CONSTITUTIONAL LAW

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Judicial Power 3 Judicial Review 3 Judicial Supremacy 3 Political Questions 4 Standing and Ripeness 6 Justiciability 8

Federal Legislative Power 9 The Necessary and Proper Clause 9 Early Commerce Clause Cases 9 The Second Wave of Commerce Clause Cases 12 Turning Back the Reach of the Commerce Clause 14 The Taxing Power 17 The Spending Power 18 General Legislative Power 19 Federal Legislative Power and the ACA: NFIB v. Sebelius 20

Federal Limits on State Power 23 Express Preemption 23 Implied Preemption 23 Dormant Commerce Clause—The “Uniform National Standard” Test 24 DCC—The “Excessive Burden on Interstate Commerce” Test 25 DCC—Preventing Protectionism 26 DCC—Exemption for the State as Marketplace Participant 28 Interstate Taxation 29 The Privileges & Immunities Clause 30

Separation of Powers 31 Presidential Domestic Powers 31 Presidential Foreign Powers 32 Presidential Power in Times of War 34 Executive Privilege & Immunity 36 Congress & The Legislative Process 39 Congressional Control Over Executive Branch Appointments 40

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Judicial Power

Judicial Review - Marbury v. Madison: the Supreme Court can declare void an act of the legislature that

is unconstitutional• since Judiciary Act of 1789 gave SCOTUS authority to issue writs of mandamus, it had to

have been under appellate jurisdiction, since Constitution only lets SCOTUS exercise original jurisdiction over “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.” - therefore, since the law lets SCOTUS issue writ directly to officer, it’s unconstitutional,

since it would effectively be an exercise of original jurisdiction • because our government is one of limited powers and the Constitution enumerates those

limits, it follows that the Constitution must be superior to normal legislative acts- therefore, judicial power must be able apply Constitution when reviewing law of the land,

and courts, as bound by their oaths to the Constitution, must find any law in violation of it void.

• basis of political question doctrine enumerated here:- “questions, in their nature political, or which are, by the constitution and laws, submitted

to the executive, can never be made in this court.”• courts should be hesitant to review exercise of president’s discretion, but when pres.

is directed by a law to do something for someone not subject to his particular direction, court has authority

Judicial Supremacy - Martin v. Hunter’s Lessee: appellate power of the Supreme Court extends to state

courts• Facts:

- dispute over who owns piece of land in Virginia: Martin, a British loyalist according to Treaty of Paris in 1783/Jay Treaty of 1794; or Virginia when it seized the land in the Revolution. Reached Supreme Court, which instructed Virginia Court of Appeals to enter judgment for Martin, VA COA said SCOTUS appellate power doesn’t extend to state courts

• Ruling: - Justice Story (Marshall had some of the land, so he recused himself)- art. III says SCOTUS has authority over “all cases”, makes no sense if they can’t assert

appellate jurisdiction over state cases• not having federal overview of state courts would mean no uniformity of decisions/laws• must guard against state prejudices

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- Cooper v. Aaron: when the SCOTUS interprets the Constitution, that interpretation becomes the supreme law of the land

• Facts:

- Arkansas refuses to segregate schools, state government tells everyone to ignore scotus, school board tries to integrate, eventually says it needs 2.5 year break because of chaos and violence from integration, gets postponement from district court but reversed in COA

• Ruling:

- Court accepts school board’s contentions, but can’t grant postponement because actions requiring it are due to actions of state gov’t

- federal judiciary is supreme in explaining conlaw, and no state official can claim the Constitution doesn’t apply to them, that would make constitutional restrictions on state power irrelevant

Political Questions - Baker v. Carr: factors in considering whether or not a case presents a nonjusticiable

political question

• Facts:

- certain Tennessee voters felt that due to population changes and a failure on the part of the legislature to reapportion, they were being deprived of their rights under the Equal Protection clause

- district court held that it was an unjusticiable political question

• Ruling (Brennan):

- no political question

- political question arises from judiciary’s relationship b/w itself and other branches of fed gov’t, unjusticiable b/c it as been left to another branch by Constitution

- prominent factors of political questions:

• textual commitment of the issue to another political department

• lack of judicial standards for resolution

• impossibility of deciding without policy determination

• impossibility of action without disrespecting other branches of government

• unusual need for unquestioning adherence to a political decision already made

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• potential for embarrassment from multiple branches answering one question differently

- guarantee clause (Art.4, §4) guarantees a republican form of gov’t to every state, claims cannot arise under that section, political question b/c no judicially manageable standards

- court decides that apportionment question shares no common characteristics with listed prominent factors of political questions

- further decides that it’s not a guarantee clause case

• it’s a judicial protection under fourteenth amendment case that is not so enmeshed w/ guarantee clause questions as to create a political question

- dissent (Frankfurter):

• it’s a guarantee clause case posing as a 14th amend. case

• apportionment is complex, political and partisan. courts shouldn’t be involved

- Nixon v. United States: the Supreme Court will not review cases where it’s been textually committed elsewhere and there is no way to grant adequate relief

• Facts:

- federal judge who took a bribe sues for his job back,

- says Senate Rule 11, which allows for Senate committees to hear evidence against someone who’s been impeached and report on that evidence to the senate is unconstitutional

- claims it violates Impeachment Trial Clause, Art. I, §3, cl. 6: “Senate shall have the sole Power to try all Impeachments.”

• Senate shall have sole power, not Senate subcommittee

• Ruling:

- political question, court can’t rule

• textual commitment of issue to another branch (Constitution says that trying an impeachment is the Senate’s job)

• petitioner’s reading of sole is not a natural one (would require courts to rule on every time the word Senate is used in the Constitution)

• can’t have judicial review on impeachment by legislature, impeachment is legislature’s only check on judiciary (corollary to textual commitment argument)

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• would cause problems with transition of power if you could just appeal to courts, how would courts reinstate politicians whose spots have been filled? (finality of judgment/difficulty of fashioning relief as “lack of judicial standards” considerations)

Standing and Ripeness - Art. III §2 says fed. courts have jurisdiction over various cases and controversies

• but only over cases and controversies

- Muskrat v. United States: Supreme Court’s judicial power only extends to actual controversies between adverse litigants

• Facts:

- Congress passed a law giving the Cherokee Indians land, then increased the number of people with claims to the property a few more times, diminishing property interests of people already on land

- congress passed another law telling people with suits about that to bring it before the court of claims and appeal to the SCOTUS

- this is a SCOTUS appeal of one of those claims

• Ruling:

- SCOTUS never reaches merits, concerned instead with whether this suit can be heard, concludes it can’t

- Congress can’t just ask the Supreme Court to decide if an act is ok

• it needs to come up through normal litigation

• can only declare things unconstitutional because the unconstitutional law was relied on by someone for their rights

- the court is not “a body with revisory power over the action of Congress”

• it adjudicates between litigants in justiciable controversies where the court has to choose between the fundamental law (Const.) and laws purporting to be in line with it

- in the case at bar, the US may be a defendant, but it has no interest in the case adverse to claimants

- so Congress exceeded its authority in deciding that it could compel the court to hear something not judicial

- Allen v. Wright: no standing when you claim government has violated law but have no concrete injury.

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• Facts:

- parents of black school children file nation-wide class action alleging that IRS is inappropriately giving tax-exempt status to racially discriminatory private schools

- issue before SCOTUS is whether parents have standing, SCOTUS holds that they don’t

• Ruling:

- parents, now respondents allege that IRS exemptions are unlawful, but do not allege any personal injury

• never allege that their children would have applied to private school

- injury claimed from fact of government conduct and that racially segregated private schools injure children’s opportunity to receive desegregated education in public schools

• if private schools lose tax-exempt status, they’ll also lose students who will enter public school and make it more desegregated

- O’Connor’s opinion cites Article III case law like Warth v. Seldin, important case in establishing standing doctrine

• litigant must have standing to sue, must be a case or controversy

• standing doctrine limits federal jurisdiction, which should only be exercised when necessary as a last resort and when the exercise of jurisdiction is consistent with separation of powers and the dispute is capable of judicial resolution

- litigant cannot raise someone else’s legal rights

- courts cannot adjudicate general grievances that should be handled by the legislature

- complaint must fall within zone of interests protected by law invoked

- constitutional component of standing doctrine: plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief

- so respondent’s first contention, that government financial aid to discriminatory private schools directly harms them fails b/cit does not constitute a judicially cognizable injury

• right to have gov’t act in accordance with law cannot confer jurisdiction on federal court w/out draining Art. III requirements of all meaning

• can always claim gov’t is violating the law, need a case or controversy

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• furthermore, no direct injury from stigma of discrimination, need to be denied equal treatment, not just know that discriminatory conduct exists

• if abstract stigma of discrimination was a cognizable injury, standing would extend to all members of racial group nationwide, and federal courts would just vindicate interests of all concerned bystanders

- respondent’s second contention, that their kids have a diminished ability to receive an education in a racially integrated school, is a concrete, personal injury, but the injury is not “fairly traceable” to the government conduct

• it’s speculative whether withdrawal of tax exemption would lead schools to change their policies or would lead parents to withdraw their kids from the school, further speculation required to assume that a large enough number of school officials/parents would make the necessary decision to significantly impact racial composition in public schools, links of causation are too weak and attenuated

• giving standing in this case would make fed. courts continuing monitors of executive action, that’s much more the role of the legislature, which has power of the purse, or the executive, whose job it is to make sure the laws are faithfully executed

Justiciability - Raines v. Byrd: no congressional standing for abstract, dispersed institutional injuries

(like having your votes become less effective), need a concrete and personal one to create a claim or controversy

• Facts:

- District Court for DC declared Line Item Veto Act unconstitutional in accordance with statutory language giving it jurisdiction over suits involving anyone adversely affected by the act

- appeal went up to SCOTUS, has to decide if this is really a case or controversy

• Ruling:

- CJ Rehnquist examines standing requirement: is plaintiff a proper party?

• “We have consistently stressed that a plaintiff's complaint must establish that he has a "personal stake" in the alleged dispute, and that the alleged injury suffered is particularized as to him.”

• standing inquiry especially rigorous when examining actions of another branch of gov’t

• now, standing for legislators:

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- there’s Powell, a case about a HoR member who was excluded from the House, but legislators here weren’t personally singled out for unfavorable treatment

- SCOTUS has only granted standing for legislators institutionally injured in Coleman, where legislators would normally have beaten a bill but for the actions of the Lieutenant Governor, but here, the legislators were not deprived of their votes, they’re just saying those votes are now less effective

- SCOTUS rules that injury is abstract and dispersed, not concrete and personal, therefore no case or controversy, therefore no standing

Federal Legislative Power

The Necessary and Proper Clause - McCullough v. Maryland: if the government is allowed to exercise a power, the N&P

clause lets it choose the best possible means, even if the means aren’t mentioned in the Constitution• Facts:

- Maryland sues the Bank of the United States, claims Congress doesn’t have the authority to create it

• Ruling:- Congress has certain enumerated powers:

• taxes• interstate commerce• war

- to execute those powers, the Necessary and Proper Clause (Art. I, §8, cl. 18) lets Congress choose the best means• here, Congress, after lengthy debate, has decided the best means are to create a

bank- counsel for Maryland asks Court to consider Constitution as act of sovereign and

independent states, powers have been delegated by states who remain supreme• Court disagrees, Constitution was an act of the people, acting in their states, they are

the sovereign ones

Early Commerce Clause Cases

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- Current law: Congress can regulate not only interstate commerce itself, but also the channels and instrumentalities of interstate commerce and intrastate economic activities that in the aggregate have a substantial effect on interstate commerce.

- How did we get there?A: Navigation as Commerce- Gibbons v. Ogden: Congress can regulate navigation under the commerce clause so

long as it’s connected with interstate commerce• Facts:

- Ogden has a monopoly on operating steamboats granted by New York- Gibbons starts competing with him, citing a federal license, claims federal supremacy

• Ruling:- commerce “among the several states” doesn’t stop at state boundaries, goes inside- power of Congress comprehends navigation if it’s related to commerce, - therefore, Congress can and has legislated about navigation waters in question- and the state monopoly has to yield to the federal license

- Shreveport Rate Case: Congress can regulate intrastate transportation that affects interstate commerce• Facts:

- Interstate Commerce Commission sets up rates for transporting freight by rail from Shreveport, LA into Texas

- several railroads charging more for short trips from Texas to Shreveport than for longer trips entirely in Texas, ICC orders them to raise intrastate rates to meet standards

• Ruling:- fact that these are carriers of intrastate as well as interstate commerce doesn’t keep

Congress from regulating them- “Congress, in the exercise of its paramount power, may prevent the common

instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce.”

- since intrastate rates are harming interstate commerce (causing discrimination in favor of traffic within Texas), Congress can regulate

B: Regulating Products Before They Enter Interstate Commerce- United States v. E.C. Knight Co.: manufacture is not commerce

• Facts: - American Sugar Refining Company bought four Philadelphia refineries, giving it a near

monopoly on the manufacture of refined sugar in the U.S.- charged with violation of Sherman Antitrust Act

• Ruling:- power to control manufacture is power to control disposition, but that’s only secondary- exercising that authority might bring commerce in line with what it should be, but that

doesn’t make it a power Congress should have- “commerce succeeds to manufacture, and is not a part of it.”

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- Carter v. Carter Coal Co.: “that commodities produced or manufactured within a state are intended to be sold or transported outside a state does not render their production or manufacture subject to federal regulation under the commerce clause.”• Facts:

- Congress passed regulatory scheme for coal industry creating commission authorized to regulate maximum hours and minimum wages of workers in coal mines

- did not regulate interstate shipment, just labor practices• Ruling:

- employment law is related to production, not commerce - production is a purely local activity

• “not commerce; but a step in preparation for commerce”- is effect of production on interstate commerce direct or indirect?

• lots of adjectives- labor law is not interstate commerce, law struck down

C: Enforcing Moral or Social Goals With the Commerce Clause- Champion v. Ames: Congress can ban a form of interstate commerce for public policy

goals.• Facts:

- federal statute criminalized interstate transportation of lottery tickets- no real regulation, just prohibition of a form of commerce for moral reasons, can

Congress do that?• Ruling:

- lottery tickets, even if intended to be sold in state, become part of interstate commerce when they move in between the state (traffic as commerce)

- if states can consider the morality of lottery tickets, why can’t Congress?• have to remember that Congress’ interstate commerce power is plenary, nobody else

can legislate in that arena and Congress is limited only by the constitution- Hammer v. Dagenhart: Congress can’t regulate for social/moral reasons if interstate

transportation isn’t involved.• Facts:

- father brought suit in the name of two of his sons to enjoin enforcement of a child labor act

- act prohibited transportation in interstate commerce of goods produced in factories using children

• Ruling:- no power under commerce clause to prohibit movement of ordinary commodities- power is to regulate interstate transportation, act here doesn’t, it seeks to standardize

ages at which children can work, not a valid exercise of Congress’ commerce power- “the making of goods and the mining of coal are not commerce, nor does the fact that

these things are to be afterwards shipped, or used in interstate commerce, make their production a part thereof.”

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The Second Wave of Commerce Clause Cases A: Manufacturing as Commerce—the Beginning of the ShiftNLRB v. Jones & Laughlin Steel Corp.: If manufacturing has a close and substantial relation to interstate commerce, then Congress can control it to protect interstate commerce from burdens and obstructions.- Facts:

• NLRB found that steel co. had discriminated against union members and tried to intimidate employees to keep them from joining unions

• ordered company to stop and reinstate discharged employees- Ruling:

• act gives board power to prevent companies from engaging in unfair labor practices affecting commerce

• even though things like manufacturing might be solely intrastate when considered independently, “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 and obstructions, Congress cannot be denied the power to exercise that control.”- clear shift from earlier position (Roberts’ switch in time that saved nine)

• fact that it’s production is no longer determinative• when industries organize themselves on a national scale (like the coal company here),

making themselves primarily interstate commercial entities, their labor relations become a part of interstate commerce

United States v. Darby: courts will not consider whether the actual purpose of the legislation is to regulate interstate commerce.- Facts:

• appellee was a lumber manufacturer in Georgia indicted for violating Fair Labor Standards Act of 1938

• Act prohibited shipping products interstate when during production workmen were paid less than prescribed limited wage

- Ruling:• power to regulate commerce is power to prohibit certain forms of commerce • “The power of Congress over interstate commerce is not a forbidden invasion of state

power merely because either its motive or its consequence is to restrict the use of articles of commerce within the states of destination”

• overrules Hammer v. Dagenhart, says Congressional power is plenary, the article itself does not have to be harmful for Congress to prohibit it- fact that motive or effect of the regulation is to control intrastate production is irrelevant

• wage and hour requirements are constitutional b/c Congress can regulate intrastate activities which so affect interstate commerce as to make regulation appropriate means to attainment of legitimate end (cites to McCulloch)

• so far as Carter Coal is inconsistent, it’s limited by decisions like this and Jones & Laughlin

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Non-Commercial Commerce Clause LegislationWickard v. Filburn: When determining whether the local activity that Congress seeks to regulate has the requisite connection to interstate commerce, the Court considers all of the regulated activity in the aggregate. If Congress has any rational basis for the policy, the Court will not consider whether the policy is a good one. - Facts:

• Congress passed Agricultural Adjustment Act of 1938, establishing quotas for farms in order to control volume of wheat in interstate commerce

• Filburn exceeded government allotment for wheat he was allowed to grow, • challenged penalty asserted against him, he used excess wheat for personal consumption

- Ruling:• “even if appellee’s activity be local and though it may not be regarded as commerce, it may

still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce…”

• doesn’t matter if effect is direct or indirect, Court abandons those labels entirely• “that appellee’s own contribution to the demand for wheat may be tricial by itself is not

enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.”

• Court says home-grown wheat is an economic activity because it competes with purchases that might be made on the market - even though that might unfairly promote interests of others, Court does not deal with

wisdom or fairness of congressional actionHeart of Atlanta Motel, Inc. v. United States: Congress can use any reasonable means to remove intrastate burdens on interstate commerce, even if those means are targeted at a moral goal, not a commercial one.- Facts:

• Heart of Atlanta Motel is on an interstate highway, solicits patronage outside of Georgia with billboards and magazine ads, 75% of guests are from out of state

• refused to rent rooms to black people, wanted to continue doing so after Civil Rights Act was passed, so sued claiming act was unconstitutional

• evidence in Congress before act was passed showed that discrimination by hotels impedes interstate travel

- Ruling:• fact that Congress was dealing with moral problem is irrelevant

- doesn’t detract from the evidence of the disruptive effect of discrimination on commercial intercourse

• “It is said that the operation of the motel here is of a purely local character. But, assuming this to be true, the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the states of origin and destination, which might have a substantial and harmful effect upon that commerce.”

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• Congress can use any reasonable means to remove obstructions to interstate commerce, choice of means here is not unreasonable

Katzenbach v. McClung: Congress can regulate the activities of a local business if, in the aggregate, the activities of similarly situated businesses have a detrimental effect on interstate commerce.- Facts:

• Ollie’s BBQ is a family-owned restaurant on a state highway • purchases food locally, but supplier buys it from out of state

- district court found that a substantial portion of food served had moved in interstate commerce

• refuses to serve black people, court below concluded that forcing it to would cause it to lose a substantial amount of business

• Title II of Civil Rights Act places restaurants under it if a substantial portion of food served has moved in commerce

• therefore, question is whether Title II is constitutional as applied to Ollie’s (as applied unconstitutionality, not facial unconstitutionality)

- Ruling:• racial discrimination in restaurants places a burden on interstate commerce

- court refers to legislative record’s evidence that black people spend less going out because of discrimination• though no direct evidence, court says that has close connection to interstate

commerce. The fewer customers at a restaurant the less food it buys from out of state- discriminatory situations causing unrest and depressing business conditions in

segregated communities- limits interstate travel by black people and makes skilled professionals less likely to

move to areas w/ discrimination, keeping industry from getting established there• viewed in isolation, Ollie’s BBQ has an insignificant relation to interstate commerce, but,

just like in Wickard, the court aggregates its contribution with similarly situated restaurants and lets Congress legislate

Turning Back the Reach of the Commerce Clause The Power to Regulate Noneconomic Activities United States v. Lopez: Congress cannot regulate activities wholly unrelated to commerce or any sort of economic enterprise.- Facts:

• kid was arrested for bringing a gun to school under to Texas law banning firearms at schools

• charges were dropped when federal agents charged him under Gun-Free School Zones Act of 1990, §922(q)

• act made it a crime to knowingly have a gun in school zones

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- Ruling:• Rehnquist points to three categories Congress can regulate under commerce power

- channels of interstate commerce (Darby, Heart of Atlanta)- instrumentalities of interstate commerce, or persons or things in interstate commerce,

even though threat may come only from intrastate activities (Shreveport Rate Case)- activities having substantial relation to interstate commerce (Jones & Laughlin)

• §922(q) is clearly not in first two categories, must be in third to be sustained• holds that it’s a criminal statute that has nothing to do with commerce or any kind of

economic enterprise- no congressional finding of economic effect

• gov’t claims:- guns in schools lead to violent crimes which have costs that affect national economy - guns in schools threatens educational process, adverse effect on economy

• Rehnquist says that under those theories, there’s no limit to federal power- “To uphold the Government’s contentions here, we would have to pile inference upon

inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. We decline here to proceed any further.”

- Kennedy & O’Connor’s Concurrence:• can’t turn back the clock on commerce clause, economy has totally changed since 1787• but federalism must be maintained for the liberty of the American people• “Were the Federal Government to take over the regulation of entire areas of traditional

state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.”

- Thomas Concurrence:• textual interpretation of Commerce clause

- dictionaries, etymology• Commerce means selling, buying, bartering and transporting• the substantially affecting interstate commerce test needs to be done away with

- grants Congress police powerUnited States v. Morrison: The Court will not allow Congress to regulate noneconomic conduct based solely on that conduct’s aggregate effect on interstate commerce.- Facts:

• woman brought suit against two football players under civil remedy provided for by the Violence Against Women Act of 1994, §13981

• U.S. claims §13981 regulates activity that substantially affects interstate commerce (Rehnquist’s third category)

- Ruling:• gender-motivated violent crimes are not economic activity

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• unlike Lopez congressional findings here- “…Congress’ findings are substantially weakened by the fact that they rely so heavily on

a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution’s enumeration of powers.”

- gender motivated violence deters potential victims from traveling, getting jobs, doing business, diminishing productivity and increasing medical costs

- finding that sufficient would allow Congress to regulate any crime that affects employment, production, transit or consumption

Gonzales v. Raich: When Congress creates a comprehensive scheme that direct regulates economic, commercial activity, the Court will not, in an as-applied challenge, excise individual applications of the scheme even when it applies to local, non-economic conduct. - Facts:

• California allows for physicians, patients and caregivers to grow or possess marijuana• two patients sought injunctive relief from federal Controlled Substances Act, claimed it

exceeds Congressional authority under Commerce Clause- Ruling:

• Stevens draws comparison to Wickard, says it stands for the proposition that congress can regulate noncommercial intrastate activity if failure to regulate it would undercut regulation of interstate market in that commodity

• just like in Wickard, Raich is cultivating a commodity for which there is an established interstate market

• CSA is trying to control supply and demand of controlled substances in those markets• another similar concern: in Wickard, there was concern that wheat grown for home

consumption would enter the interstate market b/c of rising prices resulting from Congressional controls—here, marijuana grown for home may enter interstate market b/c of high demand- (problem: Court is assuming law-abiding patients will become interstate drug dealers)

• “the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.”

• no specific congressional finding- but that’s not required, only very helpful where connection to commerce not self-evident- don’t have to determine whether activities actually affect interstate commerce, just if a

rational basis exists for so concluding• doesn’t matter that this is purely intrastate conduct, Court refuses to excuse individual

components of the larger interstate scheme if the scheme is valid- diff. b/w this case and Lopez/Morrison

- Scalia Concurrence:• “…activities that substantially affect interstate commerce are not themselves part of

interstate commerce, and thus the power to regulate them cannot come from the

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Commerce Clause alone. Rather, Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce… derives from the Necessary and Proper Clause.”

• Congress can regulate as long as means chosen are reasonably adapted to attainment of legitimate end under the commerce power

- O’Connor’s dissent:• 50 states as laboratories, California has come to its own conclusions about something and

the Court is letting Congress end that experiment without any proof of an effect on interstate commerce

• letting intrastate conduct be regulated under a broad scheme provides wrong incentives- Congress can just put constitutionally questionable assertions of authority inside broad

regulatory schemes and get away with them so long as it doesn’t legislate precisely

The Taxing Power Child Labor Tax Case: Congress cannot rely on its power to tax when it seeks to regulate conduct not otherwise within the reach of its affirmative powers. - Facts:

• Congress taxes a furniture company a heavy amount for employing a boy under 14• the company sues, claiming the Child Labor Tax Law regulates child labor in the states—an

exclusively state function—in violation of the 10th Amendment• gov’t claims it’s jut an excise tax levied under broad taxation power of art. I, section 8

- Ruling:• Taft says you have to determine whether this is just a tax or a regulatory penalty• tax imposes heavy burden for a departure from a very specific course of business

- business has to knowingly depart: “scienters are associated with penalties, not taxes” • purpose of the tax is to enforce a mode of behavior: here, stopping employment of children• usually, taxes presumed valid, but here that presumption can’t win, on its face this tax

seeks to regulate something Congress wouldn’t be able to regulate otherwise• “Grant the validity of this law, and all that Congress would need to do, hereafter, in seeking

to take over to its control any one of the great number of subject reserved by the Tenth Amendment, would be to enact a detailed measure of complete regulation of the subject and enforce it by a so-called tax upon departures from it.”- predates O’Connor’s concerns in Raich but sounds a lot like them

• diff. b/w a tax and a penalty:- taxes have primary motive of obtaining revenue from proper subjects, incidental motive

of discouraging them- but if tax becomes too heavy, it becomes a penalty, not a tax but form of regulation/

punishment• says this case is just like Hammer, but what about when Hammer is overruled?

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- it means that Congress’ commerce power allows it to regulate intrastate activity, so clearly regulatory taxes can be passed

United States v. Kahriger: The Court will only invalidate taxes as an over-broad use of the taxing power when it is extraneous to any tax need (produces no revenue or overly burdensome).- Facts:

• Revenue Act of 1951 taxed anyone involved in the business of accepting wagers, required them to register with IRS

• Kahriger claims Congress is trying to penalize illegal intrastate gambling, infringing on state police power

- Ruling:• tax may regulate, but that doesn’t make it invalid, it still raises revenue regardless of its

regulatory effect• court generally sustains statutes under commerce claus or n&p clause, even if they intrude

on state matters, why should the power to tax be any different?• distinguishes Child Labor Tax Case, saying Congress can’t penalize activities subject only

to state regulationc• “Unless there are provisions, extraneous to any tax need, courts are without authority to

limit the exercise of the taxing power.”- very deferential to Congress

The Spending Power United States v. Butler: Pursuant to its power to spend for the general welfare, Congress may seek to accomplish objectives that it could not otherwise reach pursuant to its other enumerated powers. - Facts:

• Agricultural Act of 1933 authorized payments to farmers for farming less acres to stabilize supply/prices

• revenue for the payments raised by taxing processors of those agricultural commodities• Secretary of Ag. decided to stabilize cotton, cotton mill challenged tax, statutory scheme• how do they get around taxpayer standing?

- court says that b/c money comes in/goes out all as part of regulatory scheme, there’s standing to object to that scheme

- Ruling:• Congress has general authority to tax and spend to provide for general welfare separate

from its enumerated powers (Alexander Hamilton’s view of Art. I, §8, cl.1)• Congressional power to spend for public welfare not limited by Art. I enumerations• however, legislation here is a statutory plan to regulate and control agricultural production• Court strikes it down as violating 10th Amendment

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South Dakota v. Dole: Congress can accomplish objectives by imposing conditions upon the receipt of federal funds by the states, subject to certain conditions.- Facts:

• in 1984 Congress enacted 23 U.S.C. §158, withholding federal highway funds from states that allowed people under 21 to drink

• South Dakota allows people 19 and up to buy beer, sues claiming that §158 violates limits on spending power and 21st amendment- amend. states in relevant part: “transportation or importation into any State…of

intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Seems to give states plenary powers over how booze is regulated in their states

- Ruling:• Court ducks the 21st Amend. issue, says this regulation is allowed under spending power• cites Butler as support, general spending power independent of Art. I enumerations• spending power is not unlimited though, there are conditions:

- spending must be for general welfare (text of the clause, defer to Congress here)- conditions imposed on federal funds must be unambiguous- conditions on grants must be related to federal interest in the spending program- other constitutional provisions might provide a bar (think 10th Amend. in Butler)

• doesn’t prohibit Congress from trying to indirectly accomplish what it can’t do directly, just that it can’t induce state to engage in unconstitutional activities (opinion: tautology, 14th amend. already keeps states from engaging in unconst. activities)

- financial inducement cannot be so coercive it compels state cooperation• court says 5% of federal highway funds (1% of South Dakota’s budget) aren’t

coercive, but in reality that’s a huge amount to lose from your budget - O’Connor Dissent:

• Congress can’t regulate through conditions on federal spending unless its pursuant to a declared Congressional regulatory power

General Legislative Power United States v. Comstock: laws that are necessary and proper for carrying out other duties incidental to Congress’ enumerated powers will be found constitutional, even if they cannot be directly traced to an enumerated power. - Facts:

• Federal statute (§4248) allows district court to order that dangerous sex offenders be kept in civil commitment longer than the term of their imprisonments for public safety

• kept until mental condition improves or state assumes custody• challenged under whether N&P Clause allows Congress that much authority• assumed arguendo that other issues like Due Process Clause don’t matter

- Ruling:• five considerations for why §4248 is constitutional:

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- N&P grants broad authority to enact fed. legislation, just need rational relation to enumerated power, for example, erecting prisons pursuant to power to criminalize conduct in furtherance of enumerated powers (Scalia: but where is that here?)

- civil-commitment statute is just a modest addition to existing federal prison mental health statutes, shows reasonable relation between new statue and existing federal interests

- if federal government is custodian, it’s necessary and proper to detain them if they’re mentally ill in such a way that makes them likely to harm others

- doesn’t invade state interests, this has been delegated to Congress under N&P- links between §4248 and an enumerated power are not too attenuated

• same enumerated power that justifies creation of federal criminal statute justifies continued civil commitment

- Thomas & Scalia Dissent:• no enumerated power gives Congress the ability to pass this statute• just because a law furthers another law that Congress has passed pursuant to enumerated

power doesn’t make it constitutional, every law must further an enumerated power- federal law establishing prison furthers same enumerated power as the law criminalizing

conduct, problem here is that once the criminal sentence has run, any Congressional power over him ends

Federal Legislative Power and the ACA: NFIB v. Sebelius Facts:

- ACA’s individual mandate requires people to maintain health insurance coverage

- if you don’t comply, have to make a “shared responsibility payment”

• described in the act as a penalty

- penalty will be paid to the IRS with individual’s taxes, and collected same way as tax penalties but IRS barred from using some normal enforcement tools, like criminal prosecutions and levies.

Ruling:

- Commerce clause argument:

• Chief Justice Roberts rejects CC argument for ACA, says that power to create commerce is different from power to regulate it, regulation presupposes preexistence of a thing to be regulated

• multiple examples in constitution of regulatory/creation power separated in Constitution

- power to coin and regulate value of money

- power to create army and navy, also make rules and regs for them

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• gov’t argues that because you’re going to get sick/injured at some point, everyone is already active in the healthcare market

- Roberts says that’s going too far, Court’s allowed gov’t to anticipate effects of activities on interstate commerce before (Heart of Atlanta, Katzenbach) but never allowed government to anticipate activity itself in order to regulate individuals currently engaged in commerce: “Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.”

• “everyone will likely participate in the market for food, clothing transportation, shelter or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today.”

- distinguishes Wickard, “Government could regulate… [his] activity because of its effect on commerce. The Government’s theory here would effectively override that limitation, by establishing that individuals may be regulated under the Commerce Clause whenever enough of them are not doing something the Government would have them do.”

- there would be no limits on what Congress could do (Commerce Clause police power)

- Roberts also looks at fact that it’s going to be years before most of the people in the target population (young people) actually use the health care they’re paying for, says connection between mandate and subsequent commercial activity is lacking (too attenuated)

- N&P clause argument:

• law can’t be upheld, usually you need relation to existing exercise to enumerated power, but “[t]he individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power.”

- ex.: in Comstock, there was the existing federal power to criminalize conduct, but here, there’s no valid statutory scheme or existing enumerated power application to support the statute, it’s being created from whole cloth, which the N&P clause doesn’t allow

• Roberts says law may be necessary, but it’s not proper

- “Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it.”

- distinguishes from Raich, that was about some purely intrastate activity being captured in a concededly valid statutory scheme, this is the expansion of the scheme with new independent federal powers

- Taxing Power Argument:

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• shared responsibility payment looks like a tax

- filed with IRS

- doesn’t apply to people who don’t pay taxes

- amount determined by normal tax factors: income, dependents

- generates revenue for gov’t (Kahriger)

• fact that Act describes payment as a penalty doesn’t determine whether or not this is exercise of Congress’ taxing power

- have to look at it functionally, is cost related to the program?

• unlike Child Labor Tax Case, the payment here isn’t exceedingly heavy, no scienter requirement, and collected through normal IRS methods, except most punitive methods aren’t allowed

• taxes are allowed to be regulatory (cigarettes, sawed-off shotguns)

• act doesn’t call not buying insurance illegal, no negative legal consequences, just the payment

• Morrison’s favorite gov’t argument: Medicare burdens all to pay for some, why not be able to burden anyone who doesn’t have to pay for insurance, it’s a greater extension

- Spending Power Argument:

• if a state doesn’t comply with the ACA, it loses all of its federal Medicaid funds

• Roberts compares this to losing 5% of highway funds in Dole:

- “In this case, the financial “inducement” Congress has chosen is much more than “relatively mild encouragement”—it is a gun to the head.”

• here it would be ten percent of the state’s total budget

• gov’t argues that according to terms of Medicaid states accepted that it could be changed

- but this isn’t just a shift, the entire nature of the program is being changed

• “Nothing in our opinion precludes Congress from offering funds under the Affordable Care Act to expand the availability of health care, and requiring that States accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.”

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Federal Limits on State Power

Express Preemption

Field Preemption: If Congress intends to occupy a given field, any state law in that field is preemptedConflict Preemption: If Congress hasn’t entirely displaced state regulation over the matter, state law is still preempted to the extent that it conflict with federal law.

Silkwood v. Kerr-McGee Corp.: Federal law does not preempt state tort claims where Congressional intent it did not intend it to.- Facts:

• In 1959, Congress clarifies atomic energy regulation, gives more power to states, but still precludes them from regulating about hazards and safe disposal of nuclear waste

• Silkwood is contaminated by radiation from the nuclear reactor she works at• sues reactor, gets compensatory and punitive damages• reactor claims that since state tort awards deter conduct relating to nuclear hazards, it’s

preempted by federal law- Ruling:

• preempted field does not extend that far• Congress didn’t allow states to deal with nuclear hazards because they lacked technical

know-how• no indication that Congress intended to preclude use of state tort claims

- Congress passed a law capping liability for nuclear incidents• shows that Congress assumed people would be able to resort to tort law

• U.S. as amicus says punitive damages conflict with federal remedial scheme where gov’t imposes penalties for safety standard violations- court says paying both is not impossible, exposure to punitive damages doesn’t frustrate

scheme’s purpose b/c it reenforces primary conduct that safety regs encourage

Implied Preemption U.S. Term Limits, Inc. v. Thornton: States cannot impose additional qualifications on federal congresspeople, as that field is preempted by the Constitutional qualifications.- Facts:

• in 1992, Arkansas voters amended their constitution to bar anyone from serving more than three terms as a rep and two terms as a senator

• group of Arkansas citizens filed for declaratory judgment that the amendment was void- Ruling:

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• Convention debates, Fed. Papers, case law stand for the proposition that qualifications for legislators in the Constitution are fixed and exclusive, Congress cannot change them

• petitioners argue that those historical and textual materials say nothing about states changing qualification, so 10th Amend. should let them

• Court says changing qualifications of federal senators not part of states’ original sovereignty, came into being with federal constitution, you can only reserve rights that states had before constitution came into being

• court dismisses argument that amendment is just the state regulating the time, place and manner of holding elections, which is its right

- Thomas, CJ Rehnquist, O’Connor, Scalia dissent: • where Constitution is silent, federal gov’t lacks power, states have it• idea that states can’t reserve power they didn’t have doesn’t make sense, it’s the people

that have the power, and the people here have acted

Dormant Commerce Clause—The “Uniform National Standard” Test Cooley v. Board of Wardens: A state law affecting interstate commerce is invalid when it concerns a subject for which national uniformity is necessary. - Facts:

• Pennsylvania passes a law requiring that ships have a pilot• appellant claims this contravenes commerce clause, where Congress has full authority• did grant of commercial power to Congress deprive states of all power to regulate pilots?

- Ruling:• grant of commerce power to Congress didn’t expressly limit the states, their exclusion has

to be because nature of the power requires that Congress be the only actor in that arena• and that’s case when legislating on:

- national subjects- things that admit only one uniform system

• clearly, Pennsylvanian pilots are not one of those- Congress passed a law in 1789 saying that pilots would still be regulated according to

state law

Wabash, St. L. & P. Ry. Co. v. Illinois: Even if state regulations attempt to further fair commerce between a state and its neighbors, they are invalid.

- Facts:

• Illinois passed a statute making it illegal for freight carriers to discriminate in their rates

- Ruling:

• because law could regulate interstate freight, it was struck down

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• rates for interstate transportation need a uniform standard, even if the attempts to regulate have the best intentions

• “the deleterious influence upon the freedom of commerce among the states, and upon the transit of goods through those states, cannot be overestimated.”

DCC—The “Excessive Burden on Interstate Commerce” Test South Carolina State Highway Dept. v. Barnwell Bros.: A state law is invalid if it imposes a burden on interstate commerce that is excessive in relation to legitimate local interests, but that is a determination for Congress.

- Facts:

• S. Carolina wanted to regulate the weight/width of trucks on state highways

• trial court said it unreasonably burdened interstate commerce

- Ruling:

• It’s up to Congress to determine when interstate commerce is unduly burdened and legislate those problems away

• court can only determine if state legislature has acted within proper province and whether means of regulation are reasonably adapted to end sought

- valid safety concerns here, so S.C. legislature acted appropriately

Southern Pacific Co. v. State of Arizona: If a state law burdens interstate commerce with no reasonable relation to a local interest, courts will find it invalid.

• Facts:

- Arizona law limits size/passenger number on trains

- required trains to break down outside of AZ, reassemble outside

- suit to see if statute contravenes commerce clause

• Ruling:

- court rules it’s excessively burdensome

- longer trains are standard national practice

- if length is going to be regulated, needs to be done nationally

• uniform national standard required here

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- breaking down and reassembling trains affects traffic outside of AZ

• seriously impedes free flow of commerce

- operating long trains more dangerous

• therefore, AZ law has no reasonable relation to safety

- Justice Black’s dissent:

• leave these policy choices to legislatures

Kassel v. Consolidated Freightways Corp. of Delaware:

- Facts:

• Iowa bans 65-foot trucks, limiting trucks to 55 feet long

• doubles, mobile homes, and trucks carrying farm equipment are allowed to be 60 feet

• cities on state line can adopt length limitations of adjoining state

• Consolidated sues claiming the statutory scheme excessively burdens interstate commerce

- Ruling:

• less deference to local legislatures where their regulation bears disproportionately on out of state residents and businesses

• no safety concerns, no difference in maneuverability b/w 65 and 55 foot trucks

• more trucks on road because cargo has to be broken down into smaller trucks, increased chance of accidents

• exceptions make it seem like Iowa was just trying to deflect through traffic while ensuring local interests were safe (farms) and that important border cities could still benefit

DCC—Preventing Protectionism City of Philadelphia v. New Jersey: All objects of interstate trade merit Commerce Clause protection unless there is compelling local interest in limiting the trade.

• Facts:

- Jersey law prohibits importation of waste from outside state

- Jersey court says that’s okay according to SCOTUS precedent, states can restrict waste b/c it’s not real commerce (waste is valueless)

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- also holds that commerce clause is less sweeping when being used to restrict state law

• Ruling:

- SCOTUS immediately discards idea that some things are exempt from commerce clause

- also says no two-tiered definition of commerce

- b/c states have reasons to prohibit transportation of harmful articles

• inquiry is whether statute is protectionist or directed at legit. local concerns

- statute here is exactly what dormant commerce clause powers are designed to protect against

• just want to conserve space in landfills, defending against problem common to all

• attempt by one state to erect barrier against the movement of interstate commerce

Camps Newfound/Owatonna, Inc. v. Town of Harrison: The term “interstate commerce” means the same thing for state limitations under Dormant Commerce Clause Doctrine as it does for Congressional power under the Commerce Clause.

- Facts:

• petitioner is Christian Science camp in Maine, 95% non-Maine residents, running at a deficit with 20k in property taxes

• Maine exempts charitable institutions incorporated in state from property taxes:

- limited tax benefit if operated principally for non-Maine residents,

- if on top of that it charges more than $30 a person, no tax exemption

• town argues that dormant commerce clause doesn’t come into play here, no interstate commerce, plus Congress can’t tax real estate

- Ruling:

• camp is engaged in commerce as purchaser and provider of goods and services

- brings in 95% of campers from out of state through concerted recruitment efforts

- compares summer camps to hotels (Heart of Atlanta)

• fact that it’s a nonprofit doesn’t change fact that it engages in commerce, and the Maine law clearly discriminates on the basis of participation in interstate commerce, violating the dormant commerce clause

- Dissents (gold):

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• Scalia, CJ Rehnquist, Thomas, Ginsberg: states should be able to choose how they distribute benefits, if they only want to give public assistance to real residents who pay state taxes, that’s their business

• Thomas, Scalia, Rehnquist: the dormant commerce clause has no textual basis and is unworkable

- Note: Lynn Creamery case: all milk sales had to pay tax, Mass. only paid back Mass. dairy farmers, unconstitutional b/c Mass. farmers got all proceeds, including proceeds from the out of state farmers

DCC—Exemption for the State as Marketplace Participant South-Central Timber Development, Inc. v. Wunnicke: A state may discriminate against interstate commerce when buying or selling goods on the market, but not when regulating it. A state cannot place downstream restrictions on commerce.

- Facts:

• Alaska statute required that logs purchased from Alaska state lands be processed in Alaska before being shipped out of state

• usually, states get exemption from dormant commerce clause when they’re the ones doing the buying and selling, but not here

- Ruling:

• This isn’t just Alaska participating in the marketplace, this is Alaska trying to impose restrictions on it

- if it was just subsidies for processing timber in Alaska, that would be fine, but they’re requiring you to process your timber before it can leave Alaska

United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Auth.: A state does not discriminate against interstate commerce by enacting laws that favor local government as opposed to local citizens or businesses.

- Facts:

• NY passes law requiring trash haulers to bring all trash in Oneida and Herkimer counties to state-run waste management authority with “flow control ordinance”

- SCOTUS had previously ruled that flow control ordinance ran afoul of neg. commerce clause, but that was when state required haulers to use in-state private company

- Ruling:

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• laws that favor gov’t and treat all businesses the same in areas that gov’t has legit. interest in (trash disposal) don’t discriminate against interstate commerce

• this isn’t protectionism, it’s gov’t protecting health and safety of citizens

- flow control ordinance allows it to do more than a private company could—recycling, disposing of hazardous materials

• citizens of Herkimer and Oneida counties voted for this

- commerce clause shouldn’t control decisions of voters

• trash removal has become more expensive, but that harm falls on the people who voted for it, not other states like what would usually invoke a negative commerce clause strike-downs

- Note: White case, mayor of Boston issues order where any construction project accepting city funds has to hire 50% residents for, it’s ok because they’re all essentially working for the city (marketplace participant)

Interstate Taxation Quill v. North Dakota: - Facts:

• North Dakota is trying to get Quill, out of state mail order business, to pay use tax on goods purchased in-state

• no Quill outlets or sales reps in North Dakota• In Bellas Hess, court held that similar Illinois statute violated the Due Process Clause,

created an unconstitutional burden on interstate commerce.• ND Supreme Court didn’t follow that b/c innovations of last 25 years make it obsolete

- mail order businesses have exploded• SCOTUS agrees with reasoning, reverses anyways

- Ruling:• Due Process Clause doesn’t bar state from collecting tax, but the Commerce Clause does

- “the Commerce Clause and its nexus requirement are informed not so much by concerns about fairness for the individual defendant as by structural concerns about the effects of state regulation on the national economy.”

• Bellas Hess and its bright-line rule that vendors who only operate through the mail are free from state sales and use taxes furthers interstate commerce- probably part of the reason for the rise of mail order businesses

• ultimately, Congress has the authority to decide whether states can tax out of state vendors

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The Privileges & Immunities Clause Four Main Principles:1. The Privileges and Immunities Clause (Art. IV, §2) is an anti-discrimination measure

limiting ability of states to treat citizens of other states differently than their own.2. Clause limits discrimination only with respect to right fundamental to protection of

interstate harmony (employment, medical services, yes, hunting licenses no).3. Clause may allow state to discriminate against non-residents if it has a substantial

reason to do so.4. “Citizen” means U.S. citizen, not aliens or corporation. A resident of a state is a

citizen of that state.

Baldwin v. Fish and Game Commission of Montana: - Facts:

• Minnesota residents noticed that kinds of hunting licenses available to Montana residents were different and less expensive than licenses available to nonresidents

• sued for declaratory and injunctive relief, plus reimbursement of fees paid, claim licensing scheme violates the Privileges and Immunities Clause.

- Ruling:• there are some fundamental rights protected by the Clause:

- pursuit of a job- ownership of property- access to courts

• but some distinctions between states are simply a reflection of the fact that this is a union of many states (can’t vote in multiple states claiming P&I protection)

• elk supply is trusted to care of Montana by its citizens, they have to protect it with licensing scheme- it’s also a recreational sport, not a fundamental right

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Separation of Powers

Presidential Domestic Powers Youngstown Sheet & Tube Co. v. Sawyer: The President may exercise only those powers granted expressly or implicitly by a statute or by the Constitution.- Facts:

• President ordered Secretary of Commerce to take possession of most steel mills- did so after multiple failed attempts to get management and labor to agree- Pres. said loss of steel during Korean war would jeopardize national defense- morning after order was issued, President sent report to Congress, with another one 12

days later, no action from Congress• mill owners sued, claiming President’s order is lawmaking, function confided by

Constitution in Congress, not the Pres.- Ruling:

• “The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.”

• no statute here- although there are a couple that let the pres. take property, conditions weren’t met- also, use of seizures to solve labor disputes was explicitly rejected by Congress as a

method when considering the Taft-Hartley Act of 1947 • no express constitutional language letting Pres. do this, he claims it comes from the

aggregate of his Art. II powers under Constitution- “executive power vested in a president…he shall take care that laws be faithfully

executed…shall be Commander in Chief…”• Court cannot hold that Commander in Chief of armed forces has ultimate power to take

private property- that’s for lawmakers, not military authorities

• power to see that laws are faithfully executed is his, but his power over that is limited to vetoes and recommendations, lawmaking is explicitly left to Congress

• the order here is like a law, and the President can’t make laws- Concurrences:

• Frankfurter: Congress has written about seizure and consciously withheld that power.• Jackson: three categories of presidential power

- pursuant to congressional authority- in absence of congressional grant or denial of authority (independent executive powers)- incompatible with will of Congress

• the seizure is in this category, Congress has legislated on seizure of private property and those policies are inconsistent with this seizure

- Dissent: Pres. sent messages to Congress• (So? What was Congress going to do with that?)

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Presidential Foreign Powers United States v. Curtiss-Wright Export Corporation: with respect to international affairs, the theory of the “extra-constitutional origin of the foreign affairs power” says the United States may exercise not only the powers the Constitution expressly grants, but also other foreign affairs powers enjoyed by all sovereigns. The President is historically given discretion in the exercise of these powers.- Facts:

• Joint Resolution of Congress gives President authority to decide whether or not arms sales to Bolivia and Paraguay should be banned, if he decides they should be, then sales will become illegal w/ violators subject to criminal penalties

• President declared that prohibiting arms sales would contribute to reestablishing peace in the Chaco conflict, bans arms sales

• C-W Export Corp. indicted for conspiring to sell, claimed Joint Resolution was invalid delegation of legislative power to the executive

• Court assumes arguendo that this would be invalid if it had to do with domestic situation, question here is whether it can be sustained b/c it deals with foreign affairs

- Ruling:• external sovereignty was never owned by one state, but by union of the states

- continental congress, then federal government• “investment of the federal government with the powers of external sovereignty did not

depend upon the affirmative grants of the Constitution.”- supreme will of gov’t must reside somewhere- power to acquire territory, expel undesirable aliens, make international agreements not

formally treaties are not mentioned in Constitution, but U.S. has to be able to exercise them all or else it’s not sovereign, gets this from basic law of nations

• so the federal power over external affairs is different, furthermore, only the President can act as representative of the nation- “sole organ of the federal government in the field of international relations,” so he gets

some discretion and freedom from restriction in foreign affairs• Pres. is better informed about foreign affairs, has diplomatic agents & confidential

communications - and that confidentiality is protected by executive privilege to ensure caution and secrecy

• court should be very wary in restricting president’s foreign powers, giving him the kind of authority at issue here is a “uniform, long-continued and undisturbed legislative practice”

Goldwater v. Carter: The President can sometimes exercise foreign affairs powers not expressly granted in the Constitution simply because the federal courts will decline to review the President’s actions under the political question doctrine or other doctrines.- Facts:

• in 1978, Carter announced he was withdrawing U.S. from mutual defense treaty of Taiwanese gov’t

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• Senator Barry Goldwater and other sued, claiming Carter’s actions would violate treaty and exceeded presidential authority

- Ruling:• court can’t agree on what to do, dismisses the case for lack of standing, multiple opinions• Powell:

- claim is not ripe - Judicial Branch shouldn’t decide issues b/w President and Congress until they reach

“constitutional impasse,” have to give normal political process opportunity to resolve conflict

- Senate resolution still not voted on, unclear if it would have retroactive effect• Rehnquist:

- this is a political question- involves authority of President Carter in foreign relations and extent to which Congress

can negate his actions, no Constitutional provision to guide Court’s decision• textual commitment of the issue to another political department/lack of judicial

standards for resolution- questions here are inherently political, they deal with foreign relations and whether/how

to terminate a treaty• lack of judicial standards for resolution/impossibility of deciding without policy

determination • Blackmun:

- case deserves consideration, if pres. doesn’t have power to terminate treaties w/out Senate, then this termination is legally meaningless, but we need briefing and oral argument to figure that out

• Brennan:- misapplication of political question doctrine

• supposed to keep court from reviewing exercises of foreign policy judgment by branch its been committed to

- here, there’s an antecedent question: does that branch have the constitutional authority in the first place?

- “The issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts.”

Dames & Moore v. Reagan: The President may enter into international agreements settling citizens’ claims against foreign governments even in the absence of express statutory or constitutional authority and even if the agreements abrogate state-law rights.- Facts:

• when Iranian hostage crisis started, President Carter used the International Emergency Economic Powers Act to block removal/transfer of all Iranian property

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• when Iranian hostage crisis ended, governments entered into binding arbitration agreement to settle claims b/w citizens

• Pres. issued orders suspending pending litigation against Iran and nullifying liens and attachments against Iranian property in the U.S.

• Dames & Moore sued, claiming actions of Pres. and SecTreas went beyond congressional and statutory powers and were unconstitutional

- Ruling:• Jackson’s three categories are an oversimplification, this doesn’t fall neatly into one

category- it’s an international crisis which Congress could not have expected, therefore it couldn’t

authorize action• that’s why in areas of foreign policy and national security, congressional failure to delegate

specific authority does not imply congressional disapproval• in fact, since that there was legislation closely related to President’s authority here that

gave him broad discretion, Congress invited him to take on responsibility in a sense- that’s how the court will treat a situation where there is both no contrary indication of

legislative intent and a history of congressional acquiescence to the sort of conduct• these kinds of claim-settling agreements are standard practice in international relations

- long history of settling claims by executive agreement w/out advice/consent of Senate- even claims of U.S. citizens have been disposed of in the past

• Congress passed the International Claims Settlement Act of 1949, creating a commission to implement future settlement agreements, showing its approval- Congress has repeatedly amended ICSA, shows continuing acceptance of executive

authority there• Court has also accepted that President’s power allows him to enter into executive

agreements with other countries w/out advice and consent of Senate- “integrally connected with normalizing United States’ relations with a foreign state.”

• character of legislation in the area, lack of Congressional disapproval (Senate Committee actually approved), plus fact that settling claims here is necessary to resolution of major foreign policy dispute means that President has power to settle those claims- specifically not granting Pres. plenary power to do so, even in foreign affairs

Presidential Power in Times of War Hamdi v. Rumsfeld: If federal legislation grants the President authority to use military force, but does not specify the details, the President has only the powers granted by the Constitution, by other statutes, and by the laws of war. The President may, pursuant to that Congressional authorization of the use of military force, detain enemy combatants, but they are still accorded certain requirements imposed by the Due Process Clause. - Facts:

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• One week after September 11th, Congress authorized the President to use “all nevessary and appropriate force” to prevent future terrorism (AUMF)

• Yaser Esam Hamdi was an American citizen who was living in Afghanistan in 2001, he was turned over to the U.S. military as an enemy combatant

• gov’t claims that his status as such justifies holding him in the U.S. indefinitely without charges or proceedings unless and until it makes the determination that they’re justified

• does the executive have the ability to detain citizens who qualify as enemy combatants- exec. claims it has plenary authority pursuant to Art. II, no Congressional auth. needed

- Ruling:• Court never reaches question of whether Article II provides that authority, decides that

Congress has authorized detention through the AUMF• detention of individuals for the duration of particular conflict in which they were captured is

fundamental to war, it’s an exercise of the “necessary and appropriate force” in the AUMF• no bar to detention just because he’s a citizen, citizens can become enemy combatants

- just as likely to return to the conflict if released• Hamdi also objects in indefinite nature of the detention, says it could very well be perpetual

- Court dodges, says that while war on terror is vague enough that it could be a problem (no formal cease-fire), active operations in Afghanistan still ongoing

• Court decides that citizen detainees have right under Due Process Clause to know basis for classification as enemy combatant and chance to rebut before neutral decisionmaker

• rejects govt’s theory that courts have no role in telling executive what its war powers are• remands for determination of whether Hamdi is actually an enemy combatant

- Souter/Ginsberg Concurrence:• the AUMF doesn’t give enough justification to get detention past the Non-Detention Act

- requires that no citizen be imprisoned except pursuant to an Act of Congress- passed to guard against repetition of WWII internments, which were done by executive- intended for times when country is at threat

• have to respect separation of powers, executive branch’s responsibility is security, “for reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation’s entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory…”- that’s why Congress clearly expressed that it needs to authorize any detention

• need to read Non-Detention Act robustly then, and AUMF says nothing about detention- maybe Congress didn’t think it needed to b/c of criminal statutes dealing with terrorists

- Scalia/Stevens dissent:• when you accuse a citizen of waging war against the U.S., the constitutional tradition is to

prosecute him for treason or some other crime• even if that’s prevented by “exigencies of war,” Constitution lets you suspend habeas

corpus (Art. I, § 9, cl. 2), but executive can’t do it unilaterally• AUMF does not invoke Suspension Clause, so detention is unconstitutional

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Executive Privilege & Immunity United States v. Nixon: In order to effectively use executive power, the President has a qualified privilege to keep confidential any communications with advisors. The privilege protects communications regarding military, diplomatic, or national security secrets and can be overcome by a demonstrated, specific need for evidence in a pending criminal trial. - Facts:

• grand jury wants access to tapes President Nixon made with advisors in the White House• Nixon refuses to disclose, cites executive privilege

- Ruling:• first, gov’t claims this in an intra-branch dispute, no claim or controversy, political question

- court says no, this is a criminal prosecution that the AG is pursuing under the authority granted in him by congress (Art. II § 2)

• gov’t claims judicial review of executive privilege is precluded by separation of powers, then that there’s an absolute privilege, then that qualified privilege prevails over this subpoena

• Court says since it’s construed/delineated express powers, it can deal with implied ones• absolute priv. argument based on two grounds:

- high government officials need conversation with advisers to be protected so that they can get honest advice

- separation of powers means executive branch is “independent in its own sphere,” so insulated from judicial subpoenas

• court rejects both arguments:- absent military/diplomatic/national security secrets claim, confidentiality of Pres.

communications is not really diminished by production of material for in camera review- absolute separation of powers-based priv. would conflict with function of courts (Art. III),

separate branches don’t operate w/ total independence, need Constitutional balance• legit. needs of judicial process may outweigh privilege, need to resolve competing interests• request for specific evidence in pending criminal case beats claim of general confidentiality

- advisers won’t become less candid b/c advice might come up during prosecution (huh?)- need to specific facts in criminal investigation is central to admin. of justice

• “when the 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 in the fair administration of criminal justice.”

Nixon v. GSA: An act of Congress requiring the disclosure of Executive communications does not violate separation of powers on its face if it makes adequate provision for the assertion of the President’s qualified privilege. That act is also not a bill of attainder simply because it is specific, bills of attainder must also punish with no nonpunitive legislative purpose. mf- Facts:

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• General Services Administrator signed agreement with Nixon giving him all rights to material and depositing them in a U.S. facility near his house in Cali.

• Senate passed a bill abrogating the agreement, Nixon filed for specific performance of the agreement

• The Presidential Recordings and Materials Preservation Act:- requires GSA to obtain all tapes and papers, prohibits their destruction - gives Nixon access subject to regulations, gives other agencies access for lawful uses- requires custody to be maintained in Washington- directs GSA to create regs. concerning public access to tapes, regs. to be submitted to

both houses of Congress and approved in 90 days unless a house disapproves- regs. must take into account need to:

• provide the public with the full truth about Watergate• make materials available for use in judicial proceedings• prevent general access to information relating to the Nation's security• protect every individual's right to a fair and impartial trial;• protect privileged materials• provide public access to non-Watergate materials with historical significance• give Nixon sole custody of personal materials

• since Congress had not yet approved any regulations, the Court’s inquiry was limited to whether Nixon’s constitutional interests were harmed by archivists screening materials

- Ruling:• current’ gov’t (President Ford) claims that since Nixon is no longer President, he can’t claim

separation of powers/executive privilege protection• court rejects that, former Presidents can bring those claims, but they’re without merit here • Nixon’s claims:

- Congress has no power to tell a subordinate officer of the Executive Branch they can decide whether and how to disclose Presidential materials. That’s an impermissible interference by the Legislative Branch in Executive matters (separation of powers)

- Act offends confidentiality of Presidential communications recognized in United States v. Nixon (1974) by authorizing GSA to take custody of all Presidential materials and authorizing future publication except where a privilege is affirmatively established

- Act going after Nixon specifically is an unconstitutional bill of attainder• court rejects separation of powers argument: “nothing contained in the Act renders it unduly

disruptive of the Executive Branch and, therefore, unconstitutional on its face”- both subsequent presidents think this is fine, control/screening of materials remains in

executive branch, no total branch independence (just like in U.S. v. Nixon) and act states that any applicable privileges will be applied

• Court says that since public will only have access to materials after privileged materials are kept out, privilege is just being asserted against professional archivists- presidents have always deposited all materials in libraries, where archivists screen it, it’s

a very limited intrusion by executive personnel sensitive to executive concerns

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• Court finds adequate public interest justification- materials need to be preserved for historical and gov’t purposes and need to restore

public confidence in gov’t by airing events surrounding Nixon’s resignation• Court rejects general privacy claim

- only asserted as to small fraction of material, can only determine which materials are private by screening, screening is a limited intrusion and President is a public figure

• Court rejects bill of attainder claim- Title II deals with preservation of all presidential/federal records for continued operation

of gov’t, fact that Title I is about Nixon is because his records were at issue due to initial Nixon-GSA agreement, there was a legislative purpose

- specificity isn’t the only element of a bill of attainder, it also has to punish, and the Act provided just compensation for any retained records that are Nixon’s personal property

- finally, have to determine if law serves a legitimate nonpunitive legislative purpose, this one does

Nixon v. Fitzgerald: The President has absolute immunity from civil liability for official acts taken while President. - Facts:

• management analyst with Air Force lost job, probably for testifying to congress about cost overruns on a transport job and embarrassing superiors

• claimed he had been retaliated against, sued President Nixon and others for damages - Ruling:

• state and federal executive officers get qualified immunity in proportion to nature of official functions, sensitive occupations (judges and prosecutors) get complete immunity

• Court holds that President gets complete immunity from liability predicated on official acts- unique position in constitutional scheme- diversion of energies in private lawsuits would make gov’t less effective- needs to be able to deal impartially with sensitive matters w/out worrying about liability

Clinton v. Jones: The President does not have immunity from and may not delay lawsuits for private acts, even while still serving as President.- Facts:

• Paula Jones sued President Clinton for sexual misconduct• Clinton filed to dismiss on Presidential immunity grounds, court denied that, but stayed trial

until end of Presidency- Ruling:

• immunity serves public interest, lets officials perform designated functions effectively w/out fear of personal liability, that reasoning falls flat when applied to private conduct

• no immunity based purely on identity of President’s office• no separation of powers problem from Art. III court burdening executive with a trial, court

can manage docket and respect President when deciding about things like discovery

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• stay of trial until President leaves office is an abuse of discretion, have to take into account plaintiff in suit’s interests—such as making sure evidence is preserved—and need to make a showing that President’s duties would be interfered with

Congress & The Legislative Process Whitman v. American Trucking Associations: Congress cannot delegate its legislative authority to executive agencies, but it may give the executive discretion to promulgate rules and regulations so long as Congress guides the discretion with some intelligible principle.- Facts:

• Clean Air Act requires EPA to regulate air quality by setting up national air quality standards• Trucking company challenges statute as delegation of legislative power to executive

- Ruling:• since Art. I delegate all legislative power to Congress, when it gives authority to agencies

by statute it needs to provide an intelligible principle agency must conform to• if statute permits agency to consider economic costs, more likely to be considered

delegation of Congress’ policymaking authority• agencies can make judgments of degree though, they’re afforded room for discretion

INS v. Chadha: Congress can only exercise legislative power in the way directed by the Constitution, through bicameralism and presentment.- Facts:

• under § 244(c)(2) of the Immigration and Nationality Act, either house of Congress had the power to unicamerally veto AG’s recommendation as to who could stay in the U.S., person would then be deported

• resolutions opposing grants of permanent residence under § 244(c)(2) were not treated as Art. I legislation, not submitted to Senate or President

• House vetoed AG’s decision to let Chadha stay in the U.S., Chadha sued saying § 244(c)(2) unconstitutional

- Ruling:• presentment and bicameralism are integral parts of legislative process

- keep Congress in check, require careful consideration of all legislation• § 244(c)(2) one-house vetoes are definitely legislative acts

- altered legal rights, duties and relations of people outside of legislative branch- judge the character of the Congressional action supplanted: only other way to deport

would be legislation requiring it or amending § 244, both are Art. I legislation• not an exception expressly authorized by Constitution, therefore subject to Art. I standards

- Constitution expressly lays out when one house can act on its own• might be convenient, but there are more important things than convenience, have to ensure

that legislation is deliberated upon- Powell’s concurrence:

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• case could be decided more narrowly, when it determines that someone does not meet statutory criteria, Congress is acting like a court in violation of separation of powers- it’s an abuse of power, Chadha has no chance to plead his case before Congress

Clinton v. New York: Congress cannot pass a law allowing the President to amend acts of Congress after they become law, he can only return bills with a veto or exercise limited discretionary authority. - Facts:

• Line Item Veto Act lets Pres. cancel spending provisions that are already signed into law• Congress can pass disapproval bill to cancel cancellations, but Pres. can veto disapproval

bills, so Congress pretty much needs a supermajority to pass spending provisions the President doesn’t like

• Pres. cancelled provision increasing federal subsidies for medicare in New York (standing)- Ruling:

• President has amended act of Congress• differences b/w Presidential return of bills after veto and this

- return happens before bill becomes law, this happens after- return is the entire bill, this is only part

• this isn’t an exercise of discretionary authority, it’s the President substituting Congress’ policy judgment for his own.

• and this isn’t just the President declining to spend discretionary funds, this is changing the text of laws, not deciding dollar amounts

Congressional Control Over Executive Branch Appointments Myers v. United States: The President has the authority to remove the heads of executive agencies for any reason, as the power to remove officials is incident to the power the appoint them.- Facts:

• postmaster removed from office by President w/out Senate input despite statute that says Senate has a say

• government claims that requirement is invalid, claims Pres. has Art. II removal powers- Ruling:

• law is invalid, President has power to remove executive officials • part of executing law is that President be able to remove officials who are doing a bad job

- (can’t let Senate keep bad officials in to mess with Pres.)• Senate preventing removal is different from agreeing with or rejecting appointments

- when nominated, Senate can be just as informed as Pres., but Pres. is better informed about job performance and therefore the right decision maker for removal

• power of removal is incident to power of appointment, not power to advise and consent

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Humphrey’s Executor v. United States: The President’s removal powers depend on the character of the office. Purely executive officers can be removed at the discretion of the President, while Independent Administrative Agency officers cannot be removed except for a cause named in the office’s statute.- Facts:

• Roosevelt removes FTC commissioner Humphrey, he sues to recover lost salary• statute says commis. can be removed for inefficiency, neglect of duty or malfeasance

- Ruling:• Court found that statute acted as limit, commis. can only be removed for those reasons, but

had to determine if those limitations on removal were valid• says Myers can’t control, postmaster is totally different from office here, purely executive

officer with no legislative or judicial power, whereas FTC is created by Congress with legislative and judicial functions

• since they’re not wholly executive, they must act independently of executive control for sep. of powers reasons, they’re independent agencies with their principles given to them by Congress and so their heads cannot be fired except for cause

Bowsher v. Synar: Legislation cannot give executive powers to officials whom Congress can remove other than by impeachment and conviction.- Facts:

• Gramm-Rudman-Hollings Act required automatic budget cuts according to conclusions of Comptroller General

- Ruling:• Congress can’t remove executive officers except by impeachment, letting Congress have

control over officer in charge of executing laws would be a separation of powers problem• Comptroller General is removable by a Joint Resolution of Congress, clearly a legislative

officer, so he can’t have executive powers• Act allows him to interpret law to enact legislative mandate while exercising independent

judgment and ultimate authority in determining budget cuts, that’s executive authority• Congress can only maintain control of passed legislation by passing new legislation, there’s

no other way for them to keep a hand on something once it’s passed- Chadha stands for the same proposition

Morrison v. Olson: The Appointments Clause lets Congress give courts the power of appointing inferior executive officers, and the courts have some discretion in defining the nature and scope of the appointed officer’s jurisdiction. Article III allows federal judges to perform functions not strictly judicial. Congress can restrict the President’s power to remove by setting up removal standards, so long as those standards do not trammel on executive authority. c- Facts:

• Ethics in Government Act creates independent counsel to prosecute high-ranking gov’t officials

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• IC created when AG reports to special court (Special Division) created by Act, if reasonable grounds for prosecution, special court appoints IC and defines jurisdiction

• IC can be removed according to causes governed by statute• IC Morrison served subpoenas against Olson and others, who sued • claimed the act was unconstitutional for violating the Appointments Clause (IC is a superior

officer who must be appointed by Pres.,) and that powers granted to Special Division are in violation of Article III

• separation of powers problems: does restricting AG’s power to remove IC interfere with President’s exercise of executive functions; and does the Act violate separation of powers by reducing President’s ability to control IC?

- Ruling:• Morrison is clearly an inferior official

- subject to removal by higher Exec. official (AG), duties are limited by act, jurisdiction is limited by grant of Special Division court, tenure is limited by when prosecution ends

• powers granted to SD don’t violate Art. III, while nonjudicial executive/admin functions can’t be given to judges, this act doesn’t do that- when nature of office created varies with facts behind creating it, it’s appropriate for

Congress to leave those determinations to a special court as a body that judges facts- miscellaneous powers of SD (granting extensions, referring matters to counsel) don’t

trespass on exec. authority, directly analogous to functions that federal judges perform - termination provisions of act don’t cause a problem, it’s not the power to remove counsel

while investigation is ongoing, just a device to remove an IC whose job is done• no separation of powers problem from requirement of good cause for termination

- while this is a purely executive official, that’s not everything, have to see if restricting President’s ability to terminate would “unduly trammel” executive authority, doesn’t here

• no general separation of powers problem- Congress isn’t increasing its own powers, has no control over IC, can only request that

AG apply for one- no judicial usurpation, courts can appoint inferior officials when Congress directs them to

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