CONSTITUTIONAL LAW 1 OUTLINEKEYED TO: SULLIVAN CASEBOOK

The Supreme Court's Authority and Roleo Judicial Review

ROL→ Congress may neither restrict nor enlarge the Supreme Court’s original jurisdiction. Marbury v. Madison

→Established Judicial Review. Court Held that a writ of mandamus to deliver a commission made by John Adams fell under the Sup. Court's appellate jurisdiction and therefore could not be brought in that court originally under Art. III b/c it is repugnant to the Constitution

o →Supreme Court Authority to Review State Court Judgments ROL→ The United States appellate power also extends to REVIEW state court judgments

→Judiciary Act of 1789, § 25: Provides for supreme court review of final decisions of the highest state courts rejecting claims based on federal law

Martin v. Hunter's Lessee →A Virginia citizen willed his Virginia land to his nephew, P, a British subject and

resident of England.  Virginia, according to state law, had the right to confiscate land owned by British subjects and did so.  Virginia granted this land to D, who then ejected P from the land.  But, the treaties of 1783 and 1794 with Great Britain had anti-confiscation laws saying that the states won’t take the land of British citizens. Supreme Court exerted its authority to review the Virginia court's judgment and held that Supremacy Clause declares that the Federal interpretation will trump the States interpretation)

Cohens v. Virginia →SC upheld its jurisdiction to review the validity of state laws in criminal proceedings)

o →Judicial Excusivity ROL→ It is exclusively the court's duty to interpret the constitution and say what the law is; Supremacy

Clause makes the Constitution the Supreme Law of the Land and is therefore binding on all the states, regardless of any state laws contradicting it.

Cooper v. Aaron →Gov. of Ark. refused to obey a Supreme Court order to integrate schools after deciding

Brown v. Board of Education. The State legislature had amended its constitution to oppose desegregation. Court held that the Brown decision was binding upon the states and they were required to comply with the integration order despite being repugnant to Arkansas state laws

ROL→ Article V provides that Congress can initiate an amendment to the Constitution and the amendment process can be used to overturn a constitutional interpretation of the Supreme Court

Dickerson v. United States (Remember this case from Crim Pro where congress tries to overrule Miranda!!)

→Held that Congress cannot legislatively supersede Supreme Court decisions interpreting and applying the U.S. Constitution

o Political Restraints on the Supreme Court →Judicial Selection: Nomination and Confirmation Process

Art. II § 2, cl. 2 provides that the appointment of Justices will not be effective unless the President obtains the "Advice and Consent of the Senate"

→Impeachment

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Art. III, § 1 confers presumptive life tenure Art. II, § 4 provides that any officer of the United States, including judges, may be removed from

office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors

→Court Packing Art. III, § 2 provides that Congress sets the size and budget for the Court

→Court Stripping Art. III, § 2 gives Congress power to make exceptions to the Supreme Court's appellate

jurisdiction Ex Parte Mcardle

→Held that the Sup. Ct. lacked jurisdiction to issue a writ of habeas corpus b/c Congress has power under the Constitution to limit the court's appellate jurisdiction….The Constitution established the judicial courts, and their organization, which conferred their power/authority.  “with such exceptions and under such regulations as Congress shall make.”…Congress repealed an act authorizing the Court to grant habeas corpus to anyone restrained in violation of the Constitution and in doing so limited its jurisdiction)

→Constitutional Amendments Art. V talks about two methods:

Congress, by 2/3 vote, may propose amendments for ratification of 3/4 of states 2/3 of states may apply to congress to call a constitutional convention

o "Case or Controversy" Requirements →Article III, § 2, cl. 1 provides that the Judicial Power shall extend to a list of enumerated cases and

controversies →Advisory Opinions: Court will not issue Opinions on the legality of executive or legislative

action that do not involve an actual case →Standing

**Elements: →Injury in fact: actual injury that is imminent, particularized, concrete, distinct, and

palpable (most obvious examples are claims of material bodily or financial harm…but intangible injuries can also confer standing)

→Causal Connection btw injury and ∆'s conduct: Places burden on ∏ to show that the harm alleged is fairly traceable

→Likely that the injury will be redressed by a favorable decision →Cases:

Lujan v. Defenders of Wildlife →∏s claim they are injured b/c the ESA which protects threatened species,

is interpreted as only applying to the U.S. and not foreign nations. Court held that ∏s did not suffer injury in fact b/c hopes of someday visiting the threatened wildlife was not concrete enough to support injury in fact…furthermore there was no redressability so ∏s lacked standing..Court also mentions that generalized grievances suffered by the public do not constitute injury in fact)

Massachusetts v. EPA →Held that ∏s had standing to sue EPA for failure to regulate greenhouse

emissions b/c the rise in sea levels as a result of global warming would

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continue to harm Mass., demonstrating concrete injury, also the risk would be reduced if ∏s got the relief they sought

United States v. Students Challenging Regulatory Agency Procedures →Based an Enviro. group's standing to challenge a railroad freight

surcharge on the grounds that increases in railroad rates would cause an increase in the use of nonrecyclable goods, resulting in the increased need for natural resources to produce such goods….Book says this is the most attenuated injury conferring standing to date!)

→Prudential Standing Doctrines: imposed by the Court on top of what is required by the Constitution

→Third Party Standing: →"Plaintiff must assert his own legal rights and interests and cannot rest his claim

to relief on the legal rights or interests of third parties" →Court generally restricts standing to ∏s directly injured but there are some

exceptions to this... →Generalized Grievances:

Court will not adjudicate a claim where the harm alleged is suffered a large segment of society and not specific to one person or small group of people

→Zone of Interest: prudential limitation on standing usually in the form of citizen-suit provisions contained in statutes

→Mootness: Occurs when litigants who clearly had standing to sue at the outset of the litigation are deprived of a concrete stake in the outcome by changes in the facts or in the law occurring after the lawsuit has commenced

Exception: Cases that are "capable of repetition" Ex. Abortion cases →Ripeness: When a suit is to early to bring b/c of too many contingencies or uncertainties →Political Questions:

→2 types: →That some matters are committed to the unreviewable discretion of the political

branches →That some otherwise legal questions ought to be left to other branches as a matter of

prudence Baker v. Carr

→Voters of Tennessee sought injunction to reform the outdated legislative districting plans and claimed the current system to be a violation of the Equal Protection Clause of the 14th Amendment.  Previously in Colegrove v. Greene, a similar suit was brought under **Guaranty Clause (Art IV, § 4) of the Constitution and Justice Frankfurter had ruled that this issue was nonjusticiable

→Court held that the case issue was justiciable if brought under the equal protection clause of the fourteenth amendment…b/c an equal protection issue is one which cannot be decided by any other branch of gov.)

→Dissent= Says it is really a guaranty clause claim masquerading as an equal protection claim and should not be justiciable

→Distinguishing legal from political questions →Congressional qualifications

Powell v. McCormack →A seat was refused to representative Powell b/c he had wrongfully

diverted funds...∆ claimed he had met all of the formal requirements …

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Speaker of the house said it was a question to be decided by Congress…but the court found the congressional qualification issue to be justiciable and "at most a textually demonstrable commitment to Congress to judge only the qualifications set forth in the Constitution

→Treaty Abrogation: nonjusticiable b/c Involves the authority of the President and foreign relations

→Impeachment Proceedings: ROL (Art. II, sec. 4)→"The pres., vice pres., and all civil officers of the US, shall

be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors"

→Impeachment proceedings are nonjusticiable b/c the Constitution has given Congress sole power of impeachment

→Constitutional Amendment Process →Presidential Election Process:

Bush v. Gore →Court actually heard this case (it was justiciable)…and held that the

recounts ordered by the Gore team were unconstitutional and violated equal protection b/c they were being conducted under nonuniform standards…also, there was no possible remedy the situation by 12/12, the date by which the votes must be conclusive, under US statutes

The Nation and the States in the Federal Systemo →Necessary and Proper Clause (Art. , §8, cl. 18)→“The Congress shall have Power … To make all Laws

which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” 

→**McCulloch v. Maryland →Held that Congress had the power to create a national bank in Maryland because although not

within its enumerated powers, it falls under the "necessary and proper" clause… →BUT State of Maryland could not impose a tax on the bank b/c states cannot tax or interfere

with any Constitutional laws enacted by Congress to carry into execution the powers vested in the Federal Gov

The Commerce Power and its Federalism-Based Limitso Commerce Clause→ Congress has power "to regulate commerce with foreign nations, and among the several

states, and with the Indian Tribes" Pre-New Deal

Gibbons v. Ogden →Involved challenge to a steamboat monopoly…Court held that operating steamboats among

two states is interstate commerce and Congress has the absolute power to regulate all interstate commerce subject to limitation only by the Constitution)

→Most expansive view of Commerce Power 3 Tests

→Direct vs. Indirect effects test: What is the relation between the activity or condition and the effect?

United States v. E.C. Knight Co. →Sugar Trust Case Invalidated the Sherman antitrust Act as it was applied to a monopoly of sugar

manufacturing,

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→Held the fact that an article is manufactured for export to another state does not itself make it an article of interstate commerce, and the intent of the manufacturer does not determine the time when the article or product passes from the control of the state and belongs to commerce

→Substantial Economic Effects test ROL→ Congress can regulate intrastate transactions which are so comingled with or related

to interstate commerce that it must be regulated entirely in order to properly control interstate commerce

Houston E. & W. T. Ry. Co. v. United States →Shreveport Rate Case….Court sustained congressional authority to regulate

intrastate rail rates that discriminated against interstate railroad traffic…Rates to haul loads btw places in TX was lower than rates for going to Lousiana…Court said it unjustifiedly discriminated in favor of traffic within TX..)

→Rationale=Railroads are interstate carriers which are instruments of interstate commerce, just b/c it involves intrastate commerce as well…that alone doesn't remove congress' right to regulate it

Stream of Commerce test: ROL→ local activities can be regulated by Congress b/c they themselves are "in" commerce

or as an integral part of the "stream of commerce" Swift & Co. v. United States

→Sale of Cattle is considered interstate commerce b/c they are expected to end up at their destination in another state and are therefore within the stream of commerce)

National Police Power Champion .v Ames

→Lottery Case…Court upheld Federal Lottery Act which prohibited importing, mailing, or interstate transporting of lottery tickets…

→.Congress can use the commerce power to prohibit the movement of harmful items that move through interstate commerce as a police power to protect the public health)

Hammer v. Dagenhart →Child labor case…A statute enacted by Congress aimed at standardizing the ages at which

children may be employed in mining/manufacturing within the states… →Congress cannot regulate the production of articles even if they are intended for

interstate commerce b/c production is a purely local matter; doing so would subject all local manufacturer intended for interstate commerce to federal regulation)

Commerce Power and the New Deal Schecter Poultry Corp. v. United States

→Held that congress could not regulate the wage, hour, and trade practices of the poultry industry….the Act applied to purely intrastate commerce and exceeded the commerce power b/c the Slaughterhouse only sold to local retailers, which were not subject to federal control)

Carter v. Carter Coal Co. →Held that Congress could not regulate coal mining b/c it is a local concern…and otherwise

does not have a "direct" effect on interstate commerce; Court rejects argument that Congress can enact laws for the general welfare of the nation as a whole b/c production is purely local activity!

Post New Deal

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ROL→ Even though activities are intrastate in character when seperately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens/obstructions, Congress can exercise that control

NLRB v. Jones & Laughlin Steel Corp. →Court upheld a law allowing the NLRB to prevent any person from engaging in unfair

labor practices..Court says it was necessary to prevent strikes, which would have a catastrophic effect on interstate commerce)

United States v. Darby →Overrules Hammer v. Dagenhart…Court sustains the validity of a law regulating

lumber manufacturing; Case has 2 holdings→ →1. Congress can regulate shipment of goods across state lines even if its motive

is to control local production →2. Substandard working conditions produce unfair competition which affects

interstate commerce Aggregation Principle→ Activites which, by themselves, have trivial effects may have substantial

effects when taken together with that of many others similarly situated can be regulated by Congress..

Wickard v. Filburn →∆ sues sec. of agr. to enjoin enforcement of a marketing penalty imposed on him for

exceeding the market quota of wheat production which was for his own personal consumption and not for commercial purposes;

→Court upholds the regulation b/c it substantially affects interstate commerce…this is the broadest exercise of commerce power;

→"Aggregation" principle says ∆'s contribution to the demand for wheat by itself is minimal, but when you add up all the wheat farmers together, effects on interstate commerce are substantial

Commerce Power and Civil Rights o Civil Rights Act of 1864

Prohibits discrimination on the ground of race, color, religion, or national origin in certain places of public accommodation

Under the law, facilities are covered if its operations affect commerce, or if discrimination is supported by state action

→ Covered facilities: any inn, hotel, motel, restaurant, cafeteria, lunch room, lunch counter, theater, concert hall, sports arena

→ establishment affecting commerce: any establishment that offers to serve interstate travelers or a substantial portion of the food which it serves has moved in commerce

The act extended to private economic conduct not covered by equal protection because there is no state action involved

o ROL→ determinative test of commerce power is whether the activity sought to be regulated is commerce which concerns more than one state and has a real and substantial relation to the national interest

Heart of Atlanta Motel v. United States →Motel owner discriminates against blacks and refuses to rent them rooms..Congress

passes a law making it illegal to discriminate and motel owner subsequently challenges the act under the commerce clause;

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→Court upholds the validity of the law b/c even though discrimination is local in character, nowadays people tend to travel which burdens interstate commerce if they are refused a motel room (they have nowhere to go!!))

Katzenbach v. McClung →Court finds burdens placed on interstate commerce by racial discrimination in

restaurants, theaters, and other establishments…even though there were no congressional findings, Congress had a rational basis for determining that racial discrimination in restaurants substantially affects interstate commerce

→ the food being served in Ollie's barbecue had moved through interstate commerce therefore subject to regulation by Congress

Congressional Findings ROL→ Congress is not required to make formal findings to sustain legislation as

rationally related to substantial effects on commerce →Congressional findings are neither necessary nor sufficient to ensure a statute's

constitutionality under the commerce clause** →Commerce Power and Crime

Perez v. United States →Guy loans money to owner of a butcher shop and threatens violence when the owner

couldn't pay back in the agreed upon installments…Court holds that extortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce in the national setting

o →Limits on the Commerce Power **3 Broad Categories of Commerce Power**

Regulation of the use of channels of interstate commerce Congress empowered to regulate and protect the instrumentalities of, or persons or things in

interstate commerce, even if coming from only intrastate activities Commerce power includes the authority to regulate activities having a substantial relation to

interstate commerce Cases:

United States v. Lopez →Congress tries to regulate criminal possession of weapons in schools through its commerce

power..Court says no way! Regulation of schools is local in nature and the criminal statute has nothing to do with commerce…the effects that carrying a gun to school would have on interstate commerce are too remote to allow Congress to regulate it

United States v. Morrison →Case makes an economic/noneconomic activity distinction...Gov tries to sustain the

Violence Against Women Act as a regulation of activity that substantially affects interstate commerce…

→Court held that Congress may not regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce; regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the states

Gonzales v. Raich →California passed legislation that decriminalized marijuana use for medicinal purposes…

But the federal controlled substances Act prohibits marijuana use..∏'s challenge the statute as exceeding congress' commerce power; Court analogizes the facts to Wickard v. Filburn and holds that congress did not exceed its commerce power authority b/c even though marijuana

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cultivation is an intrastate activity, its aggregate effects substantially affect interstate commerce…

→Court assesses the activity being regulated at a very general level and finds the CSA as a whole on a national level to regulate activities that are "quintessentially" economic...

o External Limits on the Commerce Power →Tenth Amendment

→The Powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people..

Pro-State Autonomy Cases National League of Cities v. Usery

→State autonomy defense finally succeeded…case involved amendments to the fair labor standards act that extended minimum wage and maximum hour provisions to employees of state and local govs… →the court struck it down b/c employer-employee relationships (areas of fire

prevention, police, sanitation, public health, parks and recreation) are typically regulated by the states and federal gov cannot take this power away from the states under the 10th amendment

Anti-State Autonomy Cases Coyle v. Oklahoma

→Invalidated a condition in the federal enabling act for admission of OK to the union that purported to specify the state capital;

→Court held that power to locate the state capital and change it are state powers beyond the control of congress

United States v. California →Court upheld a penalty imposed on a state owned railroad for violation of the

FSAA..b/c the sovereign power of the states, is necessarily diminished to the extent of the grants of power to the federal government in the Constitution

New York v. United States →Court upheld the application of a federal tax to State of Nys sale of bottled mineral

water from state-owned springs…Congress is allowed to tax and its taxing power extends as far as its commerce power therefore the state of Ny was not immune

Garcia v. San Antonio Metropolitan Transit Authority → Overruled National League of cities…Court held a municipal transit authority was

properly subject to the Fair Labor Standards Act…. →"Any rule of state immunity that looks to the traditional or integral or necessary

nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which policies it favors or dislikes"…

→Court found definitions of traditional state governmental functions to be unworkable and says the proper area for states' rights to be protected is the political process not the judicial process

Post-Garcia South Carolina v. Baker

→Upheld removal of an exemption from fed income tax for interest from bearer bonds issued by the states….state of SC alleges that there was a defective political process b/c Congress was uninformed and relying on incomplete information, but this does not invoke the 10th amendment

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Commandeering State Governments →Two Federalism Questions

→Whether an act of congress is authorized by one of the powers delegated to congress in Art. 1 of the constitution

→Whether an Act of congress invades the province of state sovereignty reserved by the tenth amendment

ROL→ Congress may not commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program

→Alternatives to commandeering= →Spending Power= Congress can condition the payment of relevant fed

funds on a state's agreement to take title to waste if it has not already provided a waste disposal facility

→Commerce Power=if it has a substantial impact on interstate commerce →Conditional Preemption=Congress can threaten to pass fed legislation

under the commerce clause which will preempt the state regulations New York v. United States (Radioactive waste case)

→Court held that while Congress has substantial power under the Constitution to encourage the states to provide for the disposal of rad. waste generated within the state, the constitution does not give congress the ability to compel the states to do so….

→Issue here is whether congress may direct or otherwise motivate the states to regulate in a particular field or a particular way??? it cannot b/c the "take title" provision of the statute gives a state the choice to either accept ownership of the waste or regulate it according to congress instructions ,BUT this clear cut coercion by congress which is unconstitutional…

ROL→ Congressional action compelling state officers to execute federal laws is unconstitutional

Printz v. united States →Held that a fed statute requiring state and local law enforcement officers to

conduct background checks on prospective handgun purchasers was unconstitutional b/c it purports to direct state law enforcement officers to participate in the administration of a federally enacted regulatory scheme

States as objects of federal regulation vs. states as regulatorso →NY and Printz rejected congress's authority to dictate through federal prescription, how the states regulate

their own citizens but not Congress's ability to regulate the state's own conduct under general laws that also regulate the similar conduct of private actors

o →ROL=Congress may directly regulate a state's own conduct as long as it does not direct the state's regulation of its citizens

Reno v. Condon →Court upheld a federal law limiting the commercial vending of personal data by the states. The

federal statute prohibited state motor vehicle departments from disclosing private information; the court held that this was permissible under the tenth amendment b/c the law merely regulates state activities, rather than seeking to control or influence the way in which states regulate private parties

Eleventh Amendmento →ROL=The judicial power of the united states shall not be construed to extend to any suit commenced or

prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign states

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Hans v. Louisiana →Eleventh amendment applies not only to cases within federal diversity jurisdiction but also to

cases within the federal question jurisdiction of the federal courtso What is not barred?

→Actions against local governments →Actions by the United States Government →Actions by other states

→have to show direct injury to the state, OR →a significant portion of the population has suffered injury

→Bankruptcy Proceedingso Exceptions:

Certain Actions against State Officers : →Actions against state officers for prospective relief (injunctions) →Actions against state officers for monetary damages from officer b/c it is against the individual

acting outside of his official capacity so he is stripped of immunity (stripping doctrine) →Actions against state officers for prospective payments from state treasury (can't be retroactive)

Congressional Removal of immunity under the 14th amendment o Cases:

Ex Parte Young →Fed. Court could issue an injunction against state officials who sought to enforce an

unconstitutional state law, on the ground that the ∆ was not really the state but rather the official acting beyond his constitutional authority

Edelman v. Jordan →Eleventh Amendment permitted lawsuits for prospective injunctive relief against state officers,

although not law suits for retrospective relief via judgment for damages Fitzpatrick v. Bitzer

→Congress may abrogate the state's immunity from suit in federal court by making its intention unmistakably clear in the language of the statute

Pennsylvania v. Union Gas Co. →Congress has the authority to create a course of action when legislating pursuant to the

Commerce Clause and such suits are not barred by the eleventh amendmento ROL=The courts cannot have jurisdiction over a state that does not consent to being sued; Eleventh

Amendment restricts the judicial power under Article III and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction

Seminole Tribe of Florida v. Florida →Overrules Pennsylvania v. Union Gas co and

→holds that Congress, when acting under its Art. Section 8 power, may not abrogate a state's sovereign immunity w/o the state's consent; This case arose from the Indian Gaming Regulatory Act which provided that an indian tribe may conduct certain gaming activities only in conformance w/ a valid compact btw the tribe and state in which the activities are located, unconstitutional b/c it requires the state to deal in good faith w/ the indian tribes or be subject to a lawsuit

→Congress can only abrogate a state's immunity through 14th Amendment legislation!o State Sovereign Immunity in State Courts

ROL=Congress cannot abrogate a state's sovereign immunity from lawsuits against that state in its own courts

→**Exceptions:

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→Suits by the federal government itself →Suits brought under section 5 of the 14th amendment

Alden v. Maine →Affirmed dismissal of a suit filed in Maine st. ct. by state probation officers seeking

damages for the state's failure to pay them overtime compensation required by the federal Fair Labor Standards Act

o State sovereign immunity and other federal laws ROL=Valid 14th amendment legislation is the sole of possible congressional authority to abrogate

sovereign immunity Kimel v. Florida Board of Regents

→ Congress exceeded its 14th amendment authority in allowing state employees to sue the states for violations of Age Discrimination in Employment Act. B/c the ADEA failed the congruence and proportionality test,

→Congress' attempt to abrogate the state's sovereign immunity was unconstitutional Board of Trustees of the University of Alabama v. Garrett

→Held invalid Congress's attempt to abrogate sovereign immunity for state-employer violations of Title 1 of ADA because it was not a valid exercise of 14th amendment power

o Federal Power vs. Federal Remedies Alternative mechanisms of enforcing federal laws against states:

Injunctions against state officials (Ex Parte Young) Officials may enforce federal statutes through federal agencies at federal expense Congress may condition fed. Spending programs on states' agreement to waive sovereign immunity

o State Sovereign Immunity and Federal Agency Proceedings ROL=State sovereign immunity extends to adjudications within federal administrative agencies

→Hans Presumption →Constitution was not intended to raise up any proceedings against the States that were

anomalous and unheard of when the Constitution was adopted FMC v. South Carolina State Ports Authority

→Sovereign immunity bars the FMC from ajudicating complaints filed by private parties against a nonconsenting state b/c sovereign immunity bars civil litigation and FMC administrative proceedings and civil litigation are very similar

o State Sovereign Immunity and the Bankruptcy Power Art 1. Section 8, cl. 4="Congress shall have the power to establish uniform laws on the subject of

bankruptcies throughout the United States" →ROL= State sovereign immunity does not bar Congress from subordinating a state entity to other

creditors in a federal bankruptcy proceeding Taxing, Spending, War, treaties, and Foreign Affairs

o →Art. 1., Section 8 cl. 1: "Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States

→Taxing Power ROL= A tax is invalid when it acts as a penalty in regulating an activity;

→Taxes are sometimes imposed primarily to obtain motive but w/ the incidental motive of discouraging certain activities…But when the primary motive is regulation and punishment it is no longer a tax, but becomes a penalty

Bailey v. Drexel Furniture Co. (Child Labor Tax Case) → they couldn’t do this under the commerce power so…Congress imposes a tax on

child labor for departure from a detailed and specified course of business. Employers

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who violate the standards have to pay 1/10 of their entire net income in business for a full year. Court says this a penalty rather than a tax b/c Congress is attempting to regulate and punish child labor and is therefore invalid

→Veazie Bank v. Fenno →Court upheld a tax on circulating notes of persons and state banks from

1% to 10% and the tax was challenged as being excessiv. Court says congress may restrain by suitable enactments, circulation of money of any notes not issued under its own authority

→McCray v. United States →Tax on oleo margin upheld b/c a motive disclosed in selecting a subject

for taxation to discourage sale of manufacture of an article by a higher tax on some other does not invalidate the tax…judicial inquiry into congressional purpose is improper

→United States v. Doremus →Narcotic Drug Act cannot be declared invalid just b/c another motive other

than taxation might have contributed to its passage →Federal Excise and License Taxes

→ROL=Where intent to prohibit and to punish violations of state law is evident, the tax should be considered a penalty

→ROL=A federal excise tax does not cease to be valid merely b/c it discourages or deters the activities taxed nor is it invalid b/c the revenue obtained from it is negligible

United States v. Kahriger →Court upheld a federal occupational tax imposed on gambling; The act levied a

tax on persons engaged in the business of accepting wagers and required such persons to register w/ the IRS

→Spending Power →ROL: Congress may spend in any way it believes would serve the general welfare, so long as it

does not violate another constitutional provision →2 limits on tax & spending:

→“General Welfare” phrase; and →10th Amendment

→Two Views: →Madison View=Power to tax and spend is only incidental to the exercise of the enumerated

legislative powers and should be so be confined →Hamilton View=Separate and distinct from the enumerated powers and is not limited by

them; limited only by the requirement that it shall be exercised to provide for the general welfare of the United States

→ROL=The attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted

United States v. Butler →Adopts Hamiltonian view of spending=Agricultural Adjustment Act of 1933, which

sought to stabilize farm prices by curtailing agricultural production authorizes sec. of agri. To make contracts with farmers to reduce their productive acreage in exchange for benefit payments. The payments came from a processing tax paid by the processor. Case arose from imposition of a processing tax on cotton upon a corporation, Butler attacked the tax, claiming that it sought to unconstitutionally regulate agriculture which is the province of the states

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→Court says this isn't allowed b/c fed. Gov. isn't allowed to intermeddle into matters of state concern and cannot appropriate money necessary to purchase compliance with a regulation which otherwise could not be enforced also b/c it is coercive in nature

→ROL=Abatement of a tax upon the doing of an act that will satisfy the fiscal need, tax and alternative being approximate equivalents, inducement or persuasion does not go beyond the bounds of power

Charles C. Steward Machine Co. v. Davis →Court upheld unemployment compensation provisions of the Social Security Act;

credit provision in the tax was sought to induce the enactment of state laws that complied w/ federal standards; Employer was entitled to a credit of up to 90% of the federal tax for any contributions to a state unemployment fund certified by a federal agency as meeting the requirements of the Act….

→Court distinguishes Butler: →Proceeds of the tax not earmarked for a special group →Unemployment compensation law has had the approval of the state and

could not be a law w/o such approval →Condition is not linked to an irrevocable agreement (state itself could

repeal its law, terminate the credit, and return to where it was before) →Condition is not directed to the attainment of an unlawful end

Helvering v. Davis →discretion belongs to congress, as to whether the spending power has invaded the

province of the states Current Approach to Conditional Spendin g

→Limitations on the spending power (4 part test): →Must be in Pursuit of the General Welfare →Congress must unambiguously condition states' receipt of federal funds, enabling

states to exercise their choice knowingly →Must be related to the federal interest in particular national projects →Other constitutional provisions may provide an independent bar to conditional grant

of federal funds South Dakota v. Dole

→Arose from a challenge to a federal law that conditioned highway funds to states on the states' agreement to raise the drinking age; statute directed Sec. of Transp. To withhold 5% of federal highway funds to any state that sold alcohol to people under 21;

→Court found that the federal law did not violate the 21st amendment b/c Congress is allowed to achieve indirectly what it cannot do directly as long as it comports w/ the other requirements of the spending power…Rather the spending power may not be used to induce states to engage in activities that would be unconstitutional

→Court says Congress is allowed to condition receipt of highways funds on states raising their drinking age b/c the relatively small tax is not coercive and 21st amendment poses no independent bar

→War and Treaty Powers and Implied Power Over Foreign Affairs →ROL=War power includes the power to remedy the evils which have arisen from its rise and

progress and continues for the duration of the emergency →War power does not necessarily end with the cessation of hostilities!!

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Woods v. Cloyd W. Miller Co. →Congress passed the Housing and Rent Act of 1947 (federal rent controls) to

deal w/ the shortage of housing after World War II b/c of demobilization of veterans and shortage of building materials;

→Court says Congress was invoking its war power to cope w/ a current continuing condition of which the war was a direct and immediate cause therefore the statute is a valid exercise of the war power

→ROL=Congress can freely make treaties as long as they do not violate the Constitution... Missouri v. Holland

→US made a treaty w/ Great Britain to protect migratory birds; →Court upholds the treaty as coming under the power to make treaties as long as

it doesn't violate the Constitution…against 10th amendment challenge, it doesn't violate the tenth amendment b/c the birds being protected are transitory and do not have a permanent habitat in the United States…

Supremacy of Treaties over state law →ROL=valid treaty overrides a state law on matters otherwise within state control

Treaty power and Congress's other powers Reid v. Covert

→Dealt w/ congressional power to provide for military jurisdiction over civilian dependents of American servicemen overseas…Justice Black says that no agreement (treaty) w/ a foreign nation can confer power on Congress or any other branch of government, which is free from the restraints of the Constitution…

Congressional Power over Foreign Affairs →ROL=Even though there is no specific grant of power to Congress to regulate foreign

affairs in the Constitution, it is necessary and proper for the government to function effectively in dealing w/ foreign nations

Zschernig v. Miller →Court barred application of a state alien inheritance law b/c it intruded into

the field of foreign affairs which the constitution entrusts to the President and Congress

Federal Limits on State Regulation of Interstate Commerceo →Three Situations (Old School):

→Dormant Commerce Clause=Congress is silent on the matter court looks at the negative implications of the commerce clause

ROL=Where there is a conflict btw a federal law and state law regulating commerce, the federal law will prevail

Gibbons v. Ogden pt II →Held that NY navigation laws regulating interstate commerce must yield to the law of

Congress ROL=a state can make regulations of commerce for the protection and health of its citizens as long

as they do not conflict with a law of congress Willson v. Black Bird Creek Marsh Co.

→Court upheld constitutionality of a state law that authorized construction of a dam across a navigable stream b/c it was under the state's police power rather than commerce power

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ROL=Mere grant of commerce power to congress does not deprive the states of their power to regulate commerce where congress has legislated on the matter and has explicitly left its regulation to the states

Cooley v. Board of Wardens →arises from a PA law that required ships entering or leaving the port of Philly to

engage a local pilot to guide them through the harbor, if not a penalty was imposed. There was also a congressional statute saying you have to follow the laws of the states. The Court upheld the PA law b/c the federal said to follow the state regulations and the mere fact of congress having commerce power does not make it exclusive enough to exclude state regulation

National vs. Local Distinction →Regulations national in character are to regulated exclusively by congress

however regulations local in character can be regulated by the states Direct vs. Indirect Distinction

→Direct burdens on interstate commerce are unconstitutional but indirect burdens are allowed

→ROL=Congress can consent to state regulations of commerce that would otherwise be barred by the dormant commerce clause

→Modern Trends: Three Categories:

→State laws that facially discriminate against out of state commerce are per se invalid →Apparently facially neutral laws that favor local interests at the expense of out of state

competitors →Invalid if they have an impermissibly protectionist purpose or effect!

→facially neutral laws that have a disproportionate adverse effect on interstate commerce (applies a balancing approach)

Facial Discrimination : →ROL=State laws w/ solely protectionist purposes are always invalid

Philadelphia v. New jersey →Court held unconstitutional a NJ law that prohibited the importation of

most solid or liquid waste which originated or was collected outside the state. Court says it facially discriminated against interstate commerce b/c its main purpose was protectionist to suppress competition and stabilize prices for NJ residents and was therefore invalid.

→Test: Whether the law is basically a protectionist measure, or whether it can be fairly viewed as a law directed to legitimate local concerns, w/ effects upon interstate commerce that are only incidental

Permissible Facial Discrimination(Exceptions): →Quarantine laws

Maine v. Taylor →court upheld a state law banning importation of out of state baitfish

b/c it had a legitimate environmental purpose →Once a state law is shown to discriminate against interstate

commerce, the burden is on the state to show BOTH that the statute:1) →Serves an important local purpose; AND 2) →That the purpose could not be served as well by available nondiscriminatory means.

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→State Hoarding of Natural Resources: Hughes v. Oklahoma

→Held invalid under the commerce clause an OH law forbidding any person to transport or ship minnows for sale outside the state which were procured w/in the waters of that state. It was invalid under the dormant commerce clause b/c it discriminated against interstate commerce and the state had not first tried any nondiscriminatory alternatives

→Facially Discriminatory Taxes: →ROL=Where a state regulation impermissibly discriminates against interstate

commerce, taxation of that subject as a means of regulation is also unconstitutional →Exception: a facially discriminatory tax that imposes on interstate commerce

the rough equivalent of an identifiable and substantially similar tax on intrastate commerce does not offend the dormant commerce clause

Oregon Waste Systems, Inc. v. Department of Environmental Quality →A state law imposed a higher tax on out of state waste which was

discriminatory. Court strikes it down and says it is also subject to the per se rule of invalidity.

→Facially Discriminatory Subsidies: →ROL=States cannot tax all producers of a product and then provide subsidies to

instate producers by giving them a rebate part of the proceeds →Straightforward cash state subsidies of in state business are permissible under

the dormant commerce clause** West Lynn Creamery, Inc. v. Healy

→Court invalidated Mass. Law that imposed an assessment on all sales of milk to Mass. Retailers, but rebated all the proceeds from the assessment to Mass. Dairy farmers. b/c it made milk produced out of state more expensive, thereby allowing higher milk prices in Mass. To compete with the lower out of state prices

→Home Processing Requirements=Requirements that products be shipped, inspected, processed, or treated inside the state before they may be shipped out of state are usually invalid

→ROL=A discriminatory state or local law may be valid if it furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives

Dean Milk Co. v. Madison →Court invalidated an ordinance barring the sale of pasteurized milk unless

it had been processed and bottled at an approved pasteurization plant within 5 miles of the central square of Madison, WI. The ordinance was challenged by a milk producer based in Ill. That pasteurized its milk there.

→ROL=States/local gov. may not use their regulatory power to favor local enterprise by prohibiting patronage of out of state competitors or their facilities

C & A Carbone, Inc. v. Clarkstown →An ordinance requiring all nonhazardous waste to be deposited in a

privately owned facility within the state was unconstitutional b/c it discriminated against interstate commerce by prohibiting out of state facilities from soliciting business from in state entities

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→ROL=Laws that favor the gov. in traditional governmental areas, but treat all private businesses (whether in state or out of state) the same, do not discriminate against interstate commerce

United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management Authority

→Similar facts to Carbone, except that the ordinance required all waste to be disposed of in a state-run waste facility. Court said this is ok b/c government has legitimate interests in discriminating against interstate commerce unrelated to protectionism

→"Market Participant Exception"=Applies when government acts as a buyer or seller of goods or services or engages in a program of subsidies or other economic incentives to aid instate businesses

→State purchasing scrap cars from its citizens at a higher price than what it pays nonresidents=OK

→State policy restricting the sale of cement from a state-owned plant to state residents=OK

→City ordinance requiring all construction projects funded by city funds to be performed by a workforce of at least 50% city residents=OK

Limitations: →Interstate Privileges and Immunities Clause →"Downstream" Restrictions

→state cannot avail itself of the market participant doctrine to immunize its downstream regulation of a market in which it is not a market participant and consequent burdens on interstate commerce

→ROL=State cannot impose conditions that have a substantial regulatory effect outside of that particular market

→South Central Timber Development, Inc. v. Wunnicke→ Alaska proposed sale of state-owned timber subject to the condition that the purchaser process the timber in Alaska before it was shipped out of state. Court struck it down b/c it had downstream effects on interstate commerce which were outside the market in which the state participated

→Facially Neutral Laws with Protectionist Purpose or Effect →Protectionist purpose can be inferred from the effects of a state rule

→ROL=One state in its dealings w/ another may not place itself in a position of economic isolation

→ROL=Police power may not be used by the state of destination w/ the aim and effect of establishing an economic barrier against competition w/ the products of another state

Baldwin v. Seelig → Arose from state effort to stabilize milk prices. Milk control act

prohibited NY sales of out of state milk if the milk had been purchased below the price for similar purchases within NY. State claims that economic benefit is only a secondary motive and that the law was primarily for the health and general welfare of its citizens. Court held the law unconstitutional as applied to out of state milk producers.

H.P. Hood and Sons v. Du Mond

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→Statute which required a commissioner to determine whether or not granting of an additional license to distribute milk would affect the intrastate market was unconstitutional b/c by that rationale, the state could deny foreign distributors licenses at the outset, which directly affects interstate commerce

→dealt w/ power of a state to deny additional facilities to acquire and ship milk in interstate commerce where the grounds of denial are that such limitation upon interstate business will protect and advance local economic interests

→Identifying Protectionist Purposes and Effects Hunt v. Washington State Apple Advertising Comm'n

→Court invalidated a NC law requiring that closed containers of apples offered for sale or shipped into the state bear no grade other than the applicable US grade or standard. Washington, however, had its own standards. Court says this burdens interstate commerce b/c:

→ Increases costs of doing business within the state of NC → Strips away Washington apples' reputation → Protects NC growers by leveling Washington apples w/ NC apples

→ROL=Any effort to confer a benefit upon a local industry not granted to out of state industry is presumptively invalid as discrimination under the commerce clause

Bacchus Imports, Ltd. v. Dias →Hawaii tax on liquors and fruit wine produced instate invalid. Violated

the commerce clause b/c it had both the purpose and effect of discriminating in favor of local products.

→ROL=Commerce Clause protects the interstate market, not particular interstate firms Exxon Corp. v. Governor of Maryland

→Court upheld a law prohibiting refiners or producers of petroleum from operating retail service stations within MD. No gas was produced or refined in MD, therefore it all traveled in interstate commerce. Court says it doesn't discriminate against interstate goods, nor does it favor local producers and refiners, therefore it is OK.

Minnesota v. Clover Leaf Creamery →Upheld a state law that banned retail sale of milk products in plastic

nonreturnable containers but permitted the same if they were made of pulpwood. Court says it doesn't discriminate b/c it prohibits all milk retailers from selling their milk in plastic containers w/o regard to whether they are instate or out of state.

→Unconstitutional= Favors Local producers or Out of State Producers Exempting Local products from tax, while taxing out of state products Conditions granting of an additional license to distribute on whether it is

destructive competition Prohibits buying milk out of state if bought at a lower price than instate

→Constitutional= Prohibits operation of businesses within state by producers of that product when

there are no producers of it instate

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Banning the selling of products in certain containers when that ban is across the board (affects instate and out of state distributors equally)

→Facially Neutral Laws with a Disproportionate Adverse Effect on Commerce= laws that are neither protectionist nor discriminatory

→"Balancing Test"=Where a statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits

Pike v. Bruce Church, Inc. →Arizona statute requiring arizona grown cantaloupes advertise their state

of origin on each package ("Home Processing Requirement"). Church, an AZ grower, sent theirs to CA where they were cheaper to pack.

→Court said the burden imposed on the grower to build its on packing plant within the state was too great in relation to the local benefits under the balancing test

Kassel v. Consolidated Freightways Corp. →Challenge to an Iowa statute that prohibits the use of certain large trucks

within the state on b/c it unconstitutionally burdens interstate commerce. It is a huge pain in the ass to interstate commerce b/c∏ can't bring its big trucks through Iowa and instead have to go around. State failed to produce evidence demonstrating that the statute has any safety benefits, therefore there is no countervailing local interest against which to balance the burden on interstate commerce, the statute is unconstitutional

→Opinion says you have to look at congressional intent in promulgating the statute, not what the defense lawyers stated purpose is...

→Balancing Interstate Harm Against Local Benefit South Carolina State Highway Department v. Barnwell Bros

→Court upheld SC law prohibiting trucks that were over 90 inches wide or over 20,000 lbs. Safety is a legitimate local concern and the statute is not invalid even though it burdens interstate commerce as long as it does not discriminate against interstate commerce

Southern Pacific Co. v. Arizona →Court rejected an AZ statute limiting the length of trains going through the

state b/c national uniformity is necessary to maintain an efficient railroad system and only Congress can regulate this matter

Bibb v. Navajo Freight Lines, Inc. →Ill law requiring use of contoured mud flaps on trucks and trailers

conflicted w/ an Ark. Law requiring straight mudguards, forbidding contoured ones and was inconsistent w/ 45 states which authorized straight mudguards. Struck down b/c it placed an unconstitutional burden on interstate commerce

→Business Entry Lewis v. BT Investment Managers, Inc.

→court struck down a FL law prohibiting ownership of local investment advisory businesses by out of state banks, bank holding companies and trust companies.

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→Prevents foreign enterprises from competing in local markets, therefore cannot be justified as an incidental burden necessitated by legitimate local concerns

Edgar v. Mite Corp. →Court held unconstitutional Ill law designed to regulate tender offers made

to target companies that had certain specified business contacts with Ill. →Court applied the "Pike" balancing test and found that the statute

imposed a substantial burden on interstate commerce which outweighed its local benefits

Cts Dynamic Corp. v. Dynamics Corp. of America →upheld IN law providing that a purchaser who acquired controls shares in

an indiana corporation could acquire voting rights only to the extent approved by a majority of the vote of the prior disinterested stockholders.

→Commerce Power=Congress has exercised its power challenging inconsistent state action under commerce clause and supremacy clause

→Privileges and Immunities Clause=bars certain state legislation that discriminates against out of state economic interests

o →Interstate Privileges and Immunities Clause of Article IV →ROL=The citizens of each state shall be entitled to all privileges and immunities of citizens in the

several states Serves as a restraint on state efforts to bar out of staters from access to local resources Protects citizens against discrimination on the basis of state residency

→Differences from commerce clause: Corporations enjoy no protection here Congress cannot waive privileges and immunities rights Extends only to exercise of fundamental rights Also less demanding standard of review (gov. only needs to show a substantial interest, not a

compelling interest) United Building & Construction Trades Council v. Mayor and Council of Camden

→ordinance requiring that at least 40% of the employees of contractors and subcontractors working on construction projects be Camden residents.

→Court says it doesn't matter that the also ordinance discriminated against Non Camden NJ residents b/c they can resort to the political process to vindicate their rights; so long as it discriminates against nonresidents the statute is unconstitutional.

→Two part test= →Court must decide whether the ordinance burdens one of those privileges and

immunities protected by the Clause →Whether an out of state resident's interest in employment on public works

contracts in another state is sufficiently fundamental to the promotion of interstate harmony as to fall within the purview of the clause

In order to justify discrimination= nonresidents must somehow be shown to constitute a peculiar source of the evil at which the statute is aimed

Supreme Court of New Hampshire v. Piper →state rule limiting bar admission to in state residents violated the privileges and immunities

clause. Woman who lived in VT took and passed the NH bar, but was denied admission b/c she was out of state resident

→Clause does not preclude discrimination against nonresidents where=

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→There is a substantial reason for the difference in treatment, and →The discrimination practiced against nonresidents bears a substantial

relationship to the state's objective →Court considers the availability of less restrictive means

→Court says the practice of law is a fundamental right!o Preemption

→Supremacy Clause=The constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the Supreme Law of the land

→ROL=When congress exercises a granted power, the federal law may supersede a contrary state law b/c of the operation of the supremacy clause

→Three types of preemption: Express preemption Congressional intent from a scheme of fed. Reg. so pervasive as to make

reasonable the inference that Congress left no room to supplement it Actual conflict w/ a contrary state law

Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Development Comm. →Case deals w/ a statute enacted by congress and a state statue which are both

attempting to regulate nuclear waste disposal. Court held that congress left sufficient authority to the states to allow development of nuclear power to be slowed or even stopped for economic reasons.

→When the fed. Gov. completely occupies a given field or an identifiable portion of it= →Whether The matter on which the state asserts the right to act is in anyway

regulated by the federal government →Field Preemption=scheme of federal regulation so pervasive as to make reasonable the inference

that congress left no room to supplement it Rice v. Santa Fe Elevator Corp.

→Area that states typically regulated under their police powers. Court says the federal government cannot supersede historic state police powers unless it was the clear and manifest purpose of congress.

→Conflict Preemption= →When congress has enacted a complete scheme of regulation, states cannot inconsistently

with the purpose of congress conflict or interfere with curtail of complement the federal law Hines v. Davidowitz

→State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of congress

→ Identification of the federal objective → Determination of the extent to which state law interferes

Florida Lime & Avocado Growers v. Paul→ described conflict preemption as a situation where compliance with both federal and state regulation is a physical impossibility. FL avocados were considered mature under fed. Regulations but did not have the minimum oil content under CA standards. Court upheld this b/c CA only required a minimum standard (there was no physical impossibility of complying w/ both standards)

Gade v. National Solid Waste Management → Federal scheme which forbade duplicative regulation, court departs from the clear

and manifest intent requirement when superseding state police powers

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Preemption and foreign affairs power = President is invested w/ authority to handle foreign affairs and the states cannot interfere w/ this authority

Crosby v. National Foreign Trade Council→ → Federal sanctions against the nation of Burma superseded the more stringent

sanctions imposed by Mass. Laws b/c they interfered w/ Congressional objectives Congressional Consent to State Regulation

→ Congress can validly consent to state laws when the constitutional limitation on state power is not matched by a similar or identical limitation on federal power

Federal development grants and local-hire rules → Court upheld an executive order by Mayor of Boston reserving 50% of jobs on public works

projects to Boston residents → Upheld against dormant commerce clause challenge under the market participant

exception Where state or local government action is specifically authorized by congress, it is not

subject to the commerce clause even if it interferes with interstate commerceo State Taxation of interstate business

Complete Auto Transit v. Brady→ → Court upheld against commerce clause challenge a Miss. Tax on shipper of automobiles for the

privilege of doing business in the state → Interstate commerce is not immune from state taxation

Four-part test → state tax may be sustained when: Applied to an activity w/ a substantial nexus with the taxing state Fairly apportioned Does not discriminate against interstate commerce Fairly related to the services provided by the state

Quill Corp v. North Dakota→ → substantial nexus w/ the state is greater than minimum contacts with a state required under the

due process clause Held it permissible under due process, not under the Auto transit test to tax out of state

business that had no physical presence in the state and whose only contacts w/ the state were by common carrier or the mails

o Intergovernmental Tax Immunities States cannot impose property taxes directly on federal property or activities

2 situations: → When the tax falls on the US itself; or → On an agency or instrumentality so closely related to the gov that the two cannot be

separated Neither States nor federal government can destroy the autonomy of the other

o Mutual Obligations Among the States= Privileges and Immunities Clause Extradition Clause:

When demanded, A fugitive from justice must be delivered by the state to which he fled Interstate compact Clause:

States cannot compact w/ each other so as to impair the supremacy of the United States Separation of Powers

o Executive Power=shall be vested in a president; that he shall take care that the laws be faithfully executed; and that he shall be commander in chief of the army

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ROL=President's power must either stem from an act of congress or the constitution itself Youngstown Sheet & Tube Co. v. Sawyer→ steel workers went on strike, so the president seized

the steel mills to continue producing b/c the country was at war and necessary to stop a national catastrophe. Held that the power to make laws belongs to congress and he overstepped his boundary in this case. Congress retains authority to raise and support armies and provide and maintain the navy.

3 ebbs of Presidential Power = When the president acts pursuant to an express or implied authorization of Congress, his

authority is at is maximum ↓ When president acts in absence of either a congressional grant or denial of authority , he

can only rely on his own independent powers (but there is a zone where he and congress may have concurrent powers)

↓ When the president takes measures incompatible w/ the expressed or implied will of

congress, his power is at its minimum (he can rely on his own powers, minus any constitutional powers of congress in the matter) ↓

Executive Agreements → Interstate compacts are separate from treaties which require the advice and consent of the senate

→ narrow and limited in scope → Held that an executive agreement takes precedence over conflicting state policy

Dames & Moore v. Regan → President's action in nullifying Iranian attachments and ordering transfer of frozen

assets was taken pursuant to congressional authorization, therefore: → it is supported by the strongest presumption and the widest latitude of judicial

interpretation, places a heavy burden of proof on anyone who challenges it Burden of proof was not met in this case

Emergency Powers Ex Parte Milligan

→ Milligan was a long time resident of Indiana, a non-rebellious state. He was arrested and captured when he was suspected of being involved in the rebellion. He was tried by a military tribunal, convicted and sentenced to death. But the Court issued a writ of habeas corpus.

→ Court held that president's suspension of writ of habeas corpus had not properly empowered him to try and convict before military tribunals citizens who had been detained during the war

Based on idea that constitution should apply the same during times of peace and war Milligan was entitled to:

→ an Article III civilian court → trial by jury

Martial Rule can only apply when: → Foreign Invasion, or → Civil War, where → The courts are actually closed!

Executive Detention and the trial of Enemy Combatants → Habeas Corpus

Suspension of writ may require legislative approval Ex Parte Quirin

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→ Whether the detention of petitioners for trial by Military commission, appointed by order of president, on charges preferred against them purporting to set out their violations of the law of war and articles of war, is in conformity w/ the laws and constitution of the US

→ Germans came over in a submarine to try and attack the US when we were at war w/ Germany

Court held that they were in violation of law of war enacted by Congress, therefore they were properly triable by a military court

→ Lawful Combatants= Subject to capture and detention as prisoners of war by opposing military forces

→ Unlawful Combatants= Also subject to capture and detention Subject to trial and punishment by military tribunal

Executive Detention and Trial of Enemy Combatants after 9/11 Johnson v. Eisentrager

→ German civilians accused of being enemy aliens captured in a theater of war were tried by a military tribunal

→ could not be extended the privilege of litigation in US courts b/c they at no relevant time were within any territory over which the US is sovereign

Rasul v. Bush → Guantanamo detainees claimed they were being held unlawfully

→ Whether the habeas statute confers a right to judicial review of the legality of executive detention of aliens in a territory over which the US exercise plenary and exclusive jurisdiction, but not ultimate sovereignty

Held that the habeas statute applied to Guantanamo detainees b/c it was US territory where there is jurisdiction, distinguishable from Eisentrager

Court has power of judicial review over habeas corpus applications! Hamdi v. Rumsfeld

→ whether the executive has authority to detain citizens who qualify as "enemy combatants" → Held that although congress authorized detention if combatants, due process

demands that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker

In this case congress had authorized the detention, so no need to determine whether article 2 confers that authority

Does not apply to initial capture, only when citizens are to be detained for an indefinite amount of time!

→ Due Process to be given is determined by weighing= Private interest that will be affected by the official action Against the gov's asserted interest, including:

The function involved, and Burdens the gov would face in providing greater process

Padilla v. Rumsfeld → American citizen arrested by feds in Chicago airport for helping to plot a bombing, turned

over to Dept of defense as an enemy combatant → Held that the Non-Detention act constituted express congressional prohibition against

executive detentions absent congressional authorization, placing Bush's power at lowest ebb

→ Pres using his own powers, minus any power of congress over the matter

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Military tribunals for enemy combatants Hamdan v. Rumsfeld

→Yemeni national, captured in Afghanistan and was prisoner at Guantanamo. Pres deemed eligible for trial by military tribunal

→Court held that the military commission convened to try Hamdan lacks power to proceed b/c in violation of UCMJ and Geneva Conventions

Military commissions typically used in 3 cases= →times and places where martial law is in place →temporary military government in occupied enemy territory →when there is a violation of laws of war

o Congressional Violation of the Separation of Powers Congressional Control over the actions of the executive branch

→Nondelegation →Congress may not delegate its powers to another branch

→Does not prevent Congress from seeking assistance from other branches United States v. Curtiss-Wright Export Corp.

→Nondelegation principle is weaker for foreign affairs than domestic affairs →Involved joint resolution of Congress to prohibit sale of arms to Bolivia and

Paraguay, Pres proclaimed an embargo →Court held that President alone has the power to speak w/ regards to foreign

nations, Congress cannot infringer on this authority INS v. Chadha

→statute authorizing one house of congress to invalidate decision of executive branch to suspend deportation of a deportable alien if the alien met specified conditions and would suffer extreme hardship if deported. House passed a resolution that the deportation of Chadha not be suspended.

→Presentment Clauses=all legislation must be presented to president before becoming law, and gave Pres the right to veto legislation

→Bicameralism=Has to pass two houses of Congress, but then Pres has unilateral veto which can be overruled by 2/3 vote of both houses

→Congress delegated authority concerning deportation to attorney general →Held that actions taken by the house were unconstitutional b/c it didn't fall into either

of the 4 exceptions authorizing one house to act alone →Decision strikes down the legislative-veto

→Presidential Vetoes →Line item veto

Clinton v. New York →Pres clinton used line item veto to cancel a provision in the balanced budget act

allowing NY to keep certain funds it would otherwise have to pay fed gov under medicaid program, several organizations challenged the cancellation

→Held that the Line item veto is unconstitutional and violation of separation of powers b/c it allows the Pres to create new law, which is the legislature's job violates art. 1. sec. 7

Congressional Control Over Executive Officers →President can appoint superior officers under the Appointments Clause with the advice and

consent of senate but grants congress authority to appoint inferior officers who report to superior officers

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Buckley v. Valeo →Congress appointed a bunch of officer to the FCC in violation of the

appointments clause →Congress can't do this b/c it is the president's job to appoint superior

officers that who undertake executive or quasi-judicial tasks. Removal of Executive Officers

→Appointments clause is silent as to removal of executive officers Bowsher v. Synar

→Whether the assignment by congress to the comptroller general of the US of certain functions violates separation of powers

→Constitution doesn’t contemplate an active role for congress in the supervision of officers charged w/ execution of the laws it enacts

→Once appointment has been made, constitution explicitly provides for removal of officers of the US by Congress only upon impeachment by the House and conviction by Senate

→Court held that congress cannot reserve to itself power of removal other than by impeachment and comptroller is a position of executive nature designed to implement legislation therefore can only be removed by impeachment

→allows congress to intrude on the executive function Fettering Executive Removal Power

Myers v. United States →Court held unconstitutional a statute providing that certain groups of postmasters

could not be removed by the pres w/o the consent of senate →Unconstitutional restriction on pres control over executive personnel

→Myers Rule=unrestrictable power of the pres to remove purely executive officers Humphrey's Executor v. United States

→Held that pres could not remove a member of an independent regulatory agency in defiance of restrictions in the statutory framework

→Congress could limit the pres power of removal of FTC commissioner to removal for cause and limited Myers to purely executive officers

→Officers here were quasi-judicial and quasi-legislative Wiener v. United States

→Applied Humphrey's rule rather than Myers rule →Held removal by pres unconstitutional b/c it was intrinsically judicial →Power to remove only exists if Congress confers it

Constitutionality of Independent Counsel →Congress created independent counsel to investigate possible criminal wrongdoing by high

ranking executive officers can conduct preliminary investigations. Counsel could only be removed for good cause by the attorney general and is subject to judicial review

Morrison v. Olson →Issue Is whether the restriction of having to show good cause for removal interferes

w/ president's duties →When congress creates a temporary office, the nature and duties of which will

by necessity vary with the factual circumstances giving rise to the need for an appointment in the first place, it may vest power to define the scope of the office in the court as an incident to the appointment of the officer pursuant to the appointments clause

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→Independent counsel does not need to be terminable at will by pres in order to avoid intruding on executive authority

→Does not exceed authority under sep of powers →congress is limited to receiving reports of the counsels findings, which is a

legislative function →No judicial usurpation →terminable by attorney general, an executive branch office

Other interbranch appointments Mistretta v. United States

→Court rejected attacks on the unusually composed US sentencing commission →commission was set up as an independent commission in the judicial branch →Members removable by pres for good cause

→Case applied Morrison approach →Congress' decision to create an independent rulemaking body and vest its authority in

the judicial branch is not unconstitutional unless Congress has vested in the Commission powers that are more appropriately performed by the other branches or that undermine the judiciary

→Rulemaking can constitutionally be performed by the judiciary →does not violate sep of powers →does not interfere w/ judiciary

o Executive Privileges and Immunities United States v. Nixon

→members of pres Nixon's reelection committee stole tapes from democratic headquarters. Congress appointed special prosecutor to investigate. Dist ct issued subpoena to have Nixon submit the stolen tapes, but he moved to quash on ground of executive privilege

→whether subpoena should be quashed b/c it demands confidential information btw pres and his close advisors that is protected by executive privilege

→neither need for confidentiality or sep of powers without more can give the pres absolute immunity

→exceptions: Military Diplomatic Sensitive national security secrets

→have to weigh importance of the general privilege of confidentiality of pres communications in performance of his responsibilities against inroads of such a privilege on fair administration of crim justice

→Court held that when ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law 

Scope and Limits of Executive Privilege →Amenability to Judicial Process

→Pres is not immune from judicial process while he is in office →Scope of Executive Privilege

→cannot shield an executive from criminal wrongdoing →Presidential Immunity from Civil Damages Liability for Official Actions

Nixon v. Fitzgerald

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→President is absolutely rather than qualifiedly immune from civil damages liability for his official acts at least in the absence of explicit affirmative action by Congress

→making pres amenable to private suits would hamper the functioning of gov by distracting pres from his duties

→says there is still constitutional check of impeachment to rely on! →Guy was fired b/c of publicly made statements, he sues pres Nixon and other officials

for 1st amendment violation →Presidential Immunity from Civil Damages Liability for Unofficial Actions

Clinton v. Jones → whether litigation concerning a pres actions taken before his term began should be

deferred until his pres term ends →Pres Clinton made sexual advances to a woman at a conference in a hotel while

he was gov of Arkansas so she sues him later when he is President →Immunity from suits for money damages arising out of official acts is inapplicable to

unofficial conduct →sphere of protected conduct must be closely related to the immunity's justifying

purpose →immunities are grounded in the nature of the function performed, not in the

identity of the actor who performed it →Clinton claims the suit will unduly burden his time and impair his functioning, so it

should be postponed →BUT court says just b/c it makes it inconvenient, doesn’t mean it violates the

constitution →Doctrine of sep of powers does not require federal courts to stay all private actions

against the president until he leaves office Privileges and Immunities of National Citizenship

o →Based on the 14th amendment Saenz v. Roe

→involved challenge to state law that distinguished btw new and old state residents In the distribution of welfare benefits. CA enacted a statute limiting max welfare benefits available to newly arrived residents. There was also a federal statute authorizing the states to do this.

→"Right to Travel" →Protects the rights of a citizen of one state:

to enter and leave another state The right to be treated as a welcome visitor rather than an unfriendly alien when

temporarily present in the second state For those who choose to become permanent residents, the right to be treated like

other citizens of that state →Entails privileges and immunities of the second state

→Right protected by status as a new citizen, but also as citizen of the US →Citizenship Clause

→does not allow degrees of citizenship based on length of residence →equates residence w/ citizenship

→Court says the statute is invalid b/c Congress cannot authorize states to violate the 14th amendment 

 

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