con law outline for final

8/2/2019 Con Law Outline for Final

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THE JUDICIAL POWER

(The Supreme Courts Authority)

Judicial Power, Generally - Article III 1- The judicial power of the United States, shall be vested in on Supreme Court, and insuch inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferiorCourts, shall hold their Offices during good behavior, and shall, at stated times, receive for their services, a compensation,which shall not be diminished during their continuance in office.

Judicial Review The Supreme Court has the power to invalidate statues that are found unconstitutional.Marburyv. Madison. Includes:a) Cases arising under the Constitution or federal statutesb) Cases of admiraltyc) Cases between 2 or more statesd) Cases b/w citizens of different statese) Cases b/w a state or its citizens and a foreign country or foreign citizensf) Congress Control of Federal Judicial Powerg) Control of Supreme Court Docket

State Law Review - This includes reviewing and invalidating state laws that are inconsistent or repugnant to the US.Const, as inMartin v. Hunter's Lessee. The justification is uniformitybetween the states in adheringthe the Constitution.

Arguments for Judicial Review

a) Judicial Expertise - "It is emphatically the province and duty of the judicial department/branch to say what thelaw is." This also speaks to why we don't allow judges to rule on political questions: theyspeak from judgment, not will. See Political Question Doctrine under Exceptions.

b) Institutional Logic - It wouldn't make sense for Congress to have the power of judicial review, because theywould just find all their rules to be constitutional (else they wouldn't have passed them.)Notes: (Counter) There would still be presidential veto; (Counter-Counter) they would stillall be elected, and the point of the Constitution may indeed be anti-democratic in nature.

Democratic Theory of the Constitution - The Constitution is supposedly the voice of the sovereign/the voice of thepeople. We the people dont always trust ourselves to make the right decisions. Therefore we have the

Constitution as a self-imposed paternalism. It restrains us from acting in certain ways that we will regret inhindsight.

Anti-Democratic Theory Judicial Review should be anti-democratic. Our founders were all white, land owning men.Still the constitution is designed to protect the minority. The reason the framers wrote the constitution downwas because they feared the will of the elected officials to listen to the majority who votes for them. Therefore,the members of congress would decide based on the votes they get. The whole point of having a constitution isto have limits on political actors to act.


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Judicial Supremacy Doctrine Under this doctrine, decisions of the court interpreting the Const. Are the

supreme law of the land for purposes of Article VI of the Const, and are therefore binding on all state officers.Cooper. V Aaron.

In Cooper v. Aaron , the SCOTUS states that "the federal judiciary is the supreme in the exposition of the law ofthe Constitution," and that the Supreme Court's interpretation of the Constitution is bindingon statelegislatures and executive and judicial officers.

Note: This is merely an assertion by the Court, they do not actuallyhave supreme power:a. Court must rely on other political powers to enforce their decisions.b. Court has no weapon available to battle presidential and congressional defiance. What they have is

the weapon of respect. Without the support of the people their decisions would mean nothing. Court is alwaysmindful of risk of expressing their authority with judicial supremacy/review.

Historical Responses to Judicial Review and Supremacy:

1. Amend the Constitution2. Replace Justices

Why Has the Constitution Almost Never Been Amended?1) The Constitution purports that there are some provisions that can NOT be amended.

E.g., Can NOT amend the provision that all states get 2 senators(2) Requires a degree of political and geographical consensus that is difficult to achieve.

Article V of the Constitution permits amendment of almost every provision, but requires Congress to proposeamendments by a 2/3 vote by Congress for ratification by of the state.

(3) A political culture of self-restraint has arisen toward altering the founding federal documentsThe Constitution has protected general rights and principals for many years, i.e., ain't broke, why fix?

What Powers Do Legislative / Executive Having in Opposing the Supreme Court? As long as the President andCongress dont directly defy an order of the court, they should be able to respond and check the power of theCourt. However, At the same time, we want to ensure that the Court can protect the minority by issuingdecisions that are binding.

The President:

The President cannot ignore a direct order of the court / presidential non-acquiescence is intolerable.a) The Supreme Court cannot impose a gag order on the Presidentb) The President is allowed to use the prospect of the exercise of his appointment of federal judges to voice his

opinion against the Courts ruling.c) Under a broad reading of Marbury (the true holding), the President must follow the Courts interpretation

of the Constitution, despite his individual interpretation.d) Under a narrow reading of Marbury (NOT the true holding), the President could rely on his own

interpretation of the Constitution as long as it doesnt directly violate an order of the court

Congress: Congress can NOT re-enact the same bill that was struck down in a Supreme Court decision


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Exceptions and Obstacles to Judicial Power

I. Political Question DoctrineII. Cases and Controversies Requirement / Advisory OpinionsIII. Congressional Control of Court Jurisdictions

Political Question Doctrine Some constitutional questions are non-justiciable, pursuant to the P.Q. Doctrine.

Determining whether a political question exists in any given case depends on the following factors:1) Is there a textually demonstrable commitment in the Constitution of the issue to Exec. Or Legis.?

A case will be found to pose a non-justiciable political question if it raises an issue whose determination is clearlycommitted by the Constitution to another branch of the federal government rather than the judiciary.

2) Are therejudicially discoverable and manageable standards for resolving the question?An issue may be found to be a non-justiciable political one if there are no manageable standards to guide thejudiciary in deciding that issue.

3) Does resolution of the question call for policy decisions inappropriate for judicial resolution?4) Will resolution of the question express a lack of due respect for other branches of government?5) Is there an unusual need for unquestioning adherence to a political decision that has already been made?6) Is there a potential for embarrassment from inconsistent resolutions of the issue by the court and one or

more of the political branches?

Note: Bakers 6 factors give the court a large amount of discretion to find a political question. The flexibility of the 6 factors can beused as an appropriate route to take the Court out of the political situations in which they shouldnt be involved / willinevitably damage their legitimacy and view in the public.

Political question doctrine may be more of a SPECTRUM:

Extreme Deference (Presidential veto) Middle of the Spectrum No Deference(Passage of Unconst. law)

Court wouldnt get involved at all Most cases fall here / See, e.g., Soutersconcurring opinion in Nixon

Court would get involved and substituteits judgment

Case Comparison:Baker v. Carr andNixon v. United States:Baker v. Carr (1962)Facts - Charles Baker (P) was a resident of Shelby County, Tennessee. Baker filed suit against Carr, the Sec of State of TN. Bakers

complaint alleged that the TN legislature had not redrawn its districts since 1901, in violation of the TN Const. which

required redistricting every 10 years. Baker, who lived in an urban part of the state, asserted that the demographics of thestate had changed shifting a greater proportion of the population to the cities, thereby diluting his vote FourteenthAmendment.

Issues - Do federal courts have jurisdiction to hear a constitutional challenge to a legislative apportionment?Holding -Yes. Federal courts have jurisdiction to hear a constitutional challenge to a legislative apportionment.

The P.Q. doctrine is based in the separation of powers and whether a case is justiciable is determined on a case

by cases basis. The court held that this case was justiciable/ did not present a political question . The case did not presentan issue to be decided by another branch. The court noted that standards under the Equal Protection Clause were welldeveloped and familiar, and it had been open to courts since the enactment of the 14th Amendment to determine if an act isarbitrary and and reflects no policy. When a question is enmeshed with any of the other two branches of the government, itpresents a political question and the Court will not answer it without further clarification from the other branches.Nixon v. United States (1993) (NOT 1974 with Richard Nixon)

Facts - Nixon, a Federal Judge, was convicted of a felony, perjury. The House of Reps voted three articles of impeachment;

impeachment in the Senate followed. A Senate committee heard the evidence and reported its findings. The Senateconvicted Nixon and sought to remove him. Nixon challenged in federal court on the ground that the rule violated theimpeachment clause of the Constitution, which declares that "the Senate shall have the sole Power to try allImpeachments."

Issue Is Nixon's claim --the Rule violates the Impeachment Trial Clause -- justiciable, i.e., appropriate for judicial resolution?

Holding - No. The question of whether or not the Senate rule violated the Constitution was non-justiciable since the Impeachmentclause expressly granted that the "Senate shall have sole Power to try any impeachments." The clause laid out specificregulations that were to be followed and as long as those guidelines were observed the courts would not rule upon thevalidity of other Senate procedures regarding impeachments. Court observed that while it was the "ultimate intrepreter ofthe Constitution," a matter would be deemed nonjusticiable when there was "a constitutional commitment of the issue to acoordinate political department."


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Cases and Controversies Requirement The Judicial power under Art. III extends only to cases and

controversies, and accordingly, the court lacks the authority to issue advisory opinions about the properresolution of abstract legal questions without an actual dispute between adverse litigants.Note: The Cases and Controversies Req't also precludes Congress from conferring jurisdiction on the federalcourts to decide abstract legal questions. SeeMuskrat v. United States.

Ripeness (When) - not yet blossomed into actual controversies; e.g. cannot file a lawsuit enjoining Congress frompassing a law that would hurt your business; there is no legal obligation yet imposed on you. MUST BEACTUALLY AFFECTED.

Mootness (When) - Cases that are no longer live; the parties no longer have anything at stake (e.g. improper detentionwith the sole remedy asked to be released, and you are released while your action is pending; however, couldseek to recover damages)

Standing (Who) - In order for a Federal Court to have authority/jurisdiction, the plaintiff must allege:1) That he has suffered (or will suffer) an injury in fact*; and,2) That injury is fairly traceable to the challenged conduct**; and,3) That injury is redressable by a favorable decision

*For an injury in fact the plaintiff must assert something more than simply a general grievance.**To satisfy the causation prong, the injury must not be unduly attenuated or speculative.(SeeAllen v. Wright)


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Congressional Control Over Federal Court Jurisdiction/SCOTUS PowerTextual Basis - Section 2, Cl. 2 says that the S. Ct. has appellate jurisdiction subject to such Exceptions, and under such

Regulations as the Congress shall make. Further,Art III Section 1 provides that federal judicial power shall vest in theSupreme Court and in such inferior Courts as the Congress may from time to time ordain and establish." Therefore, thelower federal courts do not even exist until Congress creates them."

Congress thus has the power by statute to limit opportunities for judicial review by restricting the jurisdiction of

both the federal courts and the Supreme Court.

Ex Parte McCardle (Congress Has Some Power to Control Boundary of Sup. Ct. Jurisdiction)Facts - After the Civil War, Congress imposed military government on many former Confederate States by authority of the Civil War

Reconstruction Acts. McCardle (D) was a Mississippi newspaper editor held in military custody on charges of publishinglibelous/inflammatory articles. McCardle filed a habeas corpus writ claiming that Congress lacked authority under theConstitution to establish a system of military government. The Act authorized fed. courts to grant habeas corpus to personsheld in violation of their constitutional rights and granted the Supreme Court the authority to hear appeals. The circuitcourt denied McCardles habeas corpus writ but the S.C. sustained jurisdiction to hear an appeal on the merits. Afterarguments were heard, Congress passed an act repealing the portion of the 1867 Act that allowed an appeal to the S.C. andthe exercise by the Supreme Court of jurisdiction on any such appeals, past or present.

Issues - (1) Does Congress have the power to make exceptions to the Supreme Courts appellate jurisdiction in cases in which it hasalready granted jurisdiction?(2) Must the Court always first determine if it is has jurisdiction to review a case?

Holdings -(1) Yes. The Constitution gives the Supreme Court appellate jurisdiction, but it gives Congress the express power to

makeexceptions to that appellate jurisdiction.The court held that appellate jurisdiction of the Court is not derived from actsof Congress, but from the Constitution, and is conferred with such exceptions and under such regulations as Congress shallmake. The court held that when Congress enacts legislation that grants the Supreme Court appellate jurisdiction over finaldecisions in certain cases, it operates as a negation or exception of such jurisdiction in other cases.(2) Yes. The Court must always determine if it is has jurisdiction. In this case, the repeal of the act necessarily removedjurisdiction.

Pros and Cons of Checks on the Supreme Court's Power -

Negativesa) De Facto reversal of SCOTUS precedentb) Essential Functions - If Congress can strip the Court of itspowers, then the Courts check on Congress actions under theConstitution / protection of the minority from the tyranny of themajority is eliminated.

c) Uniformity / Rule of Law - The Constitution would meandifferent things in different placesd)Anti-Democratic Value -We dont want to leave to Congressthe sole responsibility to protect the minority, because theyrepresent the majority.

Positives

a) Power Check - The power to strip jurisdiction is an importantcheck on the Courts powerb) Democratic Values - The Court is not elected, and thus lacksan essential democratic element.

Other Methods of Checking the Court Besides Jurisdiction StrippingA) Power of Appointment - The President nominates Justices to the Supreme Court

Counter-Arg - Its difficult to predict how judge will rule in the future / justices take very seriouslystare decisis and prior precedent / appointments are infrequent because justices serve for life.

B) The Senate Must Confirm Appointments - Appointment will not be effective unless the President obtains the advice and

consent of the senate.

C) The Impeachment Process - Congress has the power to impeach federal judges.

Counter-Arg - Its a difficult process because you need a supermajority in order to convict.D) Amendments to the Constitution - Article V provides for the process of adopting amendments to the Constitution

Counter-Arg - The Constitution does NOT get amended frequently (only 4 times), and achievingsupermajorities in Congress as well as the States is difficult

E) Regulating the Court's Procedure - Congress can Regulate the Size of the Court / Set the time of their Meetings

Counter-Arg - May seem as an interference with the independence of the judicial branchF) The "Bully Pulpit" - If there are enough attacks on the Courts decision, it can affect their future decisions / lead to reversals

G) The threat of Non-Acquiescence - Not an effective technique though b/c people DO hold the Court as the supreme law of the

land, and if the political branch does not follow Court decisions, the public will view them as lawless

H) Budget Constraints - Cant diminish a justices salary, but can reduce it


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Federalism (Limits on state and local government power because of the existence of a national government)

I. Scope of the Federal Powers/General Notes

II. The Commerce Clause

III. The Taxing and Spending Powers

IV. State Autonomy and Congressional Power to Limit States

V. Federal Limits on State Power

VI. The Dormant Commerce Clause

Federal Power, GenerallyEnumerated Powers Doctrine - Congressis limited to those powers enumerated in the Constitution.

Note: Through the Necessary and Proper Clause, Congress has implicit powers outside its enumerated ones.Accordingly, Congress may seek to achieve any end that is legitimate under its express powers as long as its chosen

means are reasonably adapted to achieving that end McCulloch v. Maryland. The Constitution also imposessome implied limits on the powers of the states which lack power to tax instrumentalities of the federalgovernment McCulloch v. Maryland

General Notes on Commerce PowerCongresss power under the Commerce Clause in Plenary Gibbons v. Ogden

Pursuant to that authority, Congress may regulate:(1) The use of the channels of commerce(2) The instrumentalities of commerce, or person or things in interstate commerce(3) Intrastate economic activity that Congress might rationally believe substantially affects interstate commerce

See, e.g., United States v. LopezWhen determiningwhether the local activity that Congress seeks to regulate has the requisite connection to interstate

commerce, the court considers all of the regulated activity in the aggregate. Wickard v. FilburnCongress generallylacks authority to regulate local, non-economic conduct, on the theory that the activity has a

substantial effect on interstate commerce United States v. MorrisonIn determiningwhether local activity that Congress seeks to regulate is economic in nature, the court sometimes

considers other conduct for which the activity can serve as a substitute Gonzalez v. Raich, Wickard v. FilburnAnd at other times the court appears to apply a more stringent test United States v. MorrisonWhen Congress seeks to regulate local, non-economic conduct, the court will consider congressional findings about the

connection between the regulated conduct and interstate commerce, andwhether the statute contains ajurisdictional element, such as a provision limiting the statute to conduct affecting commerce NLRB v. Jones &

Laughlin Steel Corp.Note: It is not clear whether findings and a jurisdictional element can save such a statute

By contract, when Congress creates a scheme that directly regulates economic activity, the court will not excise individualapplications of the scheme even when it applies to local, non-economic conduct Gonzalez v. Raich

General Notes on Power to Tax and SpendCongress has the power to tax and spend for the general welfare, although Congress cannot rely on its power to tax when

it seeks to regulateby imposing a tax as a penaltyconduct not otherwise within the reach of Congressaffirmative powers Child Labor Tax Case

The court will invalidate a tax on this ground only if it is extraneous to any tax needthat is, effectively, only if it does notproduce any revenue United States v. Kahringer

The exercise of the spending powermust be in pursuit of the general welfare (though the court defers substantially to thejudgment of Congress in this regard)

Pursuant to its power to spend for the general welfare, Congress may seek to accomplish objectives that it could nototherwise reach pursuant to its other enumerated powers. Congress may do this byimposing conditions upon thereceipt of federal funds by the states, as long as the following requirements are met:

1) Conditions imposed upon the states receipt of federal funds must be unambiguous

2) Conditions must be related to the federal interest in the spending program

3) The conditions must not violate any independent constitutional bar

4) The financial inducement offered by Congress must not be so coercive as to pass the point at which

pressure turns into compulsion South Dakota v. Dole


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Federalism, Generally (cont.)

General Notes on Federal Power to Regulate StatesWhen Congress acts pursuant to its powers under Article I, it mayregulate the states in the same fashion that it regulates

private actors. Garcia v. San Antonio Metropolitan Transit Authority(1985)However, Congress cannot compel a state to enact or administer a federal regulatory program New York v. United States,

Printz v. United StatesStates generally cannot regulate the House and Senate by restricting their membership.Article 1 sets forth the only qualifications for members of Congress, and the states may not attempt to impose additional

qualifications by limiting the ability of candidates to have their names appear on general ballots U.S. TermLimits, Inc. v. Thornton

Under the supremacy clause, federal law can preempt (i.e. supplant) state law expressly or impliedly.Congress impliedly preempts state law in two ways:

Field Preemption if Congress evidences an intent to occupy a given field, any state law falling within that field is preemptedConflict Preemption if Congress has not entirely displaced state regulation over the matter in question, state law is still preempted

to the extend it actually conflicts with federal law Silkwood v. Kerr-McKee

General Notes on Dormant Commerce Clause (DCC)The Dormant Commerce Clause (DCC) doctrine says that a state law affecting interstate commerce is invalid in the

following situations:1) The state law discriminates against interstate commerce either on its face or in its effects, unless the

discrimination is necessary to further a legitimate state interest Dean Milk v. City of Madison2) The state law imposes a burden on interstate commerce that is excessive in relation to legitimate local

interests South Carolina State Highway Department v. Barnwell Brothers, Southern Pacific Co. v. Arizona,Kassel v. Consolidated Freightways Corp.

In applying these limitations under the dormant commerce clause doctrine, the court has followed the following principles:

1) Legitimate state interests include protecting health and safety and conserving natural resources, but they donot include protecting local businesses from competition Dean Milk v. City of Madison

2) Or isolating the state from a problem common to many states (like disposing of trash or avoiding traffic onstate highways) Kassel v. Consolidated Freightways Corp., City of Philadelphia v. New Jersey

3) The term interstate commerce has the same meaning for determining limitations on states under thedormant commerce clause doctrine as it does for determining the power of Congress under the

commerce clause City of Philadelphia v. New Jersey, Camps Newfound/Owatonna, Inc. v. Town of Harrison,

Maine4) Under the market-participant exception to the commerce clause doctrine, a state may discriminate against

interstate commerce when buying or selling goods or services in the market (as opposed to regulating

the market) South-Central Timber Development, Inc. v. Wunnicke5) In legislation enacted under its power to regulate interstate commerce, Congress may consent to state laws

that would otherwise violate the dormant commerce clause doctrine Prudential Life Insurance Co. v.Benjamin

6) Even if discriminatory state laws do not violate the dormant commerce clause doctrine, they may violate theEqual Protection Clause Metropolitan Life Ins. Co v. Ward


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The Scope of Federal Power

Federalism - Federal System - The US has a federal system, in which the national government and the government ofeach of the states co-exist.

Federal Government is one oflimited, enumerated powers, and the three branches of the government may only

assert powers specifically granted by the United States Constitution.

EXCEPT - "Necessary and Proper" Clause - Congress has the power to make all laws that are necessary and properfor carrying out its enumerated powers. So, if Congress is seeking an objective that falls w/in the specificallyenumerated powers, Congress may use ANY means that is rationally related to the objective being sought,and that is not specifically forbidden by the Constitution

The Concept of FederalismConceptual Basis - The allocation of power between, and among, the states and the federal government. Premised on

the idea that power should sometimes be de-centralized and divided.States rights - The limits on the federal government because of the existence of the states

In writing the Constitution, the framers were influenced by2 sets of concerns:Articles of Confederation - States were too strong, while the Central government was too weakDespotic Government - States were too weak; Central government much too strong

There is no general federal police power(no right of the federal government to regulate for the health, safety or general welfare

of the citizenry, like the states have), so instead, each act of federal legislation or regulation must come w/in oneof the very specific enumerated powers (i.e. the Commerce Clause, the power to tax and spend, etc.)If Congress is seeking an objective that falls w/in the specifically enumerated powers, Congress may use any

means that is rationally related to the objective being sought, and that is not specifically forbidden

by the Constitution.

Madisons Federalist No. 45

Thesis - We need a strong central government to protect the nation, wage battles during times of war, and protect ourfreedom. The government is a SERVANT to the people and not vice versa. States rights are just a means forserving that end. The Constitution does NOT erode states rights. Federal power is limited by the Constitution,so the federal government cannot overreach its authority. Power not given to the federal government isreserved to the states. The states play an essential STRUCTURAL ROLE in the federal government, through 2Senate reps per state and their central role in electing the President through the electoral college

Arguments for a De-Centralized v. Centralized Government

Pro-Decentralized Government Pro-Centralized Government

Maximizes Overall Welfare - A federal solution is almost alwaysa uniform solution, but conditions on the ground varyfrom state to state. If we had smaller communities, theycould better channel that money to fit peoples needsand could offer better services to people

Democratic Values - If you represent less people, you are moreresponsive to them.

Promote Liberty - Communities that are smaller can decide forthemselves what rights they most prize and allocateaccordingly.

Promote Liberty -We dont want to leave it to individual statesto protect essential rights

Nationhood - There are certain fundamental values we hold as anation that should be uniform. If you concentrate powerin a large central government, the power of onehomogenous faction will be diluted and wont be able toimpose their views on others

Maximize Welfare - If will benefit the entire nation if the federalgovernment can regulate the economics of the country.


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Federalism (Cont.)Specific Powers

Article 1, Section 8 contains 18 clauses granting power to Congress, including the power to:1) Lay and collect taxes (Taxing Power)2) Provide for the defense of the country3) Borrow money on the credit of the US4) Regulate commerce w/ foreign nations, and among the several states (Commerce Power)

5) Regulate immigration and bankruptcy6) Establish post offices7) Control the issuance of patents and copyrights8) Declare war9) Pass all laws needed to govern the District of Columbia and federal military bases10) Make all laws which shall be necessary and proper for carrying into Execution the foregoing

Powers, and all other Powers vested by this Constitution in the Government of the UnitedStates

Article II Defines the powers and duties of the PresidentArticle III Confers the judicial power (and gives Congress power to control Supreme Court jurisdiction)

Note: Many of the amendments specifically give Congress the power to enact supporting legislation (i.e. 14th)

McCulloch v. Maryland (Natl Bank Charter Valid b/c Bears Reasonable Relation To Enumerated Powers)Facts - Maryland (P) enacted a statute imposing a tax on all banks operating in Maryland not chartered by the state. The statuteprovided that all such banks were prohibited from issuing bank notes except upon stamped paper issued by the state. Thestatute set forth the fees to be paid for the paper and established penalties for violations.

The Second Bank of the United States was established pursuant to an 1816 act of Congress. McCulloch (D), thecashier of the Baltimore branch of the Bank of the United States, issued bank notes without complying with the Marylandlaw. Maryland sued McCulloch for failing to pay the taxes due under the Maryland statute and McCulloch contested theconstitutionality of that act. The state court found for Maryland and McCulloch appealed.

Issues - (1) Does Congress have the power under the Constitution to incorporate a bank, even though that power is not specificallyenumerated within the Constitution?(2) Does the State of Maryland have the power to tax an institution created by Congress pursuant to its powers under theConstitution?

Holding - (1) Yes. Congress has power under the Constitution to incorporate a bank pursuant to the Necessary and Proper clause

(Article I, section 8). The structure of the Constitution itself is that there is a list of powers. Particular powers can beimplied from the explicit grant of other powers. Post-ratification historyshows that the first Congress enacted the NationalBank bill. It was signed byPresident Washington / Jefferson and Madison eventually thought it was constitutional. Thepre-ratification original meaning/intent of omitting the word expressly in the 10th Amendment was intentional at the timeof drafting. Thus, if the drafters had wanted to limit Congress to powers not explicitly stated, it would have said so.

Political Theory- Sovereignty rests with the people and the people gave their sovereignty to the federal government as an organof the people. The powers come directly from the people, not from the states qua states. The logic of a Constitutional Gov'tgives Congress flexibilityto react to problems that couldnt have been fathomed at the time it was drafted. The institutionalrole of the Const. as a broad and general guidebook to be interpreted at a higher level of generality.

Functional/Practical - If we cant imply the power to do other things from the existence of an enumerated power, then theenumerated powers are pointless.Article I gives Congress the power to create post officers, but it did not give them thepower to hire employees, buy stamps, etc. But, it cant carry out the power any other way, so powers must be implied.

Under the Necessary and Proper Clause, Congress has the power to take action to carry out their enumerated powers, as it isplaced in Congress list of affirmative powers in Article I and it does NOT use absolutely necessary or indispensable

language.ALTOGETHER, where the end is legitimate and within the scope of the Constitution all means that areappropriate and plainly adapted to that end.

Since the ends are enumerated in the Constitution (i.e. power to raise revenue, to borrow money, to regulate commerce, etc.),

and the Bank is a necessary means to achieve those ends, the act of incorporating the bank IS constitutional

(2)No. The State of Maryland does not have the power to tax an institution created by Congress pursuant to its powers under theConstitution. Although both the federal and state governments have the power to tax and there is no express provision ofthe Constitution states that States cannot tax the federal government, Marshall concludes that Maryland can NOT tax thefederal government. It is Implicit in the structure of a federalist government that the Constitution and the laws madepursuant to the Constitution are supreme and cannot be controlled by the law of the States. The power to tax is the powerto destroy, and giving the states the power to tax the federal government is effectively giving the states the power to destroyit. Under a Political theory, a part can not impose a tax on the whole because the part does not politically represent thewhole.


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The Commerce Power: The Early Years (pre-1933)

I. The Early Years (Pre - 1933) (Gibbons, The Shreveport Rate Case, Hammer v. Dagenhart, Carter Coal Case)II. The Middle Years (1937-1995) (NLBR v. Jones & Laughlin, United States v. Darby, Wickard v. Fillburn, Heart of Atlanta

Motel v. U.S. & Katzenbach v. McClung)III. Until Now (95 - Present

The Commerce PowerArticle I, 8 - Gives Congress the power to regulate commerce with foreign nations, and among the several states,and with the Indian tribes

The national commerce was supposed to afford the means to end hostile state restrictions, retaliatory traderegulations, and protective tariffs on imports from other states

Under the Articles of Confederation, Congress had no power to regulate commerce among the statesThe Commerce Clause has warranted a major extension of federal power in the modern era

The Commerce Clause serves 2 distinct functions:(1) It acts as a source of congressional authority(2) It acts, implicitly, as a limitation on state legislative power(the DCC)

Gibbons v. Ogden (Justice Marshalls Expansive Interpretation of Commerce Clause & Its Terms)Facts - NYState legislature granted Ogden the exclusive right to operate steamboats in NY waters, BUT Gibbons operated acompeting steamboat service in violation of Odgens monopoly, but licensed by federal law as a vessel to be employed inthe coasting trade.

Issue - Supremacy Clause says federal law governs, but is the federal law constitutional? Did Congress have the authority underthe Commerce Clause to pass such a law?

Holding - The Court held that Ogdens claim under NYs monopoly law was barred b/c the federal statute under which Gibbons wasauthorized to engage in the coastal trade was constitutionally valid under the Commerce Clause

Justice Marshall gave an expansive and broad interpretation of Congress commerce power underlying the federal statute:Commerce - Includes ALL commercial intercourse, including commercial navigation and the shipping of goods andpeopleAmong the States - Means intermingled with

Marshall chose the middle ground (not narrow between meaning, limiting Congress power, or broad in themidst of meaning, giving Congress almost unlimited power to regulate commerce). Thus, Congress can in factregulate matters that are intrastate IF they happen to have an effect on interstate commerce , but can NOTregulate commerce that is solely conducted within one state and only affects that state

Regulate - The power to prescribe the rule to which commerce is to be governed

This power is full and complete, only limited by other parts of the Constitution. Thus, Marshall implicitly rejected the argument thatthe 10th Amendment acts as an independent limit on Congress power to regulate interstate commerce

Economic Regulation - The Origins of Substantial Economic Effects ApproachDuring the time period from 1880 to 1937, Congressional regulation was found to fall w/in the Commerce power so

long as the activities being regulated had a substantial economic effect upon interstate commerceThe Shreveport Rate Case (Congress Can Regulate Intrastate Carriers w/ Sub. Effect on IC)Facts - The ICC ordered several railroads to end their practice of setting rates for hauls between points WITHIN Texas

proportionately lower than their rates for transportation from Texas points to Shreveport, LouisianaRailroads argued that Congress could not control intrastate charges of an interstate carrier and lacked power toauthorize the railroad to set rates for purely intrastate shipping.

Holding - The Court sustained Congressional authority to reach intrastate rail rates that discriminated against and affected interstaterailroad traffic. Since setting shipping rates that are much lower within state than out of state negatively affects thecommerce of other states by deterring manufacturers from shipping their goods outside the state , the intrastate activityhas a substantial effect on interstate commerce and thus can be regulated by Congress


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Commerce Clause (cont.)

Regulation of Interstate Commerce vs. Manufacture / Production of a ProductE.C. Knight Case (The Sugar Case) (Commerce = shipping and selling, NOT manufacture)

The Court dismissed the governments claim of American Sugar Refining Companys attempt to create a sugarmonopoly, despite the fact that a sugar monopoly would raise the price of sugar and profoundly affect products that includesugar, because Congress did NOT have the power to regulate the manufacture and creation of a product

Congress can regulate the interstate sale and shipping of sugar, but can NOT reach all the way back in the business cycle to

reach manufacturing and production

Police Power Regulations and the Commerce-Prohibiting TechniqueInstead of trying to regulate local activities directly, Congress used the technique of prohibiting interstate transport of certain

items or persons (i.e. commerce-prohibiting technique). This commerce-prohibiting technique was used not only forpure economic regulatory matters, but also for police power or moral regulation. The driving power behind thesestatutes was to regulate basic vices of society but the form of regulation was to prohibit certain types of interstate movement

The Court was substantially more sympathetic to this commerce-prohibiting/police power technique than to direct regulation ofinterstate affairs

Champion v. Ames (Cong. Can Reg Interstate Shipment of Lottery Tickets)Court upheld the Federal Lottery Act of 1895, which prohibited importing, mailing or interstate transporting of lottery tickets (which

were thought of as a social vice)

Since Congress was actuallyregulating the interchange of goods between states, and not interfering w/ intrastate matters reservedfor state control, the Act was constitutional, despite Congress motive, which is irrelevant

Hammer v. Dagenhard (The Child Labor Case) (NO LONGER FOLLOWED)Court struck down a Congressional Act of 1916 (trying to regulate labor practices by regulating the transportation and shipment of

products) that barred the products of child labor from interstate commerce because:Congress was attempting to reach the stage of manufacture despite its lack of authority to regulate activity that comes earlier in the

business cycleThe goods shipped themselves were harmless / not part of the very evil sought to be prohibited (unlike lottery tickets)BUT, the bottom-line rationale for the Courts ruling was(1) Outright judicial hostility to the regulation at issue andParticularly un-willing to allow congressional legislation which was pro-laborThought legislation was an unwarranted interference with the free-market system

(2) The Court was concerned about sustaining statutes like this one would intrude on the states powers reserved in the 10th

Amendment. The majority reasoned that if a prohibition on interstate commerce were permitted in this situation, allmanufacturing intended for shipment would be brought under federal control, encroaching unconstitutionally on the

authority of the states. BUT, how can a regulation exceed the commerce power (implying that it is a power delegated to thefederal govt.) and at the same time be reserved to the states (through the 10 th Amendment), asHammer suggests?

Holmes Dissent - So long as the congressional regulation falls within the power specifically given to Congress (here, the power to

regulate interstate commerce), the fact that it has a collateral effect upon local activities otherwise left to state control

does NOT render the statute unconstitutional. 10th Amendment of NO force (became majority view after 1937)

Court Barriers to the New Deal (Emphasis on Form of Commerce, Not Outcome of Effect)Carter v. Coal Co. (The Mining Case) (Wages/conditions Are NOT Commerce Despite Effect)The Court invalidated the Bitumous Coal Conversation Act of 1935, which established maximum and minimum wages for workers in

coal mines. The Act was found NOT to be a valid use of the commerce power b/c wages, hours of service and working

conditions are NOT interstate commerce, but are related to production (a purely local activity), before sale or distributionafter shipping and sale.

If the conduct itself is not commerce, then it cant be enough, even if it has a substantial effect on interstate activities.Even though the materials produced would nearly all ultimately be sold in interstate commerce, the production does notdirectly affect interstate commerce. Justice Cardozo, dissenting, claimed that the price-fixing provision of the CoalConservation Act was within Congresss power because it had a direct effect on interstate trade.

The Court-Packing Plan - Roosevelts proposal sought congressional authority for him to appoint an additional federal judge foreach judge who was 70 yrs old and had served on the court for at least 10 yrs. Plan was to apply to all levels of the federaljudiciary and provided for a maximum of 15 members on the Supreme Court (i.e. an additional 6 Justices). The plan wasultimately defeated in 1937, however, the switch in time that saved nine resulted in many New Deal plans to be heldconstitutional (against the precedents of Hammer & Carter Coal).


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The Commerce Power (cont.)

II. The Middle Years (Cases from 1937-1995) (NLBR v. Jones & Laughlin, United States v. Darby,Wickard v. Fil lburn, Heart of Atlanta Motel v. U.S. & Katzenbach v. McClung)From 1937-1995, the Supreme Court broadly interpreted the scope of Congress power under the Commerce Clause

beginning w/ the 1937 decision of NLRB v. Jones & Laughlin Steel Corp. The Court has showed a vastly greater

willingness to defer to legislative decisions.

Expanded Substantial Economic Effect - Loosening Nexus Required b/w Intrastate Activity Being Regulated andInterstate Commerce

NLBR v. Jones & Laughlin Steel Corp (Effect on Commerce is NOT Source of Injury = Criterion)Facts - The National Labor Relations Board (NLRB) found that Jones (D), a large steel producer and distributor, had engaged in

unfair labor practices, in violation of the National Labor Relations Act, by discharging employees for their involvement inunion activities, and ordered them to end discrimination and coercion. Jones (D) failed to comply, arguing that the Act wasan attempt to regulate local industry by invading the reserved power of the states and NLBR sought judicial enforcement ofthe order.

Holding - The Court held that the NLRA, as applied to Jones & Laughlin, lay WITHIN the commerce power. Although Jones &Laughlin manufactured iron and steel only in Pennsylvania, it owned mines in 2 other states, operated steamships on the

Great Lakes, held warehouses in 4 states, and sent 75% of its product out of Pennsylvania.Even though hiring and firing decisions are not technically commerce, the discriminatory activity against

employees has an interstate effect (can lead to strikes which would shut down plant and production of coal all over

country/ allowing Jones to pay workers less would result in drop in price of coal / steel nationwide in order for competitorsto compete). Because of this multi-state network of operations, the Court concluded that a labor stoppage of thePennsylvania intrastate manufacturing operations WOULD have a substantial affect on interstate commerce.

Therefore, labor relations at the Pennsylvania plants could constitutionally be regulated by CongressTHUS, even intrastate labor practices may affect interstate commerce if they have a close and SUBSTANTIAL

relation to interstate commerce, thereby giving Congress the authority to regulate labor practices under the CommerceClause. It does NOT matter whether the activity being regulated occurs before, during or after the interstate movementanymore. So long as the regulated activity has a substantial economic effect upon interstate commerce, that activity mayoccur substantially before the interstate movement (i.e. steel production here, where steel might not have been shipped outof state for months after its production) or even long after the interstate commerce

The Court implied that the 10th

Amendment would no longer act as an independent limitation on commerce-clause powers.

The Commerce-Prohibiting Technique (Police Power Regulations) - Substantially Broadened InterpretationUnited States v. Darby (OverruledHammer v. Dagenhart / Discarded Congressional Motivation)Facts - Darby (P), a Georgia lumber producer / manufacturer, challenged an indictment charging him w/ violating the Fair Labor

Standards Act of 1938, which prohibits the interstate shipping of goods made by employees that had not been paidminimum wage or had worked overtime beyond permitted hours per week. Darby challenged Congress power under theCommerce Clause to pass the Fair Labor Act

Holding - The Court held that regulation of activities that have a direct effect on interstate commerce can always be regulated byCongress, despite Congress motivations in passing the statute, such as trying to regulate labor standards and fairpractices. The motive and purpose of congressional regulation of commerce are matters for the judgment of the Legislatureand the Court cannot prescribe limitations on the exercise of its acknowledged power.

The Commerce power extends to intrastate activities that have a substantial effect on interstate commerce. Even

though the regulated activity here wasnt the interchange of goods at the border of the states, it is still within Congresspower if the regulated conduct as a substantial effect on interstate commerce.

Even though Darby (P) is just one local lumber manufacturer, his actions create ripple effects

The Court explained that the 10 th Amendment states a truism that all is retained that has not been surrendered.

Therefore, the 10th Amendment refers us to the list of Congress explicitly enumerated powers, and if the exercise of power fallsunderneath the broad scope of the Commerce Clause, then its constitutional

As the result of Darby, Congress is completely free to impose whatever conditions it wishesupon the privilege of engaging in anactivity that substantially affects interstate commerce, so long as the conditions themselves violate no independentconstitutional prohibition


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The Cumulative Effect Theory - Second Major Expansion of Commerce PowerCongress may regulate not only acts which taken alone would have a substantial economic effect on interstate

commerce, but also an entire class of acts, if the class has a substantial economic effect (even though one actw/in it might have virtually no interstate impact at all).

Wickard v. Fillburn (Producing Home-Grown Wheat, In Aggregate, Substantially Affects IC)

Facts - Filburn, a dairy farmer in Ohio, sued Wickard, the Secretary of Agriculture, to prevent enforcement of amarketing penalty imposed on him under the Agricultural Adjustment Act of 1938, for exceeding a marketquota for wheat that had been established for his farm. Filburn argued that Congress could not regulate hisprivate consumption because the excess wheat was just for home consumption and NOT used for sale on theopen market for profit

Holding - Despite the wheat being used for private consumption, the Court unanimously sustained Congress power toimplement quotas for private wheat production because, in the aggregate, growing wheat for homeconsumption will have a substantial effect on interstate commerce. Every bushel of wheat Filburn consumesat home is one less bushel of wheat he doesnt have to purchase at the market. Protection of the interstatecommercial trade in wheat clearly falls within the commerce power, and the regulation of home-grown wheat isreasonably related to protecting that commerce

Wickard also stands for the proposition that Congress can regulate purely intrastate activity that is not itselfcommercial (not produced for sale) (used in Gonzales v. Raich)

Using the Commerce Power for Social Ends: The Ban on Discrimination in Public AccommodationsHeart of Atlanta Hotel, Inc. v. United StatesFacts - The Heart of Atlanta motel was a large, 216-room motel in Atlanta, Georgia, which refused to rent rooms to

black patrons, in direct violation of the terms of the act. The owner of the motel filed suit in federal court,arguing that the requirements of the act exceeded the authority granted to Congress over interstate commerce.In response, the United States countered that the restrictions in adequate accommodation for black Americansseverely interfered with interstate travel, and that Congress, under the United States Constitution's Commerceclause, was certainly within its power to address such matters.

Holding - The Supreme Court held that Congress acted well within its jurisdiction of the Interstate Commerceclause in passing the Civil Rights Act of 1964, thereby upholding the act's Title II in question. While it mighthave been possible for Congress to pursue other methods for abolishing racial discrimination, the way in whichCongress did so, according to the court, was perfectly valid.

Having observed that 75% of the Heart of Atlanta Motel's clientele came from out-of-state, and that itwas strategically located near Interstates 75 and 85 as well as two major U.S. Highways, the Court found thatthe business clearly affected interstate commerce. As such, it therefore upheld the permanent injunctionissued by the District Court, and required the Heart of Atlanta Motel to receive business from clientele of allraces.

See also, Katzenbach v. McClungHolding - The Court upheld the application of Title II to Ollies BBQ, a family restaurant in Alabama located 11 miles

from an interstate highway. The Court reasoned that racial discrimination in restaurants placed a burden on

interstate commerce b/c it caused a total loss of customers in restaurants, theaters, and like establishments,discouraged black people from traveling if they had no where to eat, and deterred professional / skilled peoplefrom moving into areas where such practices occurred

Basically, the unavailability of accommodations dissuaded blacks from traveling in interstate commerce. Congresswas thereforewithin its power to protect and foster commerce in extending the coverage of Title II only tothose restaurants offering to serve interstate travelers, a substantial portion of whom have moved in interstatecommerce.

Congressional motivations do NOT matter, as long as Congress is regulating interstate commerce. As long as there isa rational basis for a chosen regulatory scheme necessary to the protection of commerce, the Courtsinvestigation is at an end.


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How Searching Should a Judges Review of Congress Exercising of Commerce Clause Authority Be?Rational Basis - The court will uphold a Congressional assertion of power as long as Congress could have rationally

believed that the activity, when viewed in the aggregate, could have a substantial effect on interstate commerceJudicial Restraint - Intervene only when Congress has infringed on individual rightsStrict Scrutiny - Is there a compelling governmental interest to address this Congressional action?


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Recent Cases (Lopez, Morrison & Gonzales)

United State v. Lopez (Cong. Lacks Power To Reg. Local, Non-Economic Act. Based Solely on Effect)Facts Lopez (), a 12th grade student, was arrested for possessing a concealed handgun and bullets at his Texas high

school, in violation of the Gun-Free School Zones Act (making it a federal offense for an individual toknowingly possess a firearm in a school zone), passed under Congress authority under the Commerce ClauseLopez argued that the Act did not regulate interstate transactions, but attempted to regulate the carrying of a

gun, which was probably purchased locally, into a schoolThe Government argued that possession of guns in schools has a substantial effect on interstatecommerce, since violent crime handicaps the education process, resulting in less productive citizenry

Holding - The Court established 3 broad categories of activities that Congress could regulate under the commercepower:(1) Congress may regulate the channels of interstate commerce, including places where commerce actually

occurs. E.g., Highways, waterways, the internet, railroad routes, airway routes. Congress can directlyregulate the sale of goods across state lines or things shipped through interstate transactions. TheLottery and Prostitution cases fall under this category.

(2) Congress may regulate the instrumentalities of interstate commerce, or persons or things in interstatecommerce, even though the threat may come only from intrastate activities. The instrumentalities ofinterstate commerce are things that facilitate commerce. The Shreveport Rate case falls under this

category. Ex: Telephones, internet, planes, railroads, trucks. Gibbons - Congress can regulateradiowaves, stock, and insurance because commerce refers to all forms of intercourse and they rollacross state lines The persons or things in interstate commerce refer to all forms of intercourseunder Gibbons, as long as they roll across state lines

(3) Congress may regulate activities having a substantial relationship to interstate commerce. It is NOTenough that the activity being regulated merely affects interstate commerce, instead the activity mustsubstantially affect interstate commerce.

This final category is the one at issue in this case - The Court held that Congress lacks power to regulate local, non-economic activity based on the notion that, in the aggregate, the activity has a substantial effect on interstate

commerce

Although the Government argued that gun possession in schools does have a substantial effect oncommerce, b/c possession of a firearm in school may result in violent crime, which affects the functioning of

the national economy through costs of crime insured against through the national insurance market, reducesindividuals willingness to travel to areas of the country they believe are unsafe, and reduces the schools abilityto educate their students, who thus become less economically-productive, this gives too much power toCongress. If Congress can reach local, non-economic activity through the Commerce Clause, what cant itreach?

If Court accepts Governments argument, its difficult to find any activity that Congress is w/out the power to

regulateTo support its holding, the Court uses the rationale that its decision:

(1) Is in accord with precedent.(2) Congress, in the statute at issue here, is NOT trying to administer a larger regulatory scheme of

economic activity, but is just trying to criminalize mere possession. Unlike the wheat-growingregulation in Wickard, the regulation here was NOT part of a larger regulation of economic

activity, in which the regulatory scheme would be undercut unless the intrastate activity wereregulated.(3) Under a formalist approach, there is NO jurisdiction element in this statute that ensures on a case-

by-case basis that the firearm was purchased through interstate commerce.Kennedys Concurrence Absent a stronger connection w/ COMMERCIAL concerns that are central to the Commerce

Clause, this intrusion contradicts the federal balance that this Court is obliged to enforce. But, Congress stillhas full power to regulate what are truly commercial transactions, even if the transaction being regulated is avery local one

Thomas Concurrence The substantial effects test is far removed from the original understanding and early caselaw

Breyers Dissent (joined by Stevens, Souter and Ginsberg) - The specific question before us is NOT whether there ulated activit sufficientl affected interstate commerce, but whether Con ress could have a rational basis


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for concluding that the regulated activitysufficiently affected interstate commerce. Congress could haverationally concluded that violent crime in school zonesaffects interstate commerce because reports, hearingsmake clear that the problem of guns is serious.

Majoritys holding creates 3 serious legal problems:(1) Runs counter to modern Supreme Court cases on the Commerce Clause - A single instance of racial discrimination

at a local restaurant, found regulable in Katzenbach v. McClung, had no greater connection w/ interstatecommerce than the instance of gun possession being regulated here.

(2) Majority focuses on the distinction b/w commercial and noncommercial activities, instead of focusing on whether

the activities affect interstate commercial activities. The line is too hard to draw, and the majority drew it in thewrong place here. Congress could rationally conclude that schools fall on the commercial side of the line.

(3) The Courts holding threatens the legal certainty of an area of law that was reasonably well-settled.Whats the actual test from Lopez?

1) On the face of it, does it affect economic activity? This is the most significant element. Here, the act beingforbidden is merely possessing a gun near school grounds, while an actual economic activity is more like afarmer is using wheat that he grew on his farm, and therefore is not buying it from the national economy (seeWickard)2) Jurisdictional element present?3) Are there anyfindings/tests that indicate affects on commerce?4) Does it impede on traditional areas of state law? (criminal, family, etc)5) Attenuation

Basically, Congress is making a link between an action and commerce that is too remote.

Who Should Police Congress Authority Under the Commerce Clause (further analysis of Lopez)

Pro-Judicial (Lopez Majority / Kennedys Concurrence) Pro-Congress (Breyers Dissent)Institutional Logic Congress will overreach if they police

themselves / need the Court to serve as a check on itspower.

Protect Liberty Majoritarian rule can be threatening to oursystem

Judicial Expertise - Judges have experience in interpreting thelaw and are experts in their field

Presidential Veto (Separation of Powers) The President hasthe power to veto congressional legislation that seems tooverreach.

Political Safeguard If people do not like whats happening,they can vote their reps. out of office

History of States Rights Individuals need certain protections,but states are not individuals.

Institutional Competence Congress can hold hearings and

collect evidence, whereas the court is limited to partiesin the case

3 Different Approaches to Constitutional Interpretation of the Commerce Clause

View #1: Originalism (Scalia / Thomas) - Commerce Clause should mean exactly what it meant back when theConstitution was ratified in 1789. Changes in the world shouldn't change the powers of thegovernment to act, as the effect of the governments power should be frozen in time. Since Congresspower under the Commerce Clause was limited to a vary narrow scope in 1789, because of whatconstituted commerce back then, Congress can not exceed that original scope of power.

View #2: Majority Opinion in Lopez (Rehnquist) / Kennedy View - In spite of the changes in the world, weshould be faithful to the original balance and place limits on what Congress can do. Congress musthave the ability to reach things that it could not have reached back in 1789, BUT Congress power

under the Commerce Clause can NOT grant unlimited power.View #3: Breyer & Souter View - Because the world has changed, there is nothing that Congress cant reach

today under the Commerce Clause. The Commerce power should be applied to all activities thatsubstantially affect interstate commerce


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Originalism - Pros and Cons

Pros Cons

Consistency in interpretation -We can have confidence in whatthe document means and this meaning will NOTchange.

Democratic Values - The Const. was ratified by the people, andshould therefore bind on all judges.

Higher Law - If the Const. means only what we want it to mean,

it is just a makeview, and not law in its own account.Contract - The Const. is a contract, and this contract specifies

how we can change it if we want to do so.Constraining Judicial Discretion/Activism - Constrains the

ability of judges to impose their views.

Flexibility - The Const. is not a tax code; it is intentionally broad.Indeterminacy - There is no reference to the current issues in

the Constitutional Debates. Therefore, Originalists justget to pick and choose their historical evidence tosupport their arguments, and support their own views aswell.

Legitimacy -We follow the Const. because its legitimate, but tothe extent it diverges from our values today, it is lessviable and legitimate.

Anti-Democratic Values - Originalism constrains the Court fromprotecting new groups of people from injustice.

United States v. Morrison(Congress Can NOT Broadly Regulate Violence Against Women)Facts - Congress passed the Violence Against Women Act because it was concerned that the states judicial systems

were not taking gender-motivated violence against women sufficiently seriously. The Act announced that allpersons w/in the US shall have the right to be free from crimes of violence motivated by gender.

To enforce that right, the Act then said that a woman who was a victim of such a gender-motivatedviolent crime could bring a civil suit against the perpetrator in federal court. The plaintiff, a female collegestudent, claimed she was raped by 2 football players and sued both men and University under the Act.Defendant rgued that the statute was beyond Congress powers, including its Commerce Clause power.

Holding - The Court struck down the provision as unconstitutional because it was not a regulation of economicactivity, nor did it contain a jurisdictional trigger indicating that the activity was in some way linked to

interstate commerce, and therefore, exceeded Congressional scope of power under the Commerce Clause. Asubstantial effect, in the aggregate, on interstate commerce can NOT be based on non-economic activity(Precedent ofLopez). The regulation and punishment of intrastate violence that is not directed at theinstrumentalities, channels, or goods involved in interstate commerce has always been the province of the

States. Here, Congress found that gender-motivated violence affects interstate commerce by deterring interstatetravel, employment, and business, by diminishing national productivity, by increasing medical costs, and bydecreasing the supply of and demand for interstate products. These assertions were backed up w/ detailedfindings.BUT, the Court held that these findings were too attenuated and could apply to other traditionally localregulation. If Congress may regulate gender-motivated violence, it would be able to regulate murder or anyother type of violence.ALTOGETHER, Congress does NOT have power to regulate NON-ECONOMIC,violent criminal conduct based solely on that conducts aggregate effect on interstate commerce. Morrison suggests that Lopez will be a major obstacle whenever Congress relies on its Commerce power to regulateconduct that is essentially non-commercial

Souters Dissent It is up to CONGRESS, not the courts, to decide whether an activity has a substantial effect oninterstate commerce. The courts are to determine only whether Congress conclusion has a rational basis.


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Gonzales v. Raich(Congress Can Reg Intrastate Product Possession of Economic Activity w/Effect onInterstateComm)Facts In 1996, California passed the Compassionate Use Act of 1996, which authorized limited use of marijuana for

medicinal purposes to seriously ill residents of the State and created an exemption from criminal prosecutionfor physicians, as well as for patients and primary caregivers who possess or cultivate marijuana for medicinalpurposes w/ the recommendation or approval of a physician. Plaintiffs brought this action against the AttorneyGeneral and head of DEA seeking injunctive and declaratory relief prohibiting the enforcement of the FederalControlled Substances Act (CSA) to the extent it prevented them from possessing, obtaining, ormanufacturing cannabis for their personal medical use. The CSA is a federal comprehensive regime thatprohibits to combat the international and interstate traffic in illicit drugs / prohibits the manufacture,distribution, and trafficking of several drugs, including marijuana.

Thus, there is a conflict b/w federal and state law, as California law legalizes the possession ofmarijuana for medicinal purposes w/ prescription from a doctor while CSA illegalizes the possession ofmarijuana w/ out regard to purpose. BUT, federal law prevails ONLY ifconstitutional , and Ps argue thatCongress lacks power to apply the CSA as applied to THEM b/c it is attempting to regulate local, non-economic activity (did NOT challenge CSA on its face)

Holding The Court held that Congress CAN regulate the production of marijuana, which is an ECONOMIC activity,since such production has a substantial effect on interstate commerce. The cultivation and use of marijuana ISeconomic in nature b/c:

(1) There will be an effect on the market since users wont have to buy marijuana on the market and(2) The CSA regulates the production, distribution, and consumption of commodities for which there is

a lucrative interstate market.CSA is squarely w/in commerce power b/c production of the commodity meant for home consumption

has substantial effect on supply and demand in the national market for the commodity. Prohibiting theintrastate possession or manufacture of an article of commerce is a rational means of regulating commercein that product; and, failure to regulate the intrastate manufacture and possession of marijuana wouldleaving a gaping hole in, and undercut the comprehensive CSA. Wickardestablished that Congress canregulate purely intrastate activity that is not commercial, in that it is not produced for sale, it if concludesthat failure to regulate that class of activity would undercut the regulation of the interstate market in thatcommodity. Altogether, Congress could have rationally concluded that the aggregate impact on the nationalmarket of all the transactions exempted from federal supervision unquestionably substantial, and therefore

the CSA is a valid exercise of federal powerScalias Concurrence Relies more explicitly on the Necessary and Proper clause / broader view than the majority.

Congress may regulate noneconomic, local, and intrastate activity if that regulation is a necessary part of a moregeneral regulation of interstate commerce. If Congress can regulate the interstate drug trade, then it canundoubtedly regulate local intrastate activity that is a necessary part of the general regulation, whether or notthe activity is itself economic

OConnors Dissent The homegrown cultivation, personal possession and use of marijuana for medicinal purposeshas NO apparent commercial character. The marijuana at issue in this case was NEVER in the stream ofcommerce, as the Ps have grown marijuana at home, for their own use. Therefore, possession and use ofhomegrown marijuana for medical purposes should be treated as a separate class of activity that has not beenshown to have a discernible impact on the national illicit drug market. Todays decision suggests that thefederal regulation of local activity is immune to Commerce Clause challenge b/c Congress chose to act w/

ambitious, all-encompassing statute, rather than piecemeal


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Significance ofLopez , Morrison , & Raich

Effect on interstate commerce must be SUBSTANTIAL - An incidental effect on commerce isntenough

Commercial Transactions When the transaction being regulated is itself a clearly COMMERCIAL oreconomic one, the Court will probably continue to allow Congress to regulate that transaction, even if

its a completely intrastate one, as long as its part of a class that, in the aggregate, substantially affects

interstate commerce (Gonzales v. Raich )BUT, where the activity being regulated is essential a NON-COMMERCIAL one, the Court apparently will

NOT regard the aggregate impact of that activity on interstate commerce as being sufficient (Morrisonv. Olson ),UNLESS either

(1) The causal link is extremely short and direct or

(2) The item being regulated, although non-commercial, crosses state lines or enters the

stream of commerce

Findings The fact that Congress has made particular findings that an activity substantially affects interstate

commerce may make some difference, but is unlikely to be dispositive very often. Lopez and Morrison courts were unswayed by detailed findings

Jurisdictional Hooks Where Congress drafts the statute in a way the requires a jurisdictional hook b/w theparticular activity and commerce, the act is quite likely to be found w/in the Commerce power.


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The Commerce Power: Summary and Flow Chart

Will the Court Uphold a Challenged Commerce Clause Statute?

(1) Is the challenged statute attempting to regulate a channel of interstate commerce?

This includes highways, railroads, and statutes that prohibit interstate transactions

Shreveport Rate Case, Darby, Champion(2) Does the challenged statute regulate the instrumentalities of interstate commerce?

This would include a statute that makes it illegal to possess a lottery ticket that itself has

traveled through interstate commerce or a car in commerce (Heart of Atlanta )(3) Does the regulated activity substantially affect commerce?

(1) Is the regulated activity economic in nature?

YES The Court will uphold the statute as long as Congress has a rational basis for

believing that, in the aggregate, the activity would substantially affect interstate

commerce (Darby)NO Two Questions:

(1) Is this an as applied challenge (where P has to prove that his activity is local,

non-economic, and would not undercut the broader scheme) based on local,

interstate activity that may under cut a general regulation?

If yes, is this regulation necessarily essential to appropriate means of

effectuation the comprehensive scheme of the broader statute?

If yes, uphold if rational basis test is met (Raich)(2) If this is not an as applied challenge or no comprehensive scheme existed,

then we are in the Lopez / Morrison area, in which statutes are presumptivelyunconstitutional UNLESS:

(a) There is a jurisdictional trigger which limits the activity to those

that affect interstate commerce AND / OR

Ex: It shall be illegal to transfer lottery tickets across state lines?

Ex: It is illegal to possess a lottery ticket that has been shipped

from another state

(b) If Congress has made FINDINGS that the regulated activity has a

significant impact on interstate commerce

These elements might not save the statute, but the Court suggests

they could lend support to constitutionality


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The Taxing and Spending Powers(The Child Labor Case, Kahriger Butler & South Dakota)

Taxing PowerUnder the taxing power, Congress is given a far-reaching ability to tax in order to raise

revenue

Taxing as Regulation

Congress may also regulate via taxationSpending Power

Under the spending power, Congress may provide for the common Defense and general

Welfare of the United States

Conditional Spending

Congress may place CONDITIONS on its spending power as a kind of regulation

This is true even if Congress could not regulate in any area directly (b/c the area

regulated would be of such completely local concern that the commerce powerwould not be triggered)

Conditions placed upon the doling out of federal funds are usually justified under the

Necessary and Proper Clause

General Welfare Clause

There is NO independent congressional power to pursue the general welfareThe only relevance of general welfare is that Congress, when it taxes and spends,

must be pursuing the general welfare (a requirement that has very littleindependent significance today)

The Taxing Power as a Regulatory DeviceArticle I, 8 Congress shall have the power to lay and collect taxes, duties, imposts and excises

Nearly any measure enacted in the form of a tax will have at least an incidental regulatory effect

If the regulatory impact of the tax is one which COULD be achieved directly, by use of one of

the other enumerated powers (i.e the Commerce Clause), the fact that the tax has this

regulatory effect is NOT of constitutional significance

If the regulatory effect is one which could NOT have been achieved directly (i.e. subject matter

is so purely local that it could not be reached under the Commerce Clause), then it is possiblethat the tax may be stricken as an invalid disguised regulation

Modern Rules:

(1) A tax that produces substantial revenue will almost certainly be sustained, and the Court will not inquire intoCongress motive in enacting it

(2) Regulatory provisions that accompany the tax are valid if they bear a reasonable relation to the taxs enforcement(3) A tax which regulates directly through its rate structure is valid (e.g., tax of cent per pound on white

oleomargarine vs. 10 cents per pound on yellow oleomargarine)

The Child Labor Tax Case (On Its Face Penalty Taxes Are Unconst.)Facts After Supreme Court held that regulation of child labor through the Commerce power was unconstitutional, Congress

enacted the Child Labor Tax Law of 1919. Under this law, every employer of child labor was required to pay an excise tax

of 10% annual profits. After paying $6,000, Drexel Furniture (P) brought a refund suit, arguing that the tax is a regulation ofthe employment of child labor in the States, an exclusively state function

Holding The Court struck down the law, holding that the presence of extensive penalizing features, indicating a primary purposeto regulate, rendered the tax statute constitutionally invalid.

Rule If it would be unconstitutional for Congress to achieve the ends through a fine, then it must also be unconstitutional toimpose the tax as well for this purpose

Suggests that taxes will be struck down if their primary purpose is to regulate an activity, but will be upheld if itspurpose is to collect revenue, regardless if the tax had incidental regulatory effects on the taxed activity


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United States v. KahrigerFacts In 1951, Congress adopted the Gamblers' Occupational Tax Act which required gamblers to register with the

Collector of Internal Revenue and levied a tax on their gambling income. The Revenue Act of 1951 contained a10% occupational tax on persons engaged in the business of accepting wagers (professional interstate gamblers)In the discussions in the Congressional record, there was evidence that one of the primary purposes was to taxthese professional gamblers out of existence.

Issue Did theAct violate the Fifth and Tenth Amendments? Does Congress have the power, under the taxingpower, to enact a tax on a particular profession, if the tax also has a regulatory effect, which appears to infringeon the states police power under the 10th amendment.

Conclusion The Court upheld the law. Justice Reed argued that the law did not violate a person's Fifth Amendmentright against self-incrimination because under its registration provisions, individuals were "not compelled toconfess to acts already committed." The statute simply informed people who wanted to "engage in the businessof wagering" that they would be required to "fulfill certain conditions." The Tenth Amendment was notoffended as Reed found that the tax produced revenue and was not inconsistent with similar taxes which theCourt had previously approved.

It also required these persons to keep a list of the names, and addresses of all employees for public inspection at anytime by any state county or municipal agency. In the discussions in the Congressional record, there was evidence thatone of the primary purposes was to tax these professional gamblers out of existence.

The issue was whetherCongress has the power, under the taxing power, to enact a tax on a particularprofession if the tax also has a regulatory effect which appears to infringe on the states police power underthe 10th amendment.

The lower court found this provision beyond the taxing power of the Congress, based on the

plaintiffs argument: The legislative history indicating a congressional motive to suppress

wagering indicates that this is a tax passed under a pretext of revenue generation and thus is

not a proper exercise of the taxing power.

The sole purpose of the law is to penalize gamblers.

The revenue generation pretext is evidenced by the small amount of revenue actually

generated.

Furthermore, a the law requires the gamblers to record and present upon demand the

names and addresses of their employees, which is clearly an attempt to regulate this

occupation.The court held that a federal excise tax is not invalid merely because it discourages or deters

the activities taxed, nor is it invalid because the revenue generated is negligible. If a tax

produces revenue, and unless there are penalty provisions extraneous to any tax need, the

courts are without authority to limit the exercise of the taxing power. This tax is not a penalty,

therefore it is valid. The registration requirement simply aids in the collection of the tax.


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The Spending PowerArticle 1, 8 Congress has the power to lay and collect taxesto pay the debts and provide for the common

defense and general welfare of the United States

The power to spend is thus linked to the power to tax- money may be raised by taxation, and then spent for thecommon defense and general welfare of the United States.

Two issues arise:1. Can Congress rely on the spending power to regulate things they could not otherwise? (Butler)

2. Can Congress grant funds to the states directlywith conditions attached as a means to regulate?(South Dakota v. Dole)

3 Possible readings of the Spending Clause:

Pros Cons/Counter-Arg

Most Broad Reading Spending Clause gives Congresspower to regulate anything through spending, so long as itis for the general good and welfare.

With this broad of a reading, all other limits on Congresswould be rendered moot. Note: The Court has neveradopted this view.

Moderate Reading (Hamilton) Clause permits spending

for welfare even if the Congress could not do so under theCommerce Clause.

Most Narrow Reading (Madison) Congress can tax orspend only if it is otherwise acting pursuant to anotherpower.

With this reading, the Spending Powerwouldnt be aseparate power at all.

United States v. Butler (Cong Can Only Spend/Tax For the General Welfare)Facts The Agricultural Adjustment Act of 1933, a New Deal measure, sought to raise farm prices by cutting back

agricultural production. The scheme was to be carried out by authorizing the Secretary of Agriculture to

contract w/ farmers to reduce their acreage under cultivation in return for benefit payments. The paymentswere then in turn to be made from a fund generated by the imposition of a processing tax on the processingof the commodity. Respondent alleges that this tax acts as a regulation of crop production, which is a localissue.

Issue May Congress tax crop production in excess of preset limits?Holding The Court held that the spending (and taxing) powers are themselves separate and distinct enumerated

powers, so Congress may spend (or tax) to achieve the general welfare, even though no other enumerated poweris being furthered (purported the Hamiltonian view)

BUT, the Court rejected the contention that Congress has an independent power to provide for thegeneral welfare apart from the power to tax and spend (broad view). The Court concluded that Congress hadno right to regulate areas of essentially local control, including agriculture, because it was NOT within itsenumerated powers to do so and therefore infringed on state autonomy. (Applied the Madisonian view).Because Congress could not directly regulate agricultural product, it also could not coercively purchasecompliance with a regulatory scheme (economic pressure on farmers/ creation contracts outside the range ofCongress power)

A congressional regulatory scheme has to be justified as a reasonable means of carrying out some

other enumerated power, typically the commerce power. The taxing power cannot be used to interfere withthe states' rights, so the spending power should not either. The Act is coercive, because it does not provide thefarmers with a practical choice, since their non-compliance would result in their financial ruin.

Stones Dissent Congress could constitutionally make payment to farmers on condition that they reduce their crop

acreage / threat of loss, not hope of gain, is the essence of economic coercion.


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The Spending Power (cont.)

Is Butler Still Good Law?Butler is still considered to be good law for its view of the general welfare clause, but otherwise it has

essentially been disregardedBUT, 10th Amendment is effectively dead as a limitation upon federal spending power, just as it

essential dead as a limit upon federal commerce power

Achievement of Otherwise Disallowed Objectives Through Spending Power

South Dakota v. Dole (Cong May Conditions The Receipt of Fed. Funds Under Spend Pwr)Facts In 1984, Congress enacted 20 USC 158, directing Secretary of Transportation towithhold 5% of federal

highway funds otherwise allocated to a state if the state permitted purchase or possession of any alcoholic

beverage by a person less than 21 yrs old.20 USC 158 imposed a condition on the highway funds if the state did NOT raise the minimum

drinking age. South Dakota, which had a drinking age of 19 for near-beer challenged that the statute violatedconstitutional limits on congressional spending power / violated the 21st Amendment.

Holding The Court held that through the spending power, Congress may indirectly achieve objectives that it couldnot attempt to achieve directly (i.e. directing congressional setting of the drinking age for the entire country),limited by:

The exercise of the spending powers must be in pursuit of the GENERAL WELFAREIf Congress wants to impose a condition on the granting of federal funds, it must do so witha CLEAR STATEMENT to let the states know, at the outset, what the agreement is forbeing given the money / make sure that Congress thought about that condition beforehandThere must be GERMANENESS / relationship b/w the condition on the grant and thepurpose of the granted funds (way for Court to evaluate whether Congress is just using acondition as a pretext to accomplish another endsOther INDEPENDENT CONSTITUTIONAL BARS may prohibit the conditional grant offederal fundsIf a spending condition is unduly COERCIVE, and pressure becomes compulsion, then theexercise of the spending power would be invalid

The Congressional condition of highway funds is merely a "pressure" on the State to comply, nota "compulsion" to do so, because the State's failure to meet the condition deprives it of only5% of the highway funds it may obtain.

OConnors Dissent A condition that a state raises its drinking age to 21 can NOT fairly be saidto be related to the expenditure of federal funds for highway construction

This is a regulation determining who shall be able to drink liquorThe only possible connection of this regulation to the federal highway funds is highwaysafety, which has nothing to do with how the funds Congress has appropriated areexpended (used for construction)


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State Autonomy and Congressional Power to Regulate States

(The 10th Amendment as a Limit On Congress Power)(Natl League (overruled), Garcia, New York & Printz)

State Autonomy v. Congressional Power

Garciaoverruled the

National League of Cities

In Garcia, the court held that the only obvious limits on Congress power to regulate the States is the politicalsafeguards of federalism.

The Court actions in both the casesNew York andPrintz, holding that Congress can NOT compel the states to enact afederal regulatory program (New York) OR compel state executive officials to take on federal administrativetasks (Printz).

Where the federal government tries to force a state or local government to enact legislationor regulation, or tires to enforce state or local officials to perform particular governmentalfunctions, this is NOT party of a generally-applicable federal scheme, and is insteaddirected specifically at the states basic exercise of sovereignty: the states right to carry outthe business of government

ALTOGETHER, the Court has held that there is a difference b/w COMPELLING states to enforce federalregulations and PASSING a federal law itself

Congress can NOT pass laws forcing states to enact their own minimum wage laws, but it CANpass a law to make all state employers pay a minimum wage to its employeesCongress can NOT enact a statute that requires all state governments to create terrorist attackplans, but it CAN

Give States emergency management funds on the condition that the states createreadiness plansSay all states had to follow a federal terrorist attack plan, according to federal law, orchoose to implement one themselves, under the doctrine of con

con law outline for final

Documents