Con Law Young 08
Con Law Young 08
Con Law Young 08
Constitutional Law
Young, Fall 2008
Foundations
I.
II.
Functions of Constitutions
Constitute the Government set out general philosophy, set the tone for other
laws, spell out duties of elected officials
Differ from ordinary laws b/c less specific; more attention to structure,
protections, and procedures
District of Columbia v. Heller, 128 S. Ct. 2783 (2008) [P27]
A.
U.S. Const., 2nd Amend.: A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not
be infringed.
B.
Contending Positions
judicial precedent
The Relevance of Policy: Dueling experts and studies contend that strict
handgun bans will increase/decrease gun crime and accidents. This
evidence raises several questions, including:
III.
Judicial Review
A.
The Council of Revision Proposal: The Constitutional Convention
considered and rejected a proposal for a Council of Revision an
institution within the federal legislative or executive branch that would review
laws for their constitutionality.
B.
II.
III.
Review of State Laws: The Court was almost surely understood to have the
power to strike down unconstitutional state laws.
C.
The Convention Debates: Statements at the Constitutional Convention
generally assumed that judicial review would exist.
D.
Federalist 78 (Hamilton) [P67]
No legislative act . . . contrary to the Constitution, can be valid. . . . If it be said
that the legislative body are themselves the constitutional judges of their own
powers, and that the construction they put upon them is conclusive upon the
other departments, it may be answered, that this cannot be the natural
presumption. . . . It is not otherwise to be supposed, that the Constitution
should intend to enable the representatives to substitute their will to that of
their constituents. It is far more rational to suppose, that the courts were
designed to be an intermediate body between the people and the legislature, in
order . . . to keep the latter within the limits assigned to their authority.
Chronology for Marbury v. Madison:
Nov. 1800: Adams and the Federalists lose the elections of 1800. Jefferson and Burr
tie in electoral votes.
Feb. 4, 1801: John Marshall takes office as Chief Justice after being appointed by
Adams. Marshall continues to serve as Secretary of State.
Feb. 13, 1801: Federalist Congress passes the Circuit Courts Act establishing six circuit
courts with 16 new judges, and reduces the Supreme Court from 6 to 5 justices.
Feb. 17, 1801: House of Representatives breaks electoral deadlock in favor of
Jefferson.
Feb. 27, 1801: Federalist Congress passes Act creating 42 new Justices of the Peace in
DC.
March 3, 1801: Senate completes confirmation of the new Justices of the Peace, but
Marshall fails to deliver all the new Justices' commissions.
March 4, 1801: Jefferson takes office and instructs Madison, the new Secretary of
State, not to deliver the commissions.
Dec. 21, 1801: Marbury files suit.
March 8, 1802: The new Republican Congress repeals the Circuit Courts Act and
abolishes the Court's 1802 term.
Feb. 1803: The Court hands down its decision in Marbury. Six days later, it upholds
the repeal of the Circuit Courts Act against constitutional challenge. Stuart v. Laird,
5 U.S. (1 Cranch) 299 (1803).
Laws at Issue in Marbury
U.S. Constitution, Art. III, 2
Clause 1: The Judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the laws of the United States, and Treaties
made, or which shall be made, under their Authority; -- to all Cases affecting
Ambassadors, other public Ministers (interpreted as foreign ministers) and
Consuls; -- to all Cases of admiralty and maritime Jurisdiction; -- to
Controversies to which the United States shall be a Party; -- to Controversies
between two or more States; -- between a State and Citizens of another State; --
IV.
Three Questions
1.
Does Marbury have a right to the commission he demands?
2.
If he has a right, and that right has been violated, do the laws of his
country afford him a remedy?
3. If they do afford him a remedy, is it a writ of mandamus issuing from this
court?
V.
Marshall has to rule that Madison and Jefferson did something illegal, while
making sure he doesn't issue an order that Madison and Jefferson can ignore;
by doing this, he grabs power for the SCT and credibility for JR precedent
Marshall spent a lot of time deciding stuff he didn't have the power to say (b/c
it was outside the scope of the case once he decided the SCT didn't have
jurisdiction), but Jefferson didn't have the power to ignore Marshall's
declarations b/c he used the dicta to say it, he establishes all sorts of power for
the SCT and there's nothing Jefferson can do about it
Implication -- all of the power comes from the courts' power to decide the case
in front of it, the scope of the case is crucial -- has to have someone who was
injured by the statute so the court can decide it, have to have standing
Critiques of Judicial Review [P87]
A.
The Counter-majoritarian Difficulty: Professor Bickel argues that the
presumption in a democracy is that the majority of the people rules, and any
departures from that principle like judicial review have to be specially
justified. This is called the counter-majoritarian difficulty.
Will see them stand in the way of progress (though they also promote it)
D.
Arguments for JR (not Marshall's, from notes)
C made a system where lots of things get in the way of quick changes,
prevents accumulation of power (for better and for worse)
E.
Congress has power over the jurisdiction and budgets of lower federal
courts -- they can't hear abortion, flag-burning, terrorism detainee cases;
Congress can make it hard for courts to function with budget control
Rights and Remedies -- Congress has control over what courts can do; can
create immunity doctrines, can amend the C (though only 4 amendments
have overturned SCT decisions), most Constitutional change comes from
JR b/c decisions are easier to overturn than creating amendments
State courts are courts of general jurisdiction; can hear any sort of case,
unless either state or federal law specifically forbids it
Federal and state court jurisdiction often overlaps, so that the plaintiff can
choose where to file
Congress has the power to determine how much jurisdiction the federal
courts will have, up to the maximum limits set forth in Art. III
3.
II.
III.
Zone of interest standing (are you the type of party this law was
designed to help?)
Ingredients of Constitutional Cases
A.
Scope: The Constitution binds the Governmentnot private parties;
constitutional litigation will always involve some governmental action and the
Government (either local, state, or federal) will generally be a party
B.
Posture: Generally, constitutional cases will arise in one of two ways:
1.
Government acts to enforce a law or policy against a private person, and
the private person defends by arguing that the governments action is
unconstitutional (e.g. Texas prosecutes Gregory Johnson for flag-burning)
2.
A private person initiates litigation to challenge a law or other
governmental action (e.g. Marbury sues to establish his right to a
commission as justice of the peace)
C.
Always Two Laws at Issue
1.
The statute or other governmental action being challenged; and
2.
The constitutional provision that the governments action is said to
infringe.
D.
Facial vs. As-Applied Challenges
Some government actions are always unconstitutional. (e.g., a statute
barring criticism of the government); such statutes are unconstitutional
on their face
Some government actions are OK in some circumstances, but not in
others (e.g. its not unconstitutional to ban trespass on government
property generally, but it is unconstitutional to use such a ban to prevent
anti-government protests); these statutes are unconstitutional only as
applied to certain individual acts that are constitutionally protected
Judicial Order of Operations
A.
Jurisdictional Issues First: A court that lacks jurisdiction cant consider the
merits of a case.
B.
Statutory Grounds before Constitutional Grounds: A court should avoid
deciding a constitutional question if it can resolve the case on statutory
grounds.
C.
Constitutional Avoidance (related principle): If a statute is ambiguous, it
should be interpreted in such a way as to avoid doubts as to its
constitutionality if at all possible.
Justiciability
I.
Introduction [P103]
A.
Advisory Opinions: Federal courts may only rule on legal issues when they
are necessary to the decision of an actual dispute; reasons why:
1.
Branches might look too cozy to be performing checks and balances
properly
2.
3.
II.
III.
Note -- prudential rules, unlike the ones that are derived from Art. III, can
be overridden by Congress
Advisory Opinions
A.
Early Practice: Court rejects request from President Washington for legal
advice concerning legal questions arising from U.S. neutrality in the war
between England and France.
B.
State Practice: State courts arent bound by Art. III; many are authorized to
issue advisory opinions.
C.
Implications for the Federal Courts
IV.
V.
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VI.
Baker v. Carr, 369 U.S. 186 (1962) -- hadn't been willing to intervene in the
legislative branch before this, but b/c the legislature wasn't willing to take away its
own power and no one else could make them, the Court assigned the District Courts
to redraw the lines, aggressive judicial involvement; was controversial b/c a major
intrusion into state gov't brought federalism questions; was the beginning of a more
narrow political questions doctrine
A.
Main argument over which branches of gov't the political question doctrine
was meant to protect
1.
Brennan says it's about separation of powers at the federal level; the Court
only needs to make sure it's doing judicial things and not worry about
what it intrudes into, lays out 3 sets of criteria for deciding if the Court
should take the case: textual, functional, and prudential (see B)
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2.
B.
C.
Frankfurter says federalism and separation of powers b/t state and feds,
protection of state powers; dissent stresses importance on voluntary
submission by Court to protect its credibility and that this decision
threatens the Court's impartiality
3. Final rules were:
a.
One man, one vote -- wasn't controversial b/c seemed fair and
reasonable, go by population
b. Equal Protection was the textual hook on which the Court supported
the new standard
Factors favoring Non-justiciability (from Brennan's majority opinion)
1.
"textually demonstrable constitutional commitment of the issue to a
coordinate political department"
2.
"lack of judicially discoverable and manageable standards for resolving it"
3. "the impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion"
4.
"impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government"
5. "unusual need for unquestioning adherence to a political decision already
made"
6.
"potentiality of embarrassment from multifarious pronouncements by
various departments on one question" (i.e. need for judicially-manageable
standards, can courts do this?)
Examples of Non-justiciable Issues (mostly discretionary things that can't
be unconstitutional)
Foreign relations: Often no judicial standards; discretion committed to
executive or legislature; necessary to speak with one voice. But not every
foreign affairs case is non-justiciable
Dates of duration of hostilities: Need for finality; where clear criteria are
available, courts can decide
Validity of enactments: Respect for coequal branches; need for finality
The Baker Criteria: You could divide the six criteria into three categories:
1. The Textual Criterion:
a.
Whether the issue is committed to another branch of government
b. Most important of any criteria (if it's committed textually, they won't
hear it)
2.
Functional Criteria:
a.
Lack of judicially manageable standards
b. necessity of an initial policy determination
c.
go to the institutional capacity of the courts to decide the case
3. Prudential Criteria:
a.
Respect for coequal branches
b. need to adhere to a political decision already made
c.
embarrassment from different branches reaching different
conclusions
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d.
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3.
4.
5.
6.
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II.
Dual Federalism: The national and state governments each enjoy exclusive
spheres of authority; court must enforce boundary between them
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III.
Text
Structure
B.
Types of Tests
Means/Ends Fit
Classification
Motive
C.
The Frankfurter Constraint:
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II.
Slavery in the Constitution -- conflict b/t law and morality; also federalism and
separation of powers dimensions -- how much should the court review?; to what
extent should Court be obligated by Framers' intent?
A.
The Slave Trade Clause, Art. I, 9, cl.1.
The Migration or Importation of such Persons as any of the States now
existing shall think proper to admit, shall not be prohibited by the Congress
prior to the Year one thousand eight hundred and eight, but a Tax or duty may
be imposed on such Importation, not exceeding ten dollars for each Person.
B. The Fugitive Slave Clause, Art. IV, 2, cl. 3.
No Person held to Service or Labour in one State, under the Laws thereof,
escaping into another, shall, in Consequence of any Law or Regulation therein,
be discharged from such Service or Labour, but shall be delivered up on Claim
of the Party to whom such Service or Labour may be due.
Was a compromise with slave states to get them to accept Constitution;
trying to prevent escape b/c there's nowhere to go, no "town air makes
free" idea; controlling an externality, preventing one state's law from
making it hard to enforce another state's law
C. The Three-Fifths Clause, Art. I, 2, cl. 3.
Representatives and direct Taxes shall be apportioned among the several
States . . . according to their respective Numbers, which shall be determined by
adding to the whole Number of free Persons, including those bound to Service
for a Term of Years, and excluding Indians not taxed, three fifths of all other
Persons.
Gave Southern states advantage in representation b/c they were given
credit for more population even though that population couldn't vote
Prigg v. Pennsylvania, 41 U.S. 539 (1842) -- same test as McCulloch, which is
enumerated here, the ends or the means? Dissent says states should be able to go
further in process requirements, at least make sure the slave-catchers have the right
person, majority doesn't want states to be able to limit federal power by imposing
ridiculous procedure
A.
Three Questions
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1.
III.
Do feds have exclusive power to regulate fugitive slaves and the process of
their apprehension?
2.
If not, is PAs statute providing procedural safeguards for alleged fugitive
slaves preempted by the federal fugitive slave law?
3. Can PA state officials be required to participate in the enforcement of the
federal statute?
B.
Two Kinds of Threats to State Autonomy
Vertical Aggrandizement: national government seeks to impose its own
will on the state gov'ts
Horizontal Aggrandizement: powerful group of states uses the national
gov't as an instrument to impose its preferences on another group of
states
in Prigg, the Southern states used a horizontal threat to the North to get
their policy enforced; South not just protecting slavery, trying to co-opt
federal government's authority, not using states' rights (despite the
traditional wisdom that the south wanted states' rights to protect slavery);
with Prigg, Northern states wanted to use states' rights against slavery -complicated use of federal authority and states' rights on both sides
Why Story, the abolitionist, read the clause so broadly and strike down the
PA law?
1.
Maybe he thinks it's the correct reading and it's the Framers' intent; said
the country needs to amend the C to get rid of slavery or allow restrictions
by states
2.
Maybe he's more concerned about the Union than about abolition despite
his personal morality -- knows the Southern states won't trust procedures
imposed by anti-slavery states to be fair and a ruling that allowed them
might precipitate secession
3. Wants to read the law, not his own judgment, shows real restraint b/c the
ambiguous clause could have been read the other way with little
justification required
4.
Thought he had struck a victory for abolitionism b/c of anticommandeering, didn't think the feds would be able to enforce the slavecapturing b/c didn't really have federal officials
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)
A. The Missouri Compromise: The Missouri Compromise of 1820 barred slavery in
the Louisiana Territory north of 3630, except for the state of Missouri which
was admitted as a slave state -- trying to pacify slave states and abolitionists to
prevent/postpone secession and/or war
Dred Scott says he became free when his master, Dr. Emerson, took him
into the Louisiana Territory north of the dividing line
Had to be a citizen of a state other than NY to bring this case into the
federal courts on diversity jurisdiction
B.
Two Citizenship Clauses
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IV.
Art. IV, 2: The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States
C.
The Citizenship Holding: We think [black people] . . . are not included, and
were not intended to be included, under the word citizens in the Constitution,
and can therefore claim none of the rights and privileges that that instrument
provides for and secures to citizens of the United States
D.
Historical Evidence -- used original intent of Framers and original
understanding of late 18th century
Constitutional Text
E.
The Missouri Compromise Holding: The Court also strikes down the
Missouri Compromise (after all, whats a lack of jurisdiction between friends?)
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V.
II.
To what extent does the 14th Amendment incorporate the Bill of Rights
and apply it to the States? Does it include unenumerated rights that had
been protected vs. federal gov't?
Section 1: "All persons born or naturalized in the United States and subject
to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws"
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21
22
II.
Dred Scott
Some cases in the state courts likewise use due process as a ground
for invalidating regulations that threaten property or contract rights.
2.
Late 19th Century
23
E.
maximum hours
price regulation
Overview
A.
Dual Federalism and Concurrent Jurisdiction -- changing ideas of spheres
of authority
1.
Dual Federalism seeks to divide the world into two separate spheres of
regulatory jurisdiction, with state and federal authority exclusive within
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II.
III.
25
B.
IV.
Hammer v. Dagenhart (1918): child labor case; Court holds that Congress
may not ban interstate shipment when the regulation of interstate commerce
is simply a pretext to make life difficult for a business it cant regulate directly,
and where the goods shipped interstate are not themselves harmful; had to
distinguish from Champion b/c the goods themselves were no different
The Challenge to the New Deal
A.
The Justices -- note that some of these cases are not 5-4. (e.g. Schechter)
1.
The Conservative Four Horsemen: Sutherland, McReynolds, Butler, and
Van Devanter
2.
The Liberals: Chief Justice Charles Evans Hughes and Justices Cardozo,
Stone, and Brandeis
3. The Swing Vote: Owen Roberts
B.
A.L.A. Schechter Poultry Corp. v. United States (1935): Court strikes down
the National Industrial Recovery Act, which allowed boards of private
businesses to develop "codes of fair competition," which were then approved by
the President.
codes were held unconstitutional as applied to wages and hours in the
chicken slaughterhouses of NYC, based on their indirect effect on
interstate commerce; outside limits of Commerce power
Cardozo, J., concurring: "[There] is a view of causation that would
obliterate the distinction between what is national and what is local in the
activities of commerce. Motion at the outer rim is communicated
perceptibly, though minutely, to recording instruments at the center. A
society such as ours 'is an elastic medium which transmits all tremors
throughout its territory: the only question is of their size.'...The law is not
indifferent to considerations of degree...To find immediacy or directness
here is to find it almost everywhere."
Carter v. Carter Coal Co. (1936): Court strikes down the Bituminous
Coal Conservation Act of 1935, which permitted local coal boards to set
minimum prices and administer collective bargaining agreements that
would bind all mine operators in the area. The Court again relies on an
indirect effect rationale.
The Social Security Act was poised to be struck down next and that was
the centerpiece of the New Deal; Court was striking down all Due
Process and Commerce Clause expansions as beyond the power of
Congress
26
II.
The Proposal: Add one additional justice for each justice over seventy years old,
up to a total of 15 justices; was supposedly to help the older justices keep up
with their workload; by the time of the Fireside Chat, President accused SCT of
standing in the way of recovery, of being out of touch with reality, needed new
blood on SCT; FDR uses dissents saying these rulings were not mandated by
the Constitution, says Court is being political
The Switch in Time: While the plan is under consideration in the Senate,
Justice Owen Roberts defects from the conservative majority and votes to
uphold major new deal legislation in West Coast Hotel v. Parrish and NLRB v.
Jones & Laughlin
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2.
III.
28
2.
3.
4.
II.
29
III.
30
31
Plessy to Brown I
I.
II.
32
III.
while the black university, Lincoln University, did not; Missouri law
provided for sending black residents to law schools in neighboring states
and paying their tuition there; SCT rules that the State must provide equal
facilities within the state
2. Sipuel v. Board of Regents, 332 U.S. 631 (1948): relying on Gaines, SCT
orders the University of Oklahoma law school to admit a black student
who had been excluded solely on the basis of race
3.Sweatt v. Painter, 339 U.S. 629 (1950): Court requires the UT law school to
admit a black student, because the black law school was not in fact equal;
Court takes into account intangible factors like reputation and
networking -- begins raising questions about what constitutes equality in
education
argued by Thurgood Marshall and NAACP; started with legal
education as the foundation of social and legal equality
4. McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950): Court
strikes down program segregating a black student within the white school
(grad school of education); he was forced to sit in a special seat, prohibited
from dining with other students in the cafeteria, and had to sit at a special
table in the library; Court held that these restrictions "[impaired] and
[inhibited] his ability to study, to engage in discussion and exchange views
with other students, and, in general, to learn his profession" -- social
exchange benefits of the school experience -- after this, separate but equal
can't work
Also argued by Marshall and NAACP
Brown v. Board of Education of Topeka (Brown I) (1954)
1. NAACP starts with schools b/c it's the hardest place to maintain equality
and will do the most good for clients
2. SCT looks to the effects of segregation on public education; "must be
available to all on equal terms" [P396]; "separate educational facilities are
inherently unequalsuch segregation is a denial of the equal protection of
the laws"
3. Hard to rely on intent of framers of amendment b/c of the changing
importance of public education from the 1860s to the 1950s; have some
psychological findings that help support the opinion
A. Whats the Rationale? Some possibilities:
1.
Education is too important to permit segregation, maybe it's special
2.
Segregated education hurts the educational development of black
children
3. Segregation violates freedom of association (but, what about forcing
association on whites?)
4.
Segregation stigmatizes black people, "generates a feeling of
inferioritythe impact is greater when it has the sanction of the law"; after
all, 14th amendment was intended to get the blacks out of the bad
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B.
C.
D.
Brown v. Board of Education of Topeka (Brown II), 349 U.S. 294 (1955)
A. The Holding on Remedy
34
II.
The Court will tolerate some delay b/c of administrative difficulty and
individual circumstances
District courts become managers of school districts; how far should they
take it? Some discrimination was/is from residential patterns
B.
The Results of Courts Acting Alone: Between 1956 and 1964, the results of
judicial orders varies by region:
Border States: The number of black children in school with whites rose
15.2% throughout the border, and 28.1% if we exclude D.C. (which was less
segregated to start with).
Deep South: Ten years after Brown, only 1.2% are attending school with
whites. Leaving out Texas and Tennessee, the figure drops to less than
0.5%.
C.
Criticisms of Brown II: Some possibilities:
1. If segregation is unconstitutional, then any continued segregation is
intolerable
2. Brown II encouraged white resistance by failing to demand an immediate
remedy
Southern Manifesto says SCT got it wrong, resist decision
3. Brown II overstated the administrative difficulties of desegregation
4. The Court should never have referred the task to the lower courts
The Authoritativeness of Supreme Court Decisions
A. Cooper v. Aaron (1958): unanimous decision
1.
Court rejects the Governor of Arkansass claim that he is not bound by the
Courts prior ruling in Brown; Court says that the interpretation of the
Fourteenth Amendment enunciated by this Court in the Brown case is the
supreme law of the land, and [the Supremacy Clause] of the Constitution
makes it of binding effect on the States
2.
Court says order should not be maintained by denying black children
their constitutional rights
3. Court relies on Marbury to say the Courts say what the law is and that
their decisions are binding on the States and state actors; they must
exercise their authority within the bounds of the C
B.
Two Questions:
1.
Does the effect of the Courts judgment in a constitutional case extend
beyond the parties to the litigation?
2.
To what extent can other actors in the other branches of government
implement their own interpretations of the Constitution when they
disagree with the Court?
C.
Three Positions
Judicial Supremacy: The judiciarys interpretation of the constitution
becomes obligatory and conclusive upon all the departments of the
federal government and upon the whole people, so far as their rights and
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III.
Presidents have other ways of challenging the SCT's "last word"; e.g.
Jefferson pardoned violators of the Sedition Act, Roosevelt
threatened court-packing and kept encouraging economic
regulation; Jackson vetoed the Nat'l Bank; Lincoln opposed Dred
Scott with political pressure
The Efficacy of Supreme Court Decisions (Rosenberg)
A.
Congressional and Executive Action
Brown didn't get enforced until Congress and the President acted as well
Does that mean Courts are ineffective? Or was the SCT decision necessary
to allow the other branches to act with less fear of political consequences?
36
Warren Court effected a revolution in civil rights, but perhaps even more
important was their revolution in criminal procedure by extending the Bill of
Rights to apply to states and their prosecutions; after all, there are a lot more
criminal prosecutions done at the state level than at the federal level
Which Rights?
1. Fundamental Fairness (Frankfurter): Due Process incorporates only
those rights which are fundamental in a free society (Palko v. Connecticut
37
(1937) incorporated only those rights that are of the very essence of a
scheme of ordered liberty or essential to a fair and enlightened system of
justice)
Due process requires fundamental fairness; the test is, can you
imagine a fair system without this right? Even if it's unusual for our
system, can the system be fair without this? By Duncan, it's can you
imagine our system without this right? That's a different question
[P465]
Problems with both: Black's is a bright-line rule, often over- and underinclusive; Frankfurter's is a balancing test, requires a lot of judicial
discretion, more unpredictable, have to order people of different opinions
to comply, nothing principled to point to
38
II.
III.
IV.
Reverse Incorporation: a limited set of rights that apply, in the text, only to the
states have been incorporated into the Due Process Clause of the Fifth
Amendment so as to bind the national government as well. Examples:
39
II.
III.
Substantive Due Process vs. Equal Protection (remember these are claims
brought against LAWS, not people)
Substantive Due Process is can the gov't do this to me? Does gov't have this
power? Under the Constitution, there are some things the gov't isn't allowed to
do; ask, is there a legitimate end to this? Is the means well-tailored to the end?
Are there less restrictive alternatives? (either the means or the end has to be an
enumerated power)
Equal Protection is why does the gov't treat me different than him? Is there a
good reason for treating these two classes of people differently? If classes are
similarly situated but treated differently, there's probably an equal protection
argument to be made; ask, what distinguishes between classes under the law?
Is the distinction rationally related to the end?
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IV.
on use in the marital bedroom, but will become a broader theory of privacy to
protect the decision about reproduction with Eisenstadt and Roe
In Griswold, privacy not unconstrained b/c focus is on marital bedroom, inside the
home, inside a marriage, two places with traditionally protected expectations of
privacy; lots of emphasis on tradition with Due Process
A. The "Penumbra" Theory (Douglas): The right to privacy is found in the
"penumbras" of the First, Third, Fourth, and Fifth Amendments; "penumbras"
represent the freedoms necessary to make the enumerated rights viable; the
amendments create "zones of privacy" (used Mapp v. Ohio privacy stuff)
B. The Ninth Amendment Theory (Goldberg): The right to privacy is protected
by the Ninth Amendment, providing that "[t]he enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people" -- VERY broad, could justify lots of other rights,
need limits
C. The Substantive Due Process Theory (Harlan & White): Privacy is a
"fundamental" traditional liberty incorporated into the Due Process Clause of
the Fourteenth Amendment
Functional concern with Goldberg and Harlan & White's concurrences -- too
many rights and no gov't ability to constrain is not good either, harder to limit
rights under these two theories; Harlan relies on courts' discretion
The "Enumerated Rights and That's It" Theory (Black): "I like my privacy as
well as the next one," but the Constitution simply doesn't protect
unenumerated rights; Stewart's dissent says we got rid of this substantive due
process stuff with Lochner
Eisenstadt v. Baird (1972)[P552]: Court recasts the right from Griswold
Fundamental right to decide whether or not to have kids
Use Equal Protection clause to extend Griswold rights to unmarried people;
used Due Process and Equal Protection together, to protect a traditional right
(due process) and extend it to everyone (equal protection) -- very powerful
combination, includes argument for gay marriage
To make equal protection argument, have to prove there are two groups
similarly situated before you can see if it passes scrutiny
Eisenstadt decision struck down on means/ends fit -- maybe a legitimate end,
but can't prescribe an unwanted pregnancy as legitimate punishment for
extramarital sex; disproportionate and creates problems for others
with a rational basis review, Court probably would have upheld the statute, so
there's some heightened scrutiny here
Carey v. Population Service International (1977)[P558]: allowed people other
than pharmacists to distribute contraception
Views of the Warren Court
Footnote Four
41
V.
Cant Do It
incomplete documentary record of the Founding
judges arent good historians
impossible to determine intent of collective bodies
Shouldnt Do It
the dead hand of the past is, well, dead
one generation no matter how brilliant cant have all the answers
originalism is biased to conservative outcomes (?)
Overview
A.
Three Questions in Roe
1.
Where does the abortion right come from?
2.
What countervailing interests does the State have in regulating abortion?
3. What's with this trimester framework?
42
B.
II.
III.
Can't argue equal protection b/c men and women aren't similarly situated,
stuck with due process
The States Interests -- court said these aren't important enough or welltailored enough to take away the fundamental right to decide about
procreation
1.
discourage illicit sex (not so great, see Eisenstadt's reasons)
2.
protect women from hazardous procedures (want regulation to make the
procedures safer)
3. protect prenatal life (not compelling enough early on b/c the unborn
aren't people in the eyes of the Constitution; state interest becomes
compelling once the fetus can live outside the womb)
43
44
a married woman seeking an abortion must certify that she has notified
her husband
The principle that the State has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the fetus
that may become a child
But the joint opinion junks:
The trimester framework
The "strict scrutiny" analysis of abortion regulation; allows a lot more
regulation; could be bad, but also could be good b/c we want to make sure
the procedure's safe and done by professionals only, so maybe strict
scrutiny isn't so great for this
Problem is there's other regulation that seems to be discouraging the
choice; have to look at legislative motives with these
Trying to get at a common law decision?
D. The Stare Decisis Analysis: The joint opinion's stare decisis inquiry involves
four basic questions:
1. Whether Roe's rule has proven "unworkable";
45
II.
46
follow a prior judges view that the Constitution means Y? Isnt the prior view
unconstitutional?
C. Judges as Partners: Dean Sager says that judges are partners with the
Framers in forging constitutional meaning, and that judges should shape that
meaning in accord with their own views of justice
D. Common Law Constitutionalism: The doctrine of stare decisis holds that
sometimes a court must accept a prior construction of the law (including of the
Constitution), even though the current court thinks that interpretation is
wrong. This is done largely for reasons of stability
The common law as a theory of constitutional interpretation, on the other
hand, holds that we adhere to prior decisions not simply for stability reasons,
but because precedent is one of the most important tools by which we
determine what the Constitution means in the first place
Maybe precedent is an admission that you don't have any better insight into
the Constitution than the former court -- precedent becomes your window into
the Const., rather than upholding the wrong precedent vs. the Const. (like
allowing the priests to tell you what the Bible might mean), aka when in doubt,
stick with the precedent b/c the old judges were as smart as you are; problem
with that? Gives a lot of power to courts, allows a lot of non-official
Constitutional amendments, but are diffusing that power over a lot of
generations of judges, is more incremental in the changes; maybe C is not
flexible enough if you don't use precedent to make it evolve, maybe you'd have
to change it more or just scrap it entirely
Introduction to Federalism
I.
II.
The proposed national government is too big, too far from the people, and
too likely to be dominated by selfish interests
47
B.
C.
Extend the sphere and you take in a greater variety of parties and
interest; you make it less probable that a majority of the whole will have a
common motive to invade the rights of other citizens; or if such a
common motive exists, it will be more difficult for all who feel it to
discover their own strength and act in unison with each other.
Focus on tyranny of the majority; Size does matter b/c there are so many
minorities that there may not even be a majority faction outside of the
coalitions of minorities; why coalition better? Can only agree on things
that are good for general public; the more people you have to persuade,
the more reasonable you have to be (according to Madison); also thinks
the representatives will be well-qualified men, the best of the area, have to
be a bigger fish to get elected in a bigger pond; debatable whether there's
a connection b/t more prominent and more able representation
Federalist 51: Specific institutional checks (separation of powers and
federalism) prevent the accumulation of too much power in any one place,
pitting the ambitions and selfish interests of politicians one against another in
order to maintain the overall balance of power.
Double security created b/c power divided b/t branches but also divided
b/t state and national gov'ts; clearly it's hard to get anything done in this
system; built-in conservative bias (small gov't) b/c they're not worried
about gov't not being able to get things done, more worried about gov't
not being able to do too much bad stuff -- maybe sometimes now we want
rapid response (since the New Deal ideas of gov't), now we can see
problems with a gov't that's too weak as well as one that's too strong
(what Madison was most concerned with)
Madison seems to think that if you get the structure right, then the rights
will follow (Federalists were talked out of the extreme version of this
48
III.
position when they added the Bill of Rights); remember the age of
individual rights and liberties and human rights is 20th century, so not a
key here; also clear that judicial review is a 2nd or 3rd option, the better
ones are Congress checking President, States checking Feds, etc, JR is on
the sidelines
D.
Two Concluding Thoughts
Effort to understand what the relationship is b/t federal gov't and state
representation; also all are originalists b/c there is a lot of historical
information
Not a strict term limit; name cannot appear on ballot; could in theory still be
written-in (probably trying to keep it from being challenged, question of
election law); challenged by a group of citizens, says unconstitutional; what's
the text? Use 10th Amendment and Qualification Clauses together as exclusive
list of qualifications that can be required
Not a whole lot of evidence on what the Framers thought about term limits, so
have to go with a default rule, but majority and dissent argue for different
default rules from 10th amendment -- dissent says, when in doubt, the states
have power from 10th amendment; majority says any powers the states didn't
have in 1791, it can't be given in the 10th amendment -- difference is in meaning
of reserve in amendment, dissent's argument seems more convincing
Two Issues
49
1.
can States add to or alter the qualifications for federal legislative office
enumerated in constitution?
2.
if not, is Amendment 73 is still valid as a ballot access restriction rather
than as an outright disqualification for office?
50
IV.
Are certain functions locked in to state level, but federal gov't takes
almost everything new that pops up; e.g. regulating pollution, public
education -- a lot determined by statute rather than constitutionallyentrenched
You can get most of these benefits from decentralization, as long as it's
not precarious, so maybe entrenching it in Constitution is a good thing
b/c states wouldn't care to do a good job if it will have the rug pulled out
from under them; definitively you don't get the diffusion of power -states don't really protect liberty from the Feds; the most oppressive gov'ts
in American history have been state gov'ts (think slavery and segregation)
51
C.
D.
Externalities/Spillover Effects
Mitigation of Faction
It's in the Constitution -- maybe shouldn't allow gov't to ignore part of the
Constitution that the gov't is supposed to be bound by, but only takes you
so far b/c the provisions are open-ended, e.g. Commerce Clause, doesn't
tell you how broadly/narrowly to read Congress' power -- have to use
these other principles to decide that
The Argument from Fidelity: Interpreters of the Constitution must defend a
balance between federal and state power not based on any judgment that
federal or state power is a good thing, but rather because the Constitution
mandates a balance and we are obliged to adhere to that principle until the
Constitution is amended
52
2.
II.
53
state law), not as much pushback now from the representatives of the
states (maybe not nothing to it, but a lot weaker)
2.
Composition and Selection of the National Government:
a. State-by-State Representation in Congress
b.
State Control over Federal Electorate: Art. I, 2 and the 17th
Amendment provide that who can vote in federal elections for
Congress is a function of state law.
c.
The Electoral College: States are the units through the electoral
college by which the President is selected.
d.
The Senate: Guarantees equal representation for each state.
don't need much JR b/c there are political safeguards on state powers
(similar to Ely, Ely follows Wechsler); political process will take care
of itself b/c there are structural protections built in to how the gov't
works -- states have representatives in Congress, we don't need JR
b/c it's a committee of hens guarding the henhouse
3. Problems with Wechsler's argument about political safeguards of
federalism problems
54
The New Political Safeguards: More recent work by Larry Kramer highlights two
institutional factors that Wechsler doesnt mention. See Larry Kramer, Putting the
Politics Back into the Political Safeguards of Federalism (2000).
1. Political Parties: Parties "broker state/federal relations" by "linking
the fortunes of officeholders at state and federal levels, fostering a
mutual dependency that protects state institutions by inducing
federal lawmakers to take account of (at least some) desires of state
officials." Kramer, 47 Vand. L. Rev. at 1523.
2.
Administrative Bureaucracy: Much of federal law is administered
by state officials -- such as law enforcement, housing, welfare
benefits, and health care. To this extent, state officials exercise the
administrative influence on the national legislature that would
otherwise go to federal bureaucrats.
C.
Political Safeguards and Judicial Review
1. Wechsler: [T]he Court is on weakest ground when it opposes its
interpretation of the Constitution to that of Congress in the interest
of the states, whose representatives control the legislative process
and, by hypothesis, have broadly acquiesced in sanctioning the
challenged Act of Congress.
2.
Choper: The Court should preserve its political capital for individual
rights cases by holding federalism cases nonjusticiable.
D.
Three Criticisms: See generally Saikrishna B. Prakash & John C. Yoo, The
Puzzling Persistence of Process-Based Federalism Theories (2001); Lynn A. Baker
& Ernest A. Young, Federalism and the Double Standard of Judicial Review (2001)
1.
Garcia is inconsistent with Term Limits
2.
Members of Congress dont represent state political institutions; in
fact, they compete with one another
3. Political safeguards guard only against vertical aggrandizement, not
horizontal aggrandizement
E.
Madisons Version of the Political Safeguards [P762]: In Federalist 45 & 46,
Madison argues that federalism means a competition between the states and
the national government for the loyalty of the people;
1.
states have an advantage in this competition because:
55
Congress interested in federalizing crime b/c have higher penalties and more
discretion for prosecutors
The Gun-Free School Zones Act of 1990: makes it a federal offense "for any
individual knowingly to possess a firearm at a place that the individual knows, or
has reasonable cause to believe, is a school zone"; zones extend for 1000 feet from
any school
The Holding of Lopez: a three-part test, but the commercial activity part
matters most
1.
Guns in school zones aren't commercial activity, nor is it an integral part
of a larger scheme governing commercial activity
2.
No jurisdictional element that would limit the statute's reach (says
nothing about "interstate")
56
3.
II.
There are no legislative findings (not required, but would make it easier to
conclude that the implicit judgment in the statute was correct)
a.
#2 and #3 mean they want Congress to think about if there's an
actual affect on commerce, to create an evidentiary record that the
court can review; someone will have actually thought about the
federalism problem before it gets to court
4.
Implicit: causal chain from the regulated activity (bringing a gun to
school) to the effect on commerce is simply too long
5. Commerce power is NOT a general police power for the federal gov't
The Dissents
1. Justice Breyer: Guns in schools substantially affect interstate commerce
because education is economically linked to national productivity
2.
Justice Souter: The Court cant enforce limits on the Commerce Clause
without falling into the same form of discredited judicial activism that
characterized the Lochner period; this should only be rational basis
scrutiny (Wickard)
United States v. Morrison (2000)[P804]
A.
Holding: The Court strikes down the private civil suit provisions of the
Violence Against Women Act
1.
VAWA falls outside the Commerce Power
2.
VAWA also cannot be justified under the Section Five power
B.
The Commerce Holding:
1.
Court rejects the extensive findings by Congress
2.
discounts the importance of a jurisdictional element
3. critical factor is that the regulated activity violence against women is
not commercial in nature; is a substantive limit on what Congress can
regulate
a.
VAWA struck down b/c would allow Congressional regulation of
anything; Court wants to keep Commerce power as an enumerated
power with at least some limits -- says Court is serious about limits,
that Lopez wasn't a fluke
C.
The Section Five Holding: Congress may not use Section Five here because
the VAWA is directed at private activity. See Civil Rights Cases.
57
1.
III.
IV.
58
2.
3.
if say "not going to carve out", means "not going to consider asapplied challenges"
Comprehensive Scheme: Lopez Court suggested that Congress may
regulate non-commercial activity as an essential part of a larger
regulation of economic activity
a.
Necessary and Proper: Scalia concedes this activity is noncommercial, but says it's part of the necessary and proper means of
regulating commercial drug sales (limits on this argument?)
b. Maybe better classified as a field preemption case? Since Congress
has regulated so much on drugs, probably didn't want to allow state
regulation
State Regulation: Is it relevant to the question of national power that a
state regulatory scheme is already in place?
Overview
A.
Text
1.
11th Amendment provides for state sovereignty, which the Reconstruction
Amendments override in certain cases
2.
Section Five of the 14th Amendment provides that The Congress shall
have power to enforce, by appropriate legislation, the provisions of this
article
3. The second sections of both the 13th and 15th amendments contain virtually
identical language
4.
The Bingham Proposal (discussed in Boerne) would have provided that
Congress shall have power to make all laws which shall be necessary and
proper to secure to the citizens of each State all privileges and immunities
of citizens in the several States, and to all persons in the several States
equal protection in the rights of life, liberty, and property
B.
Why We Care
1.
Section Five power may provide an enumerated power where no other
power is available (Boerne)
2.
Section Five power allows Congress to overcome some federalism barriers
such as state sovereign immunity that other powers cannot (Garrett;
Kimel)
3. Section Five power may allow Congress to compensate for judicial
underenforcement of constitutional norms
C.
Underenforced Constitutional Norms:
59
1.
II.
60
C.
III.
61
it's a rational basis scrutiny and the law bans all of it, the law will
probably go down -- legislative record and findings crucial here to
show there's a discriminatory motive
C.
Constitutional Concerns about a Broader Section Five Power
i.
Federalism: Broad Congressional authority to legislate under Section
Five might result in broad preemption of state authority
ii.
Separation of Powers: A substantive interpretive power might
undermine the judiciarys power to say what the law is; someone has to
have a final say, and it's the SCT b/c of JR
Note -- Civil Rights Acts of the 1960's were passed under the Commerce Clause, not
under 14th amendment b/c they're banning discrimination by private actors;
Katzenbach v. McClellan (discrimination in a diner in Alabama) and Heart of Atlanta
Motel (discrimination in a hotel)
II.
Introduction [P859]
A.
The Taxing and Spending Clause: Article I, 8: Congress shall have power
To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and
provide for the common Defense and general Welfare of the United States.
B.
The Property Clause: Art. IV, 3, cl. 2: "Congress shall have Power to dispose
of and make all needful Rules and Regulations respecting the Territory or other
Property belonging to the United States; and nothing in this Constitution shall
be so construed as to Prejudice any Claims of the United States, or of any
particular State."
C.
Regulatory Taxing and Spending: critical issue is the extent to which
Congress can use spending as a hook to regulate in a way that it couldnt
regulate directly
Hamilton and Madison on the Spending Power
A.
Madison: Madison's view was that the Spending Clause "amounted to no more
than a reference to the other powers enumerated in the subsequent clauses of
the same section"; the grant of power to tax and spend for the general national
welfare must be confined to the enumerated legislative fields committed to the
Congress
B.
Hamilton: Hamilton maintained that "the power of Congress to authorize
expenditure of public moneys for public purposes is not limited by the direct
grants of legislative power found in the Constitution"; rather, "its confines are
set in the clause which confers it"
1. Implications of the Hamiltonian View
a. Principle of Unenumerated Means: When Congress legislates in
furtherance of an enumerated end, can use any necessary and proper
means
62
b.
III.
63
64
II.
65
C.
66
c.
D.
Can always get judicial review of an agency's rules on the basis that it
doesn't conform to the statute (Chevron doctrine [P910])
A lot easier for agencies to make law, hard to get bills through
Congress, but there are LOTS of agency laws, easier for them to
make federal law; so, if you allow agencies to impinge on state
law, it's too easy and there's no political safeguards of
federalism
Overview [P911]
A.
The Anti-Commandeering Principle: "Congress may not simply
'commandee[r] the legislative processes of the States by directly compelling
them to enact and enforce a federal regulatory program." Rationale:
1. history of dual sovereignty
2.
political accountability
67
B.
II.
68
III.
on behalf of the federal gov't; have to regulate the people who are
generating the waste
b. By forcing legislation, it's beyond infringing on state sovereignty b/c
it's taking away the state's ability to make their own laws, making
them into puppet gov'ts, protects the political process and one of the
political safeguards of federalism
1.
obscures the clear lines of political accountability (no accident
that this is a VERY unpopular action and the feds don't want to
get voted out of office, want the states to get voted out)
2.
not the same function as any private actor like in Garcia,
lawmaking is a special function of the states, the essence of
sovereignty
B.
Other Federal Tools: The anti-commandeering rule still leaves three ways
that the Federal Government can achieve its ends:
1.
Direct Regulation: Congress can always simply regulate on its own.
2.
Conditional Spending: Congress can put conditions on federal funds, so
long as fairly loose constraints are observed. See South Dakota v. Dole.
3. Conditional Preemption: Congress can give States a choice of regulating
according to federal standards or accepting federal direct regulation of the
same subject matter.
Executives: Printz v. United States (1997)[P935]
A.
The Statute: Brady Act provides for a national instant background check
system for handgun sales; in the interim before the system is operational, the
Act requires local "chief law enforcement officers" (CLEOs) to perform certain
duties:
1.
on receipt of notice from a firearms dealer, to "make a reasonable effort"
to ascertain whether the purchaser may legally buy a gun
2.
to provide a written statement of reasons if the CLEO notifies the dealer
that the purchaser is ineligible
3. to destroy any records if the CLEO finds no basis for objecting to the sale
B.
Commandeering of Executive Officers: Court holds that the anticommandeering doctrine covers executive officers as well as state legislatures
1. Scalia walks through the different kinds of authority Congress might have
to do this -- great review by breaking down the types of constitutional
authority -- text, precedent, etc to policy decisions; go back and make
checklist from this case; no textual support, historical evidence not
decisive
2. Is a complete bar; can't commandeer executive officials at all, no
balancing (could be a characterization problem b/c not always clear when
you're commandeering)
3. Not common at all for state officials to enforce the law of another state
(not strange for courts, Testa)
4. Political accountability is strongest argument; political costs and financial
costs should be borne by feds
69
IV.
V.
Testa purchased a car for a price in excess of the ceiling, and successfully
sued the dealer, Katt, in state court in Rhode Island. On appeal, the State
Supreme Court reversed on the ground that a state need not enforce the
penal laws of a government which is "foreign in the international sense,"
and that the federal statute was both penal and foreign for those
purposes.
B.
Held (Black, J., for a unanimous Court): State courts have to hear federal
causes of action, at least where a comparable claim arising under state law
would be heard
70
II.
Overview
A.
Four Limits on State Power
Note that states can regulate a lot of commercial stuff as long as they
treat in-staters and out-of-staters the same
Consent: Congress can permit state laws that would otherwise violate the
dormant Commerce Clause; Congress must express itself clearly before
courts will hold that it has conferred permission to discriminate against or
burden interstate commerce
Preemption: Even where a state law doesn't fall within the relatively
narrow categories of laws that courts are willing to strike down, Congress
retains the power to preempt state laws by passing federal laws that either
explicitly trump the state law or regulate in a way that conflicts with
state requirements
The Importance of Inertia: It's hard to get a law passed, and the effect
of the dormant Commerce Clause is to place the burden of overcoming
legislative inertia on States that wish to discriminate against or burden
interstate commerce; the dormant Commerce Clause establishes a default
rule
D.
A Key Defense the Market Participant Rule: States are not subject to
dormant Commerce Clause constraints when they are operating as participants
in a market rather than regulators of the market
Discrimination Against Interstate Commerce
A.
Three factors that help determine whether law struck down if incidental
burden [Chem., P436]
71
III.
Largest factor is whether the benefits of the state law outweigh the
burden in interstate commerce; if the court determines benefits win, these
others don't matter (more likely if law nondiscriminatory)
Social Welfare
SCT wants the burden of laws to fall on the people represented by those
that make laws, don't want costs to fall on people who aren't represented
in the legislature (complicated here b/c there's in-staters and out-ofstaters on both sides; but are also those who benefit on both sides; virtual
representation by those with similar interests, works better here than with
Parliament and the colonists)
Rehnquist dissent says this law is part of state's police power; striking this
down might create perverse incentives (e.g. NJ ban all landfills, what if
every state does that?); there's no intermediate option
a.
Lots of fairly sensible state regulations get struck down under
dormant commerce clause arguments b/c of the fundamental
principle (remember, it's strict scrutiny)
Incidental Burdens on Interstate Commerce and the Balancing Test
A.
The Pike Test: Where the statute regulates even-handedly to effectuate a
legitimate local public interest, and its effects on interstate commerce are only
72
B.
If a law is found non-discriminatory (and the Pike test is applied), the law
is usually upheld
got one side of the scale to go to zero and that we can weigh
against the costs
73
C.
Apply a presumption or "thumb on the scale"; will decide the close cases
Discount the interests on one side because they can be served by less
restrictive alternatives
II.
74
5.
III.
Protection by the government, the enjoyment of life and liberty, with the
right to acquire and possess property of every kind, and to pursue and
obtain happiness and safety; subject nevertheless to such restraints as the
government may prescribe for the general good of the whole."
C.
Other Privileges and Immunities
All of these are broad categories of rights that the states must treat
equally (don't have to grant them to anyone, but if grant them to instaters, must grant to out-of-staters
D.
United Bldg. & Constr. Trades Council v. Camden, 465 U.S. 208
(1984)[P999]
75
What's the level of scrutiny? Higher than rational basis, probably not
strict, more like intermediate; there has to be a reason, a real reason,
the actual reason (we're not going to make one up) has to be a good
fit and a good reason (lower scrutiny than dormant commerce
clause)
d. Decided on a case-by-case basis by close anaylsis
E.
Advantages of the Privileges and Immunities Theory
intermediate scrutiny
no market participant
IV.
76
1.
II.
The Wilson Act of 1890 overrode the original package doctrine, which
had barred on dormant commerce grounds state regulation of alcohol if it
was in its original package (Wilkerson v. Rahrer)(1891)
2.
The McCarran Act of 1945 allowed state regulation of the insurance
business that would otherwise violate the dormant Commerce Clause,
such as the discriminatory tax at issue in Prudential.
C.
Rationale: The rationale for this power has something to do with the fact that
the whole source of the dormant Commerce Clause limit is Congresss
unexercised regulatory power, so that this limit is in some sense a matter of
legislative grace
Limits
Congress must speak clearly when it consents to otherwise
unconstitutional state laws. See South-Central Timber Development, Inc.
v. Wunnicke, 467 U.S. 82 (1984).
The consent power is also limited in that it doesnt cover the individual
rights provisions that bar state discrimination against out-of-staters; e.g.
Privileges & Immunities, Equal Protection
Preemption of State Law
preemption litigation almost always arises when federal floor is lower than the
states want to be, then question whether federal law is just a floor or if it's a
floor and a ceiling
the pro-regulation side is almost always the state, so the anti-regulation people
don't like the state's position
77
a.
b.
c.
III.
Impossibility preemption
Obstacle
Frustration preemption: State law does not conflict directly with a
federal statute, but it would unduly frustrate the purposes of that
statute to permit concurrent state regulation
Historical Development
Early Cases: The Court held that federal law was supreme in the event of a
conflict, but did not recognize any doctrine that the existence of federal
legislation precluded the States from passing their own laws, at least
where no conflict occurred.
Late 19th Century: The Court begins to suggest that when Congress
legislates, it ousts the States of their authority in that area. But the cases
are inconsistent and no state laws are actually struck down.
Early 20th Century: The rule in this period is automatic field preemption
whenever Congress acts. Many statutes are struck down during this
period.
The New Deal and After: Beginning in the 1930s, the Court focuses on
whether or not Congress intended to preempt state law; it develops a
"presumption against preemption" which is fairly protective of state law
because, under Wickard, Congress can regulate almost anything, so
presuming preemption from vague statements would override state
sovereignty even more. (Rice v. Santa Fe Elevator Co. (1947))
If they kept the early 20th century rules for automatic field
preemption when Congress acts, would have been huge regulatory
vacuums where states can't act and Congress has only done a little
bit in the area, but states would be preempted; Court wants to make
state and federal regulation can coexist by changing the default rules
Cases
1. Pacific Gas & Electric v. State Energy Comm'n (1983)[P1022]:
a.
Is a characterization game on whether nuclear energy is part of
traditional state control (utilities regulation) or part of nuclear field
that Congress has heavily regulated
b. Invoke the Rice idea that should construe narrowly with the
presumption against preemption b/c this is an area of traditional
state control (utility regulation)
c.
default rule is the presumption against preemption, so even though
this is a close case, when in doubt, construe it more narrowly and let
it stand; California says can't build until there's a safe way to get rid
of the waste; federal gov't says you are allowed; just b/c you're
allowed, doesn't mean you have to build one, can comply with both
2.
Lorillard Tobacco Co. v. Reilly (2001)[P1031]:
78
a.
it's a lot easier to make federal law through agencies (that's why
they're there)
79
80
II.
is a little messier b/c sometimes the wrong branch will be exercising the
power
81
C.
III.
82
83
II.
III.
IV.
Two arguments: Gov't needs to keep the steel supply coming in a way that doesn't
hurt the rest of the economy
1.
Commander-in-Chief Clause: majority says President doesn't have this
power b/c seizure of property isn't a wartime action; this is a labor dispute, not
a wartime dispute
not willing to allow the President this power b/c of the consequences,
you're not Commander-in-Chief of the country but of the military;
"faithfulness to our Constitutional system"
theater of war has to have an end, geographic limitation and "if this is ok,
then what isn't"
majority says that doesn't mean you can make the laws and that's what
seizing the steel mills is, Congress didn't make any law for you to do this,
you're making policy
Justice Jackson's Categories [P1073]
I. Congress Authorizes
Presidential Action
II. Presidential
III. Presidential Action
Action/Congressional Contrary to Congressional
Silence
Directive
Presidential authority is
"at its maximum." Action
can be struck down only if
the federal government as
a whole lacks power.
"Strongest presumption"
in favor of such actions.
"Zone of twilight";
President must rely on
his independent
powers alone. Case by
case inquiry.
Other Opinions:
A.
Black (majority): makes a formalist distinction; characterizes the power as
legislative and says the wrong branch is exercising it, so it's unconstitutional
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B.
V.
VI.
Theodore Roosevelt: [I]t was not only [the Presidents] right but his duty
to do anything that the needs of the Nation demanded unless such action
was forbidden by the Constitution or by the laws.
C.
Statutory Provision? Some statutes expressly provide additional powers to
the President in certain sorts of pre-defined emergencies. E.g., the
International Emergency Economic Powers Act (IEEPA), 50 U.S.C. 1701 et
seq.
The Political Safeguards of Presidential Authority: Justice Jackson notes the
gap that exists between the Presidents paper powers and his real powers. The
President has several inherent political advantages:
national election makes President the focus of public hopes and expectations
(charismatic authority)
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power over public opinion through unrivaled access to the public mind
through modern methods of communication leverages into power over other
public officials
head of national political party
Jackson VERY concerned about "slippery slope" towards dictatorship (this is
1952); doesn't want to hamstring the President in an emergency, but doesn't
want to set this precedent either; says there's a trade-off b/t efficiency and
separation of powers
Overview
A.
Why does Congress delegate its authority?
1. Expertise: Agencies have superior expertise concerning details of policy,
esp. in technical areas (environment, telecommunications)
2.
Flexibility: Delegation allows an agency to adapt the original law to
changed conditions
3. Avoiding Political Costs: Congress can take credit for pursuing the
general goal -- like air quality -- without taking the blame for deciding
whose ox will be gored in reaching that goal
B.
Reasons for the Nondelegation Doctrine
1. Separated Powers: Delegation allows the combination of law-making
and law-enforcing power in the executive branch; this is Congress' power
(Framers didn't anticipate a branch ceding power)
2.
Accountability: Congress shouldnt avoid responsibility for difficult
policy choices by delegating to administrative agencies
3. Predictability: It's easier to predict what the law governing your activity
will be if it's written in a statute, rather than subject to changing agency
interpretations
4.
Cabin Administrative Discretion: Agency officials are not directly
accountable to the people, so its important to cabin their discretion in
order to prevent arbitrary or capricious decisions; agencies might be
unduly influenced by the industries they're regulating
C.
Four Central Ideas
1. The Intelligible Principle Doctrine: Congress can't delegate its
authority without providing an "intelligible principle" that limits agency
discretion (so courts can check to see if they're sticking to that delegation
or exceeding it). Schechter; American Trucking.
2.
Private Delegations: Delegations of lawmaking authority to private
entities is particularly problematic. Carter Coal, Schechter II.
3. Independent Constitutional Authority: Delegations are less
problematic where the executive branch already has a certain degree of
inherent authority over an area. Curtiss-Wright.
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4.
II.
III.
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C.
D.
Legislative Vetoes: Congress can nullify legislative action after the fact
(struck down in Chadha, but survives in practice).
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II.
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6.
III.
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2.
Case 3: 1996 Statute: The President may prevent any tax or spending
provision in a federal law from having legal force or effect if he determines
that so doing will (i) reduce the federal budget deficit; (ii) not impair any
essential government functions; and (iii) not harm the national interest.
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II.
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2.
III.
IV.
Ethics in Gov't Act (1978): not long after Watergate; allows investigation of
high-level officials for criminal offenses; requires Atty. General to initiate
investigation, in 90 days, report to Special Division (panel of judges) to see if
there's a reason to go through further
if there is, then Special Division has to appoint independent counsel; can only
be fired by Atty. General or impeached by Congress, Special Division can
terminate if independent counsel's finished
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1.
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formalist analyses probably bias towards striking things down b/c don't
consider present needs
no one knows the answer to why formalist sometimes and why
functionalist other times
best answer is, most formalist when thinking about the processes of
making law b/c Constitution is most detailed here; there's real law, we
should follow it; a lot of judges will be formalist when they're given formal
laws to work with; the more text to work with, the more of a textualist
you'll be, the less text, the more balancing
See also Prakash & Ramsey, The Executive Power over Foreign Affairs
(2001)[P1221] ([T]he Presidents executive foreign affairs power is residual,
encompassing only those executive foreign affairs powers not allocated
elsewhere by the Constitutions test. The Constitutions allocation of
specific foreign affairs powers or roles to Congress or the Senate are
properly read as assignments away from the President.).
B.
Inherent Powers: Are executive powers not enumerated but traditional within
the realm of executive powers: The investment of the federal government with
the powers of external sovereignty did not depend upon the affirmative grants
of the Constitution. And in exercising these powers, the President has plenary
and exclusive power . . . as the sole organ of the federal government in the field
of international relations. United States v. Curtiss-Wright Export Corp., 299
U.S. 304 (1936).
C.
Delegated Powers: Presidential powers are not fixed but fluctuate,
depending upon their disjunction or conjunction with those of Congress.
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III.
IV.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J.,
concurring); see also Dames & Moore v. Regan, 453 U.S. 654 (1981).
Powers Inherent in Sovereignty
A.
Two Aspects of Sovereignty
The Ordinary Rules Apply: The U.S. remains a government of limited and
enumerated powers, even in situations involving foreign affairs.
Based also in part on need for the U.S. to have the same powers as other
world powers e.g., Britain, Germany, etc. organized on more
authoritarian lines.
The Cases
A.
George Washington and the Neutrality Controversy (French Revolution)
1.
French treaties oblige us to do certain things after the French helped us
out in American Revolution, so do the treaties with England; French
ambassador tries to raise American volunteers to help attack English
allies' colonies (e.g. Florida); Washington worried about US getting
trampled in war
2.
Washington issues proclamation to make it a federal crime to aid either
side
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3.
B.
The States never had their own international powers, so the external
powers of the federal government came not from the States but from
Great Britain, which had previously exercised all powers of external
sovereignty.
The result is that federal power over external affairs, e.g., "the powers
to declare and wage war, to conclude peace, to make treaties, to
maintain diplomatic relations with other sovereignties, if they had
never been mentioned in the Constitution, would have vested in the
federal government as necessary concomitants of nationality."
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C.
D.
but does solve the dilemma of where the foreign affairs power
comes from
3. The Argument for Executive Authority
Hard to define what's executive in nature and this theory makes that
characterization necessary; that's not usually how the Framers did
things
Dames & Moore v. Regan (1981)[P1207]: Court upholds President Carters and
Reagans decision to cancel American attachments of Iranian assets and
suspend suits against Iran. Says it's basically consistent with what Congress
would have wanted, even though it wasnt directly authorized by statute.
A majority adopts Justice Jacksons framework from Youngstown.
Justice Rehnquist suggests that the framework is a continuum rather than
three discrete boxes.
A similar statutory background to Youngstown e.g., Congress has
authorized A, B & C but not D is held to invite independent executive
action.
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Background
A.
Two Sets of Issues
1. Congress vs. the President
no general war power just like there's not general foreign affairs
power; most of the powers are given to Congress
2.
War and Individual Rights
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II.
Respond to an attack that initiates a state of war and prosecute the war to
its conclusion; and
World War I
World War II
One study counts 234 uses of force. Some of these were authorized by Congress
without a declaration of war:
III.
Barbary Pirates
(1802)
Civil War (1861)
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1.
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IV.
1544's clock starts running only when the President makes a report to
Congress under 1543(a)(1).
The President must report within 48 hours of his action. The report must state
the circumstances necessitating the introduction of U.S. forces;
the constitutional and legislative authority under which it occurred;
the estimated scope and duration of hostilities; and
"such other information as the Congress may request"
E. The Clock Provision: A report under 1543(a)(1) starts a 60 day clock. At the
end of that period, Congress must terminate the use of U.S. forces unless
Congress:
1. declares war or specifically authorizes the use of U.S. forces;
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F.
G.
H.
I.
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The original habeas provision in the 1789 Judiciary Act covered only
prisoners held under the authority of the United States. State prisoners
are covered beginning in 1867 at the height of Reconstruction.
A petition for habeas corpus is a civil suit by the prisoner (the petitioner)
against the government official who is holding him in custody (the
respondent).
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II.
Lincoln thought about having Taney locked up for it; Lincoln appealed to
emergency powers and his ability to enforce all other laws; also appealed
to the powers inherent in sovereignty argument, grounded in being a
sovereign state and that's not subject to a constitutional check (Taney
says only enumerated powers, there are no inherent powers)
Military Commissions
A.
One Academic View: It is a bedrock principle of our constitutional system
that the body that defines what conduct to outlaw, the body that prosecutes
violators, and the body that adjudicates guilt and dispenses punishment should
be three distinct entities. To fuse those three functions under one mans
ultimate rule, and to administer the resulting simulacrum of justice in a system
of tribunals created by that very same authority, is to mock the very notion of
constitutionalism and to make light of any aspiration to live by the rule of law.
Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the
Military Tribunals (2002)
Does Article III or Due Process require federal court review of the
factual determinations (e.g., guilt or innocence) made by military
commissions?
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4.
C.
D.
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2.
F.
The procedure, including modes of proof, in cases before courtsmartial . . . military commissions, and other military tribunals may
be prescribed by the President by regulations which shall, so far as
he considers practicable, apply the principles of law and the rules of
evidence generally recognized in the trial of criminal cases in the
United States district courts, but which may not be contrary to or
inconsistent with this chapter.
All rules and regulations made under this article shall be uniform
insofar as practicable and shall be reported to Congress.
3. Geneva Convention, Common Article 3: In the case of armed conflict
not of an international character occurring in the territory of one of the
High Contracting Parties, . . . the following acts are and shall remain
prohibited at any time and in any place whatsoever . . . (d) the passing of
sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.
Hamdan v. Rumsfeld, 548 U.S. 557 (2006): The Supreme Court holds that the
system of military commissions established by President Bushs order are not
authorized by the relevant statutes, and that therefore the President was acting
contrary to congressional directive under Youngstown.
Gov't could have argued an inherent presidential power to use military
commissions that aren't subject to Congressional regulation -- conceded
from the outset that Youngstown is the appropriate frame of reference,
not powers inherent in sovereignty; have to read statutory backdrop and
see if President is authorized or if he's run afoul of the statutes
pretty clear the court will defer to the President in war on terror, but it's
not a blank check like Korematsu; is a big check of executive authority,
one of the biggest; Court retaining power over constitutional
interpretation; will give him a leash, but still supervising (Boumediene) -come a long way since Marbury, JR is well-established and powerful check
Congress responds by enacting the Military Commissions Act of 2006,
which explicitly authorizes such commissions but also incorporates
important procedural safeguards.
Have to use court-martial procedures for trials of our own
servicemen to the extent practicable, president has to justify any
departure from this procedure (gets the fifth justice); had a lot more
defendant-friendly procedures than expected but key departures
were looser rules of evidence and defendant can be barred from
seeing some evidence and maybe even some parts of the trial (those
were sticking points)
by incorporating the law of war by statute, Congress
incorporated the Geneva Conventions, which insists that these trials
be as close to court-martials as possible