Con Law Devlin 2009
Transcript of Con Law Devlin 2009
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Constitutional Law I
I. Introduction: To the Course and to United States Constitutional History
a. What Constitutions are and their function
i. They are about power
ii. Creates the mechanisms/organs of goernment
iii. !llocates power among the organs of goernment and empowers
these organs
i. "oernments can do anything unless constrained. So a
constitution allocates powers# a distribution function.
. !llocate power among the following:
$. !mong organs of goernment %creates and empowers &
separation of powers'
(. )etween goernment and people %rights protection'. This
restrains goernmental power.
*. )etween central goernment and states %federalism in the
U.S.'
i. +eta,issue: Who interprets
b. )ac-ground U.S. history
i. The nglish colonies in the $th,$0th century.
$. Some were founded as proprietary colonies# some were
corporations of merchants# some founded by religious
groups# some founded by con1uest
(. )y the beginning of the $0th century# all the colonies wereunder the Crown to some e2tent. The nglish -ing
appointed goernors
*. The colonies had limited self,goernment because the
geographical distance made some self goernment
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necessary. 3et )ritain wanted to retain most of the control.
ach indiidual colony had a relationship with )ritain
4. Colonial Tensions
a. Initially# the colonies were happy to be under )ritishrule
i. 5rotection from foreign enemies was one
reason. The 6rench# allied with natie
!mericans# were a threat within the continent.
)ut in $78# the nglish won the 6rench and
Indian war# putting an end to the 6rench threat
in !merica. Therefore# the colonies did not
need protection by the nglish from the
6rench.
b. !fter $78# there was a steady deterioration of
relations between the colonies and mother ngland.
ii. Independence
$. In $4# there was the 6irst Continental Congress
a. Up until that point# there had been little cooperation
among the colonies. !t this Congress# delegates
from the $* colonies came to meet about the problem
of )ritain
b. They came up with a declaration of the rights of
colonists and issued a call for a Second Continental
Congress# which met in $8 and actually had
delegates from all of the colonies.
c. The colonists that met were self,appointed
reolutionaries with no legal authority
(. In $7# there was the Second Continental Congress
a. The Congress in 9uly $7 responded to war with the
eclaration of Independence
b. Congress agreed that the colonists would fight
against )ritish rule
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i. States Surrender Certain Bights
$. !rticle >I
a. The ability to maintain armies e2cept for defense# the
right to declare war# the right to enter into treaties# etc
b. The states gae these rights to the new Continental
Congress.
(. !rticle I>
a. ! series of agreements among the indiidual states to
each other so they can more easily lie together.
b. ! certain amount of free trade# giing full faith and
credit to each?s Audicial decisions# etc.
. )ranches of 6ederal "oernment Created
$. The !rticles only created one organ of goernment# the
Congress.
a. !rticle I declares the powers granted to Congress
i. These include the power to declare war# enter
into treaties# regulating state ersus state
disputes.
ii. There were conflicts among the states that
pree2isted the Beolution among the colonies
regarding boundaries. There was a fear that
the )ritish could use this disunity among the
colonies to turn them against each other.
(. The Committee of the States was a 1uasi,e2ecutie branch
that managed the general affairs of the U.S. during the time
Congress was not in session
a. +anagement of day to day affairs.
b. Consisted of one delegate from each state. ! sort of
plural e2ecutie
*. Do federal Audiciary was created# so the indiidual state
courts had to handle all matters.
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4. There was a proision for an arbitration panel to decide on
matters of international law.
i. 5owers and Bights
$. 5owers
a. +any of the federal powers enumerated were powers
necessary to unify the seeral states %common
system of weights and measures# postal serice#
roads# coinage# etc.'
b. 5owers granted to states
i. Do federal power to raise money was
enumerated. The indiidual states had the
responsibility to ta2.
ii. !lso the state had the responsibility to raise
troops.
c. Do general power to regulate economic affairs or
trade.
d. So the powers of the central goernment were fairly
limited under the !rticles.
(. Bights
a. Dot much is said about the rights of citi;ens in the
document
i. +ost of the state constitutions had declarations
of rights# so it was e2pected that the states
would protect indiidual citi;ens? rights
ii. This goernment did not operate based on
indiiduals at allEcould not directly raise ta2es#
could not raise a militia# etc.
ii. Strengths/Wea-nesses
$. Strength: This is the goernment that created a new nation
and fought the biggest military in the world.
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content of state powers are in the
absence of Constitutional te2t.
iii. !rticle I# Section 0 lists Congressional powers
$. There are some things new from the!rticles: the power to create tribunals#
the ability to ta2 indiiduals rather than
as-ing the states for contributions#
authority to regulate both international
and interstate commerce.
(. The Decessary and 5roper Clause
a. Dot a freestanding authori;ation
for Congress to pass any law. It
is an authori;ation for Congress
to do things which might not be
e2pressly listed.
b. Under the !rticles# Congress did
not hae any implied powers at
allG Whereas Dand5 Clause
allows Congress to pass other
laws necessary to carry out
powers in the Constitution
i. Supremacy Clause ma-es federal law trump
state law
. Congressmen are made a legislature for the
nation# not Aust ambassadors from the states.
i. Soereignty
$. Under the !rticles# the states were
soereign it was unclear if the federal
got. was.
(. Under the Constitution# the states are
still soereign# but E Soereignty
conceied as not unitary
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(. It is immediately clear that this
goernment has legislatie powers. !FF
legislatie powers are ested in the
Congress. This implies that only the
legislatie branch may e2ercise
legislatie powers.
*. )icameral legislature & ( houses
a. @ne house is more
representatie of <the people=
and was intended to trac-
changes in popular sentiment
ery closely %short ( year terms'.
5eople were constantly able to
change the ma-eup of theHouse. The House represents
the will of indiiduals.
b. The Senators were not elected#
but appointed under the original
Constitution. This changed with
!mendment $8# ma-ing them
elected
4. ach house determines the rules of itsown proceedings and is the ultimate
authority oer its election and in
disciplining its members. This is a
protection of the independence of each
house from outside influence.
iii. 2ecutie )ranch
$. The e2ecutie branch is much different
from the !rticles
a. The nature of the e2ecutie is
different
b. Under the !rticles# the e2ecutie
power was in a committee# but
under the Constitution the powers
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are ested in one man# the
5resident. The unitary e2ecutie.
c. Howeer# the 5resident may
deputi;e other indiiduals to be
agents on his behalf# carrying oute2ecutie functions
d. The concept is that a single
indiidual is more efficient than a
committee ma-ing decisions.
!dditionally# there is a reduced
diffusion of responsibility. If
things go bad# we -now who to
blame# the 5resident.
(. !rticle II Section ( is in ( paragraphs.
a. The first paragraph lists powers
5resident can use without any
other input.
b. Second paragraph lists powers
that he must authori;e in
conAunction with Senate approal.
This paragraph also constitutes
not merely his powers# but his
duties.
i. 9udiciary )ranch %!rticle III'
. Chec-s and )alances
$. Separation of powers and system of
chec-s and balances coe2ist under the
Constitution & they must be reconciled
(. Historical @rigin
a. The notion of chec-s and
balances comes from the )ritish
goernment
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i. +onarchy# house of
commons and house of
lords. There was oerlap
among the * branches in
terms of functions
performed
ii. 6or e2ample# the -ing had
some legislatie power
and set up courts of
chancery. )ut the mi2ed
goernment wor-ed
because of chec-s and
balances
iii. 6or e2ample# Commonscould legislate# but could
not legislate alone. King
could appoint Audges# but
Commons had some input
as well.
*. 2amples in U.S. Constitution
a. 5resident can eto legislation.
5resident can call Congress intosession. He can propose
legislation.
b. Congress can impeach the
5resident and Congress has to
appropriate money for
5resident?s use. !lso the Senate
has to consent to 5residential
treaties and appointments.
Congress has control oer the
federal subAect matter Aurisdiction
of federal courts
c. The Audiciary has the power of
Audicial reiew to nullify
unconstitutional laws.
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$. The people get to ote for their
representaties to represent their rights
(. That political chec- is still there. So
what does adding a )ill of Bights
actually addL
b. It gies a second aenue of enforcing these rights
i. !lternatie to enforcing rights through political
processes
ii. 5olitical processes tend to faor large numbers
of people. If the goernment abuses a small
number of people# it is harder to use the
political process to enforce indiidual rights
iii. !s +odified by the Beconstruction !mendments# $078,$0J
$. $*th !mendment abolished slaery
(. $4th dealt with pent,up issues %confederate war debts# etc.'
a. Section $?s modern significance
i. Coneyed citi;enship to e2,slaes
ii. !lso# this section establishes constitutional
means for people to go to the federal
authorities if a state iolates a person?s rights
$. 5rior to this amendment# the person
would hae to go to the state to address
a iolation
*. The language is that <no person= shall be denied due
process. The protection is not Aust of citi;ens# but of all
peopleEery broad
i. !s Understood Today
$. !fter Beconstruction# the Constitution has eoled more
based upon Audicial interpretation
(. In $*Js there was the Dew eal. Though there was no
change in te2t of the Constitution# the S.Ct. interpreted the
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Constitution differently# giing the federal got. more power
to regulate certain affairs.
*. In $8Js & $Js# there was an e2pansion of protection to
indiidual rights. !gain based upon S.Ct. interpretation
4. Important 5oints:
a. The te2t does not Aust gie phrases# but also a
conte2t. The pieces of the document fit together and
are interrelated.
b. The Constitution is an eoling document# changing
oer time. @ur interpretation of it changes. The ne2t
chun- of discussion will# therefore# be who interprets
the Constitution.
II. 9udicial Beiew of Constitutionality: 5ower and Constraints
a. The @rigin of the 5ower of 9udicial Beiew
i. Beiew of the Constitutionality of the !cts of @ther )ranches of the
6ederal "oernment
1. Marbury v. Madison
a. The notion that legislatures are not omnipotent and
the Audiciary can reiew their acts
i. The Court can declare a legislature?s action so
contrary to Austice that the legislatie act is
undone.
$. This notion was not un-nown but was
controersial prior to this case.
(. There were some nglish precedents
for this notion
*. This power was not e2plicitly stated in
the Constitution because there was
disagreement oer it.
ii. Controersy
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$. What gies laws legitimacy is the will of
the people in electing the
representaties
(. If the unelected Audges get to oerturn
the legislatie enactments# then the willof the people is iolated.
b. Case )ac-ground
i. The federalists made a last,minute effort
before leaing office to pac- the courts with
federalists through appointing Audges.
$. @utgoing 5res. !dams made a number
of appointments and signed the
commissions
(. 9ohn +arshall?s brother failed to delier
a number of the signed and sealed
commissions. They were left on the
des- of the new Sect. of State# 9ames
+adison.
*. 9efferson tells +adison not to delier the
commissions
ii. +arbury did not hae his commission deliered
to him# so he brought suit for a writ of
mandamus. The case was brought in the
Supreme Court
$. 9ustice +arshall had a conflict of
interest he had been the Sect. of State
under the preious administration and
was now on the Court deciding if the
commissions should be deliered.
(. There are some who hae suggested
that +arshall should hae recused
himself because of the conflict of
interest. )ut he could not be re1uired to
recuse himself.
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c. The Court?s <* issues=
i. Whether +arbury has the right to the
commission
$. It is strange that the court addressedthis issue first because the ultimate
conclusion was that the court lac-ed
subAect matter Aurisdiction to hear the
case
(. Through the court deciding the case on
Constitutional grounds# the issue
becomes finally decided.
*. Court answer the 1uestion in the
affirmatie
a. The Court says that +arbury has
a ested right to the commission
because the document was
signed and sealed.
b. This was contrary to the common
law rule that re1uired the
commission to be deliered for
the right to be ested.
4. Court also mentions that the term of
Austice of the peace is fi2ed at 8 years.
!llegedly this is an irreocable 8 year
appointment
ii. Whether +arbury has a remedy afforded by
law
$. ery citi;en has the right to claim the
protection of law wheneer a right hasbeen iolated
(. Court answers the 1uestion in the
affirmatie
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*. ! counterargument is that it was not a
legal right that was iolated# but that this
is a political issue and the Court does
not hae the right to address this issue
4. Court says that the deliery of thecommission is something that the
5resident has a legal duty to perform
%ministerial duty as opposed to
discretionary decision'
a. If the act is a discretionary
decision# the 5resident cannot be
forced to delier the commission
b. If +arbury?s harm had resultedfrom failure to perform a
discretionary act# there would be
no remedy in court
8. The ultimate answer to the 1uestion of
whether the law affords remedies for
wrongs to indiiduals is <usually# but not
always=
iii. Whether mandamus from the Supreme Court
is the appropriate legal remedy
$. Whether mandamus is appropriate
remedy
a. 9udiciary !ct of $0
i. The same people who
wrote the Constitution
were in Congress to pass
this act
ii. !llowed Supreme Court to
issue writs of mandamus
in cases <warranted by the
principles and usages of
law Mthe common law of
nglandN=.
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b. These common law re1uirements
were:
i. irected to appropriate
goernmental official
ii. 5erson see-ing writ must
hae no other aailable
remedy
iii. +atter of ministerial duty
and not discretionary
choice.
c. The re1uirements are met# so the
mandamus is the appropriate
remedy
d. Ouestion answered in the
affirmatie
(. Whether the Court can issue the
mandamus is a separate issue# really
d. Whether mandamus can issue from Supreme Court
i. Statutory !uthori;ation
$. 3es# there is statutory authori;ation for
the Court to e2ercise original
Aurisdiction# the court says.
(. Howeer# the 9udiciary !ct of $0
gies the Court appellate# not original#
Aurisdiction oer writs of mandamus#
according to the plain language
a. Donetheless the Court interprets
the statute as authori;ing original
Aurisdiction to issue writs of
mandamus
b. This interpretation is 1uestionable
ii. Constitutional !uthori;ation
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$. The Court says since cases oer which
the Court has original Aurisdiction are
enumerated in !rticle III Section ( of the
Constitution# this is an e2haustie list. It
is a ceiling# rather than a floor.
a. There may be arguments that the
list is actually illustratie
b. Howeer# the te2t of the
Constitution seems to indicate
the list of original Aurisdiction
cases is e2haustie
(. Therefore# the Court says that the
portion of the 9udiciary !ct of $0giing original Aurisdiction oer issuing
writs of mandamus is unconstitutional
a. This is an interesting conclusion#
in that the legislature had seen
the !ct as constitutional when it
passed the act
b. The 1uestion in this case
becomes who has the power to
determine the constitutionality of
a legislatie !ct
c. The Court asserts that it has the
constitutional power to determine
a legislatie act unconstitutional
iii. !rguments that +arshall ma-es that the Court
has the power to refuse to enforce legislation
that it deems unconstitutional
$. The framers wrote down limits on the
powers of Congress & topics they could
legislate on
a. The framers would not hae
written them down if they were
not intended to be limited
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b. )ut this argument may not be
conincing & the limits may hae
been guidelines to future
Congresses# rather than
coneyance of authority to the
courts to enforce the limits
c. +aybe the limits on the Congress
were meant to be self,enforced#
by the Congress upon itself
(. Dature of the Audicial function
a. To determine what the law is
b. 9udicial interpretation
c. !n argument that <we can?t help
but interpret=
i. Hae to loo- into the
meaning of statutes to
apply the statute to the
case in front of the Court
ii. !nd if there is an
inconsistency between
legislation and the
Constitution# the Court
must enforce the
Constitution
*. Te2tual argument
a. The Constitution says that the
Court gets to hear cases arising
under the Constitution
i. This has to mean that the
Court was empowered to
decide whether or not
legislation is Constitutional
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b. 9udges ta-e an oath to uphold
the Constitution
i. The counterargument is
that the legislature and the
e2ecutie branch ta-e thesame oathG
c. Supremacy Clause
i. The Supreme Faw of the
Fand consists of the
Constitution# as listed first#
and then statutes enacted
in pursuance of the
Constitution# as listedsecond in the te2t
ii. The idea that statutes are
therefore subordinate to
the Constitution
i. !rguments we might ma-e today in faor of the
Court?s opinion
$. In order to retain the relatie e1uality of
power among the three branches# weshould infer the Court?s power of Audicial
reiew
a. There is the possibility that
modernly the Court has achieed
more power than may hae been
intended
(. Society has remained prosperous oer
the past (JJ years under the regime of
Audicial reiew
*. +aybe Audges are more 1ualified to
interpret the Constitution since they
hae a legal education
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i. The Treaty of 5aris that ended the war had a
proision that the assets of loyalist )rits could
not be sei;ed
ii. Therefore# the >irginia act of sei;ure iolated a
federal treaty
iii. The Supremacy Clause ma-es the Constitution
and treaties/statutes made in pursuance
thereof the supreme law of the land
b. 5rocedural )ac-ground
i. >irginia state supreme court holds that the
parcel of land belongs to Hunter?s lessee# not
the )ritish landholder
ii. >irginia court claims that $0 9udiciary !ct#
Section (8 is unconstitutional# which re1uires
that the Supreme Court rule on
Constitutionality of state decisions that are in
contradiction of federal treaties/statutes/the
Constitution
iii. S.Ct.: >irginia did not hae title to the land# so
the sei;ure of the land was unconstitutional.
Court ordered >! to reerse.
i. >! court refused# and the issue went bac- to
the S.Ct.
c. >irginia?s !rguments
i. The state is a separate soereign S.Ct. does
not get to tell the state what the law means
ii. 2pressio unius argument. The drafters did
not state the S.Ct.?s right to e2ercise appellateauthority oer state courts.
d. Holding: S.Ct. is supreme interpreter of the
Constitution and has appellate authority oer state
Audgments interpreting the Constitution
e. S.Ct. Holding arguments
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i. Te2tual: The framers e2pected that state
courts would hear Constitutional cases. The
S.Ct.?s appellate Aurisdiction e2tends to all
cases arising under the Constitution.
Therefore# the S.Ct.?s appellate Aurisdiction
e2tends to state court Constitutional
interpretations.
ii. Structural: States are only partially soereign
there are chun-s in the Constitution in which
the states are forced to surrender some of their
soereignty
iii. 5olicy: If each state is allowed to ma-e its own
e2clusie interpretation of the Constitution#
there will be no uniformity in interpretation inthe seeral states
$. 9udge Story thin-s that in the long run#
differences must be reconciled
(. S.Ct. must step in to resole
diergences
*. There is no guarantee that Audges of
e1ual learning will reach the same
conclusion in different states
a. )ecause maybe there is no
single direct answer
b. Constitutional interpretation leads
to different conclusions
c. This seems to brea- from the
+arbury reasoning# which was
that the S.Ct. stated what the
obious interpretation of the
Constitution was
iii. 9udicial 2clusiity in Constitutional Interpretation
$. +arbury
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a. ! narrow reading of +arbury does not find the Court
saying that the S.Ct. is e2clusie in interpreting the
Constitution
i. The Constitutional interpretation only binds the
parties inoled in the case
ii. 9udicial reiew is simply a byproduct of a
court?s duty to decide cases within its
Aurisdiction# including cases arising under the
Constitution
b. ! broad reading is that courts hae special
competence to interpret law according to the
Constitution and so they are the ultimate# supreme
interpreters of the Constitution
(. )inding upon 2ecutie )ranchL
a. Seeral 5residents hae 1uestioned S.Ct.?s
supremacy in interpreting the Constitution
b. 9efferson# 9ac-son# Fincoln# and 6B
c. 2amples
i. The red Scott decision held that Congress
lac-ed the authority to preent slaery in theterritories
ii. Fincoln ocali;ed opposition
*. 2clusiity is controersial
a. eryone agrees that Constitution is supreme law of
the land
b. )ut notion that Supreme Court interpretations of
Constitution are supreme law of the land iscontroersial
c.
4. Cooper v. Aaron
a. 6acts
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*. This was a prophylactic rule to protect
4th !mendment rights
4. Then Congress passed $0 USC *8J$#
which only re1uired a statement to be
oluntarily made to be admissible
a. !pparently Congress belieed
that the +iranda ruling was not
re1uired by the Constitution
b. S.Ct. said that Congress cannot
by statute change the meaning of
the Constitution by passing a
statute oerruling a S.Ct.
interpretation
ii. Whether or not +iranda ruling goes beyond the
Constitution is the 1uestion
$. S.Ct. asserts that +iranda does not go
beyond the Constitution# and is re1uired
by the Constitution
(. Therefore# Congress may not oerturn a
S.Ct. Constitutional decision by passing
a statute
iii. Types of arguments the S.Ct. may ma-e:
$. Te2t
(. Structure
a. Whole goernment
b. ocument
*. 6ramer?s intent
4. 5recedent
a. Fegal
b. Historical
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8. 5olicy
b. Constraints on 6ederal 9udicial 5ower
i. Statutory and 5olitical Constraints
$. 5olitical Constraints on the Court
a. Domination and Confirmation 5rocess
i. 9udges hae to be appointed by the 5resident
and confirmed by the Senate
ii. )efore $0(# the 5residents did not refuse to
appoint based on potential Audges? iewpoints
iii. +odernly# 5residents do refuse to appoint
based on potential Austices? ideologies
i. Senate refused to confirm Beagan?s
appointment of )or- because of his ideology
b. Congress etermining Si;e and )udget of Court
c. The !mendment 5rocess
i. Has only been used 4 times to oerturn S.Ct.
decisions
d. Impeachment
i. Has neer happened
e. Fimited 5olitical Capital
i. o not control the troops# the money# etc.
ii. What gies them power is the belief that if a
political actor defies the Court# the people will
reolt
iii. Howeer# if the Court renders decisions that
are ery unpopular# their power erodes
f. 2ceptions to Supreme Court !ppellate 9urisdiction
(0
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(. Congress? Control oer Court?s SubAect +atter 9urisdiction
%S+9'
a. !rticle III# Sect. ( sets out the -ind of federal cases
that courts can hear
i. Congress cannot e2pand the S+9 of federal
courts
ii. Whether Congress can limit the S+9
$. !rt. III# Sect. ( says that the Audicial
power of the Court shall e2tend to all
cases arising under the Constitution
a. This is an argument that the S+9
may not be limited
(. !rt. III# Sect. ( also says that Congress
can ma-e certain e2ceptions
a. This is an argument that the S+9
may be limited by Congress
*. 9urisprudence has held that Congress
can limit the S+9 of the federal courts
b. !" #arte McCard$e
i. 6acts
$. Under Beconstruction Faws# defendant
was incarcerated for publishing
incendiary and libelous articles
(. efendant brought a writ of habeas
corpus under a Congressional act
allowing a case to be heard where the
defendant is restrained in iolation of theConstitution
*. Congress was concerned that if this
case got to S.Ct.# the S.Ct. might rule
that all of the Beconstruction !cts were
unconstitutional
(
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(. 5opulation shifts brought une1ual
distribution of population in the oting
districts
*. 5laintiffs bring the suit under 1ual
5rotection Clause# that haing improperdistrict si;es dilutes a citi;en?s oting
right
ii. Whether or not this is a political 1uestion
$. +aAority found it not to be
(. Dot eerything that inoles a political
issue is a political 1uestion
3. Six earmarks of a political question
a. Constitutional demonstrable
te2tual commitment of an issue to
a different branch of goernment
b. Fac- of Audicially discoerable
standards for resolution
i. If there is no articulable
legal principle then the
decision is Aust a matter ofdiscretion/choice
c. Impossibility of deciding without
an initial policy determination
i. 6or e2ample# someone
brining a suit that the
statutorily set minimum
wage is too low because it
puts people beneath anacceptable standard of
liing
ii. Society ma-ing rules for
itself that inole
*$
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cost/benefit analyses are
political 1uestions
d. Fac- of respect for other
branches
i. Interference with core
powers of other branches
ii. When the court is inited
to interene in the
procedures of a coordinate
branch
iii. 6or e2ample# 5resident
has almost sole authority
to determine the inner
wor-ings of the e2ecutie
branch
e. When the nation needs to spea-
with a unified oice among the
branches to aoid potential of
embarrassment
f. When the nation needs to act
1uic-ly
4. If arguing that this is a political 1uestion:
a. There may be a lac- of standards
that shows which districting
schemes are legal and which are
not
b. +ay be an inappropriate policy
1uestion# in that districting
schemes are based on politicaltheory
c. #owe$$ v. McCor&ack
i. 6acts
*(
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$. House rep accused of misappropriating
campaign funds
(. The House wanted to e2clude him from
haing a seat in the House
*. He brought suit saying this was
improper
ii. Whether the 1ualifications of admitting a House
Bep constitutes a political 1uestion
$. Support in faor of political 1uestion
a. Te2tual commitment: ach
branch shall be the Audge of the
1ualifications of its members
b. Fac- of respect for a coordinate
branch: Court would interene in
inner disciplinary proceedings of
the legislature
(. Court held this was not a political
1uestion
a. The te2tual commitment did not
include anything other than age#citi;enship# etc.# the 1ualifications
for office
b. !lso# after Congress had to seat
him# then there were other
mechanisms# i.e. the House
doing an ethics inestigation of
the Bep
d. 'o$dwater v. Carter
i. 6acts
$. Di2on started negotiations with China
(. U.S. had entered into seeral treaties
with Taiwan
**
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*. The 1uestion was how such a treaty can
be abrogated
ii. Faw
$. Constitution says a treaty is negotiatedby the 5resident and then (/* of the
Senate must concur
(. Constitution does not say how to get out
of a treaty
iii. Issue: Whether the Senate had to be
consulted to abrogate a treaty
i. Whether this was a political 1uestion
$. 3es
(. There needs to be a unified oice on
whether or not the treaty will remain
*. The Constitution does not specify an
issue as to how this should be resoled#
so there is a lac- of Audicially
determinable standards
4. Inappropriate policy 1uestion becausetreaties may need to be abrogated in
one way in one instance# and another
method of abrogation may be necessary
in other situations
e. (i"on v. United tates
i. 6acts
$. Impeachment of a federal Audge
(. Constitution ma-es the House the sole
power to impeach and the Senate
haing the sole power to try
impeachments
ii. Issue: Whether a committee of the Senate is
sufficient to try the impeachment*4
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iii. Whether a political 1uestion
$. +aAority says yes
(. The Constitution says that the Senate
shall hae the <sole= authority to tryimpeachments# so the Court cannot
interene. This is a matter of internal
processes.
*. There would be policy 1uestions it would
be inappropriate for the Court to decide
a. The Senate has the authority to
determine what constitutes an
offense worthy of impeachment
b. 6ramer?s intent argument: That
the criminal proceeding and the
impeachment trial are two
separate proceedings the Court
should stay separate from the
impeachment proceeding
(. Case or Controersy Be1uirements
a. 5rohibition on <adisory opinions=
i. The Court declined comment on Washington?s
war powers
$. 5resident wanted adice on whether or
not to remain neutral from the war
between ngland and 6rance
(. The Court says that the 5resident can
see- adice from his own e2ecutie
departments# per the Constitution
ii. !rticle III mentions that the Audicial power
e2tends to cases and controersies
$. The Court sei;ed upon these two words:
cases and controersies# reading them
as words of limitation
*8
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(. The Court can only interene if
presented with a <case= or <controersy=
a. Beal parties with real and
opposed interests
b. !rgument about how the law
should apply to a concrete set of
facts already in e2istence
c. !ctual inAury or inAury li-ely to
happen in the immediate future
iii. Beasons for the prohibition
$. Fimiting Constitutional interpretation
through the Court to when there areactual parties with real interests at sta-e
(. Interpretation only ma-es sense with
concrete facts
*. It helps the Court aoid political
controersies & deciding based upon
principles rather than a set of facts
b. Timing issues: <mootness= and <ripeness=
i. +ootness
$. When the court?s decision will no longer
hae any impact in the real world
(. ue to changing circumstances# the
dispute has effectiely been ended
*. 2ample:
a. If a prisoner brings a habeascorpus petition see-ing to be
released# if he is released while
see-ing habeas corpus# the
habeas petition is moot
*7
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b. With a suit for specific
performance# if the promisor dies#
the case is moot
4. De)unis v. *de+aard
a. White male refused law school
admission and claimed racial
discrimination
b. Trial court granted preliminary
inAunction while the case was
pending to allow him admittance
c. )y the time case got to Supreme
Court# the guy was in his last
semester# so the case was moot
8. Ashwander
a. If case can be resoled on either
Constitutional or non,
Constitutional grounds# always
will choose to resole the case
under non,Constitutional grounds
7. 2ceptions to +ootness doctrine
a. ,oe v. -ade
i. )y the time the case
reached the Court# the
woman had already gien
birth# so the claim that the
state was not allowing her
to hae an abortion was
moot
ii. The case says that the
human gestation period is
shorter than the time the
appellate process ta-es#
so all such cases would be
*
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moot without this
e2ception
b. The 2ception: ! set of cases
that is are capable of repetition
yet eading reiew.
i. Boe
ii. !lso# when the cessation
of the actiity being sued
upon is at the discretion of
the defendant %sue for
preliminary inAunction
defendant stops# but then
starts later again'
c. Continued harm to the plaintiff or
li-elihood of reoccurrence will
defeat the mootness issue
ii. Fac- of Bipeness
$. When the facts hae not deeloped
enough for the Court to answer the
Constitutional 1uestion being as-ed
a. @ne factor is the harm if the
Supreme Court waited to decide
the case
b. Waiting itself to decide the case
has a <chilling effect= on
preenting people from iolating
the statute
(. Hypo %Mitche$$ '
a. Statute passed that prohibits
federal employees from engaging
in political actiities
i. To preent 5residents
from putting all the
*0
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campaign wor-ers on the
federal payroll and then
haing the employees
campaign for 5resident
ii. +aybe Constitutionalproblem with this & the $st
!mendment
b. Constitutionality of the !ct went
to the Supreme Court
i. Three plaintiffs had not
worn political buttons and
handed out pamphlets
because they were afraidof disciplinary action
ii. The court said the case
was not ripe# because the
court did not -now the
actiities they would hae
engaged in or what
response they would hae
gotten from the ciil
serice authorities
*. 2amples:
a. Statute that preents farmers
from dumping fertili;er & any
challenge to the statute is unripe
until someone tells the farmer to
stop
c. The re1uirement of <standing=
i. efinition
$. Who has the right to raise a certain
issue in court
*
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(. lements mandated by the <case or
controersy= re1uirements of !rt. III.
Sect. (
a. Injury in fact or other personal
stake in the outcome
i. @riginal notion was that
someone had to be
depried of a legal right.
ADA#* case & the data
processing companies that
rented out time using
computers sued ban-s
that were selling e2cess
use of computer time.!lleged that ban-s had
unfair competitie
adantage. The court said
that een though there
was no legal right# the
arguable iolation of an
!ct was harming them
%law preenting ban-s
from entering into certain
businesses'.
ii. It came to be that any
inAury would count &
psychological# aesthetic#
etc.# een if the inAury was
not monetary.
iii. Congress can create a
legal entitlement# which
can be iolated# and ifiolated gie rise to inAury
in fact
i. 2ample of personal
sta-e: !nyone can sue if
they hae -nowledge of a
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ii. The third party might hae
some other iew of the
harm
iii. The third party might want
to sue for himself
i. Someone with his own
personal interest at sta-e
will do the best Aob
. 2ample# bar,owner sued
because of a statute that
prohibited boys from
drin-ing# but not girls# at a
certain age. The bar,owner claimed lost
reenue because of the
statute the court allowed
an e2ception to the third,
party constraint.
!. &o standing !ased upon
generali(ed injuries
i. If the plaintiff has no inAury
greater than that of any
other citi;en
ii. )ecause the political
process %election of
Congressmen' can
remedy this
iii. 2ception# allowing
ta2payers to sue because
the goernment hasmisspent funds
ii. Why hae the re1uirement
$. The plaintiff should be one that has a
sta-e in the controersy# someone who
will be motiated correctly
4(
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(. Dot Aust an abstract political type of
1uestion
iii. Luan v. De/enders o/ -i$d$i/e
$. 6acts
a. efenders of Wildlife sue to hae
the original interpretation of the
ndangered Species !ct
reinstated: that the Secretary of
the Interior has to consult with
federal agencies about their
actions not Aust in the U.S. but
also abroad
b. efenders claim that if a
regulation is not promulgated that
interprets the S! thusly that
they will no longer be able to iew
and enAoy endangered species
because federal agencies are not
re1uired to ensure that their
actiities abroad are not -illing off
endangered species
(. Court says that it is enough that one
person out of the group %efenders of
Wildlife in this case' suing hae
standing
*. !bsence of concrete inAury
a. Scalia says that the desire to
obsere or use an animal species
for aesthetic purposes is
<undeniably a cogni;able interestfor purpose of standing=
b. Howeer# in this case there was
no immediacy or imminence of
the possibility of inAury
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c. The plaintiffs did not buy a plane
tic-et or do anything affirmatiely
suggesting that any time in the
imminent future they would be in
a place to obsere endangered
species abroad
d. Compare with cho-e,hold case
i. Statute allowed police to
cho-e,hold arrestees
ii. "uy who had been subAect
to this torture sued
iii. He lac-ed standing
because the inAury had
already occurred & did not
hae standing to sue for
preliminary inAunction
because there was no
imminence of inAury
4. Fac- of Bedressability
a. 5rospectie effect only & if the
court ordered the agencies to notfund proAects that would
endanger animals# the new
regulation would hae
prospectie effect only and not
heal past harms
b. Wrong party & The Secretary of
the Interior is the party in the suit
if the court ordered the secretary
to issue a new regulation# there isa 1uestion as to whether the
agencies will be bound by the
regulation
8. 5rocedural InAury
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a. Congress cannot pass an act
purporting to gie eeryone
standing unless the nature of the
concrete inAury is defined or the
plaintiff has a personal sta-e in
the outcome
b. !llowing Congress to do this
would iolate the case or
controersy re1uirements of the
Constitution in !rt. III# Sect. ( the
re1uirements re1uire that there
be a concrete inAury
i. Massachusetts v. !#A
$. 6acts
a. State suing to re1uire the 5! to
raise the emissions standards for
automobiles
b. +ass. claims that the failure of
5! to raise the standards is
causing global warming# which
has led to a measurable increase
in the height of the seas#
encroaching on the +ass. shore
(. !rguments for +ass. standing# that
there is a concrete inAury
a. +ass. owns the lands it has a
proprietary interest that is being
damaged through the 5!
causing global warming# which
causes loss of shore to the sea
b. 5arens 5atriae & the state has
the right to sue on behalf of its
citi;ens in their interests
c. Soereignty & +ass. has a law,
ma-ing interest as a soereign
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*. Court
a. Holds that there is a concrete
inAury to the plaintiff# who does
hae standing
b. Causation and Bedressability
i. The dissent?s argument
against is that the 5! is
not the sole cause of the
rise of greenhouse gas
leels in the atmosphere.
! court inAunction re1uiring
the 5! to change its
standards would hae anegligible impact on the
rise of the waters. @ther
countries will continue to
emit large amounts of
gases. !lso# causation is
too attenuated# in that
there are too many other
factors contributing to
global warming for the
alleged 5! actions to besaid to cause +ass.?s
inAury.
ii. The maAority holds that Aust
because the remedy is
<partial#= the remedy does
e2ist and standing e2ists.
9ust because defendant?s
action contributes to small
amount of plaintiff?salleged harm does not
mean causation is lac-ing.
III. 6ederalism: The !llocation of 5owers )etween the 6ederal and State
"oernments
a. Constitutional "rants of Begulatory 5owers to the 6ederal "oernment47
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i. The basic concept: Interpreting Constitutional "rants of 6ederal
5ower
$. Beasons for split soereignty
a. Fiberty protection
i. Haing both states and federal system to
protect due process of law
ii. @nly wor-s in one direction. If the state
depries of due process# the federal got. can
gie remedy.
b. +ore direct democracy
i. In theory we are more directly connected with
the state than national goernment# but this
may not necessarily be true
ii. There is the possibility of more direct
participation in goernment with a state
system
c. fficiency
i. Useful to hae goernmental units that can
goern smaller areas of land
d. >ote with the feet
i. Citi;ens can leae a state if they do not li-e the
way one state?s laws are
e. 6osters innoation
i. 5ossibility of e2perimentation
ii. @ne state tries out something and other states
can either follow or reAect the policy based on
whether it succeeds or fails
(. The balance of power has changed oer time
a. ery time there has been a national crisis# the power
of the federal goernment has grown
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+ to pay a ta2 %there was only the second
U.S. ban- that fit this description'
iii. The ta2 was hefty. ery single iolation
resulted in a huge ta2. +aryland was trying to
run the ban- out of town. + wanted localinstitutions to get the depositsG
i. +cCulloch refused to pay the ta2. Charges
were brought against him.
. Two issues
$. oes Congress hae the power to
incorporate a national ban-L
(. Can the State of +aryland ta2 the ban-constitutionallyL
c. Court
i. oes Congress hae the power to incorporate
a national ban-L
$. The first ban- was successful and
Congress lawfully passed it into
e2istence. This is an intro proiding
eidence that the ban- is a useful thing#to persuade that this is constitutional.
(. +aryland argues the agency theory: the
states created the national goernment
under the Constitution and that therefore
the principal# the states# hae the
ultimate authority.
a. +arshall responds that though
the Constitution was enacted bystate delegates# the delegates
were elected by <the people=
b. Therefore# the allocation of power
is not something the states can
decide the allocation of powers
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to the states is something done
by the Constitution
*. +aryland says that !rt. I Sect. 0 does
not list the power to charter a ban- as
an enumerated power. !nd the federalgoernment can only do what is
enumerated.
a. Court?s rebuttal is that the $Jth
!mendment language is deried
from the !rticles# but different
from them. !rticles said powers
not e2pressly gien to Congress
are resered to the states. $Jth
!mendment dropped the word<e2pressly.=
b. The $Jth !mendment says the
feds can do whateer the
Constitution allows them to do#
but this doesn?t answer the
1uestion of whether or not the
feds are limited to enumerated
powers.
c. $Jth !mendment opens up the
possibility of implied powers.
d. If the Constitution listed out the
details of eery single power the
feds hae# this would create a
comple2 and unreadable Code.
Therefore# there must be implied
powers.
4. Fogically# when creating a soereign
goernment to accomplish certain
things# there must be the power to do
the things that they are gien.
8. efining <necessary= in the Decessary
and 5roper Clause
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a. When the aerage person says
<necessary= he actually means
something different. The word is
used more broadly than only that
which is direct and simply needed
to carry out enumerated powers
b. istinguished from the phrase
<abso$ute$y necessary= as used
elsewhere in the Constitution
i. Where the framers only
wanted the fed to act
where it was absolutely
necessary# they clarified &
therefore in the DP5Clause Aust saying
<necessary= is some lesser
degree of necessity
ii. ! counterargument is that
<necessary= cannot be
modified & it only means
one thing
c. 5olicy argument & it would be agood thing to not gie
<necessary= too restrictie a
meaning
d. 2ample of the post office
i. Constitution gies the
power to establish post
offices# but not the power
to issue stamps.
ii. Issuing stamps is not
indispensably necessary#
but it is necessary and
proper.
8$
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iii. Therefore necessary
should be defined to mean
<useful= or <appropriate=
e. Interpret the phrase <necessary
and proper= together# thecombined meaning of the words
to mean <useful=
i. Counterargument is that
this interpretation really
ma-es the word
<necessary= mere
surplusage
f. Decessary and proper clause isan enlargement# not a restriction#
of federal power. The clause is
located at the end of Section 0#
which contains the list of federal
powers.
7. The ends and the means
a. +arshall says that as long as the
end %one of the enumerated
powers' is being sought# then as
long as the means are necessary
and proper# the means are o-ay
b. +arshall says that the end%s'
sought here consist%s' of the
following enumerated powers:
Collecting ta2es# aiding in
borrowing money# establishing
the alue of coinage
c. The means# incorporating a
second national ban-# is
necessary and proper to lead to
these ends
8(
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ii. Is +aryland Constitutionally prohibited from
ta2ing the ban-L
$. +aryland argues it has the power to ta2
under the general police powers it has.
+aryland also would argue that the listof prohibitions that states cannot ta2
does not include a prohibition from
ta2ing federal institutions# i.e. ban-s.
(. +arshall:
a. States impliedly gae up any
powers that would be
inconsistent with the powers of
the national goernment. Thefederal goernment has an
implied power to incorporate a
ban-# and since the state?s
ta2ation of the ban- threatens the
federal power# the ta2ation is
unlawful.
b. The power to ta2 is the power to
destroy. To allow the state to ta2
the federal institution would beinconsistent with the e2istence of
the federal goernment.
c. When the federal goernment
imposes burden on the states#
Congress does this# and
Congress is elected by the
5eople. )ut when +aryland does
something that imposes a burden
on the national scene# only
+aryland oters elected the
+aryland legislature. Do political
chec- e2ists on the state
legislature.
d. Slippery slope argument: If
+aryland is allowed to ta2 the8*
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ban-# it might ta2 a ;illion other
federal powers.
4. er& Li&its v. hornton
a. "enerally
i. !r-ansas passed an amendment to the
constitution of the state limiting representaties
as to how many terms they could run for office
in Congress
ii. Court held the amendment iolated the
Constitution
b. Constitution specifies the 1ualifications for being in
Congress as age# citi;enship and residence asre1uirements for office
i. The Constitution is silent as to whether term
limits are 1ualifications
ii. !r-ansas argues that under the $Jth
!mendment# since the power to establish term
limits is not resered to the fed.# the states
hae that power
iii. +aAority arguments
$. There is the need for uniformity in
setting Congressional 1ualifications
(. Congressmen are meant to be
independent of their home states# as
indicated by the Constitution. This
might mean independence from state
authority to set 1ualifications.
*. The $Jth !mendment does not apply:
5owers cannot be <resered= to the
states because the states neer had
that power to begin with# historically
a. The states neer had the power
to establish Congressional
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1ualifications before the
Constitution was ratified
b. ! counterargument is that
<reseres= refers to the police
powers that are inherent to thestate goernments
ii. The olution of 6ederal 5ower Under the Interstate Commerce
Clause
$. "eneral bac-ground
a. The power to regulate is seen as included in the
generali;ed police power that is possessed by the
states
b. The notion is that eery goernment has certain
powers# including police powers# Aust by the fact it is a
goernment
c. 5olice power includes power to regulate health#
safety# and welfare %and sometimes morals'
d. Under the !rticles of Confederation# the generali;ed
authority was presumed to hae remained with the
states
e. With the Constitution came the commerce clause#
granting power to regulate among the states to the
federal goernment
i. Howeer# the states still possess the general
police power to regulate
ii. States did not gie the federal goernment
general police power
iii. If the federal goernment wants to e2ercise
police power# there must be some direct te2tual
commitment in the Constitution# unli-e the
states who hae general police powers without
Constitutional commitment
f. Two types of 1uestions:
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i. 6ederal goernment wants to act: Is the act
authori;edL %chapter * & Constitutional
authority'
ii. State goernment wants to act: Is the act
prohibitedL %chapter 4 & Constitutionalprohibitions'
(. The original claim for e2pansie federal powers: the
+arshall court and 'ibbons %the CF!SSIC!F iew'
a. 'ibbons v. *+den
i. 6acts
$. The D3 legislature granted licenses to
Fiingston and 6ulton as hainge2clusie rights to operate steamboats
in D3 harbor
(. Fi/6ult gae a license to @gden# who
began operating a monopoly "ibbons
was @gden?s partner who then left and
obtained a federal coasting license
a. The federal coasting license is a
license to engage in either
international commerce or to go
down the U.S. coast
b. "ibbons used the license to set
up a competing ferry in D3
harbor
*. @gden obtains a state court inAunction to
force "ibbons to stop operating
4. "ibbons appeals to U.S.S.Ct.# arguingthe monopoly to be in iolation of federal
law
ii. Court
$. How to interpret the Commerce Clause
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a. Te2t: <To regulate commerce
with foreign nations# and among
the seeral states# and with the
Indian tribes.=
b. efining <commerce=
i. The narrow interpretation
would be buying and
selling of goods# which
would not include a
steamboat license
ii. The broadest
interpretation would be all
economic actiity
iii. +arshall defines
commerce somewhere in
between these two
interpretations.
i. He says that commerce
certainly includes
naigation because there
can be no transaction
unless the thing is
deliered %in this case
people'
c. efining <among the states=
i. Darrowly: The terms and
conditions of border
crossing
ii. 6or the feds to effectiely
regulate# they hae to
reach into the doc-s that
are completely within Dew
3or- and regulate what
occurs inside Dew 3or-
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iii. )roadly: !nything that
affects more than one
state
i. +arshall ta-es the broad
interpretation.
d. efining <regulate=
i. Darrowly: Stating terms
and conditions
ii. )roadly: 5lenary. If
Congress has any power
at all# they can do anything
they want.
(. Holding: The federal law giing "ibbons
the license to operate in all the waters is
Constitutional under the commerce law.
)ased on the Supremacy Clause# since
the federal license is alid# this is
according to supreme law of the land
and the D3 statute is inalidated.
*. What if there was no federal licensing
lawL Can the D3 law be alid becauseof the absence of the law# though
Congress has the power to regulate in
this areaL
a. This case did not ta-e the stance
that if the feds can act# that the
states cannot act.
b. This case argued that there are
concurrent powers unless and
until there is a conflict# the feds
can act also.
b. irect . Indirect ffects Test %U.. v. !.C. 2ni+ht '
i. 6acts
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$. Sherman !ntitrust !ct made monopolies
illegal
(. The Sugar Trust bought up other
companies and came to control 0Q of
sugar production in the country
*. The trust argued that Congress could
not regulate this actiity because it was
outside of the commerce power
ii. Issue: oes the Commerce Clause allow
Congress to regulate manufacturing
$. !rguing for regulation
a. This is commerce# in that amonopoly on a good causes a
high price# which leads to a
reduction in consumption
b. This is among the states# in that
monopolies affect more than one
state
c. This falls within the meaning of
<regulate=
(. The court says there is no authority to
regulate
a. Court says that
production/manufacturing is not
interstate commerce. The
producer?s intent %to sell items
outside the state' does not ma-e
it part of commerce. 5roduction
includes farming# mining# etc.
b. The fi2ing of prices by
manufacturers will hae an
indirect result on interstate
commerce. )ut Congress cannot
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regulate actiities that do not
hae a direct effect.
*. It is hard to define what the distinction is
between direct and indirect effects
4. It seems li-e the feds being able to
regulate in this instance is a desirable
result# because no one state could
regulate a multistate monopoly
a. Howeer# the court did not want a
slippery slope. The Court
thought that if the feds could
begin to regulate primary
production# that the feds wouldcompletely displace the state
from a traditional area of state
regulation.
c. Substantial conomic ffects Test %Houston ,ai$road
Case'
i. 6acts
$. Bailroad charged much lower rates to
ship between points within Te2as thanfrom a point within Te2as to Fouisiana
(. The feds re1uired the railroad to cease
this discrimination in price
ii. Court
$. The feds stepped in to regulate because
they argued the intrastate actions had a
substantial negatie economic effect on
commerce between Fouisiana andTe2as
(. ! modern argument is that there are
different instrumentalities of interstate
commerce
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a. Teleision# the internet# etc.
b. !ir traffic
c. Boad traffic and railways
i. ! railroad is an
instrumentality of interstate
commerce# so therefore by
definition it may be
regulated
d. Stream of Commerce Test %wi/t v. U..'
i. 6acts
$. "oernment imposed restrictions on
price fi2ing for cattle at stoc-yards
(. 6rom there# the cattle are shipped to
other states
*. Suit filed against distributor who would
buy cattle# butcher them and then sell
the meat elsewhere
4. istributors claimed the federal
goernment was acting outside of thecommerce clause?s power
ii. !rgument against Begulation
$. The slaughtering and butchering of
cows ta-es place entirely within a state
iii. Court
$. Stoc-yards for cattle can be regulated
(. The court loo-s at the process of
gra;ing cattle to the selling of meat to
the consumer and says the entire
process is interstate in nature
a. The selling of the butchered meat
within the state is part of the
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policing of what it deems to be immoral
products
a. This raises a fourth issue# in
addition to commerce# among the
states and regulation:
b. Can Congress use the commerce
power to achiee a certain
<purpose#= regardless of whether
or not it is to regulate commerce
*. The era of limited federal power: from the Ciil War to the
"reat epression %the !BF3 +@BD phase'
a. Ha&&er v. Da+enhart %Child Fabor Case'
i. 6acts
$. Statute forbade the interstate shipment
of goods made with child labor
(. !lso prohibited child labor
ii. Court
$. Under C Knight# the statute could not
regulate child labor# because this isregulating primary production
(. !lso# Congress cannot forbid the
interstate shipment of goods produced
by child labor
*. In Champion# the lottery tic-ets# the
goods# themseles were reprehensible
but in this case# there was nothing
wrong with the goods# Aust how the chair
was made
a. Congress can regulate goods
bad in themseles# but not goods
made in a bad way
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b. Court addressed the argument
that feds not being allowed to
prohibit child labor would create a
competitie disadantage for
states that did not allow cheap
child labor. The Court said# <too
bad#= this is an indirect effect on
interstate commerce. Congress
cannot regulate.
b. The "reat epression
i. The 6irst Dew eal# Dational Industrial
Becoery !ct
$. !imed at stabili;ing wages# prices andproduction. Stopping the spiraling down
through gathering sta-eholders to
negotiate a code of fair practices in each
industry.
(. @nce the code was approed# it became
binding upon all members of the
industry# whether those members were
present at the code approal meetings
or not.
*. chechter #ou$try case tried the
constitutionality of the chic-en code:
a. Schechter was conicted of not
complying with the poultry code
b. Congress was regulating to try to
reduce prices to increase
spending# which would hopefully
end the epression
i. Increased spending would
increase purchases
among the states
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c. !lso# regulating ma2imum hours
of wor- forces employers to hire
more# which creates Aobs
d. The maAority held the law
unconstitutional
i. 2traordinary conditions
%"reat epression' should
not affect Constitutional
interpretation
ii. Schechter as a wholesaler
is the end of the stream of
commerce. 9ust as C
Knight reAected regulationof production at the
beginning of the stream of
commerce# this case
reAects the end of the
stream of commerce
%wholesale selling of the
chic-ens'.
iii. 6eds cannot regulate Aust
due to necessity.
i. The effect upon interstate
commerce would be an
indirect effect. !ny effect
would not be dependent
upon Schechter?s
practices but upon other
people?s choices.
e. The concurrence agreed that the
DIB! was obAectionable
4. Carter v. Carter Coa$
a. +ini,DIB! Aust for the coal
companies# attempting to
stabili;e coal prices
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b. +aAority says this legislation is
aimed at regulating the general
welfare of the people# which is
not allowed by the feds: the
general welfare can only be
regulated by the police power
%the states'
i. The maAority is saying that
if the end %or purpose' of
the regulation is
inappropriate# Congress
cannot use the means of
regulation een if they are
allowed under the
Commerce Clause
c. This is not commerce because it
is primary production
d. Dot among the states because
the mining ta-es place wholly
within single states
e. The effect on interstate
commerce is indirect
f. Cardo;o?s issent too- issue with
the focus on direct/indirect effects
i. Instead should focus on
the magnitude of the
effect. If there is a big
effect of the actiity upon
interstate commerce# then
regulation is appropriate
ii. Indirect effects might not
be large in magnitude# so
the focus should be on
how much effect there is
on interstate commerce
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ii. The <Second= Dew eal
$. 6B has discoered that passing
legislation that would be reAected by the
Court made the legislation ineffectie
(. 6B had a court,pac-ing plan to replace
the old Austices
a. 6B phrased the bill as
increasing the si;e of the court
from to $8 to proide
assistance for the poor old fol-s
with a heay load
b. Intent was to add Austices with
6B?s iews on the commerce
power
c. The plan was oted down by
Congress# which was largely
comprised of 6B?s own
democratic party because this
was a disguised plan to
effectuate 6B?s plans
*. Howeer# the Court itself began to morebroadly construe the commerce clause
4. Second Dew eal inoled more bodies
and boards intended to impose direct
regulation. Dot by cooperation as in the
6irst Dew eal# but rather through
e2ecutie power: creating
administratie agencies that made these
choices directly. Second Dew eal was
the Dational Fabor Belations !ct%DFB!'.
4. The post,Dew eal reformulation and the decline of limits on
federal commerce power %+@BD phase'
a. (L,% v. 3ones Lau+h$in tee$ Corp.
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i. 6acts
$. Fabor )oard ordered the defendant
steel company to stop discriminatory
employment practices %firing employees
who Aoined unions'
(. The Dational Fabor Belations !ct was
intended to regulate the terms of the
conflict between employer and
employee
a. The terms of the act try to
establish the connection between
the act and the effects upon
interstate commerce
b. The Court is not forced to buy the
statute?s language
*. !bout the company in this case
a. +anufacturing is strictly within the
State of 5ennsylania
b. 4th largest producer in the U.S.
c. @wns and controls mines in otherstates
d. @wns warehouses in other states
e. @perates fabrication shops in
other states
ii. Faw
$. !rguing for the manufacturer:
a. This is not commerce
i. It inoles employment
practices# which is not
commerce
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ii. This is a manufacturer and
therefore outside of stream
of commerce
b. Dot among the states# in that the
industrial labor relations areentirely within the State of
5ennsylania
c. +anufacturer would win under
prior case law
(. +aAority %holding against manufacturer'
a. oes not address whether or not
this is actually commerce.
Instead focuses on different
1uestions. The real issue the
court says is whether or not the
actiity to be regulated affects
commerce.
b. The 1uestion is not whether or
not this is commerce# but whether
the actiity to be regulated has a
substantial effect on interstate
commerce
i. There are effects on
interstate commerce:
firing employees and
employee conflicts causes
stoppages in commerce
ii. The shift is from focusing
on what commerce is to
whether the actiitysubstantially affects
interstate commerce
iii. The difficulty with this
reasoning is that it is easy
to imagine eery human
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actiity as haing a
substantial effect upon
interstate commerce , if
this is the test# it seems
that the states cannot
regulate anything and the
feds can regulate
eerything.
b. U.. v. Darby
i. 6acts
$. efendant# state lumber manufacturer#
charged with iolation of federal 6air
Fabor Standards !ct
(. The !ct regulated minimum wages#
ma2imum hours and child labor
*. Two prohibitions in the statute:
a. Do shipping goods made in
iolation
b. Do ma-ing of goods in iolation
c. 5erhaps Congress put bothprohibitions in the statute
because it wasn?t sure if one of
them would be struc- down by
the court
ii. Court
$. Can Congress prohibit the shipment of
goods in interstate commerce of goods
made under unfair labor conditionsL
a. 3es# the court reerses the
holding of the child labor case
%Hammer . aggenhart'
i. Congress has total power
to determine the terms and
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conditions of what can
cross interstate
boundaries
ii. Congress has plenary
power oer bordercrossing# including
prohibitions of shipments
(. Can Congress directly prohibit the
manufacture of goods in contraention
of the !ctL
a. 3es# because a portion of what is
manufactured in the state
crosses state borders
b. Congress can regulate the
actiity wholly within a state:
because the court is not able to
regulate Aust the items to be sold
out across state boundaries. The
Court has to regulate all
production in order to regulate
the portion of goods that is
destined for interstate commerce.
c. !llowing long hours or low pay in
"eorgia will hae effects in other
states other states would be at a
competitie disadantage & they
would e2port fewer goods than
"eorgia. Therefore# these
prohibitions are Constitutional
because they regulate wor-ing
conditions that hae an effect on
interstate commerce.
c. -ickard v. )i$burn
i. 6acts
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$. The !gricultural !ct aimed to raise the
prices of agricultural commodities to
sae farmers from ban-ruptcy.
Therefore# the act aimed to lower the
supply to raise prices.
(. eryone who raised wheat was gien a
1uota. If you raised more than that
1uota# you suffered a penalty.
*. This farmer raises wheat oer his 1uota
for personal uses: feeding his own
liestoc-# use for seed# ma-ing flour.
ii. 6armer?s argument
$. Cannot regulate because he is raising
the wheat to support his own farm#
which is not interstate commerce
(. The argument is not that the farmer can
raise howeer much wheat he wants. It
is that only the state can tell him how
much wheat he can raise.
iii. Court
$. The wheat that the farmer grew for
himself affects interstate commerce.
The farmer did not buy the wheat# which
made the supply too high.
a. The problem with this logic is that
there is no substantial affect on
interstate commerce.
b. Howeer# the aggregate effect is
that the statute applies to all thefarmers. The aggregate effect of
all the farmers raising aboe their
1uota does hae a substantial
effect on interstate commerce.
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c. !lso the federal goernment
could not hae effectiely
regulated the price of wheat
without regulating the 1uota of
wheat that each farmer could
raise
d. Don,Commerce= !ctiities regulated through the
Interstate Commerce Clause
i. Ciil Bights
$. Heart o/ At$anta Mote$ v. U..
a. 6acts
i. +otel wanted to refuseblac-s
ii. The act at issue federally
outlawed discrimination
based upon race
iii. The act was legitimi;ed
under the Commerce
Clause# not the $4th
!mendment# because $4th
said no <state= could
deprie of liberty. $4th
does not prohibit the
federal goernment.
i. Congressional findings
showed that the motel?s
refusal had a great effect
on interstate commerce:
blac-s couldn?t trael and
therefore did not spend
money
b. Court
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i. The motel?s prohibitions
hae a substantial effect
upon interstate commerce
ii. Holding is critici;ed
because it allows the fedsto regulate with legitimate
means under the
commerce clause but to
achiee an end that has
nothing to do with
commerce
(. 2at6enbach v. McC$un+
a. 6acts
i. The act allowed regulation
of restaurants if customers
were people traeling in
interstate commerce or if
the restaurant bought food
from out of state
ii. The restaurant
discriminated in this case
iii. The restaurant was near
the interstate and bought a
large amount of food that
deried from out,of,state
suppliers
i. The court allows the
restaurant?s discriminatory
practices to be regulated
b. Court
i. Bacial discrimination in
restaurants places a
burden on interstate
commerce
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ii. This restaurant purchased
a substantial amount of
food from out of state.
Theoretically# regulating to
allow blac-s increases
number of customers#
which has effect on
amount of food that must
be purchased from out of
state.
iii. The Court says that there
Aust has to be an effect
upon commerce the effect
can be either positie or
negatie. 6or e2ample#
een if the effect was that
allowing blac-s would
decrease the number of
white customers# the
restaurant?s discrimination
could still be regulated.
ii. nironmental Faw
$. Hode$
a. 6acts
i. 6ederal statute re1uired
strip mining companies to
restore the land to
preious condition after
done with a mine
b. Court
i. Begulating an actiity that
does hae a substantial
effect upon interstate
commerce
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ii. Be1uiring the land to be
restored allows people to
build on the land# isit it#
etc.
iii. Criminal Faw
$. <+ar-et= Crimes
a. Crimes that are inherently a part
of the interstate mar-et
%securities# commodities# etc.'
b. Don controersial under the
commerce clause
(. Using <instrumentalities=
a. 2ample# crime to commit fraud#
if using interstate mechanisms of
communication %using federal
mails or telephones'
b. Don,controersial
*. )order Crossing <hoo-=
a. Crimes that hae transportationacross state lines as part of the
definition
b. 6or e2ample# crimes inoling the
moement of persons across
state lines
c. +a-ing it a crime to illegally sell
firearms across state lines
d. Don,controersial
4. Controersial cases %#ere6 v. U..'
a. 6acts
i. 6ederal statute ma-es
loanshar-ing illegal
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ii. idence that
loanshar-ing affects
interstate commerce & the
actiity proides interstate
organi;ed crime with
reenue
b. Court
i. @rgani;ed crime uses and
creates funds through
loanshar-ing# and this
money flows across
interstate lines
ii. Do proof in this case thatthe funds at issue were
inoled in interstate
commerce. Howeer# in
the aggregate#
loanshar-ing across the
country has an effect on
consumers spending
money in interstate
commerce.
iii. !lso# cannot segregate the
two# intra and interstate.
Hae to regulate both to
effectiely regulate the
interstate component.
8. The Behn1uist Court and the reimposition of some minimal
limits on federal commerce power %$Js till today'
a. U.. v. Lope6
i. 6acts
$. Congress passed the "un,6ree School
Rones !ct that forbade -nowingly
possessing a firearm in a school ;one
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(. ! high school senior was conicted
under the statute
ii. Three areas that Congress can regulate under
interstate commerce:
$. Channels of commerce %border
crossings'
(. Instrumentalities of commerce
*. conomic actiities that hae a
substantial effect upon interstate
commerce
iii. The regulation of guns in school ;ones does
not meet the third area. It is not an actiity thatCongress can regulate.
i. "oernment?s !rgument
$. >iolent crime can handicap the learning
process and result in less productie
citi;enry which has a negatie effect on
interstate commerce because citi;ens
will spend less and goods in interstate
commerce will not be transferred as
much.
(. >iolent crime will spread high costs
throughout the economy. >iolent crime
reduces people?s willingness to trael
across the country.
. The holding in this case stops the slippery
slope and distinguishes from Wic-ard:
$. In Wic-ard the effects were attenuated#as in this case# yet Wic-ard allowed that
actiity to be regulated.
(. Wic-ard is distinguished# in that it
included economic actiity# in a way that
possession of a gun does not. Wic-ard
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was engaged in growing of the crops#
which had to do with Wic-ard?s
economic actiity as a farmer. )ut
merely possessing something is not an
economic actiity.
*. Hypo: if the statute had forbade
borrowing or buying a gun and then
bringing into a school ;one# this would
hae been an economic actiity.
4. Hypo: If the statute forbade use of the
gun to engage in forced buying or
selling# this would hae been an
economic actiity.
8. Dote that the economic actiity is a new
limit# but does not oerturn the holding
in any of the preious cases %5ere;#
Heart of !tlanta# etc.'
i. ducation is a traditional area of state concern
and within state power. This is a reason to
loo- more closely at the bases of federal
power.
ii. The statute perhaps could hae been reformed
to sustain federal power if the statute contained
a Aurisdictional ne2us %<possessing a gun that
has traeled in interstate commerce.= This
would hae been true in 4 states because
only three states manufacture guns'.
b. U.. v. Morrison
i. 6acts
$. Congress passed the >iolence !gainst
Women !ct# which made it illegal to use
any physical iolence against women
because of their gender
(. The rationale of the statute was based
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the belief that the states were not
regulating the actiity well enough
*. In this case# the woman at the college
was raped by football players
ii. Congress in the statute set forth how gender,
based iolence affects commerce
$. The congressional findings were
e2tensie
(. Women miss wor- because of being
hurt
*. Women don?t graduate from college and
get Aobs
4. The causal relationship between the
actiity and effects upon commerce is
much stronger than what e2isted in
Fope;
iii. Though the causal relationship is strong# the
feds still do not hae the power to regulate
$. This is a traditional area of state
regulation
(. This is not an economic actiity %i.e.
beating up a girl is not an economic
actiity'
c. 'on6a$es v. ,aich
i. 6acts
$. Congress passed the Controlled
Substances !ct %CS!' criminali;ing themanufacture or possession of mariAuana
(. California passed an initiatie %a
plebiscite' allowing production and use
of mariAuana as a medicinal agent
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*. The 1uestion is whether the federal
statute falls within federal power
ii. efendant?s argument
$. "rowing mariAuana for personal use isnot commerce
(. There is no substantial effect of the
mariAuana growth upon interstate
commerce & in the aggregate# there are
not that many people growing mariAuana
for medicinal uses# so there will not be a
substantial effect upon the interstate
mar-et for an illegal drug
iii. Court
$. There are effects on interstate
commerce: through growing# not buying
the mariAuana from out of state %Wic-ard
type argument & growing a commodity
that can moe in interstate commerce'
(. Congressional findings established that
the actiity of growing mariAuana has
substantial effects
*. The growing of mariAuana is an
economic actiity %production of a
commodity for which there is a mar-et'
i. Scalia?s Concurrence
$. Congress can use the Decessary and
5roper Clause to regulate although the
growing of mariAuana does not hae a
substantial effect upon interstatecommerce. It is necessary to regulate
the national illegal drug mar-et# so
Congress can regulate the intrastate
actiity of growing in California.
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(. Counterargument is that you can
distinguish between those who are
growing for personal use and those who
are growing for illegal use in California.
. issent
$. !llow states to pursue different policies
and function as laboratories
7. 2trinsic limits on federal commerce power: the $Jth
!mendment
a. Fimits on federal power in general
i. !rticle I# Section
ii. $$th !mendment
$. eals with federal courts Aurisdiction
(. Chisho$& v. 'eor+ia
a. Citi;en of South Carolina sued
the State of "eorgia
b. The $$th !mendment oerturned
this decision and forbade the
citi;en of one state from suing
another state
iii. $Jth !mendment
$. oes it by its terms or by its spirit create
a limit on the e2pansion of federal
powerL
a. The te2t itself does not indicate
this
b. )ut the idea e2pressed is of <dual
federalism=:
i. )oth the states and the
federal goernment are
soereigns
0(
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ii. There is a central essence
of state soereignty that
the feds may not infringe
upon# een if they were
otherwise authori;ed to act
(. Therefore# the $Jth !mendment brings
in a second 1uestion. The first 1uestion
is <!re the feds authori;ed to actL= )ut
the second 1uestion is <oes this
infringe upon state powerL=
a. The problem is that the court has
to go far outside constitutional
te2t to determine what is at the
core of the states? powers
b. )ecause there is no listing of
core state powers in the
document
b. (ationa$ Lea+ue o/ Cities v. Usery
i. 6acts
$. 6air Fabor Standards !ct %6FS!'
originally applied only to priateemployers
(. Howeer# 6FS! was amended to e2tend
minimum wages and ma2imum hours to
employees of states and local
goernments
ii. Issue: Can Congress e2tend regulation to the
states? hiring practices of its own employees
iii. Court
$. Besurrection of the $Jth !mendment
re1uirement that there be a recogni;ed
core area of state power
0*
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(. Begulating state employees? pay
significantly impacts state policy and
impairs the state?s soereignty in
implementing its own policies
*. The problem with the case holding isthatE
c. 'arcia v. an Antonio Metropo$itan ransit Authority
i. 6acts
$. 6FS! imposed minimum wage and
oertime re1uirements on a municipal
transit authority
ii. Court
$. (ationa$ Lea+ue oerruled
(. The distinction between actiities
integral and non integral to state
soereignty is not wor-able
a. +ost actiities that were once
thought of as inherently state,
regulated are now actiities
regulated at a national leel
b. 6or e2ample# education used to
be solely an area of state
responsibility but the modern
public school system is a national
enterprise
*. Court cannot rule on which state
functions are integral this would be a
policy 1uestion decided by unelected Audges
4. 5rocedural safeguards inherent in
federalism preent intrusions into state
autonomy
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a. 5olitical process preents laws
burdensome to the states
b. Congressmen from states are
elected by statesmen
8. Court finds no substantie limits on
federal regulation in the $Jth
!mendment howeer in subse1uent
cases the Court found in the $Jth
!mendment a methodological limit on
federal regulation
d. (ew 7ork v. U..
i. 6acts
$. Fow,leel nuclear waste needed to be
disposed of
a. +edical waste from 2,rays# for
e2ample
b. Dot nuclear power plant waste
(. !t the time of this case# only * states
had dump sites they accepted waste
from other states
*. The states that had the dump sites were
threatening to close them because of
the accumulation of waste
4. The goernors of the states met to
address this problem they decided on a
plan to create a policy for all the states
a. !rticle I prohibits such an
agreement among the states
without the consent of Congress
b. So Congress passed a statute
that eery state had to deal with
its own waste:
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i. nter into regional
compact# or
ii. Hae waste disposal plant
within the state
8. This system wasn?t wor-ing well. States
did not find dump sites or enter into
regional compacts. "oernors came up
with a reised plan. Congress approed
the plan as a matter of federal law. *
incenties:
a. +onetary & States with disposal
sites could charge other states
higher fees to receie waste
b. !ccess & If the state didn?t do
something to proide for its own
disposal# the receiing state
could refuse to receie any more
waste from the other state.
c. <Ta-e title= Sanction & If state did
not meet re1uirement# must ta-e
title to the waste and be liable for
all damages suffered by waste
i. This was the real hammer
that was intended to force
the states to comply
ii. This is the proision that
the Court says is
unconstitutional
7. State of D3 alleges that the whole plan
is unconstitutional
ii. Court
$. The $Jth !mendment does not pose
any substantie limit on federal
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regulation. 'arcia is still law. Congress
can directly regulate if it chooses.
(. Howeer# there is a procedural limit in
the $Jth !mendment principle: The
feds cannot <commandeer= statelegislatie authority.
a. The federal goernment cannot
mandate that the states pass
certain legislation
b. This would remoe state
autonomy to re1uire the states to
pass laws
c. !lso# if the feds could force states
to pass statutes# there would be
diminished accountability
i. If the oters do not li-e the
legislation they cannot
change the situation.
)ecause the state passed
the laws# but the feds
authored the law
ii. State bears the brunt of
public disapproal# while
feds remain insulated from
the electoral ramifications
of their decision
iii. The * incenties
$. +onetary & either enter into the
agreement or pay the surcharge
a. This is lawful because it is a term
of border crossing
b. This falls under the commerce
clause
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c. )ecause the feds could impose
the surcharge under commerce
power# it is lawful for the feds to
re1uire that the state pass the
legislation# or else the surcharge
will be imposed
(. !ccess & either enter into the
agreement or be forbidden from
e2porting
a. 6orbidding e2ports is lawful under
the commerce power %Fottery
case'
b. This proision is lawful for thesame reason as the monetary
incentie
*. Ta-e Title Sanction & either enter into
the agreement or ta-e title
a. The feds do not hae the power
to re1uire states to ta-e title to
the waste
b. Therefore# the feds cannotre1uire either that the state
passes the legislation or ta-e title
c. The state is gien a choice
between two alternaties# neither
one of which is allowed to be
directly imposed
i. This amounts to telling the
state it has to legislate
ii. This is commandeering of
the state?s legislatie
authority
i. issent points out that this is not a ictory for
states? rights
00
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$. States bargained among themseles to
impose this regulatory scheme
(. The political process succeeded in this
case so the states? soereignty was not
inaded
*. @ne state# Dew 3or-# tried to bac- out
and successfully got the law adAudged
unconstitutional# when it originally
wanted the law to begin withG
e. #rint6 v. U..
i. 6acts
$. The feds passed a handgun iolencepreention act
(. The act re1uired bac-ground chec-s to
be performed by state and local law
enforcement officers
*. The officers are mad because they are
not getting paid to do this
4. 5olice hae to deote resources to
obeying a federal mandate# but the fedsdo not proide funding to carry out the
mandate
ii. Court
$. The commandeering principle e2tends
to state e2ecutie
(. The Court cannot ma-e state officials
enforce federal law
a. The result of this is the feds doing
it directly through creating a
federal bureaucracy
iii. 6ederal Ta2ing and Spending 5owers
$. The Ta2ing 5ower as a Begulatory eice0
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a. !rticle I# Section 0# Clause $: <The power to lay and
collect ta2es# duties# imposts and e2cises# to pay the
debts and proide for the common defense and
general welfare of the United States.=
i. <)ut all duties shall be uniform throughout theUnited States= & a restriction on this ta2ing
power
ii. @ther sections also place limitations on the
types of ta2es that may be imposed
iii. )ut oerall# not may limitations in the te2t on
the power to ta2.
b. !ddressed conAunctiely with considering the
spending power# below
(. The Spending 5ower as a Begulatory eice
a. The problem is that there are always conditions to
receiing the money from the federal goernment.
This turns out being a way of regulating actiity.
i. The problem is that this has the effect of
regulating actiity that otherwise the feds do
not hae power to regulate
ii. The 1uestion is to what e2tent the goernment
can condition the payment of money to states
upon the states acting a certain way# where the
federal goernment lac-s the authority to
directly regulate
b. United tates v. %ut$er
i. 6acts
$. Dew eal# !gricultural !dAustment !ct
of $**: stabili;ed farm prices by
reducing agricultural production
(. !uthori;ed payments to farmers who
reduced their crop acreage
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*. Ta2 on processors was used to proide
the fund to pay the farmers who
complied by reducing their crop acreage
4. So there are two separate issues: The
ta2ing power and the spending power%which ma-es payments conditionally'
ii. +aAority
$. This is regulation# in that the behaior of
the farmers is inoluntary: the farmer
has to not produce to get the payments
(. The act uses federal spending to obtain
compliance this is using the spending
power for an illegitimate end# to
effectiely regulate
*. Cannot use the ta2ing/spending power
to achiee a non,reenue raising end
4. oes not address the issue of whether
or not the spending effected the general
welfare# because this is something for
Congress to decide
8. It is a slippery slope to leae the
ta2ation and spending power unchec-ed
iii. Stone?s issent
$. There is no economic coercion of the
farmers the farmers are only promised
gain if they do comply by reducing
acreage
(. Congress? power to spend is not limitedby its effects on motiating the actions
of citi;ens. If the motiation of citi;ens
accords with Congress? purpose for
ma-ing payments to promote the
general welfare# then the spending
power is legitimate.
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*. Congress should be able to ma-e its
payments to citi;ens conditional in order
to achiee the <general welfare= that the
payments are sought to achiee.
c. teward Machine v. Davis
i. 6acts
$. Social Security !ct set up an
unemployment compensation scheme
(. The feds subsidi;ed the state
unemployment compensation process
only for employers with employees of
eight employees or more that enacted
the federal unemployment standards at
the state leel
*. 6or states that enacted the federal
unemployment compensation
standards# employers in the state got up
to a JQ federal ta2 credit for
contributions to the state unemployment
fund certified by a federal agency as
meeting re1uirements of the !ct
ii. +aAority & Cardo;o
$. This case is distinguishable from )utler
a. Cardo;o defines coercion
differently than in )utler. This
case inoles inducement# not
duress. The states could not gie
the re1uisite relief in this case# so
the need of the nation?s help was
needed to preent people from
staration.
b. Fots of goernment programs
influence behaior. If eery
inducement counted as coercion#
this would preent the
(
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goernment from doing anything
at all.
c. The goernment must gie out
money on conditions. Haing
conditions to spending isconstitutionally re1uired: the
conditions must be imposed to
ensure that <the general welfare=
will be improed.
d. The carrot is the inducement# the
stic- is coercion. If something
bad will happen upon refusal# that
is coercion if denial of a benefit
will occur upon refusal# then thisis inducement.
i. Howeer# this does not
seem to be a manageable
standard.
ii. etermining what is the
threat of loss and what is
the hope of a benefit can
be a fine distinction.
iii. This case is the basis of modern conditional
spending law.
d. outh Dakota v. Do$e
i. 6acts
$. The ($st !mendment ending prohibition
forbade the feds from regulating alcohol
consumption and sales on national leel
(. So the feds try to effectiely regulate the
national drin-ing age through
conditioning highway funds to states
upon the states? agreement to raise the
drin-ing age to ($
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*. If the states did not raise the drin-ing
age# the state would lose 8Q of funds
ii. +aAority
$. liminating younger drin-ers fromdrin-ing would ma-e the highways
safer ma-ing the highways safer is the
aim of proiding highway funds to the
states
(. Fimitations on spending power:
a. Te2t: has to be for the general
welfare# the meaning which is
decided by Congress
b. Congress must clearly state that
payments are made upon certain
conditions %Congressmen must
be aware they are putting a
restriction upon the states when
enacting it'
i. Congress is composed of
people who represent
home states# so thecongressmen are not
going to impose burdens
on the home states unless
they are aware of those
burdens
c. The condition must be related to
the purpose of the underlying
spending program
i. 6or e2ample# feds could
not ma-e +edicaid funding
conditioned upon states
changing their sales ta2
laws & there would be no
relatedness in such a case
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d. Cannot be coercie upon the
states
e. Cannot re1uire the states to
iolate an e2trinsic constitutional
norm
i. 2ample# feds could not
re1uire the state to iolate
the $st !mendment in
order to receie the funds
*. If the aboe 8 criteria are met# the
spending program is alid. This is the
modern rule.
4. The most contentious in this case is
whether the condition is actually related
to the underlying purpose of the
spending program
a. The maAority says that the
purpose of the spending is safety
of highways. The condition of a
higher drin-ing age is meant to
ensure greater safety# and
therefore the condition is related
to the purpose.
b. The dissent says that the drin-ing
actiity has an attenuated effect
on highway safety.
i. issent suggests that the
spending power is
effectiely regulation if the
condition does more thanspecify how the money
can be spent by the states
8. CoercionL
a. The maAority says no because it
is only the denial of a benefit if
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(. ,eid v. Covert
a. 2ecutie agreement said that
U.S. military personnel and their
dependents that committed
criminal acts oerseas would notbe tried by local courts but
instead U.S. military courts
b. The Constitution limits the
authority of military courts & they
cannot e2ercise Aurisdiction oer
ciilians
c. Holding: that proisions of
treaties do not oerride theConstitution
*. Treaties . 6ederal Statutes
a. Treaties and federal statutes are
gien e1ual authority
b. If there is a conflict between a
treaty and a statute# the last in
time controls
iii. Self,e2ecuting treaties
$. These become operatie upon Senate
approal
(. )ut some are not self,e2ecuting. They
are promises to enact law.
b. 6acts
i. Treaty between the U.S. and "reat )ritain
ii. The treaty was to affect the protection of
migratory birds migrating between Canada and
the U.S.
iii. Treaty meant to presere the birds as natural
resources through limiting hunting
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i. Congress did pass an !ct along with the treaty
to carry out the limitation on hunting
. The court at the time would not hae allowed
this regulation Aust on the basis of the
commerce power
c. Court
i. Dow that a treaty has been authori;ed# the
power e2ercised according to the treaty is
legitimate
ii. Fimits on treaty power
$. Cannot infringe upon the Constitution?s
prohibitions %for e2ample# giing militarycourts Aurisdiction oer ciilians'
a. Howeer# in this case# the fact
that this was a traditional area of
state regulation did not mean
there was a constitutional
iolation
(. 5rocedural limits & formulated by
5resident and approed by the Senate
*. Implied limit & the subAect matter of the
treaty must be proper as something that
should be negotiated in an international
agreement
a. It is proper in this case because
the animals go bac- and forth
between the countries
b. This is li-e a shared resourcebetween the two countries it is
appropriate for the two countries
to negotiate to regulate
c. The subAect of international
treaties# howeer# has become a
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ery broad category of things
now therefore potentially this
implied limit is not much of a limit
modernly spea-ing
d. !dditionally# the states could noteffectiely regulate the birds on
their own
b. Constitutional Fimits on the Begulatory 5owers of the States
i. ! brief note on e2press constitutional limits on the states
$. The states possess general police powers without any
e2press grant of power by the Constitution. Therefore the
states hae the power unless the Constitution prohibits such
a power to the States.
a. !rticle I# Sect. $J
b. !mendment $4
c. !rticle I>
(. etermining limits on state regulatory powers:
a. +ethod of !nalysis
i. O$: Could the feds hae regulated the actiity
in 1uestionL
$. If not# then the states are free to act
%unless some other part of the
Constitution prohibits it'
(. If yes# then go to O(.
ii. O(: Hae the feds actually regulated the
actiity in 1uestionL
$. If yes# then hae to address preemption.
(. If no# this is a dormant commerce clause
1uestion.
ii. 5reemption of state regulatory power by federal regulation
$JJ
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$. efinition
a. Comes from the Supremacy Clause %!rt. 7# Section
('. If state law and federal law are in conflict# the feds
win. Types of preemption:
b. Conflict 5reemption:
i. Impossibility / irect %Traditional' & It is
impossible to not iolate both the federal and
the state law.
$. Bare type of conflict.
(. 2ample# a minimum standard by one
and a ma2imum by the other# when the
ma2imum set by one is lower than theother?s minimum.
*. D@T the following: F! minimum wage if
7 and federal is 0. 3ou can comply
with both laws as an employer by Aust
paying 0 an hour.
ii. Conflict with purpose of federal law:
$. 'ade
a. 6eds set regulations for
ha;ardous materials in the
wor-place.
b. State regulation set a public
health regulation that said
anyone handling dangerous
chemicals must undergo training.
State training re1uired was
greater than training re1uired byfeds.
c. The feds wanted to %$' create a
minimum safety standard and %('
create a national scheme of
training to ma-e it easier for
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companies to shift wor-ers
among different states
d. The state statute did not conflict
with purpose %$'# but it did conflict
with purpose %('
e. The state statute# conflicting with
the federal statute# was
preempted
(. )an-ruptcy case
a. 6ederal law allowed debts to be
dischargeable in ban-ruptcy
b. The !ri;ona statute did not allowsomeone to get their drier?s
license bac- if they did not pay a
Audgment from a car accident and
the debt from the Audgment was
not dischargeable in ban-ruptcy
c. The !ri;ona statute was
preempted. It conflicted with the
federal purpose of federal
ban-ruptcy legislation.
i. 6ed ban-ruptcy legislation
is meant to gie people a
fresh start so that they will
be productie in society.
ii. Dot allowing someone to
get drier?s license unless
they pay the debt preents
someone from driing. In
!R# without public
transportation# this would
ma-e people of little
productiity to society.
c. 6ield preemption
$J(
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i. If the feds occupy the whole field# then the
states cannot regulate in the field.
ii. How to tell if the feds occupy the whole field:
$. 2press & when Congress specificallysays that state law in the area is
preempted.
(. Implied & Congress has not e2pressly
said so# but other indicia in the statute
show that Congress is understood to
occupy the field.
8. #aci/ic 'as !$ec. Co. v. tate !ner+y ,esources
Conservation9
a. 6acts
i. California passed a law halting certification of
new nuclear power plants until a long,term plan
for waste disposal had been deeloped
ii. 6eds passed law and established regulatory
commission to promote the ciilian use of
nuclear energy in safe ways
b. Issues:
i. The type of conflict could not be an e2press
occupation of the field or an impossibility
conflict.
ii. The two issues are implied occupation of the
field and conflict with federal purposes
c. Whether or not there is implied occupation of this field
by the feds:
i. )alance between state and federal interests
$. When the federal interest is strong but
there is a relatiely small state interest#
this weighs in faor of preemption
$J*
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ii. <ensity= of federal regulation being so
complete that there is nothing left for the states
to do
$. The feds hae completely occupied the
field of nuclear safety. There is nothingleft to the states in the field of nuclear
safety.
(. The feds hae not# howeer# occupied
the field of the economic iability of
nuclear power plants.
a. The court beliees the legislatie
history of the state statute# that
the statute had the purpose ofregulating the construction of
nuclear power plants# though
there is other eidence that the
state?s purpose was to promote
nuclear safety
b. It is appropriate to beliee
legislatie history
d. Whether or not there is a conflict with the purpose of
federal law
i. The purpose of the federal law was to promote
safe use of nuclear power
ii. California is ma-ing it impossible to promote
the safe use of nuclear power in California
through preenting the use of any power in
California
iii. Howeer# the Court says that the feds? purpose
of promoting safe use of nuclear power is not
at any cost. Therefore# the state?s law does
not frustrate the purpose of the federal law.
e. Court says there is no preemption of state law. Close
case.
$J4
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iii. Implied limits on state regulatory authority arising from the
Interstate Commerce Clause: the so,called <dormant= commerce
clause
$. Introduction
a. Why Constitution gae commerce power to feds
i. States put up trade barriers and instituted
protectionist policies that hindered national and
international trade
ii. This would reduce the oerall amount of trade
iii. The framers belieed the nation would be
better off with a single national mar-et without
internal barriers to free trade
i. 6eds did not trust the states to restrict
themseles from putting up these trade barriers
b. The idea of the <dormant= commerce clause
i. !ddresses situations where feds could hae
enacted legislation in an area but did not
%dormant power'. Can the states legislate and
pass regulation in such areasL
(. arly attempts to define the implicit limits on state power
a. 'ibbons v. *+den %arly'
i. In dicta# addresses the 1uestion of what if there
had not been any federal coasting license in
this case
ii. +arshall leans in the direction of saying that
the grant of commerce power to the feds
implies the whole power and leaes no residualamount of regulation to the states
$. +arshall says he does not hae to
address the issue directly# though
iii. Is it a good idea for federal power to be
e2clusieL$J8
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$. +aybe not# because if all federal power
to regulate commerce goes to Congress
and must be regulated by Congress# this
puts a huge burden on Congress to
legislate effectiely for eery problem in
the country
(. !lso# better for states to regulate when
feds hae not acted because there may
be a need for the area to be regulated
*. Howeer# allowing the states to act
absent preemption would allow states to
create a detriment to other states which
would remain until Congress has acted
b. -i$$son v. %$ack:%ird Creek Marsh Co. %5urpose'
i. 6acts
$. elaware law allowed company to build
dam across naigable stream
(. 5art of a proAect to drain a swamp for
health and agricultural reasons
*. 6ederal goernment had power to
regulate regarding a naigable stream
because this is an instrumentality of
commerce
ii. Court
$. The state was regulating through its
police power# to regulate health and
safety of the people
a. Howeer# the states beingallowed to regulate using the
police power when the feds hae
not enacted legislation may lead
to them being to regulate irtually
anything# since the police power
is broad
$J7
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c. Di anto v. #A %irect/Indirect'
i. 6acts
$. State re1uired licensing fees on trael
agents selling steamship tic-ets forforeign trael
(. The purpose was to cut down on
fraudulent immigration
ii. Court
$. The federal goernment could hae
regulated because the commerce
clause allows it The feds had not
enacted any licensing statutes forbro-ers
(. State statute is alid because the effects
on interstate commerce from the state
acting is an indirect effect on interstate
commerce
*. issent pointed out that the difference
between direct and indirect effects was
too slight
d. Coo$ey v. %oard o/ -ardens %Inherently local/national'
i. 6acts
$. 5ennsylania law re1uired the plaintiff to
hire a pilot to guide him through the 5!
harbor
(. 5laintiff iolated the law
*. The feds could hae regulated but didnot enact any legislation
4. 5! had an interest because there was
speciali;ed -nowledge needed to safely
pass the 5hiladelphia waterway
ii. Court$J
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$. The state?s law is alid because local
authorities are more aware of local
conditions
(. Where local conditions ary# there must
be room for local regulation
*. The counterargument is that there are
situations where a national standard is
needed
a. 6or e2ample# the width of railroad
trac-s. en though railroad
trac-s are seemingly a local
issue# a train traeling across the
country cannot use trac-s instates of different width from the
state of departure
b. The Coo$ey principle does not
apply in such cases
c. !iation flight patterns
d. !ll airline pilots are re1uired to
spea- nglish with air traffic
controllers because of need foruniformityG
*. The modern analysis:
a. 5rohibiting state <protectionism=
i. 6acial iscrimination !gainst @ther States
$. #hi$ade$phia v. (ew 3ersey
a. 6acts
i. D9 operated a number of
garbage dump sites.
+uch of the garbage came
from 5!. 5! authorities
concerned that the dump
sites were filling up.
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ii. D9 passed a statute
ending the importation of
garbage from other states.
b. Issue: Whether D9 statute is
permissible under commerceclause
c. Court
i. This is an area of potential
federal authority because
there is an interstate
mar-et for refuse. 3et the
feds had not passed any
regulation in this case.
ii. State is not allowed to
regulate in this area. The
one thing a state may not
do is discriminate between
other goods and serices
because of where they
came from.
iii. Cannot discriminate
against goods and
serices simply because of
the point of origin
i. There are alternaties that
D9 could hae pursued:
shutting down the dumps
altogether and sending its
garbage out of state
d. The blac- letter rule is that astate cannot discriminate
between instate and out of state
parties in commerce
i. )ut this potentially
infringes upon state police
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powers to regulate the flow
of garbage into the state
ii. Howeer# the Court is
interpreting the commerce
clause structurally sayingthat the Constitution
intends to create a
national mar-et and the
commerce power preents
the states from interfering
with this national mar-et
e. Beasons for prohibiting facial
discrimination:
i. It is an illegitimate means
of isolating the state from
the national economy
ii. It is an attempt by one
state to isolate itself from a
common problem faced by
all the states through
erecting a barrier against
moement of interstatetrade
(. iscrimination Issues %State of @rigin'
a. <9ustification=
b. Ta2es/Subsidies
c. <Focal= iscrimination
d. Don,6acial iscrimination
*. Maine v. ay$or %<9ustification='
a. Bules goerning constitutional
cases
i. 5laintiff must ma-e prima
facie showing that a
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constitutional iolation
occurred
ii. efendant has to show
that iolation is Austified
b. 6acts
i. +aine passed state
regulation prohibiting
importation of baitfish
purchased in other states
ii. ery la-e has its own
population of fish and
parasites in +aine. +aine
is trying to inade
nonnatie parasites from
inading +aine waters# to
protect the fish population.
c. !nalysis
i. The statute definitely
facially discriminates
ii. The <ends= or purpose is
to protect the fish the
means is closing the
borders to baitfish from
other states
iii. +aine had a legitimate
enironmental purpose.
5rotecting goernment
ecology is something a
goernment is allowed to
do.
i. !dditionally# the
discrimination is allowed in
this case because there
were no other
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nondiscriminatory means
aailable.
d. 5roing that the state has a
legitimate purpose is easy. )ut
proing that there are no otheraailable means of achieing the
purpose is hard.
i. This is one of the rare
cases where the court has
upheld a facially
discriminatory statute
ii. It would not be practical to
use another means toachiee the ends for
e2ample# inspecting eery
tourist?s baitfish
e. Dote that a legitimate end is not
protecting state commerceG
4. Ta2es/Subsidies
a. Ta2 imposed on out of state
businesses and not on instatebusinesses iolates the strict
prohibition on facial
discrimination
i. Howeer compensating
use ta2es are permissible.
6or e2ample# out of state
ehicles registered in the
state being subAect to a
ta2.
ii. The out of state buyer is
treated the same as in
state because in state
buyers hae to pay sales
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ta2es on ehicles
purchased in the state
iii. The same theory applies
to the difference between
instate and out of statetuition charged to
uniersity students. The
instate students in theory
already hae been paying
ta2es to fund their
education# so charging out
of staters a higher tuition
amount puts them on a
leel playing field.
b. States may proide subsidies to
instate but not out of state
producers without facially
discriminating# een though
subsidies hae a similar
economic effect as ta2es
i. There is no political chec-
on the legislature when it
ta2es out of staters
ii. Howeer# there is a
political chec- on the
legislature giing out
subsidies to in staters.
The oters in the state
hae to pay for the
subsidies.
iii. Subsidies are sufficiently
self,limiting that they are
-ept within reasonable
bounds through the
political process.
c. -est Lynn Crea&ery v. Hea$y
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i. Combination of ta2 and
subsidy
ii. Ta2 was placed on all
consumers. @n the
proceeds of the ta2#subsidies were gien to
instate producers.
iii. 5lacing the two together
iolates the Constitution
i. The net effect is only
ta2ing the out of staters
8. <Focal= iscrimination
a. Dean Mi$k Co. v. Madison
i. Do sale of mil- in +adison#
WI was allowed unless it
had been processed within
8 miles of the town s1uare
of +adison
ii. The plaintiff is an Illinois
producer of mil- that
pasteuri;ed in Illinois and
wanted to ship to and sell
the mil- in +adison
iii. The category of those
e2cluded is not only out of
staters but also instaters
that are not within 8 miles
of +adison
i. This is not facialdiscrimination# in that it
does not faor instaters#
but Aust producers on a
local leel. The statute
discriminates against both
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all out of staters and most
instaters
. The maAority says that this
local discrimination is
improper under thedormant commerce
clause. !
counterargument is that
there is a sufficient political
chec-# in that all other
people of Wisconsin
outside of the +adison
area could lobby to hae
the +adison people to
ote against the
ordinance.
i. The court treats this with
rigor to find a form of
interstate discrimination.
ii. The state?s interest here is
to allow for inspection of
mil- sold in +adison to
meet +adison standards.The court# though# points
out that there are
alternaties# such as
Wisconsin hae its
inspectors inspect out of
state mil- and then impose
the cost to the mil-
producers.
b. CA Carbone; <nc. v. C$arkstown
i. Clar-stown# D3 built a new
trash transfer station and
shut down landfill
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ii. !morti;ed the cost through
charging a fee to haulers
depositing garbage there
iii. @rdinance re1uired trash
to be sent there
i. 5laintiff recycler sent trash
out of state# disobeying the
ordinance. 5laintiff
wanted to haul his trash
elsewhere# to a location
that would charge a lower
price. )ut plaintiff could
not due this because of
the ordinance.
. issent tries to distinguish
from ean +il-: this case
inoles establishing a
monopoly. Though a
monopoly discriminates
against eeryone else in
the world# this is not the
discrimination prohibited
by dormant commerceclause.
i. The maAority says this puts
a barrier upon the trash
that would normally flow
across interstate lines so
there is discrimination.
ii. There is discrimination and
it is not Austified because
there are other
alternaties# e2ample#
subsidi;ing the facility
through municipal bonds.
)ut this might not be a
alid option because the
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ta2payers did not support
the facility in the first place
and probably wouldn?t ote
for a subsidy.
c. United Hau$ers Ass’n. v. *neida:Herki&er o$id -aste
i. Similar to preious case.
ii. City came up with state of
the art trash processing
facility. The county built
the plant itself and
charged a high fee
compared to otherdumpsites. 5assed a
similar ordinance re1uiring
that trash produced in
these counties had to go
to this particular trash
facility.
iii. Court says this is
distinguishable from
preious case becauseCarbone was legislation in
faor of priate economic
actor %comm. cl. forbids
this'# but present case is
goernment regulating and
acting itself.
i. +aAority says that trash
collection is a traditional
state function %this is
1uestionable because
"arcia said that the Court
cannot distinguish
between integral and
nonintegral state
functionsG'.
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. The court through
alidating the statute
suggests that there is a
difference between a
state,owned and priately
owned facility that
discriminates against out
of state commerce.
ii. Don,6acial iscrimination !gainst @ther States
$. %a$dwin v. '.A.). ee$i+; <nc.
a. 6acts
i. D3 law set minimum
prices to be paid to mil-
producers for mil- sold in
D3
ii. ! D3 buyer bought mil- in
>ermont and paid less
than the D3 minimum. D3
then said this mil- could
not be sold in D3
iii. D3 passed the law tostabili;e mil- prices to
-eep mil- farmers in
business.
i. The law had the effect of
out,of,state producers
haing to raise prices to
sell mil- in the D3 mar-et.
>ermont lost its
competitie adantage.
b. Court
i. The economic effect is
discriminatory against mil-
from >ermont.
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plants from going out of
business. If there are too
many plants it might
negatiely affect the
practices of the plants.
i. 5laintiff was denied the
permit to build a 4th new
center. He was a )oston
mil- distributor who
obtained mil- from D3
producers.
b. !nalysis
i. There is no facialdiscrimination.
ii. There was no
discriminatory intent.
Court beliees D3 that D3
intended to regulate the
mil- distribution in D3.
iii. Donetheless the act is
discriminatory in effect.
c. iscriminatory ffect
i. Cuts off the flow of mil-
from D3 to +assachusetts
ii. Beduces the olume of
mil- flowing across state
lines
d. The outcome seems ine1uitable#
in that if it was a D3 entity denieda permit# they would hae had no
constitutional claim. The plaintiff
only had a claim because he was
selling the mil- out of state#
meaning he had a iolation of
dormant commerce clause claim.
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*. Hunt v. -ashin+ton tate App$e
Advertisin+
a. 6acts
i. Washington State is aprimary apple producer
ii. DC statute re1uired closed
shipping bo2es of apples
to hae either US! grade
stamp or no grade mar-
iii. DC said they were doing
this to aoid consumer
confusion
i. W! system of labeling was
different
b. !nalysis
i. Do facial discrimination
ii. iscriminatory effects are
present
c. iscriminatory effects
i. Ta-ing away W!
competitie adantage that
it would ordinarily hae#
and benefiting instate
competitors
d. <Beal= intent
i. Court does not beliee that
the law was enacted topreent consumer
confusion
ii. The law inoled shipping
crates# which consumers
will neer iew
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iii. The real intent is to
preent competition from
out of state
4. %acchus <&ports v. Dias
a. 6acts
i. Heay Hawaii ta2 on
alcoholic products# but
e2ception for fruit wines#
which were indigenous to
Hawaii
b. !nalysis
i. Do facial discrimination
ii. )ut the intent was
discriminatory/protectionist
. Intent was to protect the
locally produced product
from competition of out of
state products.
8. Minnesota v. C$over Lea/ Crea&ery
a. 6acts
i. +D statute banned the
sale of mil- in plastic
nonreturnable containers
but permitted pulpwood
containers
ii. +D had small plastics
industry but heay
pulpwood industry
iii. +D?s alleged reason was
to preent buildup of
nonbiodegradable waste
b. !nalysis
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i. +D?s argument is that
these are two different
products. 5lastic is a
different product# so it
ma-es sense to
distinguish between mil- in
plastic and pulpwood
containers
ii. The counterargument is
that the statute faors in
state pulpwood producers
and burdens out of state
plastic producers wanting
to sell their products into
+D.
c. Court
i. The law is alid
ii. 5lastics are different from
paper products# therefore
it is appropriate for the
state to distinguish
7. !""on Corp. v. 'overnor o/ Mary$and
a. 6acts
i. + got all of its gas from
out of state
ii. + legislature found that
during gas shortage#
manufacturers that were
ertically integrated
faored their own retail
outlets# selling gasoline
only to their retail outlets.
roe local gas station
retailers out of business
for lac- of gasoline.
$(*
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iii. + passed statute
re1uiring all retailers in
+ass. to be independent.
b. !nalysis
i. 22on?s argument is that
local stores were
benefitted but the
manufacturers# all out of
staters# were burdened
ii. Court says there is no
discrimination
c. Court
i. The out of state
manufacturers can still sell
their gasoline into +. !ll
that changes is who sells
the gasoline once it is in
the state.
ii. The dormant commerce
clause does not protect
particular competitors.
iii. The statute is not treating
out of staters different from
instaters. It only treats
producers of gasoline and
retailers differently. This is
not discriminatory.
b. 5rohibiting e2cessie <burdens= on interstate
commerce
i. outhern #aci/ic v. Ari6ona
$. 6acts
a. !ri;ona train limit law
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b. Imposed ma2imum number of
cars
c. @ut of state railway carriers
would be forced to brea- down
the trains into smaller units
d. The claim was that longer trains
are safer than shorter trains.
Shorter trains can stop more
1uic-ly
(. !nalysis
a. This is an impediment to
interstate commerce
b. Faw inalidated
ii. outh Caro$ina tate Hi+hway v. %arnwe$$
%ros.
$. 6acts
a. South Carolina law
b. Fimit on truc- si;e
c. Heaier truc-s are more
dangerous on the roads
d. JQ of nation?s truc-?s e2ceeded
these limits
(. !nalysis
a. Faw upheld# unli-e the
inalidation of the law regulating
train length in the preious case
b. The argument is that highways
are more a matter of local
concern that railways
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i. Boads can sere purely
local purposes# whereas
railways not so much
ii. These early cases show
that early cases wrestled with what the appropriate
standard was for burdens
on interstate commerce
iii. #ike v. %ruce Church %)asis of modern
analysis'
$. 6acts
a. 5robably would hae modernly
been decided as discriminatory
law
(. )alancing Test
a. Cost,benefit analysis
b. )alance the burden on interstate
commerce %cost' with the local
interests %benefit'
c. The argument is that a balancingtest is a way of enforcing public
policy
d. Howeer# balancing tests tend to
be hard to predict# and it opens
up the charge that Audges are
engaging in legislating through
doing a balancing test
i. %ibb v. (avao )rei+ht Lines
$. 6acts
a. Illinois law re1uired that truc-s
using highways had to use
cured mudflaps to -eep dirt and
snow out of the tires
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b. !r-ansas and a number of other
states passed a statute re1uiring
all truc-s to hae flat mudflaps
because it increases the
effectieness of bra-ing
c. In the $8Js switching mudflaps
too- a couple hours
d. !r-ansas freight company
brought an action challenging the
alidity of the statute
(. !nalysis
a. The benefit to Illinois in safety is
less than the burden on interstate
commerce
. 2asse$ v. Conso$idated )rei+htways
$. 6acts
a. Iowa passed a statute limiting
si;e of truc-s %no 78 foot
doubles'
b. The longer truc-s are a little lesssafe because they are more li-ely
to Aac--nife across the road
c. 2ception was that they could be
longer to delier farm e1uipment
%benefit the citi;ens of Iowa'
d. 2ception also for border cities.
The longer truc-s could come
into the border cities. !lso theborder cities could by local
ordinance opt out of the state
statute. This is to protect Iowa
economic interests.
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e. Iowa is a maAor state with maAor
interstates going through#
allowing cross country trael.
(. !nalysis
a. The benefit to Iowa is the state
interest in highway safety# but the
maAority doesn?t buy this
argument
i. There is no net gain in
safety because the
prohibition of longer truc-s
means that companies
hae to drie morenumerous smaller truc-s.
ii. +ore highway miles drien
actually increases the
number of accidents#
decreasing safetyG
b. Done of the states around Iowa
ban such truc-s# so this forces
the truc-s to drie all the way
around Iowa or decouple the
trailer and put the goods in other
smaller truc-s. This is a burden
on interstate commerce.
*. Safety
a. In this case# the court beliees
e2pert testimony at trial that the
statute does not increase safety
much at all
b. Is this a problem# relying upon
e2pert testimony rather than the
political process# the oters who
oted for the law who belieed
that it improed safetyL
$(0
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4. )rennan Concurrence
a. !naly;es as a discrimination
case
b. I!?s real purpose is to discourageinterstate truc- traffic so
eidence on safety is irreleant
c. If in fact there is a safety problem
or wear and tear to roads# Iowa is
actually shifting the problem to
other states# which is
discriminatory
d. Would not loo- to e2pert
testimony but rather legislatie
findings
i. The issue of how to
determine what the
purpose of a statute is
ii. It is not defined whether
we should loo- to what the
legislature actually found
or what the legislaturecould hae found as the
purpose of a statute
4. The <mar-et participant= e2ception to the dormant commerce
clause
a. efined
i. The goernment acting as a participant rather
than a regulator. The goernment engages in
interstate commerce# rather than regulatinginterstate commerce.
ii. The state itself buys/sells the goods# employs
people# etc.
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iii. When the goernment engages in commercial
priate actiity similar to that of other priate
actors# the actiity is not harmful to commerce
clause interests
i. 5riate commercial actors can <discriminate#=or choose with whom to do business
. When the goernment is not ma-ing laws but
simply doing its own buying and selling it
should hae the same freedom as other
economic actors
b. ! good e2ceptionL
i. There is less mar-et pressure and some
susceptibility to political constraints
ii. States act in their own best interest li-e priate
corporations# but states define their interests
differently# not Aust in terms of profit
c. The e2ception only applies to dormant commerce
clause rules %not preemption# for e2ample'
d. ,eeves v. tate
i. S owned a cement factory and chose to sellonly to South a-otans
e. -hite v. Mass.
i. +ayor of )oston issued order re1uiring all
construction proAects funded by the state to
hae at least 8JQ state residents in the
wor-force
/. outh:Centra$ i&ber Deve$op&ent; <nc. v. -unnicke
i. 6acts
$. !las-a owned timber and re1uired
purchasers to process timber in !las-a
before shipping out of state
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a. ! clause in the contracts that the
state entered into with
purchasers had this processing
re1uirement
(. !las-a corporation that purchasedlumber and processed in 9apan sued
under dormant commerce clause.
9apan does not import finished lumber.
Therefore# under !las-an statute#
!las-an timber could not be sold to
9apan.
*. Statute designed to protect state?s
timber processing industry
ii. Contract !nalysis
$. 5riate economic actors rarely impose
contractual conditions upon what the
purchaser must do after purchasing the
product. )ut they sometimes do.
(. The common law normally discourages
placing such restrictions in contracts.
iii. ! ownstream Begulation
$. 5utting downstream regulations on what
purchasers must do in processing
influences a transaction to which the
state is not a party
(. This is not being a mar-et participant#
but rather being a lawma-er %a
regulator'
*. The state can only impose burdens oninterstate commerce within the mar-et it
participates. !las-a is only inoled in
the timber selling mar-et# not the timber
processing mar-et.
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4. So downstream regulations do not fit
within the e2ception. The state can only
discriminate in terms of who it does
business with.
8. 6ederal <consent= to state laws that would otherwise iolatethe dormant commerce clause
a. #rudentia$ <ns. v. %ena&in
i. Faw
$. Congress can authori;e states to do
what they would be unable to do without
Congressional action
(. Congress can only authori;e the statesto do what it is authori;ed to do
i. Implied limits on the states deried from the 5riileges and
Immunities clause of !rt. I>
$. "enerally
a. Te2t: !rt. I># Sect. (# Cl. $: The citi;ens of each
state shall be entitled to the priileges and immunities
in the seeral states.
b. Constitutional doctrine affecting how states regulate
economic actiity
c. 5urely a nondiscrimination principle
d. States cannot treat out of staters differently with
respect to fundamental rights %priileges and
immunities'
e. 5riileges and immunities of citi;ens# specifically
(. 6undamental rights
a. Hard to define# but contemplated by the 6ramers
b. Dot granted by the Constitution
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c. Datural law rights %pree2isting legal rights without
being positiely stated'
d. The problem is that natural law is in the eye of the
beholder
e. 6undamental interests that any human has
f. Fife# liberty and the pursuit of happiness
i. @wning property
ii. Beligion# speech
iii. 6amily autonomy
i. +a-ing a liing through ordinary means
$. Certain occupations are not ordinary
occupations# but <learned professions=
that can be regulated by the states
0. United %ui$din+ Construction rades Counci$ v. Ca&den
a. 6acts
i. The issue is whether the right to wor- for a
public contractor is a fundamental right
$. @rdinarily these are not things that can
be licensed by the state
ii. Camden# D9 ordinance re1uired at least 4JQ
of contract labor in city construction proAects to
be Camden residents
iii. Camden is located right across the rier from
5hiladelphia# 5!
i. 5urpose
$. Without this specification# there would
be a rush of 5ennsylanians nabbing up
Camden Aobs
(. D9 wanted to sole its own
unemployment problems
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b. !nalysis
i. Commerce Clause
$. The statute did discriminate against out
of state commerce
(. Howeer# the state is a mar-et
participant.
*. The dormant commerce clause is not
iolated
ii. 5riileges and Immunities Clause
$. !rgument that the clause does not apply
to an ordinance regulating a city# not a
state
a. Court treats the local subdiisions
of the state as indistinguishable
from the state under the 5/I
Clause
(. 6undamental Bight
a. arning a liing is a fundamental
right
b. The statute prohibits out of
staters from obtaining
employment with Camden
c. The court does not say the
source of this right
i. )eing employed is a
prere1uisite to liing and
being a member of society
ii. )eing employed is a right
prere1uisite to e2ercising
all other rights
c. ( steps:
$*4
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i. Is the right of citi;enship a fundamental right
under the 5riileges and Immunities Clause
$. Sources of fundamental rights:
a. What the 6ramers included in theConstitution# for e2ample the )ill
of Bights
i. th !mendment & the
enumeration of certain
rights is not meant to deny
other rights. In other
words# rights in the
Constitution are not an
e2clusie list.
b. What ordinary people thing are
fundamental rights %custom':
i. Scalia argues what
ordinary people thought in
$0
ii. Kennedy would argue
what people thin- today
c. 5hilosophical rights
ii. Whether there is a substantial reason for the
difference in treatment
I>. !llocation of 5owers )etween the 2ecutie and Fegislatie )ranches of the
6ederal "oernment
a. Introduction to the )asic Issues: 7oun+stown and Da&es Moore
i. Theories of 5ower istribution
$. Separation of 5owers: !rticles I through III say that the
legislatie power is ested in Congress# e2ecutie power is
ested in the 5resident# and Audicial power is ested in the
Supreme Court and inferior courts established by Congress
(. Chec-s and )alances
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a. The 5resident can propose and suggest legislation
and eto legislation.
b. The legislature approes high e2ecutie officers#
otes the money used by the e2ecutie branch.
*. The U.S. Constitution reflects both sets of ideas# which
creates conflicts
ii. Supreme Court Besolution of Conflicts
$. The S.Ct. maybe should not interene because there are
chec-s and balances in place to regulate conflicts between
the e2ecutie and legislatie branches
(. The counterargument is that it is the proince of the Court to
state what the law is
iii. Historical "rowth of the 2ecutie )ranch
$. The power of the e2ecutie branch has increased oer the
years# which would hae surprised the 6ramers
(. The 6ramers may hae intended the legislature to become
the most powerful branch !rticle I is the longest article
*. Beasons for growth of e2ecutie branch:
a. "rowth of the federal bureaucracy
b. The 5resident?s role has become more prominent in
handling national crises
c. Congress has more stringent Constitutional limitations
than the 5resident
d. Congress neer spea-s with a single oice because
of the arious opinions# but the 5resident spea-s with
one oice
iv. 7oun+stown heet Co. v. awyer
$. 6acts
a. Dational steel union threatened to stri-e in the middle
of the Korean War
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b. There were statutes on the boo-s authori;ing the
federal goernment to end stri-es for the national
good in certain circumstances# but none of those
statutes applied
c. 5res. Truman went to Congress and as-ed them topass a law permitting him to act# and Congress did
nothing
d. 5res. Truman issued an e2ecutie order to the
Secretary of Commerce to sei;e the nation?s steel
industry to aert the stri-e
e. 5res. Truman sent a letter to Congress saying that if
what he was doing was illegitimate to adise him
f. ! steel mill sues the Secretary of Commerce
(. Ta-ings
a. 8th !mendment says that priate property cannot be
ta-en for public use without Aust compensation
b. This prohibition is read to imply that if the goernment
is willing to pay# it may sei;e property
c. Therefore# the goernment is authori;ed to sei;e the
steel industry
d. The issue is solely whether the 5resident can do this
on his own
e. The Court holds this action unconstitutional
*. +aAority @pinion
a. 5resident?s power may either originate with an act of
Congress or within the Constitution itself
b. Congress has not authori;ed# so the issue is whether
the Constitution authori;es it
c. Commander in Chief 5ower
i. The 5resident must see to it that the soldiers
hae the materials they need to fight the war
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ii. While sei;ing mills is related to the war# the
causal connection is too attenuated
$. There is a DP5 Clause listed in !rticle I#
but not in !rticle II# which suggests that
perhaps the 5resident cannot do whateer is necessary to carry out his
commander in chief powers
(. This attests to the notion that the
6ramers might hae seen the 5resident
as an <errand boy= of the legislature
d. The duty to faithfully e2ecute the law
i. )ut this does not imply the power to ma-e law#
only to e2ecute
e. The maAority concludes that the 5resident lac-s
Congressional or Constitutional authority to ta-e the
action he too-# and therefore his action was
unconstitutional
f. 6urther# this e2ecutie order loo-s li-e a statute in its
language
i. It is essentially legislatie in nature
ii. It contains a preamble and the authori;ation to
promulgate additional regulations
iii. !dditionally# this loo-s li-e a ta-ing. ! ta-ing
re1uires the e2penditure of funds. Congress
has the power of the purse# which suggests
that this is legislatie.
4. 6ran-furter Concurrence
a. 6ocuses more on chec-s and balances approach
b. BeAects the rigidity of separation of powers theory
c. Becogni;es that 5resident action is o-ay when no
listed in the Constitution# but only if a longstanding
practice that has not been 1uestioned by Congress
$*0
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d. !rgues that the powers oerlap# but in this case#
Congress has e2pressed its will through being silent
when he as-ed for permission
8. 9ac-son Concurrence
a. !pproach is that 5residential powers are fle2ible#
based upon what Congress has done
b. )eliees that there are concurrent powers
%Fegislature and 5resident'
$. Congress and the 5resident hae
concurrent powers in this case
(. Congress? power comes from the power
to maintain armies and the 5resident?spower from being Commander in Chief
c. * Situations:
i. If Congress passed a statute authori;ing
5residential action# then the 5residential action
is legitimate. 5resident can e2ercise his own
powers and the shared powers. This is when
the 5resident?s authority is at its ma2imum.
ii. If Congress has not granted the power to act inthe way the 5resident is acting# the 5resident
can e2ercise his own powers
$. It seems that Congressional silence in
this case was ac1uiescence
(. )ut the maAority finds that silence was
Congressional disagreement
iii. If Congress e2pressly/impliedly disagrees with
the 5resident# the 5resident can only do what
is enumerated in the Constitution as his own
powers less any Constitutional powers
Congress has. 5residential power is at its
minimum.
$*
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$. 9ac-son reads Congress? silence as
opposition to the 5resident?s actions.
(. 8 years before there had been an earlier
bill
7. >inson?s issent
a. Says that the 5resident has the power to e2ercise
broad emergency powers in certain times
b. >inson is right that there is historical precedent for
5residents in time of war e2ercising certain powers#
een if they weren?t legal
. Da&es and Moore v. ,e+an
$. 6acts
a. Iranians held our ambassadors as hostages
b. )y e2ecutie order# 5resident fro;e Iranian assets in
!merica. The assets were set aside for the use of
!merican plaintiffs who wanted to sue Iranian
companies.
c. Iran wasn?t happy with this# so a deal was struc- in
which Iranians agreed to release hostages and!merica released Iranian assets and set up an
account in the Detherlands where they would remain
for litigation. 5ending litigation in the U.S. was
dismissed and claimants had to bring the claims in an
international arbitration forum.
d. 2ecutie agreement directed pending litigation
%!merican contractors against got. of Iran' to be
dissoled
e. 5laintiff company sued because they did not want to
hae to gie up efforts in litigation to start oer in
arbitration oerseas
f. 5laintiff asserted that 5residential orders were
unconstitutional
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(. Court
a. @rder unfree;ing the assets and nullifying
attachments
i. This action was sufficient because the I5! was a Congressional statute that authori;ed
this
ii. Since Congress authori;es it and 5resident
does it# the 5resident has all of his and the
legislature?s authority
b. @rder ending pending litigation
i. 9ustice )lac- would find that this is not an
e2ecutie type of actiity# so it wasinappropriate
ii. )ut the maAority finds it is o-ay
$. Congress has not e2plicitly passed any
statute supporting 5residential action
(. Interprets Congressional silence as
Austification/ac1uiescence %whereas in
3oungstown# silence was interpreted as
Congressional opposition'
a. @ne distinction is that this case
inoles foreign affairs and
3oungstown inoled domestic
affairs
i. It seems that 5resident
has more foreign affairs
powers in the e2press
language of !rticle II
ii. Howeer# 3oungstown
inoled foreign affairs to
an e2tent# in that the steel
production furthered the
war effort
$4$
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b. 5articular !reas of Conflict
i. 6oreign !ffairs and War 5owers
$. Constitutional Te2t
a. Congress
i. Begulating commerce with foreign nations
ii. eclaring war
iii. efining crimes against the law of nature
i. Baising and supporting armies and naies
b. 5resident/Congress
i. Degotiate and ratify treaties
ii. !ppointment of ambassadors
c. 5resident
i. 5ower oer e2ecutie agencies
ii. 5ower to receie ambassadors
iii. The authority to act as Commander in Chief of
the armed forces
(. Congressional !uthori;ation of 5resident to !ct %U.. v.
Curtiss -ri+ht '
a. Congress passed statute allowing 5resident to ma-e
an order suspending sales of arms to the 5araguay
war
b. Congress is allowed to ta-e such an action because it
is allowed to regulate commerce with foreign nations
c. Howeer# can the Congress authori;e the 5resident
to do something that the Constitution only empowers
Congress to doL
i. The 5resident has more authority to act
unilaterally with respect to foreign affairs
$4(
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ii. !lso# the notion that the Constitution only
states a limited number of e2plicit e2ecutie
powers but that since there are seeral listed
with respect to foreign affairs# the 5resident
has a general power oer foreign affairs
iii. !lso# the need for the 5resident to spea- with
one oice# better than Congress
*. War 5owers
a. Unilateral e2ercises of military force are not e2pressly
authori;ed by the Constitution but hae occurred
historically
i. 6rom the halls of +onte;uma to the shores of
Tripoli Thomas 9efferson ordered the troops
into battle
ii. U.S. nay in the ciil war established a
bloc-ade around Confederate ports in Ciil
War.
$. The problem is that Congress had neer
declared war.
(. Howeer# sei;ures were Austified
because of 5residential order# from
where the te2t says 5resident can
suppress domestic insurrections
iii. >ietnam was the straw that bro-e the camel?s
bac-
$. Congress passed the War 5owers
Besolution
(. War 5owers Besolution
a. 5resident must notify Congress
of placing the troops into action
b. Congress has 7J days to
authori;e the 5residential use of
military force
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i. If Congress fails to act# the
troops must come bac-
ii. If Congress approes# it
allows the troops to remain
for *J days
c. 5resident may introduce troops
into hostilities pursuant to
i. ! declaration of war
ii. Specific statutory
authori;ation
iii. ! national emergency
created by attac- upon theU.S.# its territories or
possessions# or its armed
forces
*. Constitutionality
a. +ost 5residents say it?s not
b. )ut it is followed nonetheless
b. 5residential detention of military combatants
i. !" #arte Mi$$i+an
$. 6acts
a. 5residential power to suspend
the writ of habeas corpus was the
issue
b. Fincoln suspended habeas
corpus without Congressionalauthori;ation
c. !rt. I# Sect. mentions that the
habeas corpus can be
suspended in time of emergency.
Sect. is a list of the things that
Con+ress cannot do# meaning$44
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that the Constitution would not apply
%though the Court later held that the
Constitution did apply'
i. !pplicability of the Constitution?s Beach
$. oes the Constitution reach a defined
territory or a group of actors
(. The Court has said that the Constitution
applies to the U.S. territory# and not to
all actors
*. Whether "uantanamo is a part of the
U.S.
a. ,asu$ v. %ush said that yes# it isand the Constitution applies there
b. Though Cuba has ultimate
soereignty oer Cuba# the U.S.
has e2clusie Aurisdiction oer
"uantanamo )ay and therefore
detainees there are subAect to
Constitutional rights
. Ha&di v. ,u&s/e$d
$. 6acts
a. Inoled the only !merican
citi;en at "uantanamo
(. Two Issues:
a. Whether 5resident can authori;e
detention
b. Can the 5resident determine what procedures will be gien in
tribunals
*. 5residential authori;ation of detention
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a. Statute: Do citi;en shall be
imprisoned by the U.S. e2cept by
act of Congress
b. Habeas relief is aailable for this
U.S. citi;en# though the 5residentdid not agree
i. Dot Aust for indiidual
rights# but a separation of
powers issue
ii. The 5resident should not
be able to detain someone
without the right to habeas
corpus
c. !U+6 statute authori;ed the
5residential detention
i. )ut the Court ma-es a
stretch: the !U+6 only
gies the 5resident military
powers to use force
against those who are
terrorists
ii. This is not an e2plicit
authori;ation of the
5resident to detain these
people
iii. !rt. I Sect. mentions
that the habeas right may
be suspended# which
suggests that Congress
should be inoled in thedecision to suspend
habeas corpus
d. The issue is separation of
powers: whether only Congress
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$. !dministratie Faw history
a. In the country?s early history the federal bureaucracy
was ery small but now is huge
b. Congress creates these e2ecutie agencies iastatute
i. There is no e2plicit Constitutional te2t
ii. Uses DP5 clause
$. 6or e2ample# Congress gien power to
ta2. So it is DP5 to create an IBS# an
e2ecutie branch# for the collection of
that ta2.
(. The idea is if Congress is entitled to
regulate a certain thing# they can
establish an administratie agency to
ma-e it happen.
c. !rticle II suggests that these agencies will e2ist but
the Constitution says ery little about how the
e2ecutie branch will be set up
d. 5resident has power to appoint officers in the
agencies and superise the agencies to ensure thatthey are e2ecuting the laws
e. 9udiciary has some superisory authority oer the
agency also. Therefore it is hard to allocate among
the * powers this superisory power.
(. What 2ecutie !gencies o
a. nforce the laws
b. 5ass regulations
i. SC prohibition of engaging in fraud is a rule#
not a statute
ii. Income ta2 proisions
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ii. Hearings can also e2ercise control oer
agencies through forcing officers to answer for
their actions at hearings
8. 9udicial Control oer !gencies
a. 5assage of regulations can be appealed to the court
b. +a-e sure that agencies stay within their bounds
7. !ppointment
a. Constitutional Te2t
i. The 5resident# with adice of the Senate must
appoint:
$. Cabinet
(. @fficers of the U.S.
a. !ttorney "eneral
b. High leel military officers
c. tc.
ii. Congress may by law est appointment of
inferior officers in the 5resident# courts of law#or heads of departments
iii. There is a third category of officers that the
Constitution is silent on
$. eryone else is Aust appointed as a
matter of law
(. Congress can goern this by statute
howeer it wants
*. +odernly there is a ciil serice e2am to
become a post office wor-er# etc.
i. Who can be appointed
$. Cannot be in the e2ecutie system if you
are a Congressman
$8(
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faithfully if he can remoe officers who are not
faithfully e2ecuting the laws
iii. Unitary e2ecutie:
$. 2ecutie power is ested in the5resident
(. The notion that all such power is ested
in the 5resident
c. !rgument that Congress should hae say so in
remoal
i. Senate is re1uired to confirm for appointment#
so Congress should be allowed to hae input in
remoal
ii. The 6ederal Besere )oard is not answerable
to anyone Congress creating this board under
the DP5 Clause and made it unanswerable to
the 5resident
d. Myers v. U..
i. 6acts
$. 5ostmasters were considered officers ofthe U.S.
(. 5resident wanted to fire a postmaster
*. Congress had passed a statute saying
5res. could not remoe without the
Senate
ii. Court
$. 5resident had unlimited power toremoe
(. 5ostmaster was e2ercising purely
e2ecutie powers
e. Hu&phrey’s !"ecutor
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i. 6acts
$. 5resident wanted to fire an 6TC
commissioner
(. 6TC has all * powers. Dot purelye2ecutie.
*. 6TC was set up by Congress to be
somewhat independent from the
5resident.
4. 6TC members were set up for terms
and could only be remoed for good
cause. This shifted power away from
the 5resident.
ii. Court
$. Congress can retain power to remoe
the 6TC members because their actions
are not purely e2ecutie
(. They decides rules and regulations and
particular disputes
/. %owsher v. ynar
i. 6acts
$. !ct to reduce the budget deficit by
authori;ing the Comptroller "eneral to
report conclusion to the 5resident
(. 5resident re1uired to put C"?s
recommendations into effect
*. !ct creating the C"?s office allowed the
C" to be remoable by a Aoint resolutionof Congress
ii. Constitutionality of Fegislature )eing !ble to
Bemoe the C" %e2ecutie'
$. Congress is able to effectiely e2ercise
e2ecutie power because it creates an$88
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e2ecutie officer but reseres to itself
the power to e2ecute the laws through
remoing the officer
(. The power to fire is the power to control:
Congress could threaten to remoe theofficer if he did not do what Congress
wanted
*. !lso# Congress retaining authority oer
the C" effectiely ma-es the C"
legislatie in nature and therefore he
cannot wield authority oer the
e2ecutie
iii. Bule: Congress cannot resere power to itselfto remoe e2ecutie officials
i. issent says that C" uses both e2ecutie and
legislatie powers %chec-s and balances
approach'
+. Morrison v. *$son
i. 6acts
$. Dormally !ttorney "eneral prosecutes
crimes against the U.S.
(. When it was suspected that the
e2ecutie branch iolated the law# there
came a need for independent counsel to
prosecute# since the !" was part of the
e2ecutie branch
*. Statute allowed the establishment of
independent counsel by the court
4. !llowed the dismissal of the counsel by
Congress for <good cause=
8. In this case# the independent counsel
was appointed to inestigate obstruction
of Congressional inestigations
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ii. !ppointment 5ower
$. If counsel is an officer of the U.S.# he
must be appointed by the 5resident
(. )ut counsel is an inferior officer:
a. 5osition with limited duties %only
to inestigate one particular
charge'
b. 5osition with limited authority
%subAect to control by the !" &
!" able to dismiss for good
cause'
c. 5osition limited in tenure
*. The Constitution says that Congress
can gie 5resident# heads of
departments# or the courts the power to
appoint inferior officers
a. )ut there is an argument that
Congress should not hae gien
the courts the power to appoint
the independent counsel
b. )ut maAority says it is allowed in
this case
iii. Bemoal power
$. Can only be fired by the !" for good
cause
(. The independent counsel is purely
e2ecutie in nature# which would
suggest under +yers that Congress
could not limit the remoal power
a. )ut this case is an e2ception to
the <purely e2ecutie= officer rule
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a. efined
i. The legislatie power creating the agency
reseres the right to eto agency action if the
legislature disagrees
ii. This ma-es sense under an agency theory that
the agency is acting on behalf of the legislature
and cannot act unless the legislature %the
principal actor' agrees
b. <( v. Chadha
i. 6acts
$. Statute proided that isitors to the U.S.
had to hae a isa %certain amount oftime to remain in the U.S.'
(. Dormally# you are deported if you
oerstay the isa
*. The statute proided a mechanism that
someone subAect to deportation could
appeal to the IDS and as- for special
dispensation
4. Statute also contained a legislatie etoproision:
a. When agency rules who gets to
not be deported# this is reported
to the Congress
b. Congress then could determine
whether the agency properly
e2ercised discretion
8. Chadha and four others were allowed to
stay by agency# but then Congress said
this was improper and oerruled#
re1uiring deportation
ii. Unconstitutionality
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$. The statute is legislatie in nature and
thus must be passed as re1uired by the
Constitution
(. Whether this is legislation
a. There is a presumption since
Congress is doing it
b. This statute alters rights# and
legislation alters rights
i. Howeer# Audicial
Audgments alter people?s
rights and those are not
legislation
c. This same effect could hae been
achieed by legislation
d. This is not conincing that this is
legislation
e. 5owell concurrence sees this as
Audicial actiity because statute
was applied to Chadha
f. It could be argued that this ise2ecutie in nature because the
e2ecutie e2ercises discretion in
whom to prosecute
g. issent says that whether this is
legislation doesn?t matter
because powers oerlap
i. 5ractically spea-ing there
are many other proisionsli-e this
ii. This allows a balance of
power between Congress
and the e2ecutie branch
gies Congress bac- a
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little of the power it lost
through being forced to
delegate
*. Congress can delegate the power to the
IDS to ma-e rules regarding deportationbut it cannot resere to itself the power
to eto IDS actions
(. Fine Item >eto %C$inton v. (ew 7ork '
a. 6acts
i. Congress passed Fine Item >eto !ct to control
the budget deficit
ii. The 5resident was authori;ed to cancel in whole any item of spending in a bill
iii. If Congress wanted the money restored#
Congress could oerrule the 5resident
b. Fine Item >etoes
i. Common in state goernments because of
state constitutions allowing them to balance the
budget
ii. >ery difficult for legislatie bodies to control
spending because of conflicting interests
c. Fine item eto as unconstitutional
i. +aAority ta-es a separation of powers
approach
ii. The Court sees this as legislatie in nature
because the 5resident changes the bill before
signing it
$. The change inoles spending and
Congress has power oer spending
(. Changing the bill is inherently a
legislatie act
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*. The counterargument is that choosing
not to appropriate money is an
e2ecutie act %simply choosing not to
spend'
a. !lso if you ta-e a chec-s andbalances approach# a line item
eto acts as a chec- on
Congress
b. This is good because modern
Congressional bills are the si;es
of telephone boo-s# rather than
single issues
c. 6orcing the 5resident to approeor reAect a whole parcel of issues
is inappropriate# so allowing the
line item eto restores some
power to the 5resident that he
has lost in modern system
. 2ecutie 5riilege and Immunity
$. 5riilege efined
a. Dot haing to gie eidence
b. The Constitution gies immunities to Congressmen
while engaged in their wor-
c. )ut there are no listed e2ecutie immunities gien to
the 5resident
8. U.. v. (i"on
a. 6acts
i. Watergate inoled the 5resident?s agents
brea-ing into the democratic national offices
ii. 5resident had certain tapes that had
incriminating information
$7(
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iii. Tapes were subpoenaed as eidence in
criminal trial of Di2on and others
b. 2ecutie 5riilege
i. 5resident is subAect to subpoena because he isnot aboe the law
ii. Whether e2ecutie priilege e2ists at all
$. Dothing in the Constitution?s te2t
(. !rgument of necessity: the 5resident
sometimes needs to maintain
confidentiality
a. The problem is that there is no
DP5 clause for the e2ecutie
branch
b. Howeer# the structural argument
is that the Constitution gies
power to negotiate treaties and
other items of national security#
so there is an implicit e2ecutie
priilege. Decessary to
accomplish the duties gien to
the 5resident.
iii. Do e2ecutie priilege to refuse subpoena
$. )alancing test: Importance of the
general priilege of confidentiality of
5residential communications against the
hampering of administration of criminal
Austice
(. Importance of 5residential confidentialitycompared with importance of
information
*. Court used this general balancing test in
future e2ecutie priilege cases
4. Deed for confidentiality
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i. What constitutes public use
ii. What is a ta-ing
(. 5urpose
a. "oernmental need
b. 5ublic interest sered by allowing the proAect to go
forth
c. Usually people hae a price at which they will sell
d. The notion that it is inappropriate for the priate
person to get a windfall through demanding a high
price from the goernment
e. There must be Aust compensation# though# so that thecost can be borne by the entire community and not
Aust the person whose land is condemned
*. 5ublic Use
a. Clear cut cases
i. Schools and roads
ii. Harder 1uestions are when goernment sei;es
property to transfer to a priate owner toachiee a societal good
b. %er&an v. #arker
i. 6acts
$. .C. condemned blighted properties
(. "oernment bought up the properties at
forced sale and resold to urban
redeeloper
ii. Court
$. The nation?s capital was oercome with
being a deteriorating slum
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(. This was a legitimate public use to
engage in city improement
c. Hawaii Housin+ Authority v. Midki//
i. 6acts
$. Hawaii used to be a -ingdom in which
the -ing owned the island island
eentually sold to industrial deelopers
(. +ost of the land was owned by a
handful of owners# so most residents
had to rent
*. Fegislature wanted to redistribute the
land so that more people would becomelandowners
4. 5assed a law allowing buying and
reselling the land plots to the tenants
ii. Court
$. 5ublic use is determined by the state
(. There is no re1uirement that ta-en land
must be put to use for the generalpublic the use can be use to cure a
public eil
d. 2e$o v. City o/ (ew London
i. 6acts
$. City in economic decline# city deelops
reitali;ation plan
(. 5riate pharmaceutical company# 5fi;er# was to build a new research facility as
part of the plan
*. 5laintiff?s land was condemned# though
it was in a nice# non,blighted area
ii. 5ublic Use
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$. The legislature gets to determine
whether or not this is good public policy#
whether this will benefit the public
(. 5ure transfer from priate person to
priate person is not public use buttransferring to a priate person does not
by itself mean that the ta-ing was not for
a public use
*. The fact that no public serice is being
proided does not preent this from
being a public purpose# which
constitutes a public use
4. liminating a social eil is a publicpurpose
8. conomic deelopment is traditional
goernmental function and therefore a
public purpose
iii. issent
$. 5ublic use is different from <general
welfare= public use is narrower and
therefore the power of eminent domaindoes not e2tend oer something with
merely a public purpose
(. The main purpose is to benefit 5fi;er#
with only incidental public benefits
i. Fouisiana response was to amend the F!
Constitution to forbid e2propriation e2cept for
when the land is blighted %adopted @?Connor
analysis'
4. Begulatory Ta-ings
a. Loretto
i. 6acts
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