Constitutional Law I Outline

I. Historya. 1776—Declare Independence. Send delegates to self-appointed

Continental Cong..b. 1777—Proposed Articles of Confederation

i. Art 2: States retain their sovereignty and all powers not expressly delegated to US.

1. 10th Am. is successor—providing that all powers not delegated to US or prohibited in the states shall vest in the states.

2. Imp. difference b/n Art 2 and 10th Amend – Word “expressly” disappears in 10th Am. meaning that there are implied powers under Const. that weren’t present under AofC.

ii. Art 3: Several states shall come together to form a league of sovereign states.

1. States create leagues.2. People create a Const. (Preamble: “We the People of the

United States…”) so this is very differentiii. Art 4: Interstate comity –Direct ancestor of Art IV of Const. One

state isn’t a foreign country to another state. Include FFCC (respect laws/judgments of another state), P&I (give citizens the same privileges and immunities that you give to your own citizens) and Extradition Clause (send criminals back to the state where they committed the crime).

iv. Art 5: Delegates from the states are selected by the state legislatures. Expressly subject to recall by the state legislatures and not fed’l officials. They are representatives of state govts. Often instructed by states to vote certain ways.

1. Part of this was preserved in the Sen. b/c Senators originally chosen by state legis. and not the people until the17th Am.

v. Cong.: 1. Every state has equal vote. Imp. decisions required 9/13

vote—a supermajority requirement that hobbles Congress2. Powers:

a. Military and foreign affair powersb. Federalization of money c. Fed’l post office.

vi. Exec.: Didn’t really exist. (Art IX)1. Prez was chosen by Cong. and was the presiding officer of

Cong. – No separation of exec. from legis. under A of C – it was unitary system.

2. Some Secretaries existed. Operated expressly under the A of C at Cong.’s direction.

vii. Judiciary: Didn’t really exist. (Art IX)1. No Supreme Ct.2. Three Types of Fed’l Judges/Three Minor Classes of Cases

w/ Minor Jud. Power:a. Cong. could choose judges to resolve interstate

boundary disputes i. Exists today but not subst. part of fed’l jud.

powersb. Cong. established cts. to deal w/ crimes on the high

seas.i. Exists today but not subst. part of fed’l jud.

powers. c. Cong. had power to set up appellate cts. for prize

cases (i.e., captures on high seas).i. State cts heard the prize cases in the first

instance and a fed’l ct. reviewed the judgment of the state ct.

ii. Imp. precedent value b/c even under A of C contemplated that sometimes fed’l ct. would hear appeal from state ct.

viii. Problems under A of C Addressed in Const Convention –Some powers notably missing under A of C:

1. Marriage of convenience to fight against England.a. No fed’l power to tax.

i. Made requisitions on indiv. states. Rich states paid more b/c not based on population.

ii. Central gov’t dependent on states for support of its operations. Fed’l gov’t always short of funds b/c some of the states didn’t pay their share.

2. No Bill of Rightsa. Some limitations on states designed to preclude

state interference w/ operation of Cong. States were excluded from international functions b/c needed a unified command in relations w/ foreign powers.

3. Lack of Fed’l authority to regulate foreign and interstate commerce

a. No common market and states were erecting tariffs on other states. No effective way of retaliating against restricting foreign taxes and regulations and no way to stop states hurting each other.

4. Wanted more foreign power vested in fed govt. a. Principle of Subsidiarity: If states can’t do it

effectively, then power belongs to fed’l gov’t (e.g., foreign affairs, war, currency, post office, regulation

of interstate and foreign commerce). Worried that it was too vague so went w/ enumeration that really specified this principle.

5. Enumeration of Fed’l Powers under Art. 1 § 8—bankruptcies, patents, copyrights, power to tax, regulate commerce w/ foreign nations, indian tribes and among several states and the necessary and proper clause.

6. Stronger Exec. that isn’t beholden to Cong.. 7. Didn’t want Cong. to choose Prez b/c then there’s no

separation of powers. Didn’t want people to choose b/c not smart enough. Created Electoral College. (silly system but have an independent Prez)

8. Stronger Judiciary not beholden to Cong..a. Wanted independent judiciary w/ much expanded

powers from A of C. c. 1781—Last of 13 colonies ratify A of C when VA finally agrees to cede

rts. to Western lands to fed’l gov’t leading to the Northwest Ordinance. d. 1786—Annapolis Convention—Results from lack of fed authority to

regulate commerce. e. 1787—Philadelphia Const. Convention—All states but RI

i. Controversies at the Const Convention:1. Controversy b/n large and small states over representation

in Cong. a. A of C/Small States: Equal representation for the

states. b. Large States: Representation based on populationc. Compromise: Equal representation in the Sen. and

Population representation in the House. Each State has two electors (no. of senators) plus the number of people in the House.

i. Carries over to default provision that if no one gets the majority in a presidential election, have a tie breaker in which House votes but each state has only one vote. – Small states more say that population would dictate.

2. North/South Division On Slaverya. Should slaves be counted under apportionment of

representatives in the House?i. South: yes b/c they will increase our

representation.ii. North: no b/c treat slaves like property.

b. Should slaves be counted for taxes? i. South: no.

ii. North: if include them in representation, then should include them for taxes.

c. Compromises: i. 3/5 Clause: Both taxes and representation

based on population. Slaves for both purposes were counted as 3/5 of a person—somewhat advantageous for the North and somewhat advantageous for the South.

ii. Came to head b/c direct taxes rarely done and so South got extra representation w/o paying the money (b/c of indirect taxes)

iii. Fugitive Slave Cl.: if slave escaped from one state to another, slaves like fleeing criminals must be returned. Fugitive Slave Act passed based on this.

1. clause lifted from northwest ordinance

iv. Cong. can not prohibit the importation of slaves before 1808.

v. Ban on export taxes from states: Designed to protect states from discr. measure against the exportation of cotton/tobacco (products primarily grown in the South).

ii. Objections to Const. Legitimacy and Legality:1. States appointed these delegates for the express purpose of

amending the A of C. But never talked about. Instead they wrote a new Const.

a. Maybe delegates didn’t have the authority but if we wrote it and if you want it then you can ratify it so that it has full force. If you don’t like it, then don’t ratify.

b. Which portion couldn’t they amend?2. A of C said that they would be perpetual unless they were

amended by ratification by all 13 states’ legislatures. New Const. took effect in violation of A of C b/c only had to have 9 conventions (not legislatures) ratify it. If going to amend, should go through the A of C process or amend that process.

3. Counter-Args.:a. Policy arguments:

i. We can’t let RI frustrate this effort for a stronger union—avoid hold-out problem

1. Cong. pressured NC. RI didn’t ratify until 1790 when Sen. passes bill saying that it prohibited all trade w/ RI until it ratified the Const.

ii. Conventions adds democratic legitimacy and are more likely to ratify than the state legs that are called upon to shed powers

iii. New constitution wouldn’t be a mere compact/league among the states—but rather the founding of a new nation that won’t be subject to dissolution by one state’s breaching the agreement (later became an important argument against secession)

b. Legal Arg: i. Didn’t have to obey A of C’s amendment

provisions b/c it was K and once a state broke it by not paying taxed then the whole thing dissolved.

c. Natural law justification:i. Theories about consent of the governed, the

ability of a people to decide their own form of gov’t – the right to abolish bad forms of gov’t.

1. These arguments contain w/in them the seed of arguments in favor of secession.

ii. Randolph: this isn’t legal but we must do something b/c it’s a serious situation

iii. John Locke: rt. of people to abolish bad govt. Have to be careful b/c if too whimsical w/ it than abolish stability of new const.

iv. James Wilson: Revolution so let’s get serious.

f. 1788—Const. Ratifiedg. 1789—Const. in Effect

i. Art. IV: Direct successor of Art 4 of the A of C.ii. Art. VI: Supremacy Clause

iii. Art. I, §8, cl. 9: Necessary and Proper Clause has no predecessor in A of C.

h. 1791—Bill of Rts. Passedi. Two Amendments prior to Civil War. Three Amendments result

from Civil War (13, 14, 15). ii. 26 Amendments b/c 27th Am. isn’t really part of the Const.

although prez says so.1. Arguably, the 27th amendment is not valid, b/c the 3/4ths

didn’t ratify the amendment until 200 yrs after it was proposed: constitution imagines a consensus to ratify (thus requiring 3/4ths of the states), so if it takes 200 yrs to cobble together 3/4ths of the states, there’s no consensus.

II. Judicial Reviewa. Marbury v Madison, 1803. Midnight judges, Marbury sues for writ of

mandamus under Judiciary Act of 1801 in USSC. Held: Congress’s grant of original jurisdiction over actions for mandamus violates Art III § 2; USSC lacks subject matter jurisdiction.

i. Establishes judicial review of actions of Congress1. Judiciary Act of 1801 confers original jurisdiction over

mandamus actions in USSCa. Dicey reasoning: structurally bizarre reading (writs

of mandamus appears w/in and applies to sentence spelling out USSC’s appellate jurisdiction), and confuses the grant of a power to grant relief w/ the grant of jurisdiction.

b. Why go out of way to construe statute to create constitutional question?

i. Usual practice is to construe statute to avoid constitutional question (see, e.g., Mossman v Higginson, an 1800 case that turned on a different provision of the judiciary act of 1789. Two citizens of different foreign countries sued each other. The judiciary act of 1789 gave alienage jurisdiction to cases in which an alien is party. We wouldn’t expect the court to uphold jurisdiction, b/c art III § 2 only gives jurisdiction to cases between the citizen of a state and an alien. Assuming the court follows the approach of Marshall in Marbury, we’d declare the statute unconstitutional. But what actually happened is that the USSC interpreted the statute narrowly to avoid the constitutional question)

ii. Why would the court adopt a narrowing construction rather than declare the statute unconstitutional?

1. b/c you assume other branches wouldn’t consciously enact a statute that’s unconstitutional (look to the oath the other branches swear); hence, they meant to adopt the narrower version of the statute. This is a courtesy to other branches (it effectively declares a statute unconstitutional w/out saying that it’s unconstitutional).

iii. Difference between adopting a narrowing construction to avoid unconstitutionality and canon of statutory construction to avoid constitutional questions:

1. In Mossman, the ct effectively decided the constitutional question; the canon of statutory construction is to even avoid having to decide the constitutional question. The effect is to tell Congress, “well, if you want to go up to the line of the constitution, you’ll have to say it very explicitly.” (a clear statement rule)

2. In Mossman, they at least interpreted the statute honestly, and then narrowed it after deciding the constitutional question. The canon of statutory question just tries to avoid deciding constitutional questions and so avoids interpreting congressional statutes honestly.

2. That grant of jurisdiction is unconstitutional b/c Congress can’t enlarge jurisdiction of USSC beyond that in art III—can’t make appellate where original and vice versa

a. Dicey reasoning: what about the exceptions clause? Why are not the two cases mentioned in art III § 2 ([1] cases affecting ambassadors and [2] cases where a state is a party) as being original jurisdiction a constitutional minimum (given their importance) rather than a maximum to USSC’s jurisdiction.

i. b/c the beginning of the sentence says that the exceptions clause applies only to “all the other cases” (and hence not to original jurisdiction cases)—and b/c it’s in the 2nd sentence and only applies to that sentence.

b. He has to take this back in Cohens v VA, where USSC took appellate jurisdiction over a case where a state was a party—this has to be so, b/c otherwise you couldn’t step in to correct lower courts that usurp USSC’s original jurisdiction.

c. In light of Cohens, the holding of Marbury is that Congress cannot add to original jurisdiction

d. Arguments for judicial review:

i. Structural and policy and framers’ intent arguments:

1. Supremacy of constitutiona. Who decides? But by passing

the statute, Congress has decided that the statute is constitutional; why should courts second-guess the legislature’s judgment?

2. Notion of limited gov’t requires checks and balances

a. This is the rebuttal to objection to supremacy clause argument. you need someone to check the congress’s judgment; besides, they’re biased in the process b/c questions of constitutionality have to do w/ congress’s power—it’s the rabbit guarding the cabbage. Founders wouldn’t have created prohibitions on congress w/out any body to enforce those limitations

b. But why can’t this be a role fulfilled by federalism? That is, the states could do this—nullification. Or the prez—refuse to execute unconstitutional laws (the “Take Care” clause). Or public choice theory (electoral check).

i. Judicial review has several advantages, though: much more likely to be effective, can be retroactive, less lag time than to election date

c. And if we go w/ judicial review, what’s the check on the court to make sure it doesn’t eat up the powers of Congress? Impeachment?

Amending the constitution (11th am [Chisholm], 14th am [Dred Scott], 16th am [Pollock])? Abolishing the court (conflict between Art III congress makes inferior cts and Art III judges have life tenure)? Appointment? That’s so nebulous—it’s the fox guarding the rabbit. And to the extent that we find these checks, then the court is so feeble, so much a paper tiger, that it can’t perform the function of judicial review.

i. Or are we to find that these checks are “just right”: the little bear’s bowl of porridge…

3. Judicial power is to decide controversies; duty of the court to say what the law is (Deciding cases means having to choose what of many conflicting rules applies to particular case)

a. Question begging: But what if the law is that there is no judicial review? Then the judge must apply that rule and refuse to look at constitution; hence, we can see that this argument of Marshall assumes the existence of judicial review

4. Notion of a written constitutiona. And can’t there be written

constitutions w/out judicial review (e.g., France)?

b. Also, who decides?ii. Textual arguments

1. Judicial oath (art VI)—judges have to swear to uphold the constitution

a. But Congress had to take the same oath, so why not defer to their judgment? Why is it the court then instead of the

congress that interprets the constitution? But that’s not what Marshall is saying—Congress is free to decide about what is and what isn’t constitutional, but the courts have an equal responsibility to do the same

b. What is your duty to do your duty? Circular reasoning….

2. Article III—arising under the constitution jurisdiction. Cts decide cases or controversies, and part of that deciding involves choosing the law that governs a case. And if it decides cases arising under the constitution, then they get to decide what it means.

a. This suffers from same defect as the judicial power argument above: it’s circular

3. Supremacy clause: in the supremacy clause, the constitution itself is first mentioned, and not the “laws of the united states generally.” Hence, not all those laws that Congress passes are Supreme; only those made in pursuance of the constitution

a. The Supremacy clause refers to “This Constitution,” not “the Constitution”; the Clause is merely a repeal of the statutes made under the articles of confederations, but treaties made under the articles of confederation are not repealed. The purpose of the clause (looking at it in contrast w/ the treaties provision) is chronological, not hierarchical—it distinguishes old laws from new laws, not supreme laws from bad laws.

i. Justice Black fixes Marshall’s error in Reid v Covent

iii. Tradition—not used by Marshall in Marbury1. There’s lots of precedents for it:

from Britain, in the colonies, earlier state courts, etc. A federal court struck down a federal statute in 1792, even. Tradition supports judicial review. Despite any theoretical weaknesses in the doctrine, it is solidly accepted and so on and so forth.

2. Legislative history often looked to for intended effect of words—Framers intended judicial review. Ratification conventions/Federalist Papers/Convention docs indicates that framers intended judicial review so don’t have to speculate on what they might have meant.

3. Precedent: USSC itself exercised judicial review:

a. Ware v Hylton: USSC struck down state statute (confiscating debts owed British subjects) in violation of fed’l treaty

b. Hylton v U.S.: USSC upheld carriage tax; no challenge to their power to have struck the tax down if unconstitutional

c. Hayburn’s Case: Advisory opinions by USSC justices riding circuit challenged constitutionality of law requiring judges to hear pension benefits claims (subject to veto by Sec’y of Treasury). Cong. amended the law to make it consistent w/ USSC’s interpretation and didn’t try to challenge the power of judicial review. Country accepted that Const

intended to provide for judicial review.

ii. Establishes judicial review of executive/administrative actions (dicta)

1. Marbury has right to commission—right is vested b/c “all that had to be done was done.”

a. But what about delivery; e.g., for a deed to be effective, it has to be signed, sealed, and delivered?

2. Sec’y of State can be directed by mandamus in an area that is not depending on executive discretion, but rather on particular acts of congress and the general principles of law. The idea is that if act is in executive discretion, then there’s no right that could be infringed.

a. Takes source from Blackstone; the c/l standard had been codified in the judiciary act.

b. Origin of Political Question doctrine—If Sec’y had discretion, this would have been “Questions in their nature political,” and USSC wouldn’t have interfered. If exec. or leg. acting w/in their political discretion can’t be violation of law or Const.

iii. Two views of Marbury:1. Strong Marbury—Judicial Guardian Idea: Strong view of

judicial review as crucial in checks and balances. USSC is intended to enforce the Constitutional limitations on other branches. Not a byproduct of the business of deciding cases. It’s one of the crucial checks and balances intended by the framers. USSC Must exercise judicial review as important check on leg. (and exec.) action.

2. Weak Marbury—Clean Hands Notion: Judges must obey the Constitution in the case before them; i.e., judges can’t act unconstitutionally. They can’t enforce unconstitutional laws so must decide if law is unconstitutional. USSC must have power to decide case/controversy before it and must follow Const/law of US when doing so.

iv. Early interpretive strategies1. In Marbury:

a. Court looks to the text of the Constitutioni. Relies upon the negative implication of Art

III’s positive grant of original jurisdiction in two kinds of cases. Expressio unius.

b. Court looks to the structure of the Constitutioni. Conclusions drawn from the fact that it’s a

written Constitution, that it imposes limitations (and he infers someone to enforce those limitations)

c. Consequentialist arguments

i. If one interpretation leads to absurd results, then it could not have been intended. (Rabbits and cabbages).

2. Other early casesa. Chisholm v. Georgia: original action in USSC,

citizen of SC sues GA. Textual analysis fits like a glove—Art III permits this. Text prevails.

i. Tradition would have found that the sovereign wasn’t subject to suit, and the case would’ve come out the other way.

b. Calder v. Bull: constitutionality of state practice in which a state legislature set aside state court’s decision in a will case by passing statute. Argument: this is an ex post facto law. USSC: no it isn’t; ex post facto only applies to criminal law, according to tradition (citing Blackstone).

c. Hylton v. United States: is a carriage tax a direct tax. USSC: upholds the carriage tax. Didn’t refer to tradition of what a “direct tax” is. Went with the consequential argument: “it would be foolish to apportion the carriage tax among the states; some people would have to pay huge taxes…”

v. Judicial review of state court judgments1. Martin v Hunter’s Lessee, 1816. Judiciary Act of 1789, §

25, gave USSC jurisdiction over state-ct judgments denying fed’l rights. Dispute over VA land owned by Brit and seized by VA; VA ct. held for P, and USSC reversed, finding that the VA statutes. On remand, the VA court refused to obey the mandate, holding that § 25 of the Judiciary Act of 1789 was unconstitutional. Held: USSC can constitutionally exercise appellate jurisdiction over state-ct judgments denying federal rights

a. Textual arg: b/c federal questions can come up as defenses in state actions, the only way for federal power to reach “all cases” arising under federal law (as arguably required by Art III) was for federal courts to assert appellate jurisdiction over state ct cases

i. VA ct had anticipated this and argued that this would mean giving USSC appellate jurisdiction over French cts

b. Precedent arg: This is way Constitution always understood; even done under Articles of Confederation in prize cases

i. VA ct isn’t like French cts; this is appellate review inside of federalism system

c. Consequentialist argument—need for uniformity of decisions

i. It would be absurd to trust all fed’l rights/treaties/etc to state courts: state prejudices are presumed to sometimes obstruct the regular administration of justice

ii. Historical support: Rutledge as a delegate at the convention said that the reason we need this power is so we have uniformity of fed’l law and vindication of fed’l rts.

1. Arg. from purpose of provision – interpret document in line w/ its purpose if can ascertain the purpose, and here, the purpose was to promote uniformity/vindicate fed’l rights

iii. But this means that fed’l gov’t is arbiter of own rights—fox guarding rabbits guarding cabbages… (either result—state ct. or USSC review—is absurd)

1. Historical evidence: Art III was a compromise. Some thought Constitution should mandate lower fed’l cts, others thought uniformity/etc could be served by having appeals of state courts to USSC. Compromise was to have USSC and optional inferior courts.

2. Someone has to be final arbiter. Go w/ USSC—checks and balances w/ other branches will keep it in line.

b. The Responsibility of Other Branchesi. Legislatures and executives also interpret the constitution, w/ much

debate over whether a proposed bill is constitutional and vetoes of bills for being unconstitutional

ii. Separate spheres argument:1. Examples:

a. Jefferson, upon attaining the presidency, pardoned several convicted under the Sedition Act which he believed to be unconstitutional. He wrote that it wasn’t only judges who decide the validity of laws. Each branch can decide the constitutionality of a law within their own sphere of action

b. Jackson vetoed the charter of the 2nd bank of the u.s. for being unconstitutional (despite USSC’s upholding it in McCulloch v MD). Again, a separate spheres argument—each branch makes its

own decisions of constitutionality within their own spheres of action

2. Consistent w/ strong and weak marbury… and adds additional check on Congress. Hence, prez can decide for himself whether law is unconstitutional

a. But can’t really decide USSC is wrong in pronouncing law unconstitutional—must at least obey res judicata:

i. FDR urged New Deal Congress to pass laws of questionable constitutionality (i.e., not to let the constitutionality of these laws affect their deliberations)—just let the courts sort it out. He was prepared to argue that formalistic constitutional decisions shouldn’t bar him from doing what he’s doing, for the constitution isn’t a suicide pact

1. Violates Strong and Weak Marbury2. If USSC has jurisdiction, must

decide case and follow Constitution. If the prez disobeys the order, then he denies the power of the USSC to decide a case b/c it nullifies the principle that the ct’s decisions are binding. FDR threatening not to follow decision of USSC b/c USSC decision would bind gov’t

3. Checks and Balances - Disturbs notion that USSC is a check on the other branches.

b. Maybe can violate stare decisis, but not res judicata?

i. In arguing against allowing slavery despite the Dred Scot decision, Lincoln remarked that the decision was only binding on a narrow class of people—Dred Scot and people situated just as he is. Lincoln argued for other branches challenging the basis of Dred Scot so that it can be overturned.

1. In the context of school desegregation, this was repeated—but how many times does it have to be reaffirmed before it is the law of the land?

2. Violates Strong Marbury but not Weak Marbury (respects res judicata but not stare decisis)

a. To the extent that Marbury is about effective check on other branches then Lincoln arguably inconsistent b/c if carried to the extreme may impair Ct.’s ability to act as guardian of Const in protecting against other branches’ abuse:

b. Don’t want to force USSC have to tell everyone that the ruling applies to them too. When there’s a direct order from the USSC, there must be a way to enforce it throughout the country w/o spending jud. resources to apply it to every party (e.g., having to tell Little Rock and every other city to obey school deseg announced in Brown is impairing power of jud. check.)

3. Presidential authority to decline to execute unconstitutional statutes—additional (nonjudicial) check on congressional action

a. Judicial approval: There is judicial approval of this authority: Myers v US sustained prez’s view that the statute at issue was unconstitutional w/out any member of the Court suggesting that the prez had acted improperly in refusing to abide by it. See also Freytag v Commissioner (“prez “has the power to veto encroaching laws … or even to disregard them when they are unconstitutional”).

b. Textual authority: The Take Care clause and the prez’s Oath of office are textual evidence that the prez is required to enforce the constitution above all other laws. Hence, the prez isn’t limited to choosing between vetoing a bill and enforcing an unconstitutional provision in it; the prez can sign legislation containing desirable elements while refusing to execute a constitutionally defective provision.

4. Congress also has the right to say the USSC is wrong if it isn’t doing something that USSC said specifically Congress can’t do.

5. Limit on congressional interpretations: Congress can’t pronounce on substance of Constitution inconsistent w/ USSC precedent:

a. City of Boerne v Flores, USSC, 1997i. In Employment Div v Smith, USSC, 1990,

the USSC concluded that the Free Exercise Clause didn’t entitle members of the Native American Church to an exemption to generally applicable criminal laws for sacramental use of the drug peyote. Disagreeing w/ USSC’s interpretation of Clause, Congress passed the Religious Freedom Restoration Act (RFRA), which forbade any state/fed’l agency to “substantially burden” the exercise of religion even on the basis of a generally applicable rule unless the gov’t could demonstrate that the burden was “in furtherance of a compelling governmental interest” and “the least restrictive means of furthering it.” This case arose out of a dispute arising out of the denial of a permit to modify a church on the basis of a municipal ordinance declaring the church a historical landmark.

ii. The USSC rejected the argument that Congress had power to enact RFRA under §5 of 14th am., which gives Congress the authority “to enforce, by appropriate legislation, the provisions of this article” (b/c 14th am. incorporates 1st am to the states—Cantwell v Connecticut (holding that the “fundamental concept of liberty embodied in” the 14th am’s due process clause “embraces the liberties guaranteed by the 1st am”)).

iii. But Congress only has power to “enforce” the 14th am; that’s inconsistent w/ the notion that congress has the power to decree the substance of the 14th am’s restrictions on the states. Legislation altering the meaning of the Free Exercise Clause cannot be said to be enforcing the clause.

iv. Each branch is controlling in its own separate spheres of action, but USSC says what the law is. RFRA usurps judicial role in controlling cases/controversies.

b. Dickerson v US, USSC, 2000.i. In Miranda, USSC held that warnings had to

be given before suspect’s custodial interrogation statement could be admitted into evidence. Congress enacted law that laid down a rule that the admissibility of such statements should turn only on whether they were voluntarily made.

ii. USSC held that Miranda, being a constitutional decision cannot in effect be overruled by statute.

iii. No role for other branches?: USSC is ultimate arbiter1. Cooper v. Aaron: In dictum, the Ct. said that the Brown

decision is the law of the land and binds people for all time. Ct. is ultimate arbitrator.

a. How do you challenge this decision and try to have USSC change its mind?

b. This dictum has been condemned. Distinction b/n judicial review and stare decisis effects of USSC d\ecisions.

c. Holding of Cooper is that even those not parties to litigation are bound by USSC’s constitutional pronouncements (but Congress/Prez retain their separate spheres)

2. Should USSC reconsider its own interpretation in light of Congress’s view and congressional decision contrary to USSC, given usual deference to Congress? In close case in which reasonable minds could disagree, should USSC defer to Congress and Prez that signed the Act? BUT if USSC going to defer in close cases doesn’t that weaken the judicial check? (violates strong marbury)

a. This may be divide between judicial restrainters (e.g., Frankfurter) and activists (e.g., Warren ct).

iv. State power?1. 1832 nullification by SC of tariff. SC knuckles in when

Jackson threatens to march fed’l troops to Charleston2. Outside normal checks and balances—inconsistent w/

strong/weak marburyv. Checks on USSC’s exercise of judicial review

1. Impeachment2. Removal—Art III § 1 says that judges (including USSC

justices) shall hold their offices “during good behavior”

a. Good behaviori. John Pickering—first fed judge removed b/c

he’s a drunkard and insane.ii. Samuel Chase also impeached in an attempt

to see if all the fed judges could be replaced. Fear was that this was a witch hunt to get rid of all the federalist judges b/c we didn’t like their opinions.

iii. Possibly means misdemeanor w/ analogy to Impeachment Cl. (Art II §4 “Impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”) BUT “good behavior” doesn’t imply crime like “misdemeanor”.

iv. Doesn’t mean disagreement or not liking their decisions – judges aren’t easily removed.

1. If you can remove judges b/c you don’t like their decisions, it may impair a judge’s ability to fearlessly and impartially decide a case – may impair power of judicial check and ability of ct. to decide individual case or controversy so both strong/weak Marbury violated

2. Federalist 78: Explains the good behavior provision and the salary/compensation to guarantee the independence of the judges so they can act w/o fear of reprisal.

3. Amending the constitution (11th am [Chisholm], 14th am [Dred Scott], 16th am [Pollock])

4. Abolishing the court (conflict between Art III congress makes inferior cts and Art III judges have life tenure)—see exceptions power

5. Appointmenta. FDR’s court packing plan

i. If Congress has power under Necessary and Proper Clause to establish USSC, how can court packing plan be unconstitutional?

ii. This is like stripping the jurisdiction of USSC. Seems to contradict Marbury. Arg. from consequences – Ct. packing plan can’t be const if Framers intended judicial review b/c they wouldn’t have let it be this easy to destroy the guardians of the Const. Congress

adding judges to dilute votes inconsistent w/ idea of judicial review

1. Probably consistent w/ weak Marbury. If it’s only about keeping clean hands, then there’s no cause for alarm for packing the ct., writing a statute that ct. just declared unconst’l, or limiting the jurisdiction of the USSC

iii. Pretext argument from McCulloch: Congress is using its NP power as pretext to determine results in cases. But if Congress has a legitimate reason (expansion of docket), then it would be OK.

c. Congressional Power to Limit the Jurisdiction of the USSC and Inferior Fed’l Cts

i. “The judicial Power … shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Art III § 1. The appellate power of the USSC is conferred by Art III, but “with such exceptions and under such regulations as Congress shall make.” Art III § 2.

ii. Exceptions power1. Congress can neither add to nor subtract from USSC’s

original jurisdiction. (Marbury)a. Congress can confer appellate jurisdiction where

there is original jurisdiction. (Cohen v VA)2. Historical practice

a. Judiciary Act of 1789 only gave USSC appellate jurisdiction over cases decided by state courts in which “arising under” claims were denied; i.e., Congress excepted from appellate jurisdiction “arising under” cases from state courts where constitutional claim upheld.

b. Diversity jurisdiction always had amount-in-controversy requirement, etc

c. Story’s view—Congress had to confer jurisdiction over all “arising under” cases. This view never embraced by USSC.

3. Ex parte McCardle, 1869. Congress, afraid courts would invalidate Reconstruction, repealed portion of Judiciary Act of 1867 extending appellate jurisdiction over habeas petitions from Cir Cts to USSC, after McCardle denied in Cir Ct but before got to USSC. Held: while this case is dismissed for lack of jurisdiction, the whole appellate power of the USSC in habeas cases was not denied b/c only appeals from Cir. Cts. were abolished, and so Congress’s

repeal of portion of 1867 Judiciary Act was constitutional exercise of Exceptions power.

a. Consistent w/ weak but not strong Marbury. Is Exceptions power end run around judicial review?

i. Plenary view—Congress has unlimited discretion to make exceptions to USSC’s appellate jurisdiction

1. This is totally wrong—argument from absurd consequences; framers couldn’t have intended for judicial review to be so easy to evade

ii. Mandatory view—i.e., that “shall extend to all Cases” is mandatory, meaning that at least some court must be available to hear “arising under” cases (either USSC or inferior ct)

1. Inconsistent w/ strong Marbury—argument from absurd consequences; Congress could abolish all but one fed’l dist ct, which would be too busy to hear all these cases.

2. Strong Marbury suggests that Exceptions Power must be limited; at the very least, judicial review is implicit in the substantive rights themselves, b/c a right w/out a remedy (thru judicial review) isn’t a right at all. Therefore, judicial review over constitutional rights’ claims must flow to some extent out of the substantive rights themselves.

b. Probably the holding depends at least in part on the alternative vehicle for habeas petitions to be heard by courts under Judiciary Act of 1789 (thru petition for certiori or original writ in the USSC itself). Indeed, the USSC heard just such a suit in Ex parte Yerger.

iii. Separation of powers limit on Exceptions power1. Separation of powers principle: no branch may

usurp/encroach on the constitutionally vested functions of another branch.

2. U.S. v Klein, 1871. Suit to recover proceeds of cotton taken during Civil War under a statute that permitted it if owner could prove he hadn’t aided “rebellion”; USSC held that prez’al pardon was proof. Klein got such a judgment and gov’t appealed. Congress passed statute saying that

pardon was proof that he had aided rebellion, and also denied the USSC jurisdiction over an case in which proof of a pardon had been submitted (i.e., whenever the USSC was going to rule against gov’t). USSC upheld award and declared the provision unconstitutional. USSC held that the purpose of the act was not to exercise Congress’s power to make exceptions and prescribe regulations for appellate power, but rather to affect the outcome of cases.

a. Contrast the statute in Klein w/ one where Congress merely changes the relevant legal rules. Though this affects the outcome in a pending case, this is fine—Congress didn’t order a particular result but rather exercised its lawmaking authority.

3. Doesn’t have to be one court over another that hears case:a. Yakus v US, 1944. Congress passed Emergency

Price Control Act, which provided for attack on price regs by filing protest w/ the administrator and for review of his adverse decision in the Emergency Ct of Appeals, which was given exclusive jurisdiction to determine the validity of the regulations. USSC upheld the statute; the statute provides a means for testing the validity of regulation by an independent administrative proceeding. There’s no constitutional requirement that the test be made in one court rather than another, so long as there is an opportunity to be heard and etc.

i. Two judges dissented b/c congress had provided that while this emergency ct had exclusive jurisdiction to decide regs validity, it gave jurisdiction to all courts to enforce the regs. This conferring and denying of jurisdiction bothered the dissenters; courts are essentially being forced to enforce statutes w/out regard for their validity.

iv. Bill of Rights limit on Exceptions power1. Congress can’t use exceptions power (or any power) in a

manner that violates specific limitations imposed by Constitution; e.g., a law depriving courts of jurisdiction over Establishment Clause cases would be unconstitutional.

d. Justiciabilityi. Finality:

1. Advisory opinions; e.g., Washington’s request for advice in 1793, Hayburn’s Case (having courts make preliminary judgments on Revolutionary War veterans’ pension claims)

2. What’s wrong w/ advisory opinions?

a. Courts can only do judicial businessi. Textual arg: Not a “case” or “controversy”

w/in Article III, § 2.1. Not true: Art III says that the judicial

power shall extend to cases/controversies… but that doesn’t mean that the judicial power is the only thing vested in the court (it doesn’t say “shall extend only to cases/controversies”).

a. Same use of expressio unius in Marbury (whether original jurisdiction was only to diplomats-/states-as-parties cases)

ii. Consequentialist arg: don’t squander judicial resources (see below for policy reasons)

1. But Art II says that courts can appoint inferior officers if so provided by congress. So the framers did intend for the courts to do extrajudicial business sometimes.

a. The 10th am. also applies to the judicial powers; hence, this is where we can find the “only” we wanted to read into Article III (i.e., can exercise “only” judicial powers).

iii. History:1. Council of revision was proposed in

Philadelphia Convention—judges would sit on council that exercised veto power for unconstitutional statutes. They dropped it—the judges would already be doing this; plus, people thought it was a bad idea to have judges involved before the issue came before them in a judicial capacity. So there was some sentiment that judges ought not to be involved in legal questions before they were parts of cases/controversies.

2. Madison also assured people that Art III judicial power was constructively

limited to cases of a judicial nature (i.e., no advisory opinions)

3. Complications:a. Jay negotiated treaty, Warren

took leave of absence to investigate JFK’s death, Jackson was Nuremberg prosecutor

b. Rule: Judges can do extra-judicial functions but cts. can’t. (See Mistretta holding that judges weren’t acting as judges on the Sentencing Commission). Can’t wear both hats at the same time.

c. Art 1, §6 (Incompatibility Clause): expresses disgust for legis or exec officers to hold other offices but it didn’t express same concern for judges holding exec offices.

d. But which problems of advisory opinions are reduced by this, exactly….

b. Advisory opinions aren’t judicial businessi. Judicial business is defined in Art III as

deciding cases/controversies. Advisory opinions are not cases/controversies b/c there are no adverse parties nor concrete facts nor final judgments (b/c executive can refuse to act on advice) and it’s all hypothetical.

ii. What is a case/controversy? Well, when the text won’t help you and consequential args won’t help (b/c other sovereignties do permit advisory opinions and hell didn’t freeze over), then turn to tradition. What kind of cases/controversies did English/colonial judges decide

1. The problem here is that colonial courts did issue advisory opinions. So go w/ Frankfurter’s view: even though English courts granted advisory opinions, they vary in so many vital ways that reflect upon the ability of the courts to carry out their

core function of deciding real cases, that it’s hard to believe that the framer really intended to incorporate the English practice.

iii. Policy (consequentialist arguments):1. Only w/ concrete facts in actual

cases will correct decisions be most likely reached; each side will have advocates, the case won’t be premature/abstract

a. USSC is court of last resortb. It’s not that we think this

violates Marbury (b/c can’t expand original jurisdiction), but rather b/c USSC renders final binding decisions (citing Hayburn’s Case)

2. Lawmaking by appointed judges is undemocratic; it squanders judges’ political capital by deciding unnecessary constitutional questions

3. Accepance of nonjudicial duties leaves less time for judges to do their essential functions

4. May cause a weakening of legislative and popular responsibility if judges are relied on for advice

a. Prez has own advisors he should rely on. Art II §2 cl.1 – “he may require the Opinion . . . of the principal Officer in each of the executive Departments.” Explicit Const’l ability to call on the heads of the depts. by negative implication excludes the possibility of calling on the other branches for advice. Maybe the clause inserted so that the heads of departments realized it was their responsibility to advise the Prez and didn’t exclude Prez from asking others.

5. The ability to accept nonjudicial assignments might compromise

judicial independence by making them expect rewards/get involved in the case (the problem of prejudgment is that you don’t want to have to go back on your words), and so forth

a. May violate separation of powers if two branches get too chummy

6. Prejudgment—ability to accept nonjudicial assignments might compromise judicial independence by making them get involved in the case; you don’t want to have to go back on your words

a. May violate checks and balances

3. But how far can this finality requirement go? Congress can always defeat any money judgment by failing to appropriate money to pay it. Ditto w/ Prez enforcing judgments.

a. Hypo: Congress amends statute in Hayburn’s Case to make cts’ decision final. After, Congress decides whether to appropriate money to pay claims.

i. Gordon v. US—it’s unconstitutional (even though Congress could’ve asked its own agent to do the same thing, it can’t ask an Art III court to do the same).

ii. Would it matter if gov’t had a standing fund to pay these cases?

b. Really, finality is all a matter of degree—easy hurdle to overcome.

ii. Standing1. Injury Requirement

a. Constitutional requirement: “case or controversy” requirement from Art III § 2mandates injury in fact. Without injury, we have some of problems of advisory opinions.

i. See, e.g., Warth v Seldin, Lujan, Raines—USSC struck down statutes purporting to give standing to uninjured persons

b. Three part test (different ways of looking for injury):

i. Concrete, particularized, actual/imminent injury to P

1. Warth v Seldin, 1975. Pennfield zoning bd sued b/c zoning regs

excluded poor people. Ps: ass’n of Pennfield homebuilders. Held: no standing. Can’t show specific building projects they couldn’t build b/c of zoning regs’ unfairness. Hence, their injury is too abstract and not immediate enough to confer standing.

2. Mere interest in the problem insufficient:

a. Sierra Club v Morton, 1972: Sierra Club wanted to stop construction of ski resort b/c it would adversely affect the scenery/etc of nat’l part; asserted special interest in the conservation of the nat’l parks/etc of the country, and therefore claimed to be adversely affected under the APA. Held: no standing. Injury will only be felt by those who use the park. Club hasn’t alleged that it or its members would be affected in any of their activities by the development. Club never said that its members use the park for any purpose. A mere interest in a problem, no matter how longstanding, isn’t sufficient to render the organization “adversely affected”

3. An identifiable trifle is enough of an injury—doesn’t have to be an economic harm, but can’t be too creative/bizarre a theory of harm

a. US v SCRAP, 1973. SCRAP argued that the Nat’l Environmental Policy Act required the ICC to prepare environmental impact statements before allowing RRs to increase their rates for transporting scrap materials.

Increased rates would discourage recycling, resulting in increased refuse in national parks. SCRAP alleged that its members used the forests, etc., surrounding the Washington Area for camping, etc. APA grants standing only to parties who are adversely affected/aggrieved by agency’s action. USSC upheld standing, since standing doesn’t require a showing of an economic harm. And there’s no limit to standing just b/c the Ps are only insignificantly affected by agency action: an identifiable trifle is enough for standing.

b. Lujan v Defenders of Wildlife, 1992. Ass’n sued over aid to foreign gov’ts that don’t protect endangered species b/c ass’n’s members saw endangered species abroad and intended to return later. Theory of harm: animal nexus—the harm experienced by person interested in endangered species when gov’t action threatened species’ survival. Held: no standing. Too conjectural/bizarre, plus no definite plans to go see crocodiles (too indefinite/speculative). Standing isn’t an ingenious academic exercise in the conceivable, but a factual showing of perceptible harm.

ii. Causation—complained of activity caused P’s injury

1. Responsibility for injury must be fairly traceable to complained of activity rather than just the result of 3d parties.

a. Warth v Seldin, 1975. Pennfield zoning bd sued b/c zoning regs excluded poor people. Ps: taxpayers of Rochester that pay higher taxes b/c have to house excluded poor people. Held: no standing. Lack of causation—harm results from voluntary decisions of Rochester’s authorities (3d party) to house these people, resulting in higher taxes.

b. Allen v Wright, 1984. Suit against state for giving tax breaks to segregated schools, making them less likely to integrate. Claimed injury: policy diminishes chances of receiving integrated education. Held: no standing. Injury not fairly traceable to the gov’t, b/c the policy of segregation was product of schools’ (3d parties) independent action.

2. Causation can be very attenuated/indirect

a. US v SCRAP, 1973. SCRAP argued that the Nat’l Environmental Policy Act required the ICC to prepare environmental impact statements before allowing RRs to increase their rates for transporting scrap materials. Increased rates would discourage recycling, resulting in increased refuse in national parks. SCRAP alleged that its members used the forests, etc., surrounding

the Washington Area for camping, etc. APA grants standing only to parties who are adversely affected/aggrieved by agency’s action. USSC upheld standing, since standing doesn’t require a showing of an economic harm. And while the line of causation is very attenuated here, that’s an issue for summary judgment.

i. Later cases (e.g., Linda S v Richard D, Allen v Wright) call this into question. May not be good law any longer, b/c complained of harm might not happen (in addition to it being indirect causation).

iii. Redressability—relief sought must redress harm

1. Warth v Seldin, 1975. Pennfield zoning bd sued b/c zoning regs excluded poor people. Ps: poor people who say they wanted to live in town but couldn’t. Held: no standing, b/c haven’t alleged facts from which it reasonably could be inferred that, absent the restrictive zoning practices, there is a substantial probability that they would have been able to purchase or lease housing. Poor people aren’t subject to zoning laws (e.g., haven’t been denied variance, etc).

a. This is bizarre: USSC requires fact pleading (if Ps are ever to get around the redressability problem) in a notice pleading regime. Maybe the better thing to do would be to allow standing,

but then use summary judgment to filter out bad complaints unsupported by evidence.

2. Can’t be potential—relief can’t assume actions of 3d parties

a. Linda S. v Richard D., 1973: Unwed mother sues D.A. to get DA to prosecute deadbeat dad for child support, rather than suing husband herself. DA had policy of prosecuting fathers of legitimate children but not fathers of illegitimate children. Court says no standing: it’s only conjectural that deadbeat would pay even if prosecuted

i. Result depends on how injury characterized. If injury is absence of legally required child support, USSC is correct. But if injury is violation of E/P rights arising from failure to prosecute father, adoption of a policy under which all nonsupporting fathers are prosecuted would alleviate the injury.

b. Allen v Wright, 1984. Suit against state for giving tax breaks to segregated schools, making them less likely to be integrated. Held: no standing. Injury is too conjectural; schools might not integrate even if no tax breaks to private schools that discriminate

c. Political Rightsi. Limit on parties:

1. Massachusetts v Mellon, 1923. Maternity Act—conditional spending to state conditioning aid on regulating pursuant to Maternity Act. State sues, both on its own behalf and as representative of its citizens. Held: no standing.

a. Inasmuch as state is suing on own behalf—political question. no private rights are being invaded. Court is being asked to decide abstract questions of political power. If an attempt by Congress to abolish an existing state gov’t presents no justiciable issue, as was ruled in Georgia v. Stanton, then this doesn’t either.

i. This isn’t a PQ; rather, the rights being claimed are too abstract. Rule seems to be that states have standing to assert proprietary but not political rights.

ii. Negative inference from Art III § 2: If RI sues Mass over where the boundary is, it’s an original question in USSC. This is not a proprietary right; the states aren’t fighting over who owns the land. They’re suing over who has political authority over the state—of sovereignty. So this falls over the wrong side of the line in Mellon. But USSC upheld jurisdiction. Maybe we could say that the specific grant

of this kind of jurisdiction gives rise to a negative inference as to that power be granted generally.

b. Inasmuch as state suing on its citizens’ behalf—though state may possibly intervene by suit to protect its citizens against any form of enforcement of unconstitutional congressional statute, but not here. Citizens of Massachusetts are also citizens of U.S.; state can’t institute judicial proceedings parens patriae to protect US citizens from own gov’t. in this field, it is the u.s. that represents the citizens parens patriae.

i. Better reasoning: state is like ass’n that can sue on behalf of its members only if members have a right. But can’t sue when it members (citizens) can’t sue; and they can’t here—Frothingham.

ii. Injury requirement1. If singled out, then legislator can

have standing. Powell v McCormack—Congressman can sue over his exclusion from House. This was case/controversy b/c P was singled out for specially unfavorable treatment

2. Institutional injury requires enough legislators to sign on to have had their votes nullified.

a. Compare Raynes v Byrd, 1997 (6 congressmen

challenge constitutionality of Line Item Veto. Held: no standing); with Coleman v Miller (20 of 40 senators sued over lt gov’s unconstitutionally casting tiebreaking vote. Held: standing, since the 20 senators’ votes were nullified).

3. Oath of office theory:a. Board of Education v. Allen,

USSC, 1968: allowed local school board to attack constitutionality of state statute they were charged w/ enforcing. The idea was that they had taken an oath to support the u.s. constitution, and if they acted in conformity w/ oath they would have to risk expulsion from office. This is a personal stake in the outcome of the litigation—enough to confer standing, according to Court. Would this hold up today? Probably not…

2. Generalized Grievance Limitationa. Unless P can show that challenged gov’t action

caused him to suffer a particularized injury, not standing: can’t premise standing on nothing more than a generalized claim that gov’t must comply w/ law. Frothingham v Melton, 1923 (no taxpayer standing to challenge fed’l spending measure inconsistent w/ 10th am); Ex parte Levitt, 1937 (no citizen standing to challenge Black’s appointment to USSC in violation of Emoluments Clause); U.S. v Richardson, 1974 (no citizen standing to challenge secrecy of CIA budget).

b. Inconsistent w/ sometimes prudential, sometimes constitutional limitation on standing

i. Warth: implies it’s prudential (if it’s prudential, Congress can set it aside)

ii. Tax cases imply that it’s constitution—a part of what it takes to show a (personal) injury.

iii. Rule seems to be: where the injury is generalized and also abstract, then no injury (thus, this becomes part of the nature of the injury inquiry; hence, is a constitutional limitation). SCRAP.

1. Schlesinger v Reservists Committee to Stop War. Ass’n sues Congressman for being reservist in conflict with Incompatibility Clause. Held: no standing—generalized grievance. Injury to taxpayer is to generalized, no one injured more than another (see taxpayer cases). It appears to be a non-addressable violation of the const. but USSC finds that isn’t a reason to relax the const. reqs. of standing.

c. Just b/c widely shared doesn’t mean it’s a generalized grievance. So long as grievance is factually particular, there’s standing. (e.g., there would be standing to challenge fed’l law banning everyone from talking as a violation of each person’s individual 1st am right to free speech).

d. Exception to rule against generalized grievances: taxpayer standing

i. General grievance problem: no injury b/c not remediable

1. Frothingham, 1923. Taxpayer challenges constitutionality of Maternity Act, which gives fed’l money to states that comply w/ its provisions to reduce infant/mother mortality. Held: no standing. Claimed injury is that tax burden will be increased in future b/c of unconstitutional act; But taxpayer’s interest in moneys of U.S. treasury is minute and indeterminable, and the effect upon future taxation of any payment out of the fund is too remote—i.e., injury is too conjectural (b/c Congress could just spend the money on something else). Hence, injury isn’t remediable; you won’t get your taxes back, b/c it was

only the spending and not the tax that was attacked.

ii. Double Nexus test1. Flast v. Cohen, USSC, 1968, upheld

standing of fed’l taxpayers to enjoin expenditures from general revenue that they argued were being used in violation of Establishment Clause.

a. Injury requirement: First, taxpayer must establish a logical link between that status and the type of legislative enactment attacked. (i.e., can only attack spending under the spending power of Art I § 8).

i. Valley Forge Christian College v. Americans United for Separation of Church & State, USSC, 1982: taxpayers challenged the transfer of gov’t property to religious institution on Establishment grounds. Flast distinguished and standing denied: (1) challenged action wasn’t congressional in origin but rather by an executive agency; (2) property transfer wasn’t an exercise of authority conferred by taxing and spending clause but rather under Congress’s Property Clause, Art IV § 3, cl 2.

b. Personal right requirement: Second, the taxpayer must establish a nexus between that status and the precise nature of the constitutional

infringement alleged (i.e., must show that the challenged enactment exceeds specific constitutional limitations and not simply that the enactment is generally beyond the delegated powers).

i. Flast distinguished taxpayer suit in Mellon: there, the taxpayer foundered on the 2d part of test (and was therefore trying to assert the states’ interest in their legislative prerogatives and not a federal taxpayer’s interest in being free of taxing/spending in contravention of specific constitutional limitations imposed upon Congress’s taxing and spending power). You only have standing to raise your own personal rights, and Establishment Clause confers on everyone the right not to have tax moneys spent to establish a church.

ii. This is strange that you can’t rely on state’s right, b/c state itself can’t sue—Massachusetts v Mellon.

3. Rights of Third Parties Limitationa. Can’t rely on rights of 3d parties.

i. Warth v Seldin, 1975. Pennfield zoning bd sued b/c zoning regs excluded poor people.

1. Ps: taxpayers of Rochester that pay higher taxes b/c have to house excluded poor people. Held: no standing. In addition to causation problem, supra, since Rochester Ps lack personal const’l right to be free from higher taxes as result of Pennfield’s zoning, they have to rely on rights of excluded poor people. No 3d party standing.

2. Ps: ass’n of Pennfield people who want diverse community. Held: no standing. Haven’t asserted personal right to diverse community, b/c Civil Rights Act of 1968 doesn’t give c/o/a. Hence, must rely on rights of excluded poor people. No 3d party standing

b. Associations—can only sue if a member can sue. Warth v Seldin.

c. Exception to no jus tertii rule: where 3d party can’t otherwise assert own rights, or person would otherwise be required to take action adverse to 3d party’s rights. Flows from strong Marbury view.

i. Barrows v Jackson, 1953, permitted a white to get damages for prohibition against selling home to blacks in racially restrictive covenant by arguing the equal protection rights of “unidentified but identifiable” blacks. Why? b/c it would be impossible to get these blacks before any court.

ii. NAACP v Alabama, 1958, in which NAACP wanted to resist demand for its membership lists by invoking rights of its members to keep their affiliation secret: “to require that it be claimed by the members themselves would result in a nullification of the right at the very moment of its assertion.”

iii. Griswold v Connecticut, 1965. Sate law bas use of contraceptives. Doctor prescribes device to married couple, raised their right to privacy. Held: doc has standing. State law would’ve required doc to take action undermining 3d party’s (patients’) rights.

iv. Craig v Boren, 1976. Bartender allowed to assert E/P rights of male patrons when challenging state law requiring bartender to discriminate against them.

4. Cause of actiona. Must show that the constitutional or statutory

provision on which the claim rests can be understood as granting persons in the plaintiff’s position a right to judicial relief.

i. Warth v Seldin, 1975. Pennfield zoning bd sued b/c zoning regs excluded poor people. Ps: ass’n of Pennfield people who want diverse community. Held: no standing. Haven’t asserted personal right to diverse community, b/c Civil Rights Act of 1968 doesn’t give c/o/a. Hence, must rely on rights of excluded poor people. No 3d party standing

ii. Allen v. Wright, 1984. Suit against state for giving tax breaks to segregated schools, making them less likely to be integrated. Claimed injury: stigma of being part of excluded race. Held: no standing. “Stigmatic” harm insufficient to show injury b/c neither Constitution, statute, or c/l recognizes right to be free from stigmatic harm.

b. Question of whether statute implies a c/o/a was eventually linked w/ question of whether statute confers standing: “The standing question is whether the Constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the P’s position a right to judicial relief.” Warth v Seldin.

i. Zone of interests test: Where there’s a statute that forbids you to do something and there’s a violation of that duty, P has a c/o/a for the tort provided (1) P is injured and (2) in the class that was intended to be protected by the provision that was violated.

ii. Hardin v Ky Utilities Co, 1968: allowed a competing public utility to enforce a geographic limitation on TVA operations even though the substantive statutory provisions were silent on the subject of whether competing utilities had right to

relief. Case links the test of whether a statute implicitly creates standing w/ the question of whether the statute implicitly creates a cause of action on behalf of those injured by its violation.

iii. Implicit in statute: J.I. Case Co v Borak, 1964, upheld a private damage action by shareholder for violation of SEC proxy rules b/c one of chief purposes of statutory provision was the protection of investors, which certainly implies the availability of judicial relief where necessary to achieve the result.

iv. Implicit in constitution: Bivens v. 6 Unidentified FBI Agents: victim of unconstitutional search has cause of action against federal officer who violated his rights. No statute provides source of this action b/c 1983/etc only applies to state actors or people acting under color of state law. Where is the source of the c/o/a in Bivens?

1. Strong Marbury—there’s got to be a remedy for the violation of a constitutional provision implicit in the constitution itself. This is another way that the remedy is implicit in the law that gives the right to begin with. This was a c/l notion (see Restatemetn of Torts, 1st).

a. But the c/l doctrine of reading into statutes silent on the subject an implied cause of action by private citizens was cut back sharply by Erie’s interpretation of the Rules of Decision Act (no federal c/l). But this isn’t a problem—ct is construing Const., not fed’l c/l.

2. This also decides whether there is standing to challenge administrative action under the APA (Data Processing case). APA gives standing to anyone adversely

affected or aggrieved w/in the meaning of the relevant statute.

a. Prof. davis said that the APA waives all prudential standing limitations. But no court ever follows this. Data Processing, like other courts, require that some statute other than the APA itself gives standing to the P challenging the administrative action, either explicitly or implicitly. Data Processing says, to determine whether you’re aggrieved, etc., first you look to see if you’re injured, and then you ask to see if you’re in the zone of interests to be protected by the statute (i.e., the same standard as used in c/l).

i. Association of Data Processing Service Orgs v Camp, 1970, abandoned it and allowed challenge to ruling of Comptroller of Currency allowing national banks to provide services. Article III injury was clear: competition created lost profits, and two customers would be lost. “The ‘legal interest’ test goes to the merits. The question of standing is different. It concerns, apart from the ‘case’ or ‘controversy’ test, the question whether the interest sought to be protected is arguably

w/in the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Thus, the APA grants standing to a person ‘aggrieved by agency action w/in the meaning of the relevant statute.” The statute in question in the case, which limited bank serve corps to the “performance of bank services”—and therefore had the purpose of protecting competitors—brings a competitor w/in the zone of interests protected by it.

b. So courts can do the same inquiry on the question of c/o/a (Bivens) or on the question of standing (Data Processing, Hardin). If you want to know whether you have a c/o/a and therefore standing, etc., or whether you want to know whether you have standing (despite prudential standing problems), the court uses the same exact inquiry—a test borrowed from the c/l notion of when you imply a c/o/a into a statute—whether the P is w/in the zone of interests the statute is designed to protect.

5. Qui Tam Actionsa. Constitutional only b/c actions by a common

informer, who himself has no interest in the

controversy other than that given by the statute, have a long history. (Marcus v Hess). The fact that relator has money stake in the issue isn’t enough (that would allow anyone who places a wager on a case to assert standing). An adequate basis of the claim might be found in the doctrine that the assignee of a claim has standing to assert he injury in fact suffered by the assignor—as if the qui tam statute is a partial assignment of the Gov’t’s damages claim. (Vermont Agency of Natural Resources v U.S.)

iii. Prematurity1. Constitutional requirement: balance: (1) the probability that

the predicted harm will take place; (2) the hardship to the parties if immediate review is denied; and (3) the fitness of the record for resolving the legal issues presented.

2. Abbott Laboratories v Gardner, 1967. Agency interprets amended statute to require drug companies to put generic name whenever trade name used. Drug mfgs sue to enjoin enforcement even though no one has yet been prosecuted (though all ordered to comply immediately). Held: Case is ripe; issue is legal, agency has taken final action, and great hardship if wait for prosecution. USSC evaluates “fitness” and “hardship.” Fitness: agency’s action was final, pragmatically speaking—regs are published and direct AG to prosecute. Hardship: Ps must either reprint everything at great expense or proceed and risk prosecution; and drug industry particularly susceptible to public opinion (i.e., a prosecution would ruin mfg b/c of stigma).

3. Exhaustion doctrinea. Myers v Bethlehem Shipbuilding Corp, 1938. P

sued to enjoin NLRB from entertaining an unfair labor practice charge, arguing that its activities were not interstate commerce. USSC dismissed b/c cts don’t give judicial relief for a supposed or threatened injury until prescribed administrative remedy has been exhausted. Myers says that this rule isn’t purely discretionary, but rather one of “judicial administration.”

iv. Mootness1. There must be a controversy at the stages of appellate

review and not simply at the date the action is initiated2. Court stepped back from strict enforcement of mootness

doctrine when necessary to correct problem that is capable of repetition yet evades review

a. Moore v Ogilvie, USSC, 1969: independent candidates seeking places on 68 ballot challenged law requiring petition signatures from each of 50 counties. USSC struck down statute, saying controversy wasn’t moot b/c the burden of the signature law “remains and controls future elections…. The problem is therefore ‘capable of repetition, yet evading review.’”

b. Roe v. Wade, USSC, 1973: challenge to abortion law by woman who was pregnant at time suit filed. “where pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete.”

c. But see DeFunis v Odegaard, USSC, 1974: white law school applicant’s argument that he had been unconstitutionally excluded on racial grounds held moot, b/c P had gone to different law school during the interim, and was going to graduate: “just b/c this particular case didn’t reach the court until the eve of the P’s graduation from law school, it hardly follows that the issue he raises will in the future evade review.”

d. Exception more likely to be recognized if it’s a class action:

i. Sosna v Iowa, USSC, 1975. Class action challenge to Iowa’s law imposing a 1-yr residency requirement as a condition for getting a divorce. b/c it was a class action, the suit was upheld.

3. Courts also less likely to enforce mootness doctrine strictly when there are collateral consequences

a. E.g., convict finishes serving sentence during pendency of appeal. Won’t be dismissed as moot b/c of collateral consequences of conviction (can’t vote, etc.).

v. Political and administrative questions—Marbury: court’s shouldn’t meddle in “questions in their nature political”

1. Baker v Carr, 1962. TN never reapportioned legislature, and so it got really out of whack w/ demographic changes. Voters bring E/P challenge to apportionment. Held: not a political question. Factors to consider: (1) Textual commitment to another branch; (2) Lack of judicially discovered and manageable standards for resolving question; (3) Impossibility of deciding w/out an initial

policy determination of a kind clearly for nonjudicial discretion; (4) Impossibility of court’s undertaking independent resolution w/out expressing lack of respect for other branches; (5) Unusual need for unquestioning adherence to political decision already made; (6) Potential embarrassment if there’s not one voice. Here, no other branch here is going to decide the question, nor will gov’t be embarrassed abroad or will everything be cast into chaos. Plus, the E/P clause comes with well-developed judicial standards—“one man, one vote.”

a. Frankfurter’s args for saying this is a PQi. Precedents: a bunch of cases held

apportionment cases to be nonjusticiable.1. E.g., Colegrove v Green (But only 3

justices in Colegrove thought it was a political question. 3 said it was justiciable and unconstitutional. Tie breaker said it was jsuticiable, but equitable considerations forbid intervention at this late date (suit brought too late)).

ii. Prudential concerns—ct undermines own authority by frittering away its political capital.

1. Carolene Prods fn. 4: USSC will be deferential in many cases, but not where there are especially heightened concerns justifying heightened concern: (1) Protection of discrete/insular minorities; (2) Enforcing the specific guarantees of the Bill of Rights—i.e., where the Constitution commands judicial review; (3) Cases that involve the political system itself—b/c a well-functioning political system is the precondition for deferring to the judgment of the political system generally.

iii. Functional concerns—what would be the appropriate remedy?

1. but later courts are able to develop remedy

iv. Guarantee Clause—this is GC case masquerading as E/P case. Functionally,

they’re indistinguishable. GC is PQ; it is committed to Prez/Cong.

1. Luther v Borden. Lawsuit over which gov’t of RI was legitimate; Prez Tyler had recognized old gov’t as legitimate. Held: Guarantee Clause not justificiable; committed to prez. Lack of standards.

a. Distinguished from Baker: Ps are asking for reapportionment, not invalidation of state gov’t.

2. Pacific Telephone & Telegraph. Guarantee Clause challenge to direct referendum. Held: not justiciable; only prez/congress can protect citizens from lack of republican form of gov’t.

v. Ad terrorum—everything leg did is unconstitutional… but de facto doctrine.

2. Nixon v US, 1993. Senate Rule XI, which allows a committee of senators to hear evidence against an impeached individual and to report that evidence to full senate, is challenged by impeached judge. Art I, § 3, cl. 6 provides that the “Senate shall have the sole Power to try all Impeachments.” Held: not justiciable—impeachments reserved for senate.

a. Majority (Rehnquist):i. A controversy is nonjusticiable where there

is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.” The concept of a textual commitment to other branch isn’t completely separate from the concept of a lack of judicially discoverable/manageable standards for resolving it.

ii. Art I, § 3, cl 6 textually gives power to senate. The word “try” is too broad in meaning to suggest that it imposes a limit on how the senate should conduct trials; indeed, it is too broad to afford any judicially manageable standard of review of senate’s actions—a conclusion furthered by negative

inference from the list of specific requirements in the clause (e.g., 2/3rd vote).

1. Framers thought senate had more fortitude, and that USSC was too few in number for this responsibility; Framers wanted to prevent the risk of bias that interjection into the proceedings would entail; Judicial review would frustrate checks/balances: impeachment is check on judiciary—don’t want to let judiciary to be involved in impeachments.

b. Concurrence (White):i. Doesn’t think that question is nonjusticiable,

but rather think that senate fulfilled its requirements to “try” P.

ii. Majority suggests that framers conferred upon congress a potential tool of legislative dominance yet at the same time rendered its exercise free from judicial review. But in a truly balanced system, impeachments tried by the senate would serve as a means of controlling judiciary, even as judicial review would ensure that senate adhered to minimal set of procedural standards in conducting impeachment trials.

iii. “Try” doesn’t present great interpretive difficulties. E.g., if senate automatically convicted all the time, then it wouldn’t be “trying” cases. Nevertheless, delegation of fact finding is fine; it had historical pedigree.

c. Concurrence (Souter):i. This case is nonjusticiable b/c of unusual

need for unquestioning adherence to political decision already made, and the need to avoid embarrassing senate by reversing it.

ii. But other cases might be justiciable (e.g., senate just flips a coin).

d. Rules:i. Look for absence of standards; if so, no

judicial enforcement (this is Frankfurter’s arg Baker v Carr opinion, and Rehnquist in

Nixon). So really, your view of PQ doctrine depends on your view of the merits.

ii. Two kinds of commitment—discretion (white in Nixon) and decision (majority in Nixon).

1. Commitment of Decision to Coordinate Branch - The word “try” is subject to broad definition and doesn’t limit the Senate on how to try. So if power granted to Senate and they decide, their decision IS constitutional. This looks like decision on the merits saying that Senate has discretion and acted w/in that discretion w/in meaning of Const. The Constitution can commit final interpretation w/ regard to particular Const’l question to branch other than USSC. Consistent w/ Marbury b/c when USSC decides that this has happened they are interpreting the Const consistent w/ power in Marbury.

a. Contrast this with Powell. Art I § 5 cl 1 commits to each house to be the judge of the qualifications of its own members (therefore, not to USSC to review). Held: this was only a commitment to House to judge if the qualifications laid forth in the Constitution had been met—doesn't give House right to create qualifications not present in Constitution, and USSC can fully judge this. Warren quotes Strong Marbury-esque language in support – Court cannot “avoid its Constitutional responsibilities.”

2. USSC Lacks Judicially Manageable Standards - USSC “possess the power to review either legis. or exec. action that transgresses identifiable

textual limits, but we conclude that the word “try” in the Impeachment Clause doesn’t provide an identifiable textual limit on the authority which is committed to the Senate”

III. Federalisma. McCulloch v Maryland, 1819. State levies tax (for not being licensed by

state) on notes issued by 2nd Bank of U.S. Held: Bank of U.S. is constitutional exercise of Necessary and Proper power; therefore, state can’t tax bank since it’s a fed’l institution. Necessary means convenient (tax, borrow, conduct war, raise and support armies, and regulate commerce). Since fed’l law is supreme, state laws must be in conformity therewith. State can’t have power to destroy federal creature.

i. NP clause1. Why isn’t “necessary” a least intrusive means test?

a. Textually: Const said “necessary,” not “absolutely necessary” (art I § 10)

b. Arg from consequences: a least intrusive means test would mean that whenever there are multiple means, Congress couldn’t do anything.

2. Limit on how “necessary” means “convenient”:a. “Let [1] the end be legitimate, let it be within the

scope of the constitution, and all means which are [2] appropriate, which are [3] plainly adapted to that end, which are [4] not prohibited, but consist with the [5] letter and [6] spirit of the constitution, are constitutional.”

b. Pretext argumenti. USSC will strike down a law if connection

to enumerated power is merely pretextual: “Should Congress under the pretext of executing its powers pass law from the accomplishment of objects not entrusted to the gov’t,” law will be declared unconst’l.

ii. USSC won’t inquire into degree of necessity. If law not prohibited, USSC’s inquiring into degree of necessity would be “to pass the line which circumscribes the judicial department and to tread on legislative ground.” Question of how vigorous Marshall sees USSC being in enforcing limits on Congress but he says “necessary” can’t mean indispensable b/c would leave Cong w/out options.

3. Is superfluous: All of these things are really arguments that the power to incorporate a bank is implicit in the enumerated powers. Case would be same w/out NP clause. He only talks about NP clause to rebut state’s argument that NP clause is a limitation on Congress’s implied powers. So the NP clause, like the 10th am, is superfluous—being implied, as they are, by the enumeration of powers.

ii. State taxation of fed’l institution1. Tax conflicts w/ statute creating bank, or maybe w/

congressional power to incorporate bank2. Arg from consequences: Conflict between state law and

federal power to incorporate the bank (“the power to destroy” vs. “the power to preserve/create”).

a. If state passes law destroying bank, does that really defeat power to borrow? Well, fed’l gov’t can pass law that says no state taxes on banks. SO there’s no necessary need for a constitutional immunity

i. Institutional limit on Congress to pass these retaliatory statutes

b. Moreover, state can’t destroy a corporation w/out violating the Contracts Clause. Art I § 10, cl 1 (Dartmouth College). But that doesn’t mean that state can’t tax banks. Provident Bank (state can tax state corp if it makes reservation in charter). To tax isn’t to destroy—note that the decision to dissolve the bank would always be made by the corporate officers.

i. O.W. Holmes: The power to tax isn’t the power to destroy while this Court sits.

c. But this tax was only on foreign banks, designed to make nat’l bank less competitive. This is a discriminatory bank that places nat’l bank at competitive disadvantage. Hence, a discriminatory tax is likely to destroy a bank.

i. This is a rules/standards question—cts aren’t in good position to evaluate the tax, so a bright line rule disallowing taxes is easier to apply.

ii. Yet Marshall says he’ll uphold taxes on bank’s real estate and interest owned. These are taxes of general applicability.

1. These aren’t taxes on the banks operation that won’t hurt ‘em too much b/c of the political check on taxation. Virtual representation theory (Jackson’s concurrence in

Railway Express—striking down laws on E/P grounds only, protects the rights of those who have no direct political representation.)

iii. Values served by federalism1. Subsidiary Principle – If local entity can handle function as

well as fed’l gov’t, let local handle it. It’s good to keep power as local as possible/feasible and only things that can’t be done well at local/state level should be delegated to fed’l gov’t.

2. Self-Determination – Increase chances for democracy3. Diversity of local situations – Local situations and

conditions can better be taken into account w/ power still local in the states. Local people should make rules to solve local problems using local knowledge and preferences.

4. Experimentation – States allow for experimentation w/ new ideas w/ limited damage if it goes wrong so it increases the likelihood that things will be tried in the first place. Can’t afford national failures.

5. Freedom – Dispersal of power safeguards freedom b/c gives people limited authority. There’s more freedom w/ variation in local laws (Ex: If fed gov’t all powerful could have taken North OR South view and freed or oppressed every slave).

b. Immunitiesi. Federal regulation of state entity

1. Yes, so long as w/in enumerated power and no cooptation problem (compare Garcia w/ Printz, New York)

2. Movement to Garcia:a. CA v US: fed’l regulation on state RRs. Sure,

that’s fine, says Ct.b. Maryland v Wirtz: FLSA applied to state

hospitals/schools. Fine, says the court.c. National League of Cities v Usery: wait—we

should treat federal regulation like we treat other governmental immunities cases. Adopts rule that when fed’l gov’t regulates states as states, they can’t intrude on “traditional” gov’tal functions.

i. Test didn’t work: Too much grey area.ii. Static historical test: nature of gov’t changes

3. Garcia v San Antonio Metro Transit Authority, 1985. FLSA applied to state employees. Held: doesn’t violate 10th am. Usery overruled. FLSA doesn’t do anything destructive of state sovereignty or violative of any constitutional provision; hence, no state immunity from commerce clause regulation.

a. Political checks will prevent fed’l gov’t from overreaching

i. Inconsistent w/ strong Marbury—now we have fed’l officials instead of courts deciding proper boundaries of federalism.

4. No cooptation of legislative or executive state officialsa. Legislatures

i. New York v US, 1992. In order to clean up waste, fed’l gov’t provides carrots/sticks to get state legislatures to regulate, including ordering states to take title of polluted land if state didn’t regulate—no opt out for states. Held: unconstitutional; while Congress has power to encourage states to clean up waste, it can’t compel the states to do so.

1. Congress can’t commandeer the legislative process of states by compelling them to enact fed’l regulatory program directly. Hodel v VA Surface Mining and Reclamation Ass’n (upholding regulatory scheme in which states were free to opt out).

b. Executive officialsi. Printz v US, 1997. Brady Act required local

sheriffs to perform background checks on gun buyers. Held: unconstitutional; compelled enlistment of state executive officers for actual administration of fed’l programs violates the 10th am.

1. Using the states as instruments of fed’l governance is ineffectual and endangers states as independent political entities.

c. We permit fed’l regulation of states but not cooptation of states b/c if Garcia goes other way, fed’l gov’t is helpless. If no cooptation, fed’l gov’t can just get their own officials to administer programs.

ii. State regulation of federal entity1. State can’t do so, where employee directly carrying out

business of fed’l gov’t (i.e., where state reg would impede accomplishment of fed’l gov’tal purpose)

a. Johnson v Maryland, 1920. State arrests fed’l postal employee for driving w/out state license. Held: conviction dismissed. State lacks the power to require fed’l employee performing gov’t business to

interrupt such business to fulfill state requirement of general applicability.

b. Osborn v. Bank of U.S.: contractor for supplying a military post w/ provisions can’t be restrained from making purchases/transporting them by state, or taxed/fined for doing so.

c. Ohio v. Thomas: soldiers provided w/ margarine as part of rations in violation of state law. State law held inoperative “in regard to those very matters of administration which are thus approved by Fed’l authority.”

2. State can regulate fed’l employees when not carrying out gov’t business, or where state has imposed general rules of local law that only incidentally affect the mode of carrying out the employment. Johnson v MD (postmaster runs stop sign performing duties; citation upheld).

a. This is especially true where there is a clear congressional mandate to authorize state reg.

iii. Federal taxation of state entity1. Strong limit.

a. Collector v Day, 1871. Fed’l gov’t levies income tax on salary of state judge. Held: tax unconstitutional; b/c state judicial officer is instrumentality employed for carrying into effect legitimate powers of state gov’t, the judge can’t be taxed b/c the taxation would interfere w/ exercise of those powers

2. Equal Representation/Political Check theorya. In Mcculloch, Marshall argues that you need a

constitutional limitation on the states b/c there is a danger that the states will tax the fed’l oppressively, and there’s no comparable danger that fed’l gov’t will tax the state in the same way b/c of the political representation by the states.

i. This is different from virtual representation theory, which is when the person being subject to tax might lack political power, but nevertheless there is a political check b/c the tax is of general applicability and so the people w/ political power virtually represent the powerlessness.

b. Framers rejected this notion—10th am limits authority of fed’l gov’t; don’t rely on political check

c. But states are in much more need of protection than fed’l gov’t. Fed’l gov’t can nullify state tax w/ law; state gov’t can’t nullify fed’l tax b/c of Supremacy

Clause. This is backward—states should be able to tax fed’l gov’t but not vice versa.

iv. State taxation of federal entity1. Strong limit on state’s ability to tax fed’l institutions—the

power to tax is the power to destroy. McCulloch.a. Includes even fed’l employees:

i. In Dobbins v Comm’rs of Erie County, it was held that state can’t levy a tax on salary or emoluments of an officer of U.S., mainly b/c officer was an instrumentality employed for carrying into effect some of the legitimate powers of the gov’t which couldn’t’ be interfered w/ by state taxation, and that the salary of officer was inseparably connected w/ the office.

b. But legal incidence of tax must fall on fed’l gov’t or its instrumentality; it’s not enough that economic burden of tax is passed on to fed’l gov’t. Thus, state income tax on fed’l employees is permissible, since legal incidence of tax falls on employee and not on gov’t. Arizona Dept of Revenue v Blaze Construction Co, 1999 (private contractor not immune from state tax on gross receipts for work done on fed’l project on Indian reservation)

2. no discriminatory taxes3. if tax is so prohibitory as to constitute a regulation,

consider whether it is a permissible regulationc. Commerce power

i. “Substantially affects” interstate commerce—from NP clause and Commerce Clause

1. Gibbons v Ogden, 1824. State law grants steamship monopoly to P; D operates steamship under fed’l license, and sued by P for violating monopoly. Held: state monopoly unconstitutional; the law violates the commerce clause, b/c congress has already regulated the same thing, and navigation comes under the commerce power. “Commerce” is intercourse; “among the several States” means that commerce may be introduced into the interior (but not commerce that is solely intrastate that does not extend to or affect other states). The power to regulate is to prescribe the rule by which commerce is to be governed. Since Congress has power to regulate, it occupies the field, and so means that state can’t concurrently regulate.

a. Johnson’s concurrence: The purpose of Constitution was to end the mishmash of state commercial regulations that existed under the articles of

confederation (i.e., prevent parochial/protectionist discriminatory economic regs). The fact that congress given the power to regulate commerce means that it must be an exclusive power; otherwise, it lacks the power to determine what remains unregulated.

2. Early distinctions:a. Manufacturing/production precedes commerce and

isn’t part of commerce. E.C. Knight (Sherman Act used to attack intrastate monopoly of all of nation’s sugar production; held unconstitional).

b. Once articles reach final destination, they’re no longer in interstate commerce and can’t be regulated. Schechter Poultry Co v US (fed’l regulation of slaughterhouses held unconstitutional, since slaughterhouses are after the chickens have finished moving in commerce)

i. Direct/indirect test:1. if something’s commerce, Congress

can regulate2. if something’s not commerce,

Congress only regulate if the effect on interstate commerce is direct.

a. Direct: Southern Ry, Shreveport Rate Cases (prices affect IC)

b. Indirect: Schechter (wages affect prices affect IC)

3. Problems with test:a. Doesn’t explain cases, b/c

law in Shreveport is upheld and only indirect effect on IC (direct effect on local rates only) and law in Southern Railway upheld w/ only indirect effects on IC (direct effect was on intrastate/local trains)

b. Shouldn’t commerce power include the power to protect interstate commerce from indirect effects?

ii. Cardozo concurrence: this view of causation would “obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer

rim is communicated perceptibly, though minutely, to recording instruments at the center…. To find immediacy or directness here is to find it almost everywhere. If centripetal forces are to be isolated to the exclusion of the forces that oppose or counteract them, there will be an end to our federal system.”

c. Can regulate the stream of commerce. Swift v US (Sherman Act used to attack interstate conspiracy of livestock dealers not to bid against each other in local/intrastate markets; held constitutional b/c prosecution regulated the stream of commerce—the livestock were only temporarily intrastate).

d. Can regulate intrastate things that threaten interstate commerce.

i. Physical interference1. US v Coombs (fed’l crime to plunder

wrecked boat upheld; Congress must have power to protect interstate commerce/navigation).

2. Southern Ry v US (fed’l reg required all trains on interstate tracks—even stuff only moving intrastate—to have safety equipment; held constitutional, since can protect interstate commerce from whatever the source of danger, even intrastate stuff).

ii. Economic interference1. Shreveport Rate Cases (ICC

permitted to regulate intrastate RR rates to prevent unreasonable discrimination against out of state traffic (really long trips in tx were improperly cheaper than short trips between tx and la; Congress has power to regulate intrastate commerce where necessary to protect interstate commerce)

3. Commerce power broadensa. Jones & Laughlin Steel, 1937. NLRB upheld;

regulation is constitutional. No need to refer to stream of commerce cases. Congress can protect interstate commerce no matter what the source of the dangers which threaten it. If intrastate activities

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 can regulate. If there’s a work stoppage due to industrial strife, there would be a most serious effect upon interstate commerce.

4. Can aggregate little things to add up to “substantially affects”

a. Wickard v Filburn, 1942. AAA regulates allotments of wheat crops; farmer prosecuted for growing extra for home consumption. Held: b/c homegrown wheat affects demand for wheat in commerce, which Congress can regulate, congress can regulate it too. “The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.” Even if person’s activity is local and may not be regarded as commerce, it may still be regulated by Congress if it, in the aggregate, exerts a substantial economic effect on interstate commerce.

5. Is there any limit—after Wickard, no stopping point.a. US v Lopez, 1995. Congress passes Gun Free

School Zones Act. Held: unconstitutional. Under commerce power, Congress can regulate: (1) The use of the channels of interstate commerce (e.g., can keep the channels of interstate commerce free from immoral/injurious uses; Darby); (2) The instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities (citing Shreveport Rate Cases, Southern Ry); and (3) Those activities having a substantial relation to interstate commerce; i.e., those activities that substantially affect interstate commerce. This is a substantially affects case; but: (1) activity being regulated is noneconomic; (2) no congressional findings of effect on interstate commerce; (3) no jurisdictional element in crime; and (4) the claimed justifications for substantial effect on interstate commerce (costs of crime/nat’l productivity) pile

inference upon inference in a way that don’t have a stopping point. Inconsistent w/ federalist/10th am.

i. Kennedy/O’Connor Concurrence: don’t question precedents, but don’t allow fed’l gov’t to invade areas of traditional state concern

b. US v Morrison, 2000. Congress passes Violence Against Women Act, after making extensive findings about effect of violence against women on interstate commerce; no jurisdictional element. Held: law unconstitutional. Congress lacks the power to regulate non-economic activity, where the only substantial effect is the cost of crime reasoning rejected in Lopez.

c. Problems w/ Lopez/Morrison:i. Economic/noneconomic distinction is hard

to apply—just like old limitations, it breaks down

1. Why isn’t mugging an economic activity? Everything is economic activity.

2. Who do you look at: evildoer or victim? If evildoer, relevant activity in Lopez is gun possession; if victim, relevant activity is running schools. Court assumes that evildoer’s activity is what is relevant

ii. Economic/noneconomic distinction inconsistent w/ past caselaw

1. Coombs permitted fed’l crime of stealing from wrecked vessel, based on substantial effect on interstate commerce. Falls on wrong side of distinction, especially since it seems we look at the activity of the evildoer.

a. But we can uphold Coombs as a regulation of the instrumentalities of interstate commerce. We don’t need the substantial effects prong at all.

2. Doesn’t overrule Wickard b/c it’s economic activity

iii. Economic/noneconomic distinction not based in constitutional doctrine

1. What should matter is the effect on interstate commerce, not the source.

2. But maybe this distinction has to do w/ the New Deal; Congress gets greater power to regulate economic life, but we don’t need to go beyond that. We’re drawing heavily on the Cardozo concurrence from Schechter—it’s all a question of degree. If claimed justification for substantial effect can’t pass the straight face test, then it shouldn’t be upheld.

d. Case shows weakness of political checks—Gun Free School Zone Act was completely useless, just grandstanding by Congress. So if the political checks don’t work in the context of the commerce clause, why do we pretend that they’ll work to check fed’l regulation of states (Garcia)?

ii. What is commerce—limits on regulation of interstate commerce itself

1. Power to use commerce power to achieve noncommercial ends

a. Lottery Case, 1901. Congress bans interstate transport of lottery tickets. Held: law upheld; lottery tickets are articles of commerce, and the power to regulate them includes the power to prohibit their movement in interstate commerce. Consistent w/ 10th am b/c you can still deal in lottery tickets intrastate

b. Hammer v Dagenhart, 1918. Congress bans interstate transport of products manufactured by child labor. Held: law unconstitutional; commerce power doesn’t extend to standardizing the ages at which kids can be employed. Previous cases permitting prohibitions rested upon character of goods dealt w/; here, nothing is wrong w/ the goods produced by child labor.

i. Holmes dissent: a prohibition of interstate commerce isn’t a ban; you can still do the activity intrastate.

c. Arguments from Lottery Case dissent and Hammer v Dagenhart

i. Purpose of Commerce Clause: The purpose of Commerce Clause is to have Congress secure the equality and freedom in commercial intercourse (to promote free

trade), not to permit the creation of impediments to such intercourse. You can only ban stuff when the character of the particular subjects dealt w/ meant that the power to regulate was the power to prohibit (i.e., need to prohibit to protect the channels of interstate commerce); e.g., Marigold (upholding ban on importation counterfeit coins)

1. But consider Jefferson’s Embargo (total ban on commerce; upheld as a regulation of commerce). The power to regulate is the power to prohibit. Whether the thing is currently thought evil is irrelevant; we don’t want courts second guessing congress in this way. Moreover, all regulations are prohibitions; just rewrite the prohibition as a regulation or the converse

2. Commerce Clause also had purpose of defusing the collective action problem of the states in limiting commerce of bad things. Purpose of clause wasn’t just to promote free trade.

ii. Pretext argument from McCulloch—this so called regulation is a pretext for Congress’s exercising the states’ police powers. Hence, this is bad in two ways: (1) exceeds Congress’s enumerated power; (2) intrudes on state autonomy by trying to exercise states’ police powers. Law on its face shows that it’s an attempt to ban child labor. We know that this is true b/c Congress then switches and uses a tax to suppress child labor when its commerce clause regulation is struck down

1. Congress’s power is plenary; they must be able to exercise their powers notwithstanding any indirect effects

a. After all, we can find affects of interstate spread of lotteries/child labor (spread of unfair labor practices thru unfair competition;

misallocation of disposable income) that Congress can regulate. It’s only a lack of imagination that calls this a pretext

2. Dual federalism idea (the idea that the fact that something is w/in state power is a limit on fed’l power even if it’s technically w/in enumerated powers) is rejected. Darby

a. But nevertheless, we don’t want Congress doing an end-run around 10th am by accomplishing forbidden ends by using their given powers. If we let Congress do this, then 10th am and doctrine of enumerated powers are meaningless.

b. Whether we accept this depends on our view of purpose of Commerce Clause. Since we know purpose wasn’t just free trade, but removing unreasonable restraints on trade by having central regulation of commerce, we don’t think that CC imposes limits on Congress’s motives for regulating.

3. Besides, laws have many purposes… empirical difficulties w/ determining purpose of law and cross-purposes, etc.

d. Spending poweri. US v Butler, 1935. AAA authorized agency to bribe farmers to

limit production. Held: unconstitutional exercise of spending power. Spending power is independent of enumerated power, limited only by General Welfare Clause. Nevertheless, the AAA violates 10th am; this is an attempt to purchase compliance that Congress can’t command; they conditional gifts aren’t really voluntary

1. Butler tries to have its cake and eat it too: the power to spend for the general welfare is an independent power, but it cannot be used for an illegitimate purpose. These are

incompatible, as the power to spend means making offers that cannot be refused, and it abolishes any barriers limiting fed’l power.

2. What does General Welfare Clause mean?a. It’s a limit rather than grant of power. If it was a

grant of power, then fed’l power would be limitless; and why would you need enumeration if you could tax/spend for general welfare?

b. Hamilton/Story view/Adopted by Butler Ct. of Independent Spending Power (not limited to supporting enumerated powers)—Use tax power and tax $ to promote general welfare by subsidizing industry and reducing dependence on foreign nations.

i. Arg: textually supported; plus, if not an independent power, then it would be superfluous (it would be implied from NP clause).

ii. South Dakota v Dole, 1987. Congress conditions highway funds on raising min drinking age to 21. Held: constitutional. law is w/in the spending power; the relevant limit on which is that the power may not be used to induce the states to engage in activities that themselves are unconstitutional. Suggests that whether spending is w/in general welfare may be judicially unreviewable. Congress must condition funds unambiguously, enabling states to exercise knowing choice. Conditions on fed’l grants may be illegitimate if they are unrelated to the fed’l interest in particular nat’l projects/programs (here, concern for underage drunk driving enough of a link to highway spending).

1. O’Connor dissent: Congress has the power to spend for the general power. Inquiry is whether the spending requirement is a condition on a grant or whether it is a regulation. The difference turns on whether the regulation specifies in some way how the money should be spent, so that Congress’s intent in making the grant will be effectuated. Congress has no power under the spending clause to impose requirements on a grant that go beyond specifying how the money should be spent. A requirement that is such a specification isn’t a condition, but a regulation, which is valid only if it falls w/in one of Congress’s delegated powers.

2. Does Dole overrule Butler? No; distinguish based on how coercive bribe to farmer vs bribe to state

e. Taxing poweri. Like the commerce power, taxing power given wide latitude and

lets Congress do anything. Kahringer.

1. Probably should be treated differently, however. We wouldn’t want Lopez to be resurrected as a prohibitive tax on guns in school zones.

ii. Is an independent power; don’t have to show tax is for other enumerated power. US v Butler, 1936.

iii. A measure is a tax (and thus w/in taxing power) only if it’s really a tax (otherwise, must be authorized by other granted authority)

1. Must raise some revenue, even if minimal.2. Pretext argument—tax is really prohibitory reg:

a. Child Labor Tax Case, 1922. Congress imposed 10% tax on profits of child labor. Held: tax unconstitutional. This tax is a pretext for a regulation; tax has scienter requirement, looks like a reg. Taxes sometimes have dual motives: revenue production and shaping society’s behavior. But when tax is so much a penalty that its claim for revenue production is questionable, then it’s a penalty. Case controlled by Hammer.

b. If conditions/etc under the tax could be justified by enforcement of tax (e.g., a registration requirement), then tax more likely to be upheld.

c. Pretext arg guttedi. US v Kahriger, 1953. Congress imposes big

tax on interstate gambling, and legislative history indicates purpose was to ban gambling. Held: tax constitutional. Tax not invalid simply b/c it deters or discourages activity it targets.

iv. Other Limits:1. Textual limitations:

a. Taxes must be uniform throughout US. Art I § 8 cl 1

b. Any direct tax must be proportional to population of states. Art I § 9 cl 4

i. Income tax must be direct tax. Pollack. Overruled by 16th am.

c. No tax/duty may be laid on exports. Art I § 9 cl 5.i. Although congress can’t impose tax on

goods in transit to foreign country, they can impose tax intended for export, so long as tax is nondiscriminatory (i.e., the tax isn’t imposed b/c the goods are intended for export).

2. Can’t be used to violate specific limitations in bill of rights; e.g., tax on people who don’t testify when they are Ds in criminal trials

f. War Poweri. Lots of grants of power to Congress (power to declare war, art I §

8 cl 11, power to raise and support armies, art I § 8 cl 12, power to provide/maintain a navy, art I § 8 cl 13, and the power to spend for common defense, art I § 8 cl 1) and to Prez (CinC, art II § 2 cl 1). Couple these w/ NP clause and inherent authority of US to conduct foreign affairs.

ii. Woods v Cloyd W Miller Co, 1948. Fed’l rent freeze to accommodate returning GIs. Held: reg constitutional. War Power includes the power to remedy the evils which have arisen from its rise and progress and continue for the duration of the emergency (which isn’t necessarily coterminous w/ duration of hostilities)

1. Jackson concurrence: However, war power is as valid a ground for federal rent control now as ever. Still technically in a state of war. While war powers may not be indefinitely prolonged merely by keeping legally alive a state of war that had in fact ended, and nor can they persist for as long as the effects and consequences of war do—i.e., are permanent—they still exist now, when we still have armies abroad and there’s been no peace terms.

iii. Arguably, war power also limited by Bill of Rights (see Reid v Covert, but consider Korematsu)

g. Power over Foreign Affairsi. Power over foreign affairs comprised of specific grants of power

(regulate foreign commerce, art I § 8 cl 3, and treaty power, art II § 2 cl 2), coupled w/ implied authority of US to exercise those powers inherent in concept of nationhood/sovereignty.

ii. Treaty power not subject to limitations of enumerated powers.1. Missouri v Holland, 1920. Migratory Bird Treaty w/

England. Held: even though Congress can’t regulate migratory birds directly thru any enumerated power (e.g., commerce), it can under the treaty power. Art II, § 2 expressly delegates power to make treaties, and by Art VI, treaties made under authority of US are supreme. If treaty is valid, no disputing validity of Act under NP Clause.

iii. Treaties enacted under treaty power cannot contravene constitutional limitations contained in Bill of Rights.

1. Reid v Covert, USSC, 1957: Held: civilian dependents of members of armed services stationed abroad couldn’t be court martialed for capital offenses during peacetime. Gov’t had relied in part on executive agreements w/ other countries that purported to provide for military jurisdiction. Held: Nothing in supremacy clause says that treaties and laws enacted under them don’t have to comply w/ constitution. History of debates show that reason treaties were not limited to those made in “pursuance” of

Constitution was so agreements made under Articles of Confederation would remain in effect, not b/c treaties aren’t subject to constitutional limitation.

iv. Treaty power’s limit defined by what are proper subjects of international negotiation

1. De Geofroy v Riggs, USSC, 1890: French citizens claimed an inheritance from uncle of land in DC. MD law, applicable in DC, denied nonresident aliens the right to inherit property; however, a subsequent convention between US and France provided that French citizens should enjoy the right to inheritance wherever they could own real estate, as they could in DC. Held: convention provision valid. Treaty power extends to all proper subjects of negotiation between nations, among which is protection of citizens’ property, including inheritance. Other than by other restraints found in constitution against action of gov’t, treaty power is unlimited.

2. Problem of intermeddling.a. Implicit limitations from tradition: there’s got to be

a real need for concerted international action, not just a pretext to meddle in local affairs.

b. No Historical Stasis: Things that used to be thought local are now increasingly deemed proper subjects for international treaties; e.g., human rights treaties.

v. Power to regulate foreign affairs is exclusive to Congress1. Zschernig v Miller: MA passed law prohibiting granting of

gov’t Ks to companies doing business w/ Burma. Held: law struck down as impermissible state regulation of foreign affairs.

2. Extent of preclusion unknown: states can assuredly apply traffic laws/etc to foreigners, even though this has impact on foreign affairs.

vi. Prez has broad power to regulate w/ respect to foreign affairs not limited by 10th am. thru executive agreements

1. US v Curtiss-Wright Export Corp, 1936. Prez, thru executive agreement bans export of machine guns to region in Central America engulfed in war. Held: law is valid b/c fed’l gov’t’s powers w/ respect to foreign affairs are unlimited. That gov’t has only enumerated powers and NP powers is true only in respect to internal affairs. Since the states never possess international powers, they were transmitted to the US w/out reserve from Crown via colonies as a whole. Investment of fed’l gov’t w/ powers of external sovereignty didn’t depend upon the affirmative grants of constitution; the power to declare/wage war/peace, to make treaties, etc., even if never mentioned

in Constitution, would have vested in fed’l gov’t as necessary concomitants of nationality. Prez alone has the power to speak/listen as representative of nation. He makes treaties w/ advice/consent, but he alone negotiates

a. Generally speaking, consider whether the executive agreement is w/in Prez’s power, either delegated from Congress (its power to regulate foreign commerce) or w/in Prez’s constitutionally delegated power as CinC, or his inherent power of executive.

h. Dormant Commerce Clausei. Commerce power isn’t exclusive to Congress. When framers

wanted to make a power exclusive, they said so (e.g., treaty power, coin money, etc.).

1. But in some respects, it must be exclusive.a. Purpose of Commerce Clause: avoid collective

action problem of states by making power exclusive.

b. See also Federalist 32 (Hamilton): arguing for implicit exclusivity wherever the Constitution granted an authority to the Union to which similar authority in the States would be absolutely and totally contradictory and repugnant.

c. If we let states regulate freely, reasoning that Congress can step in, we should remember institutional limits: Congress can’t regulate piecemeal and preempt all bad state regs

2. Congress can always overrule a preemption by enacting a law permitting state regulation. Commerce Clause isn’t an absolute ban on state regulation of interstate commerce.

a. In re Rahrer, USSC, 1891. In Leisy v Hardin, USSC held that Commerce Clause prohibited state from prohibiting sale of out-of-state alcoholic bevs; Congress then passed law subjecting imported bevs to state law. Held: there is a limit to Congress’s ability to provide relief from positive restrictions on states’ powers. Commerce clause protects states from encroachments by confiding regulation of commerce to congress. But Congress can then conclude that common interests don’t require entire freedom in traffic of alcoholic bevs. This isn’t a (unconstitutional) delegation of legislative power, but rather Congress’s own regulation, subjecting alcoholic bevs to reg of states.

i. Limits court was referring to were things like coining money, which Congress can’t permit states to do. Art I § 10 cl 1. But

Congress can permit the state, e.g., to levy export taxes. See art I § 10 cl 2-3.

ii. Early developments1. Two competing theories:

a. From Gibbons: state laws based upon the police power were permissible even if they impeded interstate or foreign commerce.

b. From Cooley: state action precluded only where uniformity was required.

i. Cooley v Board of Wardens, 1851. State law required pilots on ships. Held: law is valid; only where subjects of power are by nature national and need uniformity, is it reserved exclusively for Congress, and pilotage laws aren’t “national”

2. Court develops modern test. Three kinds of laws run afoul of dormant commerce clause:

a. Laws whose purpose is to regulate interstate commerce, or whose effect is to control out-of state transactions

i. Buck v Kuykendall, USSC, 1925. State law prohibits common carriers for hire (including those engaged exclusively in interstate commerce) from using highways by car using regular routes w/out having gotten permission from state official certifying that public convenience/necessity require operation. P refused a permit b/c, as according to state law, no permit granted where route already being adequately served by another permit holder. Held: state law invalid. States can have safety regs, but this statute just prohibits competition, and its test for deciding is peculiarly fed’l (existence of adequate facilities for conducting interstate commerce). This is a reg of interstate commerce, and a forbidden one—it obstructs rather than merely burdens interstate commerce.

ii. Contrast: Bradley v Public Utilities Comm’n, USSC, 1933. P applied to state comm’n for permit to operate by motor as common carrier interstate. Comm’n said no, b/c route was so congested that proposed route would make road unsafe. Held: state action upheld against dormant commerce

clause challenge. This isn’t Kuykendall, b/c there the purpose was to prevent competition, whereas here the purpose is safety. Preventing accidents is a local problem; police power to protect against them. Evidence was adequate to show that denying permit was necessary to promote public safety.

b. Laws that discriminate against interstate commercec. Laws that don’t discriminate against, but

nonetheless burden interstate commercei. Judges are concerned about multiple

burdens problems1. Wabash, St. L. & Pac Ry v Illinois,

USSC, 1886. Illinois passed statute criminalizing unjust discrimination in rates. D indicted, based on goods shipped from IL to NY. Held: IL statute unconstitutional. If every state could fix its own rules for prices/etc, then interstate transportation would be harassed; preventing this is purpose of commerce clause, which would be useless if it didn’t preempt this kind of state action.

a. Three justices dissented, saying that they don’t think state loses power to regulate the charges of its own RRs in its own territory simply b/c the goods have been brought from or will leave the state. This is like decisions allowing states to have toll roads. Local roads, bridges, and RRs are local and can be regulated by states, so long as Congress hasn’t regulated them (i.e., no dormant commerce clause problem). Only if states’ laws discriminate adversely to other states do the laws violate commerce clause.

2. Bibb v Navajo Freight Lines, USSC, 1959. State law required use of certain type of uncommon rear fender mudguard on trucks operating on state’s highways. Type of mudflap required was banned in another state. Held: this is one of those cases where local safety measure that are nondiscriminatory place an unconstitutional burden on interstate commerce (b/c of conflict w/ other state’s safety law). A state that insists on design out of step w/ other states can only do so when the marginal gain of adding new requirement is compelling; here, the relative gains from using these kinds of mudflaps are slight at best.

iii. The test: (1) assuming no conflict, (2) and state law is rationally related to legitimate state purpose, (2) and if a discrimination against interstate/foreign commerce, it is the least discriminatory means, (4) the burdens placed on interstate commerce aren’t clearly excessive in relation to the benefits the law affords the state.

iv. First, if there’s a law, make sure that state and fed’l law are in conflict.

1. Gibbons: fed’l license conflicted w/ state granted monopoly. Chancellor Kent in lower court pointed out that the license was really about the enforcement of the tax on ships. It was a tax enforcement device, not an affirmative authorization to engage in interstate commerce.

2. Village of Kake v Egan: fish traps used by native Americans in Alaska. State bans them—conservation measure. Indians have two licenses from fed’l gov’t: (1) from Forest Service to anchor their traps in national forests; (2) from Army corps of engineers that allows them to obstruct navigable waters. Held: no conflict. These licenses aren’t necessarily affirmative permission—really, they were just exceptions to general prohibitions. The Army Corps of Engineers, e.g., didn’t really want to promote obstructions in the stream—they wanted them limited. The national forests license was granted b/c it reasoned that fish traps wouldn’t be that much a burden.

3. Things to look for: statute’s wording, purpose, and etc.v. Legitimate state purpose

1. No regulation of interstate commerce: this is where Buck v Kuykendall fits in. Though note that Bradley permitting an almost identical regulation b/c the state purpose there wasn’t to regulate interstate commerce but rather to protect public safety.

2. No economic protectionism: this is another way of talking about nondiscrimination principle

3. Make sure to look at whether the state purpose is rationally related to the statute’s means

vi. Assuming no fed’l law, consider whether the state law/reg/tax is discriminatory against interstate commerce. Such a law is unconstitutional per se, unless the reg isn’t really about economic protectionism, but the state is able to show that there are no less discriminatory alternatives for attaining a legitimate local interest.

1. Facial discrimination: de jure discriminationa. Heavy presumption of invalidity. But consider

whether there are similar burdens on intrastate commerce from other statutes. Sporhase v Nebraska, 1982 (NE law barred shipment of ground water out of state if water needed locally; this de jure discrimination upheld b/c another NE law strictly limited the use and transfer of ground water w/in the state: “a State that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the uncontrolled transfer of water out of state”)

b. But see The Dean Milk case. WI has ordinance requiring milk sold in city to be processed w/in 5 miles of the city. Is this discrimination against interstate commerce? It means IL milk producers can’t compete. But is also prevents most WI milk producers from competing in Madison WI. Held: struck down, even though we’d think the fact that most of WI was also discriminated against would mitigate the worry against discrimination against out-of-staters.

2. Discriminatory impact: de facto discriminationa. Hunt v Washington. State said that you couldn’t

put extra info on apples sold in stores other than FDA grade. This discriminates in fact against apples from all other states, which use extra grading systems (but not this state). Reg struck down, b/c out-of-staters bear burden while local competitors could continue to do business as normal.

b. But just b/c industry/group that is burdened most is concentrated out of state, that doesn’t make law discriminatory, so long as law treats similarly situated in-state and out-of-state members of same industry

i. Comm Ed v Montana. Need low sulfur coal, which Comm Ed buys from Montana. Montana imposes a hefty severance tax. About 90% of coal extracted in Montana is shipped to Illinois and other Midwest states. This is de facto discrimination. Held: law is valid, b/c although out-of-staters bear 90% of burden, the tax didn’t distinguish between in and out of state consumers.

3. Discriminatory as applieda. This is what Dean Milk case was about.

4. Complete ban of intra- and interstate commerce in an article is fine. Nothing mandates that interstate commerce get a comparative advantage. Woodruff v Parlam, 1868 (complete ban on widgets).

a. Dissenting opinion in Woodruff. What if subject of tax was cotton, a good that is almost always produced out-of-state. If you’re really interested in protecting out of state interests, then you can’t ignore de facto discrimination.

5. Make sure that in-staters and out-of-staters actually compete; if they don’t, then no problem b/c eliminating discriminatory state law won’t further Commerce Clause purpose of preserving nat’l market for competition undisturbed by preferential advantages conferred by state upon own citizens

6. Even if law is discriminatory, if there’s no way of accomplishing end but thru discriminatory means, then it’s fine—but this is very strict scrutiny.

a. City of Philadelphia v New Jersey, USSC, 1978. State law prohibits importation of solid/liquid waste originated/collected from outside the state. Held: Generally, laws of economic protectionism are struck down, but laws of safety/health that merely burden interstate commerce are upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. But evils of protectionism can reside in legislature’s choice of means as well as end. Here, end of law is fine, but means are protectionist; law imposes on out-of-state interests the full burden of conserving

the state’s remaining landfill space. Quarantine cases distinguished: those laws didn’t discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin; mere traffic in waste doesn’t endanger health—the harm arises after its disposal (at a point when there is no basis to distinguish out-of-state from domestic waste).

vii. If state law is nondiscriminatory, look for burdens on interstate commerce and perform balancing test

1. South Pacific Co v Arizona, 1945. State law prohibits operation of trains greater than a certain length (and almost all trains are longer than that length). Held: law invalid, b/c the state reg substantially burdens interstate commerce on a subject that mandates uniform rule, and b/c balancing of interests shows that local concern doesn’t outweigh national interest, since value as safety reg is slight. Here, long trains is standard practice, and length of trains is a question demanding uniformity. Vast majority of trains in Ariz are interstate, and would be greatly burdened by complying w/ Ariz reg. Nor does balancing of interests save the reg; the state law makes train operation more dangerous and thus has dubious advantage over unregulated train lengths. (number of accidents increased due to increased traffic).

2. Easy cases are where state interest is weak and burden is high, or where state interest is high and burden is low.

3. Hard case: strong burden and state interest (see if law can be invalidated on other grounds to avoid this question, as in the Dean Milk case)

a. Hypo: Can state ban sale of Yellow margarine? Held: yes, b/c state has a substantial interest in preventing fraud (might try to pass margarine off as butter). This interest justifies complete ban. Lesson: look to see if interstate commerce can still be conducted somehow (e.g., by putting milk in paper cartons, by leaving margarine white, etc.)

b. Cloverleaf case: milk cartons. State of MN decides you can’t sell milk except in paper cartons, whether in or out of state. All sorts of good reasons: they’re safe, they don’t break, they’re easier to dispose of than plastic. Substantial interest in protecting environment. Burden wasn’t so great, b/c you could sell out of state milk if you put it in paper carton (though there was concern about whether this was

designed to further MN’s paper industry). Law was upheld.

4. In evaluating burdens, make sure to consider other states’ statutes; e.g., Bibb v Navajo Freight Lines and the problem of multiple burdens. Alternatively, consider whether state statute is superfluous.

5. Whether state law is least burdensome means isn’t relevant.a. South Carolina State Highway Dept v Barnwell

Bros, Inc, 1938: USSC reversed lower court, which had struck down state’s 90-inch width limit for trucks b/c a 96-inch limit would have been just as effective and less burdensome. USSC remarked that this is a legislative rather than a judicial choice.

b. Clover Leaf case: USSC didn’t care that using paper cartons wasn’t least burdensome way for state to accomplish environmental goals.

viii. Market participant exception1. If state enters marketplace as a participant instead of as a

regulator/taxer, then inasmuch as its actions are like those of a private party, then it’s exempted from dormant commerce clause.

a. Justification: Framers didn’t intend to restrict states’ ability to operate freely in the market. Also, concerns for state sovereignty. Finally, b/c market forces will prevent state from acting economically irrationally by favoring own citizens, there’s less of a need for judicial involvement.

2. Reeves v Stake, USSC, 1980. State law in time of shortage restricted sales of cement from state cement plant to state residents. States are free to enter the marketplace themselves (Alexandria Scrap: MD offered bounty for MD-titled junk cars; upheld even tho didn’t give same bounty for other states’ cars.) Commerce Clause doesn’t limit states’ ability themselves to operate freely in free market. Moreover, states, when acting as proprietors, get freedom to decide w/ whom to deal, just as nonstate actors

a. Objection: burden is the same whether state is regulator or participant

b. Objection: states as market participants don’t act as rational utility maximizers, they favor those who are politically advantaged.

c. Objection: Maybe we should allow these things broadly, b/c Congress can always step in and fix things. But c’mon, if you punt like this, nothing ever gets fixed.

3. Solution: define the market narrowly so as to keep doctrine from swallowing up the rule that states may not impose burdens on interstate commerce (and therefore be leery of imposing downstream restrictions).

ix. Privileges and Immunities1. Art IV: “The Citizens of each State shall be entitled to all

Privileges and Immunities of Citizens in the several States.” This is non-discrimination provision that overlaps w/ dormant commerce clause

2. Difference: Discriminations under privileges and immunities clause are on basis of where you live. Discriminations under dormant commerce clause are on basis of nature of economic transaction.

a. Some things offend both clauses but the application of the two clauses not identical. Differences:

i. Dormant Commerce Clause: prohibits discrimination against out-of-state goods. Could have in-state citizen dealing in out-of-state goods effected by state law.

ii. Privileges and Immunities: prohibits discrimination against out-of-state persons. Could have tax on property no matter where located but only an out-of-state citizen has a privileges and immunities claim where both in and out of state may have dormant commerce clause claim.

iii. Privileges and Immunities Clause prohibits only discrimination and don’t have second strand like there’s in dormant commerce clause of no unreasonable nondiscriminatory burdens

3. Test:a. Does challenged law affect a fundamental

right/privilege/immunity that falls w/in purview of Clause?

i. E.g., right to travel, to reside in a state, to do business in a state (we’re talking private sector—not a right to public employment), to hold property, etc. Things basic to livelihood.

b. Is law’s discrimination of a type prohibited by Clause?

i. i.e., this isn’t a protection of fundamental rights. There must be a discrimination against out of staters

c. Does the state have a substantial reason that justifies its discrimination against citizens of other states?

i. E.g., do noncitizens constitute a unique or peculiar source of the evil at which law is aimed? Is discrimination closely related to state’s objectives, and are there no less discriminatory/restrictive means of accomplishing state’s goals?

IV. Separation of Powersa. Checks and balances

i. Purpose of SoP is not to protect the branch’s powers but rather to safeguard individual rights. Hence, encroachments can’t be waived by branch whose powers may have been impaired (New York v US; Chadha (invalidating legislative veto provision on statute that prez had signed); Myers v US (invaliding statute limiting prez’s power to fire postmaster even though statute had been signed by prez)).

ii. Vesting clauses:1. Art I § 1: legislative2. Art II § 1: executive3. Art III § 1: judicial

iii. But powers are commingled to create overlapping responsibility. “The greatest security against tyranny—the accumulation of excessive authority in a single Branch—lies not in a hermetic division among the Branches, but in a carefully crafted system of checked and balanced power within each Branch.” Mistretta.

iv. Interbranch disputes rarely get into court. SoP issues often pose problems of standing and ripeness, and may be nonjusticiable under PQ doctrine. Or it just may take forever to get the courts (e.g., legislative veto took 50 years before Chadha)

v. Things to look for in SoP problems:1. Text: textual grant of power to one branch or another2. Aggradizement: one branch aggrandizes itself by

encroaching upon or usurping functions that are more appropriately performed by coordinate branch

3. Encroachment: one branch encroaching on another b/out aggrandizing by trying to limit other branch’s powers.

b. Presidential exercise of lawmaking poweri. Youngstown and inherent executive powers

1. Art I § 1 vests legislative power in Congress; ergo, prez cannot make laws—prez can’t, under vesting/take care/CinC clauses or theory of unitary executive, assume dual role of lawmaker and law enforcer.

2. Youngstown Sheet & Tube Co v Sawyer, 1952. Prez, to avert wartime steel strike, ordered seizure of nation’s steel mills. Statute permitted seizure in certain situations, but

not thru this mechanism. Held: prez lacks inherent power to do so.

a. Black’s opinion:i. Prez must have affirmative statutory or

constitutional authority1. no affirmative statutory authority:

expressio unius.2. no constitutional authority: no

inherent powers; this isn’t exercise of war powers. Prez’s seizure order looks like a statute, but the idea that prez is executive refutes idea that he is to be a lawmaker.

b. Jackson’s concurrence:i. Framework of prez’al power:

1. When prez acts pursuant to express/implied authorization of Congress, his authority at max—all of his own plus all that Congress can delegate. Only unconst’l if fed’l gov’t lacks power

2. When prez acts in absence of grant/denial, he relies on independent powers, but there is a “zone of twilight” where prez/congress share power. Congressional inertia permits prez’s action. Constitutionality turns on “the imperatives of events and contemporary imponderables rather than abstract theories of law.”

3. When prez acts against congressional authorization, he has lowest power: only his own minus what congress can strip. Presumption against constitutionality.

ii. This is in third category: expressio unius.1. no inherent powers to seize mills.2. Framers rejected this model—too

much like George III.3. Not in military powers

a. This looks more like Congress’s “raising/supporting” than prez’s CinC

b. War powers less persuasive justification in domestic context

c. Frankfurter’s concurrence:i. No statutory authority: expressio unius

ii. Constitutional authority: Look to tradition. All past presidential exercises of claimed “emergency” powers are a gloss on the constitution; however, none are like this, a seizure of steel mills to avert a strike in peacetime.

d. Dissent: i. Congress hasn’t directly spoken

ii. In cases of silence from congress, prez can act in emergency: Washington’s calling out militia to stave off tax rebellion, Washington’s issuing Proclamation of Neutrality, Adams’s arrest warrant to execute extradition provisions of treaty, Jefferson’s Louisiana Purchase, Monroe Doctrine, Jackson’s removal of deposits from Bank of US, Lincoln’s raising army and paying them w/out appropriation, Lincoln’s blockade of south, Lincoln’s emancipation proclamation,

1. Best precedent: Lincoln’s seizure of RR/telegraph lines to DC. Congress didn’t ratify for many mths, but sponsors said that they were only confirming power prez already possessed—this shows that Congress rejected view that prez’s acts were illegal until ratified.

3. Arg for broad inherent powers from vesting clause:a. Textual Arg. – Art I §1 gives legis. powers “herein

granted” limiting legis powers to enumeration in Art I §8 and Art III §2 gives jud. power only in specified types of cases. There’s no similar limiting lang. in Art II §1 so change in lang must mean that broad grant of exec power was intended. Vesting of exec. power w/out limitations was deliberate. Enumeration isn’t useless b/c it either limits exec auth. or gives something not clearly exec (treaty, CinC b/c we had been running army by committee)

b. History – Executive often acts in emergency w/out authority of law (see Youngstown dissent for examples)

c. Consequentialist arg: framers must have intended broad emergency powers.

4. Arg for limited executive powers from vesting clausea. Textual arg: if vesting clause so powerful, why

bother enumerating at all? (similar to arg for narrow construction of “general welfare” clause)

b. Consequentialist arg: CinC power is only power to act until congress can convene and deliberate. Purpose of vesting clause is to reject executive by committee.

c. Historyi. Whiskey rebellion, Lincoln’s calling out

militia, blockade of south: statutory authorization (just using military to enforce laws)

ii. LA purchase: treaty authorizationiii. Neutrality Proclamation, Monroe Doctrine:

prez has broader powers over foreign affairsiv. Emancipation proclamation: w/in CinC

powers to get slaves to defeat confederacyv. Bank holiday: congressional silence, not

congressional disapprovalvi. Calling out troops to stop Pullman strike:

though no specific authorization, helped execute all interstate commerce regs (iffy)

vii. Neagle: Upholding Presidential appointment of a bodyguard for a Supreme Court Justice saying that the Prez was acting to enforce ALL laws (because you can’t enforce laws without justices).

ii. Nondelegation doctrine1. Congress can delegate lawmaking authority to prez so long

as delegation sets forth “an intelligible principle” to guide agency’s discretion. J.W. Hampton. Similarly, interstitial and contingent legislation is fine (Field v Clark).

2. Goals advanced by nondelegation doctrine:a. Political accountability/deliberativeness – more

particularly, the kind of accountability coming from requiring specific decisions from a transparent and deliberative body like Congress (which has an outlet for the voice of vocal minorities, and thus tends to craft compromises). Hence, the goal isn’t

accountability so much as promoting deliberative democracy.

b. Rule of law: This deliberative democracy is a safeguard of individual liberties, and promotes rule of law values (since it cabins discretion and provides for judicial review).

3. Schechter Poultry Corp v US, 1935. Prez authorized to approve trade association-drafted codes to regulate industries. Held: delegation is unconstitutional b/c it doesn’t provide standards guiding the enactment process of trade associations’ codes defining what is meant by an “unfair method of competition”

a. Problems w/ delegation in Schechter:i. No limits on discretion: this was a roving

commission to act for public good (Cardozo concurrence)

ii. Delegation to private parties—unconstitutional (Carter v Carter Coal, Schechter)

iii. Sheer breadth of authority—some delegations are just too broad (Schechter)

b. Not enough for Cong to retain right to legislate to undo Prez action – Inertia is powerful in lawmaking and shifting burden to Congress to act affirmatively makes it much harder for it to undo action or withdraw authority than for it to have passed law in first place. Plus Prez could veto Congress’s repealing its decision and then need 2/3 majority to undo Prez’s action or w/draw authority

c. Not analogous to Cong/State relationship under dormant commerce clause – There Congress isn’t delegating law making to the states. Congress is exercising its function under Commerce Clause to say that state action is OK consistent w/ Art I §8 and 10th Amend.

d. Not enough to have established procedures and judicial review – Attempt to distinguish FTC by existence of procedures and JR – BUT this isn’t responsive to delegation probs b/c Cong still needs to make basic policy decisions that cts. will enforce. Also – the procedures may be good BUT the decisions from them are still made by the wrong person.

e. Distinction making FTC Const. – In FTC Act Congress made basic policy decision to forbid deceptive behavior and laid down a primary

standard. In Schechter, there’s no primary standard for how or when Prez should establish codes of fair competition and Prez is given free reign to decide what’s in best interest of country and this is unconst’l b/c of non-delegation doctrine.

4. Yakus v US, USSC, 1944. Emergency Price Control Act gives Administrator the power to control prices “in the interest of the national defense and security and necessary to the effective prosecution of the present war.” Standard: as administrator thinks “generally fair and equitable and will effectuate the purposes of this Act.” Suggests benchmark of prices during 10/1/41-10/15/41. Held: delegation is constitutional b/c there is sufficient guidance to control discretion.

iii. Line item veto1. Clinton v NY, 1998. Line Item Veto Act gave prez

authority to cancel spending/tax break provisions. In identifying items for cancellation, Prez must consider leg history/purposes/etc; he must find that each cancellation will (1) reduce budget deficit; (2) not impair any essential gov’t function; (3) not harm nat’l interest. Must inform Congress so that Congress can, if it wants, override cancellation by passing a disapproval bill. Held: Line Item Veto Act violates the Presentment Clause (art I § 7), which requires that before a law may be enacted/amended/repealed, it must be passed by both houses and signed by Prez or repassed over his veto. Effect is to permit Prez to change text of enacted statutes and thus create a different law than that passed/signed.

a. Kennedy concurrence: also violates SoP b/c it enhances Prez’s powers beyond what framers would have endorsed.

b. Dissent:i. This is a nondelegation case—but

nondelegation principle not violated b/c adequate guidance on prez’s discretion.

ii. The only real difference between this case and Field v Clark is that in Field v Clark, prez didn’t have discretion not to trigger increased tariffs when he found unequality. W/ Line Item veto, Prez has unlimited discretion not to cancel stuff.

c. Congressional exercise of executive/judicial poweri. Appointment

1. classifying positions

a. Art II § 2 cl 2: Principal officers must be appointed by the Prez w/ the advice/consent of Senate. Inferior officers can be appointed same way, or congress may elect to vest their appointment in the Prez alone, in the courts of law, or in the heads of depts..

b. An “officer” includes any appointee exercising significant authority pursuant to the laws of the US. An “employee” is a “lesser functionary” who is “subordinate to officers of the US.” Buckley.

c. Factors to consider:i. Nature and extent of official’s duties, and

whether or not they include policymaking functions

ii. Amount of independence and source of supervision; e.g., whether official answers directly to prez, to a principal officer, or to someone lower in hierarchy

iii. Position’s tenure: continuing, temporary, or intermittent

iv. How official may be removed.d. Morrison v Olson: Independent counsel appt, if AG

decides one is necessary, by DC Cir. W/ respect to all matters in jurisdiction of his investigation, counsel has full power to exercise all investigative/prosecutorial functions. Can be removed from office only by AG and only for good cause. Held: independent counsel is inferior officer. Factors: (1) independent counsel could be removed (for specified reasons) by higher executive branch official; (2) independent counsels had only certain, limited duties of investigation/prosecution; (3) independent counsel’s office limited in jurisdiction; (4) independent counsel’s office limited in tenure—only one investigation.

2. interbranch appointmentsa. Textually, no limit on interbranch appointments of

inferior officers. Appointments Clause says “as they think proper”

b. SoP limit: If appointment had the potential to impair the constitutional functions assigned to one of the branches, that would be an unconstitutional interbranch appointment.

i. Ex: no SoP problems w/ judicial appointment of election supervisors (Ex parte Siebold) or prosecutors (Morrison). Maybe you can’t have judges appoint FERC

commissioners, since these are areas w/ which judges lack expertise.

3. congressional appointmentsa. Appointments clause doesn’t permit congressional

appointment of officers.b. Officials appt by Congress can only exercise

legislative powers.i. Buckley v Valeo, 1976. FEC officials appt

by, inter alia, Speaker and prez protempore of senate. Held: b/c of the violation of the Appointments Clause, the FEC commissioners can only be legislative officers, and therefore can only exercise powers that Congress can delegate: investigative powers, but not enforcement powers.

1. Can’t get around appointments clause thru NP Clause: NP Clause doesn’t give power to violate limits on other substantive powers.

c. Members of either house can’t be officers of US: Incompatibility Clause (Art I § 6 cl 2).

i. The Metropolitan Airport case: members of Congress cannot administer the law

ii. Removal1. congressional participation in removal:

a. Congress cannot remove an executive officer except by impeachment

i. Bowsher v Synar, 1986. Comptroller-General, head of GAO, given the responsibility to review estimates of likely budget deficits, determine whether the estimated deficit will exceed a specified amount, and if so, to determine program by program, according to statutorily specified rules, how much appropriated money the prez must sequester (not spend). Appt by prez. Could be removed at any time by joint resolution (which permits presidential veto, etc.) on a “for cause” standard. Held: Comptroller General’s role in exercising executive functions under Balanced Budget Act’s deficit reduction process violates doctrine of separation of powers b/c the Comptroller General is removable only by congressional joint resolution or by

impeachment, and Congress may not retain the power of removal over an officer exercising executive powers.

1. Comptroller-General is creature of Congress: Though nominated by Prez and confirmed by Senate, Comp-Gen is removable only at Congress’s initiative. Under the “for cause” standard, Congress could effectively remove Comp-Gen for any number of actual/perceived transgressions. Plus, political realities mean that Comp-Gen isn’t free from congressional influence.

2. Comptroller-General has executive powers: Act contemplates that Comp-Gen will exercise his independent judgment w/ respect to estimates and will make decisions normally made by officers charged w/ executing a statute. The Act gives Comp-Gen rather than Prez the ultimate authority in determining what budget cuts are to be made.

2. other interbranch removalsa. Mistretta v US: SoP not violated where statute

permitted Prez to remove members of US Sentencing Commission (including judges) for cause. The commission itself didn’t perform judicial duties.

3. assigning removal authority to executive official other than prez

a. Morrison v Olsen: SoP not violated where removal of independent counsel vested in AG, not Prez.

i. Perform functional analysis: will limit on prez’s removal power frustrate ability to Take Care…

4. limiting executive’s grounds for removala. Prez can remove “pure” executive officers (Myers),

but Congress can restrict removal power for “quasi-judicial/legislative” officials (Humphrey’s Executor)

b. Real question is function: do the restrictions on removal impede the prez’s ability to perform constitutional duty? If so, then impediment to

prez’s removal power is unconstitutional; if not, then impediment is fine. (Morrison)

i. Important factors: principal vs. inferior officer; scope of jurisdiction; length of tenure; amount of policymaking/administrative authority.

ii. Limiting removal to “good cause” standard doesn’t impede prez’s power to Take Care. Morrison.

1. Scalia dissent in Morrison: “The idea that the power to remove for good cause provides means of control over independent counsel is like referring to shackles as an effective means of locomotion.”

a. Thinks that any limit on prez’s removal power intrudes into ability to Take Care—prez can’t do this if he can’t exercise control over those who execute the laws.

5. prohibiting removal except by impeachmenta. a little unclearb. Weiner was a statute w/out removal provision at all.

Held: prez lacked authority to remove member of War Claims Commission for no other reason than that Prez wanted his own people on the Commission.

i. However, USSC carefully noted that this wasn’t a case where Prez had sought to remove commissioner for cause.

ii. Again, in Morrison, USSC suggested that if there was no way an executive official could be removed for cause, it might violate SoP. In Morrison, AG could remove for cause.

6. appointment, removal, and the unitary executivea. SoP violated if Congress vests duty of executing

fed’l laws in persons not subject to appointment/removal of Prez.

i. Printz: Brady Act unconstitutionally assigned execution to state law enforcement officials; not only violated commandeering, but also impaired Prez’s art II obligation to Take Care.

ii. Myers: strong unitary executive viewiii. Legislative veto

1. Has three elements: (1) statutory delegation of power to executive; (2) exercise of that power by executive; (3) reserved power in Congress to nullify that exercise of power.

2. INS v Chadha, 1983. Congress used legislative veto in INS Act to veto AG’s decision not to deport Chadha. Held: legislative veto violates Bicameralism/Presentment.

a. Majority opinion is premised on the notion that the exercise of the legislative veto is the making of a law.

i. But the INS Act, which sets up the legislative veto scheme, did satisfy the bicameralism/presentment requirements. Hence, the exercise of the veto isn’t a bill; textually, neither the presentment/bicameralism clauses are implicated.

1. Presentment: Art I § 7 states that every bill that has passed HR and Sen must be presented to Prez.

a. But this bill didn’t pass both houses – so no presentment

2. Bicameralism: Art I § 7 states that every order/etc to which the concurrence of both HR and Sen may be necessary must be presented to Prez

a. But this bill didn’t require concurrence of both houses

ii. Nevertheless, Burger states that the one-House veto was essentially legislative in purpose and effect, and therefore is subject to presentment/bicameralism (despite the fact that neither are textually applicable).

1. Burger’s rationale: w/out the veto provision, the result in the case couldn’t have occurred w/out a statute requiring deportation.

2. But that’s true of AG’s position too. Absent the delegation giving the AG the authority to waive deportation, the waiver of deportation can only take place by legislation too.

a. So the problem is that Burger’s rationale for deciding the case is that he is

unable to distinguish between permissible delegations of legislative rulemaking authority and an “impermissible” exercise of what is “legislative in character/effect” that is subject to presentment/bicameralism clauses. Hence, Burger’s rationale requires throwing out all delegations.

b. Ways to save Burger’s result but jettison his rationale:

i. A functional argument would be that in practice, the legislative veto increased the power of self-interested private groups over regulatory law—which is bad, given the purpose/structural understanding of the constitution.

ii. A formalist argument might be that the legislature is actually horning in on the executive branch; that is, the legislative veto is an act of “executing” rather than “legislating.”

1. This is Powell’s concurrence: legislature is usurping adjudicatory functions performed by agencies or courts.

2. Art I § 6—the “incompatibility” clause: no one holding office of the U.S. shall be a member of either House during their continuance in office (the clause that bars a parliamentary form of gov’t—i.e., no prime minister). Founders wanted to prevent legislators from being cabinet members, and thus the legislature dominates the executive. Maybe we can say that the legislative veto sets itself up as giving all the legislature delegated authority to veto as an executive officer of the U.S., which is somehow bad

iv. Administrative exercise of judicial powers1. Does it violate Art III to have agencies adjudicate?

a. Judicial power is vested in the courts. Art III judges have life tenure during good behavior and compensation can’t be reduced during office.

b. Purpose was to ensure judicial independence. Federalist 78: need judicial independence as SoP concern, not just to ensure adequate checks and balances (but largely to make sure that that happens)—want to ensure that judges perform their functions fearlessly.

c. Precedent:i. Ex parte Milligan (civil war case where civil

cts are open but civilian Ds are tried for ordinary crimes in military cts. Unconstitutional).

ii. O’Donoghue v US (Depression-era case. Judges of fed’l cts being overpayed due to deflation, so their salary reduced. Unconstitutional).

iii. Marathon (art I bkrptcy judges can’t decide state law contract claims)

2. Exceptionsa. Territorial courts

i. Art IV, which governs territories, is free from Art III constraints.

1. Note that other provisions of Constitution do apply in territories. Dred Scot (5th am applies in territories).

ii. Arg from Consequences: If you have to give life tenure to territorial judges, what do you do when the territory becomes a state—you can’t fire them, but you don’t need them (because they’re replaced by state judges.

b. Courts martiali. Textual power in Art I § 8 of Congress to

regulate armed forces, supplemented by Prez’s CinC power

ii. Tradition: we’ve always had courts martial, and Framers wouldn’t have gotten rid of them sub silentio.

c. Public rights casesi. Public right—person suing gov’t; Private

rights—involve liability between one person and another.

ii. Not only must (1) the gov’t be a party, but also (2) the action/decision in question must

be one that another branch could make w/out using a tribunal at all. If you could do it by legislation, then a fortiori, you don’t need a court.

1. Bakelite case: in upholding constitutionality of court of customs appeals, USSC extended principle of public rights to say that b/c in some cases you don’t need a court to do X, therefore, when you do set up a court, it doesn’t have to be a real court.

2. This is the theory upon which Court of Claims was sustained in Williams v US. Court of Claims was an Art I court w/out life tenure judges. It decided claims in which US waived sovereign immunity. Arg is that since they waived sovereign immunity (and thus greater power to avoid liability), they have the lesser power to determine how claim is adjudicated.

d. Adjunct theory: assistant can do things not essential for art III courts

i. Raddatz: magistrate judge can make evidentiary rulings in criminal case. OK b/c what the magistrate judge does is subject to de novo review by USDC judge, which retains all the powers of decision that an art III court judge needs.

ii. Crowell v Benson: don’t need de novo review unless the facts are of constitutional or jurisdictional significance

1. determined whether employment relation existed—necessary to trigger statute’s applicability (jurisdictional)

2. navigable waters—necessary to trigger art III (constitutional)

3. This doctrine completely ignored today.

3. Northern Pipeline Construction v Marathon Pipe Line Co, 1982. Art I Bankruptcy Ct judge authorized by statute to hear compulsory counterclaims in bankruptcy suit, even those from state law. Held: Act impermissibly removed most, if not all, of the essential attributes of the judicial

power from U.S. Const. Art. III district courts, and had vested those attributes in a non-Art. III adjunct. Such a grant of jurisdiction could not be sustained as an exercise of Congress's power to create adjuncts to Art. III courts.

a. Crowell distinguished: there are different kinds of private rights: those that Congress created and c/l rights. When Congress creates a substantive federal right (as in Crowell), it can prescribe how that right is administered. Crowell itself required closer ct supervision than would occur in bankruptcy context. First, agency in Crowell only made specialized narrow fact determinations (bankruptcy does all relevant findings of fact in many areas of law). Second, agency in Crowell had to seek ct enforcement of its orders (bankruptcy could enforce own orders). Third, agency orders in Crowell could be set aside if unsupported by evidence (bankruptcy only subject to clearly erroneous standard).

i. i.e., Crowell involves (1) a private right that Congress had created (as opposed to c/l right) and (2) greater art III court participation/supervision

d. Judiciary and SoPi. Assigning nonjudicial duties to federal judges

1. Hayburns Case and problem of advisory opinions in Finality section

a. Making court’s decision subject to review of executive officials impairs integrity of judiciary as an independent branch

2. But see Mistretta: can delegate tasks that are w/in the ken of judges to judiciary

e. War and Foreign Affairsi. Military tribunals

1. Ex parte Quirin, 1942. Ps, eight German born U.S. residents, were captured by the US, as they tried to enter the country during war time, for the purpose of sabotage, espionage, hostile or warlike acts, or violations under the law of war; they landed then disposed of uniforms. Prez tried Ps before a military tribunal under the Articles of War. Held: Ps were alleged to be unlawful belligerents (ex parte Milligan distinguished), and so under the Articles of War, they were not entitled to be tried in a civil proceeding, nor by jury. Trying petitioners before a military court was not illegal, and did not violate the Art III or 5th/6th ams. Prez has authority to try petitioners before a military tribunal without a jury.

ii. Declaring war and initiating hostilities1. Congress has power to Declare War. Art I § 8. No

appropriation for armies for longer than 2-yr term. Art I § 8.

a. Purpose was to avoid british precedent, where the crown got country into war w/out consent of parliament. Designed to keep prez’s war chest small.

b. Federalist 69: Prez as CinC is weaker than King George: just “supreme command and direction” of armies, whereas King could declare and raise/regulate armies.

2. Nevertheless, intended prez, as part of CinC power, has power for emergencies

a. Framers changed “Make War” to “Declare War” in congress’s power to leave room for prez’s repelling attacks

b. Fillmore precedent: consul promises Hawaii that US would defend them from French invasion. Sec of State Dan’l Webster writes to consul: “you moron, only Congress can make that promise (and conduct a police action like this), not you, not me, not the prez.”

c. Fulbright report—power of Prez started off this way: suppress piracy/slave trade/criminals/protect Americans abroad. Anything short of initiation of hostilities. Then expanded during 10th century

d. Claims to greater executive powers:i. Legitimacy

1. Based on misreading of const and history. Except for repelling sudden attacks, Congress makes decision to initiate either general or limited hostilities against foreign nations. Most of history shows respect for this. Exceptions include suppressing piracy and slave trade, pursuit of fugitives, response to attacks. Later expansion of prez’s war power is unsound; moreover, SoP violations cannot be waived even if the branch whose authority was encroached upon acquiesced in the intrusion.

2. Inherent powers arg is spurious. 10th

am: powers not delegated are reserved, leaving no residue of

inherent powers. Doctrine rejected in Youngstown.

ii. Necessity1. There should have been brief delays

for deliberation. Congress can act as speedily as prez. If it’s really emergency, Prez can respond to sudden attack. If it’s really a problem, just respond and worry about the consequences later: a single unconstitutional act, later explained or pronounced unconstitutional, is preferable to an act dressed up in some spurious, precedent setting claim of legitimacy.

3. War Powers Acta. Purpose: fulfill intent of framers and ensure that

collective judgment of Congress/Prez will apply to intro of army to hostilities.

i. Congress has authority under NP clauseii. Prez has power as CinC, but this power is

limited to exercise pursuant to (1) declaration of war; (2) specific statutory authorization; (3) national emergency.

iii. Notes:1. Congressional explanation of how it

interprets the prez’s warmaking powers. This won’t bind the courts or prez (Boerne/Dickerson). But all of these questions are nonjusticiable anyway—PQ.

b. Reportsi. Prez should consult w/ congress before and

during hostilitiesii. Must give written report w/in 48 hrs of

hostilities/likely hostilities, setting forth circumstances and authority for taken action.

iii. Must give updated reports no less often than once every six months.

iv. Notes:1. Basis for these requirements?

a. If acting under statutory authorization, then congress can condition its grant of authority to prez

b. If acting w/out statutory authorization, then these requirements stem from view that Prez’s warmaking power is only an emergency power. Once the emergency is dissipated, Congress can convene and tell prez what to do.

i. Barbary pirates example: Jefferson asked for permission to retaliate

ii. Treaty power shows that Congress must retain power to legislate w/ respect to conflict, and so they need info to know whether to continue/expand/stop war.

c. Congressional actioni. After turning in report, Prez must cease use

of force after 60 days unless he gets authorization or he can’t b/c of armed attack on US. Can be extended by 30 days if there’s an emergency preventing prompt removal of forces.

ii. Upon concurrent resolution of congress at any time, prez must remove forces

iii. Notes:1. Nixon vetoed bill on this ground,

arguing that it violated Presentment2. But Presentment doesn’t need to

apply. Prez only acts during emergency; once Congress convenes and passes joint resolution to that effect, they’ve proven that they can legislate w/ respect to conflict, and Prez’s emergency is over, having expired of itself.

d. Interpretation of joint resolutioni. Presumption against drawing US into

hostilities when interpreting treaties or lawsiii. Treaties and Executive Agreements

1. Prez can make treaty/executive agreement even if it seems a statute seems more appropriate. Edwards v Carter (treaty transferring property to Panama was valid even though Art IV § 3 expressly gives Congress the power to dispose of property belonging to US)

2. Unclear if Congress (or just Senate) gets to participate in abrogating treaty. Goldwater v Carter (nonjusticiable: 4 said PQ, 1 said not ripe, 1 didn’t say why dismiss).

3. Executive agreements are valid even if senate didn’t participate (as they would if it was a treaty)

a. US v Belmont, 1937. Prez negotiated executive agreement w/ USSR at same time that Prez recognized USSR. Agreement was that USSR would assign all claims to US, who would settle them, then give sum to USSR. Held: executive agreement is valid even though senate didn’t participate, b/c agreement made in conjunction w/ Prez’s formal recognition of USSR (which is Prez’s power under Art II § 3).

i. Sez court: “Scholarly opinion” has rejected the position that some international agreements are so important that they can only be implemented by treaty. ??? In other words, they’re just not going to enforce the 2/3rd senate approval requirement.

b. Dames & Moore v Regan: International agreement w/ Iran: if they release the hostages, we’ll block their tort claims and have it go into arbitration. USSC upheld this executive agreement b/c congress has authorized it (like nafta) and because it has been done so much as to provide a gloss on the constitution. i.e., if you violate the constitution so much, you get a prescriptive easement. (frankfurter in Youngstown)

i. Court noted, however, that “crucial to our decision” that Congress had expressly or impliedly approved in the agreement.

4. Restatement 3d of Foreign Relations:a. Prez, w/ advice consent of Sen, may make any

international agreement in the form of a treatyb. Prez, w/ authorization/approval of Congress, may

make an international agreement dealing w/ any matter falls w/in powers of Congress and Prez

i. E.g., Postmaster executive agreements from Postal act of 1792, NAFTA

c. Prez may make an international agreement as authorized by treaty

d. Prez, by himself, may make international agreement falling w/in his own powers

i. Comment e: everything under this category could also be done by treaty.

5. Executive Agreements made w/out congressional authorization that don’t exercise presidential power.

a. Hence, not Belmont (agreement linked w/ prez’s recognition power), and not Dames & Moore (congress had impliedly approved).

b. Probably not constitutional—see Dames & Moore note.

6. Constitutionality of executive agreements w/ congressional authorization

a. No textual support:i. Only treaties mentioned in Supremacy

Clause, only treaty power is expressii. Framers knew about executive agreements:

Art I § 10 bars states from entering into any “treaty/alliance/confederation” but permits entry into “agreement/compact” w/ congressional approval.

1. the way of arguing against the expressio unius here is stupid. If we think, ah, b/c the state can’t do X and the Constitution is silent about whether Fed’l Gov’t can do X, therefore Fed’l Gov’t can do X, would let the Fed’l gov’t deny E/P—only the states are expressly prohibited, and it’s silent as to whether fed’l gov’t is allowed.

b. Disturbs federalismi. Would allow Congress to evade all limits on

commerce power, cooptation of state officials, etc.

c. Practice: provides limits, demarking when you use executive agreements and when you use treaties

i. Treaties:1. political/military agreements (e.g.,

entering UN, peace treaties, NATO, mutual defense pacts)

2. arms control: only exception to treaty is SALT I—but that was only

to be an interim agreement until treaty: SALT II

3. important human rights agreements (e.g., Hague conventions, etc.)

4. extradition agreements (everything from Jay Treaty until Yugoslavia/Rwanda agreements in mid-90s broke pattern)

5. important environmental agreements (e.g., Montreal Protocol, UN Convention on Climate Change)

d.f. Executive Immunity and Executive Privilege

i. Executive immunity from suit1. no immunity from criminal actions

a. Art I § 3 states that an impeached officer may still be subject to criminal prosecution. Narrower protection than Speech and Debate Clause, which shields members of Congress even against criminal prosecution based on the performance of legislative acts

b. Prez can even be prosecuted while in office. A criminal prosecution would not be much greater interference than civil action in Jones, and so no immunity. Plus, the public interest in prosecution would be much greater than for civil action in Jones.

i. Besides, he can get lots of work done w/out the phone ringing from jail cell.

2. qualified immunity from civil damages actionsa. Executive’s function would be severely impaired if

any action later determined unlawful exposed them to personal damages liability.

i. Burden of defending would jeopardize job performance.

b. However, D must have had objectively reasonable grounds to believe that conduct was lawful for immunity.

3. absolute civil damages immunity for preza. Prez is absolutely immune from damages liability

for acts w/in the “outer perimeter” of his official responsibility. Nixon v Fitzgerald.

b. However, sitting Prez can be sued for conduct that occurred before Prez took office.

i. Clinton v Jones, 1997. Before ascending to prez, Clinton sexually harassed Jones. She

sued while he was sitting as prez. Held: suit can go forward. Since suit didn’t involve any of Prez’s official duties, the primary rationale for immunity doctrine, to avoid rendering prez unduly cautious in discharge of duties, didn’t apply.

ii. Executive privilege for presidential communications1. Implicit in idea of executive: w/out privilege, those who

advise prez would feel need to temper candor w/ concern for appearances and their own interest to the detriment of decisionmaking process. US v Nixon.

a. Part of SoP: seeks to protect independence of Executive Branch w/in its own sphere.

b. Compare Speech and Debate Clause: Art I § 6, which is textual in origin.

2. Executive privilege is qualified: presumption of privilege may be overcome by need for disclosure.

a. US v Nixon, 1974. USDC subpoenaed Prez Nixon for Watergate tapes for use by Ds seeking to exonerate themselves. Held: presumption in favor of executive privilege overcome: Prez’s interest—mere generalized interest in confidentiality—overcome by fundamental demands of due process in the fair administration of criminal justice.

b. US v Burr. Subpoena of prez relevant to Burr’s treason trial. Jefferson says I cannot answer subpoena to appear before the courts b/c that would mean I would have no time for duties. Marshall said: Prove It. Jefferson eventually caved by having subordinate deliver the letter.

3. Things to consider when balancing:a. Whether viewing docs in camera only will be

sufficient to protect privacy interestb. Whether prez relying solely on generalized interest

in confidentiality, or also need to protect military or diplomatic secrets

c. Whether disclosure sought in connection w/ pending criminal trial rather than civil action

i. Senate Select Committee v Nixon. Another subpoena for Watergate tapes. This time, only need is committee’s desire to see what laws they can pass to prevent a reoccurrence of this type of behavior. Held: USDC judge said no, saying that need for disclosure less than in criminal action.

1. Others disagree, saying it’s more important to prevent future wrongdoing than even to punish past transgressions.

g. Impeachmenti. Art II § 4: “The Prez, VP and all civil Officers of the US, shall be

removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

ii. Art I § 2: House shall have “sole Power of Impeachment”; Art I § 3 cl 6: Senate shall have “sole Power to try all Impeachments”; 2/3rd vote.

iii. Definition of high Crimes and Misdemeanors1. Indictable offenses?

a. Necessary?i. Yes:

1. Nixon’s brief: Noscitur a sociis. Also, other terms: try, convicted, conviction, etc., are all terms limited in context to criminal matters

2. Impeachment of judges precedents distinguished—they hold office during good behavior

ii. No:1. Doar Report: High crimes and

misdemeanors refers to offenses that subvert system of gov’t. Impeachable offenses need not be criminal. Impeachment’s not a personal punishment (b/c confining impeachment to criminal offenses sets standard too restrictive to reach dangerous conduct). To limit impeachable conduct to criminal offenses would be incompatible w/ evidence concerning meaning of “high crimes and misdemeanors” and would frustrate purposes of impeachment.

2. Story’s Commentary: Impeachment applied to offenses of a political character, more than just crimes of a strictly legal character. Personal misconduct, gross neglect, habitual disregard of public interest in discharge of office

3. Examples of impeachment of Nixon (he violated statutes, but articles of impeachment didn’t describe them as such), Johnson

b. Sufficient?i. Some private offenses that don’t implicate

abuse of office might not be impeachable; e.g., Sentator blount. But see Clinton.

2. Serious Crimes3. Abuse of Office

a. Framers conceived of high crimes/misdemeanors as political offenses that subvert the republic and are an abuse of public trust: Federalist 65, Story’s Commentary, Doar Report

b. Compare Nixon’s obstruction of justice w/ Clinton’s obstruction of justice: Nixon used federal officers and selective prosecution; Clinton, in private capacity, tried to talk people into lying for him.

c. Don’t impeach people for disagreeing w/ Congress’s interpretation of Constitution: Lesson of impeachment of Judge Chase, Prez Johnson (scope of prez’s removal power), Prez Nixon’s 3d charge of disobeying subpoena (scope of executive privilege)

i. Chase may be distinguishable since Judges serve during good behavior.

d. Exception:i. Could impeach a presidential child molester

ii. Ex: Senator Blount: waged private war on Spain for FL. Expelled from Senate (under art I power similar to impeachment, except doesn’t disqualify from office).

4. Of an officera. Though Isenbergh argues that impeachment clause

just a mandatory sentencing provision that doesn’t define what offenses are impeachable, this has to be wrong.

i. Constitutional Convention: Defined “treason and bribery” as impeachable offenses. Proposed addition—“maladministration”—rejected. That’s what elections are for. Final draft: “other high crimes & misdemeanors”

ii. Framers intended to reject model of Parliamentary supremacy, where all officers serve at parliament’s pleasure

iii. It would mean you could impeach non-officers, e.g., ME.