Con Law I Outline

I. Judicial ReviewA. Marbury v. Madison (1803) – Jud. Rev. of Acts by Cong. & Exec.

1.) Facts: new pres. Jefferson said to Sec. State Madison don’t deliver the justice of the peace commissions sitting on his desk Marbury out of luck, brings suit2.) Issue: to what extent executive is subject to jud. process?

a.) Sub-Issues: 1. does Marbury have rt. to commission? 2. if he has rt. has that rt. been violated and do laws afford remedy? 3. if they do afford him remedy is it a mandamus from this court?b.) ct. answers 1st two qs. yes, but in end rules agst. Marbury-Marshall, laws afford rt. to commission, Cong. appvd it & pres. signed it -rt. of every citizen to claim the protection of the laws when injured- Marbury has every rt. to this commission but still has to dismiss

3.) Creation of Jud. Rev.: Marshall declares § 13 of Jud. Act of 1789 unconst-Marshall likely feared his order would be ignored by pres. -S. Ct. doesn’t have power of purse/military, only has moral force of people willing to comply w/ decisions jud. rev. - S. Ct./Fed. Cts. set aside govt. actions that don’t conform to Const.

4.) Executive Actions & Jud. Rev. – Discretionary v. Legal-Marshall says discretionary exec. actions aren’t subj. to jud. review-but when Cong. imposes spec duties by statutes on officer approp. for ct. to rev. whether officer has lived up to duty

5.) Art. III – Original v. Appellate Jurisdiction a.) orig. jurisd. – granted to S. Ct. over cases ab/t ambassadors, other pub.

ministers/consuls, and those in which a state shall be a partyb.) app. jurisd. - all other cases, “arising under” jurisd. c.) § 13 & Const. - Marbury says § 13 giving mandamus to S. Ct. by orig. jurisd.

unconst. b/c such mandamus not provided in Const.-Expressio Unius, Exclusio Alterius (by listing some all others are excluded)

6.) Alternative Reading of § 13 -Marshall adds to orig. jurisd. of S. Ct. which Cong. can’t do b/c pt. of a written Const. is Cong. can’t just amend/repeal w/ ord. law-could have same result w/o declaring statute unconst., could argue construction that writs of mandamus only applies to app. jurisd. -mandamus § after statement of app. jursid., but Marshall reads it as orig. jurisd. -historians believe Marshall read it so to avoid snub by Jefferson if ct. accepted jurisd. and to create power of judicial review

7.) Constitutionality of Judicial Review. a.) No Direct Textual Support - power to interp conflicting acts and to declare them

unconst. not in the Const.b.) Jefferson’s View: opposed jud. rev., too much power unelected, lifelong jud.

-responsibility of each branch of govt. to interpret Const. itself b/4 acting c.) Marshall’s Interp.: US law is hierarchical and Const. law superior to statutory, ba-Marshall’s 3 textual supports for jud. rev.: 1. Sup. Clause, 2. Art. III S. Ct. shall have power over cases arising under Const., 3.

Oath in Art. VI 3 to support Const. -Marshall says judges are experts in law jud not other branches should interp.

d.) Challenges to Legit. of Jud. Rev.: challenged by many as undem., no textual support -jud. rev. not used again until Dred Scott in 1857 declared MO Compromise unconst, demonstrates Ct.’s sensitivity to crit. that vast power of jud. rev. undem.

e.) Hamilton Fed. 78 - counters jud. rev. nec. to ensure limits on Cong.

1

-Const. is product of the people as stated in Preamble-in conflict b/t leg. & Const. Const. is always preferred b/c it is more democratic and direct product of people

B. Martin v. Hunter’s Lessee (1816) – Jud. Rev. of Decisions by State Cts. 1. Facts: US S. Ct. rev’d. decision by VA Ct. App. VA Ct. App. declared § 25 of jud. act of

1789 unconst., which said S. Ct. should have app. jurisd. over decisions by highest state cts.,2. Compact Theory of Const.: states convened & created Const. states are superior,

Const. is a compact of states and they aren’t bound by it-VA ct. said Const. sets state and fed. govts. as independent and equal -VA arg. state officers take an oath to defend the US Const and that they therefore can be depended on to interp. and follow Const. w/o oversight of S. Ct.

3. Story’s Justification of App. Jurisd. over Decisions by State High Cts: a.) Art. III § 2 - jud. power shall extend to all cases arising under law of USb.) Art. III commands Cong. to create S. Ct. in which jud. power shall be vested-text of Const. seems to say Cong. doesn’t have to create lower fed. cts. -b/41875 no fed. q. jurisd. most fed. qs. litigated in state cts.-if those state decisions couldn’t be reviewed by S. Ct. they would be outside jurisd. granted to S. Ct. over cases arising under Const.-it is the case and not the ct. that determines jurisd. -if VA Ct.’s position correct Ct. would have NOTHING TO HEAR, no jurisd.

4. Story’s Rejection of Compact Theory: mistake to think Const. doesn’t bind states when interp. of Const. in conflict w/ state statutes

a.) Plain Lang. of Const. - states in ratifying Const. implicitly said Compact Theory wrong -points to list in Art. I § 10 which enumerates limitations to state sovereignty

b.) Uniformity - if each state could decide Const. for itself no uniform fed. law c.) Jud. Act of 1789 granting S. Ct. app. jurisd. over states constitutional.

5. Avoiding Continued Defiance by VA Ct. App: -instead of sending case back to VA Ct. App. Story just enforces decision of tr. ct. -Johnson concurring, ct. disavowed intention to decide on rt. by S. Ct. to issue compulsory process to state cts.

C. Cohens v. VA (1821) – S. Ct’s App. Jurisd. over Crim. Apps. from Statesa.) Facts: - 2 indivs. arrested and convicted in VA for selling DC lottery tickets there

1. VA’s Challenge to S. Ct’s App. Jurisd. over State Crim. Cases:a.) Art. III § 2 Cl. 2 - in all cases IN WHICH A STATE SHALL BE A PARTY S. Ct.

shall have orig. jurisd. not app. jurisd.-VA uses same reasoning as Marshall in Marbury, can’t add powers to orig. jurisd. not granted by Const, VA says since cases in which state is party e.g. crim. cases are not mentioned then they must be excluded

2. Marshall’s More Expansive View: responds must look at 1. structure of govt., 2. nature of Const., and 3. subordination of state govts. to Const-for Const. to effect its goals must have power to hear crim. apps.-Marshall again outfoxes VA, finds S. Ct. does have power to hear crim. apps. from state cts. but Ds still lose nothing to send back to VA to consider

D. Further Scope of Fed. Jud. Power 1. Nixon v. Sirica (1973) – Pres. Ministerial Duties

- Nixon arg Marbury exempted Pres. from jud. power in his ministerial duties -ct. of app. said that Pres. is still under power of fed. judiciary like anyone else

2. Cooper v. Aaron (1958) – State Sov. v. Fed. Ct. Ordera.) Facts: govern of AK refused to integrate Central High School, governor showed up w/ national guard and refused to allow black students to enter, Pres. Eisenhower called out fed. troops to enforce fed. ct. order

2

b.) Governor’s Compact Theory Arg. - states could nullify fed. ct. orders if impeded state sov. too much, S. Ct. unanimously rejected arg -neither state leg. nor governor may nullify fed. ct. order -S. Ct. says every state leg. and officer bound by oath to support Const. and S. Ct.’s interp. of Const.-said Fed. Judiciary is supreme in exposition of law of Const.

E. Theories of Const. Interpretation1. Originalism (Intentionalism) – Bork says it’s obvious framers couldn’t have known

facts of world today, but some inquiry must be made into intent of Const. not to provide answers but to arrive at a guiding principle -Perry says there is some comm. core at heart of Const.-originalism takes intent and text into account

2. Textualism – certain tension b/t orig. & text., people may differ on intent of framers so it’s imp. to look at the text for guidelines, separate text from intent

3. Interpretivism – Const. interp. approp. where it can be derived from text of Const. or can be implied there from, Ely

4. Non-Interp. – in interp. big concepts S. Ct. must look outside Const. should concede that5. Neutral Principles – cts. should interpret Const. in comp. detachment to find most neutral

principles free from any result oriented jurisprudence6. Passive Virtues – in some matter cts. out of need to appear above the fray should pass on

deciding some issues even if they have jurisd.7. Participatory Values - ?

F. Utah v. Evans (2002) – Originalism in Application 1. Facts: 2000 Census used “hot deck imputation” loss of seat by Utah and gain by, not

really stat. sampling, inferring # of people from house where they get no response based on #’s in nearest building, Utah sued

2. Lang. of Text: “actual Enumeration . . . in such a manner as Cong. shall direct”-Utah: method Census Bureau used unconst., census taker must phys. count every inhabitant-Breyer decides in favor of NC, says this method of imputation is consistent w/ command of census clause, thinks it’s const.

3. Breyer’s Interp. of “Actual”: contrast to 1st & 2nd Cong. where by conjecture-looks to 18th C. dictionaries for meaning of “enumeration” just says act of counting but not how to count-using originalism/interpretivism, focuses not just in text but in hist. of time and meaning of wds. in that time

4. Thomas’ Interp of “Actual”: actually physically counting each person-finds dictionaries from the time which he claims say “enumeration” means actual counting and not estimation or conjecture-uses orig. as well, but Thomas gen. more textually oriented but here ignores the final

part of text “in manner which Cong. shall direct” which Breyer emphasizesG. Judicially Imposed Limits on Jud. Rev.: Non-Justiciable Political Questions

1. Historical Backgrounda.) Luther v. Borden (1849) – Guaranty Clause Cases

i.) Facts: -1841 Dorr Rebellion in RI, issue whether the charter govt. satisfied Guaranty Clause, Pres. recognized the supporters of charter govt. and their own newly drafted const. which ended rebellionii.) Holding: Tawny says it’s not for cts. to decide b/c could lead to disagreement w/ Cong. less order, det. belongs to democratically elected branch of govt.-rule from Luther Republican Guaranty Cl. cases not approp for jud. rev.

b.) Colegrove v. Greene (1946) – Apportionment Thicket

3

i.) Facts: IL leg. dominated by rural reps., after 1901 leg. refused to redistrict to prevent seats going to Chicago area eq. protection challenge

ii.) Frankfurter’s Pluarility: cts. shouldn’t enter “political thicket” of mal-apportionment, no std. by which to judge validity of scheme

-political q. & thus non-justiciable, ct. shouldn’t appear to be aiding one party iii.) Rutledge: there was jurisd., not a non-justiciable issue but rather just non-

justiciable case c.) Gomillion v. Lightfoot (1960) – Legislative Action

-town of Tuskegee gerry mandered as to exclude black voters, - diff. b/c here no failure to act by leg. but actions by town to purp. discriminate

2. Baker v. Carr (1962)a.) Facts: - Tenn. refused to reapportion despite pop. shifts to urban areas

q. whether non-action for 60 yrs was consistent w/ Tenn. const., which reqd apportionment be equal & taken every 10 yrs. challenges under civ. rts. statute and eq. protection clause

b.) Jurisd. & Justiciability: Brennan says “arising under” jurisd.& a just. claim-jursid. claim based on eq. protection claim and civ. rts. statutes fits 1331-dist. ct. misread Colegrove, Frankfurter said there was jurisd. but not just.

c.) Brennan’s Interp. as Justiciable Non-Political Q.: -not a Guarantee Cl. q., those cases deal w/ issues b/t branches of fed. govt. like in Luther where ct. didn’t want to get involved b/t pres. & Cong.-here not coordinate branches of fed. govt. but issues b/t state & fed. govt

d.) Distinguishing Coleman v. Miller: proposed child labor amendment, Kans. votes no 1st then 18 yrs later decided to ratify it, text of amendment had no expiration date can state pass & ratify later, when does am. expire?-S. Ct. said not for us to decide, for Cong. b/c a pol. qs. w/o stds. for jud. decision -Tenn. arg. relies on Coleman apportionment non-justiciable pol. q.-Brennan dists. Coleman as sep.of power prob. and pol. q. w/ no manageable jud. stds. to follow for resolving q. -here no sep. of powers prob. b/c b/t fed. and state govt. instead of b/t coordinate branches of fed. govt.-manageable jud. stds for this prob. found in the lg. vol. of eq. protection cases

e.) Brennan’s 6 Criteria for Non-Just. Pol. Qs. (Only Need 1 to find Pol. Q.)1. textually demonstrable const. commitment of issue to coord. pol. dept.

-seems to apply to Coleman where Art. V seems to leave procedure for Const. Am. to Cong.; not relevant here though b/c talking abt. state leg.

2. OR lack of jud. discoverable & manageable stds. for resolving it3. OR impossibility of deciding w/o an initial policy det. of a kind clearly for

nonjud. discretion4. OR impossibility of a ct.’s undertaking indep. resolution w/o expressing

lack of respect due coordinate branches of govt.5. OR unusual need for unq’g adherence to pol. decision already made6. OR potential of embarrassment from multifarious pronouncements by

various depts. on single q.-1st 2 criteria deal w/ jud. functions, other 4 deal w/ commitment to other branches-Brennan doesn’t agree that all foreign rel. matters are non-just., ex. of when treaty is terminated may be decided by ct. if no govt. action has been taken

f.) Brennan’s Solution to Guaranty Cl. Decisions Legit. Eq. Protection Q. -Tenn. Const. mandate for reapportionment every 10 yrs and guaranty of proportional rep., Tenn. hasn’t lived up to that Brennan doesn’t have to develop any system for det. reapport.,

4

-Tenn. has done that and he just has to ensure state follows its laws eq. protection issue under 14th Am.-Brennan says it was Guaranty Clause that made prior cases political qs. -just b/c q. pol. doesn’t mean it’s a non-justiciable pol. q., this doesn’t fall into any of 6 criteria, all he has to do is tell Tenn. to follow its own law

g.) Clark’s Concurrence – No Other Avail. Relief-gives another answer to prob. that trad. have never dealt w/ this q.-only intervention poss. would be from the very reps who benefit from unfair system, Tenn. has no referendum or initiative relief-not thrilled to delve into this area, but can’t see any other poss. relief for people of TN

h.) Frankfurter’s Dissent –Fear of State Defiance/Non-Just. Q.i.) Jud. Usurpation of Power Lack of Confidence in Ct. Defiance

-threat to judicial power, if state leg. decides to ignore their decision then S. Ct. loses its moral auth., no power of purse or sword-fear stems from Brown v. Board of Ed. unanimous decision by S. Ct. but resisted terribly in South -Frankfurter afraid they’ll speak & no one will listen-says S. Ct. has no power except willingness of the people to obey

ii.) Not an Area of Judicial Competency -people of Tenn. vote & have their ballots counted, complaint is less influence than others, which Frankfurter says is true of any pol. group in any sys-says not true that pop. proportioned rep. is reqd. by Const., addressing fact that each state gets 2 senators in Const. despite pop. -denies 1 person 1 vote reqd. by eq. protection clause-defends current Tenn. system as a choice in how representation should be determined which is non-actionable-really a rep. guarantee cl. case no std. for what eq. protection means, ct. making its own decision as to what proper polity looks like -doesn’t believe judges should or can make this decision, believes there are plenty of good reasons for determining polity based on non-proportional rep.

3. Subsequent Cases:a.) Reynolds v. Sims (1964) - est.1 person 1 vote princ., allow 10% discrepancy b.) Davis v. Bandemer (1986), rep. dominated IN leg. gerrymandered Cong. dists to

favor repub. candidates dems. lost sig. representation in Cong. -dems sue in fed. ct. alleging gerrymandering violated eq. protection cl.

i.) Plurality Decision: gerrymandering could be just., pattern of constant disenfranchisement over many yrs. maybe an eq. prot. q. but not here

-plurality said after Baker there are jud. manageable stds.-Baker didn’t say 1 person 1 vote, just made issue justiciable to allow for that later det., and even if it had in Davis the issue wasn’t value of vote

ii.) O’Connor - whole area of pol. gerrymandering non-justiciable- in Baker state itself had mandated eq. rep. no such mandate q. of whether cts. should be deciding these issues

c.) Vieth v. Jubelirer (2004) – plurality pol. gerrymandering non-justiciable q. b/c of lack of std. to follow in making decision-Kennedy concurrence, says no std. now but don’t want to foreclose issue now when std. could be developed at some pt. loss of faith in judiciary-Scalia responds it is the job of ct. to provide relief not hope, believes non-just., resolution must come from people being suff. aroused to change sys-Stephens dissent points out only plurality of 4 says it’s non-justiciable

5

-each dissent proposed diff. std. one suggestion req. neutral justification for each dist. and ask if pol. motivation lead to their creation

d.) Powell v. McCormack (1969) - congressman in NY got into legal difficulties, re-elected, Cong. refused to seat him -Const. Art I § 5 says each house to be judge of its own stds for members -arg. that Const. states which branch of govt. controls this issue non-justiciable pol. q. (Brennan’s 1st criterion)-S. Ct. held for Powell on grounds Cong. adding to quals. est. for members in Art. I § 2, said Art I § 5 speaks only to exclusion which reqs 2/3 vote -Ct. said it’s the responsibility of Ct. 1st to determine the textual basis for q. then for the appropriate branch to interpret that basis

H. Foreign Affairs & Political Qs.1. Goldwater v. Carter (1979)

a.) Facts: Carter admin. announced that it would recognize communist China & terminate treaty w/ Taiwan pol. firestorm & q. who can terminate a treaty? -Const. only speaks to creation, doesn’t say anything abt. terminating treaty-Sen. Goldwater & a few other senators brought suit in fed. dist. ct. seeking injunction to prevent termination w/o consent of Senate-arg. since sen.’s lg. role in creation role in termination-dist. ct. said there was no standing b/c only a sm. group of senators-Sen. Byrd proposed an Am. to Sen. Res. that would require senate appvl. of any treaty termination, passed but unclear as to whether retrospective standing

b.) S. Ct. Order - Ct. of App. decision should be vacated c.) Powell, concurring - issue justiciable but not ripe for jdmt. b/c Cong. hadn’t done

everything in power to resolve sit-if pres. and cong. at hopeless odds it’s the duty of the Ct. to resolve these issues-q. presented would eliminate rather than create mult. interps. of Const.

d.) Rehnquist + 3, concurring – non-justiciable case, pol. q., Const. silent - involves foreign relations in which judges have no competence-equal coordinate branches of govt. which must be given due deference -like Coleman v. Miller, Const. doesn’t answer q. posed non-justiciable

e.) Brennan dissents - true if smthg textually committed to a coordinate branch pol. q., but for the Ct. to det. 1st if it is so committed

2. Dellums v. Bush (1990), challenge by members of Cong. to Bush’s decision to use military force in 1st Iraq war w/o declaration of Cong.

b.) Art. I § 8 Cl. 11 - Cong. shall have power to declare war, framers felt entry into war so serious shouldn’t be decided by 1 person but by Cong.

-sim. in Vietnam war, all thrown out as non-just. pol. qs. of foreign rel.c.) Decision by Dist. Judge: pres.’ actions could be interpreted as “war” w/in meaning

of Const. & that the power to declare war lies w/ Cong.-however no one knew position of Cong. on issue of war w/ Iraq, would be premature for ct. to take action b/4 Cong. itself has spoken-chose to follow concurrence of Powell in Goldwater

I. Nixon v. US (1993) – Impeachment as Political Q. ?1. Facts - fed. judge impeached for making false statements to grand jury

-appealed on grounds that Senate committee appointed under Senate rules unconst.-Art I § 3 “Senate shall have sole power to try impeachment”, 2 critical wds. “sole” ,goes agst. Nixon & try, which Nixon believes means be heard by trial which means whole senate

2. Rehnquist: Non-Just. Pol. Q. - role granted solely to Senate isn’t for ct. to reviewa.) hist. of Const. & commentary - some debaters at Const. Convention concerned ct.

wouldn’t have the guts to impeach anyone,

6

-also concerned that judiciary at time thought of as unimportant-concerned that the judiciary would get 2 bites at the apple b/c impeachment trial would likely also involve 2nd criminal trial

b.) checks and balances – would make judiciary too important-impeachment process divided b/t 2 houses to ensure neither too powerful, separates prosecutorial function of House from judicial Power of Senate

c.) lack of finality and delay in allowing Senate & cts. to pass on impeachmentsd.) power given to correspondent branch of govt. by texte.) no manageable stds., wd. “try” lacks suff. precision for cts. to develop

manageable std. of what that should meanf.) distinguishes Powell v. McCormack where issue was term qualification, but there

provisions of Const. set forth specific quals-here no other cl. defeated by concluding that matter non-justiciable

g.) cts. have power to rev. leg./exec. actions that transgress identifiable limits3. Stevens concurring, non-just.don’t need to parse meaning of wd. try just say it’s

assigned to Cong. and no other branch 4. White concurring, addresses what Rehnquist’s last paragraph hinted at

-doesn’t believe Const. prohibits jud. rev. of procedure in all cases-if leg.were to act so arbitrarily as to be intolerable, no reason to say could never be reviewed, these issues eminently reviewable-wd. sole addresses not review by jud. but interference by House -ct. reviews leg. decisions all the time despite Art. I § 1 statement that all leg. power vested in House & Senate, why make “sole” special & not “all”-if anyone should understand what wd. try means it would be judiciary-thinks it’s reviewable and consistent w/ system of checks and balances

5. Souter concurring, ct. doesn’t have to say whether ult. reviewable -cts. should only resolve difficult qs. of Const. involving clash b/t branches when the issue cries out for review which this case doesn’t

I. Bush v. Gore (2000) – Ebb & Flow of Political Q. Doctrine-S. Ct. reviewed Fl. cts. decision that manual recount should take place and reversed-Ct. said if someone asks for a decision on Const. issue they are required to respond to it, which would mean no pol. qs. exist at all-Ct. never actually addressed political q. analysis-Breyer dissenting, addresses eq. protection never used wds. pol. q. but suggests textual commitment to a coordinate branch of govt.

II. Limitations on Judicial ReviewA. Congressional Control of S. Ct.’s Appellate Jurisd.: The “Exceptions” Cl.

1. Ex Parte McCardle (1869) – Cong. Power to Revoke App. Jurisd. a.) Facts: Act of 1867 granted fed. cts. jurisd. over writs of habeus corpus

-fed. ct. denied writ to Miss. newspaper editor jailed for criticizing the military Reconstr. govt., appealed to S. Ct.-Cong. repealed portion of Act granting habeus jursid. b/4 S. Ct. decided

b.) Art. III § 2 – “Exceptions Cl.”: in all cases not of orig. jurisd. Cong. shall control appellate jurisd. and make exceptions to it as they choose

c.) Chase’s Jurisd. Analysis: Ct. has no jurisd. b/c Cong. has power to repeal stat-clear that Cong. may make exceptions to appellate jurisd. under Const.

-thru evolution of sys., Cong. has to give certiorari power to S. Ct. by stat.-didn’t have to develop this way, Const. clear that there must be a S. Ct. &

could have created our own rules governing gen. app. jurisd.d.) McCardle & Further Limits of Cong. Power over App. Jursid.:

7

i.) One Arg.: last ¶ indicates Cong. hasn’t completely deprived Ct. of habeus jurisd. only that from Act of 1867

Cong. can’t abolish entire area of cts. powers -other Habeus statutes gave ct. app. jurisd. incl. acts of 1789 over

prisoners pending trial by US authorities ii.) Schwarz Arg.: McCardle stands for minor revocations of power by

Cong. but not major ones that would challenge sep. of powersiii.) Alt. Arg.: Cong. may revoke app. jurisd. at any timeiv.) Bork Arg.: McCardle enigmatic, but if framers had intended Cong. to

have power to control Ct. so extremely would have said so instead of couching it in lang. of exceptions and regulations

2. US v. Klein (1872) – Cong. Interference w/ Exec. & Jud. Powersa.) Facts: Cong. provided after Civ War rebels forfeit prop to the US created

Court of Claims to det. title to the prop Pres. Johnson offered pardon to rebels who agreed to take oath of loyalty prop. would be returned

b.) S. Ct.’s Initial Holding: Ct. of Claims had resp. to enforce Johnson’s pardons c.) Cong.’s Reaction: enacted stat. declaring accepting pardon est. of guilt

- instructed Ct. of Claims to deny reest. of prop. to the rebels & -Supreme Court should have no jurisdiction on the matter.

d.) S. Ct. Stuck Statute:i.) Cong. can make exceptions app. jurisdiction of S. Ct but can’t prescribe

result in a cause of actionii.) nor can it change effect of a pardon, which is exclusive exec. power.

e.) Contrast with McCardle: here withdrawal of jurisd. held unconst. -distinguishable b/c Cong. trying to usurp the power of both branches, undermine the pres.’ pardon power & the power of the Ct.-Cong. interference w/ power of jud. more egregious here b/c attempting a judicial act; rather than revoking pt of Ct.’s jurisd. dictating a case’s result

B. The Case or Controversy Requirement1. Muskrat v. United States (1911) – Fed. Case or Controversy Req.

a.) Facts: 1902 Act set aside land for some Cherokee Indians, to be administered by fed govt., later leg, attempted to enlarge # of Indians who would share prop. protest from orig. Indians claimed later acts unconst. taking b.) S. Ct. Holding: 1. no justiciable case or controversy,

2. Cong. could not ask Ct. to give an advisory opinion,3. not yet adverse parties in this case – US had no direct interest in case

c.) S. Ct.’s Ref. to Exchange b/t Sec. of State Jefferson & C.J. Jay:-Jeff. asked if Pres. Washington could ask S. Ct. for advice on treaties. -Jay responded Ct. only had jurisd. to decide cases & controversies, couldn’t advise

d.) Future Justiciability: if new class of Indians took possession of prop. claimed by Muskrat, and a lawsuit was filed just. case

2. Advisory Opinions by State High Courts: in some states high cts. will give ops. b/c bound by their own consts. rather than that of the United States.

a.) Goodridge v. Dept. of Public Health (2004), S. Ct. of MA declared failing to permit gay marriage a violation of MA const.

-MA leg. wrote to MA Ct. inquiring whether enactment of civ. unions would satisfy req. The MA Court wrote an opinion saying no

3. Justifications of Case or Controversy requirement:i. Parties are very interested in the outcome of the litigation.

ii. Cases put the issues in context.C. Standing

8

1. Two types:a.) Constitutional (Art. III) standing: what the Constitution requires.

i.) actual injury, ii.) causation, iii.) redressability b.) Prudential standing: even where a case meets Const. req. of standing, the ct.

feels its discretion renders the case inapprop. for judicial intervention.2. Frothingham v. Mellon, (1923) – Taxpayer Standing, Req. of Injury in Fact

a.) Facts: MA & indiv. woman challenged early fed. welfare stat The $ would be distributed to states complying with statutorily set stds..

-MA objected on grounds its cits. paying more than state received-further, claimed unconst. exercise of spending power. MA stated fed.

govt. invading its rts. & powers as sov. state in violation of 10th Am.

-indiv. made takings claim, claiming taxpayer status gave her standing.b.) Sutherland’s Holding on MA’s Claims:

-MA consented to the act by accepting the distributed $; however , MA had no standing to receive an op. from the S. Ct. on this matter b/c

cits. of MA also citizens of US MA can’t protect its citizens from the US.

c.) Sutherland’s Holding as to Frothingham’s Taxpayer Standing Claim:-no basis for standing, leg. may increase her tax burden, but fed. taxpayers can’t sue

on basis of taxpayer status alone (fed. taxpayer status doctrine) -indiv.’s interest is minute rel. to the taxpaying pop. as a whole. -plus, if one citizen could bring suit all citizens could do so hardship

d.) Local Tax Payer Status: local taxpayer may have standing to challenge municipal taxes if they violate state law.

f.) Prudential v. Const. Rule: if taxpayer standing rule a prudential rule instead of Const., then it can be changed; court is unclear

g.) Ct. as Equal Branch: ct. has no power to sit and revise decisions of other branches supreme branch rather than an equal one

h.) Criticism of Rationale: some seem taxpayer std. as means to ensure const. govt. actions, under rule of Frothingham many unconst. actions go unchallenged

3. Circs. in Which Fed. Taxpayer Does Have Standing: a.) where indiv. received actual injury, if taxpayer directly affected by IRS

decisions concerning his indiv. taxes would have cause of action in tax ct. b.) Flast v. Cohen (1968): 2 Exceptions to Gen. Taxpayer Standing Rule

i.) if taxpayer challenges exercises of taxing and spending power of Cong. and not some incidental administrative decision

ii.) alleges exercise of spending power a spec. violation of Const. i.e. here spending to buy books for religious schools as violation of 1st

Am.4. Schlessinger v. Reservists Committee Against the War (1974) – Citizen Standing

a.) Facts: citizen group challenged fact that several members of Cong. held office in military reserves as violation of Incompatibility Cl., claimed citizen standing

b.) Holding: ct. didn’t allow citizen standing, said ~ taxpayer standing where too gen. but said Cong. can give citizen standing by stat., not the case here

5. Warth v. Seldin (1975) – Lack of Redressability & Lack of Causationa.) Facts: counter trend to expansion of fed. jurisd. by ct. in 50’s & 60’s

-low income residents sued suburb of Rochester, town of Pennfield, for exclusionary zoning, said 1 house for a large area of land impossibility of building high density low income housing, residents and builders sued town for violation of eq. protection

9

b.) No Redressabililty - Ps failed to show any chance of relief even if ct. found eq. prot violation b/c no buyer had attempted to purchase land to allocate it for low income housing if the exclusionary zoning removed-neither had P’s shown residents would move there if ct. ruled for them

c.) No Causation - Ps failed to show “but-for” exclusionary zoning laws that in fact there would be opp. to build & have low income housing in Pennfield

7. Simon v. Eastern KY Welfare Rts. Org. (1976) – Injury & Causationa.) Facts: IRS reg. hospital could have non-profit status if it gave outpatient svcs. to

indigent patients for free, org. brought suit agst. Sec. of Treasury claiming for hospital to have non-profit status it should have to give out-patient svcs. to indigent patients too

b.) Association Standing: an association can sue in fed. cts. if:1. 1+ members have standing indep. i.e. at least one patient in KY Welfare Org. must

have been denied treatment2. interest at stake must be germane to assn. purp.3. claim or relief must be dependent on member participation

c.) Redressability: Ps basically seeking IRS expansion of reg.-ct. would have to issue jdmt. that under reg. to have non-profit status hospital must admit indigent patients for both out-patient & in-patient care-might place members in worse position b/c hospitals might then choose non-profit status not worthwhile and deny all treatments-another prob. hospitals not party to the case, asking judge to issue jdmt. that party outside the case should take certain actions-ct. said no standing under Art. III b/c not certain we can redress injury

8. Lujan v. Defenders of Wildlife (1992) – Enviro. Standinga.) Facts: action arising from ESA, orig. interp. by Sec. of Inter. ESA applied to funding

of projects abroad, but later interp. said only applied to funding of projects in US-Ps brought challenge to interp. saying it should apply to foreign nations

b.) Scalia said no standing: no injury b/c no harm in fact to Ps(Scalia Op. of Ct., Rehnquist, White, Thomas Join Redressability)

i.) Someday Intentions -attacks indiv. Ps claims of harm attempting to est. members have indep. standing from harm if can’ t return to other countries to observe the wildlife in the future as “someday intentions”-Frothingham just b/c some agency does something we don’t like doesn’t give us standing to complain abt. it, must show actual injury

ii.) Ps’ attempted nexuses: animal nexus - loss of opp. to observe animals in future, ecosystem nexus - all people living in biosphere will suffer harm, vocational nexus – people whose work depends on these animals will lose wk.

iii.) Scalia makes trad. standing reqs. even stricter, injury must not only be in fact but also particularized & imminent, not hypothetical

c.) Redressability Probs.: i.) US funding only sm. % of total, might not stop projects ii.) Sep. of Powers: Ps wanted orig. interp. reinstated re: foreign projects

-Scalia said even if we do that can’t give relief Ps want, sep. of power prob., exec. given power to ensure laws prop. instituted

iii.) Party not b/4 Ct.: even if ct. gives relief sought then USAID still might not be bound to decision b/c agency not party b/4 the ct. -suit agst. Sec. of Interior doesn’t make agencies a party, thus not bound-Scalia has no confidence non-party agencies would follow the ct.’s interp.-Stevens concurring, can’t imagine if S. Ct. spoke agencies wouldn’t obey

d.) Standing by Statute: ESA provision gave rt. to “any person to enjoin the US & any govt. agency which is alleged to be in violation of this Act”

10

-Cong. can by stat. create inj. in fact where there might not have been any -many fed. agencies have “aggrieved person” statutes i.e. FCC -Scalia, sep. of power issue, for exec. to interp. stats as they wish, this type of stat. insuff. to provide standing, despite stat Ps show no injury

e.) Kennedy, joined by Souter concurringi.) Advice for Standing: could easily have been injury in fact & standing

-future Ps should buy plane tickets certain travel date injury in fact, injury would then be particularized and concrete

ii.) Stat. Defects: if statutory defect were cured it would be a diff. case-Prof. Barron’s suggested lang. to amend the statute, ESA confers a rt. on “any person to enjoin the US [& any govt. agency] which is alleged to be a violation of this act [& a violation of this act shall constitute an injury to such person].-this may not be enough though to satisfy Scalia, b/c would still need to show some specific injury to the person bringing the claim-concerned Scalia painting w/ too broad a brush and that Cong. can create statutes that would grant aggrieved person standing

f.) Stevens, concurring-Ps do have standing, but Ps shouldn’t prevail b/c Cong. didn’t intend ESA to apply to overseas projects-finds injury in fact and redressibility, doesn’t like Scalia’s view of what imminence is, believes imminence should be when the harm occurs to the protected species not when party returns to view it

g.) Blackmun, joined by O’Connor dissenting-finds Ps had reached level suff. to survive summ. jdmt. on standing-as long colorable claims of injury, causation, & remedy should be tried to determine whether they exist, shouldn’t be dismissed on summ. jdmt.-concerned courts that are substantively hostile to environmental claims will simply dismiss them for mootness or standing on summ. jdmt.

9. Friends of the Earth v. Laidlaw Enviro. Svcs (2000) - a.) Facts: suit by org. agst. plant continually leaking mercury & other pollutants into

river in violation of its permit -stat. provides local citizens may bring suit agst. polluter not complying w/ conds of its permit but must provide 60days notice-plant asked DHEC to file suit 1st, DHEC agrees $100K settlement-Ps file their own suit in dist. ct. seeking injunctive relief, declaratory relief, and fed. civil penalties , if Ps prevailed on civ. penalties $ would go to US Treasury-Ps unable to get injunction b/c after suit filed plant complied

b.) Ginsburg: injury in fact - exists b/c part. people in the org. suffered injuries to their interests living near the plant

i.) Distinguishing Lujan: injuries more imminent, Ps don’t have to go to Egypt or Sri Lanka, live right by river -Ps directly exposed and affected by effects of discharges, much more immediate than “some day sometime” concern in Lujan -cites harm claimed by Ps incl. not using river for recreation b/c of fears of pollution and loss of home value-D arg. closed the plant now, more imp. the dist. ct. found no enviro. damage

-Ginsburg finds despite finding still standing b/c concerns of pollution injury in fact

ii.) City of LA v. Lyons (chokehold case), P sought damages & injunction to ensure police won’t do this again, S. Ct. said no standing b/c injury in past, no threat in future

11

-Ginsburg, here diff. b/c at time of filing pollution still being discharged in excess, ongoing violation unlike in Lyons where police not using chokeholds anymore

-Lyons seems much stronger for standing, police could reinstitute chokeholds at any time, more tangible injury

iii.) Proof of Injury: of all the Ps w/claims of injury, claim of lost prop. value stgst. arg. for injury in fact; Scalia says P offered no evid. of this fact

-much easier to prove though than claims of desire to fish or camp issue whether for standing must proof of injury be shown in pleadings or is

it suff. to state claim & prove it at trial?-cts. have divided on this issue, cts. that allow it at trial say dismissing at pleading

implicit hostility to the subst. of claimd.) Ginsburg: redressability - issue civ. penalties awarded don’t go to Ps

i.) deterrent effects of civ. penalties -violations ongoing and could continue causing injury in future if undeterred despite

closure b/c D retains its permit to reopenii.) distinguishes Linda R.S . in which ct. found no standing for claim to force

prosecutor to press charges agst. deadbeat dad, law didn’t deal w/ illegit. children-says this is exec. (prosecutorial) discretion, doesn’t apply here-makes pt. that even if prosecutor had done what woman wanted wouldn’t have

helped her b/c dad would be in jailiii.) dissent’s sep. of powers concern: Cong. allowing cit. suits gives exec. power to

priv. cit. in violation of sep. of powers -Ginsburg: executive branch filed briefs in support of cit. suits, executive still allowed

under statute to act if they want to, chose not to, doesn’t violate sep. of powerse.) Kennedy, concurring:

-objects to dialogue b/t Ginsburg & Scalia abt cit. suit provisions of stats as challenge to sep. of powers b/c not mentioned in appeal, shouldn’t be passed on tangentially

f.) Scalia, dissenting:i.) Injury in Fact:-no concrete & particularized harm, just subj. apprehensions, concern not enough,

makes injury in fact req. a sham-part. upset that Ps claim enviro. damage but dist. ct. found no enviro. damageii.) Redressability:-not redressable, beyond reach of Art. III case or controversy-even if could redress damages it would be speculative at best, points to Linda R.-redress would be incidental in this case and wouldn’t actually do anything for Ps-unconst. for Cong. to allow standing to sue for civ. penalties that go to US

treasury, same position he took in Lujan-these are exec. resps., under stat. EPA may trump cit. suit but may force EPA to go

after someone they don’t believe in violation-lesson in Frothingham taxpayer standing doesn’t give standing for gen. remedy, says

same here no redressability if not directly to cit. 10. Elk Grove Unified School Dist. v. Newdow (2004) – 3rd Party/Prudential Stdg.

a.) Facts: P brought suit mandatory pledge incl. “under God” violation of est. cl., P atheist father, wants to teach daughter his beliefs

b.) Prudential Stdg.: S. Ct. declined to intervene in the realm of domestic issues, which are gen. reserved for state law-Stevens says no standing b/c mother has legal rt. to protect daughter’s interests as well & had diff. beliefs from father

c.) “jus tertium” – P gen. can’t assert 3rd party claims-Rehnquist dissenting says not really 3rd party claim, b/c P has rel. interest

12

d.) Const. Stdg. Met?: prudential standing diff. from Const. standing1. injury in fact – rel. w/ daughter, 2. causation – complaint to D state req., 3. redressable – state could stop mandating/remove under God-Stevens implicitly agrees Const. stdg. met, says denying on prudential stdg. use of discr. to avoid jdmt. on family law issues

11. Defunis v. Odegaard (1974) – Mootnessa.) Facts: white student claimed aff. action policy of Univ. of Wash. violated eq.

protection b/c his scores higher than those admitted , sued in state ct. which held policy unconst. began his studies, S. Ct. of Wash. reversed, Douglas stayed jdmt. until D could finish school

b.) Mootness: when considered det. moot b/c conflict b/t parties over-moot b/c despite ct.’s decision school would allow part. D to finish study-D arg. school could at any time deny another student admission -school still giving spec. consid. to minorities

c.) 2 Exceptions to Mootness: 1. voluntary cessation of unlawful activity, -ct. said no unilat. change in admission policy, reason D will graduate not b/c of vol.

change of policy 2. capable of repetition yet evading review-ct. said that D would not need to reapply to law school, even if he were to reapply

nothing to prevent review at that time if deniedi.) Dist. from Roe: in Roe P was no longer pregnant at time of review

-Roe case of rep. yet evading rev. b/c woman could get pregnant again, but usually law student won’t face admissions again

ii.) 1st Nat. Bank v. Bellotti (1978) – Same Party Issue -q. whether using 2nd exception means have to use same party, -ct. said this q. required 2 els.: 1. challenged action was in its duration too short to be fully litigated prior to its cessation or expiration and 2. reas. expectation same complaining party will be subj. to same action

g.) Brennan’s Dissent: concerned that for any # of reasons D could not complete this quarter which is being allowed by univ., univ. not guaranteeing graduation but only completion of semester might have to face readmission and policy not moot falls under 1st exception for above reason -shouldn’t use Const. technicalities to avoid deciding difficult issues-Brennan takes sunk cost position, eff. time & effort already spent & whole nation wants decision on this policy

h.) Class Action Remedy: for class action mootness to indiv. P irrelevant as long as still relevant to other Ps

2. Laidlaw & Mootness:-mootness is more than just standing set in a time frame-D claiming vol. compliance moots case has high burden of proving wrongful behavior could not reas. be expected to reoccur-in suit to force compliance P has burden to est. standing by showing if left unchecked by litigation D’s behavior will likely occur/continue-if mootness were just stdg. set in time 2nd exception couldn’t exist-circs. in which prospect that D will resume harmful conduct too speculative for stdg. but not too speculative to overcome mootness

3. Sosna v. Iowa (1975) – Class Actions & Repetitions

13

-law said to get divorce in Iowa had to have lived there for 1 yr., eq. protection challenge brought, by time case came to S. Ct. divorce already eligible b/c P had been in Iowa more than a yr., but this case certified as class action

4. Honig v. Doe (1988) – Live Controversy -Ed. of Handicapped Act, applied to students in pub. schools up to age of 20, school can’t exclude student based simply on emotional handicap, school system wanted to expel student who was difficult q. whether this issue was moot b/c student in q. had been expelled in past but not at moment facing expulsion, ct. held student under 20 presented live controversy under either exception -Rehnquist concurring, mootness not based on Art. III but on exercise of constraint, Art. III extends rev. to all cases/controversies doesn’t care whether they evade rev. at moment-Rehnquist’s proposed 3rd exception: where controversy ceased while awaiting cert., sunk cost analysis

III. National Powers & FederalismA. The Nature of Federal Power1. McCulloch v. Maryland (1819)

a.) Issue: whether Cong. has power to create a fed. bank of the US, no express power in Const.b.) Facts: federalists created fed. bank, states felt it took away their powers

-MD passed law any bank not chartered by state of MD had to pay yearly tax, purp. to run fed. bank out of MD, fed. bank refused to pay, fought on Const. grounds MD had no auth. to tax fed. bank, MD arg. est. of bank unconst., no power for cong. to do so

c.) MD’s 1st Arg.: No Const. Power to Create/Incorp. Bank-MD leg. attempting to tax fed. instrumentality created by Cong. -asserts both that it has a rt. to tax the bank and that est. of bank unconst. b/c Cong.

has no power to create/incorporate banks-MD compact theory – states acting by their power created Const. fed. govt. and fed.

Const. subordinate to states -dual federalism theory – 2 equal sovereignties w/in US

d.) Marshall’s Responses: looking at lang. of Const. & nature of doc.i.) Preamble: “We the People” Const. instr. of the people not the statesii.) 10th Am. powers reserved to states if not delegated to the US

-MD arg. that Art. I § 8 gives no specific power to create banks -Marshall concedes fed. govt., govt. of limited powers deriving from enumerated powers-but unlike in Arts. of Confed. wd. “expressly” not used in Const. Cong. has incidental & implied powers

iii.) Sup. Cl.: fed. govt. hierarchical, Sup. Cl. fed. law & govt. superioriv.) Implied Powers: rejects compact theory, and finds implied power

-Const. incomprehensible legal code if listed every means-implied power must by connected to enumerated power -pts. to enumerated powers for which bank would be useful to accomplish, i.e. power to borrow $, to regulate commerce, etc.

v.) Nec. & Proper Cl.: textual basis for implied powers-refutes Jeffersonian view of “nec.” as meaning Cong. should act only if abs. nec.-ord. meaning of “nec.” as convenient/essential, or anything that can produce an end-framers’ intention to allow best means to attain goals of govt.-most imp. “nec. & proper” cl. among the powers of Cong. not among limitations

vi.) Scope of Fed. Powers: “let the end be legit., let it be w/in the scope of the Const., and all means which are approp., which are plainly adapted to that end , which are not prohibited, but consist w/ the letter & spirit of the Const., are constitutional”-end is legit. if implied power related to enumerated

14

-prohibited end would be one which not allowed by specific Const. limitation i.e. 1st Am.vii.) Pre-Text Theory of Const.: if Cong. were to use one of its enumerated powers as

pretext for exercising powers not entrusted to it the Ct. would have duty to strike it down -most scholars don’t believe Marshall meant this

e.) MD’s 2d Arg.: Power to Tax Fed. Banki.) Marshall’s Process Theory Response- Cong. can tax state instr. but state can’t tax fed.

-when state taxes fed. instr. its taxing all the citizens of the US incl. those over whom state has no power and does not represent

ii.) Discriminatory Taxation of Fed. Instr.: -only addressing state taxation targeted at fed. instrumentality-concedes that taxation is concurrent power but makes distinction abt. discriminatory state taxation under hierarchical govt.-MD arg. that concurrent system only works if each govt. respects the other and trusts them not to abuse its power -Marshall says not an issue of confidence but of supremacy

2. US Term Limits v. Thornton (1995)a.) Facts: Ark. stat. - otherwise eligible candidates for Cong. who had already served 3 terms

in House or 2 in Senate couldn’t appear on ballot-Stat. challenged as violation of Art. I § 2 which sets forth quals. of Cong.

b.) Powell v. McCormack - House couldn’t refuse to seat member if met reqs.-Powell relied on here, 5-4 maj. per Stevens said state restrictions on reqs. of members of Cong. unconst.

c.) Stevens v. Thomas: diff. structural default rules- Stevens said w/ respect to fed. govt. unless power expressly delegated to states that states can’t do it -Thomas opposite view where Const. silent states/people have power-since Const. didn’t speak to term limits Thomas says states free to speak on it if they chose-Thomas:Powell only said Cong. couldn’t add to reqs., said nothing abt. what states could do-Thomas relied on 10th Am., since no delegated power for term limits reserved -Stevens: states reserved powers b/4 creation of Const., no Cong. b/4 Const. no power at to reserve

-4 dissenters see Const. as creation of people of indiv. states and not people as whole3. Jinks v. Richland County (2003) – Continued Power of McCulloch

-1367(d) tolls state stat. of limitations on state law claim in supp. jurisd. cases-challenged as unconst. b/c Cong. has no spec. power to toll state stat. of limits-defended on ground of nec. & proper clause, Scalia said nec. & proper for execution of Cong. power to administer fed. cts.-says doesn’t have to be absolutely nec., see McCulloch-ruled statute plainly adapted power under Art. III

B. The Commerce Power1. Gibbons v. Ogden (1824) – Establishing the Foundations

a.) Facts: Arts of Confed. gave no specific powers over commerce to Cong. economic warfare among states, one of the main purps. of delegates to Convention was to create a nat. economy and provide Cong. w/ some power over it Art I § 8 Cl. 3-Ogden had excl. rts to op. steamboats b/t NY & NJ granted by NY, Gibbons received sim. license from fed. statute and act of Cong., Ogden sued to enjoin Gibbons from op., NY Ct. App. upheld injunction

b.) Pre-emption: Gibbons arg., if Cong. has auth. then fed. statute preempts conflicting state law under Supremacy Cl.

c.) Meaning of “Commerce: Ogden’s 1st arg. comm. not meant to incl. navigation, only incl. buying/selling commodities

15

-Marshall says comm. is intercourse, navigation fund. pt. of intercourse, w/o power over navigation Cong. would have no power over commerce

-rejects Ogden’s arg. as returning to Arts. of Confed. powersd.) Scope of Comm. Among the States: more difficult prob. whether commerce incl.

everything both interstate and intrastate-Marshall gives much auth to states but allows Cong. option to take it back-comm. comp. internal to state reserved to state (intrastate commerce)-doesn’t say Const. doesn’t give Cong. power over intrastate comm. just that it would be inconvenient and unnec. for them to have it-farsighted analysis that Cong. has power to reg. commerce phys. w/in 1 state but affecting multiple states-Cong. may legislate all of foreign comm.

e.) Plenary Comm. Power: if cong. has power may do w/ it what they wishf.) Ct’s. Role in Comm. Cl.: Marshall doesn’t see a role for cts. in limiting power of Cong.

over commerce, sees remedy as voting out Cong.-sole restraint on abuse is the influence of the people in their vote

2. The Daniel Ball (1871) – Application of Marshall’s Organic Theory of Comm.a.) Organic Theory of Comm. - shouldn’t use mech. approach to comm. whether crossed state

lines rather whether comm. affects more than 1 stateb.) Facts: fed. safety statute applied to ship which only fared w/in Mich.c.) Holding: ship was intrastate part of what was overall an interstate journey for

shipment of gds. ship just part of interstate transaction w/in leg. jurisd. of Cong.3. Typical Probs. of Federalism: 1. when externalities exist (state action affects other state),

2. state reduces comm./enviro. regs. to attract industry (race to the bottom), 3. states choose to depart from broader national moral consensus i.e. civ. rts.

D. Framing the Modern Interstate Commerce Power (1870-1976)1. Champion v. Ames [Lottery Case] (1903) – Prohibiting Comm./Nat. Police Power

a.) Background: much post-ind. rev. leg. justified on comm. crossing state lines but obviously invoking police powers i.e. food & drug act, meat inspection Q. can Cong. leg. under Commerce Cl. for police powers or do those powers belong solely to the states?

b.)Facts: D arrested for carrying lottery tickets across state lines, appeals on grounds Fed. Lottery Act unconst.

c.) Issue: whether Cong. only has power to aid/foster commerce or also to prohibit form of commerce? here wanting to prohibit lotteries

d.) Plenary Comm. Power: Harlan says Cong. can prohibit lotteries, says pt. of power to reg. is power to prohibit, Cong. power over commerce plenary

e.) No Explicit Power to Prohibit Comm.: 5-4 decision, ct. struggled w/ fact that power to prohibit not explicit., Harlan doesn’t have prob. w/ that-also concern Cong. could arbitrarily prohibit any item of comm., Harlan say here rational reas., should such arbitrary abuse arise deal w/ it then

f.) 10th Am. Prob.: arg. this is invasion of states’ rts. under 10th Am.-Harlan, not inconsistent w/ 10th Am. b/c power expressly given to Cong.

-states have what is left to them after powers expressly delegated to fed., Comm. Cl. expressly delegates power to reg./prohibit to Cong.

g.) Police Power Prob.: Cong. exercising what appears to be police power over “health, welfare, safety, morals”, which D arg. reserved to states

-Harlan 1st says Cong. only supplementing state actions, many states had laws agst lotteries -2nd as long as Cong. has power to leg. doesn’t matter if states have power too, state power not obstacle to Cong. power when both valid

2. Hammer v. Dagenhart (1918) – Cyclical Expansion/Retraction of Comm. Cl.

16

a.) Facts: father brought suit to enjoin Fed. Act which sought to prohibit interstate trade in products mfrd. in violation of child labor restrictions

b.) Police Powers to Reg.: Day finds intrusion of state police powers to regulate, suggests Cong. can’t forbid line of comm., doesn’t seem to have read Gibbons & Champion well

c.) Harmful Commodities Doctrine: Cong. can’t forbid line of comm. under circs. where gds. themselves not the evil intended to be regulated -lottery tix, spoiled meat themselves harmful but gds mfr. by children not themselves harmful

d.) Reg. after Interstate Transport: cases upholding Cong. power were regs. over activities after interstate transportation not b/4 as in this case-allowing Cong. to reg. activity which will eventually result in interstate transport Cong. will have power over almost all activities

e.) Not Role of Cong. to Level Playing Field b/t States: -however, w/o fed. leg. couldn’t do away w/ child labor b/c to economic adv. of less developed states to keep it, Day doesn’t have a prob. w/ that

f.) 10th Am.: exercise of police powers reserved to states-Day paraphrases 10th Am., prob. attempts to put wd. expressly into powers delegated in 10th Am., which was rejected by Convention

g.) Holmes, dissent, 5-4 Decision-existence of state power absent leg. isn’t a limit on Cong. power to leg. once it exists-police power impact/motivation irrelevant as long as fed. power exists-power to reg. gds. transported across state lines belongs to Cong. under comm. cl.-as long as Cong. has power under commerce cl. doesn’t matter if it indirectly interferes w/ state police powers

h.) Dual Federalism : expressed in Day’s op. , 2 sovs. in fed. sys. not hierarchical but equal-fed. govt. limited to enumerated powers-rel. b/t powers in spheres where they overlap one of tension not coop.-powers delegated to nat. govt. limited by reserved powers of state-existence of states limitation on fed. power-Day’s concern fed. sys would be destroyed under sys. favored by Holmes

3. Bailey v. Drexel Furniture (Child Labor Tax Case) (1922) – Tax Power & Reg. -Cong. w/ backing of maj. of Amer. people attempted again to attack child labor-placed heavy fed. tax on gds. transported in interstate comm. made by child labor-some of the dissenters in Hammer joined maj. in Tax case, stated primary purp. of Cong.’s

tax power must be for revenue not for penalty – view of the day-for a time became difficult for Cong. to reg. probs. like child labor

4. US v. EC Knight (1895) - .Direct Effect Test-DOJ seeking injunction under anti-trust laws to prevent sugar monopoly -Ct. took position such restraint would be unconst. under comm. cl. b/c monopoly of sugar

industry would only indirectly affect comm. -ct. at end of 19th C. viewed mfr. & production as b/4 transport and sep. from interstate

comm., said Cong. had no power to reg. mfr. & production5. New Deal Confrontation - Depression FDR proms. to get Cong. to reg. comm.

-4 conserv. justices on ct. at time opposed almost all this leg. as only indirectly affecting commerce, 2 moderates often joined them

a.) Carter v. Carter Coal Co. (1936)-coal ind. really depressed strikes & violence, Cong. enacted leg. to encourage collective bargaining and set min. wages & max hrs.-ct. again employed direct effect test, said no direct effect on commerce from wages/hrs. of coal workers, multiplied indirect effects unconst.-future J. Jackson again critiqued this “direct” and “indirect” lang. as not in Const., felt this view of Commerce Cl. too limiting

17

b.) Ct. Packing Plain: by 1937 FDR had enough plan to increase # of justices, by appt. new justice for every justice over 70 who 15 justices, very neg reaction, fiddling w/ Const., but Const. doesn’t specify #

c.) NLRB v. Jones & Laughlin Steel (1937) – Close & Subst. Rel. to Interstate Comm.-2 mod. justices changed minds & upheld new deal leg., Nat. Labor Rel. Act attempt again to set min. wage which opponents saw as for states-S. Ct. upheld the act close & substantial rel. of intrastate activities to interstate commerce, allowed min. wage

6. US v. Darby (1941) – Economic Regulation & the Affectation Doctrinea.) Facts: Fair Labor Stds. Act, GA lumber mfr. employed workers in violation of hour

restrictions and wages under actb.) Issues: 1. whether Cong. has const. power to prohibit shipment in interstate comm. of

lumber mfrd. by employees whose wages & hrs. violate reg.2. whether Cong. has power to prohibit employment in production of gds. for

interstate comm. at other than prescribed wages & hrs. qs. of Cong. police powers & power to reg. production b/4 interstate activity

-Hammer v. Dagenhart stood in opposition to 1st issue as wellc.) Stone on 1st Issue – Cong. has Plenary Power over Comm.

-Cong. can prohibit aspect of commerce if they choose-Cong. power over commerce not affected by state power, if Cong. has the power then state power no obstacle-admits the purp. of Act to prohibit unfair wages which is police power -motives of Cong. beyond ct.’s power, if you don’t like it remember it in next election

d.) Rejection of Hammer: - Hammer not followed and overruled, harmful commodities doctrine dead and rejected

e.) Stone on 2nd Issue: more difficult q. of part of Act that doesn’t address gds made in violation of act but of production practices alone

-D arg. some of the lumber produced by co. will be shipped in interstate commerce but subst. portion involves GA timber, processed in GA, sold in GA Cong. regulating intrastate commerce-Stone says in modern ind. that small action w/in one state may have collateral effects on other states which affect interstate commerce

f.) Affectation Doctrine: fact that activity is local is irrelevant, Cong. can still regulate under affectation doctrine, basis for modern comm. cl. powers

-Cong.’s power over comm. reaches those intrastate activities which so affect interstate comm. or the exercise of the power of Cong. over it as to make reg. of them approp. means to attainment of legit. end-addresses D’s 10th Am. arg. that reg. of wages/hrs. principally police activity & therefore state power

g.) D’s 10th Am. Arg.: Stone says states themselves not a limitation to Cong.’s power under commerce cl., as long as Cong. has that power under commerce cl. can use it,-states have reserved powers not surrendered, but surrendered powers under comm. cl.

7. Wickard v. Filburn (1942) – Cumulative Effects Doctrinea.) Facts: Agricultural Adjustment Act of 1938 placed restrictions on wheat production per

farm, farmer who produced extra wheat above quota for home consumption incurred fine, sued to enjoin enforcement of the act

b.) Application of Affectation Doctrine: Jackson says Cong. can reg. amt. of production even if for own consumption b/c it affects interstate comm.-home consumption production overhangs mkt., w/o it purchase elsewhere

18

c.) App. to Wholly Intrastate Production -Jackson honest says Darby doesn’t help here b/c here we know wheat won’t be shipped interstate-finds indirect effect on commodity prices in other states from production in others

d.) Cumulative Effects Doctrine: multiplier effect in Darby applied to contrib. to demand by one producer which when taken into account w/ production by many others has effect w/in scope of fed. reg., direct-indirect effect test abandoned

8. Civil Rights Legislation & the Commerce Cl.-clear under cases that Cong. may use commerce cl. for police purps. comm cl. figured

very large in this effort for civ. rts. leg. in 1950’s & 60’s-Civ. Rts. Act of 1875 also forbade discrim. in places of PA didn’t fare as well b/c based on

14th Am. § 5 alone, 1883 Act came to unsympathetic S. Ct. which declared it unconst.-Ct. said 14th Am. § 5 only covered state discrim. not private -during Kennedy administration effort to enact Civ. Rts. Act that would be upheld grt.

discussion whether it should be done under commerce cl. or 14th Am. § 5-under 14th Am. would require reversal of civ. rts. cases of 1883 & change in understanding of

scope of 14th Am concern that 14th Am. wouldn’t work9. Heart of Atlanta Motel v. US (1964) – Civil Rts. Act of 1964

a.) Facts: motel in downtown Atlanta owned by segregationist, refused to obey the law, DOJ told him he had to conform, brought suit in fed. dist. ct. for declaratory jdmt. Act unconst. -motel falls under § 201(a) places of pub. accommodation ,(b)(2) any facility serving interstate travelers under Act-motel accessible to 2 fed. highways & 2 state highways, 70% of guests from out of state

b.) Cong.’s Comm. Power & Police Purps.: -leg. based on Cong.’s perception racial discrim. a moral wrong P claim Cong. doesn’t have

auth. to enact leg. for morals which belongs to state-Clark says same interest in protecting interstate commerce which led Cong. to

prohibiting prostitution, impure drugs, wages-fact Cong.’s action accomplishes police power purp. is irrelevant as long as Cong. has the

power to leg. under Commerce cl. in 1st placec.) Effects of Racial Discrim. on Comm.: arg. discrim. discourages blacks from traveling

quantitative & qualitative burdens on them which affect interstate commerced.) Cong. Power over Local Activities: P arg. operation of motel still intrastate, located near

highway but all business local-Clark says if interstate commerce feels the pinch it doesn’t matter how local the squeezee.) 14th Am. & Comm. Cl. Justification: during Cong. hearings on Act, grt. deal of discussion

whether Act should be validated under Comm. Cl. or 14th Am. if it should come under attack-Clark says power exists under comm. cl. so don’t have to pass on 14th Am. q. -some of sep. ops. upset by this feel ct. should justify 14th Am. basis too-Clark feared state action dilemma in addressing 14th Am.-Clark says 1964 Act much more careful than 1875 Act which broadly proscribed discrim.

in places of PA w/o restriction to interstate comm.-ideas of commerce have broadened widely due to changes in technology and

transportation since civ. rts. cases of 1883f.) Deference to Cong. Determinations: US doesn’t have to make case by case det. that

each case of discrim. affects interstate commerce, ct. takes Cong.’s conclusions that racial discrim. impedes commerce

10. Katzenbach v. McClung (1964) – Rational Basis Std. of Reviewa.) Facts: companion case to Heart of Atl., P owned Ollie’s BBQ in Birmingham, AL, family

owned restaurant, in 12 months preceding passage of Act restaurant purchased apx. $150K worth of food, 60% of which was meat purchased thru supplier who got it from out of state 201(b)(2) subst. portion of food served moved in interstate commerce

19

-clientele local unlike in Heart of Atl. but subst. portion of food brings under Act, link to interstate comm. more tenuous than Hrt. of Atl.

b.) Rational Basis Test: Clark - Cong. already det. if subst. portion of food from out of state & restaurant practices discrim. Cong. auth. to reg. it-test: whether Cong. had rationale basis for its leg.-Cong. doesn’t have to make case by case det., but role of ct. to det. whether Cong. had

rationale basis for det. of effect on interstate comm.c.) Blackmun concurring - there are some limits to Cong. jurisd. under comm. cl., suggests

there might be some business that are so local that Cong. can’t reg. them under Comm. Cl.d.) Douglas, concurring in both ops.: wished ops. had been written differently, wanted

decisions based on 14th Am., says we’re talking abt. human beings and rt. to move freely which more sig. than movt. of cattle & gds., more approp. for DP under 14th Am., says -would be more settling effect b/c every act of discrim. would be wrong wouldn’t have the chance to escape that Blackmun offers, would put end to all obstructionist activities

e.) Goldberg, concurring: wanted decision under both Comm. Cl. & 14th Am.-ct. could have found 14th Am. basis valid even though priv. action b/c could arg. that this

was state action in 1st place b/c Jim Crow laws changing state comm. law were source of discrim. to begin w/

f.) Resulting Wide Latitude for Leg. Agst. Racial Disrim.: cases like Heart of Atl. & Katzenbach wide latitude for Cong. to leg. agst. racial discrim.

-Fulilove v. Klutznick (1980)– leg. requiring 10% set aside by prime contractors to hire minority subs, no evid. part. prime contractor discriminated, but action req’d to ensure access by minorities, another ex. of rationale basis doctrine

E. State Sovereignty & Federalism: Regulating State Activities – 10th Am.1. MD v. Wirtz (1968) - 1966 Cong. amended FLSA w/ provision that employees of state schools/hospitals would be covered by min. wages & overtime provisions

a.) MD’s Claim – Structure of Const. Created Exeption Re: States& Fed. Comm. Cl. Leg.- didn’t arg. their employees weren’t part of interstate commerce but rather

b/c they were STATE employees they were outside reach of Cong.b.) Ct. Held No Such State Exception c.) Dissent Relied on 10th Am. - prohibited fed. action by Cong. which prohibited

functions of state 2. Fry v. US (1975) - Nixon froze state & fed. govt. wages pursuant to act of Cong.

a.) States Again Sued Claiming Exempt from Comm. Cl. Powersb.) Prophetic Footnote: Marshall said 10th Am. expressly declared cong. may not exercise power in way that impairs states’ integrity or ability to function

3. Nat. League of Cities v. Usery (1976) – Limits to Comm. Cl. from State Sov.a.) Facts: -P league of states/cities challenged validity of 1974 amendments to FLSA

creating max. hrs. & overtime wages & min. wages for broad range of state empsb.) Rehnquist - Trad. Govt. Functions: test for when Cong. can extend its comm. power to reg. state activities is whether Cong. action would impair state’s freedom to structure integral ops in areas of trad. govt. functions

i.) Dramatic Effecs of Leg. on State Budgets: overtime inability to pay highway patrol trainees in Cal., sm. towns could afford fired depts.

ii.) Q. what are integral trad. govt. functions of state/local govts.? aa.) Rehnquist’s Exs.: police, fire, sanitation, pub. health, parks & recreationbb.) Rehnquist says setting state emps’ salaries clear exercise of state sov. cc.) Wide Criticism of Ambig. Std.: states/local govts. as well as fed. legislators

have to know what integral operation of trad. govt. functions-don’t know what govt. will need to do in future, functions must

iii.) Cong. Still Had Option of Spending Power Sticks & Carrots for Compliance

20

iv.) Cong. Comm. Cl. auth. to reg. priv. actors doesn’t mean auth. to do same over states in sim. circs. v.) Structural Arg.: structure of Const. provides for existence of sov. states, state sov. itself is limiting princ. of powers of Cong.

-not really 10th Am. arg. but sim. in reliance on state sov.c.) Blackmun, Concurring: Joins Maj. (5-4) w/ one caveat - op. should be read to incl.

balancing test where fed. power not outlawed from every state/local activities, fed. power still valid where demonstrably grtr. i.e. environment

d.) Brennan dissent, Maj. has no precedent/Const. basisi.) Cites Darby “10th Am. a Truism” - no text in Const. stating what Cong. can’t

do to states under its enumerated powers ii.) Structure of Fed. Govt. Provides States All the Protection They Need: Cong.

is assembly of members elected from various states, process theory arg.-states thru reps. in Cong. det. what is approp. exercise under Comm. Cl.-if judiciary redistributes that power violation of Const. federalism

iii.) Supremacy Cl. Invalidates Maj.’s View of State Sov. iv.) Rehnquist & Blackmun tests unworkable: -Rehnquist test inevitable

constant fights over what is trad. govt. functione.) Stevens dissent - respects Rehnquist’s attempt to dev. test to det. what fed. govt.

can/can’t do but trad. govt. function test not the answer-other tests in past had proven unworkable and abandoned

i.) Fed. Govt. Regs. State/Local Govts. in Myriad Ways - req. state to hire w/o discrim., req. state to withhold fed. taxes from state wages, follow safety regs -

3. Follow-Up Cases: in 9 yrs. b/4 Garcia , immense fed. litigation in lower cts. re: what is trad. govt. function? what are integral govt. activities? etc.

a.) Hodel v. VA Surface Mining Reclamation Act (1981)-gave some guidelines to lower fed. cts. in interp. Nat. League test, gave 3 pt. test 1. reg. states as states, 2. reg. addresses matters indisputably attributes of state sov., 3.

impair ability to structure integral operations in trad. functionsb.) FERC v. Miss. (1982), Cong. attempted to make states w/ power surplus share during energy crisis, state sov. challenge rejected rejected on grounds that fed. govt. familiar w/ such reg. & w/in its powerc.) Fitzpatrick v. Bitzer (1976) discrim. in hiring of state emps. under Civ. Rts. Act ct. said Nat. League didn’t apply b/c basis 14th Am. not Comm. Cl. d.) EEOC v. Wyoming (1983) fed. age discrim. act, Wyo. req. game wardens to retire at 55, said didn’t interfere w/ state sov. b/c state allowed wardens to demonstrate fitness to avoid retirement anywaye.) POINT: none of these cases really apply Nat. League, don’t really reject it either, state sov. doesn’t win out though

4. Garcia v. SAMTA (1985) – Blackmun’s Reversal on State Sov. as Limit to Cong.a.) Facts: 1979 Dept. of Labor said SAMTA operations not exempt from FLSA under Nat. League suit by SAMTA for exemption & emps. for overtime b.) Blackmun - Nat. League Overruled, Test Proven Unworkable in Practice

i.) Considers Other Tests & Rejects Them Too: give too much power in decisions to unelected judges, not flexible enough to adapt to future needs

ii.) Addresses Dissenters’ Balancing Tests: will have same difficulties here b/c lines blur b/t fed. & local interests

iii.) Return to Process Theory: state interests protected in structure of fed govt.-ex. of “revenue sharing” in which states get grants/aid from Cong. thru their members beneficiary will still receive net benefit from grant even

if have to follow other regs.

21

iv.) Sig. State Sov. Exists but State Sov. Alone Not Limit to Comm. Cl. -doesn’t state specific aspects of state sov. exempt from Comm. Cl. -cites Coyle v. Oklahoma where ct. struck down Cong. condition that OK

had to choose location of capitol to be admittedc.) Powell w/ Rehnquist & O’Connor, dissenting – 2 Main Points

1. Maj. op. rejects basic precepts of fed. system2. Maj. op. ignores limits the const. role of judicial rev.

i.) Unique Federalism of US System -maj. reduces 10th Am. to mere rhetoric in regards to Cong. acts under Comm. Cl.ii.) Nat. League Never Req’d Def. of Trad. Govt. Functions Rather Balancing b/t Interests of States & Fed. Govt.iii.) Maj. Fails to Explain How States’ Role in Pol. Process Guarantees Exercises of Comm. Cl. Power Won’t Infringe State Sov.

-members of Cong. elected from states but once elected members of fed. govt.-state successes in fed. funding and in gaining exemptions from some fed. regs. not rel.

to whether pol. processes are proper means of enforcing const. limitations iv.) MOST TROUBLING: fed. officials invoking comm. cl. sole judges of limits

of own powerv.) Maj. Ignores Marbury - fed. jud. to say what law is re: const. of acts of Cong.vi.) Maj. Pays Lip Svc. Only to State Sov. - fails to rec. areas of state sov. which framers intended them to retain

-Nat. League id’d. state & local govt. actions affecting everyday lives of people-control of local transit is local by def., ex. type of local control federalism reqs.-maj. doesn’t id. a single aspect of state auth. remaining under Comm. Cl.

d.) Rehquist, dissenting - joins Powell & O’Connor’s ops. -Powell’s ref. to balancing test in Nat. League not identical to lang. of case-nor is O’Connor’s approach congruent w/ Blackmun’s concurrence in Nat. League which didn’t outlaw fed. power where fed. interest demonstrably greater-under any of these approaches jdmt. should be affirmed-confident principle that state sov. is limit to Comm. Cl. powers of Cong. will one day become maj. view again

e.) O’Connor w/ Powell & Rehnquist dissentingi.) framers intended comm. power to be important but limited

-expansion of interstate econ. ct. increasingly generous in interp. of comm. cl. ii.) Pol. & Econ. Changes real risk Cong. could erase diffusion of power

-rise of integrated nat. econ. virtually all state & private actions coming under Cong. comm. cl. power as affecting interstate commerce -pol. changes such as direct election of senators & rise of nat. interests groups lessened weight of legit. state interests in Cong. decisions

iii.) Pol. Processes Haven’t Protected States from Fed. Encroachment-fed. legislation & coercive grant progs expanded to embrace activities once viewed as local shift in burden of persuasion

iv.) proper resolution of probs. of federalism: weighing state autonomy as factor in interp. of means by which Cong. can exercise auth. over state as state

-insuff. to ask whether same reg. would be valid of exercised on indiv. -state autonomy essential to federalism, w/o it federalism irrelevant b/c activities beyond

reach of Comm. Cl. may well be negligiblev.) Difficulty in Crafting Bright Line for Det. Scope of State Autonomy in

Difficult Issues of Fed. to Be Expected - doesn’t mean ct. should shirk its duty 5. State Sovereignty Limits on Fed. Power After GarciaU

22

a.) S. Car. v. Baker (1988): ct. rejected 10th Am. attack on Cong. attempted to put end to bearer bonds taking away source of financing for states

-ct. rejected claim, said Cong. could reg. this activity as nec. to national union-only dissenter O’Connor believed since states relied on this funding that it was essential to federalism, other dissenters from Garcia didn’t object here

b.) Gregory v. Ashcroft (1991) – Plain Statement Rule i.) Facts: fed. emp. act incl. prohibited priv. & state employers from dismissing employees

for age, Mo. const. had term limits based on age for their judgesii.) Holding: O’Connor said qs. of quals. of state judges essential to state sov. &

independence, sounds like going to reverse Garcia-instead said when Cong. enacts leg. affecting balance of state & fed. power reqs. clear & unmistakable lang. leg. applies to all branches of state govt. -absent that will read leg. as not applying in unstated areas plain statement rule-implies that state sov. influences fed. statutes to limit them

c.) NY v. US (1992) – Regulating States as States Alonei.) Facts: prob. of disposal of nuclear waste in US, many states have nuclear power but no

one wants disposal site, Cong. attempted to deal w/ prob. by passing act incl. both $ incentives, trade barriers for compliance, & “take title provision”

ii.) “take title” provision - gave states option to enact reg. for waste disposal or take ownership of all radioactive waste incl. waste produced by priv. parties iii.) O’Connor’s Holding: all provisions except take title const., Cong. can’t

commandeer state leg. process, can reg. comm. itself but not state reg. -Cong. doesn’t have power under enumerated powers to req. states to leg.

iv.) White dissenting says Garcia rejected limits by state sov. & controlsv.) O’Connor Dists. Garcia: Garcia involved fed. leg. affecting both everyone pub. & priv. employers, but here leg. directed only at statesvi.) NY arg. under Rep. Guarantee Cl. in Art. IV § 4 state is sov. entity w/ own leg.

& if leg. wants to enact leg. will do so on its own-O’Connor doesn’t go there, already has enough ammo to find state unconst.

d.) Printz v. US (1997) – Req’g. State Exec. Officers to Enforce Fed. Lawi.) Facts: Brady Act mandated Atty. Gen. mandated interim background check system incl. req.’g local chief law enforcement officer (CLEO) of area to do background check & notify seller of whether he could sell ii.) Issue: whether Cong. can req. state exec./admin. officials to enforce fed. leg. iii.) Scalia’s Op. of Ct. (only 3 Justices total):

aa.) text of Const. doesn’t speak to this issue one way or the other, looks to hist., structure, & precedent

-early leg. req’g state jud. to enforce fed. but not other state branches-Sup. Cl. states judges to be bound by fed. law & Const. but no

mention of other branchesbb.) Dists. Recent Programs Implicating State Officials in Fed. Reg.:

1. Cong. using its spending powers to encourage participation, or 2. only req. giving information and not participation in fed. reg.

cc.) Const. Clearly Est. System of Dual Sovereignty dd.) Brady Act has Limiting Effect on Pres. - disrupts Pres.’s ability to

faithfully execute laws b/c if state officers administering fed. law fed. exec. power diminished

ee.) Hamilton Fed. 39 shows founders intended indep. state & fed. sov. -discussion of using state officers to enforce fed. law intended only for cases where states consented

ff.) US arg. Leg. Nec. & Proper to Commerce Reg: not proper b/c not const.

23

gg.)US arg. NY v. US Inapplicable Here: - not asking states to enact law only enforce it; Scalia rejects this distinction as circumventing holding in NY by enlisting admin. officers instead of leg.

-NY said Cong. couldn’t force state leg. or admin. to perform fed. lawhh.) Forcing States to Enforce Fed. Law Inconsistent w/ System of Fedralism

-doesn’t matter whether this burden is relatively light or not upon states, if fed. govt. doesn’t have power it doesn’t have power

iii.) O’Connor, short concurrence-attempts to limit holding, pts out states that still want to comply w/ Brady can-furthermore points out fed. govt. may enter into Ks w/ states for compliance

iv.) Thomas, concurring-if he had his way there would be a real diff. b/t functions of state & fed. govt. -makes assumption that even Scalia doesn’t that firearms are in interstate comm. Cong. has power to reg.-takes much more limited view than affectation doctrine, wouldn’t allow reg. of purely intrastate comm. at all-limitations to Cong. power in Const. incl. 1st & 2nd Am.-though no one raised it here Brady Act may violate 2nd Am.-saying there are other bases to reach same result as Scalia-Stevens calls Thomas’ view revisionist, rejects Marshall’s view in Gibbons

v.) Stevens, dissent -takes on Scalia’s 3 bases of history, structure, precedent aa.) distinguishes Printz from NY which only dealt w/ Cong. coercion of state

legs. & not w/ issue at bar-section of NY which Scalia cites stating Cong. can’t coerce state admin. was mere dictum had nothing to do w/ holding-state admin. in Ny likely referred to admin. which would have to be set up to enact law

bb.) q. of fed. power in national emergency & need for fed. reaction -requiring instantaneous nat. mobilization in which fed. govt. needs to mobilize state & local agencies-says Cong. sees emergency in gun epidemic & not for Ct. to decide what’s an emergency

cc.) Pts. to Oath Cl. - making state officials take oath to uphold Const.-nothing in Const. limits fed. power over indivs. or state offs. and oath actually stronger evid. fed. govt. has even more power over state offs

dd.) Framers Assumed state offs. would work to fulfill fed. leg. framework-pts. to section of Fed. 27 where Hamilton said fed. govt. could employ ord. magistracy of states in execution of its laws-pts. to another section state govts. auxiliary to enforcement of fed. laws-Scalia would say §§ don’t support Stevens b/c doesn’t say w/o consent

ee.) Arts. of Confed. Rejected b/c of Lack of Fed. Power over States - by ratifying Const. states gave up power to fed. govt.

ff.) 1 Reason for Decision in NY was Deceptive Practice - essentially allowing Cong. to enact unpopular laws and let state leg. take blame

gg.) 11th Am. - interpreted to say can’t sue state for damages in fed. ct. w/o its consent, but can seek injunction by naming state official as D-we do make a distinction b/t laws addressed to indivs. and to states

hh.) Maj. Dist. b/t Obligations Forced on State Jud. & State Exec. Has No Precedent- maj. misconstruing meaning of penal reg. case -doesn’t make sense that Cong. can impose fed. leg. on state jud. but not on town constable which is obviously of much lower importance

24

vi.) Souter dissenting-fwhat state judges did at end of 18th C. not dispositive but rather Fed. Papers-Fed. 27 + Oath Cl. framers intended state govts. to help enforce fed. law-Fed. 44 Madison addressed why state officials must swear to support fed. Const. but fed. offs. don’t have to swear to support their state consts. -fed. oath is there for state offs. b/c assumed they would have fed. resps.-also addresses Hamilton’s discussions of using state tax collectors for fed. taxes

vii.) Breyer, dissenting - looks to comparative federalism for guidance-other countries w/ sim. federalism rely on lower govts to enforce fed. law-pt. using state officials to enforce federal law a natural el. of federalism

e.) Reno v. Condon (2000) – Req’g. States to Refrain from Action-Cong. passed Driver Privacy Protection Act which prohibited both states & indivs. from disclosing personal id info. from driver’s license records w/o consent neg. effect on state revenue states challenged Act as violation of Printz-states arg. Cong. commandeering state agency & directing them to task -S. Ct. held Printz not violated b/c no action was required of states as states-states simply reqd. not to do something where in Printz resps. were imposed-another distinction: applied to states and priv. indivs. as well, not just directed at states

F. State Sovereignty & Federalism: Substantial Effects on Commerce1. Commerce Cl. Powers & Non-Commercial Uses-issue: whether comm. cl. can be used for non-commercial purps., spec. police purps.2. US v. Sullivan (1948) – Cong. Comm. Power Reaches to End User

a.) Facts: fed. law prohibiting doing any act w/ respect to a drug while such article held for sale after shipment in interstate commerce resulting in misbranding

-D in GA drugs from Chicago, druggist removes them from labeled packages & placed them in unlabeled pill boxes conviction

b.) Holding: Cong. had auth. to extend its power to pt. where its purps. in interstate commerce can be accomplished end consumer-didn’t use Darby affectation doctrine-purp. of Cong. non-commercial, really health & safety concern

3. Perez v. US (1971) – Harmful Effects of Class of Activities as Wholea.) Facts: conviction of “loan shark” under Consumer Credit Protection Act

-Cong. had found such transactions provided org. crime w/ lucrative revenue & affected interstate commerce, challenged as purely intrastate activity

b.) Douglas says where class of activities reg. w/in reach of fed. power cts. have no grounds to nullify single application

-have to look at harmful effects of activity as a whole on interstate comm.-unlike Sullivan here use broad application of affectation doctrine

c.) Stewart dissenting, said under statute man could be convicted w/o any proof he moved in interstate comm. or use of facilities of interstate comm.

-says founders never anticipated such use of comm. cl. 4. US v. Lopez (1995) - Rejection of Use of Affectation Doctrine

a.) Facts: Gun Free School Zone fed. crime to possess gun w/in school zoneb.) Rehnquist Strikes Down Statute for Lack of Jurisd. Nexus

i.) 3 categories under which Cong. can reg. under Comm. Cl.:1. use of channels of interstate comm.2. reg. & protect instrumentalities of interstate comm. or persons/things in interstate comm. even though they may come from purely intrastate activities3. activities having a subst. relation to interstate comm. (from Perez)

-relation to interstate comm. under 3 must be substantial

25

ii.) Govt. made 2 args. for effects on interstate comm.:1. cost of crime negative effects on interstate commerce2. national productivity affects educ. which has neg. effect on workforce

iii.) Rehnquist rejects this as allowing virtually all activity under Comm. Cl. iv.) Cong. findings not required for fed. leg. but would have helped here so as not to

leave it up to opinion of govt. attys.v.) Activity Must Either Obviously Affect Interstate Comm. or Must have Jurisd.

Nexus (limitation to activity found to affect interstate comm.) in statute -Cong. amended leg. to provide guns had to move in interstate comm.

c.) 5-4 decision, Kennedy & O’Connor concur w/ some pause,some anxiety abt. citing 3 categories from Perez and coming to diff. result, seem to think better distinction would be made b/t comm. & non-comm. activity

d.) Thomas concurring wants to reverse Comm. Cl. rulings back to pre-Darby time, wants affectation doctrine tossed out altogether e.) Souter dissenting, believes Cong. could have shown rel. to interstate comm. and ct. shouldn’t 2nd guess their rationale

5. US v. Morrison (2000)a.) Facts: female student assaulted & raped by 2 football players suit under fed. Violence

Agst. Women which provided civ. penalties for person committing gender motivated violence

b.) issue whether Cong. had auth. to enact this statute under comm. cl. or § 5 of 14th Am. c.) Rehnquist Finds Cong. Didn’t Have Auth. under Comm. Cl.

i.) addresses 3 categories, places this in subst. rel. cat.ii.) Although Cong. Provided Findings Still Insuff. Comm. Cl. Basis iii.) 1st Prob.: Auth. under Comm. Cl. Reqs. Econ. Activityiv.) 2nd Prob.: No Jurisd. Nexus - findings don’t show any subst. effect on

interstate comm.v.) 3rd Prob.: Link b/t Activity & Interstate Comm. Too Attenuated

-Cong. findings gender-based violence discourages women from traveling & doing business at night subst. effects on interstate comm.

vi.) Dist. Heart of Atl. - dealt w/ more subst. econ. activity than here vii.) challenges Gibbons notion that only limit to Comm. Cl. power is discret. of

Cong. & voters dissat. at polls, denies Cong. has last wd. on Comm. Cl.viii.) Shift from Rational Rel. Std. to Almost De Novo -in Heart of Atl., ct. said Cong. had to have rationale relation for Comm. Cl. power, Rehnquist asserts ct. has almost de novo power to review Cong. det. of rel. to Comm. Cl.

d.) Rehnquist Also Rejects Cong.’s 14th Am. Basis – Statute Addressed at Indivs. not at State Actors e.) Thomas, concurring

-radical view of Comm. Cl. expressed in Lopez return to far more limited view of Cong. Cl. rejected by Gibbons -says ct. limiting subst. effects test but still applying it & test can be used to apply Comm. Cl. to anything

f.) Souter, dissentingi.) Rehnquist maj. rejecting case law since 1937 w/o admitting it ii.) Findings Were Satisfactory, Even Provided Estimated Cost to Econ. iii.) Std. of Rev.: Rational Basis not Whether Basis Sound iv.) Maj. Again Attempting to Draw Line b/t State & Fed. Function Impossible & Only Leads to More Probs.

26

6. Jones v. US (2000) – private residence couldn’t be construed to be in interstate comm., fed. arson law would make every building in country receiving ins. & utilities pt. of

interstate comm.7. Pierce Cty. v. Guillen (2003) – Power to Reg. Channels & Instrumentalities

-unanimous ct. held Cong. had power under Comm. Cl. to auth. states to keep info. in fed. highway hazard elim. grants protected from civ. discovery

-ct. relied on Cong. power to reg. channels & instrs. of interstate comm.8. Citizens Bank v. Alafabco (2003) – Aggregate Econ. Activity as a Whole

-issue whether comm. lending b/t Al. based bank to Al. based co. had a subst. enough effect on interstate comm. to allow for Comm. Cl. leg. extension-held Cong. comm. cl. powers could be exercised in indiv. cases w/o having to show specific effects on interstate comm.-as long as econ. activity at aggregate level shows national effect by gen. practice can be reg. under Comm. Cl. -sounds like Perez where loan sharking found to have nat. aggregate effects-not a retreat from Morrison b/c here some econ. activity already involved

G. The Taxing & Spending Power & Police Purps. 1. Art. I § 8: Cong. shall have power to lay & collect taxes, duties, imposts, & excises, to pay

the debts & provide for the comm. defense & gen. welfare of US-early drafts of Const. had “;” instead of “,” b/t excises & to 2 sep. indep. powers

2. Hamilton & Madison’s Differing Views: a.) Madison: Cong. can spend only for purps. w/in subseq. enumerated powers

-if interp. were otherwise then there would be no need for sep. enumerated powers-Jefferson agreed & saw sep. power to provide for gen. welfare would give Cong.

power to do whatever it pleasedb.) Hamilton’s View: gen. welfare cl. sep. & distinct power from later enum. powers & not limited thereby - Ct. later adopted Hamilton’s view

3. US v. Doremus (1919) – Tax & Spend Powers & Police Purps.-Cong. enacted $1 licensing tax for anyone who wanted to sell drugs, not done to collect revenue but to find out who was distributing drugs-ct. upheld it b/c Cong. was collecting some rev. & b/c Cong. could do it anyway-didn’t matter how high/low tax was/should be as long as Cong. was acquiring rev.

4. McCray v. US (1904) - Cong. heavily taxed colored margarine in interest of dairy industry, ct. upheld it even though not enacted for revenue

5. Bailey v. Drexel Furniture Co. (1922), Cong. passed 10% tax on all goods mfrd. or mined by child labor, challenged as improper use of taxing powers to reg. powers w/in state police powers, Taft accepted challenge & rejected law

6. United States v. Butler (1936)-Agric. Adjustment Act of 1933 imposed tax on processors of certain commodities, revenue from tax used to subsidize farmers to control production & prices-ct. quotes Hamilton as validating fed. spending power, but in end struck down act on basis that reg. agric. w/in power of state-although Cong. not limited in spending for gen. welfare by enumerated power it was limited in spending power by 10th Am. & reserved state powers – short lived

7. Steward Machine Co. v. Davis (1937) – Stick & Carrot a.) Facts: Soc. Sec. tax imposed on employers of 8+ employees, fed. funds for unemp. made

dep. on states setting up own unemp. schemes b.) Issue: Whether this Went too Far & Constituted Coercion c.) Cardozo says it’s not coercion b/c states can always say no

- doesn’t matter if state feels it can’t afford to say no

27

-if arg. prevailed that temptation that is too much = coercion plunge law into endless difficulties d.)Taxpayer Stdg. from Direct Pecuniary Injury: Frothingham threw out challenge

to gen. spending for lack of stdg. but here there was direct pecuniary injury to employers paying tax, Frothingham has led to few challenges to spending power

8. US v. Kahriger (1953) – Tax for Reg./Police Purps. Ok As Long as Some Rev. a.) Facts: challenge to IRS Act which taxed persons involved in gambling & reqd. their

registration w/ IRS didn’t seem aimed at collecting rev. but rather to register bookies to assist states who didn’t allow gambling to id. them by fed.

b.) Does Reg./Police Power Purp. of Tax Leg. Matter to Const.? c.) Holding: Gen. Rule Regardless of Reg. Effect if Tax Leg. Produces Some Rev.

Ct. Won’t Consider Cong. Motive 9. Conditional Grants w/ Reg. Effects – Generous Approach by Ct.

-Cardozo in Steward Machine had said if cond. is completely unrelated to any fed. interest might strike it down; however ct. hasn’t been very strict in doing this -Oklahoma v. US Civil Serv. Comm’n. (1947)-Cong. made fed. highway funds dependent on state civil svc. officials complying w/ Hatch Act prohibiting their participation in partisan politics-no real fed. interest, but ct. still upheld it, rather generous to use of spending power-rather draconian penalties for non-compliance w/ fed. regs. often exist i.e. allowing HHS to cut off adoption/soc. svc. funds for states not complying w/ rules for adoption agencies if states caseloads rise and can’t meet regs. HHS allowed to cut off funds but that would only make sit. worse allow priv. citizens to sue to enforce compliance w/ reg. instead of cutting of funds

10. South Dakota v. Dole (1987)a.) Facts: Cong. enacted leg. to withhold % of fed. highway funds from any state permitting

sale of alcohol to person under 21, indirect attempt to lessen risk of auto accidents from underage drinkers driving across state lines to get booze-SD allowed people 19+ to buy beer denial of funds to SD suit contending leg. in violation of 21st Am. which provided tansport/importation into any state for delivery/use of intoxicating liquor in violation of that state’s laws prohibited

b.) Issue: whether this cl. gives SD absolute control of reg. liquor w/in its jurisd.c.) Rehnquist Held Ct. Didn’t Have to Decide this Q. b/c Regardless of Whetehr

Direct Reg. Allowed, Indirect Reg. Allowed w/in Spending Poweri.) Cong. may attach conds. on receipt of fed. funds & states can always say no ii.) 4 limitations to spending power:

1. must be in pursuit of the gen. welfare (but ct. gives subst. def to Cong. jdmt.)2. Cong. must make conds. unambig., enabling states to exercise their choice

knowingly cognizant of consequences of participation -called Pennhurst doctrine or plain statement rule from Pennhurst State School & Hosp. v Halderman (1981), state orgs. received funds to allow compliance w/ regs. for handicapped accessibility, stat. incl. lang. of “least restrictive environ.” which ct. said wasn’t unambig. plain statement of cond. but rather statement of its hopes for use of funds

3. conds. might be illegitimate if unrelated to fed. interest in part. nat. projects/programs – Rehnquist says safe interstate travel among main purps. of fed. highway funds which is affected neg. by varying drinking ages

4. other const. provisions may provide an indep. bar -ct. ruled out 4th limit based on 21st Am

iii.) SD Arg. States Starved for Funds Can’t Really Say No Coerced into Surrendering their Const. Rts.

28

-Rehnquist quoted Cardozo from Steward in response that every tax is in some measure a regulation -says arg. that temptation so subst. to amt. to coercion not true in this case where only 5% of funding, leaves door open though for later case

d.) Brennan, dissents - believes 21st Am. gives states full control over alcohol regs. e.) O’Connor, dissent - doesn’t disagree w/ any of the limits Rehnquist sets forth but

concern 1 & 3capable of such expansion as to allow for no limits to Cong. power -q. should be whether cond. is related to spending of the funds or to regulation-believes reg. of drinking not rel’d. to spending of funds but to reg. & impermissible-says Butler view of Comm. Cl. too limited but idea that spending power couldn’t be used for reg. purps. a good one - interesting analysis but hasn’t been adopted

11. Sabri v. US (2004) – Cong. Retains Grt. Lat. Re: Spending Powers-fed. law made it a crime to offer bribes to state/local officials of agencies receiving at least $10K in fed. funds-ct. said under spending power Cong. can approp. funds for gen. welfare & under nec. & proper cl. Cong. can ensure that its funds not wasted by corruption

12. Gonzaga Univ. v. Doe (2002) – Plain Statement & Indiv. Suit-fed. stat. made grants cond. to compl. w/ fed. regs. concerning privacy of records-indiv. sued claiming violation by school, but stat. didn’t provide for indiv. suit-if no indiv. challenge spelled out by stat. doesn’t exist under plain statement rule

H. Fed. Leg. in Aid of Civ. Rts. & Liberties - § 5 of 14th Am.-§ 5 of 14th Am., like spending or comm. cl. is another indep. grant of power to Cong.-15th Am. provides basis for Cong. leg. jurisd., grants Cong. power to enforce voting rts. basis for Voting Rts. Act, attempted to target means by which black voters denied the ballot i

1. S. Carolina v. Katzenbach (1966) – Any Rational Means -S. Car. challenged Voting Act on grounds 15th Am. gives Cong. power only to leg. gen. to eliminate discrim., up to states to decide how to ensure no discrim. in voting-Ct. rejected this limitation, said Cong. may leg. in any legitimate way it wants -Cong. may use any rat. means to effect const. prohibition on racial discrim. in voting-said Cong. could leg. in specific areas where discrim. occurred w/o leg. gen.

2. Katzenbach v. Morgan (1966)a.) Facts: NY voters had eng. lit. req. for voting, Voting Rts. Act incl. provision that if

person had completed 6th grade in Puerto Rican school in lang. other than eng. had rt. to vote, 14th Am. suit for voter dilution

b.) NY challenged this as reg. of issue which had already been declared const. by S. Ct. in prev. decision in Lassiter v. Northampton Election Bd.

c.) Ct. here sustained Voting Rts. Act for 2 reasons:1. act may be viewed as measure to secure for PR community in NY nondiscrim.

treatment by govt. thru voting 2. act was elimination of invidious discrim. in est. voter qualifications- ct. saw factual

basis in discrim. for this leg. -city of Boerne rejected this 2nd rationale as allowing Cong. to interp. what is unconst. & violation of eq. protection which is really province of ct.

3. City of Boerne v. Flores (1997)a.) Facts: archdiocese wanted to enlarge hist. church b/c no longer large enough to serve

growing parishioners, archbishop sought permission for enlargement form hist. building commission, but commission denied enlargement archbishop sued under Religious Freedom Restoration Act of 1993 (RFRA)

b.) Sherbert v. Verner - woman who couldn’t work on Sat. offered job on Sats. by state unemployment agency, she refused on religious grounds state cut off funding on grounds that leg. not aimed at rel. practice but at gen. application

29

-Ct. said if gen. applicable law imposes heavy burden on person’s free ex. of rel. app. of law to that indiv. should only be upheld if some compelling govt. interest

c.) Employment Div. of Human Resources of Ore. v. Smith, Indians using peyote in religious practice held in violation of drug law, Scalia said if law didn’t target religion and just affected practice in gen application that app. wasn’t unconst.

d.) Cong. enacting RFRA in reaction -RFRA stated laws neutral to religion may burden rel. just as much as those intended to -RFRA states it will restore law to state b/4 Smith to Sherbert balancing test -archbishop arg. on these grounds that govt. restraint on expansion of church burdening church’s exercise of religion

e.) Kennedy for ct. held Cong. had overstepped its power under 14th Am.:1. not for Cong. but for the ct. to define the substance & meaning of Const. 2. even when Cong. framing a remedy, remedy must be congruent & proportional to

Const. violation i.) remedy of RFRA not congruent or proportional b/c zoning actions by states showed

no evid. of religious bigotry unlike in voting practicesii.) Cong. can’t declare an issue to be unconst. on its own even if ct. hasn’t spoken on the

issue based on hist. of 14th Am.-earlier draft of 14th Am. rejected b/c of concerns of giving Cong. plenary power

under 14th Am. in areas of state responsibility -fight is really over who should have last say in interp. Const.

iii.) RFRA actually makes Sherbert test tougher on govt. -RFRA applied to both state & fed. laws, where ct. decisions had only passed on q. of

Cong. acts to reg. state action -says RFRA adds “least restrictive means req.” which wasn’t in Pre-Smith cases

iv.) there would be no sep. of powers if Cong. could remedy & enforce violations and interp. violations as well - would usurp role of fed. judiciary

f.) Stevens concurring, this leg. gives indiv. member of religion an advantage over those who don’t practice religion RFRA itself constitutes violation of est. cl.

g.) O’Connor dissenting, disagrees w/ Smith, agrees w/ Cong. that Sherbert should be law-agrees though that ct. should have last word on interp. Const.

h.) Souter & Breyer dissenting, case should be reargued re: reconsidering SmithI. The Eleventh Amendment

1. General 11th Am. – enacted 179811th Am.: cit. of state A can’t sue state B in fed. ct. w/o state B’s consent

2. Hans v. Louisiana (1890) –cit. of state A couldn’t sue state A in fed. ct.-11th Am. makes it difficult to sue state even if acting unconst. w/o state’s consent

3. Ex Parte Young (1908) suit agst. MN atty. Gen. Young to enjoin enacting leg.-S. Ct. held that state can’t act unconst. when actions unconst. must be seen as done not

by the state but by the indiv., legal fiction to allow suit agst. unconst. acts-grt. exception to 11th Am. – can seek injunctive relief agst. unconst. state conduct if

you name the official and not state itself4. Edelman v. Jordan (1974) – Damages Exception for 14th Am. Leg.

-suit brought seeking damages for state violations of soc. security benefits pay outs-suit brought agst. official and not state, but S. Ct. held can’t get retroactive $ damages from state this way w/o consent b/c violates 11th Am., only inj. relief-however, exception to bar of 11th Am. if leg. upon which statute is based is § 5 of 14th Am. rather than other provision i.e. Comm. Cl.-theory very lang. of 14th Am. subjected states to remedies for const. violations

5. Fitzpatrick v. Bitzer (1976) -Civ. Rts. Act passed pursuant to 14th Am. allowed suits agst. state for back pay owed due to discrim.

30

6. Milliken v. Bradley (1977) - future damages sought agst. state for non-compliance w/ desegregation, Ct. said future damages additional exception to 11th Am.7. Penn. v. Union Gas (1989)

-trends in justices wishing to expand/limit 11th Am. over years-whether Cong. could render state liable for $ damages in fed. ct. when leg. pursuant to Comm. Cl.-under Edelman there had been an exception if leg. based on Comm. Cl. gave clear notice that conduct was a waiver of sovereign immunity -pluarlity ct. in Union Gas upheld this exception

8. Seminole Tribe of Fl. v. Fl. (1996) - reversed, Comm. Cl. couldn’t be used for $ 9. Things to Remember:

1. state may be liable to suit for unconst. conduct in fed. ct. if injunctive relief sought2. states won’t be subj. to $ damages unless one of the exceptions applies 3. 11th Am. doesn’t apply to cities/counties only to states themselves

IV. State Power in American FederalismA. State Power to Regulate Commerce1. General

-states have plenary jurisd., unless what state is doing is expressly delegated to Cong. c. Q. if Cong. hasn’t acted, can the states, in the exercise of their police powers, regulate matters charged to the nat. govt., or does the dormant grant of power itself limit the reg. power of the states?

2. Gibbons v. Ogden (1824) – Contests of Power Exerted by States & Comm. Powera.) Comm. Power not a Concurrent Power like Tax Power

-states couldn’t be sovereign w/o power to tax but not true of state reg. of trade or of police powers

b.) Cong. given power to reg. commerce instead of states b/c under Arts. of Confed. states had attempted to reg. commerce b/t themselves trade wars

c.) Webster’s Args. for Excl. Fed. Power over Comm.: 1. fed. power over comm. complete & nec. excludes other exercises, 2. leads to uniformity

d.) Marshall Chose not to Resolve Issue: believed he could describe state powers in way to avoid conflict, didn’t work

-states have auth. to enact inspection/quarantine laws as pt. of police powers-states can reg. internal trade

e.) if these state powers conflict w/ fed. stat. under comm. cl. pre-emption by fed. due to supremacy cl.f.) doesn’t really address whether state can enact leg. which burdens interstate comm. when Cong. hasn’t acted in that area

-here didn’t see Gibbons as dormant comm. cl. case, Cong. had acted g.) Fed. Comm. Power v. State Reg. Power – Rationales for Resolving Conflicts

1. Concurrent Power Theory – Marshall rejects this right away, reason fed. govt. given comm. power was to prevent states from using it to reg. b/t states2. Dormant Power Theory (Exclusiveness) – even if Cong. has not acted in an area state can’t touch it, adopted by Johnson in concurrence3. Mutual Exclusiveness Theory – what Marshall adopts here, each has distinct

authority but may use diff. means to accomplish them4. Selective Exclusiveness Theory – Webster may have been arg. for this, that fed. Comm. power not totally exclusive but in some areas it is

3. Willison v. Black Bird Creek Marsh (1829) –App. of Mutual Excl. Theory-Del. law authorized co. to build a dam across a navigable creek flowing into Del. river-made a fed. issue b/c creek is navigable b/t 2 states, which Marshall had declared part of

Comm. Cl. power since this is a comm. issue Cong. could have acted but hadn’t

31

-Marshall validates state reg. building dam, says these circs. not repugnant to dormant Comm. cl.-one atty. for Del. had described stream as sluggish & destroying health -attempt to demonstrate this was a pub. health prob. which falls under police powers-Marshall accepted this idea, allowed law under mutual exclusion as police power

4. Cooley v. Board of Wardens (1851) – Selective Exclusivenessa.) Facts: Phil. req’d licensed pilot on board all ships on Del. river, license had to be issued by Wardens of Phil., challenged as unconst. reg. of interst. comm. by stateb.) Delecatus un potest declare: once a power delegated can’t be redelegated, fed. stat. passed

to allow reg. of harbors by states, but Justice Curtis said this didn’t resolve the issue b/c Const. didn’t delegate this power to states

c.) Q. whether having pilots was really nec. for safety or just to give people jobs?-if law nec. for safety police power, Curtis seems to think it is a safety measure

d.) Test for whether states can act in areas where Cong. has Comm. power but hasn’t acted: Selective Exclusiveness – depends on subj. of area being regulated is the subj. one that requires nat. uniformity or a subj. that benefits from local reg.?-Curtis thinks q. of whether pilots nec. to navigate these waters a q. for local auth. state can reg. in this area when Cong. hasn’t acted

e.) formalistic test didn’t take econ. factors into acct., not really used today, but does still guide us as a principle that there are limitation on state reg. even when Cong. has chosen not to reg. in an area

5. Rationales for Dormant Comm. Cl./Neg. Implication of Comm. Cl.:1. to preserve cong. auth. over interstate comm. (~ exclusiveness)2. to preserve princ. of free trade – if Cong. hasn’t reg. state shouldn’t either3. to avoid “Balkanization” of the states – i.e. hording fuel in states where produced4. to preserve the democratic process – modern scholarship favors this “process theory”,

allowing states to reg. in areas affecting other states doesn’t allow affected people voice -attempts to prevent states acting in own interest to detriment of others, Cardozo said “states must sink or swim as a whole”

B. Discrimination, Purpose, Means, Effects1. Modern Focus on Dormant Comm. Cl.

-cts. don’t use formalistic approach of Cooley, instead ask whether part. state law burdens interstate comm., does it have discrim. purp./effect, etc.-most persuasive basis for dormant comm. cl.: idea that when burden of state leg. falls primarily outside the state that such leg. must be held to higher scrutiny

2. City of Philadelphia v. New Jersey (1978)a.) Facts: NJ enacted stat prohibiting import of solid/liquid waste from outside state, stated

purp. of stat enviro, running out of landfills due to garbage from NYC & Phil-challenged as unconst. by operators of landfills

b.) Stewart maj.: held statute unconst. violation of Comm. Cl.i.) invalidity of leg. can lie in leg. means as well as leg. ends

-ct. prepared to accept purps. of this leg. as valid, but means can’t be discrim.-state may not assign its own citizens an advantage as to resources over cits. of other states, whole pt. of fed. const. that states “sink or swim together” -more difficult than Oklahoma hording natural gas resources b/c purps. here valid-cloak of environmentalism hiding underlying econ. motivation

ii.) Process Theory: entire burden of leg. shifted on out-of-staters who aren’t represented in NJ

iii.) Waste From Out of State No More Harmful than Instate Waste -NJ could put prohibitively high taxes on all dumping both in-state & out of state

32

iv.) Stewart’s Hypo. of State Owned Landfills, Not Passed on: state may then be able to restrict usage to state residents

c.) Rehnquist & Burger dissent, say NJ can use quarantine laws to prevent importation of materials which threaten health i.e. germ infested rags-waste equally dangerous to health can’t be distinguished from rags and other noxious items,

maj. believes solid waste not as dangerous as those materials-Rehnquist believes lat. should be given to states in matters concerning health & qlty. of life,

maj. arg. though transport of in-state waste no less harmful than out of state3. Baldwin v. GAF Seelig (1935) – Nat. Free Trade Princ., Sink or Swim Together

a.) Facts: NY leg. passed law est. min. milk prices to be paid to distributors to ensure quality of milk being produced cheaper for NY distribs. to buy milk from VT, but NY law incl. prov. to take away this adv. by forcing sale at same price as NY milk

b.) NY defended statute as based on healthc.) S. Ct. by Cardozo said all regs. could be justified as health based & would eat up whole rule, all reg. really econ. tood.) Cardozo said this is really in effect a tariff, states must sink or swim togethere.) invokes nat. free trade princ. as basis for dormant commm. cl. theory

4. Hughes v. Oklahoma (1979) – Discriminatory Purp. Per se Invalida.) Facts: D convicted under OK statute prohibiting out of state transport of minnows for sale

procured from in state watersb.) OK claimed this was enviro. leg., but S. Ct. struck it down as discrim. in purp. &

means, burdened out of state residents more than in state-leg. on its face discrim. agst. interstate comm.,

c.) gen. if state leg. discrim. in purp. per se invalidd.) when purp. seems legit. but may be discrim., ct. says it will use strict scrutiny rather

than strike it down per se - Ct. said OK may have had legit. purp. but still discrim. ct. only upholds such leg. if legit. purp. couldn’t be achieved by non-discrim. means

-OK law here vulnerable to this strict scrutiny b/c claimed purp. was ecological balance but people could take as many minnows as they wanted as long as they stayed in OK

5. Ct.’s Approaches to Dormant Comm. Cl. CasesType of State Leg. Std. of Rev./Test1. Discrim. Purp per se invalid

2. Discim. Means strict scrutiny to inquire into 1. illegit. local purp.2. absence of non-discrim. alt.

3. Even Handed Reg. to Effect valid unless burden imposed on interstate comm. Legit. Local Purp. clearly excessive in rel. to putative local benefit

(Pike v. Bruce Church)-leg. doesn’t come w/ categorical label, attempt to invalidate leg. will be arg. as cat. 1, attempt to validate it arg. as cat. 3

6. Maine v. Taylor (1986) – Successful Discrim. Means Casea.) Facts: ME stat made it crime to import out of state bait fish, man convicted under statute

challenged validity under Dormant Comm. Cl.b.) ME’s Enviro. Protection Purp Arg.: out of state bait fish risk of parasites& intro. of

non-native species which couldn’t be screened out would affect ME fisheries & enviro.-ME presented expert test. that ME’s wild fish at risk to non-domestic parasites

c.) Blackmun says 2nd Cat. Legit. Purp. by Discrim. Means: - legit. purp. of protecting enviro. & fisheries but means discrim.

33

d.) Rare 2nd Cat. Case Upheld - ct. recs. discrim. means which usually leads to leg. struck down but here it’s upheld despite heightened scrutiny-usually if even consider using strict scrutiny test law will fall-ct. says no other alt. way to keep these parasites & non-native fish out

e.) Stevens dissenting says ME is only state in country w/ such law no one else worried abt. these parasites, and ME has econ. interest in local fish industry-really just dressing up econ. protectionism of local ind.-ambiguities abt. other alts. & purps. should defeat leg. not sustain it, not willing to give

ME benefit of doubt w/o more evid.f.) sig. pt. from this case: possible for state to win legit. means case w/ enough evid. even

under heightened strict scrutiny test7. Chemical Waste Mgt. v. Hunt (1992) – Discrim. Means Failing – Less Discrim. Alt.

a.) Facts: Al. imposing fee on hazardous waste transported in from out of state-ct. relying on Phil. v. NJ struck down law

b.) Concern w/ Hazardous Waste: diff. b/t this case & Phil. v. NJ, here Al. concerned w/ hazardous waste-fact that it’s hazardous waste should be strong arg. for Al. in light of ME v. Taylor-state has rt./duty to protect people of state from hazardous materials

c.) White: Al. loses b/c ct. found discrim. means in tax on out of state hazardous waste but no tax on equally harmful in state hazardous waste-ct. says if Al. wishes to minimize amt. of hazardous waste on Al. highways put tax on instate & out of state haz. waste, fees on all haz. waste would be less discrim. alt.-fees could even be somewhate higher on out of staters b/c don’t pay taxes

d.) Rehnquist dissents, health measure, thinks state should have more latitude where pub. health & enviro. implicated, would give deference to state decisions in such areas

8. Fort Gratiot Sanitary Landfill Inc. v. Mich. (1992) – Reg. thru State Subdivisionsa.) Facts: Mich. law Mich. counties can’t receive waste from any other county, state, or

country unless authorized in county’s 20 yr. waste disposal planb.) Mich. Arg. Non-Discrim. Means: well drafted attempt to escape probs. associated w/ Phil.

v. NJ & Chemical Waste Mgt. b/c Mich. will accept waste from other states & allow barriers w/in own state, Mich. arg. leg. doesn’t use discrim. means valid

c.) Stevens: states can’t avoid dormant comm. cl. by reg. of movt. of articles of commerce through its subdivisions, any discrim. at all invalidates statute

d.) Rehnquist dissenting, new pub. policy arg., Mich. actually trying to face the prob. of solid waste & attempted to solve it w/ local planning & are being penalized for it

9. Ore. Waste Systems v. Dept. of Enviro. Qlty (1994) – Reason Req’d for Higher Feesa.) Facts: Ore. placing fee 3 x’s higher for disposal of out of state waste than in state

-Chemical Mgt. v. Hunt had left open option of using higher fees on out of statersb.) Thomas: Ore. didn’t offer any reason for the higher fee or for the part. price setc.) Rehnquist dissent: commodity really at issue in waste cases – clean & healthy enviro.d.) Dormant Comm. Cl. Impasse - states don’t want any more waste or dumps Cong.

could solve prob. by passing law allowing states to limit disposal of waste to in state only-Cong. hasn’t acted in this area dormant Comm. Cl. prob.-Cong. could act though to legitimize what states like Al, Mich, and Ore. want to do

which would force other states to solve their own probs.-Cong. could also authorize funds to build new facilities in states w/ probs.-but Cong. has same concerns abt. what to do w/ garbage fed. impasse

10. C & A Carbone v. Clarkstown (1994) – Even Handed but Excessive Burden a.) Facts: Clarkstown created own waste transfer station, set up K for priv. co. to run it

guaranteeing min. amt. of waste other waste svcs. forced to dump there & pay tipping fees

34

-waste station in priv. hands for 5 yrs. but after that would transfer to town for $1, this transfer would be funded by higher tipping fees at the station

-out of state haulers who had been using Clarkstown for dumping now had to pay more than they had in past q. whether this is violation of dormant comm. cl.?

b.)Clarkstown arg. non-discrim. quarantine designed to reg. waste in-town-arg. non-discrim. too b/c waste from in-town & out of state had to go to same station

c.) Kennedy held this ordinance invalid burden on interstate comm.-deprives out of state businesses access to local mkt., out of state disposal sites had prev.

had customers sending them business from Clarkstown but denied that by forcing all wastes to go to Clarkstown facility

-Clarkstown arg. that ord. in cat. 3 even handed but ct. didn’t agree found it to be excessive burden on interstate comm.

d.) Potential Mkt. Part. Arg. if Facility Owned by State: here facility still under priv. control, diff. rules for state run facilities -mkt. participation doctrine – when state not acting in reg. capacity but acting as any other

buyer/seller it is immune from dormant comm. cl. like any other priv. participante.) Souter dissent: doesn’t address this directly in dissent but says under agmt. here priv.

operators essentially agents of municipal govt. 11. West Lynn Creamery v. Healy (1994) – Facially Non-Discrim.: Tax + Subsidy

a.) Facts: Mass. pricing order applied to all milk dealers selling milk in Mass., whether instate or out of state dealers, funds from order used to subsidize Mass. dairy farmers who were facing state of emergency due to higher costs than neighboring producers

b.) Mass. Arg. Attempt to Preserve Dairy Ind. & Enviro. Green Space (police power arg.)c.) Stephens: unconst., ~ indirect tariff which helps in state industry compete agst. more

efficient out of state producersd.) Tax + Subsidy: tax facially non-discrim. which alone wouldn’t violate dormant Comm.Cl.

-ct. had never directly addressed state subsidies but combo of tax & subsidies is unconst.-tax on dealers passed along to out of state producers and then given to Mass. producers

e.) Process Theory: Mass. dealers get bens. derived from burden on out of state producersf.) Scalia concurs, but has doubts abt. legitimacy of dormant comm. cl.

-defers to precedent but says in future he would uphold any leg. that doesn’t facially discrim. and which isn’t ruled out by precedent

-had doubts abt. cts. 2nd guessing state leg.g.) Rehnquist dissents, accepts state’s arg. that if tax is valid & subsidy is valid then

combination should be valid -also accepts land use arg, usually sides w/ state police powers in these cases -dormant comm. cl. not intended to promote laissez faire econ.

12. Pharmaceutical Research & Mfrs. of Amer. v. Walsh (2003) – No Discrim.a.) Facts: 1990 Cong. passed Medicaid Rx rebate program to allow indivs. on Medicaid to buy

drugs at discounts, 2000 Maine passed own Rx rebates to allow people on its medical plan to similarly buy drugs at discount, proceeds from rebates from drug cos. given back to ME retailers to subsidize the price diffs.

b.) Ct. held this was const., distinguished from Westland Creamery b/c no discrim.-Ct. said didn’t matter whether drug co. out of state or set up in state, either way had to pay

the rebate & not intended to support in state mfrs. at expense of out of statersC. Modernizing the Balancing Test1. Pike v. Bruce Church, Inc. (1970) – Even Handed Reg. – Balancing Local Bens v.

Burdens on Interstate Comm. a.) Facts: Bruce produced cantaloupes in AZ and shipped them to Cal. for packaging

AZ law required cantaloupes produced in AZ to be packed in state and labeled from AZ-state upset that high quality cantaloupes from Bruce are being packed and labeled as Cal.

35

b.) Az. arg. we don’t want to discrim. agst. interstate comm., we just want people to know that AZ cantaloupes are of high quality

c) Ct. held unconst., Test For Even-Handed Reg.: where state acts to further legit. local purp., leg. will be upheld unless effects on int. comm. excessive compared to local bens-Ct. found effects app. here excessive b/c of costs to producer of $200K to pack in AZ -co. to est. its ops in state when they can do the work out of state cheaper & more eff. unconst -just b/c state resources w/in state can’t declare resources must be used/processed in state

d.) Criticism – Really Protectionist: other people have agreed in result but have found that this leg. wasn’t even handed but rather protectionist and would be more honest to say so

2. Southern Pac. Co. v Az. (1945) – Areas Where Uniform Nat. Reg. Nec.a.) Facts: AZ had train limit law limiting # of cars per train, surrounding states didn’t have

such leg. concern by S. Pac. that they would have to stop at state lines and break up trainsb.) Ct. held interfered w/ interstate comm. and in area where uniform national reg. nec.c.) Black dissented, ~ Rehnquist’s later arg. where Cong. hasn’t spoken that such matters

are areas where people of state should decided.) Process Theory Counter: leg. affects people out of state w/ no say in decision

3. S. Car. State Hwy. Dept. v. Barwell Bros. (1938) – State Reg. of Trucking OK-ct. said when state hwy. laws reg. trucks ct. should sustain it agst. dormant comm. cl.

where state has some legit. arg., reg. affects both in state & out of state trucks equally4. Bibb v. Navajo Freight Lines (1959) Non-Discrim. Truck Reg. Uneven Burden

-IL law reqd. contoured mud guards for all trucks in IL, but other states had no such req.-ct. said IL law had to fall, couldn’t req. trucks to change flaps at line-non-discrim. law which placed uneven burden on interstate comm.

5. Raymond Motor Transportation v. Rice (1980) – Lack of Evid. Supporting Purp.a.) Facts: Wisc. law limiting length of trucks in state to 55’, prohibited dual length trailers

-prob. the trucks either had to be rerouted around Wisc. or had to unload at state line and load onto 2nd truck, applied for permits for dual trailers in Wisc. but denied

b.) Ct. struck this down on grounds that this burdened interstate comm. w/o any legit. purp. b/c 55’ trucks & 65’ trucks seemed equally safe-trucking cos. produced lots of evid. to show longer trucks safe, state produced no evid.

to show longer trucks more dangerous -state lawyers didn’t think they had to put any evid. in b/c relying on Barwell which said \

c.) Powell (ct. op. but not maj.) instead uses Pike balancing test -this leg. still seems to favor in state industries b/c permits issued for double trucks carrying

dairy products but not other products-ct. didn’t use discrim. means arg. but doesn’t look good for Wisc.’s purp.

d.)Blackmun, Burger, Brennan, Rehnquist concurring specially, concerned that people will think Pike is now test for reg. of trucks on state highways -if Wisc. had put in evid. that singles were more safe would give Wisc. ben. of doubt -say if state’s safety purp. not illusory they’ll accept it-concurring justices attempting to maintain some of the deference from Barnwell -these cases have diff. members of ct. agreeing for diff. reasons-people like Brennan thinks ct. shouldn’t 2nd guess state leg.-people like Burger/Rehnquist think ct. should defer to state police power purp.

6. Kassel v. Consolidated Freightways (1981) – Evid. Provided Still Strucka.) Facts: IA law prohibiting double trucks & favoring in state industries, but IA presents evid.

-state’s evid.: doubles take longer to pass, block intersections, more likely to jack knife, Consolidated’s own records showed 2x’s as many accidents as singles & own drivers preferred singles

b.) Powell (ct. not maj.) still stuck law down as bearing disprop. on out of state residents-pointed to provisions of law that exempted several state industries

36

-clearly using Pike balancing test of local interest v. burden on interstate comm.c.) Brennan & Marshall concur- Protectionist Veto Purp.: IA leg. had attempted to conform

law to allow doubles like in neighboring states but governor vetoed leg. -governor’s veto not rested on safety but rather w/ increased traffic whose cost would

have to borne by residents, would exempt border cities -Brennan said that’s protectionist, not concerned w/ safety but w/ interstate traffic-Brennan says even if state lawyers present evid. of safety probs. they can’t change the

purp. of the leg. which was protectionistd.) Rehnquist dissent: looking to actual purp. of leg. instead of defenses offered by state to

support it rejected in past-says legs. vote for leg. based on various reasons not just one-it doesn’t matter, thinks you can use any rationale advanced by state-if strike it down on perceived actual purp. state leg. can just repass it w/ diff. stated purps.

D. State as Market Participant1. Reeves v. Stake (1980) – The Market Participant Doctrine

a.) Facts: 1919 SD built cement plant, by 1970 40% of customers out of state-1978 cement shortage SD commission restricted supply of cement to in state customers

first, Reeves a WY co. can’t get cement suitb.) Mkt. Participant Doctrine: if state acting in mkt. as any other priv. actor exempt

from Comm. Cl. like any other priv. actor-if SD stat. had ordered SD’s priv. cement co.s to prefer SD constr. ind. as well unconst.-distinction b/t 2 state capacities: state as mkt. regulator v. state as mkt. participant-diff. in Reeves SD owns cement plant

c.) Mkt. Participant Precedent – Hughes v. Alexandria Scrap (1976) - MD law to encourage recycling MD junk cars, MD amended law so that oldest cars in worst shape reqd. extra proof of MD id. when brought by out of staters, MD leg. wanted to make it more difficult for out of staters to bring hulks to MD -Alexandria based co. brought dormant comm. cl. challenge, claimed statute discrim.-Alexandria lost mkt. participant doctrine-Powell wrote Alexandria Scrap decision, but dissents here

d.) Reeve’s Args. & Powell (5-4 maj.)’s Responses:1. by preferring SD customers, this is protectionist leg. which is exactly what Comm. Cl. is

designed to prevent-Blackmun: this is a state program funded by in staters & they should get benefits 1st- ~ to state univ. systems charging more for out of state students, rationale that families of

in state students have paid taxes for univ. which out of state families don’t pay-Blackmun: this is no more protectionist than tuition diffs. & police/fire svcs.

2. ~ to state hoarding nat. resources-suppose state enacted law reserving timber for in staters 1st and state owns forests, would

state be authorized to do this?-Blackmun says this would be a diff. case, here any state could have a cement plant-Blackmun says cement isn’t a nat. resource

3. places SD contractors/developers in better position than builders in neighboring states -Blackmun says by that logic SD could ban sale of cement altogether to protect supply

which would only hurt interstate comm. more4. free mkt. should be allowed to reg. supply/demand

-Blackmun says that is speculative reasoning at best, whole reason this plant created in 1919 was due to shortage caused by failure of mkt. system to reg. supply

e.) Relation to National League: Alexandria Scrap decided in 1976, same yr. as Nat. League, where state’s acting in trad. functions exempt from Cong. exercise of Comm. Cl. power

37

-mkt. participant doctrine seems like companion in exempting state w/in its sovereignty when acting as mkt. participant

-arg. could now be made that Reeves is no longer good law b/c Nat. League overturned by Garcia & Reeves relied heavily on reasoning from Nat. League

-S. Ct. hasn’t addressed this, but arg. has been made in lower cts., but cts. haven’t really accepted it either

f.) Powell’s dissent: comm. cl. designed to prevent exactly this sort of protectionism which interferes w/ interstate commerce i.) test should be whether state attempting to perform an integral govt. function-wants to est. line where it approp. to exempt state from dormant comm. cl. by mkt.

participation doctrine & where it would be inapprop.-says that’s the diff. b/t Reeves & Alexandria Scrap, says in Alexandria protection of

enviro./state highways is trad. function of state-thinks what SD is doing here is just commercial activity, has no real state concern, this is

really a business consideration-Powell thinks in such a case state shouldn’t be exempt from what would be invalid if passed

by its state leg.ii.) states acting in mkt. don’t act the same as priv. actor, state brings political consids.

into its decisions2. White v. Mass. Council of Constr. Employers (1983) – Extension of Mkt. Part. Doctrine

a.) Facts: mayor of Boston declared by executive order that in constr. projects funded by city must use at least 50% resident employees

b.) Extending Mkt. Part. Doctrine Beyond State’s Direct Customers: in Reeves affected direct customers of state, here mayor’s order affects both direct contractors and their subs

c.) Rehnquist held mkt. participant doctrine appliedd.) Blackmun concurring in pt. & dissenting in pt.: goes beyond direct customers of govt. e.) Rehnquist responds not saying chain can extend forever, but mkt. participant doctrine

doesn’t have to stop where formal privity of K stopsf.) Point: shows that mkt. participant theory could swallow areas dormant comm. cl.

designed to protectE. Interstate Privileges & Immunities1. Privileges & Immunities Cl. Art. IV. § 2 – Cits. of each state shall be entitled to all privileges

& immunities of cits. in the several states-gen. rule: cits. of state A has to be treated as cit. of state B in state B-ex.: lawyer who passed IL bar has to take Flor. bar to practice there, doesn’t violate b/c Flor.

lawyer would have to take IL bar treated equally2. Difference b/t Priv. & Immunities Cl. & Dormant Comm. Cl.

-P&I cl. doesn’t apply to corps. or residents aliens3. Hicklin v. Orbeck (1978)

a.) Facts: 1972 Alaska Leg. passed Al Hire Act purportedly to fight unemployment-Act required pref. in hiring pipeline workers from Al. residents over non-residents-Al. owned pipeline, act incl. all gas/oil industries involved w/ pipeline too-act challenged by non-residents who couldn’t qualify for resident card as violation of P& I cl

b.) Brennan cites Ward v. MD as affirming rt. to travel to other states for emp. opps.c.) 2 Part Test for Leg. Challenged under P& I Cl. from Toomer v. Ward (1948):

SC charged $25 shrimping fee to residents & $2500 fee to out of staters, ct. struck it down as unreasonable

1. whether non-residents are source of the “evil”/prob.-Al. arg., evil is Al. has hist. suffered from high unemployment, leg. enacted to address

prob., non-residents contribute to the evil2. whether law addressing prob. is subst. related to solving it

38

d.) Brennan’s Analysis1. unemployment not caused by non-residents coming & taking jobs from Alaskans

but rather due to low education/training & remote distances from econ. activity2. even if non-residents were source of evil, law not subst. related to solution-law too broad, prefers Alaskans across the board regardless of fitness for emp.

e.) Brennan Addressing P & I Cl. & Dormant Comm. Cl.:-mutually reinforce each other, could even use some dormant comm. cl. cases-both orig. intended to address probs. of Arts. of Confed., serve same purp.-division though on ct. in regards to this issue

f.) Al.’s Ownership of Oil/Pipeline-ct. says this is a factor weighed into decision, but here oil & gas of such national

importance that law violates const.-indicates may be some latitude for states in decisions as to state owned resources, but really

mere dicta4. United Building & Constr. v. City of Camden (1984) – City Restrictions & P& I

a.) Facts: ord. by city of Camden requiring at least 40% of contractors on city projects must be city residents, ord. adversely impacts out of state & in staters who don’t live in Camden

b.) Issue: is a P & I challenge overridden when city instead of state doing restriction & restriction hurts both in staters & out of staters?

c.) Rehnquist: just b/c it hits some state residents too doesn’t free action from P & I Cl.-says discrim. still adversely impacts out of staters even if somewhat diminished -says municipality is political subdivision of state and can’t escape P&I just b/c city

d.) remanded for det. as to whether there was a subst. rel. b/t leg. & prob. of high unemployment in Camden

e.) Rehnquist Disagrees w/ Brennan’s View in Hicklin that Dorm. Comm. Cl. & P& I Cl. Serve Same Purp.: see diff. aims & diff. stds. for state conduct-P & I places direct restraint on state action in interests of interstate harmony -Rehnquist points to diff. results in White when challenge brought under dormant comm. cl. exception of mkt. participant doctrine, but doctrine doesn’t apply to P & I cl.

f.) P&I cl. doesn’t recognize mkt. participation exception 5. Baldwin v. Fish & Game Comm’n. (1978) – Fundamental Commercial Activity

a.) Facts: Mont. imposed fee on elk hunting, out of staters reqd. to get more expensive combination license for $250, Mont. residents only have to pay $9 for spec. elk license

b.) rule state A must treat cit. of state B like cit. of state A has some leeway due to taxesc.) Blackmun: Contrast to Toomer – Fundamental Activity: in Toomer ct. had struck down

dff. S. Car. shrimping licenses as excessive-key diff. b/t Toomer & Baldwin: in Toomer activity fundamental commercial activity

where here recreational activity that’s not fundamental rt. so P&I doesn’t applyd.) Brennan dissent: “fundamental” limitation has no place when dealing w/ discrim. agst.

cits of another state who are not represented in other state’s leg.-primary concern is state’s justification for discrim.

e.) Baldwin is law though have to det. whether activity is fundamental b/4 P&I applies6. Atty. Licensing & Residence - q. whether non-residents may take bar & practice in diff. state?

a.) S. Ct. said yes in S. Ct. of New Hampshire v. Piper (1985)i.) Facts: to take NH bar at time had to file intent to become NH resident

-P lived 400 yds. from NH, filed intent, allowed to take bar, passed, informed by NH bar assoc. that she must est. home address in NH to practice law

-P sought waiver from bar, but denied suit claiming violation of P&I cl.ii.) S. Ct.’s Analysis: 1. ability to pursue occupation is a fund. rt.

2. out of staters not source of prob. state concerned w/3. no subst. reason to treat out of staters diff.

39

iii.) Ct. Found Other Responses Avail. to NH’s Args: less likely to be familiar w/ local rules, less ethical, less available; at least 2nd pt. of test met

iv.) Rehnquist dissent: law differs subst. from state to state not like other profs.b.) S. Ct. of Va. v. Friedman (1988)

-Va. rule once licensed to practice in other state & practiced for 5 yrs. can practice in Va. too-but Va. bar had rule to do so you had to move to Va., really to keep out competition-ct. also found solutions avail. which are much less drastic than this rule

c.) Barnard v. Thorstenn (1989)-Virgin Islands case, probably most acceptable args. for residency rules-prob. of availability here more likely b/c of remote location of islands, also arg. Virgin Islands doesn’t print cases only passes out slip decisions-ct. still struck it down, said other solutions, can associate w/ local lawyer

7. Hillside Dairy v. Lyons (2003) – Legitimizing State Action & P & I Cl. -Cal. statute controlling milk prices-issue: whether Cong. can legitimize state action which would otherwise violate dorm.

comm. cl.; whether Cong. can pass leg. which allows state to act as it pleases in an area of reg.

-ct. said this leg. didn’t fall w/in cong.’s authority to legit. state action b/c it dealt not w/ reg. of milk qlty. but milk pricing, fed. stat. used as def. only deat w/ qlty.

-P&I issues: 1. corp. Ps have no standing to bring claim under P&I, 2. even if stat. doesn’t discrim. on its face can still have P&I prob. (?)

F. Legitimizing State Burdens on Commerce1. Cong.’s power to legitimize burdens on commerce

a.) Prudential Ins. Co. v. Benjamin (1946)i.) Facts: until 1944 insurance not interstate comm. not approp. for Cong. reg. under

comm. cl., but 1944 S. Ct. case held anti-trust laws applied b/c ins. was in interstate comm.-Cong. in response passed McCarran Act which said ins. is subject to laws of the state-Cong. essentially regulating by declaring it won’t reg. allows states to reg./discrim.-S. Car. law passed for 3% tax on revenues from out of state ins. cos. & no such tax on

domestic ins. cos.ii.) challenged under dormant comm. cl. q. can Cong. authorize state discrim. in area

of interstate comm.iii.) S. Ct. said it could, Gibbons declared Cong. power over interstate comm. plenary

-Rutledge says Cong. may close line of comm. altogether -just b/c lines of interstate & intrastate comm. separated doesn’t mean they can’t act

together Cong. can legitimize discrim. if it choses G. Preemption by Fed. Statute -when fed. stat. & state stat. conflict fed. stat. prevails i.e.

Gibbons-preemption cases essentially stat. interp. -prob. when state stat. doesn’t anticipate conflict w/ fed. & fed. doesn’t address state interest in reg. in an area-probs. arise when party doesn’t like state or fed. reg. in an area but both have acted

Tests for Preemption:1. Is conflict shown rt. on face of statute? Is this an area which reqs. uniform, nat. reg.?2. Is the fed. law pervasive? Is this an area so pervasively regulated by fed. govt. that it’s clear

there’s no room for state reg.?3. Is area challenged by preemption one hist. left to states? 4. Can the stats. be administered in way to avoid conflict?5. Is there an agency which regulates this area? If so is there room in this area for more

than one sovereign?V. Executive and Congressional Relations: Separation of Powers

40

A. Formalism & Functionalism1. General:

a.) Amer. sep. of powers a repudiation of parliamentary govt. -sep. of powers created to prevent centralization of powers -designed to preclude arbitrary exercise of power rather than efficiency

b.) Inherent Powers-fed. cts. req. fed. leg. to authorize their power – no inherent jud. power-Art. I: all leg. powers herein granted shall be vested in Cong. – no inherent power-inherent exec. power more difficult to det.

c.) 3 Sources of Gen. Exec. Power:1. Art. II § 1: exec. power shall be vested in President

-some arg. this “vestiture cl.” grants Const. auth. for inherent power, others disagree-args. for inherent power: no “herein granted” lang.; exec power vested in Pres Pres. can

act as executive in anyway -counter-args: simply descriptive only states one executive rather than mult., more accepted

view today2. Art. II § 2: Pres. shall be commander & chief of armed forces3. Art. II § 3: he shall take care that the laws be faithfully executed

-can be used for args. to expand or limit pres. power2. Functionalism & Formalism:

-difficult b/c even same justices go back & forth b/t the two theories-extreme functionalism would allow pres. to take control of steel ind. when nec. despite lack of Const. lang. -formalistic approach, like Black in Youngstown, pres. has no leg. power, only allowed to execute laws as passed by Cong., literal approach to exec. power in Const.

B. Perspectives on Executive Power1. Stewardship Theory (T. Roosevelt): pres. can do anything he wishes as long as not limited by

Const. lang., -Taft Theory: pres. can only do what Const. authorizes him to do

2. In re Neagle (1890) – Acting as Pt. of Exec. to Faithfully Exec. Lawsa.) Facts: justice Field had threats on his life, US marshal assigned by Atty. Gen. to protect

him, in course of duty shot & killed threat maker, Cal. prosecuted marshal for homicide-no fed. stat. giving immunity to US marshals acting to protect justices of S. Ct. no fed. stat.

authorizing what marshal had done-marshal sought writ of habeus corpus on grounds he was lawfully authorized by fed. govt. to

protect & defend just. Field which he didb.) S. Ct. held in favor of marshal b/c acting on behalf of exec. branch -exec. branch’s duty to faithfully execute the laws, despite lack of stat. faithfully executing

incl. Const. which incl. protecting those administering fed. law3. In re Debs (1895) – Exex. Duty to Secure Common Rts.

a.) Facts: fed. cts. could issue labor injunction to prevent ind. strikes-RR strike, US sought injunction to stop strike from interfering w/ interstate comm. & mail-no stat. authorizing such injunction, ct. issued it any way

b.) Holding: whenever wrongs affect pub. at large and respect matters entrusted to the exec., the exec. owes a duty to all cits. to secure their common rts. -Debs gives considerable auth. to exec., but doesn’t mean today that DOJ may seek

injunction in every case even where no stat. 4. US v. Midwest Oil (1915) - Acquiescence by Cong.

a.) Facts: Cong. passed stat. when mineral deposits are found on pub. land that land is to be opened to pub. entry/commercial exploitation

b.) Taft Refused to Open Fed. Lands Where Oil Discovered:

41

-Taft arg. stat. enacted far in past, prev. presidents had ignored the leg. to preserve oilc.) Holding: S. Ct. agreed, where Cong. acquiesces in pattern of behavior & does nothing,

then weight should be given to usage itself C. Allocating the Lawmaking Power – The Steel Seizure Case and Exec. Lawmaking 1. Youngstown Steel Co. (The Steel Seizure Case) (1952) - leading case on exec. auth.

a.) Facts:1951 collective bargaining dispute b/t steel co.s & employees, strike threatened, fed. govt. stepped in to mediate, failed, nationwide strike announced in April 1952-Korean War ongoing, Exec. Order issued directing Sec. of Comm. to take control of steel

mills, Sec. issued order directing owners to operate mills under US control-owners sought injunction in dist. ct. to prevent pres. from seizing the mills-Truman sent a message to Cong. at same time, didn’t believe Cong. action nec. but would

cooperate w/ Cong. if they acted, if not he would continue to keep ind. operatingb.) Govt. arg.: pres. had power to do what is nec. in times of emergency w/o jud. rev.

-b/4 S. Ct. govt. arg. not for unlimited exec. auth but rather that pres. had aggregate Const. auth. under “vestiture cl.”, “commander & chief” & “faithfully execute law”

c.) BLACK (op. of ct. not maj.): pres. wasn’t authorized by Cong. to issue order & had no auth. in Const. itself, formalistic approachi.) No Cong Auth.: Cong. had specifically rejected seizure as alt. to strike when adopting

labor reg. ii.) Responses to Aggregate Const. Auth. Arg.:

aa.) rejects commander in chief power as basis for seizing priv. prop., even under most expansive interp. of theater of war, would be inconsistent w/ Const. system

bb.) rejects faithfully execute laws cl. as giving pres. lawmaking powers, says it means just the opposite, pres. is simply to execute laws of Cong.

iii.) just b/c other pres. have acted w/ emergency powers doesn’t negate Cong.’s power in Const. scheme

iv.) holds pres. acted w/o any stat. or Const. auth.d.) DOUGLAS concurring, joined Black’s op.: but further states 5th Am. clearly states

Cong. has power to take prop. for pub. use not pres. b/c it is the branch which may pay compensation that may authorize taking

e.) FRANKFURTER concurring: although pres. has unenumerated powers doesn’t mean they’re undefined, defined by sep. of powers, less formalistic more fexible/functionalisti.) pres. may act in areas where Cong. has not prevented such action but here Cong. spec.

rejected giving pres. seizure power, Black’s formalistic view too rigidii.) Might Treat Other Issues Diff.: e.g. short seizure for temporary period; says speaking

on such issues would exceed auth. since not b/4 ct. iii.) KEY: Cong. chose not to give pres. this power when they could haveiv.) Goes Beyond Text of Const. to Look to Const. Practice/Interp. since 1798: -Const.

practice must inform Const. law, here what pres. did not authorized by Const. but approach much more flexible for other issues

f.) JACKSON concurring: each branches powers not limited to those delegated to them, pres.’ powers not fixed depends on the sit. & the overlap b/t pres. & cong. powers3 Categories of Pres. Power:

1. Pres. acts pursuant to an express or implied auth. of Cong.-pres. power at its max, heavy burden in challenging-only overruled if fed. govt. gen. doesn’t have the power

2. Pres. acts in absence of either a cong. grant or denial of auth.-can rely only on his own indep. powers-“zone of twilight” in which pres. & Cong. have concurrent powers-if in twilight zone pres. can act but may be challenged by Cong. -cong. inertia, indiff., or acquiescence may enable pres. responsibility

42

-Jackson says not the case here b/c Cong. acted and chose not to grant seizure power-arg. can be made that Truman’s actions in this category but b/c Cong. didn’t take

any action to prohibit his actions-Vinson makes this arg. in dissent, says it’s true Cong. didn’t give pres. the auth. to

seize mills but also didn’t prohibit it 3. Pres. takes measures incompatible w/ expressed or implied will of Cong.

-pres. power at lowest ebb strict scrutiny-ct. can affirm action only by disabling Cong. from acting in that area

-Black’s decision called formalistic, Jackson’s op. functionalist -Jackson says depts. interlock & their powers fluctuate w/ their interaction

g.) 2 Qs. Discussed in Steel Seizure Case:1. Does the pres. have inherent power?

-Jackson says no, exec. power can be expanded but only by Cong.-we submit ourselves to rulers only if under rules, pres. can’t act w/o const./stat. auth.-atty. for pres. could arg. for expanded power under vestiture, commander in chief, or take

care cls. 2. Does the pres. have emergency power?

-forefathers knew emergencies & knew emerg. powers tend to kindle emergencies chose not to grant pres. emerg. powers

-Jackson addresses Locke’s arg. that Cong. not always in session, pres. always on duty and needs power to act, Jackson says Cong. can always be called back to Washington

-prob. w/ emerg. power is has no beginning & no end, submits to no legal restrainth.) BURTON Concurring - narrows q. of inherent power to seizure of priv. prop.

-sensitive to sit. where country might come under attack not as definite as Jackson that inherent/emergency powers don’t exist in some catastrophic circs.

-doesn’t believe current sit. so extremei.) CLARK Concurring - pres. has inherent power, doesn’t care what it’s called

-but in this sit. where Cong. has det. other means for resolving labor disputes pres. has to follow those in dealing w/ emergency

j.) VINSON, REED, & MINTON, dissenti.) ct. misses pt. that if pres. hadn’t seized mills steel ind. would have shut down in time

of war pres. had to act under aggregate powersii.) Hist. Exs. of Imp. Decisions Made by Pres. w/o Consent of Cong. Later Upheld by

Cong: e.g. Louisiana Purchase, Emancipation Proclamation -Cong. has supported such exec. actions hist. & later ratified them

iii.) US v. Midwest Oil, ct. upheld actions by pres. which were contrary to actual statute, here no contrary statute

iv.) Pres.’ Duty to Faithfully Exec. ALL Laws: -pres. here acting to preserve leg. programs already passed by Cong., w/o his actions war

programs would have failed, pres. merely maintaining status quo-in times of emerg./nec. pres. must have flexibility in det. how to execute laws passed

by Cong., here no seizure collapse of military procurement acts & price controls-diff. if part. fed. agency has a part. stat. to enforce but pres. has duty to faithfully execute

all laws incl. military procurement & price controls -arg. Pres. merely executing laws that already existed

v.) Adopts Stewardship Theory: quotes T. Roosevelt pres. has duty to serve people wherever const. doesn’t explicitly forbid him

k.) # of Justices Who Would Support Proposition Pres. has Inherent Powers:-accdg. to Corwin, proposition that pres. has auth. beyond express Const. powers would have

been approved by all justices except Black & Douglas

43

-however, not likely that Jackson would agree, and unclear abt. Frankfurter who tended to be a functionalist

-4 clearly for inherent/emerg. powers Clark & dissenters-w/ Burton 5 in some circs. potential maj. for inherent power What is holding of case? does pres. ever have inherent/emerg. power? seems there was

probably a maj. who would grant such power in some circs.D. Congressional Lawmaking: Limitations & Responsibilities - Delegation of Leg. Power1. Delegation [Non-Delegation] Doctrine – Indep. Agencies

a.) can 1 branch delegate its auth. to another branch?-gen. rule: that which has been delegated can’t be redelegated, not that simple-in reality branches do delegate powers i.e. CFR regs. generated by exec. agencies w/ force of

law, regs. issued pursuant to enabling leg. -massive delegation of leg. auth. to agencies-agencies considered “indep. agencies” b/c have both jud. & leg. components-this delegation poss. b/c of approach taken by cts. faced w/ complexity of spec. reg. -Cong. lacks the expertise & time to prescribe spec. rules for every reg. ind.

b.) Delegation Principle – as long as Cong. lays down in leg. an intelligible princ. which person exercising delegated auth. is instructed to follow such leg. action isn’t forbidden-to some extent a legal fiction, agencies create vast amts. of reg. not spelled out by leg. -admin. decisions subj. to jud. rev.

c.) Args. for/agst. Delegation Principle: i.) for delegation – formalistic approach to leg. power that only Cong. can leg. won’t

work in modern worldii.) voter waiver – voters continue to elect leg. that created agencies voter stamp appvl. iii.) counter-arg. – admin. power undemocratic b/c can’t vote bureaucrats out iv.) response: admin. agencies more responsive b/c smaller scale w/ open proceduresv.) another arg. – Cong. couldn’t fashion workable stds. in all these areas

d.) Staffing Indep. Agencies: staffed by pres. gen. maj. must be from controlling pres. party but by law must have reps. from minority party

e.) 1930’s strict view of non-delegation in striking down New Deal leg., but only real exs. of delegation doctrine being enforced

2. Whitman v. Amer. Trucking Assoc. (2001)a.) Facts: EPA under Clean Air Act empowered to set primary ambient air qlty stds. to protect

pub. health (intelligible princ.)b.) P arg. stds. are so vague that they’re no stds. at all Cong. has unconst. delegated it’s

leg. auth. to control air pollutionc.) Scalia - delegation princ. satisfied by intelligible princ. , EPA not exercising leg. powerd.) Stevens concurring: would be wiser to admit agency reg. is leg. power & we were

mistaken not to concede grant of leg. power, but it can’t be otherwise in this worldE. Legislative Veto 1. General

-as these agencies evolved Cong. developed leg. veto -Cong. conceded they didn’t have competency to dev. laws in all areas of reg. -leg. veto allowed one or both houses of Cong. to veto admin. actions-arg. for leg. veto: gave Cong. way to control leg. process -leg. vetoes became comm. in statutes, by Chadha over 200 stats. w/ vetoes-no one doubted utility of veto, seemed reas. for Cong. to try to exercise some control over vast delegation of auth. to agencies, but qs. of whether leg. vetoes const.

2. INS v. Chadha (1983)a.) Facts: atypical leg. veto case, involved indiv. rts. instead of reg. of ind., provision of

Immigration & Nat. Act which allowed leg. veto by 1 house of Cong., indiv. overstayed

44

student visa, ordered deported, but by provision of Act atty. gen. could suspend deportation if indiv. had resided 7 yrs, of gd. moral char., & hardship -atty. gen. suspended deportation leg. veto by House under Act provision -indiv. moved to terminate proceedings on grounds stat. was unconst.

b.) Ct. per Burger: provision unconst. not on sep. of powers but as violation of presentment cl. & bicameralismi.) Presentment Cl. Args: under presentment cl. all leg. must go b/4 pres. for veto/signature,

framers though this fund. imp., couldn’t be circumvented-works as both check on Cong. & defense for pres. from Cong. action3 Functions of Presentment Cl.: framers didn’t want sys. of parliamentary sov., didn’t

want Cong. to be exclusive lawmaker1. Burger quotes Hamilton, presentment intended to allow pres. to defend himself

from Cong. to protect his role in leg. 2. to make sure leg. not in haste & monitor bad law – pr. cl. nec. for pres.’ veto power 3. pres. brings national perspective to leg.

ii.) Bicam. - Const. states all leg. power shall be vested in Cong. consisting of House & Sen.-Burger’s theory if leg. not presented in both houses not valid -bicameralism reps. both sm. & lg. states, protects agst. spec. interests-Burger says there is a finely wrought system of procedure for leg., this leg. not only

skips the pres. but also reqs. only action by one houseiii.) Counter-Arg.: there was presentment & bicameralism here & in every leg. veto case

-b/c pres. signed law passed by both houses knowing leg. veto built in -Burger considers this to be a new law which has altered rts. which must itself satisfy

presentment & bicameralism iv.) Utility of Leg. Veto - leg. veto is useful but unconst. utility irrelevant (formalist)v.) Framers Provided 4 Spec. Sits. in Which Only Vote of 1 House Nec.:

1. House alone has auth. to impeach, 2. Sen. alone can try impeached, 3. Sen. alone can approve treaties, 4. Sen. alone can approve pres. appts.-framers express choice of these functions shows this is all they wanted

vi.) Nature of Reg. – Legislative or Judicial?-Burger has trouble w/ this issue, leg. usually involves lg. groups of people-focus on indiv. rts. usually judicial, cts. have built in protections & processes-if this isn’t leg. presentment & bicameralism not probs., but he says it is leg. b/c it

affects rts. of mult. people incl. atty gen., pres., senate, indiv.-Powell criticizes this in his concurrence-result of this op. many leg. veto provisions unconst. -many leg. vetoes still unchallenged & still functioning but theoretically unconst.

c.) Powell’s Concurrence – Computer Meltdown Get Notes!i.) no bicam. or presentment probs., rather sep. of powers prob. w/ narrower focus

don’t have to invalidate 200+ leg. vetoes in the booksii.) Branches Overlap 2 ways sep. of powers may be violated:

1. one branch may interfere impermissibly w/ other’s perf. of its const. assigned function2. one branch assumes function more prop. entrusted to another

iii.) Cong.’s actions jud. in nature b/c affect single indiv. rather than many as leg. gen doesd.) White, dissenting – More Flexible Approach

i.) neither bicameralism nor presentment violated-bicam. satisfied b/c orig bill appvd by both houses & presentment: signed by pres-thinks leg. is that which alters status quo, says the process involved here reqs. actions by all

3 branches b/4 the status quo of an indiv. can be changed-White says auth. stats. giving power to indep. agencies must comply w/ Art. I reqs. of

bicam. & presentment

45

-pres. saw how much power Cong. reserving in leg. veto in auth. act & chose not to veto-Burger would answer fact that one branch accepts smthg. doesn’t mean it’s const., for

jud. to det., here pres. accepted unconst. action ii.) admin. offs. make interp. of leg. that become law all the time w/o mtg. bicam. or

prest.-if indep. agencies can do this illogical that Cong. must be held to stricter std.-are the 2 sits. distinguishable? diffusion of power v. concentration of power which is whole

basis for sep. of powers possible answer: Cong. can in fact delegate its leg. auth. to anyone but itself b/c that leads to exec. functions

e.) 1 Interp. of Burger’s Op.: Cong. may delegate duties to anyone but itself -theory when Cong. assumes power of enforcement of laws delegated to executive

assumption of powers of officers of exec. branch -Burger arg. defending basic concept of framers that power would be diffused throughout

govt. rather than in single parliament-Art I § 2 – incompatibility cl., member of fed. govt. may not hold 2 fed. offices-Art. II § 2 which divides appt. of officers b/t branches, these 2 cls. evid. of aversion to

parliamentary system Cong. can’t delegate power to itself b/c giving itself 2 offices

f.) leg. veto case gd. ex. of competing claims of formalism v. functionalism-powerful args.: no pt. in written const. if you don’t follow it v. literally following text

can sometimes damage functional ability of const. & govt.F. Appointment & Removal Power 1. Art. II § 2 – Appt. Cl. – pres. shall have power to appt. ambassadors, other pub. ministers,

judges of s. ct., & all other officers of US w/ consent of senate-cong. may vest power to appt. inferior officers in pres. alone, cts., or heads of depts.-doesn’t address who has removal power though ~ Goldwater v. Carter treaty termination

2. Humphrey’s Executor v. US (1935) – Removal Q.: Whether Exec. Functions Alone?a.) Facts: during new deal FTC commissioner whom FDR didn’t like, Cong. had est. a set term

for commissioners, FDR wanted to fire him in midterm q. can pres. do that?b.) Pres. arg. he’s performing exec. functions thus an exec. officer pres. can remove c.) Ct. disagreed: FTC doesn’t provide solely exec. functions, also has quasi-leg. & quasi-

jud. arms not completely exec. pres. doesn’t control alone q. on removal whether indiv. perf. exec. function alone or quasi-leg./quasi-jud.-state of law until Morrison v. Olson

3. Watergate Background to Morrison-during Watergate investigation spec. prosecutor apptd. who could be fired by atty. gen. -likelihood of Nixon’s impeachment absent resignation became clear White House ordered

atty. gen. to fire spec. prosecutor to delay process-atty. gen. refused to do it, went all the way down line of asst. atty gens. resigning & refusing

until Bork did it concern that if exec. esp. pres. himself suspected of wrongdoing couldn’t be expected to

police itself fairly passing Ethics in Govt. Act which limited atty. gen. power to fire spec.

prosecutor/indep. counsel w/o completely taking power away4. Morrisson v. Olson (1988)

a.) Facts: controversy arose b/t Cong. & EPA, EPA sought legal advice from Olson at DOJ-head of EPA told to invoke exec. privilege to withhold docs. on sensitive matters-exec. privilege not found in text of Const. but recognized in some circs. by Ct.-sit. part. problematic when as here dems. control Cong. & reps. control exec. -dems in Cong. claimed EPA not enforcing enviro. laws agst. co.s that contributed to rep.

party, exec. claimed Cong. interfering w/ their investigation of those co.s for pol. gain

46

-house report sent to atty. gen. saying Olson had given false test. & withheld info. & recommending appt. of indep. counsel

-atty. gen. apptd. Morrison indep. counsel, she subpoenaed Olson & docs., Olson moved to quash subpoena on grounds Ethics in Govt. Act unconst.

b.) Act’s Structure: atty. gen. decides indep. counsel nec, must request counsel from Spec. Div -Spec. Div. - fed. judges apptd. pursuant to Art. III who sit in spec. jurisd. to appt. indep.

counsel, normally fed. prosecutors apptd. by exec. branch not jud. -atty. gen’s controls over counsel: 1. atty. gen. must request indep. counsel from spec.

div., 2. atty. gen. can terminate indep. counsel for gd. cause-gd. cause diff. from normal where exec. may fire fed. prosecutor for any reason-under this act pres. & exec. must have gd. cause limitation -office of indep. counsel exists until he notifies atty. gen. that he has subst. completed

investigation/prosecution undertaken pursuant to the Act, at discretion of counsel-indep. counsel overseen by Cong., sends reports to House. on activities-diff. from ord. prosecutor – Cong. oversight reporting to House for impeachment purps

c.) Olson’s Claims of Unconst.: violates appt. cl. of const. Art. II § 2 cl. i.) primary arg. indep. counsel is a principal officer of the US not an inferior officer

-everything b/4 “but” refers to principal officers & everything after inferior officers-Olson arg. given grt. power of indep. counsel princ. officer not subordinate to atty. gen.

or exec. officers princ. officer unconst. appt. b/c sen. must approve appt.ii.) Rehnquist says it’s clear to maj. of ct. that indep. counsel is inferior officer apptd. by

ct. of law which is valid under Const.-Rehnquist’s Factors for Inferior Officer:1). subj. to removal by higher exec. branch official, 2.) empowered by act to perform only certain limited duties, 3.) office limited in jurisd., 4.) office limited in tenure

iii.) Olson also arg. that appt. cl. allows vesting exec. appts. in exec., jud. appts. in jud., but not interbranch appts. b/c violates sep. of powers

iv.) Rehnquist rejects this b/c text sets no such inter-branch limit-ct. appt. of exec. officer here not incongruous w/ sep. of powers, act says no judge who sits

on spec. div. may sit in proceedings in which indep. counsel is prosecutingv.) Olson arg. creation of indep. counsel apart from other fed. prosecutors not directly

responsible to atty. gen. violates sep. of powers2 sep. of powers sub-issues1. whether by limiting atty. gen.’s power to remove only for gd. cause act interferes w/

pres.’ powers to follow his const. expressed duties2. whether by reducing pres.’ abilities to control prosecutorial powers of indep. powers

does that unconst. limit pres.’ powersvi.) Rehnquist addresses prev. cases of Humphreys Executor & Myers in response

-in Myers Cong. limited term of postmaster, pres. contended Cong. had no such auth., S. Ct. agreed w/ pres.

-Humphreys Executor, pres. (see above)-b/4 this case most const. scholars would have said indep. counsel more like official in Myer

b/c prosecutor considered member of exec. branch-Rehnquist says more like Humphreys b/c power to remove already limited, but the

issue in controversy is really whether that limitation is permissible-Rehnquist doesn’t repudiate the distinctions from Humphreys & Myers, but they’re not

dispositive for the resolution of this case vi.) Rehnquist sees real issue in this case: whether pres. need to control discretion of

indep. counsel is central to const. duties of pres.

47

-seems to dance a bit around the issue, given the extent of the pres.’ powers limits on removal of indep. counsel will obviously not be central

-Rehnquist honest that act limits powers of exec., but nevertheless atty. gen. still retains some power incl. power to terminate counsel for gd. cause & power to det. whether a request for atty. gen. is really nec.

Rehnquist says act doesn’t impede ability of pres. to perform his const. dutiesd.) Unaddressed Policy Issue Behind 8-1 Decision: strg. policy arg. for having indep. counsel

to investigate/prosecute wrongdoing by exec, Rehnquist agrees here, sees policy neede.) Act expands the powers of Cong. vis-à-vis the exec. f.) Scalia, dissenting: key issue really sep. of powers, very formalist approach, any attempt to

take const. power away from exec. branch is unconst.i.) Sep. of Powers: ct. has issue backwards, not abt. appt. cl. but abt. sep. of powers

-Cong. can’t deprive exec. power of any power, same w/ jud. power -If Cong. Doesn’t like Decision by Atty. Gen. Can Just Impeach Hime: “context of this

stat. is acrid w/ the smell of threatened impeachment”, ii.) Const. provides all correction for abuse that is nec., those remedies are impeachment &

ballot box, if we want more must amend Const.iii.) Risk of Prosecutorial Abuse: office of indep. counsel more open to prosecutorial abuse

than any other fed. prosecutor b/c cut off from DOJ -typically a prosecutor has many cases & has to make allocation of resources, can’t spend all

time & resources on single case, that limitation on prosecutorial power lacking hereiv.) Exec. Control of Prosecutorial Functions Gives Pres. a Sympathetic Forum: here spec.

prosecutor created spec. to investigate pres. until he feels he’s donev.) Rehnquist’s op. functionalism v. Scalia’s formalism

-functionalist approach sees a prob. we’ve experienced and attempts remedy beyond clumsy impeachment, however sets no limits as to how far exec. power can be limited

-formalist approach sees any attempt to limit exec. power as unconst. but may not be able to deal w/ probs. that arise

G. Privileges & Immunities in the Separation of Powers1. US v. Nixon (1974) – Executive Privilege

a.) Facts: House jud. comm. considering arts. of impeachment-7 people indicted for consp. & obst. of just., Nixon named unindicted co-conspirator-spec. prosecutor sought white house tapes & docs. by subpoena-pres. provided some edited transcripts of tapes, claimed exec. priv. to the rest-exec. priv. – need to ensure honest & candid advice to pres. by keeping such advisory

discussions confid., not in const. but assumed understood as implied by exec. power~ closed jud. chamber & confid. discussions of cases

b.) Nixon 1st arg.: non-justiciable intra-branch dispute b/t spec. prosecutor & pres. -analogy to dispute b/t 2 cong. committees over jurisd., not for cts.-atty. gen. apptd. spec. prosec. by spec. reg., reg. unusual in giving some oversight to cong.-pres. arg. b/c of exec. priv. didn’t have to respond to spec. prosecutor pol. dispute

c.) Burger found 2 grounds for case/controversy: 1. const. dispute b/t 2 officers resolvable by ct., 2. trad. justiciable

d.) Nixon arg. const. sep. of powers prevented pres. from turning over tapes:i.) Nixon arg. no jud. rev. of exec. priv. b/c of sep. of powers b/c inherent exec. power, ~

pres.’ veto can’t be reviewed by ct.ii.) Burger responds since Marbury it’s been the place of the ct. to say what the law is

sep. of power isn’t a bar to jud. rev. of exec. priv.iii.) Burger recognizes doctrine of exec. priv., says it’s presumptive priv., however not

absolute as contended by pres.

48

-claim for exec. priv.. in military, nat. security, or diplomatic matters much stronger, but this case doesn’t involve those areas, here info. sought in crim. case

iv.) Burger cites recent precedent that grand jury is entitled to every man’s testimony, same here incl. pres.’ testimony

v.) Balancing: Burger says have to weigh need for info. to fair & proper crim. just. proceedings v. claim of pres. confid. here crim. just. takes precedent-addresses cong. comm. investigation of campaign activities which was ongoing & also

attempting to get tapes, says not b/4 ct. whether balancing in such civ. proceedings would lead to sim. results

-need for info. in crim. prosecution grtr. than in claim for info. b/t branches of govt.-Burger says priv. here is qualified can be overtaken by other needs here crim. just.

e.) Holding: pres. must respond to jud. proc. & claims of exec. priv. are subj. to jud. rev.-Burger instructs dist. judge as to what he must do now that tapes avail. -has to look at info. alone in chambers to det. what is relevant & turn over only that material

to prosecutor, heavy resp. to ensure mats. not rel./admissible are protectedf.) Unaddressed Potential Sep. of Powers Issue: cong. oversight of spec. prosecutor

-case decided b/4 Morrison, unusual feature of reg. delegating exec. power to leg.2. Nixon v. Fitzgerald (1982) – Lawsuits Agst. Pres. for Exec. Decisions

a.) Facts: Nixon sued by air force analyst Fitzgerald who was eliminated -Fitzgerald had been whistleblower as to overpricing leg. protecting whistleblowers-sued Nixon alleging Nixon had instituted his firing

b.) Holding: pres. immune from civ. suits resulting from actions in his off. capacity-if pres. could be sued for any exec. decision which upsets someone he couldn’t do his job -prosecutors & judges have immunity for their decisions as well to protect their ability to

make decisions in course of their official capacitiesc.) 5-4 decision, dissent per White: immunity results only in case of essential functions of

the pres., not peripheral functions here, wouldn’t give abs. immunity provided by maj.3. Harlow v. Fitzgerald (1982) – Only Qualified Immunity for Pres.’ Aids

-pres. gets abs. immunity but his aids only get qualified immunity-only shielded from civ. suit if they don’t violate const./stat. rts. of which a reas. person should be aware

4. Clinton v. Jones (1997) – Suits Agst. Pres. in Non-Off. Capacitya.) Facts: Jones sued now pres. Clinton for sexual harassment while governor of Ark.

-Clinton arg. case should be dismissed w/o prejudice effectively deferred until the end of his term(s), prob. for P w/ deferral, could take up to 8 yrs. to get to sue, witnesses could die, evid. could become stale, memories fade, etc.

b.) pres. says case already litigated in Nixon v. Fitzgerald - pres. has immunity from civ. suitc.) Stevens says not precedent here b/c these acts were not in off. capacity

-pres. doesn’t have immunity for actions b/4 taking office & not in off. capacity-ct. does have some respect though for proposition that pres. can’t be treated like any other

witness/party-ct. puts a lot of resp. on tr. judge to keep resps. of pres. in mind when matters such as timing

& scope of disc. b/4 ct. -for this case ct. assumes disc. could take place at white house, even if tr. held no necessity

for pres. to appear in person5. Nixon v. Admin. of Gen. Svcs (1977)

a.) Facts: ct. upheld const. of Pres. Recordings & Mats. Preservation Act which gave GSA auth. to take custody of Nixon’s papers & tapes & preserve those mats. w/ hist. valule-b/4 this happened Nixon had arranged for his papers to be left w/ library near home-Act repudiated/violated prev. depository agmt.

b.) Nixon sued claiming what he did w/ his papers was exec. resp. not for cong. to det.

49

c.) ct. held 7-2 not a violation of sep. of powers, Pres. Carter had signed bill into law & atty. gen. had encouraged it-test was same as in Morrison: does act interfere w/ exec. functions? -said no, exec. authorized this even though diff. exec.-later held to be an unconst. taking though req’g compensation

d.) 2nd Issue: did act violate presumptive exec. priv. in US v. Nixon-ct said no b/c Act directed GSA to consider claims of priv. & to return purely priv mats

e.) Burger dissented, violation of sep. of powers & compromise of exec. ability to communicate w/ candor

-one result of all the sep. of powers quarrels b/t exex. & leg. increased power of judH. The War Power1. Hamdi v. Rumsfeld (2004) – Exec. Detainment of Citizen w/o Process

a.) Facts: week after 9/11 Cong. passed AUMF auth. pres. to use all nec. force agst. those who aided terrorist attacks, US sent forces to Afghanistan where Hamdi a born US cit. was captured, Hamdi moved to Afg. only a few months prev., spent 3 months at Guantanimo b/4 discovery of citizenship, moved to US, father filed for writ of habeus-in dist. ct. govt. provided declaration from DOD official Mobbs as only evid. stating Hamdi

affiliated w/ Taliban & had received weapons training claimed Hamdi’s Taliban unit surrendered & he surrendered his rifle at time, interrogated labeled enemy combatant

-Hamdi detained 2 yrs. in US b/4 habeus filed by father, no counsel, no hearingb.) issues: 1. whether pres./exec in circs. post-9/11 has power to detain US citizens w/o

process and 2. if so whether that detainment is subj. to jud. rev.c.) Govt.’s Primary Claims: auth. to detain Hamdi under art. II exec. powers, claimed

powers over foreign rels., conduct war, commander & chief entitled him to detain Hamdi during period of war agst. terror, contended irrelevant he’s a citizen-govt’s rationales for detainment: 1. incapacitation, 2. interrogation, arg. not punishmenti.) Gen Rule:US cits. can’t be detained w/o hearing/counselii.) Habeus Corpus - only writ enshrined in const., can only be suspended in cases of

rebellion or invasion, stated in leg. powers, only Cong. can suspend it iii.) Detainment Stat.: Cong. expressed itself in leg., passed stat. in reaction to Jap.

internment camps, “no US cit. can be detained by the US w/o auth. of Cong.” d.) Govt.’s 2ndary position accepted by plurality: AUMF enabled detention under the stat.

via auth. of use of all nec. force, govt. arg. for broad interp. of AUMF despite lack of lang. abt. detentioni.) Plurality per O’Connor Rejects Govt’s Some Evid. Std.: where US cit. is detained &

brought to US govt. must make some showing that detainment is validii.) Process Afforded Hamdi by Plurality: govt. must say why they’re detaining him,

provide neutral tribunal, grant counsel, purp. of hearing would be to rebut govt.’s evid. -ct. afforded this but not to extent of ord. crim. trial: allowed hearsay evid., presumption in

favor of govt., burden of rebuttal on detaineeiii.) Military Tribunal: usual presumption is that habeus request will be heard in ct. but here

O’Connor says military tribunal may suffice to provide essential rt. to know govt.’s case, rt. to rebut, & rt. to counsel

iv.) Refs. to Steel Seizure Case: O’Connor doesn’t pass directly on Art. II arg. but does implicitly say state of war isn’t blank check to exec. citing Steel Seizure

e.) Souter & Ginsburg concurring in part & dissenting in parti.) agrees govt. doesn’t have auth. to detainee Hamdi indef., but disagrees that AUMF

auth. detention under 4001(a) -4001(a) enacted to repeal detention act of 1950 auth. atty. gen. to detain anyone in time of

emergency suspected of involvement in espionage/sabotage

50

-4001(a) enacted to prevent repeat of Jap. internment and to bar vague exec. auth. like that used in Jap. internment cases explicit Cong. auth. detention nec.

- if nat. security interests justify depriving indiv. cits. of their rts. must be declared in clearest lang. by Cong. which is lacking here

-AUMF doesn’t auth. detention no legal basis for detention ii.) supports plurality’s remand only on basis of granting Hamdi some process even

though not released*-if there is to be a remand hearing, he accepts/joins in plurality that cit. “enemy

combatant” being held in US should 1. get at min. basis for govt. detention, 2. fair opp. to rebut, 3. neutral decision maker, & 4. counsel (total 6 justices agree on this)

*-concurring justices disagree w/ plurality on presumption of validity of govt.’s actions or that habeus corpus can be litigated b/4 military tribunal must be b/4 ct. (these ideas only have 4 justices thus not law)

f.) 2 Cases over which Justices Fight:1. Ex Parte Milligan (1866) – editor critical of reconstr. govt. tried b/4 military commission,

S. Ct. held when civilian cts. are open it is civ. cts. that must try civilian even if arrested by military

2. Ex Parte Querrin (1942) – German saboteurs arrested in Long Island & executed, one was US cit. Q. whether cit. could be tried by military commission? S. Ct. held cit. didn’t have to be tried by civ. ct.

-all the diff. sides use these cases in various ways/distinguish themg.) Scalia & Stevens dissenting – very formalistic reading of Const.

-under Suspension Cl. Hamdi entitled to Habeus hearing unless: 1. govt. charges him w/ criminal treason & subjects him to reg. proceedings, 2. Cong. suspends Habeus

-since govt. has done neither must be released -says plurality using mr. fix it mentality, changing rules of const., see prob. w/ suspension

of writ & govt. action, ct. wants to uphold govt. & essentially writing their own stat.-scope of his op. only applies to US cits. detained w/in US

h.) Thomas dissenting-although approp. for ct. to det. initial q. of whether pres. has auth. ct. doesn’t have the

competence/knowledge to make det. nec. in this case Hamdi should get no jud. proc -says US at war, issue whether someone properly apprehended on foreign field of battle

classified as enemy combatant q. which branch is approp. branch to det. who is enemy combatant? should every

combatant captured in Afg. on battlefield be given trial?-cts. simply not competent to make these decisions, all pt. of pres.’ art. II powers-says looking to structure of const. these powers belong to commander & chief-position based on pres.’ inherent auth. ~ Steel Seizure Case-Suitor said branch in charge of security shouldn’t be in charge of liberty – branches

have diff. resps. ensuring liberty is resp. of cts.-Thomas’ response – cts. not competent to make these decisions-possible response that cts. may not be competent to make these dets. on battlefield but once

someone held for 2 yrs. in US w/o process cts. competent

51