CONSTITUTIONAL LAW I OUTLINE

JUDICIAL REVIEWI. Marbury v. MadisonA. Marbury v. Madision

1. Facts: Marbury sued in the Supreme Court for a mandamus ordering Jefferson’s Secretary of State, Madison, to deliver his commission to be justice of the peace.

2. Holding : The Supreme Court does not have original jurisdiction to issue a writ of mandamus ordering an executive officer to deliver a commission.

3. Discussion : Marshalla. Every violation of a legally vested right needs a remedy in the U.S. Cite

Blackstone, brooding omnipresence of CL.i. But Marshall doesn’t provide that remedy. No other ct open to

somebody like M until 1848; Holding means there isn’t remedy.b. Executive Discretion: The president (P) can commit acts for which an

injured party has no remedy. These acts include those of P’s officers who execute his will rather than congressionally imposed duties that make them officers of the law, and are acts

i. left to exclusive executive discretion by the constitution (Č) or laws, (Abuse of discretion is violation of law, so can be reviewed.) “or”?

ii. in their nature political; iii. they effect the nation, not individual rights; iv. P answers only to his conscience and country in political character.

Discretion lies in act (function), not exalted station of officer.c. Withholding the commission violates a legal right, and a legal duty.d. When P violates a legal right with no discretion, the courts have

jurisdiction over him.e. Jurisdiction:

i. Needed to be granted by statute. Judiciary Act of 1789: gives S.Ct. authority over “any courts appointed, or persons holding office, under the authority of the U.S.”

1. Real text indicates it might only have been giving appellate power. Could have avoided Čal question. When Marshall paraphrases, go to the source.

2. Hodgson v. Bowerbank, 1799: Act seemed to give circuit cts juris. over cases with aliens; unČal on face. Ct: assume Ł didn’t mean to exceed its powers. When a reading allows you to avoid holding a stat. unČal, take it.

ii. Constitution: Interpret it by looking to 1) text (what the language says, doesn’t say, implies) and 2) intent (they couldn’t have meant that).

1. Arising under juris: applies here.2. This cause doesn’t fall into the Č’s list for original

jurisdiction in Ct.

a. But Č also says “with such exceptions as Congress shall make.” Exceptions clause has been understood to relate only to appellate jurisdiction (i.e. you can’t go to S.Ct at all in certain categories of cases).

3. The Legislature (Ł) doesn’t have the power to define the Ct.’s appellate power; that would make the Č’s delineation moot.

4. The Act gives original jurisdiction where the Č doesn’t; thus, it’s unČal.

f. Constitutionality and the Court: i. Separation of Powers: the branches have limits that shouldn’t be

transcended. ii. The Č is paramount, unalterable by Ł Act and controls any Act

repugnant to it. Ł Acts that contradict the Č are void, not law.1. But even if the constitution is supreme, who decides which

interpretation is correct?iii. The Ct. decides whether a Ł act is unČal.

1. Ct’s job to say what the law is, to decide the preemption of conflicting rules.

a. But if the job is to decide what the law is, the law may be that you have no power of judicial review.

2. Inherent in the idea of a written constitution that framers contemplate judicial review.

a. But nothing about written constitution necessarily makes it paramount. French constitution used to prohibit judicial review (meddling).

3. Check on Ł: If the Ct. couldn’t stop the Ł from ignoring the Č, the Č would be powerless and meaningless and the Ł would be omnipotent.

a. Currie: Like saying this isn’t in constitution, but I wish it were. Independent centers of power could mean that they shouldn’t meddle with each other.

b. Could say judicial review is implicit in limitations themselves, because rabbits can’t guard cabbages; Nobody in their right mind would make unenforceable limitations.

c. Maybe it’s more absurd to think that an all-powerful un-elected court would determine the constitution, rather than elected Congress. If a bulldog guards the rabbits, who guards the bulldog?

d. It’s all balancing; when you strengthen one branch, you weaken the other.

4. The Ct has jurisdiction over cases arising under the Č; it has to say what the Č is to decide them.

5. The Framers intended the Č to direct the cts too. They take oath to support it.

a. But does that mean that they have the responsibility to determine the conflict? The oath requires them to do what the constitution requires them to do, and the very question here is what the constitution requires.

6. The Č says that 1st, the Č shall be the supreme law of the land, and then, Ł laws made in pursuance of the Č.

g. Read dormant negativity into affirmative words when necessary to give them operation. No clause in the Č was intended to be ineffectual.

4. Early (pre-Marbury) cases with constitutional interpretations:a. Chisolm v. Georgia: Language of Text: Chisolm, citizen of SC, sues GA:

original jurisdiction. Article III extends judicial power to cases between state and citizen of another. Language fits like a glove; don’t have to look any further.

b. Calder v. Bull: Tradition: Chase: unwritten limitations to legislative power; one might apply here. Case invoked ex post facto clause. Ct rejected argument that this was ex post facto law; looked to tradition (Blackstone, etc.); ex post facto has traditional meaning; we assume Framers used it that way (ex post facto applies to criminal cases— can’t make something a crime after it’s done—not civil cases.)

c. Hylton v. U.S.: Consequence: i. framers weren’t fools, and couldn’t have intended unreasonable

consequences.d. Ct. assumes what “works” is ok. But approaches can cut in different

directions. If they had done in Chisolm what they did in Calder, they would have found that no such practice existed in England—that’s what country was saying to court with 11th Amendment.

II. The Branches’ Power to interpret the Č:A. Hamilton, Federalist #78: The judiciary has control over neither “the sword [nor] the

purse,” but merely judges. Legislative acts contrary to the constitution are void; the people are superior to their representatives. We can’t let the legislature judge itself. The courts are intermediaries between the people and the legislature, and one of their jobs is to preserve fundamental law.

B. Hand-Wechsler debate: Hand: Nothing in the Constitution authorizes judicial review of legislative acts, which is inconsistent with separation of powers; it should only be allowed to preserve the government. Courts are not “Platonic Guardians.” W: it’s in the Constitution.

C. Ł implicitly interprets the Č every time it passes a bill, because members swear to uphold it.

D. Thomas Jefferson: Court can say what it thinks is unconstitutional, but so should the other branches; P shouldn’t execute a law he thinks is unČal. Consistent with Marbury.

E. Andrew Jackson: Consistent with Marbury: vetoes bank as unconstitutional, though court had held that very bank constitutional in McCulloch. Miles removed from decision of McCulloch, which freed Mr. McCulloch from the clutches of Maryland. No undermining of judicial check. Creates another external check on power of Congress to create unconstitutional legislation. Thus, Congress can’t exceed its power unless:2. Executive is willing to sign bill, or 2/3 majority, and 3. Court finds it ok.

F. Abraham Lincoln: 1. Wouldn’t honor court’s determination that Congress couldn’t abolish slavery in

territories.2. Would respect court’s decision in Dred Scott. Lincoln would pass statute again,

and Court would still resolve cases. Other branches shouldn’t frustrate decision of case, but they don’t have to obey court’s rules about how to interpret the Constitution.

3. Would court still be ultimate constitutional check/ arbiter? It will go back up to Court; Court will redecide; but it forces ct to adjudicate each and every circumstance where it wants its law enforced—wildly inefficient.

4. Wechsler: There comes a time when it’s no longer practical to try to get the Court to change it’s mind, because it obviously won’t, and all you’re doing is crippling it.

5. Thus, Lincoln turns focus to justification of Marbury: he’s right if the court’s right is to decide cases, but wrong if it’s to be the final check? FDR is wrong either way.

G. F.D. Roosevelt: Gold clause proposal, undelivered:a. Wouldn’t obey court mandate—outright defiance.b. Would deny Ct power to decide; deny juris., disturbs power to check.

H. Consequences: Judicial review has proven to be effective but not overpowering check. It works well, so maybe it’s what they intended.

I. Early Congressional debates: once in a while, somebody would say on floor: we don’t have the power to decide whether something is in the constitution; that’s the courts’ job. Nobody ever said, no they don’t, only: we have the power to check ourselves too (sworn to uphold constitution).

J. Madison: Bill of Rights provisions will appeal to consciences of Congress, to constituents, and: Courts will consider themselves guardians to ensure that Bill f Rights are enforced.

K. Court Power to Hear:1. Hylton v. U.S.: Court entertained constitutional challenge to federal statute.

Nobody questioned judicial review; all justices discuss Constitutionality. Court says it would never strike unless a clear case of unconstitutionality. (Frankfurter/ Thayer view.) Didn’t actually strike statute.

2. Ware v. Hylton; Hayburn’s Case; Ct’s power to hold case unČal unquestioned.L. City of Boerne v. Flores, 1997:

1. Facts : Π was denied a zoning permit to enlarge his church; he charged that the regulation burdened his religious freedom. Tests:

b. Pre-1990: ask whether it

1. substantially burdens religious practice and 2. if so, was justified by a compelling gov. interest. 3. Employment Div. v. Smith, 1990: neutral laws of general

applicability could apply to religious practice even when not supported by compelling gov’t interest.

4. Religious Freedom Restoration Act: explicitly purported to overturn Smith and restore the compelling governmental interest test. Would retroactively change case result.

2. Holding : The Religious Freedom Restoration Act contradicts Court interpretation of the Č as it applies to cases and controversies, and effectively defines life and liberty, rather than remedying or proportionately preventing violation of such rights; as such, it is beyond Congress’ §5 14th Am. power.

3. Discussion : Kennedy:a. Ł has the right to enforce 14th Amendment protections, but not to decide

the substance of their restrictions on the states. Ł has no power to decide when a Čal right has been violated.

i. Legislative history shows that the Amendment’s Framers purposely gave Ł the power to enforce it, not to prescribe uniform nat’l laws protecting life, liberty and property.

b. Separation of Powers: the Court has primary authority to interpret the Č and the restrictions it creates on the states. Congress has the power to pass corrective legislation that prevents or stops the states from violating protected rights.

c. Violation: The Ct decides cases and controversies, and its decisions are final until it changes them. RFRA tried to control cases and controversies, but the Ct’s precedent, not RFRA, control.

d. Marbury: If Congress had the power to change the interpretation of the Č, the Č wouldn’t be immutable and superior, but law like any other.

e. There are circumstances in which new limit is means of enforcement (e.g. banning literacy test for voters). Proportionality Test: RFRA is out of proportion with the likelihood that the laws it will affect are unČally discriminatory. It reaches every situation, when discrimination isn’t really a problem.

M. Notes on Flores:1. Ct. makes additional check, like Jackson: Court doesn’t think it’s

unconstitutional, but Congress does. If we agree with Jefferson/ Jackson that there should be other checks, Congress is right here.

2. If Congress isn’t bound by the Court’s interpretation, is the Court bound by Congress’? No—Jefferson/ Jackson don’t-tell-us-what-to-do philosophy. Works both ways—nobody can tell the Court what to do.

b. Should the Court have reinterpreted the 1st amendment in light of Congress’ reading? Persuasive authority, perhaps.

c. Frankfurter adopted deferential attitude toward constitutionality of state and federal legislation.

4. Currie, “Reflection on City of Boerne:”a. Holding is plain text of Am 14, §5.

b. Marbury, Lopez: The Proportionality Test supports them by saying that the ct. won’t blindly accept Congress’ power grabs under “appropriateness” and “n&p.”

c. Holding says that Congress can interpret Č for itself, but court isn’t bound by its interpretation.

d. Not always obvious whether Congress is challenging the Ct. to rethink its Čality tests (Lincoln), or trying to change the Č without amendment. Examples:

i. Line Item Vetoii. Defense of Marriage Act

iii. Act challenging Ct’s holding Art III power doesn’t extend to suits against states by their citizens, invalidated in Seminole Tribe v. FL.

III. Court’s Authority to Review State court Judgments1. Holmes: I do not think the U.S. would come to an end if we lost our power to

declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states.

2. Martin v. Hunter’s Lessee, 1816: a. Facts : §25 of the Judiciary Act gave the Ct. power to review state ct.

judgments on the Čality of state law. Π claimed land under federal treaty; Δ claimed it under state grant. The VA ct. called §25 unČal because it wasn’t under the appellate power of the Ct. Said:

i. State courts are final word in state system.ii. Č provides no umpire for conflicts between state and federal

decisions. Since the framers must have foreseen such controversy, the omission probably occurred because such a tribunal would produce worse conflict.

iii. If the feds don’t want state cts to decide, they should route federal issues into lower federal courts at an earlier point.

b. Holding : §25 is constitutional.c. Discussion : Story:

i. Dictum: Č was indeed intended to act upon the states. ii. Cause gives jurisdiction, not Ct—doesn’t matter where it started—

if it’s about the constitution, Ct can review it. Goes too far—what if the case started in Mexico? Is state court like Mexico?

iii. You can’t say that review would impair the independence of state judges when the question is whether they have such independence.

iv. Text: Art VI dictates that they’re not independent of, but bound to obedience to, the constitution.

v. Unsatisfactory to say power doesn’t exist because it might be abused; power’s going to reside somewhere, and there will lie the possibility of abuse.

vi. The state judges may be learned men bound by oath to defend the Č, but

1. the constitution foresees the risk of state interests obstructing or controlling justice, and

2. learned men can disagree, necessitating a reviewer to establish uniformity throughout the federal system.

3. Uniformity and State interests:a. Rutledge: The reason we need federal court authority over federal

questions is to ensure uniformity and vindication of federal rights. b. Calhoun: absurd to think that federal government was left to be ultimate

judge of its own powers—for same reason! Rabbits in cabbages!c. Thus, absurd to give Ct. final word over federal power, and absurd not to

because state can’t be trusted! Deliberate compromise in constitution: lower federal courts—despite Rutledge’s convention claim that Ct over state judges would be enough. Discretion, not requirement, for their creation. If they don’t, Rutledge’s plan is in effect.

4. Cohens v. Virginia, US, 1821: Court sustained its jurisdiction to review the validity of state laws in criminal proceedings. Πs argued that the supremacy clause immunized them against state laws when they sold congressionally authorized lottery tickets. VA argued that when state is a named party, Ct has original jurisdiction, which precludes appellate jurisdiction over such cases.Marshall:

a. Judicial power extends over all cases arising under Č or federal law, whoever is a party.

b. State judges are dependent on will of their Łs. Č values independence of judges; wouldn’t leave federal questions to judges who aren’t independent.

IV. Checks on the Court:1. Impeachment—never been used; tried, but failed, with Chase:

a. Standard: Good behavior. “Good” should be narrow, becausei. Don’t want ability to judge subject to Congressional will.

1. Federalist 78: Low standard would impair judge’s a. Ability to decide cases, through intimidation, andb. Undermine ct’s ability to act as check.

ii. High crimes and misdemeanors standard, which suggests seriousness.

iii. Perhaps lower requirement is recognition of awesome (Marbury) power of judges under constitution.

2. Amendments to the Constitution.3. Ł Control over Court:

a. I, 8 N&P clause gives Ł power to set the size of the Court; “lower tribunals.” FDR court-packing plan.

b. Should be able to look to Ł intent or you run risk of wild abuse.c. Congress sets the time at which the Court meets—Jefferson postponed the

Marbury decision until 1803.d. President nominates Justices, but Senate has to approve. Since 1987 Bork

rejection, Senate has felt free to probe nominees constitutional views.4. Exceptions Clause (III, 2, 2):

a. Ex Parte McCardle, 1869:

i. Facts : Under Reconstruction Acts, Ł imposed military gov. on many former Confederate states. Π was imprisoned under them. Ł feared that Court would invalidate military government in the south during reconstruction, so it repealed the Court’s jurisdiction to hear cases in which it would come up.

ii. Holding : Ł had power to repeal Ct’s jurisdiction over appeals from circuit cts in habeas cases, which it had granted a year earlier.

iii. Discussion : Chase:1. Power under exceptions clause. 2. Marshall, Durousseau, 1810: appellate powers not

expressly granted by the judiciary act were disallowed.3. Narrow reading; only one avenue to Supreme Court was

taken away; still other ways to get review of Acts. a. Yerger sought relief under preexisting law

authorizing Ct’s “original juris.” over habeas cases. Released from custody before Ct. could rule on merits.

b. Marbury: McCardle power impedes Ct’s Marbury philosophy of acting as check, mediary between people and Ł by making judicial review exist at sufferance of Ł. Surely Ł can’t avoid constitutional review of its laws by cutting off jurisdiction. But that only is a problem if Ł cuts off both state and federal courts, which McCardle didn’t. If you close off all fed cts and leave only state—what if issue is state legislation (rabbits and cabbages). And what if Ł only leaves open cts which are sympathetic to its preference.

i. Hart, consequence: Is it conceivable that the framers intended to let Congress use the exceptions clause to frustrate the Court’s review power, and the constitutional plan? Rights without remedy are valueless.

c. Text: Internal restraints on exceptions power: i. Amar: III, 2, 2’s “all cases” might mean that fed cts need some

jurisdiction over all cases. Must give jurisdiction to lower fed cts if you take it away from Ct.

ii. Hart: Exceptions power can’t interfere with functions essential to the Ct’s role in the Constitutional plan.

iii. Alterations motivated by hostility to Ct decisions should be disallowed. (Wechsler sees no such limit on Łal power to limit federal judicial power.)

d. External Restraints on exceptions power (in Const., outside Art III):i. Bill of Rights: Congress couldn’t exclude classes of litigants on

race. (Strict scrutiny for such attempts.) Similarly, might not be able to exclude classes of issues. But then, no guarantee that all federal issues will be resolved in fed ct.

e. Felker v. Turpin, 1996: Antiterrorism and Effective Death Penalty Act precluded Ct review successive habeas petitions. Held, Rehnquist: act doesn’t preclude Ct’s power in “original” habeas petitions, so prisoner still

has other ways to relief, and thus doesn’t have claim that Congress exceeded Exceptions power.

f. U.S. v. Klein, 1872: Ł may not use its exceptions power to effectively dictate rules of decision to the judiciary or interfere with executive autonomy. Ct had held that a P’al pardon satisfied statutory requirement that claimant was not part of “rebellion,” and could thus claim indemnification for property seized during Civil War. Ł passed a statute that pardon would indicate that the claimant was a rebel, and that cts had no jurisdiction over such cases. Held: Ł is allowed to deny right of appeal in particular class of cases, but not when denial is means to an (unČal) end, and the end is to prescribe a rule of decision. The Act had violated separation of powers by saying 1) how a courtshould decide an issue, and by 2) denying effect to a presidential pardon.

i. Distinguishing from McCardle: Under Klein, Ct wasn’t deprived of jurisdiction, but was ordered to dismiss the case, the claim. Exercise jurisdiction, don’t not have it; make effect contrary to your interpretation of constitution. Thus, Ł can take away jurisdiction under Article III, but can’t order Ct. to take jurisdiction and enforce an unconstitutional law.

ii. Plaut v. Spendthrift Farm, 1995: Held: Ł cannot amend applicable law that the Ct has already decided. Ł passed an act requiring Art III cts to reopen certain securities cases that would have otherwise been precluded by a Ct decision on statutes of limitations. Held, Scalia, that Ł had violated separation of powers by setting out substantive legal standards. The judiciary has sole power to render dispositive judgments over cases.

5. Čal and Prudential Limits on Čal Adjudication; What’s a case?a. Standing (Who may go to court)b. Mootness & Ripeness (When in the dispute they may go), andc. What Čal issues the Ct. may decide (not, e.g., Advisory Opinions).

V. Advisory Opinions1. Washington:

a. Requested Ct. advice through Madison (sec. of state). b. John Jay letter re: Washington’s request for help. “We have considered

the previous question regarding the lines of separation between the three branches of government.” Reasons for refusal:

i. Separation of powers: implicit to Č. Ct doesn’t say we can’t do this because of separation of powers, but it’s part of their reasoning.

ii. Check—once you give advice saying X, hard to neutrally review, in an actual complaint, dictate that you already made. Need distance between branches to act as effective external check.

iii. Art II: P can call on “heads of departments”—that means executive departments; ask them. But Madison used to give the P advice all

the time while he was in Ł, and he wrote the Č. Language itself doesn’t dictate—maybe if read with checks/ separation ideas.

iv. Marbury: Ct of last resort: Can’t be required to act as ct of 1st instance.

1. Original/ appellate: This isn’t an original case, but it’s asked to take original jurisdiction.

2. Doesn’t ask court to issue final, binding decision, but to give the executive advice which it is free to ignore. P would be reviewing act of Ct. Last resort means nobody is above you.

v. Extra-Judicial Function: Two Steps:1. Courts can only do Judicial Business

a. Text:c. Judicial Power shall be in courts. (III, 1; II)d. III, 2: Judicial business is decision of cases and

controversies. b. Structure: separation of powers: Arts I & II: negative

inference.c. Marbury: Courts are granted original jurisdiction in

certain cases; therefore, not in other cases.e. Precedent: Hayburn’s Case: 5 circuit judges, 1792,

refused to exercise authority under act of Congress that would have given hem, they said, an extra-judicial function.

f. Legislative History: i. Council of Revision proposed, rejected: 1)

didn’t want judges dealing with mere policy questions; 2) shouldn’t decide questions of law in this manner because these same cases might arise later in official case, and they wouldn’t be impartial.

ii. b) Madison once objected to Art III arising-under provision—judges should only be allowed to expound on law in cases of judicial nature. Assured that it was generally supposed that it was constructively (as it stood) so limited.

2. Giving Advisory Opinions isn’t a judicial function.a. Text: Art III: cases and controversies only. What

does that mean?b. Tradition (Calder v. Bull: look to tradition): Cases

and contros are the kinds of things that cts traditionally (UK) do. Why?

i. Someone needs the court; it’s not just jumping in. Strangers shouldn’t meddle with each others’ business.

ii. Parties present arguments, which helps the court to make the right decision.

iii. Otherwise premature—why get in controversy, attract criticism, when problem is hypothetical.

iv. Facts help judges understand what’s really at stake. Advisory opinions are abstract: no real facts for judges to work with. Answer to Washington’s question might be: it depends on the facts.

d. Contradictions: Jay negotiated Jay Treaty with England in 1794, while he was chief justice. Ellsworth did the same thing with France in 1800. Warren investigated the Kennedy killing; J. Jackson was chief prosecutor at the Nuremburg trials. Nothing in Constitution to keep judges from wearing two hats (Mistretta). They just can’t wear them at the same time. Technical explanation: Article III limits powers of court, not judges—but this doesn’t address the incompatibility clause. But it doesn’t explicitly forbid judicial/ executive simultaneously.

2. FDR considered requiring the Ct to give advisory opinions on Čality of laws.3. Policy reasons against courts giving advisory opinions:

a. Don’t want them prejudging. b. May distract judge from exercise of proper function by taking up his time.c. Risk of error.d. Don’t want too much reliance of other branches on ct; saps their vigilance.e. Husbands image of court—on front lines, instead of removed and above.f. Rutledge, policy reasons for refusing to make advisory opinions, Rescue

Army v. Municipal Court of L.A.:i. Court only decides constitutional issues under strict necessity.

ii. Thus, constitutional issues only get decided in terms of specific facts that make them tenable or not (Specific Injury),

iii. Court shouldn’t impede on another branches’ functions.g. Premature and abstract decisions can render rights uncertain and insecure.

4. Policy for giving advisory opinions:a. Quicker (efficient): nobody wastes time doing anything later claimed

invalid.b. Difference between judge acting in official capacity and unofficial.c. Fills gaps: lets you get judges’ opinions in matters that might not

otherwise come before court.

VI. Standing to Sue1. Many disputes far short of advisory opinions that court won’t handle.

a. No standing—no injury.b. Unripe: Premature—unnecessary.c. Moot, unless capable of repetition, yet evading review.d. Collusion—U.S. v. Johnson (read): someone paid to litigate side half-

heartedly.

e. Finality—not case or controversy if decision will be subject to overruling by other department.

f. Administrative question limit: Federal Radio, c.1930: ct. authorized to review decision of federal court that reexamined de novo whether grant of radio license served public convenience and necessity. Court: determination is administrative, not judicial question: and can’t be made judicial, because courts are supposed to decide law and fact, not—what? Policy? When standard was amended to allow judges to review decision as being made on substantial evidence, ok.

2. 3 part test: though DC says they’re all the same thing: a) Hurt b) Caused by action (traceability) c) Redressability: relief you seek must be able to solve problem.

3. Spectrum: a. From garden tort case: two parties in direct conflict that needs judicial

resolution tob. advisory opinion for abstract description of the law.

4. Constitutional Limits: III, 2 says that federal courts only have jurisdiction over cases and controversies.

5. Tradition: Strangers don’t meddle with each others’ business. a. Standing isn’t an artificial restriction on cts’ ability to hear cases, but a

reflection of the way cts really operate. They don’t hear cases in which P hasn’t been hurt.

b. But UK cts did step out of their bounds: e.g. writ of quo warranto, challenging authority for gov’tal action, could be brought by anyone.

6. Prudential Limits:a. Can’t assert Rights of 3rd Parties.b. Can’t be general grievance (part of Čal requirement in some cases).

i. But if they unČally search everybody’s house in the country, does no one have standing? No—concern with wide-spread grievance is that it will be abstract and indefinite—wide personal injuries would still be suable.

c. Zone of interest test: right must be created by statute. i. Data Processing: Action must be within zone of interest of statute

that you are trying to enforce.ii. Restatement Torts: when regulatory statute imposes a duty and that

duty is violated, the hurt person has a remedy if they were in the class designed to be protected by the duty.

e. Why Prudential Limits?i. Discretion over jurisdiction (which courts always have when party

seeks equitable or declaratory relief).ii. Redressability: Ct able to make problem go away (won’t come

back). iii. See 3rd party suits, below.

5. Third Party Suits:a. McGowan: Attack on Sunday laws: infringed on freedom of religious

practice of those who couldn’t work on Saturday, and wanted to stay open on Sunday. Ps weren’t sabbatarians, but said this law infringes

somebody’s rights. Ct: Πs have nothing to gain by asserting the rights of sabbatarians, because the statute will still be applied to them.

b. Excludes de minimus suits—if it’s not worth while for the sabbatarians to sue, let’s not litigate it (judicial economy).

c. The law or right on which Π sues should grant people like Π a right to sue; mean to protect them. (“Essentially,” p31.) Not enough to have jurisdiction—need cause of action, right to sue.

d. CL: no writ, no right.6. Injury:

a. Sierra Club v. Morton: you’d be injured by a world without grizzly bears.i. No, we can’t let people just subjectively define injury, which

would then be limitless. Merely saying that you’re offended by the problem isn’t enough.

ii. Should find someone who liked to look at bears in those woods. But

iii. U.S. v. SCRAP: students challenged high interstate rates for scrap, which made recycling less tenable. They claimed injury: we use parks. If you don’t recycle cans, you’ll leave them in the park, or dig there for more aluminum! Ct. upheld standing, which DC can’t believe. He says claim for standing was much stronger in Linda than in SCRAP.

b. Lujan v. Defenders of Wildlife: Court struck down, clearly on standing grounds, provision that gave jurisdiction over anyone who made claim under Endangered Species Act. 3rd Parties.

c. Allen v. Wright: Πs claim government stigmatizes them by tolerating discrimination against them. Rejected. i. But reputational injury, right to privacy ok. How different from stigma?

d. Economic Injuries: Are they all that count? i. Plessy: Ct won’t protect injuries that were “in the mind.”

ii. Arlington Heights (fn p35): Injury doesn’t have to be economic.e. Redressability:

i. Linda R.S. v. Richard D.: D fathered Π’s child, and didn’t pay child support. D.A. refused to prosecute D for Π, and Π sued the D.A. Ct threw it out for lack of standing. D might just sit in irons, and not pay— not certain that judgment would redress Π’s injury.

ii. Marbury: Is it a clean-hands doctrine for judges?7. Warth v. Seldin, 1975

a. Facts : Organizations and individuals of Rochester, NY, sued the town of Penfield’s zoning boards, claiming that its zoning ordinance effectively kept low and middle income people from being able to live in the town, in violation of their constitutional and statutory rights.

b. Holding : A Π who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm her, and that she would personally benefit in a tangible way from the courts’ intervention.

c. Discussion : Powell

i. The cts shouldn’t decide abstract questions of wide public significance that the other branches could address. III gave the cts power to redress or protect against injury to the complaining party.

ii. Standing rules require1. no generalized grievances 2. no claims on rights of 3d parties.

iii. Πs can seek relief on the basis of the legal rights and interests of others when Ł gives Πs standing by statute, explicitly or implicitly. But see Raines, below.

iv. Π1s: people excluded: Π1s would have to prove that, without the ordinance, they would have been able to find housing in Penfield. Ps must allege factssssss that would demonstrate that they have, in fact, been excluded by these zoning practices.

v. Π2s: Rochester taxpayers who claim that they have to pay higher taxes because Rochester has to build more low-income housing with tax abatements.

1. Conjectural that taxes would really go down, and their harm really results from Rochester taxing authorities, who aren’t a party, and

2. Πs aren’t claiming a violation of their Čal or statutory rights, but those of 3rd parties. Congress could give them a right not to pay higher taxes to support your neighbors, or to sue for your excluded neighbors; none has, so no injury.

vi. Π3s: Associations: fail to show actual harm to a member. If a member were harmed, would have standing to sue as representative.

vii. Π4s: Penfield residents who don’t have integrated community: ct doesn’t deny Čally sufficient injury, but where’s the right? In exclusion of third parties.

xi. Π5s: Builders with lost business: Fail to show specific projects that were averted by the ordinance recent enough to be live, concrete disputes when the complaint was filed.a. Arlington Heights v. Metropolitan Housing, 1977 (Powell):

Developer planning specific project that still needed rezoning, financing: involvement in specific project provided “essential dimension of specificity” that informs judicial decision-making.

d. Dissent : Brennan (White, Marshall (Douglas)): The majority expresses hostility to the claim on the merits; requires parties to get all the facts and proof of their case on paper before discovery and trial. E.g.: to require proof of a present discrimination in a particular building project, before trial, is to ignore the heart of the claim: the town methodically disallows such development. Past injury and future intent should get you into ct.

8. Raines v. Byrd, 1997:a. Facts : The Line Item Veto Act (1996) authorized P to remove certain

items “appropriated for expenditure” from any bill or joint resolution that

had been signed into law under Art I §7. The Act specifically said that any member of Ł could bring an action challenging the Čality of any portion of the Act. 4 senators and 2 congressmen who had voted against the act’s Čality sued under this provision claiming that their votes have lost meaning, integrity, and effectiveness.

b. Holding : Even when Ł tries to create statutory standing, a member of Ł doesn’t have standing under the claim that an Act has made the Ł’s votes less effective.

c. Discussion : Rehnquist:i. Standing issues are particularly rigorous when the issue would

have the court make a constitutional decision. Separation of powers: the Court should stay inside its proper sphere.

ii. Standing requires that the claimed injury be personal, particularized, concrete, and “otherwise judicially cognizable.” It needs to be based on loss of a private right, not loss of political power.

iii. Congress can’t override standing requirements by statutorily creating standing where it wouldn’t otherwise be.

iv. A claim of institutional injury needs to be specific and focused (my vote wasn’t given effect—Coleman) not abstract and widely disbursed. “Less effective’ future vote injury claim is speculative ad abstract—hard to define.

v. Routes will still be open to challenge the Act—Congress can repeal it, etc., or somebody who suffers judicially cognizable injury can sue.

d. Concurrence : Souter (Ginsberg): Separation of powers: this is a dispute between branches of the nat’l gov’t, not the type imagined in the traditional definition of “case or controversy.” The judiciary could lose public confidence if it gets into a power contest between the P and the Ł. A Π whose benefits are cancelled under the Act would have standing.

e. Dissent : Stevens: Art I, §7 creates a legislator’s personal right, essential to her office, to cast a vote for measures that are to become law. The Act might deny this right; that’s a real injury. The injury is current and ongoing, as the threat of veto power would effect current Ł choices.

f. Dissent : Breyer: The parties here are truly adversary; this is not an abstract, intellectual problem. The Constitution doesn’t “draw an absolute line between” personal harm and official harm. The systematic nature of the threatened harm here affects the legislators’ ability to do their jobs.

g. D.C.: This isn’t the kind of thing that lawsuits are about: even Stevens’ description of the injury is not a comprehensible injury.

9. Membership Representation:a. NAACP v. Alabama: 1957: AL wants a list of the members of the

NAACP: argument that it interferes with members’ right of association. Members can’t effectively sue to assert their right without violating them (revealing their names), so association allowed to assert them for them.

b. MA v. Mellon: It’s conceivable that a state could sue to protect its citizens from unČal Ł Acts. But a state can’t act as parens patriae to enforce its citizens’ federal rights; the federal government will do that. Can protect, not assert.

c. Clinton v. New York: Court allowed NY to sue Clinton when he used the LIVAct to veto a provision that would excuse the state from 2.6bil. in taxes:

i. Ps would suffer concrete economic injury. Same with potato growers who lost when C vetoed tax benefits for helping such farmers, even though (Scalia dissent) their harm was indirect. Redressability.

ii. More standing requirements: traceability: traceable to Δ’s conduct.10. Suits by Taxpayers:

a. MA v. Mellon (Frothingham), 1923: i. Facts : Taxpayer challenged Čality of Maternity Act, which used

tax money for mothers and infants, out-reaching the Commerce Clause (local health). State sued to challenge usurpation of its 10th Amendment rights; Π that her $ was taken without due process.

ii. Holding iii. Discussion : Sutherland:

1. MA as Π: a. State rights aren’t invaded because Ł imposes only

a choice (dictum). b. Ct. only has juris over a case involving a state when

its judiciable. c. Ł hasn’t acted against state, merely passed a law. It

simply proposed to share state power with it. d. MA asks court to decide political question; abstract

question of sovereignty.e. Can’t assert its citizens federal rights as

representative.2. Taxpayer Π:

a. Interest in money is minute (injury is minimal);b. Effect of payment is speculative, remote, uncertain.

Gov’t wouldn’t give the money back. No redressability.

c. No injury (follows from (b)): Claim is on spending power, not taxing power.

d. General grievance: Standing would open door to flood of suits.

e. Separation of Powers: Court doesn’t tell other branches what to do, but redresses injuries.

b. Marbury implications: i. Nobody is left with standing, b/c state can’t represent. Troubling

in view of Marbury’s checks/ balances.

ii. Weak view of Marbury: Ct. doesn’t have power to simply declare what’s Čal; has negative power to disregard unČal enactment that would stand in the way of enforcement of a legal right. Need both to show that it’s unČal and that you’ve been injured by it.

c. Butler: Earmarked tax that could only be used to give to farmers to adjust their crops. There, since the government couldn’t do anything else with the money, P could get it back, so cause of action.

d. Flast v. Cohen, 1968: Ct upheld standing by taxpayers to challenge aid to religious schools under an Education Act. Distinguishes Frothingham:

i. Need nexus between Π and spending in question.ii. Π must challenge exercise of congress’ power to spend. Maybe

then you’re talking about a pocketbook injury.iii. Here, taxpayer was relying on specific limitation on federal

spending—the establishment clause. What does this have to do with standing policy? One purpose of establishment clause was to protect taxpayers against having to pay for religion. That suggests that taxpayers are within zone of interest of establishment clause—intended beneficiaries—and are thus asserting their own right to be free, while Mrs. F. was intending to assert that state’s interest in its legislative prerogative—3d party.

iv. Perhaps Carolene below (political questions) helps explain.e. Wickard: No standing problem there. Is that because 3rd party is D, rather

than Π? Are standing problems absence of cause of action, so that definitionally it doesn’t apply to D?

VII. Ripeness and Mootness:1. Ripeness: Seeks to prevent premature adjudication.

a. Too remote, speculative, hypothetical, vague for judicial action.b. Need eyeball-to-eyeball confrontation. Until then:

i. Not clear that you’ll violate the law, because you haven’t yet.ii. Not clear that you’ll be prosecuted if you do.

c. Ct. won’t issue advisory opinions.d. Overlaps with standing: see Linda R.S.e. Arises when:

i. Πs seek injunctive/ declaratory relief.ii. Fats aren’t settled.

f. United Public Workers v. Mitchell, 1947: Challenged fed law speech/ association restrictions on employees. Ct: Πs want advisory opinions. Ripe cases present legal issues, not attacks on political expediency of law.

g. Adler v. Board of Educ., 1952: Challenge NY law to take subversives out of school system; Ct took case. Book doesn’t say whether rule had been violated. Frankfurter dissented that it was unripe.

h. Laird v. Tatum, 1972: Πs challenged Army’s right to surveillance citizens. Held unripe because Πs were really afraid of what Army would do with its information later. (Seems like D on the merits.)

i. Points to Consider:

i. Likelihood of contact-conflict, e.g. gov’t’s zeal for prosecuting X.ii. Severity, inflexibility of threat. Risk to Πs shouldn’t be

unreasonable. No civilized system should mandate that its citizens determine the difference between a mushroom and a toadstool by eating it.

1. Abbott Labs, c.1970: Abbot labs wanted to challenge FDA regulations that limited its business options. Argued mushroom/ toadstool. Harlan—there is sufficient threat of enforcement that this case is not unripe.

iii. Relevancy of awaited action; if Π claims a statute doesn’t apply to her, why should she try to do what it says?

2. Mootness: Standing used to exist, but changes in facts or law deprive litigants of stake in outcome.

a. Art III justification: case or controversy.b. Death of appealing party (company goes bankrupt) moots appeal.c. Ct has made many exceptions; factors that prevent mootness:

i. Continuing harm to Πii. Likelihood of future recurrence of past harm, to Π or her group,

iii. Probability that cases like this will evade judicial review. 1. Roe v. Wade, 1973: Π wasn’t pregnant, but Ct. said that

natural/ necessary time limits shouldn’t keep case from Ct. “Capable of repetition, yet evading review.”

2. De Funis v. Odegaard, 1974: Law student charged admissions discrimination, but he was done with school when his case reached the court. Dismissed; the case can come back the right way.

VIII. Political Questions: A “wart on the body politic”—DC.A. “Political questions” are inappropriate for judicial resolution, and are thus

nonjusticiable. B. When is a question political?

1. Textually demonstrable constitutional commitment of the issue to a coordinate political department.

2. Lack of judicially discoverable and manageable standards for resolving issue.3. Court should avoid resolution of problems that are too controversial or could

produce enforcement problems or other institutional difficulties.4. Questions of political import to not equal political questions. But Ct. shouldn’t

get involved with structure of state government, structure of political power. a. But what about state term limits case post-Baker, and what about pre-

Baker voting rights?5. Frankfurter: We could never decide this question. Not that these are wrong

conditions.C. Marbury implications:

1. Marbury says that questions by nature political can never be answered by Ct.2. If it says Ct. is final Čal word, or that litigant has right to know what the law is

(weak reading), doctrine is inconsistent.D. MA v. Mellon: Ct. afraid of getting between states and feds.

E. GA v. Stanton, 1868: Ct wouldn’t hear case deciding whether Ł had outstepped by attempting to abolish GA government.

F. Colegrove v. Green, 1946, Frankfurter: Ct refused to enter “political thicket” and resolve issue of congressional districting scheme.

G. Baker v. Carr, 1962:1. Facts : TN voters claimed that the state’s failures to reapportion, etc., debased their

votes. Malapportioned state Ł meant state redress difficult/ impossible.2. Holding : Issue isn’t a nonjusticiable political question.3. Discussion : Brennan:

a. Though IV, 4 (guaranty clause) claims are political questions, this isn’t one.

i. IV, 4 claims are verboten not because they involve state government.

ii. IV, 4 doesn’t give the courts a standard to work with.b. Qualities of Political questions (any will suffice):

i. implicate separation of powers; 4. Č commits question to P or Ł, or they’ve already acted, and

their action needs to be final,5. Decision would disrespect another branch.6. Potential that departments will give various answers;

embarrassment.ii. Turn on standards that defy judicial application.

iii. Decision needs initial policy that judiciary shouldn’t make,iv. Unusual need for unquestioning adherence to political decision

already madee. Luther v. Borden, 1849: Δs defended prosecution on grounds that they

were agents of RI’s real government, and that prosecutors were insurrectors. Ct wouldn’t decide which government was valid:

i. Potentially chaotic consequence,ii. State courts hadn’t touched it yet,

iii. Deference to state courts on state law,iv. Ł, not the courts, should say which state government is valid.v. Matter already given by act to P, who can call out militia.

f. This case: Court can assess Čality of TN’s action.i. Court has standard: Equal Protection Clause.

5. Dissent : Frankfurter (Harlan):a. Courts don’t take cases that cts don’t have standards and processes to

decide. If standards are gov’t-making policy, not for courts.b. Political questions are those, traditionally, other branches should decide.c. Court doesn’t speak on structure/ organization of state government.

i. But see Gomillion v. Lightroot (c.1960): AL redefines boundaries of Tuskagee City so that it leaves out black citizens so that they can’t vote in city elections. Struck down under 5th Amendment by “our old friend Felix; sort of an embarrassing precedent.” Says it’s clear distinction because it violates 5th Amendment.

d. Civil Rights cases differ because Civil War amendments create the standard/ law.

e. Standing: Ct. doesn’t decide abstract questions of power, sovereignty, government. Need personal injury. This isn’t how governments get made!

f. Courts should never be involved in partisan politics. Consider what judges are trained to do.

H. Notes on Baker:1. Luther doesn’t apply! Baker ct asked to change rule for future, not retroactively.2. Guaranty Clause: Congress & President decide legitimacy of government— as if

guaranty clause deprives courts of jurisdiction—Taney translates U.S. as Ł & P, but what about the 3d branch of the U.S., the judges? Ł is more closely tied to states—maybe better for court to review state government.

a. Enforceability: Ct can’t enforce guaranty clause (P militia act better suited).

3. Harlan dissent: This is not a constitutional violation. This would follow from FF in that constitution doesn’t lay down a rule for this.

4. Carolene: Fundamental in court-defined court power of judicial review. Stone footnote: cts can justify being more aggressive in speech/ religion cases than in economic sphere (how you justify New Deal revolution/ deference to Congress/ rational basis approach) should scrutinize in 3 kinds of situations:

a. Specific provision of Bill of Rightsb. Protecting rights of discrete & insular minoritiesc. Those that ensure proper functioning of democratic process. No reason to

ever defer to Congress if it isn’t product of democratic process. That’s Baker!! FF has it all backwards.

I. Goldwater v. Carter, 1979: Issue whether P could terminate treaty without Senate consent. Rehnquist: this is a political question. Č is silent. Dispute between equal branches of government that have resources such that they don’t need the court. Foreign relations deference to P. 1. Powell: When the other branches are at loggerheads, Ct. should settle dispute.2. Brennan, dissent: P.Q. doctrine doesn’t mean deference to foreign relations. P

alone should recognize/ unrecognized foreign regimes.J. Coleman v. Miller: Is there expiration in state ratification of amendments, so that you

can’t add up ratification from different centuries? Court: that’s a political question. No majority opinion, 3-4.2. To the extent that it’s based on an absence of standards, other proposed

ratification cases (e.g., those that draw on “by the Ł”) might be judiciable.3. The 11th Amend. was never given to the P for veto—ct resolved case on merits.

K. Nixon v. U.S. (1993): 1. Facts : Senator Nixon asked whether the Senate Impeachment Committee violated

duty to try impeachments when they gathered facts and reported them to whole senate.

2. Holding : Cts can review Ł or exec. action that exceeds identifiable Č limits, but “try” doesn’t provide such a limit. Really a decision on the merits.

3. Discussion : Rehnquist:

a. Judiciary can’t set standards for impeachment; it’s left to the Ł. b. Checks: impeachment is check on judiciary. Division between House and

Senate solves rabbits/ cabbages problem.c. Don’t want judges biased if same issue arises in criminal context.d. Article I made exception to Art. III—Impeachment cases go not to the

courts but to the senate.e. Framers knew “try” had many meanings; they must have meant for Senate

(sole power) to interpret it.5. Concurrence (Stevens): The Framers already assigned this to Senate.6. Concurrence : White (Blackmun): Dangerous to have no check on senate;

impeachment for being “bad guy.” Question is not whether issue belongs to another branch, but whether that branch is supposed to interpret the power’s scope/ nature. True balance would let Senate try the judiciary, and the jud. Make sure that senate tried fairly. “Try” has standards that judges understand.

7. Concurrence : Souter: Court should balance obviousness of wrong action against prudential concerns that would tell it to mind its own business.

FEDERALISMI. McCulloch v. MarylandA. McCulloch v. Maryland, 1819

1. Facts : MD imposed a tax on non-state-charted banks, that is, the federal bank, which had its biggest branch there. Each party denied the validity of the other’s law.

2. Holding : The states have no power to tax or otherwise interfere with Łal laws that execute federal governmental powers, e.g. the operation of a federal bank.

3. Discussion : Marshallb. Ł power to incorporate bank: Both Ł and P struggled over this a great deal

before it got before this court.I. Though the Č was made by state governments, its power is

independent, transcendent of them—it is the greater whole. It represents the whole people, not the states.

II. The Fed gov’t’s powers are limited, but when it acts within those powers, it is supreme.

III. Articles of Confederation left to the states those not expressly delegated to the feds; the Č left out “expressly.” .

IV. The Č is an Outline: the details are deduced from the marked objects. “it is a Č we are expounding.”

V. Text:1. I, 9 gives limits because it knows construction will occur.2. Never says not to interpret.

VI. Powers justifying bank: tax, borrow, commerce, war, militia.1. Commerce Power: feds entrusted with “no inconsiderable

portion of the industry of the nation.” (dictum)VII. Executing Power: Need access to fed money, all over country.

1. N&P to borrowing, disbursement, storage, transport of $.2. Bank notes = currency

VIII.Necessary & Proper Clause: “Necessary” doesn’t have to be absolute. Necessary to end, not only means available to that end. Proper softens necessary. Framers were not fools. Č is meant to work.

1. Choice of Means: Feds can choose means to the end of executing their power; bank is appropriate means. Means need only be legitimate and within scope of Č.

2. Clause is placed among powers, not limitations to powers.3. Necessary: “calculated to produce the end,”“convenient,

useful or essential,” “appropriate,” “conducive,” “adapted to the end,” “tends directly to the execution of constitutional powers.”

4. US v Fisher: If necessary means indispensable, then Ł is deprived of choice, because nothing is the only means by which to accomplish an end—to raise an army, you could pay people or impose a draft; neither is necessary because the other is available. There are many solution options to most problems.

IX. Separation of Powers1. Ł may not pass laws beyond its power under pretext of

executing powers; if it did, ct would strike them.2. Otherwise, judiciary shouldn’t judge what’s necessary for Ł

to do its job.X. State Cooperation: Feds aren’t required to count on states to help Ł

execute its power. c. State power to tax bank:

I. The Č is supreme; the states are inferior to it. II. The power to tax is the power to destroy, and the states may not

destroy federal powers.1. But: haven’t looked to see if this tax is a destructive tax. 2. Court creates prophylactic rule that avoids difficulty of

drawing lines.3. Rule vs. discretion problem: rules are necessarily both

overbroad and underbroad, but discretion is time/ energy consuming.

III. Governments can’t make it impossible for each other to operate. Limits guard against this; govA shouldn’t have to trust and hope that govB won’t destroy it. The Union is never dependent on the states.

IV. Absurdity: If we let the states tax the bank, they’ll be able to tax everything, all the means employed by government.

V. Separation of Powers: Judges shouldn’t determine which taxes are ok and which aren’t.

1. But see Holmes dissent, 1930s: Power to tax isn’t power to destroy while this court sits.

VI. The feds may tax the state banks:

1. States are represented in fed gov’t. Problem of externalities: When tax is paid by its constituents, all the costs are internalized and the results are efficient.

2. But Constitution reserves certain powers to the states—absurd to think that feds could then destroy it.

3. Marshall: this is a one-way stream: state tax on feds is likely to be bad tax, but there are political checks on destructivity of fed tax on states.

J. But did framers intend to rely solely on political checks to protect state rights? They didn’t trust political checks in other respects—why should we think they trusted them for immunity?

4. Collector v. Day: states can’t be destructively taxed by federal gov’t. Gen’l income tax, post civ. War, sought to be applied to state judge. Increases cost fo state of doing essential business of administering justice.

5. Overruled 1930’s: Fed. tax on state officers ok, and vice versa, so long as tax isn’t discriminatory.

I. States can still tax bank’s real estate, etc.B. Real Jeffersonians saw this as the end of states’ rights—can always come up with

some argument that whatever measure you have in mind bears some relation to federal power.

C. Why did the Framers want to create a limited federal government?1. Values served by federalism:2. Self-determination, democracy. Keep power as local as possible, but why?

a. Makes for better legislation, because local people can adapt local rules to local conditions and preferences—the diversity of situations is thought to make it desirable to have a diversity of solutions, which is promoted by a diffusion or decentralization of power.

b. Experimentation—analogous to monopoly vs competitive market—laboratory theory of federalism

c. Dispersal of power as a safeguard for freedomd. Exit option—if don’t like Huey Long in Louisiana, move to Texas

D. Did Marshall’s Test give away state power, federalism?1. Perhaps his insistence on “letter and spirit of the constitution” creates a test of

federalism.2. Pretext limitation.3. Separation of powers analysis.4. Why not use the means that is least invasive of states’ rights?5. DC thinks Marshall was saying to construe fed powers to recognize their limited

but supreme nature.6. Tax was discriminatory: it’s obviously destructive to put bank at competitive

disadvantage with other banks in state. Why doesn’t Marshall talk about that? Could have been clean decision on narrow grounds. Same as before: Court doesn’t want to look at the tax itself.

7. Modern Cases emphasize Congressional waiver/ permission of state taxation of feds. 1968: Ct. suggested that McCulloch should be read to only ban discriminatory taxes.

8. Intergovernmental Regulatory Immunities: p.3529. Interstate Relationships: 353

E. Note Cases re: McCulloch1. Dartmouth College, 1819: State-issued corporate charter wanted to turn private

corporation into public one. Held corp. charter is K between state and corp.; Art I, §10 forbids state from impairing K obligations. State can’t destroy what it’s created.

a. Currie: K clause under Dartmouth gives states same right of way as McCulloch gives over federal corps. Later. The only reason states can now is because they put reservations in their corporate charters.

2. Fletcher v. Peck, 1810: If GA grants land to someone, it can’t then take it back.3. Johnson v. MD, c.1929: State can’t regulate p.o. drivers to get license by charging

license fee. Benefit/ bonus for feds.F. State Autonomy and the 10th and 11th Amendments

1. U.S. v. CA, 1936: Stone: Ł can fine state-owned RR for violating Federal Safety Appliance Act. Though states are immune from fed taxation for traditionally-engaged activities, same doesn’t apply to fed power to regulate commerce.

2. National League of Cities v. Usery, 1976: a. Rehnquist majority: Fair Labor Standards Act can’t be applied to state

employees performing traditional gov’tal functions. Can’t interfere with integral gov’tal functions.

b. Blackmun: Need balancing test when federal interest is demonstrably greater and needs state compliance with fed standards.

c. Brennan (White, Marshall) Dissent: Cites McCulloch: Political process, not judiciary, should restrain plenary commerce power. States can protect themselves; this is catastrophic blow to commerce power. DC appalled.

3. Hodel v. VA Surface Min., 1981: Marshall: Upheld fed law regulating strip mining. 3-part test to strike a regulation:

a. Statute must regulate states as states.b. Regulation must address matters that are indisputably important to state

sovereignty.c. State compliance would interfere with integral gov’tal functions.d. Footnote: fed interest can’t justify state submission.

4. FERC v. Mississippi, 1982: Public Utility Regulatory Policies Act, energy crisis, directed state utilities commissions to “consider” (choice) adopting federal standards; required to follow proceedings of consideration. Blackmun: Ł was nice enough to give you a choice.

a. O’Connor dissent: Act pushes national bureaucratic army on states. No real choice to escape regulation; cease regulating utilities?

6. Garcia v. San Antonio Transit Auth., 1985: Blackmun overrules National League. Fair Labor Standards Act can apply to state authority.

a. “Traditional gov’tal functions” test unworkable.

b. Requires too much judiciary involvement. Ł political process (where states are parties) should deal with this. [Like political questions?]i. McCulloch used same argument to say that states couldn’t be taxed by

feds.Dissent: Powell (Burger, Rehnquist, O’Connor): Self-government should take place at state level, not states in fed. Fed staff drafters (“immense federal bureaucracy”) don’t know state/ local concerns. Dissent: O’Connor (Powell, Rehnquist): Ct shouldn’t abdicate responsibility to ensure that feds respect states. Political process isn’t protecting state rights. This leaves it to Ł self-restraint (rabbits/ cabbages).

7. S.C. v. Baker, 1988: Brennan: Feds can tax state bearer bond interest, forcing states to issue registered bonds (tax-exempt) to raise debt capital. Garcia didn’t give us any limits!

8. N.Y. v. U.S., 1992: a. Facts : A Radioactive Waste Policy Amendment Act ordered the states to

provide for disposal of radioactive waste, offering monetary/ competition with other state incentives, access/ competition incentives, and threatened liability incentives.

b. Holding : Ł can encourage (choice), but can’t force the states to provide for disposal of radioactive waste within their borders.

c. Discussion : O’Connorxii. If an act is under Art I Ł power, it isn’t reserved to the states under the

10th Amendment, and vice versa. Ct needs to ask if this power was reserved to the states.

xiii. The flexibility of the Č has allowed the feds to expand enormously to meet the modern world (changes in commerce, GW, and spending—cite Dole), but the Č is still the same; limits exist.

xiv. Ł has power to regulate interstate market in waste disposal. Supremacy clause could let it preempt state reguation.

xv. But Ł can’t use the states as tools of federal regulation.a. The Framers opted for a gov’t that would control individuals

directly, not by controlling states. [McCulloch]xvi. Ł can encourage with

a. Spending powerb. Commerce clause: take federal standards or be pre-empted.c. Both leave choice to states. To do otherwise undermines

democracy—state elected officials don’t make choice; screws up accountability.

xvii. Incentives: a. Commerce can lift prohibition on state discrimination against

interstate commerce with unambiguous intent. Makes these ok.b. Threat of liability crosses the line—that’s not a choice.

xviii. Federal interest: Though a strong one might enable feds to regulate states, it never enables them to force states to make state regulation; Ł can never do that. Crisis isn’t an excuse to alter the Č.

8. Printz v. U.S., 1997: Feds can’t make states enforce federal law. Can’t coop executive.

9. State enforcement of fed law, despite Printz: a. Consider early federal invitation to states to imprison federal prisoners—

made deal with states to everyone’s advantage.b. Pollution law invites/ encourages state participation in definition/

enforcement of federal law—“cooperative federalism.” c. Lesson of Printz and NY is that the states must voluntarily help.d. Motor Voter: Fed law can require that when states issue drivers’ licenses,

they register drivers for fed elections. But it looks just like Printz.ii. Puerto Rico v. Branstad: You can regulate executive officers when

Č already imposes obligation on them to enforce federal law.iii. Helps explain MV: Constitution explicitly says states control

federal election process: Art I., §4, cl. 1 a. Mondeau (sp?): can require state courts to hear federal cause of action.

They try to squirm around this in Printz and NY. How to distinguish?i. Supremacy clause means state cts are bound by fed law, but does

that require them to hear suits brought under fed. law? DC: no.ii. Early Ł didn’t perceive any barrier to requiring state officials to

enforce state law. Scalia: that was just the judges. DC thinks that’s not entirely true, but that they might be dismissed as occasional, sporadic, minor, and there were a few counter examples.

General Welfare: Broad reading would undermine Madison’s claim that fed powers are few and defined; state many and indeterminate.