Constitutional Law I

I.

Introduction: To the Course and to United States Constitutional History a. What Constitutions are and their function i. They are about power ii. Creates the mechanisms/organs of go ernment iii. !llocates power among the organs of go ernment and empowers these organs i . "o ernments can do anything unless constrained. So a constitution allocates powers# a distribution function. . !llocate power among the following: $. !mong organs of go ernment %creates and empowers & separation of powers' (. )etween go ernment and people %rights protection'. This restrains go ernmental power. *. )etween central go ernment and states %federalism in the U.S.' i. +eta,issue: Who interprets b. )ac-ground U.S. history i. The .nglish colonies in the $/th,$0th century. $. Some were founded as proprietary colonies# some were corporations of merchants# some founded by religious groups# some founded by con1uest (. )y the beginning of the $0th century# all the colonies were under the Crown to some e2tent. The .nglish -ing appointed go ernors *. The colonies had limited self,go ernment because the geographical distance made some self go ernment
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necessary. 3et )ritain wanted to retain most of the control. .ach indi idual colony had a relationship with )ritain 4. Colonial Tensions a. Initially# the colonies were happy to be under )ritish rule i. 5rotection from foreign enemies was one reason. The 6rench# allied with nati e !mericans# were a threat within the continent. )ut in $/78# the .nglish won the 6rench and Indian war# putting an end to the 6rench threat in !merica. Therefore# the colonies did not need protection by the .nglish from the 6rench. b. !fter $/78# there was a steady deterioration of relations between the colonies and mother .ngland. ii. Independence $. In $//4# there was the 6irst Continental Congress a. Up until that point# there had been little cooperation among the colonies. !t this Congress# delegates from the $* colonies came to meet about the problem of )ritain b. They came up with a declaration of the rights of colonists and issued a call for a Second Continental Congress# which met in $//8 and actually had delegates from all of the colonies. c. The colonists that met were self,appointed re olutionaries with no legal authority (. In $//7# there was the Second Continental Congress a. The Congress in 9uly $//7 responded to war with the :eclaration of Independence b. Congress agreed that the colonists would fight against )ritish rule
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i. This necessitated getting organi;ed# raising an army# loo-ing for a leader# etc ii. )ut one of the pressing needs was establishing some sort of legal authority among the colonists $. This led to the !rticles of Confederation in $/// c. The !rticles of Confederation %$///' i. 5reamble $. <The undersigned delegates= author the articles. :ifferent from <We the 5eople= in the later Constitution# in that until $///# there were $* indi idual nation states ii. !rticles I and II $. The language reads as if this whole document is a treaty (. <6irm league of friendship= does not sound li-e a nation# but rather a bunch of independent states agreeing to band together# an alliance iii. !rticle > $. The delegates to the Congress were to be appointed# not elected (. The power to recall delegates is gi en to the states# which essentially ma-es the legislators ambassadors. .ach state?s delegates had to be paid by the states# not the nation. *. @ne ser ing in Congress could not ser e in another U.S. office for pay a. This was because of the )ritish history of paying off parliament members through gi ing them Aobs to persuade them to ote a certain way. b. !lso ga e full immunity from penalties to Congressmen for spea-ing anything while engaged in Congressional acti ities.
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i . States Surrender Certain Bights $. !rticle >I a. The ability to maintain armies e2cept for defense# the right to declare war# the right to enter into treaties# etc b. The states ga e these rights to the new Continental Congress. (. !rticle I> a. ! series of agreements among the indi idual states to each other so they can more easily li e together. b. ! certain amount of free trade# gi ing full faith and credit to each?s Audicial decisions# etc. . )ranches of 6ederal "o ernment Created $. The !rticles only created one organ of go ernment# the Congress. a. !rticle IC declares the powers granted to Congress i. These include the power to declare war# enter into treaties# regulating state ersus state disputes. ii. There were conflicts among the states that pree2isted the Be olution among the colonies regarding boundaries. There was a fear that the )ritish could use this disunity among the colonies to turn them against each other. (. The Committee of the States was a 1uasi,e2ecuti e branch that managed the general affairs of the U.S. during the time Congress was not in session a. +anagement of day to day affairs. b. Consisted of one delegate from each state. ! sort of plural e2ecuti e *. Do federal Audiciary was created# so the indi idual state courts had to handle all matters.
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4. There was a pro ision for an arbitration panel to decide on matters of international law. i. 5owers and Bights $. 5owers a. +any of the federal powers enumerated were powers necessary to unify the se eral states %common system of weights and measures# postal ser ice# roads# coinage# etc.' b. 5owers granted to states i. Do federal power to raise money was enumerated. The indi idual states had the responsibility to ta2. ii. !lso the state had the responsibility to raise troops. c. Do general power to regulate economic affairs or trade. d. So the powers of the central go ernment were fairly limited under the !rticles. (. Bights a. Dot much is said about the rights of citi;ens in the document i. +ost of the state constitutions had declarations of rights# so it was e2pected that the states would protect indi idual citi;ens? rights ii. This go ernment did not operate based on indi iduals at allEcould not directly raise ta2es# could not raise a militia# etc. ii. Strengths/Wea-nesses $. Strength: This is the go ernment that created a new nation and fought the biggest military in the world.

(. Wea-nesses: Central go ernment?s inability to ta2# raise troops# regulate trade# carry out international obligations# pay bac- its debts. d. The United States Constitution i. The @riginal :ocument of $/0/ $. @riginally the Constitutional Con ention was supposed to be amendment to the !rticlesEbut it ended up being a new document. (. !nalysis a. 6ederalism i. Fargely addressed in !rticle I> $. !greement the states made amongst each other to accord full faith and credit and assure pri ileges and immunities to citi;ens of other states# e2tradition# etc. (. This article also ga e U.S. territories to federal control. The states ga e up their claims to these territories *. The states are assured a Bepublican go ernment %as opposed to a monarchy'. ! representati e democracy was assured to the states ii. There is no statement in the Constitution of what the legislati e powers of the states are. $. There was a concern that listing the powers of the states would thereafter ha e the effect of limiting them (. The problem has been that federal powers are listed e2pansi ely in the Constitution# but these run into certain state powers. The courts today ha e had problems determining what the
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content of state powers are in the absence of Constitutional te2t. iii. !rticle I# Section 0 lists Congressional powers $. There are some things new from the !rticles: the power to create tribunals# the ability to ta2 indi iduals rather than as-ing the states for contributions# authority to regulate both international and interstate commerce. (. The Decessary and 5roper Clause a. Dot a freestanding authori;ation for Congress to pass any law. It is an authori;ation for Congress to do things which might not be e2pressly listed. b. Under the !rticles# Congress did not ha e any implied powers at allG Whereas Dand5 Clause allows Congress to pass other laws necessary to carry out powers in the Constitution i . Supremacy Clause ma-es federal law trump state law . Congressmen are made a legislature for the nation# not Aust ambassadors from the states. i. So ereignty $. Under the !rticles# the states were so ereignH it was unclear if the federal go t. was. (. Under the Constitution# the states are still so ereign# but E So ereignty concei ed as not unitary

a. The states and the federal go t. can ha e so ereignty simultaneously. b. )oth: States are so ereign with respect to certain issues# and federal go ernment is so ereign with respect to other issues. *. 5reamble , We the people. a. This says that the citi;ens get to e2ercise so ereignty. So ereignty resides with the people. b. Since these <people= are writing the document# then the originally so ereign states may lose some of their so ereignty. There is that potential there. :ifferent from the !rticles# in which delegates wrote the document# ser ing more as <ambassadors.= b. !llocation of 5owers i. "enerally $. !llocation of powers occurs through !rticles I# II and III (. The notion that you can functionally di ide the powers of any go ernment. *. Fegislati e# e2ecuti e# and Audicial power# each branch ha ing powers allocated. 4. This is a +ontes1uieu notion ii. Fegislati e )ranch $. !rticle I
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(. It is immediately clear that this go ernment has legislati e powers. !FF legislati e powers are ested in the Congress. This implies that only the legislati e branch may e2ercise legislati e powers. *. )icameral legislature & ( houses a. @ne house is more representati e of <the people= and was intended to tracchanges in popular sentiment ery closely %short ( year terms'. 5eople were constantly able to change the ma-eup of the House. The House represents the will of indi iduals. b. The Senators were not elected# but appointed under the original Constitution. This changed with !mendment $8# ma-ing them elected 4. .ach house determines the rules of its own proceedings and is the ultimate authority o er its election and in disciplining its members. This is a protection of the independence of each house from outside influence. iii. .2ecuti e )ranch $. The e2ecuti e branch is much different from the !rticles a. The nature of the e2ecuti e is different b. Under the !rticles# the e2ecuti e power was in a committee# but under the Constitution the powers
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are ested in one man# the 5resident. The unitary e2ecuti e. c. Howe er# the 5resident may deputi;e other indi iduals to be agents on his behalf# carrying out e2ecuti e functions d. The concept is that a single indi idual is more efficient than a committee ma-ing decisions. !dditionally# there is a reduced diffusion of responsibility. If things go bad# we -now who to blame# the 5resident. (. !rticle II Section ( is in ( paragraphs. a. The first paragraph lists powers 5resident can use without any other input. b. Second paragraph lists powers that he must authori;e in conAunction with Senate appro al. This paragraph also constitutes not merely his powers# but his duties. i . 9udiciary )ranch %!rticle III' . Chec-s and )alances $. Separation of powers and system of chec-s and balances coe2ist under the Constitution & they must be reconciled (. Historical @rigin a. The notion of chec-s and balances comes from the )ritish go ernment

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i. +onarchy# house of commons and house of lords. There was o erlap among the * branches in terms of functions performed ii. 6or e2ample# the -ing had some legislati e power and set up courts of chancery. )ut the mi2ed go ernment wor-ed because of chec-s and balances iii. 6or e2ample# Commons could legislate# but could not legislate alone. King could appoint Audges# but Commons had some input as well. *. .2amples in U.S. Constitution a. 5resident can eto legislation. 5resident can call Congress into session. He can propose legislation. b. Congress can impeach the 5resident and Congress has to appropriate money for 5resident?s use. !lso the Senate has to consent to 5residential treaties and appointments. Congress has control o er the federal subAect matter Aurisdiction of federal courts c. The Audiciary has the power of Audicial re iew to nullify unconstitutional laws.
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c. Bights 5rotection i. The articles of the Constitution do not say much about indi idual rights protection. ii. There are snippets# for e2ample# limiting the punishment of treason# pro iding for Aury trials# no religious test for office# but they are really Aust bits n? pieces that are scattered. iii. The framers were aware of this. They were concerned that prohibitions might be implied to construe powers that are not there. The notion that to list rights might lead to them being limited. ii. !s +odified by the )ill of Bights# $/I$ $. Beason for e2istence a. The re1uisite number of states did ratify the Constitution# but the ratification was contro ersial. )ecause this was a much more powerful central go ernment. b. The states were troubled by the lac- of a declaration of rights c. ! deal was made. The framers made a promise to the states that if they ratified# the first order of business would be to propose a declaration of rights. They -ept that promise. The first thing Senate did was to propose $( !mendments# $J of which were adopted. The first $J are the )ill of Bights %$/I$'. (. 5urpose a. 6ederalist 5apers: )ill of Bights as unnecessary i. The 6ederalist papers were a collection that was written in support of the Constitution. 5ublished in newspapers ii. The papers suggested that indi idual rights would be protected by the democratic process
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$. The people get to ote for their representati es to represent their rights (. That political chec- is still there. So what does adding a )ill of Bights actually addL b. It gi es a second a enue of enforcing these rights i. !lternati e to enforcing rights through political processes ii. 5olitical processes tend to fa or large numbers of people. If the go ernment abuses a small number of people# it is harder to use the political process to enforce indi idual rights iii. !s +odified by the Beconstruction !mendments# $078,$0/J $. $*th !mendment abolished sla ery (. $4th dealt with pent,up issues %confederate war debts# etc.' a. Section $?s modern significance i. Con eyed citi;enship to e2,sla es ii. !lso# this section establishes constitutional means for people to go to the federal authorities if a state iolates a person?s rights $. 5rior to this amendment# the person would ha e to go to the state to address a iolation *. The language is that <no person= shall be denied due process. The protection is not Aust of citi;ens# but of all peopleE ery broad i . !s Understood Today $. !fter Beconstruction# the Constitution has e ol ed more based upon Audicial interpretation (. In $I*Js there was the Dew :eal. Though there was no change in te2t of the Constitution# the S.Ct. interpreted the
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Constitution differently# gi ing the federal go t. more power to regulate certain affairs. *. In $I8Js & $I/Js# there was an e2pansion of protection to indi idual rights. !gain based upon S.Ct. interpretation 4. Important 5oints: a. The te2t does not Aust gi e phrases# but also a conte2t. The pieces of the document fit together and are interrelated. b. The Constitution is an e ol ing document# changing o er time. @ur interpretation of it changes. The ne2t chun- of discussion will# therefore# be who interprets the Constitution. II. 9udicial Be iew of Constitutionality: 5ower and Constraints a. The @rigin of the 5ower of 9udicial Be iew i. Be iew of the Constitutionality of the !cts of @ther )ranches of the 6ederal "o ernment 1. Marbury v. Madison a. The notion that legislatures are not omnipotent and the Audiciary can re iew their acts i. The Court can declare a legislature?s action so contrary to Austice that the legislati e act is undone. $. This notion was not un-nown but was contro ersial prior to this case. (. There were some .nglish precedents for this notion *. This power was not e2plicitly stated in the Constitution because there was disagreement o er it. ii. Contro ersy

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$. What gi es laws legitimacy is the will of the people in electing the representati es (. If the I unelected Audges get to o erturn the legislati e enactments# then the will of the people is iolated. b. Case )ac-ground i. The federalists made a last,minute effort before lea ing office to pac- the courts with federalists through appointing Audges. $. @utgoing 5res. !dams made a number of appointments and signed the commissions (. 9ohn +arshall?s brother failed to deli er a number of the signed and sealed commissions. They were left on the des- of the new Sect. of State# 9ames +adison. *. 9efferson tells +adison not to deli er the commissions ii. +arbury did not ha e his commission deli ered to him# so he brought suit for a writ of mandamus. The case was brought in the Supreme Court $. 9ustice +arshall had a conflict of interestH he had been the Sect. of State under the pre ious administration and was now on the Court deciding if the commissions should be deli ered. (. There are some who ha e suggested that +arshall should ha e recused himself because of the conflict of interest. )ut he could not be re1uired to recuse himself.
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c. The Court?s <* issues= i. Whether +arbury has the right to the commission $. It is strange that the court addressed this issue first because the ultimate conclusion was that the court lac-ed subAect matter Aurisdiction to hear the case (. Through the court deciding the case on Constitutional grounds# the issue becomes finally decided. *. Court answer the 1uestion in the affirmati e a. The Court says that +arbury has a ested right to the commission because the document was signed and sealed. b. This was contrary to the common law rule that re1uired the commission to be deli ered for the right to be ested. 4. Court also mentions that the term of Austice of the peace is fi2ed at 8 years. !llegedly this is an irre ocable 8 year appointment ii. Whether +arbury has a remedy afforded by law $. . ery citi;en has the right to claim the protection of law whene er a right has been iolated (. Court answers the 1uestion in the affirmati e

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*. ! counterargument is that it was not a legal right that was iolated# but that this is a political issue and the Court does not ha e the right to address this issue 4. Court says that the deli ery of the commission is something that the 5resident has a legal duty to perform %ministerial duty as opposed to discretionary decision' a. If the act is a discretionary decision# the 5resident cannot be forced to deli er the commission b. If +arbury?s harm had resulted from failure to perform a discretionary act# there would be no remedy in court 8. The ultimate answer to the 1uestion of whether the law affords remedies for wrongs to indi iduals is <usually# but not always= iii. Whether mandamus from the Supreme Court is the appropriate legal remedy $. Whether mandamus is appropriate remedy a. 9udiciary !ct of $/0I i. The same people who wrote the Constitution were in Congress to pass this act ii. !llowed Supreme Court to issue writs of mandamus in cases <warranted by the principles and usages of law Mthe common law of .nglandN=.
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b. These common law re1uirements were: i. :irected to appropriate go ernmental official ii. 5erson see-ing writ must ha e no other a ailable remedy iii. +atter of ministerial duty and not discretionary choice. c. The re1uirements are met# so the mandamus is the appropriate remedy d. Ouestion answered in the affirmati e (. Whether the Court can issue the mandamus is a separate issue# really d. Whether mandamus can issue from Supreme Court i. Statutory !uthori;ation $. 3es# there is statutory authori;ation for the Court to e2ercise original Aurisdiction# the court says. (. Howe er# the 9udiciary !ct of $/0I gi es the Court appellate# not original# Aurisdiction o er writs of mandamus# according to the plain language a. Donetheless the Court interprets the statute as authori;ing original Aurisdiction to issue writs of mandamus b. This interpretation is 1uestionable ii. Constitutional !uthori;ation
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$. The Court says since cases o er which the Court has original Aurisdiction are enumerated in !rticle III Section ( of the Constitution# this is an e2hausti e list. It is a ceiling# rather than a floor. a. There may be arguments that the list is actually illustrati e b. Howe er# the te2t of the Constitution seems to indicate the list of original Aurisdiction cases is e2hausti e (. Therefore# the Court says that the portion of the 9udiciary !ct of $/0I gi ing original Aurisdiction o er issuing writs of mandamus is unconstitutional a. This is an interesting conclusion# in that the legislature had seen the !ct as constitutional when it passed the act b. The 1uestion in this case becomes who has the power to determine the constitutionality of a legislati e !ct c. The Court asserts that it has the constitutional power to determine a legislati e act unconstitutional iii. !rguments that +arshall ma-es that the Court has the power to refuse to enforce legislation that it deems unconstitutional $. The framers wrote down limits on the powers of Congress & topics they could legislate on a. The framers would not ha e written them down if they were not intended to be limited
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b. )ut this argument may not be con incing & the limits may ha e been guidelines to future Congresses# rather than con eyance of authority to the courts to enforce the limits c. +aybe the limits on the Congress were meant to be self,enforced# by the Congress upon itself (. Dature of the Audicial function a. To determine what the law is b. 9udicial interpretation c. !n argument that <we can?t help but interpret= i. Ha e to loo- into the meaning of statutes to apply the statute to the case in front of the Court ii. !nd if there is an inconsistency between legislation and the Constitution# the Court must enforce the Constitution *. Te2tual argument a. The Constitution says that the Court gets to hear cases arising under the Constitution i. This has to mean that the Court was empowered to decide whether or not legislation is Constitutional

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b. 9udges ta-e an oath to uphold the Constitution i. The counterargument is that the legislature and the e2ecuti e branch ta-e the same oathG c. Supremacy Clause i. The Supreme Faw of the Fand consists of the Constitution# as listed first# and then statutes enacted in pursuance of the Constitution# as listed second in the te2t ii. The idea that statutes are therefore subordinate to the Constitution i . !rguments we might ma-e today in fa or of the Court?s opinion $. In order to retain the relati e e1uality of power among the three branches# we should infer the Court?s power of Audicial re iew a. There is the possibility that modernly the Court has achie ed more power than may ha e been intended (. Society has remained prosperous o er the past (JJ years under the regime of Audicial re iew *. +aybe Audges are more 1ualified to interpret the Constitution since they ha e a legal education

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4. Court is more independent because it does not feel immediate political effects of its decisions 8. Court is obligated to come up with a rational Austification for its decision# rather than a Congressman# who does not ha e to gi e a plausible opinion for his ote in fa or of a law 7. The minds of the Supreme Court Austices are a slowing factor against change a. 9ustices are trained under one regime of thin-ing and then get appointed when older b. Court decisions reflect a legal education and ideal from an earlier generation c. ! chec- on change /. . en though the framers did not put this power specifically in the Constitution# it was something they understood a. !n illegitimate argument in the $0th century because of the notion that we loo- to what someone said# not what they meant# in framing a document . Ouestion answered in the negati e ii. Be iew of the Constitutionality of the !cts of State and Focal "o ernments 1. Martin v. Hunters Lessee a. 6acts

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i. The Treaty of 5aris that ended the war had a pro ision that the assets of loyalist )rits could not be sei;ed ii. Therefore# the >irginia act of sei;ure iolated a federal treaty iii. The Supremacy Clause ma-es the Constitution and treaties/statutes made in pursuance thereof the supreme law of the land b. 5rocedural )ac-ground i. >irginia state supreme court holds that the parcel of land belongs to Hunter?s lessee# not the )ritish landholder ii. >irginia court claims that $/0I 9udiciary !ct# Section (8 is unconstitutional# which re1uires that the Supreme Court rule on Constitutionality of state decisions that are in contradiction of federal treaties/statutes/the Constitution iii. S.Ct.: >irginia did not ha e title to the land# so the sei;ure of the land was unconstitutional. Court ordered >! to re erse. i . >! court refused# and the issue went bac- to the S.Ct. c. >irginia?s !rguments i. The state is a separate so ereignH S.Ct. does not get to tell the state what the law means ii. .2pressio unius argument. The drafters did not state the S.Ct.?s right to e2ercise appellate authority o er state courts. d. Holding: S.Ct. is supreme interpreter of the Constitution and has appellate authority o er state Audgments interpreting the Constitution e. S.Ct. Holding arguments
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i. Te2tual: The framers e2pected that state courts would hear Constitutional cases. The S.Ct.?s appellate Aurisdiction e2tends to all cases arising under the Constitution. Therefore# the S.Ct.?s appellate Aurisdiction e2tends to state court Constitutional interpretations. ii. Structural: States are only partially so ereignH there are chun-s in the Constitution in which the states are forced to surrender some of their so ereignty iii. 5olicy: If each state is allowed to ma-e its own e2clusi e interpretation of the Constitution# there will be no uniformity in interpretation in the se eral states $. 9udge Story thin-s that in the long run# differences must be reconciled (. S.Ct. must step in to resol e di ergences *. There is no guarantee that Audges of e1ual learning will reach the same conclusion in different states a. )ecause maybe there is no single direct answer b. Constitutional interpretation leads to different conclusions c. This seems to brea- from the +arbury reasoning# which was that the S.Ct. stated what the ob ious interpretation of the Constitution was iii. 9udicial .2clusi ity in Constitutional Interpretation $. +arbury
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a. ! narrow reading of +arbury does not find the Court saying that the S.Ct. is e2clusi e in interpreting the Constitution i. The Constitutional interpretation only binds the parties in ol ed in the case ii. 9udicial re iew is simply a byproduct of a court?s duty to decide cases within its Aurisdiction# including cases arising under the Constitution b. ! broad reading is that courts ha e special competence to interpret law according to the Constitution and so they are the ultimate# supreme interpreters of the Constitution (. )inding upon .2ecuti e )ranchL a. Se eral 5residents ha e 1uestioned S.Ct.?s supremacy in interpreting the Constitution b. 9efferson# 9ac-son# Fincoln# and 6:B c. .2amples i. The :red Scott decision held that Congress lac-ed the authority to pre ent sla ery in the territories ii. Fincoln ocali;ed opposition *. .2clusi ity is contro ersial a. . eryone agrees that Constitution is supreme law of the land b. )ut notion that Supreme Court interpretations of Constitution are supreme law of the land is contro ersial c. 4. Cooper v. Aaron a. 6acts
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i. )rown . )oard of .ducation has been a S.Ct. decision that o erturned 5lessy . 6erguson and re1uired integration of the schools ii. !r-ansas school district refused to integrate iii. 6ederal trial court ordered integration i . "o ernor and state legislature obAected and said that S.Ct.?s interpretation of the $4th !mendment in )rown . )oard was not binding on the states . !r-ansas national guard pre ents integration i. 6ederal trial court determined that it would delay the order ii. 5etitioners appealed to circuit court and case e entually went to S.Ct. b. The Court holds that the S.Ct. interpretations of the Constitution are supreme law of the land. Syllogism: i. Constitution is supreme law of the land ii. Court?s pro ince is to interpret Constitution iii. Therefore# S.Ct. interpretations are supreme law of the land 5. Dickerson a. Dickerson v. United tates i. )ac-ground $. Miranda had been a S.Ct. decision re1uiring police to gi e certain warnings before statements by a defendant can be admitted into e idence (. The S.Ct. said it was announcing an interpretation of the 4th !mendmentH the +iranda ruling was a Constitutional one
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*. This was a prophylactic rule to protect 4th !mendment rights 4. Then Congress passed $0 USC *8J$# which only re1uired a statement to be oluntarily made to be admissible a. !pparently Congress belie ed that the +iranda ruling was not re1uired by the Constitution b. S.Ct. said that Congress cannot by statute change the meaning of the Constitution by passing a statute o erruling a S.Ct. interpretation ii. Whether or not +iranda ruling goes beyond the Constitution is the 1uestion $. S.Ct. asserts that +iranda does not go beyond the Constitution# and is re1uired by the Constitution (. Therefore# Congress may not o erturn a S.Ct. Constitutional decision by passing a statute iii. Types of arguments the S.Ct. may ma-e: $. Te2t (. Structure a. Whole go ernment b. :ocument *. 6ramer?s intent 4. 5recedent a. Fegal b. Historical
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8. 5olicy b. Constraints on 6ederal 9udicial 5ower i. Statutory and 5olitical Constraints $. 5olitical Constraints on the Court a. Domination and Confirmation 5rocess i. 9udges ha e to be appointed by the 5resident and confirmed by the Senate ii. )efore $I0(# the 5residents did not refuse to appoint based on potential Audges? iewpoints iii. +odernly# 5residents do refuse to appoint based on potential Austices? ideologies i . Senate refused to confirm Beagan?s appointment of )or- because of his ideology b. Congress :etermining Si;e and )udget of Court c. The !mendment 5rocess i. Has only been used 4 times to o erturn S.Ct. decisions d. Impeachment i. Has ne er happened e. Fimited 5olitical Capital i. :o not control the troops# the money# etc. ii. What gi es them power is the belief that if a political actor defies the Court# the people will re olt iii. Howe er# if the Court renders decisions that are ery unpopular# their power erodes f. .2ceptions to Supreme Court !ppellate 9urisdiction

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(. Congress? Control o er Court?s SubAect +atter 9urisdiction %S+9' a. !rticle III# Sect. ( sets out the -ind of federal cases that courts can hear i. Congress cannot e2pand the S+9 of federal courts ii. Whether Congress can limit the S+9 $. !rt. III# Sect. ( says that the Audicial power of the Court shall e2tend to all cases arising under the Constitution a. This is an argument that the S+9 may not be limited (. !rt. III# Sect. ( also says that Congress can ma-e certain e2ceptions a. This is an argument that the S+9 may be limited by Congress *. 9urisprudence has held that Congress can limit the S+9 of the federal courts b. !" #arte McCard$e i. 6acts $. Under Beconstruction Faws# defendant was incarcerated for publishing incendiary and libelous articles (. :efendant brought a writ of habeas corpus under a Congressional act allowing a case to be heard where the defendant is restrained in iolation of the Constitution *. Congress was concerned that if this case got to S.Ct.# the S.Ct. might rule that all of the Beconstruction !cts were unconstitutional
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4. Congress then passed an !ct remo ing the Court?s power to hear cases in o-ing the subAect matter of the present case ii. Issue: Whether Congress can pre ent the Court from hearing the case by repealing the statute upon which the Court?s S+9 is based $. Holding: 3es (. +erely repealing the !ct allowing habeas corpus does not remo e the Court?s habeas corpus powerH only the $07/ statute mechanism has been remo ed for gi ing habeas corpus reliefH :efendant has other remedies *. Howe er# Congress cannot pass a statute that pre ents a person from see-ing a court remedy for iolation of a Constitutional right ii. Constitutional and 5rudential Constraints: The <Case or Contro ersy= Be1uirement and its :eri ati es $. The prohibition on deciding <political 1uestions= a. +arbury i. :rew a distinction between political discretion and legal mandates ii. The Court will not command another branch on an issue where the other branch uses its discretionary power b. %aker v. Carr i. 6acts $. Tennessee had drawn districts for its state legislature and had not re ised them since $IJ$
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(. 5opulation shifts brought une1ual distribution of population in the oting districts *. 5laintiffs bring the suit under .1ual 5rotection Clause# that ha ing improper district si;es dilutes a citi;en?s oting right ii. Whether or not this is a political 1uestion $. +aAority found it not to be (. Dot e erything that in ol es a political issue is a political 1uestion 3. Six earmarks of a political question a. Constitutional demonstrable te2tual commitment of an issue to a different branch of go ernment b. Fac- of Audicially disco erable standards for resolution i. If there is no articulable legal principle then the decision is Aust a matter of discretion/choice c. Impossibility of deciding without an initial policy determination i. 6or e2ample# someone brining a suit that the statutorily set minimum wage is too low because it puts people beneath an acceptable standard of li ing ii. Society ma-ing rules for itself that in ol e

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cost/benefit analyses are political 1uestions d. Fac- of respect for other branches i. Interference with core powers of other branches ii. When the court is in ited to inter ene in the procedures of a coordinate branch iii. 6or e2ample# 5resident has almost sole authority to determine the inner wor-ings of the e2ecuti e branch e. When the nation needs to speawith a unified oice among the branches to a oid potential of embarrassment f. When the nation needs to act 1uic-ly 4. If arguing that this is a political 1uestion: a. There may be a lac- of standards that shows which districting schemes are legal and which are not b. +ay be an inappropriate policy 1uestion# in that districting schemes are based on political theory c. #owe$$ v. McCor&ack i. 6acts

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$. House rep accused of misappropriating campaign funds (. The House wanted to e2clude him from ha ing a seat in the House *. He brought suit saying this was improper ii. Whether the 1ualifications of admitting a House Bep constitutes a political 1uestion $. Support in fa or of political 1uestion a. Te2tual commitment: .ach branch shall be the Audge of the 1ualifications of its members b. Fac- of respect for a coordinate branch: Court would inter ene in inner disciplinary proceedings of the legislature (. Court held this was not a political 1uestion a. The te2tual commitment did not include anything other than age# citi;enship# etc.# the 1ualifications for office b. !lso# after Congress had to seat him# then there were other mechanisms# i.e. the House doing an ethics in estigation of the Bep d. 'o$dwater v. Carter i. 6acts $. Di2on started negotiations with China (. U.S. had entered into se eral treaties with Taiwan
**

*. The 1uestion was how such a treaty can be abrogated ii. Faw $. Constitution says a treaty is negotiated by the 5resident and then (/* of the Senate must concur (. Constitution does not say how to get out of a treaty iii. Issue: Whether the Senate had to be consulted to abrogate a treaty i . Whether this was a political 1uestion $. 3es (. There needs to be a unified oice on whether or not the treaty will remain *. The Constitution does not specify an issue as to how this should be resol ed# so there is a lac- of Audicially determinable standards 4. Inappropriate policy 1uestion because treaties may need to be abrogated in one way in one instance# and another method of abrogation may be necessary in other situations e. (i"on v. United tates i. 6acts $. Impeachment of a federal Audge (. Constitution ma-es the House the sole power to impeach and the Senate ha ing the sole power to try impeachments ii. Issue: Whether a committee of the Senate is sufficient to try the impeachment
*4

iii. Whether a political 1uestion $. +aAority says yes (. The Constitution says that the Senate shall ha e the <sole= authority to try impeachments# so the Court cannot inter ene. This is a matter of internal processes. *. There would be policy 1uestions it would be inappropriate for the Court to decide a. The Senate has the authority to determine what constitutes an offense worthy of impeachment b. 6ramer?s intent argument: That the criminal proceeding and the impeachment trial are two separate proceedingsH the Court should stay separate from the impeachment proceeding (. Case or Contro ersy Be1uirements a. 5rohibition on <ad isory opinions= i. The Court declined comment on Washington?s war powers $. 5resident wanted ad ice on whether or not to remain neutral from the war between .ngland and 6rance (. The Court says that the 5resident can see- ad ice from his own e2ecuti e departments# per the Constitution ii. !rticle III mentions that the Audicial power e2tends to cases and contro ersies $. The Court sei;ed upon these two words: cases and contro ersies# reading them as words of limitation
*8

(. The Court can only inter ene if presented with a <case= or <contro ersy= a. Beal parties with real and opposed interests b. !rgument about how the law should apply to a concrete set of facts already in e2istence c. !ctual inAury or inAury li-ely to happen in the immediate future iii. Beasons for the prohibition $. Fimiting Constitutional interpretation through the Court to when there are actual parties with real interests at sta-e (. Interpretation only ma-es sense with concrete facts *. It helps the Court a oid political contro ersies & deciding based upon principles rather than a set of facts b. Timing issues: <mootness= and <ripeness= i. +ootness $. When the court?s decision will no longer ha e any impact in the real world (. :ue to changing circumstances# the dispute has effecti ely been ended *. .2ample: a. If a prisoner brings a habeas corpus petition see-ing to be released# if he is released while see-ing habeas corpus# the habeas petition is moot

*7

b. With a suit for specific performance# if the promisor dies# the case is moot 4. De)unis v. *de+aard a. White male refused law school admission and claimed racial discrimination b. Trial court granted preliminary inAunction while the case was pending to allow him admittance c. )y the time case got to Supreme Court# the guy was in his last semester# so the case was moot 8. Ashwander a. If case can be resol ed on either Constitutional or non, Constitutional grounds# always will choose to resol e the case under non,Constitutional grounds 7. .2ceptions to +ootness doctrine a. ,oe v. -ade i. )y the time the case reached the Court# the woman had already gi en birth# so the claim that the state was not allowing her to ha e an abortion was moot ii. The case says that the human gestation period is shorter than the time the appellate process ta-es# so all such cases would be
*/

moot without this e2ception b. The .2ception: ! set of cases that is are capable of repetition yet e ading re iew. i. Boe ii. !lso# when the cessation of the acti ity being sued upon is at the discretion of the defendant %sue for preliminary inAunctionH defendant stops# but then starts later again' c. Continued harm to the plaintiff or li-elihood of reoccurrence will defeat the mootness issue ii. Fac- of Bipeness $. When the facts ha e not de eloped enough for the Court to answer the Constitutional 1uestion being as-ed a. @ne factor is the harm if the Supreme Court waited to decide the case b. Waiting itself to decide the case has a <chilling effect= on pre enting people from iolating the statute (. Hypo %Mitche$$' a. Statute passed that prohibits federal employees from engaging in political acti ities i. To pre ent 5residents from putting all the
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campaign wor-ers on the federal payroll and then ha ing the employees campaign for 5resident ii. +aybe Constitutional problem with this & the $st !mendment b. Constitutionality of the !ct went to the Supreme Court i. Three plaintiffs had not worn political buttons and handed out pamphlets because they were afraid of disciplinary action ii. The court said the case was not ripe# because the court did not -now the acti ities they would ha e engaged in or what response they would ha e gotten from the ci il ser ice authorities *. .2amples: a. Statute that pre ents farmers from dumping fertili;er & any challenge to the statute is unripe until someone tells the farmer to stop c. The re1uirement of <standing= i. :efinition $. Who has the right to raise a certain issue in court

*I

(. .lements mandated by the <case or contro ersy= re1uirements of !rt. III. Sect. ( a. Injury in fact or other personal stake in the outcome i. @riginal notion was that someone had to be depri ed of a legal right. ADA# * case & the data processing companies that rented out time using computers sued ban-s that were selling e2cess use of computer time. !lleged that ban-s had unfair competiti e ad antage. The court said that e en though there was no legal right# the arguable iolation of an !ct was harming them %law pre enting ban-s from entering into certain businesses'. ii. It came to be that any inAury would count & psychological# aesthetic# etc.# e en if the inAury was not monetary. iii. Congress can create a legal entitlement# which can be iolated# and if iolated gi e rise to inAury in fact i . .2ample of personal sta-e: !nyone can sue if they ha e -nowledge of a
4J

business defrauding the go ernment# and the person gets $/* of the erdict amount M<bounty pro ision=N !. Causation !etween the injury and the legal "iolation !eing alleged i. C,A# case: Claim was against the railroad for a fee charged to transport lumber. !llegedly# one thing would lead to another# e entually resulting in e2cess trash in par-s. The chain of causation was far remo ed# but the court bought it.

ii. 6ederal go ernment ga e ta2 benefits to segregated schools# which made segregation more difficult. The court said there was no causation and therefore no standing. c. #he possi!ility that there can !e a real remedy $redressa!ility% *. 5rudential .lements Mgenerally a good ideaN a. &o third'party standing i. The third party might not consider himself to be inAured
4$

ii. The third party might ha e some other iew of the harm iii. The third party might want to sue for himself i . Someone with his own personal interest at sta-e will do the best Aob . .2ample# bar,owner sued because of a statute that prohibited boys from drin-ing# but not girls# at a certain age. The bar, owner claimed lost re enue because of the statuteH the court allowed an e2ception to the third, party constraint. !. &o standing !ased upon generali(ed injuries i. If the plaintiff has no inAury greater than that of any other citi;en ii. )ecause the political process %election of Congressmen' can remedy this iii. .2ception# allowing ta2payers to sue because the go ernment has misspent funds ii. Why ha e the re1uirement $. The plaintiff should be one that has a sta-e in the contro ersy# someone who will be moti ated correctly
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(. Dot Aust an abstract political type of 1uestion iii. Lu.an v. De/enders o/ -i$d$i/e $. 6acts a. :efenders of Wildlife sue to ha e the original interpretation of the .ndangered Species !ct reinstated: that the Secretary of the Interior has to consult with federal agencies about their actions not Aust in the U.S. but also abroad b. :efenders claim that if a regulation is not promulgated that interprets the .S! thusly that they will no longer be able to iew and enAoy endangered species because federal agencies are not re1uired to ensure that their acti ities abroad are not -illing off endangered species (. Court says that it is enough that one person out of the group %:efenders of Wildlife in this case' suing ha e standing *. !bsence of concrete inAury a. Scalia says that the desire to obser e or use an animal species for aesthetic purposes is <undeniably a cogni;able interest for purpose of standing= b. Howe er# in this case there was no immediacy or imminence of the possibility of inAury
4*

c. The plaintiffs did not buy a plane tic-et or do anything affirmati ely suggesting that any time in the imminent future they would be in a place to obser e endangered species abroad d. Compare with cho-e,hold case i. Statute allowed police to cho-e,hold arrestees ii. "uy who had been subAect to this torture sued iii. He lac-ed standing because the inAury had already occurred & did not ha e standing to sue for preliminary inAunction because there was no imminence of inAury 4. Fac- of Bedressability a. 5rospecti e effect only & if the court ordered the agencies to not fund proAects that would endanger animals# the new regulation would ha e prospecti e effect only and not heal past harms b. Wrong party & The Secretary of the Interior is the party in the suitH if the court ordered the secretary to issue a new regulation# there is a 1uestion as to whether the agencies will be bound by the regulation 8. 5rocedural InAury
44

a. Congress cannot pass an act purporting to gi e e eryone standing unless the nature of the concrete inAury is defined or the plaintiff has a personal sta-e in the outcome b. !llowing Congress to do this would iolate the case or contro ersy re1uirements of the Constitution in !rt. III# Sect. (H the re1uirements re1uire that there be a concrete inAury i . Massachusetts v. !#A $. 6acts a. State suing to re1uire the .5! to raise the emissions standards for automobiles b. +ass. claims that the failure of .5! to raise the standards is causing global warming# which has led to a measurable increase in the height of the seas# encroaching on the +ass. shore (. !rguments for +ass. standing# that there is a concrete inAury a. +ass. owns the landsH it has a proprietary interest that is being damaged through the .5! causing global warming# which causes loss of shore to the sea b. 5arens 5atriae & the state has the right to sue on behalf of its citi;ens in their interests c. So ereignty & +ass. has a law, ma-ing interest as a so ereign
48

*. Court a. Holds that there is a concrete inAury to the plaintiff# who does ha e standing b. Causation and Bedressability i. The dissent?s argument against is that the .5! is not the sole cause of the rise of greenhouse gas le els in the atmosphere. ! court inAunction re1uiring the .5! to change its standards would ha e a negligible impact on the rise of the waters. @ther countries will continue to emit large amounts of gases. !lso# causation is too attenuated# in that there are too many other factors contributing to global warming for the alleged .5! actions to be said to cause +ass.?s inAury. ii. The maAority holds that Aust because the remedy is <partial#= the remedy does e2ist and standing e2ists. 9ust because defendant?s action contributes to small amount of plaintiff?s alleged harm does not mean causation is lac-ing. III. 6ederalism: The !llocation of 5owers )etween the 6ederal and State "o ernments a. Constitutional "rants of Begulatory 5owers to the 6ederal "o ernment
47

i. The basic concept: Interpreting Constitutional "rants of 6ederal 5ower $. Beasons for split so ereignty a. Fiberty protection i. Ha ing both states and federal system to protect due process of law ii. @nly wor-s in one direction. If the state depri es of due process# the federal go t. can gi e remedy. b. +ore direct democracy i. In theory we are more directly connected with the state than national go ernment# but this may not necessarily be true ii. There is the possibility of more direct participation in go ernment with a state system c. .fficiency i. Useful to ha e go ernmental units that can go ern smaller areas of land d. >ote with the feet i. Citi;ens can lea e a state if they do not li-e the way one state?s laws are e. 6osters inno ation i. 5ossibility of e2perimentation ii. @ne state tries out something and other states can either follow or reAect the policy based on whether it succeeds or fails (. The balance of power has changed o er time a. . ery time there has been a national crisis# the power of the federal go ernment has grown
4/

b. In our day# the federal go ernment is stronger than when the Constitution was framed c. This creates a problem: the framers wanted one direction and the changed society wants another direction d. 6or e2ample# the ban-ing crisis of the $I*Js: the states were incompetent to handle it# so the federal go ernment stepped in e. @ne maAor conflict is whether or not to gi e more credence to the framers? intent or to modern interpretation 0. McCu$$och v. Mary$and a. )ac-ground i. The first national ban- had been established to recei e ta2 re enues# issue currency# loan the ta2 re enues recei ed to other ban-s# etc. ii. The ban- was organi;ed as a corporation. Dormally corporations are go erned by state law. That federal law would create and go ern a corporation %ban-' was a no el idea. iii. Contro ersial from its inception $. The ban- was meant to stabili;e the currency to pre ent inflation. Inflation tends to help farmers and hurt a mercantile economy. The north was mercantile and the south agrarian. i . . entually first ban- went out of e2istence. 6ollowing this bad economic times followed. b. 6acts i. Second ban- of the U.S. was established ii. In $0$0 +aryland adopted a law re1uiring any ban- operating in the state not chartered by
40

+: to pay a ta2 %there was only the second U.S. ban- that fit this description' iii. The ta2 was hefty. . ery single iolation resulted in a huge ta2. +aryland was trying to run the ban- out of town. +: wanted local institutions to get the depositsG i . +cCulloch refused to pay the ta2. Charges were brought against him. . Two issues $. :oes Congress ha e the power to incorporate a national ban-L (. Can the State of +aryland ta2 the banconstitutionallyL c. Court i. :oes Congress ha e the power to incorporate a national ban-L $. The first ban- was successful and Congress lawfully passed it into e2istence. This is an intro pro iding e idence that the ban- is a useful thing# to persuade that this is constitutional. (. +aryland argues the agency theory: the states created the national go ernment under the Constitution and that therefore the principal# the states# ha e the ultimate authority. a. +arshall responds that though the Constitution was enacted by state delegates# the delegates were elected by <the people= b. Therefore# the allocation of power is not something the states can decideH the allocation of powers
4I

to the states is something done by the Constitution *. +aryland says that !rt. I Sect. 0 does not list the power to charter a ban- as an enumerated power. !nd the federal go ernment can only do what is enumerated. a. Court?s rebuttal is that the $Jth !mendment language is deri ed from the !rticles# but different from them. !rticles said powers not e2pressly gi en to Congress are reser ed to the states. $Jth !mendment dropped the word <e2pressly.= b. The $Jth !mendment says the feds can do whate er the Constitution allows them to do# but this doesn?t answer the 1uestion of whether or not the feds are limited to enumerated powers. c. $Jth !mendment opens up the possibility of implied powers. d. If the Constitution listed out the details of e ery single power the feds ha e# this would create a comple2 and unreadable Code. Therefore# there must be implied powers. 4. Fogically# when creating a so ereign go ernment to accomplish certain things# there must be the power to do the things that they are gi en. 8. :efining <necessary= in the Decessary and 5roper Clause
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a. When the a erage person says <necessary= he actually means something different. The word is used more broadly than only that which is direct and simply needed to carry out enumerated powers b. :istinguished from the phrase <abso$ute$y necessary= as used elsewhere in the Constitution i. Where the framers only wanted the fed to act where it was absolutely necessary# they clarified & therefore in the DP5 Clause Aust saying <necessary= is some lesser degree of necessity ii. ! counterargument is that <necessary= cannot be modified & it only means one thing c. 5olicy argument & it would be a good thing to not gi e <necessary= too restricti e a meaning d. .2ample of the post office i. Constitution gi es the power to establish post offices# but not the power to issue stamps. ii. Issuing stamps is not indispensably necessary# but it is necessary and proper.

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iii. Therefore necessary should be defined to mean <useful= or <appropriate= e. Interpret the phrase <necessary and proper= together# the combined meaning of the words to mean <useful= i. Counterargument is that this interpretation really ma-es the word <necessary= mere surplusage f. Decessary and proper clause is an enlargement# not a restriction# of federal power. The clause is located at the end of Section 0# which contains the list of federal powers. 7. The ends and the means a. +arshall says that as long as the end %one of the enumerated powers' is being sought# then as long as the means are necessary and proper# the means are o-ay b. +arshall says that the end%s' sought here consist%s' of the following enumerated powers: Collecting ta2es# aiding in borrowing money# establishing the alue of coinage c. The means# incorporating a second national ban-# is necessary and proper to lead to these ends

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ii. Is +aryland Constitutionally prohibited from ta2ing the ban-L $. +aryland argues it has the power to ta2 under the general police powers it has. +aryland also would argue that the list of prohibitions that states cannot ta2 does not include a prohibition from ta2ing federal institutions# i.e. ban-s. (. +arshall: a. States impliedly ga e up any powers that would be inconsistent with the powers of the national go ernment. The federal go ernment has an implied power to incorporate a ban-# and since the state?s ta2ation of the ban- threatens the federal power# the ta2ation is unlawful. b. The power to ta2 is the power to destroy. To allow the state to ta2 the federal institution would be inconsistent with the e2istence of the federal go ernment. c. When the federal go ernment imposes burden on the states# Congress does this# and Congress is elected by the 5eople. )ut when +aryland does something that imposes a burden on the national scene# only +aryland oters elected the +aryland legislature. Do political chec- e2ists on the state legislature. d. Slippery slope argument: If +aryland is allowed to ta2 the
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ban-# it might ta2 a ;illion other federal powers. 4. 1er& Li&its v. 1hornton a. "enerally i. !r-ansas passed an amendment to the constitution of the state limiting representati es as to how many terms they could run for office in Congress ii. Court held the amendment iolated the Constitution b. Constitution specifies the 1ualifications for being in Congress as age# citi;enship and residence as re1uirements for office i. The Constitution is silent as to whether term limits are 1ualifications ii. !r-ansas argues that under the $Jth !mendment# since the power to establish term limits is not reser ed to the fed.# the states ha e that power iii. +aAority arguments $. There is the need for uniformity in setting Congressional 1ualifications (. Congressmen are meant to be independent of their home states# as indicated by the Constitution. This might mean independence from state authority to set 1ualifications. *. The $Jth !mendment does not apply: 5owers cannot be <reser ed= to the states because the states ne er had that power to begin with# historically a. The states ne er had the power to establish Congressional
84

1ualifications before the Constitution was ratified b. ! counterargument is that <reser es= refers to the police powers that are inherent to the state go ernments ii. The . olution of 6ederal 5ower Under the Interstate Commerce Clause $. "eneral bac-ground a. The power to regulate is seen as included in the generali;ed police power that is possessed by the states b. The notion is that e ery go ernment has certain powers# including police powers# Aust by the fact it is a go ernment c. 5olice power includes power to regulate health# safety# and welfare %and sometimes morals' d. Under the !rticles of Confederation# the generali;ed authority was presumed to ha e remained with the states e. With the Constitution came the commerce clause# granting power to regulate among the states to the federal go ernment i. Howe er# the states still possess the general police power to regulate ii. States did not gi e the federal go ernment general police power iii. If the federal go ernment wants to e2ercise police power# there must be some direct te2tual commitment in the Constitution# unli-e the states who ha e general police powers without Constitutional commitment f. Two types of 1uestions:
88

i. 6ederal go ernment wants to act: Is the act authori;edL %chapter * & Constitutional authority' ii. State go ernment wants to act: Is the act prohibitedL %chapter 4 & Constitutional prohibitions' (. The original claim for e2pansi e federal powers: the +arshall court and 'ibbons %the CF!SSIC!F iew' a. 'ibbons v. *+den i. 6acts $. The D3 legislature granted licenses to Fi ingston and 6ulton as ha ing e2clusi e rights to operate steamboats in D3 harbor (. Fi /6ult ga e a license to @gden# who began operating a monopolyH "ibbons was @gden?s partner who then left and obtained a federal coasting license a. The federal coasting license is a license to engage in either international commerce or to go down the U.S. coast b. "ibbons used the license to set up a competing ferry in D3 harbor *. @gden obtains a state court inAunction to force "ibbons to stop operating 4. "ibbons appeals to U.S.S.Ct.# arguing the monopoly to be in iolation of federal law ii. Court $. How to interpret the Commerce Clause
87

a. Te2t: <To regulate commerce with foreign nations# and among the se eral states# and with the Indian tribes.= b. :efining <commerce= i. The narrow interpretation would be buying and selling of goods# which would not include a steamboat license ii. The broadest interpretation would be all economic acti ity iii. +arshall defines commerce somewhere in between these two interpretations. i . He says that commerce certainly includes na igation because there can be no transaction unless the thing is deli ered %in this case people' c. :efining <among the states= i. Darrowly: The terms and conditions of border crossing ii. 6or the feds to effecti ely regulate# they ha e to reach into the doc-s that are completely within Dew 3or- and regulate what occurs inside Dew 3or8/

iii. )roadly: !nything that affects more than one state i . +arshall ta-es the broad interpretation. d. :efining <regulate= i. Darrowly: Stating terms and conditions ii. )roadly: 5lenary. If Congress has any power at all# they can do anything they want. (. Holding: The federal law gi ing "ibbons the license to operate in all the waters is Constitutional under the commerce law. )ased on the Supremacy Clause# since the federal license is alid# this is according to supreme law of the land and the D3 statute is in alidated. *. What if there was no federal licensing lawL Can the D3 law be alid because of the absence of the law# though Congress has the power to regulate in this areaL a. This case did not ta-e the stance that if the feds can act# that the states cannot act. b. This case argued that there are concurrent powersH unless and until there is a conflict# the feds can act also. b. :irect . Indirect .ffects Test %U. . v. !.C. 2ni+ht' i. 6acts
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$. Sherman !ntitrust !ct made monopolies illegal (. The Sugar Trust bought up other companies and came to control I0Q of sugar production in the country *. The trust argued that Congress could not regulate this acti ity because it was outside of the commerce power ii. Issue: :oes the Commerce Clause allow Congress to regulate manufacturing $. !rguing for regulation a. This is commerce# in that a monopoly on a good causes a high price# which leads to a reduction in consumption b. This is among the states# in that monopolies affect more than one state c. This falls within the meaning of <regulate= (. The court says there is no authority to regulate a. Court says that production/manufacturing is not interstate commerce. The producer?s intent %to sell items outside the state' does not ma-e it part of commerce. 5roduction includes farming# mining# etc. b. The fi2ing of prices by manufacturers will ha e an indirect result on interstate commerce. )ut Congress cannot
8I

regulate acti ities that do not ha e a direct effect. *. It is hard to define what the distinction is between direct and indirect effects 4. It seems li-e the feds being able to regulate in this instance is a desirable result# because no one state could regulate a multistate monopoly a. Howe er# the court did not want a slippery slope. The Court thought that if the feds could begin to regulate primary production# that the feds would completely displace the state from a traditional area of state regulation. c. Substantial .conomic .ffects Test %Houston ,ai$road Case' i. 6acts $. Bailroad charged much lower rates to ship between points within Te2as than from a point within Te2as to Fouisiana (. The feds re1uired the railroad to cease this discrimination in price ii. Court $. The feds stepped in to regulate because they argued the intrastate actions had a substantial negati e economic effect on commerce between Fouisiana and Te2as (. ! modern argument is that there are different instrumentalities of interstate commerce
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a. Tele ision# the internet# etc. b. !ir traffic c. Boad traffic and railways i. ! railroad is an instrumentality of interstate commerce# so therefore by definition it may be regulated d. Stream of Commerce Test % wi/t v. U. .' i. 6acts $. "o ernment imposed restrictions on price fi2ing for cattle at stoc-yards (. 6rom there# the cattle are shipped to other states *. Suit filed against distributor who would buy cattle# butcher them and then sell the meat elsewhere 4. :istributors claimed the federal go ernment was acting outside of the commerce clause?s power ii. !rgument against Begulation $. The slaughtering and butchering of cows ta-es place entirely within a state iii. Court $. Stoc-yards for cattle can be regulated (. The court loo-s at the process of gra;ing cattle to the selling of meat to the consumer and says the entire process is interstate in nature a. The selling of the butchered meat within the state is part of the
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o erall stream of interstate commerce which will bring the meat to consumers in other states *. The court wanted to reach this result because this is a sanitary/health issue i . The theory is that states should be able to regulate their own manufactureH but to -eep up with economic reality# the Court is ha ing to ma-e e2ceptions and allow the feds to regulate e. Dational 5olice Begulation i. Cha&pion v. A&es $. The lottery case: pre enting the transportation of lottery tic-ets across state lines (. Court says that since state has complete control o er border crossings# Congress can regulate the transportation of lottery tic-ets across state borders *. The Court says this is commerce# in that the lottery tic-ets are something that people place a alue upon and are willing to pay for 4. This is among the states and regulatory as well 8. :issent argues that regulation does not include prohibition 7. !nother dissenting argument would be that the states ha e general police powers# which Congress is encroaching upon through using commerce power for other than commerce ends# to achie e
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policing of what it deems to be immoral products a. This raises a fourth issue# in addition to commerce# among the states and regulation: b. Can Congress use the commerce power to achie e a certain <purpose#= regardless of whether or not it is to regulate commerce *. The era of limited federal power: from the Ci il War to the "reat :epression %the .!BF3 +@:.BD phase' a. Ha&&er v. Da+enhart %Child Fabor Case' i. 6acts $. Statute forbade the interstate shipment of goods made with child labor (. !lso prohibited child labor ii. Court $. Under .C Knight# the statute could not regulate child labor# because this is regulating primary production (. !lso# Congress cannot forbid the interstate shipment of goods produced by child labor *. In Champion# the lottery tic-ets# the goods# themsel es were reprehensibleH but in this case# there was nothing wrong with the goods# Aust how the chair was made a. Congress can regulate goods bad in themsel es# but not goods made in a bad way

7*

b. Court addressed the argument that feds not being allowed to prohibit child labor would create a competiti e disad antage for states that did not allow cheap child labor. The Court said# <too bad#= this is an indirect effect on interstate commerce. Congress cannot regulate. b. The "reat :epression i. The 6irst Dew :eal# Dational Industrial Beco ery !ct $. !imed at stabili;ing wages# prices and production. Stopping the spiraling down through gathering sta-eholders to negotiate a code of fair practices in each industry. (. @nce the code was appro ed# it became binding upon all members of the industry# whether those members were present at the code appro al meetings or not. *. chechter #ou$try case tried the constitutionality of the chic-en code: a. Schechter was con icted of not complying with the poultry code b. Congress was regulating to try to reduce prices to increase spending# which would hopefully end the :epression i. Increased spending would increase purchases among the states

74

c. !lso# regulating ma2imum hours of wor- forces employers to hire more# which creates Aobs d. The maAority held the law unconstitutional i. .2traordinary conditions %"reat :epression' should not affect Constitutional interpretation ii. Schechter as a wholesaler is the end of the stream of commerce. 9ust as .C Knight reAected regulation of production at the beginning of the stream of commerce# this case reAects the end of the stream of commerce %wholesale selling of the chic-ens'. iii. 6eds cannot regulate Aust due to necessity. i . The effect upon interstate commerce would be an indirect effect. !ny effect would not be dependent upon Schechter?s practices but upon other people?s choices. e. The concurrence agreed that the DIB! was obAectionable 4. Carter v. Carter Coa$ a. +ini,DIB! Aust for the coal companies# attempting to stabili;e coal prices
78

b. +aAority says this legislation is aimed at regulating the general welfare of the people# which is not allowed by the feds: the general welfare can only be regulated by the police power %the states' i. The maAority is saying that if the end %or purpose' of the regulation is inappropriate# Congress cannot use the means of regulation e en if they are allowed under the Commerce Clause c. This is not commerce because it is primary production d. Dot among the states because the mining ta-es place wholly within single states e. The effect on interstate commerce is indirect f. Cardo;o?s :issent too- issue with the focus on direct/indirect effects i. Instead should focus on the magnitude of the effect. If there is a big effect of the acti ity upon interstate commerce# then regulation is appropriate ii. Indirect effects might not be large in magnitude# so the focus should be on how much effect there is on interstate commerce
77

ii. The <Second= Dew :eal $. 6:B has disco ered that passing legislation that would be reAected by the Court made the legislation ineffecti e (. 6:B had a court,pac-ing plan to replace the old Austices a. 6:B phrased the bill as increasing the si;e of the court from I to $8 to pro ide assistance for the poor old fol-s with a hea y load b. Intent was to add Austices with 6:B?s iews on the commerce power c. The plan was oted down by Congress# which was largely comprised of 6:B?s own democratic party because this was a disguised plan to effectuate 6:B?s plans *. Howe er# the Court itself began to more broadly construe the commerce clause 4. Second Dew :eal in ol ed more bodies and boards intended to impose direct regulation. Dot by cooperation as in the 6irst Dew :eal# but rather through e2ecuti e power: creating administrati e agencies that made these choices directly. Second Dew :eal was the Dational Fabor Belations !ct %DFB!'. 4. The post,Dew :eal reformulation and the decline of limits on federal commerce power %+@:.BD phase' a. (L,% v. 3ones 4 Lau+h$in tee$ Corp.
7/

i. 6acts $. Fabor )oard ordered the defendant steel company to stop discriminatory employment practices %firing employees who Aoined unions' (. The Dational Fabor Belations !ct was intended to regulate the terms of the conflict between employer and employee a. The terms of the act try to establish the connection between the act and the effects upon interstate commerce b. The Court is not forced to buy the statute?s language *. !bout the company in this case a. +anufacturing is strictly within the State of 5ennsyl ania b. 4th largest producer in the U.S. c. @wns and controls mines in other states d. @wns warehouses in other states e. @perates fabrication shops in other states ii. Faw $. !rguing for the manufacturer: a. This is not commerce i. It in ol es employment practices# which is not commerce

70

ii. This is a manufacturer and therefore outside of stream of commerce b. Dot among the states# in that the industrial labor relations are entirely within the State of 5ennsyl ania c. +anufacturer would win under prior case law (. +aAority %holding against manufacturer' a. :oes not address whether or not this is actually commerce. Instead focuses on different 1uestions. The real issue the court says is whether or not the acti ity to be regulated affects commerce. b. The 1uestion is not whether or not this is commerce# but whether the acti ity to be regulated has a substantial effect on interstate commerce i. There are effects on interstate commerce: firing employees and employee conflicts causes stoppages in commerce ii. The shift is from focusing on what commerce is to whether the acti ity substantially affects interstate commerce iii. The difficulty with this reasoning is that it is easy to imagine e ery human
7I

acti ity as ha ing a substantial effect upon interstate commerce , if this is the test# it seems that the states cannot regulate anything and the feds can regulate e erything. b. U. . v. Darby i. 6acts $. :efendant# state lumber manufacturer# charged with iolation of federal 6air Fabor Standards !ct (. The !ct regulated minimum wages# ma2imum hours and child labor *. Two prohibitions in the statute: a. Do shipping goods made in iolation b. Do ma-ing of goods in iolation c. 5erhaps Congress put both prohibitions in the statute because it wasn?t sure if one of them would be struc- down by the court ii. Court $. Can Congress prohibit the shipment of goods in interstate commerce of goods made under unfair labor conditionsL a. 3es# the court re erses the holding of the child labor case %Hammer . :aggenhart' i. Congress has total power to determine the terms and
/J

conditions of what can cross interstate boundaries ii. Congress has plenary power o er border crossing# including prohibitions of shipments (. Can Congress directly prohibit the manufacture of goods in contra ention of the !ctL a. 3es# because a portion of what is manufactured in the state crosses state borders b. Congress can regulate the acti ity wholly within a state: because the court is not able to regulate Aust the items to be sold out across state boundaries. The Court has to regulate all production in order to regulate the portion of goods that is destined for interstate commerce. c. !llowing long hours or low pay in "eorgia will ha e effects in other statesH other states would be at a competiti e disad antage & they would e2port fewer goods than "eorgia. Therefore# these prohibitions are Constitutional because they regulate wor-ing conditions that ha e an effect on interstate commerce. c. -ickard v. )i$burn i. 6acts

/$

$. The !gricultural !ct aimed to raise the prices of agricultural commodities to sa e farmers from ban-ruptcy. Therefore# the act aimed to lower the supply to raise prices. (. . eryone who raised wheat was gi en a 1uota. If you raised more than that 1uota# you suffered a penalty. *. This farmer raises wheat o er his 1uota for personal uses: feeding his own li estoc-# use for seed# ma-ing flour. ii. 6armer?s argument $. Cannot regulate because he is raising the wheat to support his own farm# which is not interstate commerce (. The argument is not that the farmer can raise howe er much wheat he wants. It is that only the state can tell him how much wheat he can raise. iii. Court $. The wheat that the farmer grew for himself affects interstate commerce. The farmer did not buy the wheat# which made the supply too high. a. The problem with this logic is that there is no substantial affect on interstate commerce. b. Howe er# the aggregate effect is that the statute applies to all the farmers. The aggregate effect of all the farmers raising abo e their 1uota does ha e a substantial effect on interstate commerce.

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c. !lso the federal go ernment could not ha e effecti ely regulated the price of wheat without regulating the 1uota of wheat that each farmer could raise d. 5Don,Commerce= !cti ities regulated through the Interstate Commerce Clause i. Ci il Bights $. Heart o/ At$anta Mote$ v. U. . a. 6acts i. +otel wanted to refuse blac-s ii. The act at issue federally outlawed discrimination based upon race iii. The act was legitimi;ed under the Commerce Clause# not the $4th !mendment# because $4th said no <state= could depri e of liberty. $4th does not prohibit the federal go ernment. i . Congressional findings showed that the motel?s refusal had a great effect on interstate commerce: blac-s couldn?t tra el and therefore did not spend money b. Court

/*

i. The motel?s prohibitions ha e a substantial effect upon interstate commerce ii. Holding is critici;ed because it allows the feds to regulate with legitimate means under the commerce clause but to achie e an end that has nothing to do with commerce (. 2at6enbach v. McC$un+ a. 6acts i. The act allowed regulation of restaurants if customers were people tra eling in interstate commerce or if the restaurant bought food from out of state ii. The restaurant discriminated in this case iii. The restaurant was near the interstate and bought a large amount of food that deri ed from out,of,state suppliers i . The court allows the restaurant?s discriminatory practices to be regulated b. Court i. Bacial discrimination in restaurants places a burden on interstate commerce
/4

ii. This restaurant purchased a substantial amount of food from out of state. Theoretically# regulating to allow blac-s increases number of customers# which has effect on amount of food that must be purchased from out of state. iii. The Court says that there Aust has to be an effect upon commerceH the effect can be either positi e or negati e. 6or e2ample# e en if the effect was that allowing blac-s would decrease the number of white customers# the restaurant?s discrimination could still be regulated. ii. .n ironmental Faw $. Hode$ a. 6acts i. 6ederal statute re1uired strip mining companies to restore the land to pre ious condition after done with a mine b. Court i. Begulating an acti ity that does ha e a substantial effect upon interstate commerce

/8

ii. Be1uiring the land to be restored allows people to build on the land# isit it# etc. iii. Criminal Faw $. <+ar-et= Crimes a. Crimes that are inherently a part of the interstate mar-et %securities# commodities# etc.' b. Don contro ersial under the commerce clause (. Using <instrumentalities= a. .2ample# crime to commit fraud# if using interstate mechanisms of communication %using federal mails or telephones' b. Don,contro ersial *. )order Crossing <hoo-= a. Crimes that ha e transportation across state lines as part of the definition b. 6or e2ample# crimes in ol ing the mo ement of persons across state lines c. +a-ing it a crime to illegally sell firearms across state lines d. Don,contro ersial 4. Contro ersial cases %#ere6 v. U. .' a. 6acts i. 6ederal statute ma-es loanshar-ing illegal
/7

ii. . idence that loanshar-ing affects interstate commerce & the acti ity pro ides interstate organi;ed crime with re enue b. Court i. @rgani;ed crime uses and creates funds through loanshar-ing# and this money flows across interstate lines ii. Do proof in this case that the funds at issue were in ol ed in interstate commerce. Howe er# in the aggregate# loanshar-ing across the country has an effect on consumers spending money in interstate commerce. iii. !lso# cannot segregate the two# intra and interstate. Ha e to regulate both to effecti ely regulate the interstate component. 8. The Behn1uist Court and the reimposition of some minimal limits on federal commerce power %$IIJs till today' a. U. . v. Lope6 i. 6acts $. Congress passed the "un,6ree School Rones !ct that forbade -nowingly possessing a firearm in a school ;one
//

(. ! high school senior was con icted under the statute ii. Three areas that Congress can regulate under interstate commerce: $. Channels of commerce %border crossings' (. Instrumentalities of commerce *. .conomic acti ities that ha e a substantial effect upon interstate commerce iii. The regulation of guns in school ;ones does not meet the third area. It is not an acti ity that Congress can regulate. i . "o ernment?s !rgument $. >iolent crime can handicap the learning process and result in less producti e citi;enry which has a negati e effect on interstate commerce because citi;ens will spend less and goods in interstate commerce will not be transferred as much. (. >iolent crime will spread high costs throughout the economy. >iolent crime reduces people?s willingness to tra el across the country. . The holding in this case stops the slippery slope and distinguishes from Wic-ard: $. In Wic-ard the effects were attenuated# as in this case# yet Wic-ard allowed that acti ity to be regulated. (. Wic-ard is distinguished# in that it included economic acti ity# in a way that possession of a gun does not. Wic-ard
/0

was engaged in growing of the crops# which had to do with Wic-ard?s economic acti ity as a farmer. )ut merely possessing something is not an economic acti ity. *. Hypo: if the statute had forbade borrowing or buying a gun and then bringing into a school ;one# this would ha e been an economic acti ity. 4. Hypo: If the statute forbade use of the gun to engage in forced buying or selling# this would ha e been an economic acti ity. 8. Dote that the economic acti ity is a new limit# but does not o erturn the holding in any of the pre ious cases %5ere;# Heart of !tlanta# etc.' i. .ducation is a traditional area of state concern and within state power. This is a reason to loo- more closely at the bases of federal power. ii. The statute perhaps could ha e been reformed to sustain federal power if the statute contained a Aurisdictional ne2us %<possessing a gun that has tra eled in interstate commerce.= This would ha e been true in 4/ states because only three states manufacture guns'. b. U. . v. Morrison i. 6acts $. Congress passed the >iolence !gainst Women !ct# which made it illegal to use any physical iolence against women because of their gender (. The rationale of the statute was based upon the commerce clause because of
/I

the belief that the states were not regulating the acti ity well enough *. In this case# the woman at the college was raped by football players ii. Congress in the statute set forth how gender, based iolence affects commerce $. The congressional findings were e2tensi e (. Women miss wor- because of being hurt *. Women don?t graduate from college and get Aobs 4. The causal relationship between the acti ity and effects upon commerce is much stronger than what e2isted in Fope; iii. Though the causal relationship is strong# the feds still do not ha e the power to regulate $. This is a traditional area of state regulation (. This is not an economic acti ity %i.e. beating up a girl is not an economic acti ity' c. 'on6a$es v. ,aich i. 6acts $. Congress passed the Controlled Substances !ct %CS!' criminali;ing the manufacture or possession of mariAuana (. California passed an initiati e %a plebiscite' allowing production and use of mariAuana as a medicinal agent
0J

*. The 1uestion is whether the federal statute falls within federal power ii. :efendant?s argument $. "rowing mariAuana for personal use is not commerce (. There is no substantial effect of the mariAuana growth upon interstate commerce & in the aggregate# there are not that many people growing mariAuana for medicinal uses# so there will not be a substantial effect upon the interstate mar-et for an illegal drug iii. Court $. There are effects on interstate commerce: through growing# not buying the mariAuana from out of state %Wic-ard type argument & growing a commodity that can mo e in interstate commerce' (. Congressional findings established that the acti ity of growing mariAuana has substantial effects *. The growing of mariAuana is an economic acti ity %production of a commodity for which there is a mar-et' i . Scalia?s Concurrence $. Congress can use the Decessary and 5roper Clause to regulate although the growing of mariAuana does not ha e a substantial effect upon interstate commerce. It is necessary to regulate the national illegal drug mar-et# so Congress can regulate the intrastate acti ity of growing in California.

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(. Counterargument is that you can distinguish between those who are growing for personal use and those who are growing for illegal use in California. . :issent $. !llow states to pursue different policies and function as laboratories 7. .2trinsic limits on federal commerce power: the $Jth !mendment a. Fimits on federal power in general i. !rticle I# Section I ii. $$th !mendment $. :eals with federal courts Aurisdiction (. Chisho$& v. 'eor+ia a. Citi;en of South Carolina sued the State of "eorgia b. The $$th !mendment o erturned this decision and forbade the citi;en of one state from suing another state iii. $Jth !mendment $. :oes it by its terms or by its spirit create a limit on the e2pansion of federal powerL a. The te2t itself does not indicate this b. )ut the idea e2pressed is of <dual federalism=: i. )oth the states and the federal go ernment are so ereigns
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ii. There is a central essence of state so ereignty that the feds may not infringe upon# e en if they were otherwise authori;ed to act (. Therefore# the $Jth !mendment brings in a second 1uestion. The first 1uestion is <!re the feds authori;ed to actL= )ut the second 1uestion is <:oes this infringe upon state powerL= a. The problem is that the court has to go far outside constitutional te2t to determine what is at the core of the states? powers b. )ecause there is no listing of core state powers in the document b. (ationa$ Lea+ue o/ Cities v. Usery i. 6acts $. 6air Fabor Standards !ct %6FS!' originally applied only to pri ate employers (. Howe er# 6FS! was amended to e2tend minimum wages and ma2imum hours to employees of states and local go ernments ii. Issue: Can Congress e2tend regulation to the states? hiring practices of its own employees iii. Court $. Besurrection of the $Jth !mendment re1uirement that there be a recogni;ed core area of state power

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(. Begulating state employees? pay significantly impacts state policy and impairs the state?s so ereignty in implementing its own policies *. The problem with the case holding is thatE c. 'arcia v. an Antonio Metropo$itan 1ransit Authority i. 6acts $. 6FS! imposed minimum wage and o ertime re1uirements on a municipal transit authority ii. Court $. (ationa$ Lea+ue o erruled (. The distinction between acti ities integral and non integral to state so ereignty is not wor-able a. +ost acti ities that were once thought of as inherently state, regulated are now acti ities regulated at a national le el b. 6or e2ample# education used to be solely an area of state responsibilityH but the modern public school system is a national enterprise *. Court cannot rule on which state functions are integralH this would be a policy 1uestion decided by unelected Audges 4. 5rocedural safeguards inherent in federalism pre ent intrusions into state autonomy

04

a. 5olitical process pre ents laws burdensome to the states b. Congressmen from states are elected by statesmen 8. Court finds no substanti e limits on federal regulation in the $Jth !mendmentH howe er in subse1uent cases the Court found in the $Jth !mendment a methodological limit on federal regulation d. (ew 7ork v. U. . i. 6acts $. Fow,le el nuclear waste needed to be disposed of a. +edical waste from 2,rays# for e2ample b. Dot nuclear power plant waste (. !t the time of this case# only * states had dump sitesH they accepted waste from other states *. The states that had the dump sites were threatening to close them because of the accumulation of waste 4. The go ernors of the states met to address this problemH they decided on a plan to create a policy for all the states a. !rticle I prohibits such an agreement among the states without the consent of Congress b. So Congress passed a statute that e ery state had to deal with its own waste:
08

i. .nter into regional compact# or ii. Ha e waste disposal plant within the state 8. This system wasn?t wor-ing well. States did not find dump sites or enter into regional compacts. "o ernors came up with a re ised plan. Congress appro ed the plan as a matter of federal law. * incenti es: a. +onetary & States with disposal sites could charge other states higher fees to recei e waste b. !ccess & If the state didn?t do something to pro ide for its own disposal# the recei ing state could refuse to recei e any more waste from the other state. c. <Ta-e title= Sanction & If state did not meet re1uirement# must ta-e title to the waste and be liable for all damages suffered by waste i. This was the real hammer that was intended to force the states to comply ii. This is the pro ision that the Court says is unconstitutional 7. State of D3 alleges that the whole plan is unconstitutional ii. Court $. The $Jth !mendment does not pose any substanti e limit on federal
07

regulation. 'arcia is still law. Congress can directly regulate if it chooses. (. Howe er# there is a procedural limit in the $Jth !mendment principle: The feds cannot <commandeer= state legislati e authority. a. The federal go ernment cannot mandate that the states pass certain legislation b. This would remo e state autonomy to re1uire the states to pass laws c. !lso# if the feds could force states to pass statutes# there would be diminished accountability i. If the oters do not li-e the legislation they cannot change the situation. )ecause the state passed the laws# but the feds authored the law ii. State bears the brunt of public disappro al# while feds remain insulated from the electoral ramifications of their decision iii. The * incenti es $. +onetary & either enter into the agreement or pay the surcharge a. This is lawful because it is a term of border crossing b. This falls under the commerce clause
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c. )ecause the feds could impose the surcharge under commerce power# it is lawful for the feds to re1uire that the state pass the legislation# or else the surcharge will be imposed (. !ccess & either enter into the agreement or be forbidden from e2porting a. 6orbidding e2ports is lawful under the commerce power %Fottery case' b. This pro ision is lawful for the same reason as the monetary incenti e *. Ta-e Title Sanction & either enter into the agreement or ta-e title a. The feds do not ha e the power to re1uire states to ta-e title to the waste b. Therefore# the feds cannot re1uire either that the state passes the legislation or ta-e title c. The state is gi en a choice between two alternati es# neither one of which is allowed to be directly imposed i. This amounts to telling the state it has to legislate ii. This is commandeering of the state?s legislati e authority i . :issent points out that this is not a ictory for states? rights
00

$. States bargained among themsel es to impose this regulatory scheme (. The political process succeeded in this caseH so the states? so ereignty was not in aded *. @ne state# Dew 3or-# tried to bac- out and successfully got the law adAudged unconstitutional# when it originally wanted the law to begin withG e. #rint6 v. U. . i. 6acts $. The feds passed a handgun iolence pre ention act (. The act re1uired bac-ground chec-s to be performed by state and local law enforcement officers *. The officers are mad because they are not getting paid to do this 4. 5olice ha e to de ote resources to obeying a federal mandate# but the feds do not pro ide funding to carry out the mandate ii. Court $. The commandeering principle e2tends to state e2ecuti e (. The Court cannot ma-e state officials enforce federal law a. The result of this is the feds doing it directly through creating a federal bureaucracy iii. 6ederal Ta2ing and Spending 5owers $. The Ta2ing 5ower as a Begulatory :e ice
0I

a. !rticle I# Section 0# Clause $: <The power to lay and collect ta2es# duties# imposts and e2cises# to pay the debts and pro ide for the common defense and general welfare of the United States.= i. <)ut all duties shall be uniform throughout the United States= & a restriction on this ta2ing power ii. @ther sections also place limitations on the types of ta2es that may be imposed iii. )ut o erall# not may limitations in the te2t on the power to ta2. b. !ddressed conAuncti ely with considering the spending power# below (. The Spending 5ower as a Begulatory :e ice a. The problem is that there are always conditions to recei ing the money from the federal go ernment. This turns out being a way of regulating acti ity. i. The problem is that this has the effect of regulating acti ity that otherwise the feds do not ha e power to regulate ii. The 1uestion is to what e2tent the go ernment can condition the payment of money to states upon the states acting a certain way# where the federal go ernment lac-s the authority to directly regulate b. United tates v. %ut$er i. 6acts $. Dew :eal# !gricultural !dAustment !ct of $I**: stabili;ed farm prices by reducing agricultural production (. !uthori;ed payments to farmers who reduced their crop acreage
IJ

*. Ta2 on processors was used to pro ide the fund to pay the farmers who complied by reducing their crop acreage 4. So there are two separate issues: The ta2ing power and the spending power %which ma-es payments conditionally' ii. +aAority $. This is regulation# in that the beha ior of the farmers is in oluntary: the farmer has to not produce to get the payments (. The act uses federal spending to obtain complianceH this is using the spending power for an illegitimate end# to effecti ely regulate *. Cannot use the ta2ing/spending power to achie e a non,re enue raising end 4. :oes not address the issue of whether or not the spending effected the general welfare# because this is something for Congress to decide 8. It is a slippery slope to lea e the ta2ation and spending power unchec-ed iii. Stone?s :issent $. There is no economic coercion of the farmersH the farmers are only promised gain if they do comply by reducing acreage (. Congress? power to spend is not limited by its effects on moti ating the actions of citi;ens. If the moti ation of citi;ens accords with Congress? purpose for ma-ing payments to promote the general welfare# then the spending power is legitimate.
I$

*. Congress should be able to ma-e its payments to citi;ens conditional in order to achie e the <general welfare= that the payments are sought to achie e. c. teward Machine v. Davis i. 6acts $. Social Security !ct set up an unemployment compensation scheme (. The feds subsidi;ed the state unemployment compensation process only for employers with employees of eight employees or more that enacted the federal unemployment standards at the state le el *. 6or states that enacted the federal unemployment compensation standards# employers in the state got up to a IJQ federal ta2 credit for contributions to the state unemployment fund certified by a federal agency as meeting re1uirements of the !ct ii. +aAority & Cardo;o $. This case is distinguishable from )utler a. Cardo;o defines coercion differently than in )utler. This case in ol es inducement# not duress. The states could not gi e the re1uisite relief in this case# so the need of the nation?s help was needed to pre ent people from star ation. b. Fots of go ernment programs influence beha ior. If e ery inducement counted as coercion# this would pre ent the
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go ernment from doing anything at all. c. The go ernment must gi e out money on conditions. Ha ing conditions to spending is constitutionally re1uired: the conditions must be imposed to ensure that <the general welfare= will be impro ed. d. The carrot is the inducement# the stic- is coercion. If something bad will happen upon refusal# that is coercionH if denial of a benefit will occur upon refusal# then this is inducement. i. Howe er# this does not seem to be a manageable standard. ii. :etermining what is the threat of loss and what is the hope of a benefit can be a fine distinction. iii. This case is the basis of modern conditional spending law. d. outh Dakota v. Do$e i. 6acts $. The ($st !mendment ending prohibition forbade the feds from regulating alcohol consumption and sales on national le el (. So the feds try to effecti ely regulate the national drin-ing age through conditioning highway funds to states upon the states? agreement to raise the drin-ing age to ($
I*

*. If the states did not raise the drin-ing age# the state would lose 8Q of funds ii. +aAority $. .liminating younger drin-ers from drin-ing would ma-e the highways saferH ma-ing the highways safer is the aim of pro iding highway funds to the states (. Fimitations on spending power: a. Te2t: has to be for the general welfare# the meaning which is decided by Congress b. Congress must clearly state that payments are made upon certain conditions %Congressmen must be aware they are putting a restriction upon the states when enacting it' i. Congress is composed of people who represent home states# so the congressmen are not going to impose burdens on the home states unless they are aware of those burdens c. The condition must be related to the purpose of the underlying spending program i. 6or e2ample# feds could not ma-e +edicaid funding conditioned upon states changing their sales ta2 laws & there would be no relatedness in such a case
I4

d. Cannot be coerci e upon the states e. Cannot re1uire the states to iolate an e2trinsic constitutional norm i. .2ample# feds could not re1uire the state to iolate the $st !mendment in order to recei e the funds *. If the abo e 8 criteria are met# the spending program is alid. This is the modern rule. 4. The most contentious in this case is whether the condition is actually related to the underlying purpose of the spending program a. The maAority says that the purpose of the spending is safety of highways. The condition of a higher drin-ing age is meant to ensure greater safety# and therefore the condition is related to the purpose. b. The dissent says that the drin-ing acti ity has an attenuated effect on highway safety. i. :issent suggests that the spending power is effecti ely regulation if the condition does more than specify how the money can be spent by the states 8. CoercionL a. The maAority says no because it is only the denial of a benefit if
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the states do not comply %not getting the e2tra 8Q' b. The maAority says this is a small amount of money that the states could turn down without significant effect c. The dissent would suggest that a loss is threatened and this is coercion d. There is an absence of clear law as to what constitutes coercion# which suggests maybe this is a political 1uestion %lea e it to Congress to decide whether or not the legislation would be coerci e upon the states' i . 6ederal 5owers @ er War and 6oreign !ffairs $. The general rule: !ll powers ha ing to do with war and foreign relations belong to the federal go ernment and not the states. a. Dot many federal constitutional 1uestions b. War 5owers: i. How far in time does the power e2tendL 8. -oods v. C$oyd -. Mi$$er Co. a. 6acts i. Congress enacted legislation controlling rents because there was a locali;ed deficit in housing ii. Some population centers doubled because of manufacturing to support the war effort. It got to be ery hard to find a place to li e. This led to landlords raising the prices# ma-ing it hard
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for people to find a place to li e# which hampered the war effort. iii. Statute was passed during the war that no one could change rents on rental property. i . The statute was continued to be enforced after the war was o er %hostilities were at an end'. b. Issue: Whether the rents can be regulated after the end of the war i. 3es# because the conse1uences/effects of the war continue after the war end ii. Congress can use its war powers to deal with effects after the war is o er iii. The 1uestion is how far this e2tends# because the effects of a war e2tend for decades upon decades. Where is the di iding lineL $. This 1uestion bothered 9ac-son# per his concurrence (. He was sensiti e to the case during the war that upheld the !merican 9apanese concentration camp under the war powers *. Times of war are times when constitutional rights are in dangerH need to use greater care when using the power to do something other than regulation of the war management itself 0. Missouri v. Ho$$and a. )ac-ground on Treaties i. !rt. II# Sect. ( tells how they are established ii. !rt. >I# Sect. ( says that treaties are the supreme law of the land $. Treaties are supreme o er state law
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(. ,eid v. Covert a. .2ecuti e agreement said that U.S. military personnel and their dependents that committed criminal acts o erseas would not be tried by local courts but instead U.S. military courts b. The Constitution limits the authority of military courts & they cannot e2ercise Aurisdiction o er ci ilians c. Holding: that pro isions of treaties do not o erride the Constitution *. Treaties . 6ederal Statutes a. Treaties and federal statutes are gi en e1ual authority b. If there is a conflict between a treaty and a statute# the last in time controls iii. Self,e2ecuting treaties $. These become operati e upon Senate appro al (. )ut some are not self,e2ecuting. They are promises to enact law. b. 6acts i. Treaty between the U.S. and "reat )ritain ii. The treaty was to affect the protection of migratory birds migrating between Canada and the U.S. iii. Treaty meant to preser e the birds as natural resources through limiting hunting
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i . Congress did pass an !ct along with the treaty to carry out the limitation on hunting . The court at the time would not ha e allowed this regulation Aust on the basis of the commerce power c. Court i. Dow that a treaty has been authori;ed# the power e2ercised according to the treaty is legitimate ii. Fimits on treaty power $. Cannot infringe upon the Constitution?s prohibitions %for e2ample# gi ing military courts Aurisdiction o er ci ilians' a. Howe er# in this case# the fact that this was a traditional area of state regulation did not mean there was a constitutional iolation (. 5rocedural limits & formulated by 5resident and appro ed by the Senate *. Implied limit & the subAect matter of the treaty must be proper as something that should be negotiated in an international agreement a. It is proper in this case because the animals go bac- and forth between the countries b. This is li-e a shared resource between the two countriesH it is appropriate for the two countries to negotiate to regulate c. The subAect of international treaties# howe er# has become a
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ery broad category of things nowH therefore potentially this implied limit is not much of a limit modernly spea-ing d. !dditionally# the states could not effecti ely regulate the birds on their own b. Constitutional Fimits on the Begulatory 5owers of the States i. ! brief note on e2press constitutional limits on the states $. The states possess general police powers without any e2press grant of power by the Constitution. Therefore the states ha e the power unless the Constitution prohibits such a power to the States. a. !rticle I# Sect. $J b. !mendment $4 c. !rticle I> (. :etermining limits on state regulatory powers: a. +ethod of !nalysis i. O$: Could the feds ha e regulated the acti ity in 1uestionL $. If not# then the states are free to act %unless some other part of the Constitution prohibits it' (. If yes# then go to O(. ii. O(: Ha e the feds actually regulated the acti ity in 1uestionL $. If yes# then ha e to address preemption. (. If no# this is a dormant commerce clause 1uestion. ii. 5reemption of state regulatory power by federal regulation
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$. :efinition a. Comes from the Supremacy Clause %!rt. 7# Section ('. If state law and federal law are in conflict# the feds win. Types of preemption: b. Conflict 5reemption: i. Impossibility / :irect %Traditional' & It is impossible to not iolate both the federal and the state law. $. Bare type of conflict. (. .2ample# a minimum standard by one and a ma2imum by the other# when the ma2imum set by one is lower than the other?s minimum. *. D@T the following: F! minimum wage if S7 and federal is S0. 3ou can comply with both laws as an employer by Aust paying S0 an hour. ii. Conflict with purpose of federal law: $. 'ade a. 6eds set regulations for ha;ardous materials in the wor-place. b. State regulation set a public health regulation that said anyone handling dangerous chemicals must undergo training. State training re1uired was greater than training re1uired by feds. c. The feds wanted to %$' create a minimum safety standard and %(' create a national scheme of training to ma-e it easier for
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companies to shift wor-ers among different states d. The state statute did not conflict with purpose %$'# but it did conflict with purpose %(' e. The state statute# conflicting with the federal statute# was preempted (. )an-ruptcy case a. 6ederal law allowed debts to be dischargeable in ban-ruptcy b. The !ri;ona statute did not allow someone to get their dri er?s license bac- if they did not pay a Audgment from a car accident and the debt from the Audgment was not dischargeable in ban-ruptcy c. The !ri;ona statute was preempted. It conflicted with the federal purpose of federal ban-ruptcy legislation. i. 6ed ban-ruptcy legislation is meant to gi e people a fresh start so that they will be producti e in society. ii. Dot allowing someone to get dri er?s license unless they pay the debt pre ents someone from dri ing. In !R# without public transportation# this would ma-e people of little producti ity to society. c. 6ield preemption
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i. If the feds occupy the whole field# then the states cannot regulate in the field. ii. How to tell if the feds occupy the whole field: $. .2press & when Congress specifically says that state law in the area is preempted. (. Implied & Congress has not e2pressly said so# but other indicia in the statute show that Congress is understood to occupy the field. 8. #aci/ic 'as 4 !$ec. Co. v. tate !ner+y ,esources Conservation9 a. 6acts i. California passed a law halting certification of new nuclear power plants until a long,term plan for waste disposal had been de eloped ii. 6eds passed law and established regulatory commission to promote the ci ilian use of nuclear energy in safe ways b. Issues: i. The type of conflict could not be an e2press occupation of the field or an impossibility conflict. ii. The two issues are implied occupation of the field and conflict with federal purposes c. Whether or not there is implied occupation of this field by the feds: i. )alance between state and federal interests $. When the federal interest is strong but there is a relati ely small state interest# this weighs in fa or of preemption
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ii. <:ensity= of federal regulation being so complete that there is nothing left for the states to do $. The feds ha e completely occupied the field of nuclear safety. There is nothing left to the states in the field of nuclear safety. (. The feds ha e not# howe er# occupied the field of the economic iability of nuclear power plants. a. The court belie es the legislati e history of the state statute# that the statute had the purpose of regulating the construction of nuclear power plants# though there is other e idence that the state?s purpose was to promote nuclear safety b. It is appropriate to belie e legislati e history d. Whether or not there is a conflict with the purpose of federal law i. The purpose of the federal law was to promote safe use of nuclear power ii. California is ma-ing it impossible to promote the safe use of nuclear power in California through pre enting the use of any power in California iii. Howe er# the Court says that the feds? purpose of promoting safe use of nuclear power is not at any cost. Therefore# the state?s law does not frustrate the purpose of the federal law. e. Court says there is no preemption of state law. Close case.
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iii. Implied limits on state regulatory authority arising from the Interstate Commerce Clause: the so,called <dormant= commerce clause $. Introduction a. Why Constitution ga e commerce power to feds i. States put up trade barriers and instituted protectionist policies that hindered national and international trade ii. This would reduce the o erall amount of trade iii. The framers belie ed the nation would be better off with a single national mar-et without internal barriers to free trade i . 6eds did not trust the states to restrict themsel es from putting up these trade barriers b. The idea of the <dormant= commerce clause i. !ddresses situations where feds could ha e enacted legislation in an area but did not %dormant power'. Can the states legislate and pass regulation in such areasL (. .arly attempts to define the implicit limits on state power a. 'ibbons v. *+den %.arly' i. In dicta# addresses the 1uestion of what if there had not been any federal coasting license in this case ii. +arshall leans in the direction of saying that the grant of commerce power to the feds implies the whole power and lea es no residual amount of regulation to the states $. +arshall says he does not ha e to address the issue directly# though iii. Is it a good idea for federal power to be e2clusi eL
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$. +aybe not# because if all federal power to regulate commerce goes to Congress and must be regulated by Congress# this puts a huge burden on Congress to legislate effecti ely for e ery problem in the country (. !lso# better for states to regulate when feds ha e not acted because there may be a need for the area to be regulated *. Howe er# allowing the states to act absent preemption would allow states to create a detriment to other states which would remain until Congress has acted b. -i$$son v. %$ack:%ird Creek Marsh Co. %5urpose' i. 6acts $. :elaware law allowed company to build dam across na igable stream (. 5art of a proAect to drain a swamp for health and agricultural reasons *. 6ederal go ernment had power to regulate regarding a na igable stream because this is an instrumentality of commerce ii. Court $. The state was regulating through its police power# to regulate health and safety of the people a. Howe er# the states being allowed to regulate using the police power when the feds ha e not enacted legislation may lead to them being to regulate irtually anything# since the police power is broad
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c. Di anto v. #A %:irect/Indirect' i. 6acts $. State re1uired licensing fees on tra el agents selling steamship tic-ets for foreign tra el (. The purpose was to cut down on fraudulent immigration ii. Court $. The federal go ernment could ha e regulated because the commerce clause allows itH The feds had not enacted any licensing statutes for bro-ers (. State statute is alid because the effects on interstate commerce from the state acting is an indirect effect on interstate commerce *. :issent pointed out that the difference between direct and indirect effects was too slight d. Coo$ey v. %oard o/ -ardens %Inherently local/national' i. 6acts $. 5ennsyl ania law re1uired the plaintiff to hire a pilot to guide him through the 5! harbor (. 5laintiff iolated the law *. The feds could ha e regulated but did not enact any legislation 4. 5! had an interest because there was speciali;ed -nowledge needed to safely pass the 5hiladelphia waterway ii. Court
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$. The state?s law is alid because local authorities are more aware of local conditions (. Where local conditions ary# there must be room for local regulation *. The counterargument is that there are situations where a national standard is needed a. 6or e2ample# the width of railroad trac-s. . en though railroad trac-s are seemingly a local issue# a train tra eling across the country cannot use trac-s in states of different width from the state of departure b. The Coo$ey principle does not apply in such cases c. ! iation flight patterns d. !ll airline pilots are re1uired to spea- .nglish with air traffic controllers because of need for uniformityG *. The modern analysis: a. 5rohibiting state <protectionism= i. 6acial :iscrimination !gainst @ther States $. #hi$ade$phia v. (ew 3ersey a. 6acts i. D9 operated a number of garbage dump sites. +uch of the garbage came from 5!. 5! authorities concerned that the dump sites were filling up.
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ii. D9 passed a statute ending the importation of garbage from other states. b. Issue: Whether D9 statute is permissible under commerce clause c. Court i. This is an area of potential federal authority because there is an interstate mar-et for refuse. 3et the feds had not passed any regulation in this case. ii. State is not allowed to regulate in this area. The one thing a state may not do is discriminate between other goods and ser ices because of where they came from. iii. Cannot discriminate against goods and ser ices simply because of the point of origin i . There are alternati es that D9 could ha e pursued: shutting down the dumps altogether and sending its garbage out of state d. The blac- letter rule is that a state cannot discriminate between instate and out of state parties in commerce i. )ut this potentially infringes upon state police
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powers to regulate the flow of garbage into the state ii. Howe er# the Court is interpreting the commerce clause structurally saying that the Constitution intends to create a national mar-et and the commerce power pre ents the states from interfering with this national mar-et e. Beasons for prohibiting facial discrimination: i. It is an illegitimate means of isolating the state from the national economy ii. It is an attempt by one state to isolate itself from a common problem faced by all the states through erecting a barrier against mo ement of interstate trade (. :iscrimination Issues %State of @rigin' a. <9ustification= b. Ta2es/Subsidies c. <Focal= :iscrimination d. Don,6acial :iscrimination *. Maine v. 1ay$or %<9ustification=' a. Bules go erning constitutional cases i. 5laintiff must ma-e prima facie showing that a
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constitutional iolation occurred ii. :efendant has to show that iolation is Austified b. 6acts i. +aine passed state regulation prohibiting importation of baitfish purchased in other states ii. . ery la-e has its own population of fish and parasites in +aine. +aine is trying to in ade nonnati e parasites from in ading +aine waters# to protect the fish population. c. !nalysis i. The statute definitely facially discriminates ii. The <ends= or purpose is to protect the fishH the means is closing the borders to baitfish from other states iii. +aine had a legitimate en ironmental purpose. 5rotecting go ernment ecology is something a go ernment is allowed to do. i . !dditionally# the discrimination is allowed in this case because there were no other
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nondiscriminatory means a ailable. d. 5ro ing that the state has a legitimate purpose is easy. )ut pro ing that there are no other a ailable means of achie ing the purpose is hard. i. This is one of the rare cases where the court has upheld a facially discriminatory statute ii. It would not be practical to use another means to achie e the endsH for e2ample# inspecting e ery tourist?s baitfish e. Dote that a legitimate end is not protecting state commerceG 4. Ta2es/Subsidies a. Ta2 imposed on out of state businesses and not on instate businesses iolates the strict prohibition on facial discrimination i. Howe er compensating use ta2es are permissible. 6or e2ample# out of state ehicles registered in the state being subAect to a ta2. ii. The out of state buyer is treated the same as in state because in state buyers ha e to pay sales
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ta2es on ehicles purchased in the state iii. The same theory applies to the difference between instate and out of state tuition charged to uni ersity students. The instate students in theory already ha e been paying ta2es to fund their education# so charging out of staters a higher tuition amount puts them on a le el playing field. b. States may pro ide subsidies to instate but not out of state producers without facially discriminating# e en though subsidies ha e a similar economic effect as ta2es i. There is no political checon the legislature when it ta2es out of staters ii. Howe er# there is a political chec- on the legislature gi ing out subsidies to in staters. The oters in the state ha e to pay for the subsidies. iii. Subsidies are sufficiently self,limiting that they are -ept within reasonable bounds through the political process. c. -est Lynn Crea&ery v. Hea$y
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i. Combination of ta2 and subsidy ii. Ta2 was placed on all consumers. @n the proceeds of the ta2# subsidies were gi en to instate producers. iii. 5lacing the two together iolates the Constitution i . The net effect is only ta2ing the out of staters 8. <Focal= :iscrimination a. Dean Mi$k Co. v. Madison i. Do sale of mil- in +adison# WI was allowed unless it had been processed within 8 miles of the town s1uare of +adison ii. The plaintiff is an Illinois producer of mil- that pasteuri;ed in Illinois and wanted to ship to and sell the mil- in +adison iii. The category of those e2cluded is not only out of staters but also instaters that are not within 8 miles of +adison i . This is not facial discrimination# in that it does not fa or instaters# but Aust producers on a local le el. The statute discriminates against both
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all out of staters and most instaters . The maAority says that this local discrimination is improper under the dormant commerce clause. ! counterargument is that there is a sufficient political chec-# in that all other people of Wisconsin outside of the +adison area could lobby to ha e the +adison people to ote against the ordinance. i. The court treats this with rigor to find a form of interstate discrimination. ii. The state?s interest here is to allow for inspection of mil- sold in +adison to meet +adison standards. The court# though# points out that there are alternati es# such as Wisconsin ha e its inspectors inspect out of state mil- and then impose the cost to the milproducers. b. C4A Carbone; <nc. v. C$arkstown i. Clar-stown# D3 built a new trash transfer station and shut down landfill

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ii. !morti;ed the cost through charging a fee to haulers depositing garbage there iii. @rdinance re1uired trash to be sent there i . 5laintiff recycler sent trash out of state# disobeying the ordinance. 5laintiff wanted to haul his trash elsewhere# to a location that would charge a lower price. )ut plaintiff could not due this because of the ordinance. . :issent tries to distinguish from :ean +il-: this case in ol es establishing a monopoly. Though a monopoly discriminates against e eryone else in the world# this is not the discrimination prohibited by dormant commerce clause. i. The maAority says this puts a barrier upon the trash that would normally flow across interstate lines so there is discrimination. ii. There is discrimination and it is not Austified because there are other alternati es# e2ample# subsidi;ing the facility through municipal bonds. )ut this might not be a alid option because the
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ta2payers did not support the facility in the first place and probably wouldn?t ote for a subsidy. c. United Hau$ers Assn. v. *neida: Herki&er o$id -aste i. Similar to pre ious case. ii. City came up with state of the art trash processing facility. The county built the plant itself and charged a high fee compared to other dumpsites. 5assed a similar ordinance re1uiring that trash produced in these counties had to go to this particular trash facility. iii. Court says this is distinguishable from pre ious case because Carbone was legislation in fa or of pri ate economic actor %comm. cl. forbids this'# but present case is go ernment regulating and acting itself. i . +aAority says that trash collection is a traditional state function %this is 1uestionable because "arcia said that the Court cannot distinguish between integral and nonintegral state functionsG'.
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. The court through alidating the statute suggests that there is a difference between a state,owned and pri ately owned facility that discriminates against out of state commerce. ii. Don,6acial :iscrimination !gainst @ther States $. %a$dwin v. '.A.). ee$i+; <nc. a. 6acts i. D3 law set minimum prices to be paid to milproducers for mil- sold in D3 ii. ! D3 buyer bought mil- in >ermont and paid less than the D3 minimum. D3 then said this mil- could not be sold in D3 iii. D3 passed the law to stabili;e mil- prices to -eep mil- farmers in business. i . The law had the effect of out,of,state producers ha ing to raise prices to sell mil- in the D3 mar-et. >ermont lost its competiti e ad antage. b. Court i. The economic effect is discriminatory against milfrom >ermont.
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ii. Be1uiring the minimum price robbed >ermont of its competiti e ad antage. This effect is contrary to the purpose of the commerce clause. iii. The Court recogni;es that though D3 has an interest in stabili;ing prices to allow the D3 dairy farmers to sur i e. Still# the law is in alidated because the states <sin- or swim= together. !ll the states in the :epression faced the same problems. @ne state cannot pass a law has the effect of discriminating against out of state commerce Aust to ensure the state?s economic sur i al. (. H.#. Hood 4 ons v. Du Mond a. 6acts i. 5laintiff wanted to build new mil- recei ing center. He already had * in Dew 3or-. ii. 5laintiff had to get a permit to build the recei ing center from D3 authorities iii. Be1uiring permits to build certain facilities with a public purpose is a traditional state area. The reason for regulation is -eep the mil- distribution
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plants from going out of business. If there are too many plants it might negati ely affect the practices of the plants. i . 5laintiff was denied the permit to build a 4th new center. He was a )oston mil- distributor who obtained mil- from D3 producers. b. !nalysis i. There is no facial discrimination. ii. There was no discriminatory intent. Court belie es D3 that D3 intended to regulate the mil- distribution in D3. iii. Donetheless the act is discriminatory in effect. c. :iscriminatory .ffect i. Cuts off the flow of milfrom D3 to +assachusetts ii. Beduces the olume of mil- flowing across state lines d. The outcome seems ine1uitable# in that if it was a D3 entity denied a permit# they would ha e had no constitutional claim. The plaintiff only had a claim because he was selling the mil- out of state# meaning he had a iolation of dormant commerce clause claim.
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*. Hunt v. -ashin+ton tate App$e Advertisin+ a. 6acts i. Washington State is a primary apple producer ii. DC statute re1uired closed shipping bo2es of apples to ha e either US:! grade stamp or no grade mariii. DC said they were doing this to a oid consumer confusion i . W! system of labeling was different b. !nalysis i. Do facial discrimination ii. :iscriminatory effects are present c. :iscriminatory effects i. Ta-ing away W! competiti e ad antage that it would ordinarily ha e# and benefiting instate competitors d. <Beal= intent i. Court does not belie e that the law was enacted to pre ent consumer confusion ii. The law in ol ed shipping crates# which consumers will ne er iew
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iii. The real intent is to pre ent competition from out of state 4. %acchus <&ports v. Dias a. 6acts i. Hea y Hawaii ta2 on alcoholic products# but e2ception for fruit wines# which were indigenous to Hawaii b. !nalysis i. Do facial discrimination ii. )ut the intent was discriminatory/protectionist . Intent was to protect the locally produced product from competition of out of state products. 8. Minnesota v. C$over Lea/ Crea&ery a. 6acts i. +D statute banned the sale of mil- in plastic nonreturnable containers but permitted pulpwood containers ii. +D had small plastics industry but hea y pulpwood industry iii. +D?s alleged reason was to pre ent buildup of nonbiodegradable waste b. !nalysis
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i. +D?s argument is that these are two different products. 5lastic is a different product# so it ma-es sense to distinguish between mil- in plastic and pulpwood containers ii. The counterargument is that the statute fa ors in state pulpwood producers and burdens out of state plastic producers wanting to sell their products into +D. c. Court i. The law is alid ii. 5lastics are different from paper products# therefore it is appropriate for the state to distinguish 7. !""on Corp. v. 'overnor o/ Mary$and a. 6acts i. +: got all of its gas from out of state ii. +: legislature found that during gas shortage# manufacturers that were ertically integrated fa ored their own retail outlets# selling gasoline only to their retail outlets. :ro e local gas station retailers out of business for lac- of gasoline.
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iii. +: passed statute re1uiring all retailers in +ass. to be independent. b. !nalysis i. .22on?s argument is that local stores were benefitted but the manufacturers# all out of staters# were burdened ii. Court says there is no discrimination c. Court i. The out of state manufacturers can still sell their gasoline into +:. !ll that changes is who sells the gasoline once it is in the state. ii. The dormant commerce clause does not protect particular competitors. iii. The statute is not treating out of staters different from instaters. It only treats producers of gasoline and retailers differently. This is not discriminatory. b. 5rohibiting e2cessi e <burdens= on interstate commerce i. outhern #aci/ic v. Ari6ona $. 6acts a. !ri;ona train limit law

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b. Imposed ma2imum number of cars c. @ut of state railway carriers would be forced to brea- down the trains into smaller units d. The claim was that longer trains are safer than shorter trains. Shorter trains can stop more 1uic-ly (. !nalysis a. This is an impediment to interstate commerce b. Faw in alidated ii. outh Caro$ina tate Hi+hway v. %arnwe$$ %ros. $. 6acts a. South Carolina law b. Fimit on truc- si;e c. Hea ier truc-s are more dangerous on the roads d. IJQ of nation?s truc-?s e2ceeded these limits (. !nalysis a. Faw upheld# unli-e the in alidation of the law regulating train length in the pre ious case b. The argument is that highways are more a matter of local concern that railways

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i. Boads can ser e purely local purposes# whereas railways not so much ii. These early cases show that early cases wrestled with what the appropriate standard was for burdens on interstate commerce iii. #ike v. %ruce Church %)asis of modern analysis' $. 6acts a. 5robably would ha e modernly been decided as discriminatory law (. )alancing Test a. Cost,benefit analysis b. )alance the burden on interstate commerce %cost' with the local interests %benefit' c. The argument is that a balancing test is a way of enforcing public policy d. Howe er# balancing tests tend to be hard to predict# and it opens up the charge that Audges are engaging in legislating through doing a balancing test i . %ibb v. (ava.o )rei+ht Lines $. 6acts a. Illinois law re1uired that truc-s using highways had to use cur ed mudflaps to -eep dirt and snow out of the tires
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b. !r-ansas and a number of other states passed a statute re1uiring all truc-s to ha e flat mudflaps because it increases the effecti eness of bra-ing c. In the $I8Js switching mudflaps too- a couple hours d. !r-ansas freight company brought an action challenging the alidity of the statute (. !nalysis a. The benefit to Illinois in safety is less than the burden on interstate commerce . 2asse$ v. Conso$idated )rei+htways $. 6acts a. Iowa passed a statute limiting si;e of truc-s %no 78 foot doubles' b. The longer truc-s are a little less safe because they are more li-ely to Aac--nife across the road c. .2ception was that they could be longer to deli er farm e1uipment %benefit the citi;ens of Iowa' d. .2ception also for border cities. The longer truc-s could come into the border cities. !lso the border cities could by local ordinance opt out of the state statute. This is to protect Iowa economic interests.

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e. Iowa is a maAor state with maAor interstates going through# allowing cross country tra el. (. !nalysis a. The benefit to Iowa is the state interest in highway safety# but the maAority doesn?t buy this argument i. There is no net gain in safety because the prohibition of longer truc-s means that companies ha e to dri e more numerous smaller truc-s. ii. +ore highway miles dri en actually increases the number of accidents# decreasing safetyG b. Done of the states around Iowa ban such truc-s# so this forces the truc-s to dri e all the way around Iowa or decouple the trailer and put the goods in other smaller truc-s. This is a burden on interstate commerce. *. Safety a. In this case# the court belie es e2pert testimony at trial that the statute does not increase safety much at all b. Is this a problem# relying upon e2pert testimony rather than the political process# the oters who oted for the law who belie ed that it impro ed safetyL
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4. )rennan Concurrence a. !naly;es as a discrimination case b. I!?s real purpose is to discourage interstate truc- trafficH so e idence on safety is irrele ant c. If in fact there is a safety problem or wear and tear to roads# Iowa is actually shifting the problem to other states# which is discriminatory d. Would not loo- to e2pert testimony but rather legislati e findings i. The issue of how to determine what the purpose of a statute is ii. It is not defined whether we should loo- to what the legislature actually found or what the legislature could ha e found as the purpose of a statute 4. The <mar-et participant= e2ception to the dormant commerce clause a. :efined i. The go ernment acting as a participant rather than a regulator. The go ernment engages in interstate commerce# rather than regulating interstate commerce. ii. The state itself buys/sells the goods# employs people# etc.

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iii. When the go ernment engages in commercial pri ate acti ity similar to that of other pri ate actors# the acti ity is not harmful to commerce clause interests i . 5ri ate commercial actors can <discriminate#= or choose with whom to do business . When the go ernment is not ma-ing laws but simply doing its own buying and selling it should ha e the same freedom as other economic actors b. ! good e2ceptionL i. There is less mar-et pressure and some susceptibility to political constraints ii. States act in their own best interest li-e pri ate corporations# but states define their interests differently# not Aust in terms of profit c. The e2ception only applies to dormant commerce clause rules %not preemption# for e2ample' d. ,eeves v. tate i. S: owned a cement factory and chose to sell only to South :a-otans e. -hite v. Mass. i. +ayor of )oston issued order re1uiring all construction proAects funded by the state to ha e at least 8JQ state residents in the wor-force /. outh:Centra$ 1i&ber Deve$op&ent; <nc. v. -unnicke i. 6acts $. !las-a owned timber and re1uired purchasers to process timber in !las-a before shipping out of state
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a. ! clause in the contracts that the state entered into with purchasers had this processing re1uirement (. !las-a corporation that purchased lumber and processed in 9apan sued under dormant commerce clause. 9apan does not import finished lumber. Therefore# under !las-an statute# !las-an timber could not be sold to 9apan. *. Statute designed to protect state?s timber processing industry ii. Contract !nalysis $. 5ri ate economic actors rarely impose contractual conditions upon what the purchaser must do after purchasing the product. )ut they sometimes do. (. The common law normally discourages placing such restrictions in contracts. iii. ! :ownstream Begulation $. 5utting downstream regulations on what purchasers must do in processing influences a transaction to which the state is not a party (. This is not being a mar-et participant# but rather being a lawma-er %a regulator' *. The state can only impose burdens on interstate commerce within the mar-et it participates. !las-a is only in ol ed in the timber selling mar-et# not the timber processing mar-et.

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4. So downstream regulations do not fit within the e2ception. The state can only discriminate in terms of who it does business with. 8. 6ederal <consent= to state laws that would otherwise iolate the dormant commerce clause a. #rudentia$ <ns. v. %en.a&in i. Faw $. Congress can authori;e states to do what they would be unable to do without Congressional action (. Congress can only authori;e the states to do what it is authori;ed to do i . Implied limits on the states deri ed from the 5ri ileges and Immunities clause of !rt. I> $. "enerally a. Te2t: !rt. I># Sect. (# Cl. $: The citi;ens of each state shall be entitled to the pri ileges and immunities in the se eral states. b. Constitutional doctrine affecting how states regulate economic acti ity c. 5urely a nondiscrimination principle d. States cannot treat out of staters differently with respect to fundamental rights %pri ileges and immunities' e. 5ri ileges and immunities of citi;ens# specifically (. 6undamental rights a. Hard to define# but contemplated by the 6ramers b. Dot granted by the Constitution

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c. Datural law rights %pree2isting legal rights without being positi ely stated' d. The problem is that natural law is in the eye of the beholder e. 6undamental interests that any human has f. Fife# liberty and the pursuit of happiness i. @wning property ii. Beligion# speech iii. 6amily autonomy i . +a-ing a li ing through ordinary means $. Certain occupations are not ordinary occupations# but <learned professions= that can be regulated by the states 0. United %ui$din+ 4 Construction 1rades Counci$ v. Ca&den a. 6acts i. The issue is whether the right to wor- for a public contractor is a fundamental right $. @rdinarily these are not things that can be licensed by the state ii. Camden# D9 ordinance re1uired at least 4JQ of contract labor in city construction proAects to be Camden residents iii. Camden is located right across the ri er from 5hiladelphia# 5! i . 5urpose $. Without this specification# there would be a rush of 5ennsyl anians nabbing up Camden Aobs (. D9 wanted to sol e its own unemployment problems
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b. !nalysis i. Commerce Clause $. The statute did discriminate against out of state commerce (. Howe er# the state is a mar-et participant. *. The dormant commerce clause is not iolated ii. 5ri ileges and Immunities Clause $. !rgument that the clause does not apply to an ordinance regulating a city# not a state a. Court treats the local subdi isions of the state as indistinguishable from the state under the 5/I Clause (. 6undamental Bight a. .arning a li ing is a fundamental right b. The statute prohibits out of staters from obtaining employment with Camden c. The court does not say the source of this right i. )eing employed is a prere1uisite to li ing and being a member of society ii. )eing employed is a right prere1uisite to e2ercising all other rights c. ( steps:
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i. Is the right of citi;enship a fundamental right under the 5ri ileges and Immunities Clause $. Sources of fundamental rights: a. What the 6ramers included in the Constitution# for e2ample the )ill of Bights i. Ith !mendment & the enumeration of certain rights is not meant to deny other rights. In other words# rights in the Constitution are not an e2clusi e list. b. What ordinary people thing are fundamental rights %custom': i. Scalia argues what ordinary people thought in $/0I ii. Kennedy would argue what people thin- today c. 5hilosophical rights ii. Whether there is a substantial reason for the difference in treatment I>. !llocation of 5owers )etween the .2ecuti e and Fegislati e )ranches of the 6ederal "o ernment a. Introduction to the )asic Issues: 7oun+stown and Da&es 4 Moore i. Theories of 5ower :istribution $. Separation of 5owers: !rticles I through III say that the legislati e power is ested in Congress# e2ecuti e power is ested in the 5resident# and Audicial power is ested in the Supreme Court and inferior courts established by Congress (. Chec-s and )alances
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a. The 5resident can propose and suggest legislation and eto legislation. b. The legislature appro es high e2ecuti e officers# otes the money used by the e2ecuti e branch. *. The U.S. Constitution reflects both sets of ideas# which creates conflicts ii. Supreme Court Besolution of Conflicts $. The S.Ct. maybe should not inter ene because there are chec-s and balances in place to regulate conflicts between the e2ecuti e and legislati e branches (. The counterargument is that it is the pro ince of the Court to state what the law is iii. Historical "rowth of the .2ecuti e )ranch $. The power of the e2ecuti e branch has increased o er the years# which would ha e surprised the 6ramers (. The 6ramers may ha e intended the legislature to become the most powerful branchH !rticle I is the longest article *. Beasons for growth of e2ecuti e branch: a. "rowth of the federal bureaucracy b. The 5resident?s role has become more prominent in handling national crises c. Congress has more stringent Constitutional limitations than the 5resident d. Congress ne er spea-s with a single oice because of the arious opinions# but the 5resident spea-s with one oice iv. 7oun+stown heet Co. v. awyer $. 6acts a. Dational steel union threatened to stri-e in the middle of the Korean War
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b. There were statutes on the boo-s authori;ing the federal go ernment to end stri-es for the national good in certain circumstances# but none of those statutes applied c. 5res. Truman went to Congress and as-ed them to pass a law permitting him to act# and Congress did nothing d. 5res. Truman issued an e2ecuti e order to the Secretary of Commerce to sei;e the nation?s steel industry to a ert the stri-e e. 5res. Truman sent a letter to Congress saying that if what he was doing was illegitimate to ad ise him f. ! steel mill sues the Secretary of Commerce (. Ta-ings a. 8th !mendment says that pri ate property cannot be ta-en for public use without Aust compensation b. This prohibition is read to imply that if the go ernment is willing to pay# it may sei;e property c. Therefore# the go ernment is authori;ed to sei;e the steel industry d. The issue is solely whether the 5resident can do this on his own e. The Court holds this action unconstitutional *. +aAority @pinion a. 5resident?s power may either originate with an act of Congress or within the Constitution itself b. Congress has not authori;ed# so the issue is whether the Constitution authori;es it c. Commander in Chief 5ower i. The 5resident must see to it that the soldiers ha e the materials they need to fight the war
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ii. While sei;ing mills is related to the war# the causal connection is too attenuated $. There is a DP5 Clause listed in !rticle I# but not in !rticle II# which suggests that perhaps the 5resident cannot do whate er is necessary to carry out his commander in chief powers (. This attests to the notion that the 6ramers might ha e seen the 5resident as an <errand boy= of the legislature d. The duty to faithfully e2ecute the law i. )ut this does not imply the power to ma-e law# only to e2ecute e. The maAority concludes that the 5resident lac-s Congressional or Constitutional authority to ta-e the action he too-# and therefore his action was unconstitutional f. 6urther# this e2ecuti e order loo-s li-e a statute in its language i. It is essentially legislati e in nature ii. It contains a preamble and the authori;ation to promulgate additional regulations iii. !dditionally# this loo-s li-e a ta-ing. ! ta-ing re1uires the e2penditure of funds. Congress has the power of the purse# which suggests that this is legislati e. 4. 6ran-furter Concurrence a. 6ocuses more on chec-s and balances approach b. BeAects the rigidity of separation of powers theory c. Becogni;es that 5resident action is o-ay when no listed in the Constitution# but only if a longstanding practice that has not been 1uestioned by Congress
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d. !rgues that the powers o erlap# but in this case# Congress has e2pressed its will through being silent when he as-ed for permission 8. 9ac-son Concurrence a. !pproach is that 5residential powers are fle2ible# based upon what Congress has done b. )elie es that there are concurrent powers %Fegislature and 5resident' $. Congress and the 5resident ha e concurrent powers in this case (. Congress? power comes from the power to maintain armies and the 5resident?s power from being Commander in Chief c. * Situations: i. If Congress passed a statute authori;ing 5residential action# then the 5residential action is legitimate. 5resident can e2ercise his own powers and the shared powers. This is when the 5resident?s authority is at its ma2imum. ii. If Congress has not granted the power to act in the way the 5resident is acting# the 5resident can e2ercise his own powers $. It seems that Congressional silence in this case was ac1uiescence (. )ut the maAority finds that silence was Congressional disagreement iii. If Congress e2pressly/impliedly disagrees with the 5resident# the 5resident can only do what is enumerated in the Constitution as his own powers less any Constitutional powers Congress has. 5residential power is at its minimum.

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$. 9ac-son reads Congress? silence as opposition to the 5resident?s actions. (. 8 years before there had been an earlier bill 7. >inson?s :issent a. Says that the 5resident has the power to e2ercise broad emergency powers in certain times b. >inson is right that there is historical precedent for 5residents in time of war e2ercising certain powers# e en if they weren?t legal . Da&es and Moore v. ,e+an $. 6acts a. Iranians held our ambassadors as hostages b. )y e2ecuti e order# 5resident fro;e Iranian assets in !merica. The assets were set aside for the use of !merican plaintiffs who wanted to sue Iranian companies. c. Iran wasn?t happy with this# so a deal was struc- in which Iranians agreed to release hostages and !merica released Iranian assets and set up an account in the Detherlands where they would remain for litigation. 5ending litigation in the U.S. was dismissed and claimants had to bring the claims in an international arbitration forum. d. .2ecuti e agreement directed pending litigation %!merican contractors against go t. of Iran' to be dissol ed e. 5laintiff company sued because they did not want to ha e to gi e up efforts in litigation to start o er in arbitration o erseas f. 5laintiff asserted that 5residential orders were unconstitutional
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(. Court a. @rder unfree;ing the assets and nullifying attachments i. This action was sufficient because the I..5! was a Congressional statute that authori;ed this ii. Since Congress authori;es it and 5resident does it# the 5resident has all of his and the legislature?s authority b. @rder ending pending litigation i. 9ustice )lac- would find that this is not an e2ecuti e type of acti ity# so it was inappropriate ii. )ut the maAority finds it is o-ay $. Congress has not e2plicitly passed any statute supporting 5residential action (. Interprets Congressional silence as Austification/ac1uiescence %whereas in 3oungstown# silence was interpreted as Congressional opposition' a. @ne distinction is that this case in ol es foreign affairs and 3oungstown in ol ed domestic affairs i. It seems that 5resident has more foreign affairs powers in the e2press language of !rticle II ii. Howe er# 3oungstown in ol ed foreign affairs to an e2tent# in that the steel production furthered the war effort
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b. 5articular !reas of Conflict i. 6oreign !ffairs and War 5owers $. Constitutional Te2t a. Congress i. Begulating commerce with foreign nations ii. :eclaring war iii. :efining crimes against the law of nature i . Baising and supporting armies and na ies b. 5resident/Congress i. Degotiate and ratify treaties ii. !ppointment of ambassadors c. 5resident i. 5ower o er e2ecuti e agencies ii. 5ower to recei e ambassadors iii. The authority to act as Commander in Chief of the armed forces (. Congressional !uthori;ation of 5resident to !ct %U. . v. Curtiss -ri+ht' a. Congress passed statute allowing 5resident to ma-e an order suspending sales of arms to the 5araguay war b. Congress is allowed to ta-e such an action because it is allowed to regulate commerce with foreign nations c. Howe er# can the Congress authori;e the 5resident to do something that the Constitution only empowers Congress to doL i. The 5resident has more authority to act unilaterally with respect to foreign affairs
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ii. !lso# the notion that the Constitution only states a limited number of e2plicit e2ecuti e powers but that since there are se eral listed with respect to foreign affairs# the 5resident has a general power o er foreign affairs iii. !lso# the need for the 5resident to spea- with one oice# better than Congress *. War 5owers a. Unilateral e2ercises of military force are not e2pressly authori;ed by the Constitution but ha e occurred historically i. 6rom the halls of +onte;uma to the shores of TripoliH Thomas 9efferson ordered the troops into battle ii. U.S. na y in the ci il war established a bloc-ade around Confederate ports in Ci il War. $. The problem is that Congress had ne er declared war. (. Howe er# sei;ures were Austified because of 5residential order# from where the te2t says 5resident can suppress domestic insurrections iii. >ietnam was the straw that bro-e the camel?s bac$. Congress passed the War 5owers Besolution (. War 5owers Besolution a. 5resident must notify Congress of placing the troops into action b. Congress has 7J days to authori;e the 5residential use of military force
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i. If Congress fails to act# the troops must come bacii. If Congress appro es# it allows the troops to remain for *J days c. 5resident may introduce troops into hostilities pursuant to i. ! declaration of war ii. Specific statutory authori;ation iii. ! national emergency created by attac- upon the U.S.# its territories or possessions# or its armed forces *. Constitutionality a. +ost 5residents say it?s not b. )ut it is followed nonetheless b. 5residential detention of military combatants i. !" #arte Mi$$i+an $. 6acts a. 5residential power to suspend the writ of habeas corpus was the issue b. Fincoln suspended habeas corpus without Congressional authori;ation c. !rt. I# Sect. I mentions that the habeas corpus can be suspended in time of emergency. Sect. I is a list of the things that Con+ress cannot do# meaning
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that suspension was intended to be done by Congress. d. +illigan was belie ed to ha e engaged in sabotage in a state that ne er seceded e. +illigan was sei;ed and held without habeas corpus f. +illigan claimed he should be tried by a ci ilian court (. Court a. +illigan must be tried by ci ilian court# not a martial court b. The courts of the state were open and a ailable# so the courts were a ailable to try him *. Two categories: military indi iduals tried in military courts and ci ilians tried in ordinary courts ii. !" #arte =uirin $. 6acts a. "erman nationals who had li ed in the U.S. came ashore ia a submarine intending to do sabotage b. They were arrested within less than a day (. Court a. They were not wearing uniforms# so they were treated as ci ilians b. !ccording to +illigan they could be tried in ci ilian courts
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c. Howe er# the 5resident set up a military tribunal to try the defendants. It was an ad hoc commission to try the defendants without some of the procedural safeguards that would ha e been there in a normal trial. *. These guys are <unlawful combatants= a. Dow there are three categories: unlawful combatants# military indi iduals# and ci ilians b. They were unlawful because they were spying# which is different from what soldiers ordinarily do iii. "uantanamo prisoners as unlawful combatants $. In Ouirin they were unlawful combatants because they were engaged in espionage and sabotage (. +ost of the "uantanamo prisoners were captured on the battlefield *. 5resident wanted to a oid classifying these prisoners as 5@Ws to a oid the "ene a Con ention# which has certain pro isions gi ing rules against 1uestioning# interrogation# etc. 4. Wanted to a oid the criminal Austice system which gi es certain procedural safeguards to prisoners 8. They were unlawful combatants because they did not represent a national entityH anything they did made them an unlawful combatant 7. :etainees were placed there to a oid putting them within U.S. Aurisdiction so
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that the Constitution would not apply %though the Court later held that the Constitution did apply' i . !pplicability of the Constitution?s Beach $. :oes the Constitution reach a defined territory or a group of actors (. The Court has said that the Constitution applies to the U.S. territory# and not to all actors *. Whether "uantanamo is a part of the U.S. a. ,asu$ v. %ush said that yes# it is and the Constitution applies there b. Though Cuba has ultimate so ereignty o er Cuba# the U.S. has e2clusi e Aurisdiction o er "uantanamo )ay and therefore detainees there are subAect to Constitutional rights . Ha&di v. ,u&s/e$d $. 6acts a. In ol ed the only !merican citi;en at "uantanamo (. Two Issues: a. Whether 5resident can authori;e detention b. Can the 5resident determine what procedures will be gi en in tribunals *. 5residential authori;ation of detention

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a. Statute: Do citi;en shall be imprisoned by the U.S. e2cept by act of Congress b. Habeas relief is a ailable for this U.S. citi;en# though the 5resident did not agree i. Dot Aust for indi idual rights# but a separation of powers issue ii. The 5resident should not be able to detain someone without the right to habeas corpus c. !U+6 statute authori;ed the 5residential detention i. )ut the Court ma-es a stretch: the !U+6 only gi es the 5resident military powers to use force against those who are terrorists ii. This is not an e2plicit authori;ation of the 5resident to detain these people iii. !rt. I Sect. I mentions that the habeas right may be suspended# which suggests that Congress should be in ol ed in the decision to suspend habeas corpus

d. The issue is separation of powers: whether only Congress

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or also the 5resident can suspend habeas corpus 4. Can the 5resident establish how the tribunals will be constituted a. Court says there must be a factfinding process for why the guy is detained b. In response# the 5resident set up special tribunals with ad hoc rules i. Ha&dan v. ,u&s/e$d $. 6acts a. :etainee charged with conspiracy triable my military commission b. )ut the e2act nature of the conspiracy was not defined. >ery ague charges. (. Whether an ad hoc tribunal is sufficient a. Do# these tribunals do not ha e the ade1uate go erning rules b. Congress is authori;ed to establish tribunals in !rt. I# Sect. 0 c. Congress passed a statute authori;ing 5resident to establish these tribunals d. Separation of powers issue is therefore sol ed because Congress has gi en the 5resident authority to do what he did ii. 5ower to Hire# 6ire and Control !dministrati e @fficials
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$. !dministrati e Faw history a. In the country?s early history the federal bureaucracy was ery small but now is huge b. Congress creates these e2ecuti e agencies ia statute i. There is no e2plicit Constitutional te2t ii. Uses DP5 clause $. 6or e2ample# Congress gi en power to ta2. So it is DP5 to create an IBS# an e2ecuti e branch# for the collection of that ta2. (. The idea is if Congress is entitled to regulate a certain thing# they can establish an administrati e agency to ma-e it happen. c. !rticle II suggests that these agencies will e2istH but the Constitution says ery little about how the e2ecuti e branch will be set up d. 5resident has power to appoint officers in the agencies and super ise the agencies to ensure that they are e2ecuting the laws e. 9udiciary has some super isory authority o er the agency also. Therefore it is hard to allocate among the * powers this super isory power. (. What .2ecuti e !gencies :o a. .nforce the laws b. 5ass regulations i. S.C prohibition of engaging in fraud is a rule# not a statute ii. Income ta2 pro isions

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c. !dministrati e agencies pass rules that ha e the force of law d. !lso do things that seem Audicial in nature i. There are hearing panels within the IBS ii. !dministrati e hearings before arious agencies e. Supreme Court has held that agencies with mi2ed powers is Constitutional but has not suggested why. !gencies ha e acted with mi2ed powers for years# and the Court is hesitant to dismantle the entire federal bureaucracy. *. 5residential Control o er !gencies a. Constitution says that 5resident has the duty to see to the enforcement of the law b. This is done through controlling administrati e agencies i. Controlling budget ii. .2ecuti e orders iii. Be iew process of agency actions i . Hiring and firing agency officials 4. Congressional Control o er !gencies a. 5ower to create and abolish i. 5asses statutes to establish the agency# setting up its powers# duties# internal structure ii. Congress can also abolish them b. >otes the funding for the agencies c. Congress can hold hearings i. Hearings inform Congress so that Congress can pass appropriate legislation %DP5 Clause'
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ii. Hearings can also e2ercise control o er agencies through forcing officers to answer for their actions at hearings 8. 9udicial Control o er !gencies a. 5assage of regulations can be appealed to the court b. +a-e sure that agencies stay within their bounds 7. !ppointment a. Constitutional Te2t i. The 5resident# with ad ice of the Senate must appoint: $. Cabinet (. @fficers of the U.S. a. !ttorney "eneral b. High le el military officers c. .tc. ii. Congress may by law est appointment of inferior officers in the 5resident# courts of law# or heads of departments iii. There is a third category of officers that the Constitution is silent on $. . eryone else is Aust appointed as a matter of law (. Congress can go ern this by statute howe er it wants *. +odernly there is a ci il ser ice e2am to become a post office wor-er# etc. i . Who can be appointed $. Cannot be in the e2ecuti e system if you are a Congressman
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(. Dot many pro isions b. %uck$ey v. >a$eo i. 6acts $. 6ederal .lections Commission %6.C' enforces election campaign rules (. 6.C has all * powers a. +a-e rules go erning elections b. !ppoint funds c. Hold hearings *. Congress passed a law allowing Congress to appoint 6.C members ii. Issue: Whether Congressmen can ser e on the 6.C iii. Court $. Congressmen cannot ser e on the 6.C (. 5eople ser ing on the 6.C are officers of the U.S.# so they must be appointed by the 5resident# with confirmation by the Senate *. Congressmen cannot directly ser e on administrati e agency boards /. Bemo al a. Constitutional te2t only spea-s of impeachment ia the Senate# but says nothing else of remo al b. !rgument that 5resident should be able to ha e unfettered discretion in remo ing: i. The president?s duty is to enforce the laws ii. Since he has to enforce through delegating to officers# he can only do his duty to e2ecute
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faithfully if he can remo e officers who are not faithfully e2ecuting the laws iii. Unitary e2ecuti e: $. .2ecuti e power is ested in the 5resident (. The notion that all such power is ested in the 5resident c. !rgument that Congress should ha e say so in remo al i. Senate is re1uired to confirm for appointment# so Congress should be allowed to ha e input in remo al ii. The 6ederal Beser e )oard is not answerable to anyoneH Congress creating this board under the DP5 Clause and made it unanswerable to the 5resident d. Myers v. U. . i. 6acts $. 5ostmasters were considered officers of the U.S. (. 5resident wanted to fire a postmaster *. Congress had passed a statute saying 5res. could not remo e without the Senate ii. Court $. 5resident had unlimited power to remo e (. 5ostmaster was e2ercising purely e2ecuti e powers e. Hu&phreys !"ecutor
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i. 6acts $. 5resident wanted to fire an 6TC commissioner (. 6TC has all * powers. Dot purely e2ecuti e. *. 6TC was set up by Congress to be somewhat independent from the 5resident. 4. 6TC members were set up for terms and could only be remo ed for good cause. This shifted power away from the 5resident. ii. Court $. Congress can retain power to remo e the 6TC members because their actions are not purely e2ecuti e (. They decides rules and regulations and particular disputes /. %owsher v. ynar i. 6acts $. !ct to reduce the budget deficit by authori;ing the Comptroller "eneral to report conclusion to the 5resident (. 5resident re1uired to put C"?s recommendations into effect *. !ct creating the C"?s office allowed the C" to be remo able by a Aoint resolution of Congress ii. Constitutionality of Fegislature )eing !ble to Bemo e the C" %e2ecuti e' $. Congress is able to effecti ely e2ercise e2ecuti e power because it creates an
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e2ecuti e officer but reser es to itself the power to e2ecute the laws through remo ing the officer (. The power to fire is the power to control: Congress could threaten to remo e the officer if he did not do what Congress wanted *. !lso# Congress retaining authority o er the C" effecti ely ma-es the C" legislati e in nature and therefore he cannot wield authority o er the e2ecuti e iii. Bule: Congress cannot reser e power to itself to remo e e2ecuti e officials i . :issent says that C" uses both e2ecuti e and legislati e powers %chec-s and balances approach' +. Morrison v. *$son i. 6acts $. Dormally !ttorney "eneral prosecutes crimes against the U.S. (. When it was suspected that the e2ecuti e branch iolated the law# there came a need for independent counsel to prosecute# since the !" was part of the e2ecuti e branch *. Statute allowed the establishment of independent counsel by the court 4. !llowed the dismissal of the counsel by Congress for <good cause= 8. In this case# the independent counsel was appointed to in estigate obstruction of Congressional in estigations
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ii. !ppointment 5ower $. If counsel is an officer of the U.S.# he must be appointed by the 5resident (. )ut counsel is an inferior officer: a. 5osition with limited duties %only to in estigate one particular charge' b. 5osition with limited authority %subAect to control by the !" & !" able to dismiss for good cause' c. 5osition limited in tenure *. The Constitution says that Congress can gi e 5resident# heads of departments# or the courts the power to appoint inferior officers a. )ut there is an argument that Congress should not ha e gi en the courts the power to appoint the independent counsel b. )ut maAority says it is allowed in this case iii. Bemo al power $. Can only be fired by the !" for good cause (. The independent counsel is purely e2ecuti e in nature# which would suggest under +yers that Congress could not limit the remo al power a. )ut this case is an e2ception to the <purely e2ecuti e= officer rule

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*. +aAority says that the act limiting the !"?s remo al power does not significantly interfere with the 5resident?s duty to e2ecute the laws a. Chec-s and balances approach b. Says there is no separation of powers iolation because there is no Audicial or legislati e usurpation of e2ecuti e powers iii. :elegation of Congressional 5owers to @ther )ranches $. Unconstitutionality a. !rticle I Sect. $ ests legislati e power in Congress b. 9ust ha ing the power does not gi e the power to delegate (. 5ermissibility of :elegation a. Howe er# Congress is not institutionally capable of passing e ery regulation b. Congress has to delegate a certain amount of rulema-ing to e2ecuti e agencies c. Compromise: i. Congress must ma-e the fundamental policy choices ii. !fter Congress gi es an intelligible principle to guide the agencies# Congress may authori;e the agencies to fill in the details with lawma-ing *. !s a result of Congress ha ing to gi e rulema-ing to agencies# Congress uses certain methods to limit agency powerEThe Fegislati e >eto# etcE. i . The <Fegislati e >eto#= the <Impoundment= Contro ersy# and the <Fine Item >eto= $. Fegislati e >eto
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a. :efined i. The legislati e power creating the agency reser es the right to eto agency action if the legislature disagrees ii. This ma-es sense under an agency theory that the agency is acting on behalf of the legislature and cannot act unless the legislature %the principal actor' agrees b. <( v. Chadha i. 6acts $. Statute pro ided that isitors to the U.S. had to ha e a isa %certain amount of time to remain in the U.S.' (. Dormally# you are deported if you o erstay the isa *. The statute pro ided a mechanism that someone subAect to deportation could appeal to the IDS and as- for special dispensation 4. Statute also contained a legislati e eto pro ision: a. When agency rules who gets to not be deported# this is reported to the Congress b. Congress then could determine whether the agency properly e2ercised discretion 8. Chadha and four others were allowed to stay by agency# but then Congress said this was improper and o erruled# re1uiring deportation ii. Unconstitutionality
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$. The statute is legislati e in nature and thus must be passed as re1uired by the Constitution (. Whether this is legislation a. There is a presumption since Congress is doing it b. This statute alters rights# and legislation alters rights i. Howe er# Audicial Audgments alter people?s rights and those are not legislation c. This same effect could ha e been achie ed by legislation d. This is not con incing that this is legislation e. 5owell concurrence sees this as Audicial acti ity because statute was applied to Chadha f. It could be argued that this is e2ecuti e in nature because the e2ecuti e e2ercises discretion in whom to prosecute g. :issent says that whether this is legislation doesn?t matter because powers o erlap i. 5ractically spea-ing there are many other pro isions li-e this ii. This allows a balance of power between Congress and the e2ecuti e branchH gi es Congress bac- a
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little of the power it lost through being forced to delegate *. Congress can delegate the power to the IDS to ma-e rules regarding deportation but it cannot reser e to itself the power to eto IDS actions (. Fine Item >eto %C$inton v. (ew 7ork' a. 6acts i. Congress passed Fine Item >eto !ct to control the budget deficit ii. The 5resident was authori;ed to cancel in whole any item of spending in a bill iii. If Congress wanted the money restored# Congress could o errule the 5resident b. Fine Item >etoes i. Common in state go ernments because of state constitutions allowing them to balance the budget ii. >ery difficult for legislati e bodies to control spending because of conflicting interests c. Fine item eto as unconstitutional i. +aAority ta-es a separation of powers approach ii. The Court sees this as legislati e in nature because the 5resident changes the bill before signing it $. The change in ol es spending and Congress has power o er spending (. Changing the bill is inherently a legislati e act
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*. The counterargument is that choosing not to appropriate money is an e2ecuti e act %simply choosing not to spend' a. !lso if you ta-e a chec-s and balances approach# a line item eto acts as a chec- on Congress b. This is good because modern Congressional bills are the si;es of telephone boo-s# rather than single issues c. 6orcing the 5resident to appro e or reAect a whole parcel of issues is inappropriate# so allowing the line item eto restores some power to the 5resident that he has lost in modern system . .2ecuti e 5ri ilege and Immunity $. 5ri ilege :efined a. Dot ha ing to gi e e idence b. The Constitution gi es immunities to Congressmen while engaged in their worc. )ut there are no listed e2ecuti e immunities gi en to the 5resident 8. U. . v. (i"on a. 6acts i. Watergate in ol ed the 5resident?s agents brea-ing into the democratic national offices ii. 5resident had certain tapes that had incriminating information

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iii. Tapes were subpoenaed as e idence in criminal trial of Di2on and others b. .2ecuti e 5ri ilege i. 5resident is subAect to subpoena because he is not abo e the law ii. Whether e2ecuti e pri ilege e2ists at all $. Dothing in the Constitution?s te2t (. !rgument of necessity: the 5resident sometimes needs to maintain confidentiality a. The problem is that there is no DP5 clause for the e2ecuti e branch b. Howe er# the structural argument is that the Constitution gi es power to negotiate treaties and other items of national security# so there is an implicit e2ecuti e pri ilege. Decessary to accomplish the duties gi en to the 5resident. iii. Do e2ecuti e pri ilege to refuse subpoena $. )alancing test: Importance of the general pri ilege of confidentiality of 5residential communications against the hampering of administration of criminal Austice (. Importance of 5residential confidentiality compared with importance of information *. Court used this general balancing test in future e2ecuti e pri ilege cases 4. Deed for confidentiality
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a. There are core issues# li-e need for national security# that ma-e the need higher. That is not present in this case. 8. Deed for information a. Use of e idence in an ongoing criminal trial b. Societal interest in finding e idence is high: due process interest 0. (i"on v. )it6+era$d a. 6acts i. 5resident terminated :ept. of the !ir 6orce head ii. The guy sued b. Court i. )right line rule: 5resident does ha e an absolute immunity from ci il lawsuits for official acts ii. +a-ing it only a 1ualified immunity would allow the possibility of lawsuits to harass the 5resident and distract him from his duties 4. C$inton v. 3ones a. 6acts i. 5laintiff claimed that Clinton made se2ual ad ances to her while Clinton was go ernor ii. Clinton was now in office iii. Clinton as-ed for suit to be postponed until he was out of office b. 5ostponement
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i. 5ostponement of ci il suits is allowed for military members until they are done with ser ice ii. Dot in this case because this was not an act out of 5resident?s official duties c. Do absolute ci il immunity for unofficial 5residential acts i. The 6it;gerald reasoning would not apply because it would not affect the 5resident?s choice of official actions ii. Historically only three sitting 5residents had been subAected to suits for their pri ate actions >. Introduction to Constitutional 5rotection of Indi idual Bights a. 5rotections of .conomic Bights in the @riginal Constitution of $/0/ i. The <Ta-ings= Clause $. The Clause a. Te2t: 5ri ate property shall not be ta-en for public use# without Aust compensation %8th !mendment' b. The 6ramers saw the right to property as inherent in the nature of being free/independent c. Howe er# right to property is not absolute: i. 5roperty can be ta2ed ii. 5roperty is restricted in its use by ;oning ordinances iii. 5roperty cannot be used as a nuisance to others i . 5roperty is subAect to ser itudes and easements by the go ernment d. Still# the go ernment protects property e. Two main 1uestions:
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i. What constitutes public use ii. What is a ta-ing (. 5urpose a. "o ernmental need b. 5ublic interest ser ed by allowing the proAect to go forth c. Usually people ha e a price at which they will sell d. The notion that it is inappropriate for the pri ate person to get a windfall through demanding a high price from the go ernment e. There must be Aust compensation# though# so that the cost can be borne by the entire community and not Aust the person whose land is condemned *. 5ublic Use a. Clear cut cases i. Schools and roads ii. Harder 1uestions are when go ernment sei;es property to transfer to a pri ate owner to achie e a societal good b. %er&an v. #arker i. 6acts $. :.C. condemned blighted properties (. "o ernment bought up the properties at forced sale and resold to urban rede eloper ii. Court $. The nation?s capital was o ercome with being a deteriorating slum

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(. This was a legitimate public use to engage in city impro ement c. Hawaii Housin+ Authority v. Midki// i. 6acts $. Hawaii used to be a -ingdom in which the -ing owned the islandH island e entually sold to industrial de elopers (. +ost of the land was owned by a handful of owners# so most residents had to rent *. Fegislature wanted to redistribute the land so that more people would become landowners 4. 5assed a law allowing buying and reselling the land plots to the tenants ii. Court $. 5ublic use is determined by the state (. There is no re1uirement that ta-en land must be put to use for the general publicH the use can be use to cure a public e il d. 2e$o v. City o/ (ew London i. 6acts $. City in economic decline# city de elops re itali;ation plan (. 5ri ate pharmaceutical company# 5fi;er# was to build a new research facility as part of the plan *. 5laintiff?s land was condemned# though it was in a nice# non,blighted area ii. 5ublic Use
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$. The legislature gets to determine whether or not this is good public policy# whether this will benefit the public (. 5ure transfer from pri ate person to pri ate person is not public useH but transferring to a pri ate person does not by itself mean that the ta-ing was not for a public use *. The fact that no public ser ice is being pro ided does not pre ent this from being a public purpose# which constitutes a public use 4. .liminating a social e il is a public purpose 8. .conomic de elopment is traditional go ernmental function and therefore a public purpose iii. :issent $. 5ublic use is different from <general welfare=H public use is narrower and therefore the power of eminent domain does not e2tend o er something with merely a public purpose (. The main purpose is to benefit 5fi;er# with only incidental public benefits i . Fouisiana response was to amend the F! Constitution to forbid e2propriation e2cept for when the land is blighted %adopted @?Connor analysis' 4. Begulatory Ta-ings a. Loretto i. 6acts

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$. @rdinance re1uired lessors to allow the landowners to lea e access to cable companies (. This increased the alue of the buildings ii. Court $. )ecause there was a physical in asion of the property# this was a ta-ing# so Aust compensation had to be paid (. Where er there is physical occupation# there is a ta-ing b. #ennsy$vania Coa$ v. Mahon i. 6acts $. Coal companies mining coal# and the mining was causing the land to ca e in (. Fegislature passed law telling the companies to lea e enough coal in place to hold the roc-s abo e to pre ent subsidence ii. Begulatory Ta-ing $. There was a real economic loss because some portion of the coal that they could not mine could not be sold (. 2eystone case a. Under irtually similar facts# the Court said it was not a regulatory ta-ing b. !fter the regulation# the coal company was still profitable c. :idn?t loo- at lost alue# but rather the alue that remained

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d. @nly (Q of the coal was lost# so there was plenty coal left to ma-e the company profitable e. This is the modern analysis

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