipt of federal funds was unrelated to the general purpose of the federal expenditure, it has raised the possibility that conditions on federal grants may be invalid if unrelated to the federal purpose in passing the spending measure. In this case, this issue would arise if Congress conditioned the receipt of federal highway funds on a state’s willingness to pass a restrictive abortion law.
Congress has the power to spend under the general welfare. Congress does not have the power to regulate for the general welfare – that’s a police power and Congress doesn’t have it. What is general welfare? Whatever Congress says it is, meaning that if Congress claims that it is for the general welfare, the Court is only going to ask rational basis scrutiny to review that. They ask the lunacy question – did Congress go completely insane in claiming that this is for the general welfare?
1. Is it arguably for the general welfare?
Example: Raise the drinking age to 21. Is that arguably for the general welfare? Yes, it is arguably true. Speed limit of 55? It may not be true but is it arguably true? If the answer is no, they did not go nuts, the law is good.
2. It has to be voluntary.
3. To be valid, the condition on the receipt of money has to be related to the purpose of the expenditure.
Example: In
A bribe is not commandeering. Commandeering is forcing the state executive or legislature to do something – this is voluntary. If the government in Printz had offered to give money to the state cops of
TREATIES AS A SOURCE OF LEGISLATIVE POWER
[§200] A Treaty May be a Source of Legislative Power
The ability of Congress to pass a law to implement a treaty constitutes an independent source of congressional power, over and above any enumerated powers the Constitution gives to Congress.
Treaty: Agreement between our President and a chief executive of another country. For it to be a treaty Senate ratification must be present by 2/3 of the Senate. This is a Constitutional exception to bicameralism. For a treaty to be valid our President enters into a treaty with another president and 2/3 of the Senate must ratify it.
Two kinds of Treaties
1. Self executing. The president enters into the agreement, ratified by 2/3 of the Senate and the treaty itself is complete. It has all the enforcement rules, punishment, compliance and regulations in it. It is a complete document. After ratification, it goes into effect and has the force of law. It doesn’t need anything else.
2. Non-self executing. It is an agreement in principal – an agreement to agree. Two presidents agree on an issue but it is not complete. When that treaty is ratified by 2/3 of the Senate, it needs implementing legislation – the details. It needs to have the blanks filled in. Congress has to pass a law implementing that treaty. For Exam: Any treaty must be ratified by 2/3 of the Senate first. Then, if it’s a non-self executing treaty that needs implementing legislation, it must pass by majority vote in both the House and the Senate.
For Exam: What happens if there is a conflict between a treaty and a piece of federal legislature? Which one wins? The one that came last or the more recent one wins. Last in time wins. What that means is, Congress can by passing a law aggregate a treaty.
This is relevant today. Why can’t we torture the detainees in
What happens if there is a conflict between treaty and a state law? The treaty wins – supremacy clause.
For Exam: Executive Agreement: A pseudo treaty. It’s an agreement entered into between our president and a chief executive of another country with no Senate ratification. Congress plays this as if it is real.
What happens if there is a conflict between a federal law and an executive agreement? Federal law wins because of separation of powers. An executive agreement is a unilateral action by the President with no legislative input at all and therefore dangerous. A federal law has been passed by both houses and submitted to the President for signature.
Veto: Any law has to meet the bicameralism requirement meaning that it has to be passed by the House and the Senate. In addition to bicameralism, the bill has to be presented to the president for signature (presentment). If the president vetoes it, it may be overridden by 2/3 of each house and it goes to where it originated so they vote first.
Law: Something that changes somebody’s rights or status, or responsibilities.
Any time Congress passes a law, eventually they have to point to a provision on the Constitution to authorize it when the law is challenged. That rule applies only in relation to domestic laws – laws passed for the
If they pass a law dealing with another country, as a matter of international law, the US Supreme Court has said that Congress has an intrinsic power to pass laws dealing in foreign affairs. In other words, foreign laws do not have to be based on a specific provision of the Constitution. Every country’s legislature, as a matter of international law, has the power to pass laws dealing with foreign affairs. Also, the President has an intrinsic power to deal in foreign affairs.
252
The Court has treated Congress’ power to pass laws to implement treaties as necessary and proper to the effectuation of the President’s treaty power.
In this case, the Court upheld the federal migratory Bird Treaty Act, implementing a treaty between the
Rule: A treaty may be a source of power. If the President enters into a non-self executing treaty, and it’s ratified by 2/3 of the Senate, Congress may pass whatever laws necessary to implement that treaty even if subject matter of the treaty is not within a specific provision of the Constitution. The treaty itself is the source of power. For instance, it’s 1925 (Congress can’t regulate mining, manufacturing, etc.) and the US and
Below are cases in the reading but not discussed by Professor Prygoski
Jones v. US
529
In Jones v.
537
In Pierce County v. Guillen, the Court upheld a federal statute which prohibited certain materials collected by a state or local government from being admitted into evidence in state or federal court. As an exercise of its Spending Power, Congress passed a statute which provides state and local governments with funding to improve dangerous sections of their roads. Fearing that the collection of data under this statute would increase the liability rate for accidents that happened at hazardous locations, Congress passed a law providing that materials collected for purposes of reporting under the funding measure shall not be admitted into evidence in state or federal court. Relying on Lopez, a unanimous Court upheld the evidentiary law as a proper exercise of Congress' Commerce Clause authority to regulate the channels and instrumentalities of interstate commerce.
Steward Machine Co. v.
301
FACTS: The Social Security Act taxed employers with eight or more employees based on their salaries. The proceeds went into the General Treasury. If a taxpayer contributed to a state fund, he received credit toward the federal tax. Employers could receive a credit up to 90% of these taxes if they also paid into the state unemployment fund if the state fund was certified by the Secretary of the Treasury as meeting minimum criteria with respect to financial stability and accountability. Between 1929 and 1936, unemployment skyrocketed in the
RULE OF LAW: A federal unemployment insurance tax statute which gives credit for contributions made to state unemployment funds is valid because Congress enacted it primarily to safeguard its own treasury, the proceeds of the tax go to the General Treasury and not a special group, and Congress and the states can cooperate to reach this end. Congress may induce state governments to enact legislation Congress wants by the use of the federal spending power. Such a scheme does not violate the Tenth Amendment and the Constitution.
[§201] A Treaty or Executive Agreement Cannot Violate the Constitutional Rights of Individuals.
The Constitution is the supreme law of the land, and its protection of individual rights cannot be contravened by a treaty or executive agreement.
Reid v. Covert
354
The Court ruled that court-martial jurisdiction over civilian dependents of American soldiers abroad cannot be justified by an international executive agreement giving the armed forces jurisdiction to try such civilians for crimes. A treaty or executive agreement cannot authorize the violation of constitutional rights, such as the rights to an indictment and trial by jury, guaranteed by Article III and the Fifth Amendment.
TA
Tenth Amendment Big Picture: If Congress passes a law that impedes a state’s ability to structure its government (commandeering) or provide its services (accountability), that law will be struck down as unconstitutional because of the Tenth Amendment.
Need to know:
Article I, §8 1-18
Article II, know what the President’s powers are
Article III, §2 Clause 2 (jurisdiction of the court)
Darby/National League/Garcia
When you are talking about states and private people, the Court in Darby said, we are going to allow Congress to decide what your Tenth Amendment rights are. National League is more of a conservative look at the Tenth Amendment. National League says that the Court will decide what the states’ Tenth Amendment rights are and then we will litigate based on what those rights are (structure its government and provide its services). National League was overruled by Garcia. Garcia is the current way to analyze the Tenth Amendment. Garcia takes some of the power away and basically says the Court will not hear a Tenth Amendment case. If you don’t like what Congress is doing, use the political process and elect new people – it’s a political question.
States and Private People: Garcia
States Only:
Make the babies are dying argument for Tenth Amendment arguments.
A conservative Court argues for strong state rights – make those arguments and collect points.
You blow out the power source with the Commerce Clause and you balance at the Tenth Amendment – don’t say balance the Commerce Clause!
Commerce Clause: NRLB, Wickard, Perez, and Lopez. Mention Morrison and Gonzalez v. Raich (Gonzales shows the limbo of the Court).
State in essay: “It appears the Commerce Clause power source would be blown out because of ________ and ________. However, I will now talk about the Tenth Amendment and how to balance this law out to make it unconstitutional.”
Use “unlike this case” and “like this case.”
If you can blow out the power source, the law is unconstitutional. If you can’t cut it, go to the Tenth Amendment argument. Determine first if it is a state and a private party being regulated? If so, use Garcia. In Garcia we are told to use the national political process. If it is a state only regulation we use
Professor Prygoski
Consider Economic or Commercial, Jurisdictional Element/Jurisdictional Nexus, Congressional Hearings/Make Findings and Attenuation in terms of the scope of the Commerce Clause. Asking whether the people or the activity is regulated are in commerce you want to look at the intrinsic nature of the activity – is it commercial or economic, how closely related to commerce, etc. Attenuation is the same thing – how closely related is it or how far way? How many steps are there in between?
Jurisdictional Element: The law has to have a provision in it that allows the prosecutor to show, based upon objective proof, that the people or activities regulated are in interstate commerce.
In Lopez, the Court struck down the Gun Free School Act because it had no jurisdictional element in it. Congress re-passed it and stuck a jurisdictional element in there. It is a provision of the law that allows for the prosecutor to show the Commerce Clause hook.
Question from student:
Free Exercise case: City of Boerne v. Flores, 521 U.S. 507 (1997), was a Supreme Court case concerning the scope of Congress's enforcement power under the fifth section of the Fourteenth Amendment.
The case arose when the Catholic Archbishop of San Antonio applied for a building permit to enlarge a church in Boerne, Texas. Local zoning authorities denied the permit, relying on an ordinance governing building preservation in a historic district which, they argued, included the church. The Archbishop brought a lawsuit challenging the permit denial under the Religious Freedom Restoration Act of 1993 (RFRA, pronounced "rifra").
Before this case Congress could tell a state court that when they have a free exercise argument, they must use strict scrutiny, not national basis scrutiny – they dictate to state courts what level of review they have to use.
The Court, in an opinion by Justice Anthony Kennedy, struck down RFRA as an unconstitutional use of Congress's enforcement powers. Now Congress can’t go telling state courts how to function.
CHAPTER 3: SEPARATION OF POWERS
Up until now we’ve been talking about Federalism – the up/down relationship Tenth Amendment question. The states are subservient to the federal government because of the Supremacy Clause. The Constitution, federal laws, and treaties take precedence over state laws.
After a
The Difference Between Federalism and Separation of Powers
In a Federalism analysis you have two sovereigns:
1. The federal government is a sovereign; and
2. A state is a sovereign.
They are not the same degree or kind of sovereign. A state has limited sovereignty under the Constitution.
Sovereignty: The ability to govern oneself. A state cannot enter into a treaty with another foreign country. A state has internal sovereignty (within its borders) and the federal government has external sovereignty.
With the separation of powers you have three presumably co-equal branches of the same government.
The main game with the separation of powers: To determine if the acting branch of government interfered too greatly with some rights or powers of another branch. The two ways to invalidate a law – blow out the power source and balance – it still works here.
Here we start out with presidential action affecting congressional powers – domestic lawmaking.
SECTION 1. PRESIDENTIAL ACTION AFFECTING “CONGRESSIONAL” POWERS
I. INTERNAL MATTERS: DOMESTIC LAWMAKING
[§215] The President Does Not Have the Power to Seize Private Property.
Under the Fifth Amendment, it is Congress that has the power to take private property for public use, as long as just compensation is paid to the property owner.
343
This case is very important today in relation to President Bush conducting the war on terror. This is the case the Supreme Court and the Court of Appeals keep going back to.
In Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), the Court reviewed President Truman's order to his Secretary of Commerce, Sawyer, to seize and operate most of the country's steel mills in order to avert a strike in the industry. President Truman argued that a steel strike would jeopardize the safety and effectiveness of troops engaged in the Korean police action. The Court invalidated the President's action as not being justified by either the President's power as Commander-in-Chief, or by his power to take care that the laws be faithfully executed. The Commander-in-Chief power was too attenuated a basis for the seizure of private property, and there was no law that the President was executing when he ordered the steel mills to be seized. Since Congress is the only branch of the federal government that may take and pay for private property (see §412, below), the President was violating separation of powers by performing what was essentially a congressional function.
What powers does the President have that the Court talks about in this case? As Commander-in-Chief, civilian control over the military and execute the laws (executive branch). In this case, there was no law enacted that the President could enforce as Chief Executive (he’s 0 for 2 – no constitutional power source).
Power Source Analysis
The seizure of the still mills was not within the Commander-in-Chief power because it’s too attenuated and it’s a restriction on private parties rather than actual control over the military. The President does not have any constitutional power to seize private property, nor to compensate the property owner for the seizure (only Congress does). Again, Congress is the branch of the federal government authorized to spend money).
Presidential power can come from the Constitution or from Congress. In this case, not only did Congress not give the power but also they specifically denied to the President the power to engage in this activity.
Balance Analysis
Seizure of the steel mills would be violating congressional powers because Congress has the power under the Fifth Amendment to seize private property – not the President. How is he going to pay for it? He doesn’t have that power either.
By exercising the power of another branch, the President violated separation of powers because Truman engaged in what should have been a congressional activity – it’s legislative. If Truman does it he is legislating.
For Exam: In relation to the war on terror, if you get a separation of powers question on the essay part of the exam, you’d better talk to me about Justice Jackson’s concurrence from this case.
We are talking about presidential power – when may the President act? If the President acts, that action must be justified either by the Constitution or by Congress. Congress may give the President the power to do certain things. For instance, right after 9/11 Congress passes the Authorization for Use of Military Force. It is a congressional grant to the President of power to do whatever the President thinks necessary to catch the bad guys.
What we are talking about is the interaction between Congress and the President – presidential action and whether Congress authorized it or flat out denied it or didn’t say anything about it.
Justice Jackson wrote an important concurrence in this case, in which he described his vision of how a court should analyze presidential action that arguably crosses the line into congressional powers. The three scenarios he posits are:
The Interaction between Congress and the President
(1) When the President acts pursuant to an express or implied authorization from Congress, presidential power is at its maximum, the Court’s power is at its minimum;
Congress gives the power to the President – his authority is at its maximum. *If the President and Congress are acting together, where is the Court’s power? The Court would apply rational basis scrutiny – a deferential, low-level of review. Rational basis scrutiny means the action is ok unless the actor has gone totally insane. Is there any reasonable basis for what the President did?
The President's power is at its maximum because it includes all that the President possesses and all that Congress can delegate. If Congress tells the President to do X, the President is exercising not only presidential power, but also all congressional power than can be delegated. That means that if the Court is going to strike down the presidential action when Congress gives the President to do something, the federal government as a whole cannot engage in that activity. That means Congress can’t do it, the President can’t do it, working together with Congress can’t do it – it’s outside the scope of federal power period.
(2) When the President acts in the absence of either a congressional grant or denial of authority, the President’s action is in a “twilight zone” of concurrent presidential and congressional authority, and the result of the case may depend more on the imperatives of events, rather than abstract theories of law;
When they haven’t said a damn thing. Think about
(3) When the President acts contrary to the express or implied will of Congress, presidential power is at its minimum (The opposite of [1]);
This is the Youngstown Sheet case. When Congress was debating the Hart act said the President should not have the power to seize private property. When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb because then he can only rely on his own constitutional powers minus any powers of Congress over the matter.
As opposed to the first category, when Congress specifically says, the president should not take certain action, Congress has withdrawn all if its power from the President and the President only has, in a very essential way, whatever powers are granted to him under the Constitution.
What’s the role of the Court when the President’s power is at its lowest ebb and the Court is asked to determine the constitutionality of presidential action? They will use strict scrutiny. In a case where the president acts and Congress either authorizes or denies power, the role of the Court changes depending on what Congress does. If Congress gives the power to the president and the president acts, the Court is going to say, if it’s ok with Congress, it’s ok with us and the Court is going to use rational basis scrutiny. On the other hand, if Congress says, don’t even think about it and the president says, screw you I’m going to do it anyway, and the Court is asked to review presidential action, the role of the Court changes depending on whether or not Congress and the President are working together.
An express authorization is when Congress passes a law. Acquiescence in presidential action over time would be an implied authorization. If Congress allowed the President to seize property six times in the past, that would be an implied will of Congress.
STUDY TIP: Be aware of how the role of a reviewing court would change as we go through Justice Jackson's three fact patterns. If the President's power is at its maximum, the Court will be very deferential to presidential action. If the President's power is at its minimum, the Court will scrutinize the presidential action very carefully. If the presidential action falls within the "twilight zone" of concurrent presidential and congressional authority, the Court will have to balance the competing interests of the President and Congress. Should the role of the court change as a function of presidential and congressional agreement or disagreement? A conservative Justice is likely to say no: the Constitution delineates spheres of power of the respective branches of the federal government, and Congress and the President may not, by agreement, alter that structure. A liberal Justice is likely to adjust the role of the Court depending on the agreement or disagreement of other branches: if Congress and the President concur on a course of action, the Court should defer to the combined will of the political branches.
A question you should think about (a Scaliaesque type question): Should the role of the Court change depending on whether or not Congress and the President are working together? Or, the other argument is, it should not change because it’s the promise and duty of the Court to say what the law is under Marbury v. Madison. This is a flexible separation of powers approach and Scalia has never been known for flexibility.
[§219] Congress May Explicitly Authorize Presidential Action
Congress may, by statute or resolution, authorize the President to take certain action. Even without specific authorization, congressional acquiescence to presidential action may create an inference of congressional authorization.
Dames & Moore v. Reagan
453
Implied authorization and express authorization
This is nothing more than
The Court, per Rehnquist, unanimously upheld presidential executive orders to implement an executive agreement (no Senate ratification) between
There is no place in the Constitution regarding Executive Orders.
In this case, the Court upheld Executive Orders implementing an Executive Agreement between the
[§192] Congress May Delegate to the President the Power to Act in Foreign Affairs
As part of the government’s power to deal in foreign affairs, Congress may vest discretion in the President to implement congressional policy on foreign affairs.
US v. Curtiss-Wright Export Corp.
299
International law 101
When Congress passes a law that operates domestically (within the
The Court upheld the power of Congress to pass a Joint Resolution authorizing the President to place an embargo on the sale of arms to countries involved in armed conflict in
[§251.2] Detention of Citizen Enemy Combatants
Hamdi v. Rumsfeld
542
In Hamdi v. Rumsfeld, the Court ruled that a
Justice O'Connor, writing for four Justices, said that a citizen detainee must receive meaningful and timely notice of the factual basis for his designation as an enemy combatant, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker, with the right to counsel being protected as part of the process.
Justices Souter and Ginsburg concurred on the due process issues. According to a Department of Defense affidavit, Hamdi was affiliated with a Taliban unit in
Ask whether the old rules of war can apply or is it just silly to insist on them given these facts.
After 9/11, Congress authorized the President to “use all necessary and appropriate force” against “nations, organizations, or persons” that he determines “planned, authorized, committed, or aided” in the attacks.
The point is that the authorization for use of military force by its language is tied to 9/11. This gives the President unlimited power to conduct the war on terror
NSA v. ACLU
This case involved a secret, no warrant, no judge, secret electronic surveillance program involving wiretapping. When it started it was directed at communications that originated in the
The domestic spying program was then used to electronically spy on and intercept communications that were purely domestic. This was a secret program put into place by President Bush. It was challenged in
They were doing it without suspicion of any particular person but to establish patterns of communication and then investigate. The Federal Court said that the domestic spying program was outside the scope of the AUMF.
President Bush said Congress gave me the power to engage in electronic surveillance. The Court said no. The President’s fall-back position is he gets his power from Congress and the Constitution. After that opinion Bush changed the program.
A citizen held in the
Hamdi is captured in
Hamdi, an American citizen, is seized during active combat in 2001. The government took the position that he was an enemy combatant. And his status as an enemy combatant justifies holding indefinitely without bringing any formal criminal charges against him. He was held for almost two years with no charges, no attorney, no nothing, based on the assertion that he is an enemy combatant.
Justice O’Connor delivered the judgment of the Court.
“We concluded that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.”
When is the war on terror going to end? How long can they hold Hamdi?
For Exam: This was on an exam and people didn’t get it. Here’s what is going on: Hamdi is an American citizen and is captured in
Under Youngstown Sheet this is a number 1.
The Issue In This Case: Separation Of Powers
Hamdi’s father files a writ of habeas corpus in Federal Court. President Bush doesn’t want Federal Courts to get involved because they will interfere with his ability to conduct the war on terror. Bush wants entire unilateral power to conduct the war on terror as he wants. If a court says, he can file for writ, the courts are “supervising the war.” The courts are going to give him rights and we cannot do things to him. This is a pure power move. It should be a political question. Political questions involve the separation of powers. War is a typical political question where courts don’t get involved as well as foreign affairs. This is not a political question because it involves rights.
The issue in this case was can habeas lie in this case. With a habeas petition you get to show specific facts. This case is used for separation of powers – the President wants to conduct the war as he chooses without court interference – but also for methods of constitutional interpretation.
Methods Of Constitutional Interpretation
Habeas Corpus is an Article I power – a legislative or congressional power. They have to power to suspend habeas in times of rebellion or invasion.
The Suspension Clause: Does the Suspension Clause apply today? Certainly they invaded us. Is it an ongoing invasion or is it over? If it’s an ongoing Congress may suspend habeas, if it’s not, they may not suspend habeas. The question is whether a court can under separation of powers entertain a writ of habeas.
Different Theories
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Literalist Approach: Scalia most of the time is an originalist (literalist). He reads the Constitution and interprets it. He reads the Suspension Clause. The question is, has the writ been suspended under the AUMF? No – nobody on the Court claims it has. If you are a textualist (reading the document and applying it), the writ of habeas corpus has not been suspended by Congress. Hamdi gets full habeas protection. Scalia says this is mandated by the Constitution and Hamdi should be given full rights. He gets all the protections that any citizen defendant would get in an American court.
Thomas’ Dissent: It’s a war – you gotta do what you gotta do. The executive branch had acted with explicit congressional approval and Hamdi’s detention falls squarely within the federal government’s war powers. The rule that comes out of that is war powers trump fundamental rights. The issue: Should the President be able to do whatever he wants? Thomas would define the war powers as literally anything the President
Judgment Of The Court
Prygoski: O’Connor drives me insane. She makes stuff up not related to the Constitution. She announces the judgment of the Court as opposed to the opinion of the Court. She is telling us which way the majority came out. This is precedent on the result, but not precedent on the reasoning.
“The threshold question before us is whether the Executive has the authority to detain citizens who qualify as ‘enemy combatants.’”
“We conclude, however, that AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe.”
What if a democratic Congress came along and repealed the AUMF? Would the President have enough power left over to detain this kind of enemy combatant? There is no power coming from Congress under the AUMF so it would be the raw exercise of constitutional power. Under the law of war, the Commander-in-Chief power would allow the President to detain enemy combatants but maybe not allow for the peripheral stuff the President wants to do.
“We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.”
What if Congress repealed the AUMF and passed a new resolution that said, the President is forbidden from holding citizen enemy combatants? Then you are in category 3 of Youngstown Sheet and you have to figure out what presidential powers are minus congressional powers.
“Even in cases in which the detention of enemy combatants is legally authorized, however, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status.”
Procedural Due Process
They are depriving him of liberty here. Procedural Due Process is used when the government acts on an individual. It is not an issue when the government passes a general law. Hamdi is one person and entitled to due process. Scalia and Stevens would give him full due process. O’Connor says even though the writ has not been suspended, there may be a substitution for habeas corpus that would protect his rights. In other words, he is not entitled to the full protections of the writ of habeas corpus. The courts will make up the standard for due process for detained enemy combatants.
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He’s entitled to some process. The question becomes, how do they determine how much process he gets? We use the test of Mathews v. Eldridge – a three part balancing test to determine how much process somebody is entitled to. It is a procedural due process test.
1) Balance the individual interest involved. Hamdi’s interest – his interest is to not be detained indefinitely without charges and without an attorney in his own country
2) The government’s interest. The war on terror – a compelling government interest
3) The Operative Prong. Look at the procedure used by the government and ask how great a risk of an erroneous deprivation of the person’s rights is there?
“We hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the government’s factual assertions before a neutral decisionmaker.”
Who is a neutral decision maker? Does it have to be a judge? No. Is the military a neutral decisionmaker? O’Connor said that a guy like Hamdi is entitled to some kind of reduced due process. The full due process is habeas corpus. She says, you don’t need that. You can have a substitute because of the exigencies of this kind of war.
Combatant Status Review Tribunals
“There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal.”
That’s what Congress did in 2006 under the Military Commissions Act – a military tribunal of three military officers.
Thomas’ dissent: “The detention falls squarely within the Federal government’s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail.”
He is just focusing only on the compelling government interest in the case.
Think about the methods of interpreting the Constitution, this is a great case for that.
TA – SEPARATION OF POWERS
This week’s material is, in the words of Ziker, pretty straight forward. It is however, testable material. It’s a matter of memorizing treaties, the amount of votes, etc. They really show up on multiple choice. Week 12 or 13 Prygoski will bring in a packet with multiple choice questions to hand out.
Page 67-68 of SS – Memorize
Presidential Action Affecting The Powers of Congress: “War” on Terror
The President has the right to declare war if we were attacked. The argument is: we were attacked on 9/11 and we are responding. Where’s the war? In
Keep updated on Hamdan. Why where the charges dropped. Fodder for an exam.
Youngtown Sheet & Tube v. Sawyer:
Analysis for exam: Did the President exceed his power?
The first step is to make the argument that there was a statute that authorizes the President’s power. Congress said after 9/11 to go after them, you’ve got our nod (
The second step is to see exactly what power the statute is authorizing and if the President also had power to act further. If Congress says to capture whomever, does that give the power to send everyone to
Roughly 10 Separation of Powers questions on multiple choice.
Professor Prygoski
Hamdan is on the exam and is covered next week.
Understand that in Hamdi there are different methods of constitutional interpretation. The case is important but in the bigger picture the case is really important because it illustrates how Scalia, Thomas, and O’Connor interpret the Constitution and their different methods of interpretation.
SECTION 2. CONGRESSIONAL ACTION AFFECTING “PRESIDENTIAL” POWERS
I. DELEGATION OF RULEMAKING POWER
The problem began after the New Deal and the Commerce Clause went nuts. Congress could not handle all the work so it had to give it away to somebody.
Yakus v.
321 US 414, 1944
[§222] Delegation of Power to the Executive Branch
As a general matter, Congress may delegate to the President, other officers in the executive branch, or an independent regulatory commission, the power to promulgate rules and regulations to implement congressional goals.
Rules for Delegation: A delegation of power will be valid if:
(a) Congress has not attempted to give away some nondelegable power (declare war, consent to the appointment of a Justice); There are some things Congress cannot give away because under our structure they’re quintessentially legislative. The Constitution gives these powers to Congress.
(b) Congress has stated the objective of the law; and
(c) Congress has provided specific standards for the executive branch official or independent commission to follow. This applies all over the place. There are two reasons why Congress must give specific standards to the Executive branch:
1. Separation of Powers Problem: Congress still rights the laws. If they give away power and don’t give standards to the Executive branch to use, the executive branch ends
up writing the laws. It’s a way to reign in the Executive – to limit their power.
2. Procedural Due Process Problem: Standards written down in the law have to have a procedural due process/notice component. What is notice? The law has to tell you what to do to avoid being punished. The law also has to tell you what to do to avail itself of the benefits of the law. Absence of standards from the legislature to the executive means that people to whom the law is being applied don’t have notice of what the law says. If congress doesn’t give those standards, they don’t know the punishment.
These are both problems in relation to Congress not giving specific enough standards to the executive branch. It has to be an “intelligible principle.”
The Court has upheld every congressional delegation since 1935
Legislative Veto
(d) No legislative veto. Congress simply cannot do all the stuff that needs to be done. For instance, could Congress deal with all the taxing issues? They can’t so they set up the IRS. The FCC, ICC, IRS, etc. are set up by Congress but they are placed in the executive branch. Congress gives to the IRS to deal with taxation. Congress gives to the Interstate Commerce Commission the power to deal with commerce. Congress writes the laws and then they give away some of their power to the executive branch. When congress gives to the executive branch the power to carry out the law through a delegation, Congress has to get out. They give away the power to the executive and then their participation ends. In other words, a legislative veto is ongoing congressional (legislative) control of a delegation. If Congress doesn’t like how the agency is executing the laws, let them change the law prospectively.
What’s wrong with the legislative veto? It gives Congress the power to execute the laws. If Congress maintains control over the delegation, Congress is controlling the execution the laws. Therein lays the problem with the separation with powers. The legislative veto is what’s called “cooperative” separation of powers – flexible separation of powers. The branches work together because they have to get stuff done. Chadha is a formulistic separation of powers.
II. LEGISLATIVE AND LINE ITEM VETOES
INS v. Chadha
462 US 919, 1983
Ongoing Legislative Control
Congress has the power to regulate immigration and naturalization – an Article I power. They set up the INS to rule on issues of deportation.
Congress------------gives power-------------Executive (Also Executive)
INS Attorney General can review/suspend deportation
Chadha is out Chadha is in
[§224] A Legislative Veto May Invalidate an Otherwise Valid Delegation
The Court invalidated a provision of the Immigration and Nationality Act of 1952 which authorized the Attorney General to suspend deportation of an alien under certain circumstances, but allowed either house of Congress to override the Attorney General’s suspension and force the alien to be deported. The Court said that the House resolution requiring the deportation of Chadha was an exercise of legislative power (tantamount to a law) because it changed Chadha’s legal rights and relations. This legislative action was therefore subject to the bicameralism and presentment requirements of the Constitution, both of which it failed. The House acted without its resolution being submitted to the Senate (no bicameralism) or to the President for signature (no presentment). If the law had not provided that either house could override the Attorney General’s decision, the delegation of the executive branch would have been constitutional. The veto provision, however, allowed Congress to retain control of the ultimate outcome ever after it attempted the delegation to the executive branch.
Chadha is challenging the one-house override.
Law: A law is any legislative action that changes somebody’s rights, status, or responsibilities.
Is the House voting to kick him out a legislative action? It’s not an executive or judicial action. It changes his status; therefore, it’s a law. The rule is if it’s a law, every law has to meet bicameralism and presentment if it’s going to be good.
The provision of the law of a one-house veto is no good because it didn’t meet bicameralism or presentment.
The Michigan Supreme Court used Chadha as controlling precedent to decide People v. Blank. The legislature passed a law that each agency could promulgate its own rules and put them into place for determining how they are going to work. Then the law said, after they promulgate the rules to the particular agency, they are not going to go into effect until they are presented for review to a joint administrative rules committee made up of 5 members of the State House and 5 members of the State Senate. This was challenged. The approval of the new rules does not meet presentment. The review process does not meet bicameralism. Bicameralism means the participation of the entire house and the entire senate. This is an accountability problem. If it’s only 5 senators and 5 representatives, what about the other people in the other districts? They don’t have representation and that’s exactly what the Michigan Supreme Court said.
Respondent Jagdish Rai Chadha was born in
The INS initiated deportation proceedings against Chadha. Chadha sought to suspend his deportation, and the INS accommodated his request pursuant to § 244(a)(1), and transmitted a report of the suspension to Congress pursuant to § 244(c)(2). The House of Representatives vetoed the suspension of Chadha's deportation, and the INS subsequently resumed deportation proceedings. The immigration judge declined to exercise jurisdiction over the constitutional objections of Chadha, and ordered him deported. Chadha then appealed to the Board of Immigration Appeals, which dismissed his constitutional objections. Chadha and the INS, which now supported his challenge to the constitutionality of § 244(c)(2), then appealed to the Court of Appeals for the Ninth Circuit, which rendered judgment in his favor and ordered the suspension of deportation proceedings.
Issue
Whether the Court of Appeals erred in holding that the resolution of the House of Representatives vetoing the Attorney General's determination is constitutionally invalid, unenforceable, and not binding.
Congress may not promulgate a statute granting to itself a legislative veto over actions of the executive branch consistent with the bicameralism principle and Presentment Clause of the United States Constitution.
Holding
The Supreme Court held that the resolution of the House of Representatives vetoing the Attorney General's determination is constitutionally invalid, unenforceable, and not binding.
J. White’s dissent:
If Congress may delegate lawmaking power to independent and Executive agencies, it is most difficult to understand Article I as prohibiting Congress from also reserving a check on legislative power for itself.
For Exam: Governor = President, State Legislature = Congress, Courts = Courts and the same rules apply. Take the general rules and apply them to a State government.
[§226.1] Line Item Veto
It is unconstitutional for Congress to give the president the power to cancel an item of new direct spending after the President has already signed the spending measure into law.
Such a line item veto violates the Presentment Clause. Clinton v. City of
If the President does not approve (sign) the bill, he or she shall return it to the House where it originated. This return of the bill is commonly known as the veto of the bill, and may be overridden by a two-thirds vote of each House of Congress. The line item veto procedure differs from the constitutionally prescribed procedure for passing a law in that a normal Presidential veto occurs before the bill becomes law, whereas the line item veto is used after the bill has become a law. Also, the normal veto is of the entire bill, but the line item veto is used on only a part of the law. The Court concluded that upholding the Line Item Veto Act would authorize the President to create a law that was not voted on by either House or presented to the President for signature.
524 US 417, 1998
In a majority opinion written by Justice John Paul Stevens, the Court ruled that because the Act allowed the President to unilaterally amend or repeal parts of duly enacted statutes by using line-item cancellations, it violated the Presentment clause of the Constitution, which outlines a specific practice for enacting a statute. The Court construed the silence of the Constitution on the subject of such unilateral Presidential action as equivalent to "an express prohibition", agreeing with historical material that supported the conclusion that statutes may only be enacted "in accord with a single, finely wrought and exhaustively considered, procedure", and that a bill must be approved or rejected by the President in its entirety.
The Bad Reason
Congress puts everything in the budget and passes it into law. The legislators can go back home and say, “I got it into the budget. I worked my magic and the damn Republican President took it out.” That’s the bad reason – it destroys accountability.
The Good Reason
The budget is so massive you need to do this to get it passed. You don’t want to hold up the budget and this greases the wheels to get it passed.
Congress did give the President standards to use: Reduce the federal budget, not impair any central government functions, and not harm the national interest. What’s wrong with the line item veto at the federal level is the President is amending an already passed law. This destroys the separation of powers because the President is legislating. We have an executive branch member writing the law.
President as Legislative Leader: Veto Power
The veto power is the most significant legislative power the President possesses though not the only one. It derives from the requirement, stated in Article I, section 7, that every bill passed by the House and Senate must be presented to the President. The President cannot veto only part of a bill. Accordingly, the Court recently ruled the Line Item Veto Act unconstitutional.
III. APPOINTMENT AND REMOVAL OF OFFICERS
The Appointments Clause is tested a lot. The Appointment Clause gives you the rules for how people get appointed to the judiciary and to the executive branch positions (cabinet officers)
Presumptive Rule: For all positions within the federal government, the president has to nominate someone and that person has to be confirmed by the majority of the Senate. This is not bicameralism but that’s okay, the Constitution says it’s okay. Then the Appointment Clause says that with inferior officers there is a short cut. With inferior officers, Congress MAY vest the appointment in inferior officers in the President alone, courts of law, or heads of departments.
For Exam: Never ever let Congress give itself the power to appoint inferior officers. Congress cannot do that because the power to appoint is the power to control. A Democratic Congress would like to appoint all the inferior officers in the Bush Administration. The power to control is the power to execute the laws.
If Congress doesn’t vest the appointment, the person gets appointed by nomination and confirmation. Nomination and confirmation keeps the legislature in – it keeps the Senate in the game. If they vest the appointment in the President alone, the legislature is out of the loop. Congress has given up all control.
For instance, The Attorney General is the head of the justice department. Within the justice department there are a whole bunch of divisions. One division of justice is the civil rights division. They monitor civil rights violations all over the country, they enforce affirmative action statutes, etc. There’s a head of the civil rights division, an assistant US Attorney. That’s an inferior officer. If you are Congress, do you want to give the President the power alone to appoint the head of the civil rights division? Or do you want to retain the power by keeping the Senate involved? Congress never gave away that power – the power of the Senate to confirm the nominee.
So when the head of the civil rights division gets nominated, he or she has to go before the Senate judiciary committee and be approved by the Senate. They don’t want to give that one up.
Two problems:
1. The short cut only applies to inferior officers. If you get a question like this on the exam (a give away the power question), the first thing you’ve got to tell me is whether the person who is being appointed is an inferior officer. If the person is not an inferior officer (a principal officer), all principal officers have to go through nomination and confirmation.
2. Has Congress vested in the right party? Who gets the appointment? Is it the President or a cabinet officer, or a court of law?
The Test for Inferior Officers:
1. You are an inferior officer if you have a boss that went through nomination and confirmation; and
2. Look at the title. Deputy Attorney General; Under secretary of…; Assistant officer, etc.
A resolution is the same as a law.
[§227] Appointment Power of the President
Under Article II, the President nominates and with the advice and consent of the Senate appoints all principal officers of the
STUDY TIP: On a law school exam, it would make little sense to lest an appointments issue in which the President nominates someone and the Senate confirms that person. That kind of appointment is always constitutional, and is therefore not very effective as a testing device. What is likely to be tested is the kind appointment in which Congress vests the appointment of an inferior officer in some court or person in the federal government. The two issues you should be careful about are whether the appointee is an inferior officer (if not, the President must nominate and the Senate confirm), and whether Congress has vested the appointment in an appropriate person or court. You may be asked analyze a law under which Congress gives the Speaker of the House or the President pro tem of the Senate the power to appoint members of a federal commission. You must know that the commission members are inferior officers, and that Congress may not vest the appointment of such officers in anyone other than the President, a court of law, or the head of an executive department.
Buckley v. Valeo
424
Tested on Bar Exam!
In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court decided the constitutionality of certain provisions of the Federal Election Campaign Act of 1971, amended in 1974 in the wake of the Watergate scandal. The Court upheld the Act’s limitation on contributions to political campaigns. However, the Court struck down the Act’s provisions limiting a candidate’s total campaign expenditures, and limiting the candidate’s personal contribution to her own campaign. The Court also invalidated the limits on expenditures by others that advanced a particular candidate but were not made directly to the campaign.
[§228]
The Court invalidated a section of the Federal Election Campaign Act which provided for appointment of the members of the Federal Election Commission. Under the law, two commissioners were appointed by the President pro tem of the Senate, two by the Speaker of the House, and two by the President. This scheme violated the Appointments Clause of Article II because Congress vested the appointment of four of the six commissioners in the wrong persons. Under the Appointments Clause, Congress may vest the appointment of inferior officers in the President alone, a court of law, or a head of a department. Speaker of the House and the President pro tem of the Senate are not on the list; therefore, the appointments they made were invalid, at least in terms of the enforcement powers of the Federal Election Commission. The four commissioners who were appointed by the wrong persons may still perform investigative and informative functions (simple legislative tasks) but may not perform any executive, enforcement functions.
Prygoski: People on federal commissions are inferior officers. The law says two commissioners may be appointed by the President. Congress gave the President alone the power to appoint two of these people. Then they screwed up. Two commissioners get appointed by the Speaker of the House and another two people get appointed by the president pro tem of the Senate. Those four appointments are not good. Congress gave the appointment of inferior officers to themselves. The appointment was vested in a legislative person. You’ve got 4 out of 6 appointments to this commission that are unconstitutional. The commission does not go away – it still is in existence. However, it cannot perform executive functions (enforcement power) because four of them cannot do executive stuff. Really what they can do is investigate and inform, that is what legislative committees to do (do studies and write reports – nothing.). This violates the Separation of Powers.
Bowsher v. Synar
478 US 714, 1986
[§237]
The Court reviewed a federal law designed to balance the budget and eliminate the federal deficit by 1991. Under the law, the Comptroller General of the
The law says that at the end of each fiscal year there shall be two reports generated – one by the congressional budge office, the other by executive office of management and budget. Is the congressional office report going to come out differently? The Democratic report will come out differently than the Republican report.
So the law says that the Comptroller should come up with a compromised final report that will be presented to the President and he has to accept it. The court strikes down the part of the law about the final decision. Congress can fire the comptroller general. The threat of firing is a form of control. The congressional possibility of firing this person is ongoing legislative control of a delegation. This is another form of legislative veto.
There may be more than one kind of legislative veto. Having a legislative person perform an executive task is a legislative veto if that person can be canned by the legislature.
[§235] Modern Case Law
The Court Asks Whether Removal Restrictions Imposed by Congress Unduly Interfere With An Essential Attribute of the Presidency.
[§236]
Important for EXAM!
This is a cool case because it mixes a number of topics and I’m going to do that to you on the exam. This case has got removal, appointments, and general separation of powers. Think about ways that these topics can go together.
In Morrison v. Olson, 487 U.S. 471 (1988), the Court upheld the Ethics in Government Act of 1978. Under this law, Congress created a Special Division of the Court of Appeals which could, under certain circumstances, appoint a special prosecutor to investigate alleged wrongdoing in the executive branch. Congress also limited the President's power to fire the special prosecutor. Morrison deals with issues of removal restrictions, the Appointments Clause, and a general separation of power analysis. Each of these issues in Morrison will be discussed separately.
This law applied just to executive officials. This is Ken Starr going after Bill Clinton. He was acting under this law.
Separation of Powers Analysis
If Congress provides for a special prosecutor to investigate the executive branch, what is potentially wrong about that picture? They are controlling the executive branch. The special prosecutor is in the justice department in the executive branch. The law says the President cannot fire the special prosecutor. Congress is telling the President that he cannot fire someone in his own branch of government.
Removal Restriction
This is a restriction on the President’s power to remove. Removal restrictions imposed by Congress will be valid unless they unduly interfere with an essential attribute the Presidency. The law in Morrison provided for the appointment of a special prosecutor (or independent counsel) to investigate and, if indicated, prosecute wrongdoing by certain executive branch officials. Obviously, Congress thought it unwise to allow the President free rein to fire an independent counsel who was investigating high-level executive officials. As a result, Congress said that the Attorney General could only remove the independent counsel for "good cause," as defined in the statute. This restriction on the Attorney General also restricts the President, who constitutionally has the power to control the Justice Department. The Court, 7-1, upheld the removal restrictions. Chief Justice Rehnquist reasoned that the imposition of a “good cause” standard for removal of the special prosecutor did not unduly trammel on executive authority. While the majority in Morrison used a balancing analysis to determine the constitutionality of the removal restrictions, Justice Scalia, in dissent, said that the Constitution had already decided this issue by giving all executive power to the President. He argued that the Court should not be deciding when a congressional intrusion into presidential power is excessive; any intrusion is too much.
Congress tells the president that he cannot fire someone. Article II says the executive power shall be vested in the President.
How Different Justices Interpret the Constitution
Scalia: The lone dissenter. This is textualism and is what Scalia did in Hamdi. He says all executive power is vested in the President. Did Congress take away any power from the President? Under Scalia’s approach, even if Congress takes away a teeny weenie little bit, it’s unconstitutional. He reads the document, he interprets it, lays it next to what Congress did and lets the chips fall where they may. If Scalia doesn’t like the public policy behind this decision, he should amend the Constitution.
The majority asks whether Congress took away too much power from the President. Did they unduly interfere with presidential power or did Congress impermissibly interfere with presidential power? That doesn’t make sense as a standard. As a test to be applied by lower courts and Congress, Congress may permissibly interfere? Scalia says this is not a test that we can use.
The majority in this case in relation to the removal restrictions (the President can’t fire this person) uses a flexible definition of separation of powers (the pragmatic approach). The Test for a flexible definition of separation of powers: Congress may take away some power from the President but not too much power from the President.
For Exam: I expect you to talk about the difference in jurisprudence between Scalia (literalist-textualist approach) vs. the pragmatic-flexible approach of the majority and take a stab at whether the interference was too much or not. Focus on the specific attribute of the President that’s being interfered with. Here it is the ability to fire somebody. How central to the functioning to the presidency do you think the ability to fire this person is? And then how much does this interfere with it? In this case it totally takes away the President’s ability to fire.
Appointments
All principal officers have to be nominated by the President and confirmed by the Senate. Inferior officers may have their appointments vested in the President alone, a court of law, or a department. Under the Ethics in Government Act (a direct result of Watergate), the independent counsel is appointed by a Special Division of the Court of Appeals of the
Congress set up a court – the Special Division of the Court of Appeals made up of Court of Appeals judges. And then they said, this special division of the Court of Appeals will appoint the Special Prosecutor. The question becomes, does that comport with the appointments clause? They vested in a special court of law the appointment of the Special Prosecutor. The court controls what the special prosecutor investigates. Is the Special Prosecutor (Independent Counsel) an inferior officer? Yes (Scalia, the lone dissenter said no). The second question, did they vest the power in an appropriate entity? This is a court of law appointing an inferior officer. The appointment is ok.
General Separation of Powers Analysis
Does the act, not the removal restriction, in general violate the separation of powers? It’s the same analysis here as it is for the removal restriction. The Court in Morrison also held that the Ethics in Government Act, as a whole did not violate the separation of powers doctrine because it in no way unduly interfered with the functions of the executive branch. Congress did not attempt to increase its own powers at the expense of the President, and there was no judicial usurpation of presidential power because the Special Division's role was basically limited to appointing the independent counsel.
Although Congress can create offices and define their qualifications it cannot appoint persons to hold offices of the
Congress can vest the appointment of “inferior officers” in the President, the courts of law or heads of department. Whether someone is an inferior officer may turn on whether he/she is subject to removal or supervision by a superior, Edmond v. United States, 520 U.S. 651 (1997), or the nature of his/her duties, jurisdiction and tenure. Morrison v. Olson, 487 U.S. 654 (1988).
The Constitution allows at least some inter-branch appointments. See e.g. Morrison, supra.
SECTION 3. EXECUTIVE PRIVILEGE AND IMMUNITY
– The I’m not gonna tell ya privilege
[§238] SS
418 US 683, 1974
[§239]
The Court unanimously upheld a subpoena duces tecum issued in a criminal trial of seven of President Nixon’s political associates which directed President Nixon to turn over certain tapes and materials which were generated during his presidency and which pertained to the Watergate burglary. The Court held that a presumptive executive privilege existed as a function of the separation of powers doctrine. The Court reasoned that the checks and balances inherent in our constitutional structure required some degree of secrecy regarding presidential communications. On balance, the Court ruled that President Nixon’s generalized claim of privilege (no national security or foreign affairs argument was advanced) was outweighed by the fundamental due process rights of the parties in a criminal prosecution.
In this case, Nixon was an un-indicted co-conspirator. Nixon says, you can’t get me into court, I’m the President. It comes up on the context. The judge said, pursuant to Marbury and Youngstown Sheet you are subject to process. Nixon’s Plan B is, if you can get me into court, I as President will determine the existence and scope of Executive privilege. Plan C is, if you get me into court, I win on the merits.
How does executive privilege come up in these constitutional cases? It comes up in the context of a lawsuit or a hearing. Today executive privilege comes up in the Freedom Of Information Act (FOIA). Under FOIA, there is a mechanism to get it but the President and/or governor says it’s privileged.
The claim of executive privilege came up in the context of a criminal trial. Seven guys are indicted for robbery and burglary and for covering it up. There is a pending federal criminal prosecution. The judge wanted it all.
The President asserts the privilege in the context of somebody demanding material for disclosure. Here’s how it goes:
The President asserts the privilege. For Exam: It is a presumptive privilege. The presumption is that the privilege exists and will control. The burden then shifts to the parties seeking disclosure.
In a criminal case, here’s how it goes:
1. First, the President turns over all the stuff that’s requested.
2. The judge takes all the stuff into chambers and he determines what is not relevant as evidence in a trial. The irrelevant stuff is given back to the President. Disclosure is requested so that it can be introduced as evidence in a criminal trial.
Balance Test
In relation to the pile of relevant stuff, it is potentially admissible as evidence and the judge balances. He balances:
1. How important is it for the case or, what are the reasons for disclosure?; balanced against
2. How is this going to hurt the President?
In a federal criminal trial, the reasons for disclosure (turning it over and making it public) are fundamental due process rights – the right to call and confront witnesses, effective assistance at trial, a fair trial, etc.
On the other side, the President argues to keep the stuff secret, who is going to talk to me in the future? It will create a chilling effect among presidential advisors, aides, etc. This is a general interest in keeping presidential information flowing. This is the weakest argument.
A better argument is national security, foreign affairs, conducting a war – it will endanger troops. The President wins that one.
In this case, Nixon can’t make that argument. On balance the President loses.
For Exam: As the tribunal changes (the facts), the balance changes – it’s a factual balance.
For example: Rehnquist was appointed to the Court by Nixon (he used to work under Nixon). 20 years later, Reagan wanted to appoint Rehnquist to Chief Justice, which means he has to go before the Senate committee again. It is controlled by the Democrats. Biden was the head of the judiciary committee. He wants a potentially racist memo that was written by Rehnquist when Nixon was president. Can Reagan assert executive privilege for something that happened 20 years ago? It runs with the office and does not expire when the President leaves office. Biden threatened to subpoena Reagan to get the memo. Reagan gives Biden a redacted (edited) copy of the memo. About four words were legible.
If Biden had gone to court to subpoena the memo, Reagan would have asserted executive privilege. The argument on the side of disclosure for Reagan would be “nobody will talk to me.” The Senate Judiciary Committee would argue that they have to have the info to perform their constitutionally proscribed consent function under Article 2. The President nominates and the Senate confirms. The Senate has a constitutionally required advise and consent function.
[§241] Executive Immunity
Executive immunity means that the President is immune from liability for damages in a civil suit for any official act performed while the President is in office. As with executive privilege, there is no constitutional provision conferring such immunity, but the Court has recognized it as a necessary incident of the powers of the President.
[§242] Absolute Immunity for the President.
The Court has ruled that a President is immune from liability for his official acts, as long as the President was acting within the outer perimeter of the duties of the office. As long as the President was arguably performing the duties of the office, the President is protected by absolute immunity.
Nixon v. Fitzgerald
457 US 731, 1982
This is suing a President for civil damages. This is not indicting a President. Distinguish between the two.
The Court affirmed a summary dismissal of a lawsuit against President Nixon by a former employee of the Department of the Air Force whose job was terminated after he testified before Congress about cost overruns on an airplane. The Court refused to subject the President to potential liability on every employment decision which could be traced back to the President as head of the executive branch.
They “reorganized” the office and he was “reorganized” out of a job. He wasn’t fired, they just reorganized.
He sued the President but the president has absolute immunity from civil damages liability. The kicker: For any act that’s arguably presidential which means, anything within the outer perimeter within the duties of the office.
[§242.1] No Temporary Immunity from Civil Damages Litigation for Events that Occurred Before the President Took Office
Separation-of-powers principles do not require federal courts to stay all civil damages litigation against a sitting President until he leaves office.
Clinton v. Jones
520 US 681, 1997
The Court refused to stay a civil lawsuit against President Clinton for actions that allegedly occurred before he became President. Paula Jones sued President Clinton under federal and state law, alleging that, while he was Governor of Arkansas, Mr. Clinton made “abhorrent” sexual advances toward her, and that her rejection of those advances had adverse consequences on her government employment. The Court, ruling that the Constitution does not require that a lawsuit for civil damages against a sitting President be deferred until the President leaves office, rejected the President’s argument that defending such a lawsuit would necessarily interfere too greatly with the President’s ability to carry out the duties of the office.
The argument in the case was that there is a constitutional bar for suing a president for money damages. The Court said there is no constitutional reason why a sitting president cannot be sued for money damages. This alleged act was engaged in while he was governor of
Question to think about: Clinton v. Jones says a sitting president can be sued for money damages. The Leap: Is there a difference between indicting a president and suing for money damages. Is he to go to jail? The argument is there that indicting a sitting president is different from suing for money damages.
Qualified Immunity: Reasonable Person Standard
At the federal level, the President has absolute privilege, everybody else has qualified privilege. It’s a reasonable person test. Under qualified privilege, the test is whether a reasonable person knew or should have known that he or she was violating clearly established rights. If the answer is yes, you can sue the person.
A great Nixon example: After Watergate the Attorney General authorized warrantless wiretaps on democrats – no probable cause, no warrant, no nothing. The test: Would a reasonable chief law enforcement officer of the
Bar Exam: Speech or Debate Clause. It’s another immunity. The Speech or Debate Clause is legislative immunity. It basically says that you cannot sue or prosecute for any statement made on the floor of the House or Senate. If the Senator comes off the floor of the Senate and repeats the comment, you can sue that person. The Rule: Legislative aides share the same immunity as the Senator.
Q: Senator goes on the floor and talks about Joe Smith. The slandered Joe Smith sues both the aide and the Senator.
A: Both are off the hook, the aide shares the same immunity.
Typical Exam Question: White House, Cheney’s Office Subpoenaed. The Senate subpoenaed the White House and demanding documents and elevating the confrontation with President Bush over the administration’s warrant-free eavesdropping on American citizens. Separately, the Senate Judiciary Committee also is summoning Attorney General Gonzales to discuss the program.
What you’ve got here is a Senate oversight committee wanting stuff – documents from the President and Vice President about the administration’s warrant-free eavesdropping on citizens which is done to allegedly fight the war on terror. Assume that Bush, which he will do, will tell them to stick it in their judicial ear. They go to court and get a real subpoena requiring the President to turn over “stuff” for the Senate oversight committee investigation.
The President is going to assert executive privilege. It’s in court, there’s a subpoena for Bush’s documents having to do with the war on terror. From that point on it goes: The President asserts the privilege, which is a presumptive privilege. The presumption goes to the President. The party seeking disclosure has the burden of proof (the Senate).
What are their reasons for disclosure? It’s a balance – protecting the privacy interests of the American public performing their constitutionally mandated oversight separation of powers function. We need the stuff to function as a committee. Bush is going to say national security, war on terror. These documents relate to the warrant-free eavesdropping of American citizens. Why is doing that? To fight the war on terror, national security – all that stuff.
In this case, Bush would not have just the nobody is going to talk to me argument; we would have a real, honest war on terror, national security argument. That gets balanced against the needs of the Senate committee. Who wins? I don’t know and I don’t care what you say about that on the exam – make a reasonable argument either way. I would expect you to say: It’s a presumptive privilege, burden of proof is on the other guys, the reasons for disclosure are ______, and ______, the reasons for confidentiality are ______, and ______, and the process is that the Court is going to balance. Point out that the President does not have just the nobody is going to talk to me argument – the generic executive privilege argument.
CHAPTER 4
STATE POWER TO REGULATE [§252]
SECTION 1. STATE REGULATION WHEN CONGRESS’ POWER IS “DORMANT”
Frequently Tested on Exam – This is one of the main areas of the course!
INTRODUCTION TO THE DORMANT COMMERCE CLAUSE
We are talking about Federalism – the relationship between the Federal Government and the States – this is the “up-down” relationship.
As a general introductory matter, when you are talking about Federalism, you are going to have three possible variations: two governments – the federal government and a state.
First Variation: Congress acts, a State does nothing.
When the federal government acts and a state has done nothing – there is no state law. In that context, when you get to a situation like New York v. US or Printz, think about what the Court does – the Court asserts the Tenth Amendment on behalf of the states. It looks at the federal law, asks whether it’s commandeering a branch of state government, and then it decides based on the Tenth Amendment this law is good or bad. It’s probably going to be bad if it’s commandeering the executive branch or the legislative branch of a state. Congress acts under the Commerce Clause – it is a source of power for Congress, that’s what they are basing their law on. The Tenth Amendment in that context acts as a shield against congressional action. It’s not asserted by the states in terms of it being a basis for a law, but the Court asserts the Tenth Amendment for states and says basically, Congress cannot go too far in interfering with state functions. It goes too far when it commandeers.
Any provision of the Constitution can be a sword or a shield. It is a sword when used as an affirmative source of power for a government or a branch of government. The Commerce Clause is a source of power for Congress. The Tenth Amendment (in the dormant Commerce Clause cases for today) is a source of states’ power – when they act and somebody says, why are you doing that? They point right to the Tenth Amendment.
However, in the Commerce Clause cases the Tenth Amendment it is not a source of power for the states because they have not acted – it is a shield against congressional intrusion. In other words, the Tenth Amendment can be a source of power (sword) for states when the pass police power laws. When a state passes a law for health, safety, welfare, morals, etc., and somebody goes to court challenging it and asks the state what they relied on – the Tenth Amendment. However, in the Commerce Clause cases where Congress acts and a state does nothing, the Court asserts the Tenth Amendment for the states (shield) as a shield against congressional intrusion.
You went too far – you commandeered a branch of state government, you’re interfering with a state’s essential functions – cut it out will ya?
Second Variation: A State acts, Congress does nothing (Dormant Commerce Clause)
This is where a state acting under its Tenth Amendment police powers passes a law for health safety, morals. Congress does nothing but here’s the problem: The state law that is legitimately passed (meets the blow off the power source test) somehow screws up interstate commerce too much. If the state law screws up interstate commerce, the Court comes in and asserts the Commerce Clause on behalf of Congress and strikes down the state law.
Great Example: Bibb v. Navajo Freight Lines (The Goofy Mud-flap case):
Risk of Multiple Burdens
If the law is upheld, would it create a risk of multiple burdens? If a state creates a risk of multiple burdens, it may be unconstitutional. Ask what would happen if other states had the same kind of law. The cumulative impact of a number of states each passing a law which prohibited out-of-staters from doing business instate would severely hurt the interstate market. If the answer is that everybody doing it would severely impair interstate commerce, the law is invalid.
The Court balances the commerce power against interstate commerce and asks, if we uphold this state law, is this going to screw up the Commerce Clause too much? They said yes and struck down the law.
So, under the second variation, a state passes a law and Congress does nothing. The Court asserts the Commerce Clause for Congress.
Third Variation: Both Congress and a State act.
Both Congress and a state pass a law. The preemption bell goes off. Preemption necessarily involves the Supremacy Clause of Article VI. The Supremacy Clause of Article VI involves two laws: Federal and State. And then it says, federal law trumps state law. The Constitution, federal laws and treaties take precedence over state laws.
Preemption
A valid federal law and a valid state law.
For Exam: The Supremacy Clause of Article VI is never a source of power for Congress to pass a law. If you are going to do a supremacy or preemption analysis, you have to have an independently valid law (valid under some other power – taxing, spending, commerce, etc.). If you have a federal law that is independently valid, and then you have a valid state law, you put them next to each other and see if they can coexist.
Three types of preemption:
1. Conflict Preemption. Valid federal law, valid state law and it is physically impossible to comply with both. Federal law wins, state law loses.
2. Express Preemption. No conflict needed. Congress has passed a valid law and in the law they have expressly said that states are prohibited from regulating in the area. If they say, states stay out of this area, the states are preempted. For instance, Atomic Energy Act (federal law – need to make sure it’s valid), which regulates nuclear power in the
3. Inferred Preemption. Congress regulates so comprehensively that the Court is able to draw an inference that Congress intended to occupy a field. The Red Scare Example: Congress intended to preempt or keep the states out because they had already passed 19 laws regarding regulating communists. Real easy to fix: If Congress disagrees they have to pass a law that states can have concurrent regulatory jurisdiction.
Hypothetical Exam Question: What would happen if I gave you a federal law and a state law? The first bell that goes off is preemption – this is a supremacy clause. What’s the premise for supremacy regulation? Valid federal law, valid state law. What happens if you are going through the analysis, you look at the federal law and run a Lopez on it and you say, I don’t think this federal law is valid? You start out with a preemption look because the facts tell you that Congress passed a law and a state passed a law. You say the federal law is not within the scope of the interstate commerce – it’s not channels or instrumentalities or close and substantial.
Then what do you do? It collapses into, a state law and no congressional law – a Dormant Commerce Clause. It starts out looking like a preemption analysis because there are two laws, upon further analysis it is really a situation in which there is no legal or constitutional or valid federal action being taken. It looks like a preemption fact pattern (it might be one), but it also break down and collapse into a Dormant Commerce Clause question. I’ve done that on an exam a few times – it’s semi sneaky.
Rule: If compliance with a state law frustrates federal action, the state law will be bad. Never let a state interfere with the carrying out of a federal function.
Bar Exam Questions: A state passes a law that says a new building has to have sprinklers. The federal government comes to town to build a new federal building with no plans for sprinklers. The city does not grant a permit. Who wins? The federal building gets to be built without the sprinklers. Never let a state law interfere with federal law.
Other examples of the same type of question: speed of elevators and mail carriers do not need driver’s licenses. If they give you a federal law on the multi-state, assume that the law is valid.
Dormant Commerce Clause Analysis: A State passes a law, Congress does nothing. The question: Does the state law screw up interstate commerce too much?
There are two ways a state could screw up interstate commerce:
1. Discrimination on interstate commerce. When a state discriminates against out-of-staters (interstate commerce). When a state treats out-of-staters worse than instaters, it is discriminating against them and interfering with interstate commerce. Discrimination Analysis: It always involves two classes of people – one class is being preferred, the other class is being disadvantaged. Example: higher fees or taxes for out-of-staters. If you are doing the same thing, the state has to treat everyone the same.
The theory underlying the Commerce Clause is one national market. There will be one market instead of the states breaking the country up into little markets. A state can screw it up by treating out-of-staters worse than instaters.
2. A Burden on Interstate Commerce. A burden on interstate commerce arises when the state treats instaters and out-of-staters the same (no discrimination) but they are still interfering with interstate commerce. Mud-flaps example: the instaters have to have the mud-flaps as well – all truck drivers in
Generic Dormant Clause Analysis for category 1: Discrimination on interstate commerce.
1. Make sure no congressional action and that state has passed a law that interferes with commerce somehow. Then MUST ASK;
2. Is the state law discriminating against out-of-staters. Does it treat out-of-staters worse than instaters? If so:
3. Why has the state passed the law? Bad or wrong answer: if all the state has is the interest in local economic protectionism. If they are trying to disadvantage the out of staters just to secure an advantage for instate interests, the Court applies a per se rule of invalidity. The law is automatically bad. The reason is you are defeating the central purpose of the Commerce Clause – one national market – to keep goods flowing from state to state.
The Alternative: A state discriminates against out-of-staters, why are they doing it (what is the reason for your law)? What if they have a legitimate police power reason for the restriction? If the state can say with a straight face: health, safety, morals, environment, etc., the law is not automatically bad. The reason for the state law will result in different analyses. If it is just for local economic protectionist reasons, then it’s as bad as can be. Then the court is going to say, we are going to apply strict scrutiny to the law.
Strict scrutiny to the law: The Court gives the hairy eyeball to the law (look at it closely). Under strict scrutiny, the state has the burden to show it has a compelling safety interest or compelling environmental reason for its law. And then the state has to show that the means are narrowly tailored to achieve the goal. The standard for strict scrutiny is compelling and narrowly tailored. This is called going through Ends and Means – what’s the reason why they passed the law? – the End, the goal of the law. And then, how did they go about achieving it? – the Means.
If the law is discriminatory against out-of-staters for some legitimate police power reason, then (1) the Court is going to apply strict scrutiny, (2) the state is going to have to show a compelling interest and narrowly tailored means.
Less drastic means: The government could achieve the goal without less drastic means.
477
1. Who’s acting? A state, not Congress
2. Does the state law discriminate against out-of-staters? If it keeps out-of-state commerce out, that is a classic discrimination.
3. Why did they pass the law?
4. Is it narrowly tailored or does it go to far? In this case it meets the tailoring requirement because there is no less drastic means (cannot test each baitfish). Given the technology, there is no other way to do it and since there is no other way to do it, there is no less drastic means; therefore, this is a necessary, narrowly tailored way to achieve it and the Court upheld the law.
Michigan/Canada trash example: What if
For Exam: It will behoove you greatly especially in a case like this to talk about the facts. People get the higher grades when they talk about the facts – not just the rules – especially when we talk about state interests. Talk about the specific conditions in the state as described in the fact pattern.
Generic Analysis for Category 2 (Pike balancing test): A Burden on Interstate Commerce
A law is passed that affects instaters and out-of-staters the same – no discrimination. If a state just passes a law that burdens interstate commerce the main analysis is a balance. You balance how much does the state law interfere with interstate commerce between the state’s police power interest – how much does it advance the goal sought?
For instance, the mud-flap case – that really would have screwed up interstate commerce if they had upheld it. The question was, how much did these goofy mud-flaps enhance safety over and above the normal rectangular mud-flaps? The Court said a teeny-weenie little bit if at all. A teeny-weenie little bit balanced against big interference with commerce – the law is bad.
Pike v. Bruce Church, Inc.
397
Burden on Interstate Commerce
When you have a Dormant Commerce Clause question, YOU’D BETTER SAY PIKE V. BRUCE CHURCH because if you get one of these on the essay part of the Bar Exam, the examiners are looking for this case. Just like a Commerce Clause question, you’d better say Lopez.
1. Discrimination: Does a state statute regulate evenhandedly? Make sure there is no discrimination by purpose or effect, against out-of-staters. Instaters and out-of-staters are subject to the same burdens and regulations.
2. State’s police power interest: Does it effectuate a local public interest? Is it a legitimate interest? (health, safety, welfare, morals, etc.) Identify the local interest advanced by the law. Economic protectionism is never a valid interest, so the state should assert some police power goal such as health or safety. What local means: There are some activities that are intrinsically national and therefore should not be regulated by states but by Congress. Example: Air traffic controllers, highways, currency, mail, nuclear power, etc.
3. Affects on interstate commerce are only incidental. See if the law only incidentally affects interstate commerce. The primary purpose and effect of the law must be to advance the state’s police power interest. The primary affect of the law is to bring about the state police power goal. Any impact on commerce is incidental (secondary, not trivial) to that primary affect.
If you go 3 for 3, the presumption is the law will be upheld unless the burden imposed on Congress is clearly excessive in relation to the putative local benefits – unless on balance it screws up commerce too much.
If it doesn’t meet one of these tests, the presumption of validity flip-flops – it goes away. Either it goes all the way into per se rule of invalidity or it goes away into strict scrutiny. (Remember that in strict scrutiny the government has the burden of proof) If the law is presumed invalid the government has the burden of proof to come forward and show that it is narrowly and compelling tailored.
For Exam: On incidental and legitimate police powers, I’ve given a state law regulating interstate commerce, usually discriminatory, and then I’ve given some of the debates in the legislature when the law was passed. One state Senator was saying, we’re doing this for ecological, environmental reasons. Another Senator was saying, we just want to help out the tourism industry. I am putting those two things in there to give you a chance to argue both ways. If the law was really passed for economic reasons – per se rule of invalidity, the law is bad. However, there is also an indication that the law was passed for valid ecological reasons – go to strict scrutiny. It’s a way to get you to talk about both possible theories.
I. EARLY VIEWS
Cooley v. Board of Wardens
53 US 299, 1852
[§281]
The Court upheld a
You’ve got a federal law and a state law. The federal law is good. Is there preemption? No, it grants power to the states. Congress gave the states the power to regulate waters (Congress acted).
If Congress authorizes the states to pass laws, it is not a Dormant Commerce Clause situation because Congress has done something. The Commerce Clause is active.
II. CONGRESSIONAL AUTHORIZATION OF STATE REGULATION
If a state passes a law that discriminates against out-of-staters, that state law may be subject to a Dormant Commerce Clause challenge. However, the state law may also be subject to other challenges. There are at least three anti-discrimination provisions in the Constitution.
The Dormant Commerce Clause serves in part as a protection against discrimination by a state against out-of-staters. The Equal Protection Clause also serves as a limitation on state discrimination against out-of-staters. The Equal Protection Clause is in the 14th Amendment. The underlying purpose of the 14th Amendment was to protect African-Americans. It says a state shall not deny to any person the equal protection of the laws. Person also means corporations. An out-of-state corporation is going to have an equal protection argument.
Classes
The classes here are instaters and out-of-staters. What the Court does in equal protection is apply different levels of scrutiny. For race discrimination, strict scrutiny will apply. Instaters versus out-of-staters would apply rational basis scrutiny. The burden of proof is on the plaintiff. At rational basis scrutiny, the plaintiff has to show either there is no legitimate reason for the law or that the means chosen by the state are not rationally related to achieving the goal. Strict scrutiny is compelling and narrowly tailored. Rationality is legitimate and rationally related. Rational basis is a real deferential standard. Think what the plaintiff has to do – prove a negative. The plaintiff has to prove no legitimate interest. All the state has to do in rebuttal is we have a safety interest.
We are talking about two anti-discrimination provisions. Both of them restrict states when a state discriminates against out-of-staters. The Dormant Commerce Clause is one analysis that you can use, but there is also the Equal Protections Clause.
Prudential Ins. Co. v. Benjamin
328 US 408, 1946
[§306]
Congress authorizes the state to discriminate against out-of-staters. In Cooley, Congress authorized the state of
In this case, Congress passed a law regulating the insurance industry in the
1. Is the congressional law valid? Yes.
2. Does insurance in the aggregate affect interstate commerce? Yes, the law is valid.
Under the law, regulating the insurance industry, Congress authorized states to impose higher taxes on out-of-state insurance companies. The Court upheld, against a Dormant Commerce Clause challenge, a
The Court said the Commerce Clause is not dormant and the state law is okay because it was authorized by Congress. If Congress has the power to tax insurance companies under the Commerce Clause, Congress may delegate that power to the states. Under a delegation you can give away what you have.
Metropolitan Life Insurance Co. v. Ward
470 US 869, 1985
[§§307, 324]
Same law, same discriminatory state tax
Congress authorized states to impose discriminatory higher taxes on out-of-state insurance companies. The state does.
We’ll lose under the Commerce Clause, but why don’t we try the Equal Protection Clause?
The success of a challenge may depend on the argument made. It may depend upon which constitutional provision you rely on.
Here you have the same law as the McCarran Act authorizing states to impose a higher tax on out-of-staters. Congress controls commerce. Now the equal protection argument is made – out-of-state insurance companies as a class are discriminated against. Out-of-state corporations (persons) can rely on the equal protection clause to challenge the discriminatory state tax. The Court says we’ve got us a winner and strike down the state law.
Here’s the delegation theory: Congress had the power under the Commerce Clause to impose discriminatory taxes. Congress does not have the power to violate equal protection rights; therefore, they cannot give the states the power to violate equal protection rights. Local economic protectionism is not a legitimate governmental interest. It fails rational basis scrutiny.
In the Equal Protection Clause of the 14th Amendment, a state may not deny a person the equal protection of the laws. The 14th Amendment does not apply to the federal government. The Court has said that the Fifth Amendment Due Process Clause, which applies to Congress, has an equal protection component built into it.
III. THE BASIS FOR JUDICIAL ACTION
IV. THE QUEST FOR AN ADEQUATE STANDARD
SECTION 2. CASES AND DOCTRINE
I. REGULATIONS THAT BURDEN OUT-OF-STATE SUPPLIERS SEEKING
[§263] Risk of Multiple Burdens
If a state law creates a risk of multiple burdens, it may be unconstitutional. Ask what would happen if other states had the same kind of law. The cumulative impact of a number of states each passing a law which prohibited out-of-staters from doing business instate would severely hurt the interstate market. The question under the multiple burdens doctrine is “What if everybody did it?” If the answer is that everybody doing it would severely impair interstate commerce, the law is invalid.
294 US 511, 1935
An important case
The Court invalidated a
Here, a
1. It sets a flat price for out-of-state purchases. The result of that;
2. Completely eliminates any incentive to deal in interstate commerce. From a Commerce Clause perspective:
a) Does this law create a risk of multiple burdens? Look at the state law and ask, if the Court were to uphold it, would it be an invitation to other states to pass similar law? Here the answer is yes.
b) This is called an Extra-territorial Law. It is a state law that has the effect of setting prices in another state. Here the answer is yes.
3. Compensating Use Tax (Prygoski’s Volvo Example).
What’s the difference between Prygoski’s case and this case? (1) The law in
[§268] Discrimination by Political Subdivision of a State; Less Drastic Means
It is discrimination against interstate commerce for a political subdivision of a state (such as a city or a county) to exclude out-of-staters from doing business within their boundaries. If a city or county discriminates against people who reside outside the city or county boundaries, that will count as a discrimination against out-of-staters even though some instaters are also excluded from doing business inside the city or county.
Dean Milk v.
340 US 349, 1951
The Less Drastic Means Test
The Court invalidated a
This is a city ordinance, not a state law. It isn’t just out-of-staters that are discriminated against. The classes are instaters and out-of-staters. Because the law excludes instaters as well, does this count as discrimination against out-of-staters? Yes, FN 4:
It is immaterial that Wisconsin milk from outside the
This is still a discrimination against out-of-staters.
The Test:
The ordinance has to be with the city’s police power. It cannot be for local economic protectionism. Here, they are trying to protect the local pasteurizing plants.
For Exam: If the only reason for the city to pass the law was to protect local pasteurizing plants, the law is bad – local economic preference or protectionism is not a legitimate government interest. On the other hand, if the city can argue that it really has a health interest, then we ask is the law discriminatory or not – FN 4 – yes it is. It is discriminatory for a police power reason.
Health is a compelling interest. The means are narrowly tailored because there are less drastic means available. What less drastic means are there? 6 miles – that’s less drastic than this one. Refrigerated trucks are less drastic. An inspection when the milk is brought in is less drastic.
The Court said since there were less drastic means available, this ordinance is invalid. If the Court were to uphold this law, it would create a risk of multiple burdens. Other cities could do the same.
Analysis for Dormant Commerce Clause
1. Less drastic means. Is there another way to achieve the same goal with less of an impact on interstate commerce?
2. Risk of multiple burdens. How much of a burden does the law impose on interstate commerce? If upholding it would create a risk of multiple burdens, then under the Pike balance the burden under interstate commerce will be great because it will be an invitation to other states.
3. Extraterritorial Element. Does it have the effect of setting prices in any other state under means or balance?
If it’s a discrimination case and you are applying strict scrutiny, less drastic means will apply. If there are less drastic means, then the law is not narrowly tailored. Narrowly tailored: it’s the best way to achieve the law. Less drastic means: there is some other way to achieve the same goal with less of an impact on interstate commerce.
A state can preempt a city law.
Granholm v. Heald
544 US 460, 2005
The Court struck down regulatory schemes in
This is a clear discrimination against out-of-staters. You can’t exercise the power of the 21st Amendment in such a way as to violate the Dormant Commerce Clause.
West Lynn Creamery, Inc. v. Healy
512 US 186, 1994
The Court invalidated a
A state tax can violate a Dormant Commerce Clause. Beware of discriminatory taxes. But here you have a nondiscriminatory tax on all sales of milk. If that’s all we had, we wouldn’t have a case but the proceeds were subsidies to
For Exam: The Court considers the tax and the subsidy together. Look at all the state action as a package and see if it discriminates against or burdens interstate commerce.
II. REGULATION OF OUTGOING TRADE AND OTHER COMMERCE: BURDENS ON OUT-OF-STATE INTERESTS SEEKING IN-STATE RESOURCES.
H.P. Hood & Sons, Inc. v. Du Monday
336 US 525. 1949
This case is different because it’s a licensing scheme. This is not just a law that goes into affect and operates – you have to go in front of somebody. Hood is front of a commissioner asking for a license to distribute milk. You must go in front of a person and ask for the license.
What’s the danger of going before a licensing officer? Discrimination. Whenever the government acts on an individual then procedural due process is involved. Under procedural due process you are entitled to notice, a hearing and an impartial decision maker. The licensing official is an executive branch officer. It is a delegation from the legislative to the executive. If there are no standards, the person giving the license will make them up.
This was used for local economic protectionism. There’s a difference between a licensing scheme and a generally applicable law.
Pike v. Bruce Church, Inc. (revisited)
It’s cheaper for a packer to go across the border to
Rule: A state cannot require work to be done instate that can be done more cheaply out of state.
This creates a risk of multiple burdens. Every state would pass this law. There are less drastic ways to protect
[§270] Protecting Privacy Rights of Residents
A municipality may protect the privacy rights if its citizens, even if interstate commerce is indirectly affected by the regulation.
Beard v.
341 US 622, 1951
The Court upheld a local ordinance which prohibited door-to-door solicitation, even though the ordinance may have had the effect of discriminating against interstate commerce. The Court upheld the ordinance because its purpose was to protect the privacy rights of homeowners, not to provide an economic advantage to local businesses.
Hunt v.
432 US 333, 1977
Not discussed
Bendix Autolite Corp. v. Midwestco Enterprises, Inc.
486 US 888, 1988
Not discussed
DORMANT COMMERCE CLAUSE REVIEW
The Fact Pattern is going to involve a state law but not a federal law. This fact pattern can be created by having a state law and a federal law, but the federal law is invalid under the Commerce Clause, for example, when you apply Gonzalez, Wickard, Lopez, Perez, and all the others. Now it becomes a Dormant Commerce Clause issue since there is a state law but no valid federal law. So the Dormant Commerce Clause can arise when you have a state law but no federal law, or when you have a state law and a federal law, but the federal law is invalid.
The deal with the Dormant Commerce Clause is when the State screws up interstate commerce too much. Remember that the state law has to be in the first instance from some legitimate police power reason. Then you decide if it screws up interstate commerce too much. It is absolutely critical that you look at the state law and determine if it discriminates against out-of-staters.
Discrimination. Please understand what discrimination means. When you talk about discrimination you are talking about classes of people. The law treats one class of people differently than other people. In this class we are talking about out-of-staters being treated worse than in-staters.
So we ask the first question in Pike: whether the law is discriminatory. If the answer is yes, then we ask is there a legitimate local interest underlying the law. In other words why did they pass it? So the worse answer a state can give for discrimination is that sole reason for providing economic advantage to in-staters. (To pick up points on exam explain why this is bad for a state to do this. Secured economic advantage is the wrong reason because it violates the central purpose of the Commerce Clause. The central purpose of the Commerce Clause is one national market.) So if the purpose is to secure local economic advantage than it is per se invalid. That means the state law is bad. (On exam he will not give us a per se invalid law, that would be dumb. Instead he will give us some stuff to argue both ways.) If it is for a legitimate police purpose then the law is presumed bad. The level of review that applies is strict scrutiny. Under strict scrutiny the government has the burden of proof to show that it has a compelling reason (damn good reason) for the law and they chose a narrowly tailored means to achieve it. Narrowly tailored means that it is the least drastic means available which means that there is no other way to do it. When thinking about narrowly tailored think of Dean’s Milk v. City of Madison. Also make sure you talk about Risk of Multiple Burdens. Risk of Multiple Burdens means that if a court upholds a law does it create an invitation that other states will also pass the same law. (Pike is a good example). So less drastic means and multiple burdens is something you want to always talk about in a Dormant Commerce Clause analysis.
If in-staters and out-of-staters are treated the same then it is evenhanded under Pike. Make sure there is a legitimate local interest that incidentally affects commerce. Then the law is presumed good and the burden is on the person challenging the law. So then you balance how much the law interferes with interstate commerce versus how much does the law advance the state interests. (Mud flap case is a good example). So when you balance also talk about risk of multiple burdens, less drastic means, extraterritoriality. Extraterritoriality means having the affect of setting prices in another state.
DORMANT COMMERCE CLAUSE CONTINUED
PHILADELPHIA v. NEW JERSEY
FACTS: A number of
RULE: The Court said that simple economic protectionism isn’t even a legitimate interest. However, when there is no discrimination then you balance according to Pike. A state cannot discriminate against articles coming from out-of-state unless there is some reason apart from its place of origin to treat them differently. The Court is saying that in-state garbage and out-of-state garbage is the same. The only difference about them is their place of origin. (Example: If
The Professor also noted that there would be a risk of multiple burdens. Everyone would want to do this.
MAINE v. TAYLOR
The Court upheld a
WE SKIPPED SOME CASES DURING CLASS.
He says that even though we skipped some cases it doesn’t mean that we aren’t responsible for them. The cases we skipped are C&A Carbone, Inc. v.
HUGHES v. OKLAHOMA
Court held invalid under the Commerce Clause an
The Court said that such facial discrimination invokes the strictest scrutiny of any purported legitimate purpose and of the absence of nondiscriminatory alternatives. The state did not choose the least discriminatory alternative. The state law did not satisfy strict scrutiny.
BROWN-FORMAN DISTILLERS CORP. v. NEW YORK
The Court invalidated a
Also, there is a risk of multiple burdens.
SOUTHERN PACIFIC v. ARIZONA
The Court invalidated an
This law was not discriminatory and the state had a good safety reason for imposing the law (i.e. legitimate local interest). However, the state’s interest did not outweigh the impact on interstate commerce. Generally you would think that the presumption would be that this is a valid state law. However, remember that trains are a national activity. Because they are a national activity the burden is on the state. Of course the level of review doesn’t change.
KASSEL
The Court invalidated an
Note that not all the justices agreed on the opinion. They only agreed on the judgment.
BIBB v. NAVAJO FREIGHT LINES
The Court invalidated an
MARKET PARTICIPANT
Presumptively a state cannot discriminate against out of staters. One huge exception is that if the State is a market participant rather than a market regulator, the Dormant Commerce Clause does not apply to its actions. When is a state a market regulator? A state is acting in its sovereing capacity when it is performing sovereing functions of the state and when it is telling other people what to do with its contracts. So the state is acting as a market regulator in which the market participant exception would not apply. However, if the state is acting in its proprietary function then the market participant exception does apply. Here is the test: Ask if you can do the same thing the state is doing. If yes then the state is acting as a market participant.
REEVES, INC. v. STAKE
The Court upheld a
The Court ruled that because
The Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace. There is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market. Therefore, under the Dormant Commerce Clause if a state is a market participant it can discriminate against out-of-staters even for local protection reasons.
Market Participation Exception only lets a state escape Dormant Commerce Clause analysis. There is no market participant exception to privileges and immunities analysis or Equal protection analysis.
SOUTH-CENTRAL TIMBER DEVELOPMENT CO. v. WUNNICKE
A plurality of the Court found that
A state will be treated as a market participant as long as it is making purchase or sales decisions in relation to a contract to which it is a party. So a state cannot mess with the next contract down the line. Now they would be a market regulator.
THREE DIFFERENT ANALYSIS
There are three analysis that you must know when a state discriminates against out-of-staters.
1. Dormant Commerce Clause: Strict Scrutiny
2. The Privileges and Immunities Clause of Article IV (also known as Interstate Privileges and Immunities Clause): Intermediate Scrutiny
3. Equal Protection Clause: Low level Rational Basis Scrutiny
LEVELS OF REVIEW
Strict Scrutiny: The state must have a compelling interest and the law is narrowly tailored (least drastic means). This is the most stringent level of review. A state must have a good reason for creating the law. The “ends” is compelling interest while the “means” is narrowly tailored (least drastic means). Under Strict Scrutiny the Plaintiff brings a prima facie case of discrimination under the Dormant Commerce Clause. The burden then shifts to the state to show both a compelling interest and that the means are narrowly tailored. Notice that the State has burden of proof.
Intermediate Scrutiny: For intermediate scrutiny the state needs to show it has an important or substantial interest and that the means have to be substantially related to achieving the goals of the law (doesn’t need to be least drastic means). So the “ends” is important or substantial interest while the “means” is substantially related. The plaintiff brings a prima facie case. The burden then is on the Government to show both important or substantial interest and the means are substantially related. So notice that the government has the burden.
Rational Basis: All the state has to have is a legitimate interest. This can be anything under the 10th Amendment police power. The “ends” is legitimate interest while the “means” is rationally related. After the plaintiff brings a prima facie case, the burden is still on the plaintiff to show either (not “and”) that there is no legitimate reason or it is not rationally related. Remember that rationally related means that it is conceivable that the law might achieve the goal. This is the lowest level which is the easiest for a State to show. So the plaintiff has the burden of proof. So the burden of proof never shifts.
PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV
Aliens and Corporations do not have this type of protection.
(BAR EXAM TIP) There are two different Privileges and Immunities Clauses. There is a difference between Article IV Privileges and Immunities Clause and 14th Amendment Privileges and Immunities Clause. Article IV prohibits a state from discriminating against out-of-staters. However, this does not protect Corporations or Aliens. Corporations and Aliens are not protected because they are not citizens. In addition, it only applies when a state is discriminating against out of staters in relation to the exercise of a basic right. What are the basic rights? There are four of them but you only have to worry about one of them which is pursuing an occupation. So if a person is denied an opportunity to pursue an occupation then they might have an Article IV argument. For example, a state may pass a law that requires all workers in the state to be citizens of that state. So, if a state discriminates against a citizen of another state in pursuing an occupation Intermediate Scrutiny applies. Thus the state has to have an important or significant reason for the law and the means have to be substantially related in achieving the goal.
EQUAL PROTECTION
14th Amendment says that a state shall not deny to any person equal protection of the law. A person is a natural person or a Corporation. CORPORATIONS are natural persons and have equal protection rights. They are non-suspect and get rational basis scrutiny. In-state and out-of-state is a classification which gets rational basis review (unlike “race” which gets strict scrutiny review).
This is the last analysis you apply. You use this analysis when the previous two don’t work. So go for Dormant Commerce Clause first, then go to Privileges and Immunities, and then finally go for Equal Protection. (On exam make sure that you put more instead of less).
THE CONTRACT CLAUSE
Article I, sec. 10 of the Constitution prohibits a state from passing any law interfering with the obligations of contracts. (BAR EXAM TIP: There is only one Contracts Clause and it only applies to the states. It does not apply to the federal government). If the federal government interferes then a person’s best argument is under the Due Process Clause of the Fifth Amendment.
Only applies if a state is interfering with the obligations of an existing contract. This has nothing to do with a state passing a law that might affect future contracts. So a state can change the rules for example when a state says that this law will apply to contracts after
There is a three part Balancing test for Contracts Clause Questions (Energy Reserves v. Kansas Power & Light).
1. Is there a substantial impairment of some obligation of a contract?
2. Does the state have a significant or important reason for the impairment?
3. Are the means appropriately tailored to meet the goal?
HOME BUILDING
The Court upheld, against a Contracts Clause challenge, a post-depression mortgage moratorium law which postponed the exercise of the contractual rights of banks to foreclose on home mortgages within the state.
This was an interference of the Contract. In applying the three part test we find that there was a substantial impairment of an obligation. However, there was a significant or important reason for doing this since it was enacted during the depression. And finally, the means were appropriately tailored. So there was a substantial impairment but the state had a significant or important reason and it was appropriately tailored.
U.S. TRUST v. NEW JERSEY
The Court invalidated a
Usually under Contract Clause analysis the state is interfering with a contract between two other parties. However, in this case the state is interfering with the contract between itself and another party. So when a state is a party to the contract and then uses its powers to change the terms of the contract then it smells bad. The Court will scrutinize the state’s interests more carefully in this circumstance even though they will use the same level of review. So if you get a Contract Clause question remember to be sensitive to who the parties are.
Q & A with Professor Prygoski
CALL OF THE QUESTION
There are two types of COQ’s
Commerce Clause:
1. Identify and discuss the constitutional issues relating to this bill, citing precedent where appropriate. Is this bill constitutional?
2. Discuss and resolve the issues of constitutional powers.
Those are open-ended questions and a premium will be placed upon issue spotting – I don’t tell you what the issue is.
Dormant Commerce Clause
1. Would the law survive a Dormant Commerce Clause challenge?
There you don’t have to engage in any issue spotting. If it says just discuss some issue, just discuss that issue!
You may get a COQ that says, do not discuss justiciability. Justiciability refers to the ability of a court to hear a case – standing, ripeness, mootness,
M03 EXAM
I’m giving you three sections of law for a reason and I want you to talk about each one. Break it down into sections.
Section 2: Go to Plan B and Commerce Clause. It’s coercive and consider Section 1 and 2 together. After Lopez ask who’s regulated. If this is not valid as a spending measure. Then,
Congress is imposing on private parties in Section 1. They only have to come up with that…
Look to see if Congress is passing a regulation (mandatory law). First Lopez – within the scope of interstate commerce. Then, who is regulated by the law.
You have to see if both are valid under their respective…
Garcia: if state, protection is from
Section 3: Appointments Clause issue. Buckley and Gray. All officers have to be nominated by the majority of the senate. Inferior officers. Four of them violate the separation of powers. They can investigate but cannot do prosecutorial stuff. The legislature is controlling the execution of the laws. Talk about it at both levels – big: four appts violate separation of powers. Smell like legislative Veto. Look to see if the short…only if appointees are inferior officers.
When you talk about states Commandeering which branch. Printz – commandeering but also a separation of powers problem: they are eliminating the president out of the loop.
Essay 3
Is it discriminatory? Nope
Is there a legitimate local interest
Pike balance.
How much does this interfere with…
Less drastic means?
This is where a state acting under its Tenth Amendment police powers passes a law for health safety, morals, etc. Congress does nothing but here’s the problem: The state law that is legitimately passed (meets the blow-off the power source test) somehow screws up interstate commerce too much. If the state law screws up interstate commerce, the Court comes in and asserts the Commerce Clause on behalf of Congress and strikes down the state law.
There are two ways a state could screw up interstate commerce:
1. Discrimination on interstate commerce: When a state discriminates against out-of-staters (interstate commerce). When a state treats out-of-staters worse than instaters, it is discriminating against them and interfering with interstate commerce. Discrimination Analysis: It always involves two classes of people – one class is being preferred, the other class is being disadvantaged. Example: higher fees or taxes for out-of-staters. If you are doing the same thing, the state has to treat everyone the same.
The theory underlying the Commerce Clause is one national market. There will be one market instead of the states breaking the country up into little markets. A state can screw it up by treating out-of-staters worse than instaters.
2. A Burden on Interstate Commerce. A burden on interstate commerce arises when the state treats instaters and out-of-staters the same (no discrimination) but they are still interfering with interstate commerce. Mud-flaps example: the instaters have to have the mud-flaps as well – all truck drivers in
Generic Dormant Clause Analysis for category 1: Discrimination on interstate commerce
(a) Make sure no congressional action and that state has passed a law that interferes with commerce somehow. Then MUST ASK;
(b) Is the state law discriminating against out-of-staters. Does it treat out-of-staters worse than instaters? If so:
(c) Why has the state passed the law? Bad or wrong answer: if all the state has is the interest in local economic protectionism. If they are trying to disadvantage the out of staters just to secure an advantage for instate interests, the Court applies a per se rule of invalidity. The law is automatically bad. The reason is you are defeating the central purpose of the Commerce Clause – one national market – to keep goods flowing from state to state.
Generic Analysis for Category 2 (Pike balancing test): A Burden on Interstate Commerce
A law is passed that affects instaters and out-of-staters the same – no discrimination. If a state just passes a law that burdens interstate commerce the main analysis is a balance. You balance how much does the state law interfere with interstate commerce between the state’s police power interest – how much does it advance the goal sought?
(a) Discrimination: Does a state statute regulate evenhandedly? Make sure there is no discrimination by purpose or effect, against out-of-staters. Instaters and out-of-staters are subject to the same burdens and regulations. See (d) below
(b) State’s police power interest: Does it effectuate a local public interest? Is it a legitimate interest? (health, safety, welfare, morals, etc.) Identify the local interest advanced by the law. Economic protectionism is never a valid interest, so the state should assert some police power goal such as health or safety. What local means: There are some activities that are intrinsically national and therefore should not be regulated by states but by Congress. Example: Air traffic controllers, highways, currency, mail, nuclear power, etc.
(c) Risk of multiple burdens: Affects on interstate commerce are only incidental. See if the law only incidentally affects interstate commerce. The primary purpose and effect of the law must be to advance the state’s police power interest. The primary affect of the law is to bring about the state police power goal. Any impact on commerce is incidental (secondary, not trivial) to that primary affect. The cumulative impact of a number of states each passing a law which prohibited out-of-staters from doing business instate would severely hurt the interstate market.
(d) Less drastic means: If it’s a discrimination case and you are applying strict scrutiny, less drastic means will apply. If there less drastic means, then the law is not narrowly tailored. Narrowly tailored means, there is some other way to achieve the same goal with less of an impact on interstate commerce.
(e) Extraterritorial element: Does it have the effect of setting prices or standards in any other state under means or balance?
If you go 3 for 3 (a thru c) the presumption is the law will be upheld unless the burden imposed on Congress is clearly excessive in relation to the putative local benefits – unless on balance it screws up commerce too much.
CONSTITUTIONAL LAW I TRINITY 2007
PROFESSOR PRYGOSKI
PRACTICE ESSAY QUESTION M.03
(50 Points 49 Minutes)
In 1993 Congress held hearing (Congress is doing something, this is going to be a Commerce Clause question) on the health risks to non-smoking worker caused by exposure to “second-hand smoke” in their places of employment. Representatives of the Environmental Protection Agency and the Occupational Safety and Health Administration testified that the risks from second-hand smoke are serious and that immediate legislative action is necessary. Among other things, these witnesses urged Congress to extend any smoking ban it chose to enact to bars and restaurants because “waitresses bear one of the heaviest burdens of cancer and respiratory disease among workers in the country.”
After the close of the hearings, Congress enacted, and the President signed, (you don’t have to say much about bicameralism and presentment) the Federal Cigarette Safety Act (FCSA). FCSA contains three sections.
Section 1 provides in part as follows: “Smoking is prohibited (Congress prohibits by passing a regulation. This is going to be a Commerce Clause law) in all indoor places of employment, including, but not limited to factories, office buildings, schools, lounges, cafeterias, restaurants, bars, and hotels. Any employer who fails to correct any violation coming to its attention shall be subject to a fine of $10,000 per incident. Any place of employment owned or operated by any agency of State or local government shall be exempt from the provisions of this Section.” (What you have is a congressional law prohibiting smoking by a State or local government. That is important because if you establish that the Commerce Clause applies, the next question you ask is, who does it apply to? If the Commerce Clause applies just to private parties, they’re not going to have a 10th Amendment defense against the Commerce Clause. That would be a Garcia analysis. This first section collapses into just the scope of the commerce power. This is an active Commerce Clause question – can Congress regulate smoking in places of employment? This is Lopez. Does smoking in indoor places of employment, closely and substantially effect interstate commerce? I want you to talk about the aggregation theory also. As a class of activities, in the aggregate, does smoking in places of employment affect interstate commerce? Yes, but how? If they prohibit smoking, people will not patronize the restaurant. Also, in the aggregate, do the health problems of waitresses caused by inhaling second-hand smoke effect interstate commerce? That’s the winner argument. This law is presumptively good. Cite cases – it’s gonna get you points.
Section 2 provides in part as follows: “The Secretary of Transportation shall withhold 50% of the federal highway funds (Spending Measure but it’s the secretary withholding funds. For all the points – this is a cabinet official acting pursuant to a delegation of the spending power from Congress.) otherwise allocable to a state from any State that fails to enact within one year from the effective date of this Act legislation prohibiting smoking in all indoor places of employment owned or operated by an agency of that State. The Secretary shall continue any such withholding from a State for a period of ten years.” (What did they just do? Do you see the difference between 1 and 2? They are bribing the state – they are not forcing the state to do anything. The Congress is acting under a spending measure. The issue here is, is this coercive? If it is truly voluntary, you analyze under SD v. Dole. Is it related to the expenditure? For this to be valid under the spending power, it has to voluntary and related to the purpose of the expenditure. If it is not related, it is not valid for a spending measure. Is 50% voluntary? If you say, it’s voluntary then you’ve met one of the requirements. Is the condition related and you say no, it’s not valid. If it’s coercive, analyze it under the Commerce Clause – that’s the trick. If it is coercive it is invalid under the spending power but that doesn’t mean that the law is bad. You go to plan B and analyze under the Commerce Clause. How? Assume that section 2 is not valid as a spending measure. It’s coercive. At that point you have to consider section 1 and 2 together. In 1 they are prohibiting smoking in all private places of employment. In 2 they are prohibiting smoking in all state-owned places of employment. What’s my point? The next step, ask who’s regulated. Garcia or
Sections 3 creates a Federal agency called the Federal Cigarette Safety Administration and authorizes that agency to investigate and prosecute violations of Section 1. (investigate is just a legislative function – big deal. Prosecute is an executive function.) In addition, Section 3 provides that the agency “shall be directed by an eight-member Board, four members of which shall be appointed, and subject to removal, by Congress, four members of which shall be appointed, and subject to removal, by the President of the
In 1992 the total amount of federal financial aid to the states for highway construction and maintenance was over 15 billion dollars.
Discuss and resolve the issues of constitutional Powers reasonably raised by the FCSA. Do not discuss any issue of justiciability.
PRACTICE ESSAY QUESTION M.04
Following a recommendation of the Sept. 11 commission, Congress is moving toward setting rules for the states would that would standardize the documentation required to obtain a driver’s license, and the data the license would have to contain.
The bill includes a provision that would let the Secretary of Homeland Security decide what documents a state would have to require (States are going to have to require certain documents before issuing a driver’s license) before issuing a driver’s license, and would also specify the data that the license would have to include for it to meet federal standards. The Secretary could require the license to include fingerprints or eye prints. The provision would allow the Homeland Security Department to require use of the license, or an equivalent card issued by motor vehicle bureaus, to non-drivers for identification purposes, for access to planes, trains and other modes of transportation.
The bill does not give the department the authority to force the states to meet the federal standards, but it would create enormous pressure on them to do so. (it doesn’t force the states. Even though the law is not technically mandatory, does having to have them to get on a plane make them mandatory in fact? If a state refused to issue the DL’s, no one from that state could get on an airplane. Maybe it plays out as a mandatory law. Printz and NY question.) After a transition period, the department could decide to accept only licenses issued under the rules as identification at airports.
The bill would also require the states to keep all drivers license information in a linked database for quick access. It also calls for “an integrated network of screening points that includes the nation’s border security system, transportation system and critical infrastructure facilities that the Secretary determines need to be protected against terrorist attack.”
Under the bill, the Secretary may make grants to a state to assist the state in conforming to the minimum standards set forth in the bill. The amount of any grant would be designed to defray the cost of a State complying with the requirements of the bill, and would be given out in the sole discretion of the Secretary.
Identify and discuss the constitutional issues relating to this bill, citing precedent where appropriate. Is the bill constitutional?
(Commerce Clause analysis. DL have a close and substantial effect on commerce. This is nothing more than a Lopez. Then, who is regulated by the law? It’s just states. When you talk about states, please say the word “Commandeer.” Tell me which branch is being commandeering. NY v. US forced to pass a law. NY was not accountable to their constituents but to other states. In Printz where Congress commandeered the executive branch, you have the same accountability but also a separation of powers problem – they are eliminating the president from his prescribed duties of executing the laws.
PRACTICE ESSAY QUESTION I (T.04)
(50 points – 49 minutes)
The State of
(a) Considered as whole and applying contemporary community standards, appeals to the prurient interest in sex of minors; and
(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(c) Considered as a whole, lacks serious literary, artistic, political and scientific value for minors.
This statute prohibits sexually explicit material that is harmful to minors from
being transmitted over the Internet to people in the State of
Transmissions over the Internet are wholly insensitive to geographic distinctions. Users of the Internet neither know nor care about the physical location of the people who receive their transmissions. Moreover, no aspect of the Internet can feasibly be closed off to users from another state. An Internet user who posts a Web page cannot prevent Oklahomans or Iowans from accessing that page and will not even know in what state visitors to that site reside. Nor can a participant in a chat room prevent other participants from a particular state from joining the conversation.
Law enforcement agencies around the nation are becoming increasingly alarmed at the growing use of computer networks and other communications by pedophiles. As one observer noted, “perverts are moving from the playground to the Internet.’ Several cases have come to light wherein a pedophile has traveled clear across the country (interstate although the transmission over the Internet is enough for interstate commerce) to have sexual relations with a minor initially contacted and engaged through various computer networks.
(The Key) A survey of other states’ laws prohibiting the transmission on the Internet of material that is sexually explicit as to minors reveals that other states define such materials in terms that differ from the Oz statute. (The issue is, you can’t transmit anything into the state, they all have different standards and the Internet is insensitive to geographic location – huge risk of multiple burdens problem)
This law is challenged by the American Pornographers Association (APA).
Would the law survive a dormant commerce clause challenge? Be specific, citing cases wherever possible. Do not discuss any issues of justiciability.
WARNING to any computer geeks in the class: Do not discuss any technical computer mumbo-jumbo. You will be severely punished (by having to take Taxation twice).
This question is based on American Libraries Association v. Pataki, 969 F.Supp.160 (1977).
(Pike Balancing Test, Risk of Multiple Burdens, Less Drastic Means. Also, extraterritoriality – a state law that has the effect of setting prices in other states. This doesn’t set the price in another state, but it sets the standards in another state.
