Constitutional Law

Con Law Arguments: (none of these categories trumps another)1. Text- what does it say? Start here

- Even if the text does not explicitly say it, it may still cover or touch on it2. Original Meaning- when framers/ratifiers chose words they did, what were their understandings at the time?3. Structure- has to do with the design of the constitutional federal government

- You can draw inferences about meaning from the design4. Ethos- National identity, what is the ethos that we think is important in this point of our constitutional argument?5. Moral Reasoning- Arguments about what is right and wrong6. Historical Practices- How the government has understood its power over time7. Consequences- If we let “this” happen, what will be the results?

- Example: If we torture, what will be the result? Will our people be tortured? 8. Precedent- (This is in center of chart because it draws on all other aspects of constitutional argumentation)

Standards of Review: Rational Basis Test: requires rational relation between the means chosen and the

achievement of a legitimate governmental objective Intermediate Scrutiny: require a substantial relationship between the means chosen and

the achievement of an important governmental objective Strict Scrutiny: requires a narrowly tailored scheme to accomplish the achievement of a

compelling governmental objective

Marbury v. Madison and Judicial Review:- Political question: Question that courts do not look over because it deals with politics,

not law- Questions that involve vested legal right: courts do rule on this b/c it deals with law

Sources of Judicial Review:- Oath that judges take when they take office saying that they will protect the

Constitution- stretch b/c every official takes similar oath and does not have the power of judicial review

o Every federal official takes the oath, and therefore is entitled to interpret it on his or her own

o Written- Supremacy Clause- Text- Arising under- Text- Judiciary Duty- Structure- Written Constitution- strongest

o If it is written down, should follow ito Text and structure

- Some language presupposes courts are there to check actions of Congress- consequences

- Consequences

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SOURCE and SCOPE OF JUDICIAL POWER:

I. Source /Authority of Federal Judicial Power Article III, section 1 a. Article III of Constitution provides that the federal judicial power “shall be vested in

one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish”

i. Article III does NOT require Congress to establish any lower federal courts nor grant them full jurisdiction to decide all maters within federal judicial power

II. Scope of Federal Judicial Power Article III, section 2 a. Federal courts are of Limited Jurisdiction b. Article III, section 2 limits the federal courts to cases (among others):

i. Arising under the Constitution, an act of Congress, or a federal treaty ii. In which the United States is a party

iii. Btw a state and citizens of another state; andiv. Btw citizens of different states (diversity cases)

III. JURISDICTION OF THE SUPREME COURT a. Original Jurisdiction

i. Article III Supreme Court has original jurisdiction over Cases affecting “Ambassadors, other public ministers and Consuls and those in which a State shall be a Party.”

1. Congress may NOT restrict nor enlarge Supreme Court’s original jurisdiction. (Marbury) Federal Courts may not gain jurisdiction by consent.

2. Today Supreme Court’s original jurisdiction is mainly occupied by “controversies between two or more states”

b. Appellate Jurisdiction i. Article III Supreme Court shall have appellate jurisdiction in all other

Cases before mentioned with such “Exceptions and under such Regulations” as the Congress shall make.

ii. Power of Judicial Review1. Marbury v. Madison established that appellate jurisdiction

includes power to hear appeals regarding the constitutionality of:a. Acts of branches of the federal government

(Executive/Congress) – legislative actsb. State statutesc. State court judgments

iii. Restrictions on Appellate Jurisdiction Article III and Congress1. Article III Defines maximum extent of federal subject matter

jurisdiction (this is the ceiling) a. Justiciability doctrines further limit access to federal

courtsi. Standing, [ripeness, mootness,] political question

doctrine

2. Congress Can statutorily limit federal court jurisdiction a. Federal court may ONLY hear matters where there is:

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i. Constitutional authorization; andii. Statutory authorization

b. Congress may also create “Exceptions and Regulations” on Court’s appellate jurisdiction (but this power is disputed).

A. AUTHORITY FOR JUDICIAL REVIEW I. Judicial Review The power of the Supreme Court (and federal courts) to invalidate or

regard as invalid the actions of the legislative and executive branch (or state statutes and state court judgments) if they collide with the US Constitution.

II. MARBURY v. MADISON

a. HOLDING Court rules against Marbury and held that the Supreme Court could NOT constitutionally hear the case as a matter of original jurisdiction.

i. Although the Judiciary Act of 1789 authorized such jurisdiction, this provision of the statute was unconstitutional b/c Congress can NOT expand original jurisdiction beyond Article III of Constitution.

ii. Marshall took this as an opportunity to claim the power of judicial review (but in a context least likely to draw opposition)

b. Marshall’s Reasoning Marshall structured the opinion around three questions:i. Issue 1 Does Marbury have a right to the commission?

1. YES Marbury has a right to the commission b/c all the proper procedures were followed. Thus, withholding the commission is “violative of a vested legal right”

ii. Issue 2 Do the Laws afford Marbury a Remedy? 1. YES Marshall states “for every right, there is a remedy.” USA is a

government of laws, not of men. Thus, even President is not above the law.

a. Marshall draws a distinction When Judiciary can review Executive actions:

i. “Ministerial acts” Judiciary MAY give remedy against the Executive if it is a specific legal duty to a particular person.

ii. “Political acts” Judiciary may NOT provide a remedy when the Executive action is a political matter left to the President’s discretion.

iii. Issue 3 Can the Supreme Court issue this remedy? (Is Mandamus appropriate?)

1. YES Judicial Review (including mandamus) is ONLY appropriate regarding “ministerial acts” where the executive has a legal duty to act.

a. Thus Marbury has right to commission and Court has authority to issue writ of mandamus to require the President to act.

iv. Issue 4 Does Court properly have Original Jurisdiction to issue mandamus?

1. NO The Judiciary Act of 1789 does provide statutory authority to issue mandamus here. However, the Judiciary Act unconstitutionally expanded Original Jurisdiction beyond Article III.

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2. Congress may NOT expand the original jurisdiction of the Supreme Court

a. Article III’s list of areas of original jurisdiction would be “mere surplusage” if Congress could expand it at will.

i. Thus, the court does NOT have jurisdiction because the Judiciary Act of 1789 violated Article III.

v. Issue 5 Can the Court declare laws Unconstitutional? 1. YES The Supreme Court may declare laws repugnant to the

constitution to be “unconstitutional” and invalid. a. The Constitution is “law” that can be enforced in ordinary

courts.b. Constitution is “supreme law” and should control over all

other acts of Congress. (When laws conflict Constitution must trump)

c. Constitution imposes limits on government powers these limits would be meaningless unless the Judiciary can enforce them.

d. Judiciary has supreme power to interpret the Constitution

i. “It is emphatically the province and duty of the judicial department to say what the law is”

e. Court’s authority to decide “cases” arising under the Constitution implies a power to declare unconstitutional laws conflicting with it.

III. KEY PROPOSITIONS Marbury v. Madison:

a. Article III is the maximum of federal court jurisdiction

i. Congress can NOT expand the original jurisdiction of the Supreme Court1. Federal courts may NOT hear cases beyond what is specified in

Article III.2. Federal courts can NOT gain jurisdiction by consent

b. Authority for Judicial Review of Executive actions

i. Judicial Review of Executive actions depends on the context:1. “Ministerial acts” Judiciary has authority to review executive

actions involving individual rights and government duties 2. “Political acts” Judiciary does NOT have authority to review

acts within the President’s “discretion” (the only check is the political process)

c. Authority for Judicial Review of Legislative Acts

i. Judiciary has authority to review legislative acts and invalidate laws that conflict with the Constitution.

d. Judiciary is supreme in interpreting the Constitution

i. Marshall states: “It is emphatically the province of the and duty of the judicial department to say what the law is”

ii. Must preserve separation of powers and system of checks and balances.

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1. If Congress can both write and interpret their laws, there is no check on Congress’ power.

2. Judicial Branch is “least dangerous” branch of governmenta. Congress has power of the purseb. Executive has power of the sword

IV. JUDICIAL REVIEW OF STATE and LOCAL ACTIONS a. Marbury v. Madison established power of Supreme Court to review the

constitutionality of federal executive actions and federal statutes.i. Constitution does not explicitly say Supreme Court may review state court

decisions, but the Judiciary Act of 1789 provided for review of state court judgments.

b. Supreme Court has authority to review State Court judgments/interpretations involving Federal Laws or Constitutional Laws (Civil or Crim cases)

c. Martin v. Hunter’s Lessee- Judicial power of the Supreme Court, by the very terms of the Constitution, is to extend to state causes concerning federal questions (this particular case involves a treaty)

i. Reasons:1. Constitution has many restrictions of the state gov’t within it that

shows federal trumps it (supremacy clause) *TEXTa. Ex. Elections of state legislatures can he revised by

Congress2. State bias may exist in their decisions- *Structire3. Absolute right of decision has to lie somewhere, Finality- *Structure4. It can be abused anywhere, but Constitution gives most power to

Supreme5. Consistency: Must be one overriding interpretation of statutes,

treaties, or Constitution throughout the land *Structure6. Original Meaning- 7. Historical Practices- It is a historical fact Supreme Court has

maintained right he says Court has throughout previous decisions8. Consequences-9. Federal courts deal with federal issues at all times, therefore they

will become experts on the issue, know this law better than state courts

V. Counter-majoritarian dilemma a. If government is elected by majority and these representing members create laws,

then these laws represent what the people want and judicial review can easily overturn these laws with judicial review

VI. Checks against judiciary: a. Presidential nominationsb. Senate coordinationc. Constitutional Amendmentsd. Regulatinge. Impeachmentf. Avoidance Canong. Passive Virtuesh. Political Question Doctrines

i. Certain questions are not appropriate for the Court to decide

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ii. Courts just do not rule on certain things, such as what is socially acceptable

NECESSARY AND PROPER CLAUSECONGRESS AND THE STATES Doctrine of Limited Federal Legislative Powers

I. Doctrine of Limited Federal Legislative Powers a. Article I, § 8: “Necessary and Proper” Clause: Allows Congress to execute laws

that are necessary and proper for carrying out the enumerated powers of Article I, § 8. “All legislative powers shall be vested in a Congress of the United States.”

b. Tenth Amendment “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

i. Throughout history, Congress’ powers have been defined relative to the states.

1. Federal Government is of “limited” powers2. State Governments are of “general” powers

c. Congress’ Power vs. State Sovereignty Federalism i. Congress may act only if there is express or implied authority in the

Constitution. 1. Evaluating constitutionality of any act of Congress involves two

questions:a. Does Congress have authority to legislate?b. If so, does the law violate another constitutional provision

or doctrine? (interfering with separation of powers or individual liberty)

2. However Congress has been interpreted to have broad authority under provisions like the Commerce Clause

ii. States may act unless the Constitution prohibits the action 1. States possess “police power” power to protect health, safety,

morals, etc.2. Evaluating constitutionality of state law involves only one

question:a. Does the legislation violate the Constitution? b. Supremacy Clause: All state rights and laws that are

contrary to constitutional rights are subordinate to the Constitution

McCULLOCH v. MARYLAND SCOPE OF CONGRESSIONAL POWERS I. McCulloch v. Maryland (1819) Defining the scope of Congress’s powers and

delineating the relationship btw Federal government and the States. a. Justice Marshall uses this case to broadly construe Congress’ implied powers and

narrowly limit the authority of State governments to impede the Federal government.

II. McCULLOCH v. MARYLAND DECISION a. Maryland places a tax on the controversial National Bank. Bank refuses to pay tax.

Maryland sues to collect.

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b. Question #1 Does Congress have authority to create the National Bank? YES

i. Holding #1 Congress has authority to create Bank b/c there is a “rational basis” to justify an “implied power” to create the bank as reasonably linked to Congress’ enumerated power to tax/spend/commerce.

1. Marshall refutes Maryland’s argument that States maintain ultimate sovereignty because they ratified the Constitution.

a. Constitution emanates from the People directly; and NOT from the States

2. Marshall’s method of Constitutional Interpretation a. A “Constitution” should be interpreted differently than a

statute.i. Constitutions are meant to be flexible to endure

over time. 1. Thus Court should be willing to find

implied powers 3. Marshall broadly interprets Scope of Congress’ powers .

a. Federal government is of “limited” powers, but federal government is supreme in its sphere.

b. Framers decided to “enumerate” the powers of Congressi. However there are “Implied” powers as well

c. “Necessary and Proper” Clause –the (not so) limiting modifiers

i. Marshall interprets “necessary” as expanding Congressional power necessary means “conducive to or convenient” rather than indispensable. Contrasts this from “absolutely necessary” used in other parts of Constitution= intratextualism. Marshall goes towards the broader end of the spectrum here, as opposed to “strictly necessary”

ii. “Implying” powers to Congress to have the “means” to carry out its enumerated powers. (Congress may use N&P clause to enact laws, so long as those laws are a proper means to an enumerated end)

iii. Rational Basis Test for “Implied Powers”: 1. If there is some rational link between

Congress’ action and an enumerated power the act is Constitutional.

2. “The ends must be legitimate” and consistent with Constitution

3. Courts will defer to Congress (limiting judicial power)

c. Question #2 Is the state tax on the Bank constitutional? NO. i. Holding #2 It is unconstitutional for a state to tax a federal entity like

the Bank. 1. “The power to tax is the power to destroy”

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2. Federal government is supreme in its spherea. State are subordinate and do NOT have authority to

destroy an entity of the federal government (this would amount to veto power of states)

III. US v. Comstock- (2010) Federal civil-commitment statute authorizing detainment of mentally ill, sexually dangerous federal prisoner beyond date prisoner would have otherwise been released is upheld due to RBTa. “We look to see whether the statute constitutes a means that is rationally

related to the implementation of a constitutionally enumerated power”

COMMERCE CLAUSEInterstate Commerce Clause is the clause Congress uses the most to justify Congress using an implicit power

THE COMMERCE POWER

I. Commerce Clause: a. Article I §8 “The Congress shall have the power…to regulate Commerce with

foreign nations, and among the several States, and with the Indian Tribes.”

II. Four Eras of Commerce Clause Jurisprudence (really only three- b, c, d)

a. 1790-1890s Gibbons defines Commerce Power is broadly, but it is minimally used.

b. 1890s until 1937 Court narrowly defines scope of Congress’ commerce power and uses Tenth Amendment as a limit.

c. 1937 – 1990s Court expansively defines Commerce Power and refused to use Tenth Amendment as a limit on Congress’s power.

d. 1990s-Today Court has again narrowed the scope of Commerce Power and revived the Tenth Amendment as an independent, judicially enforceable limit on federal actions .

III. Three Central Questions: a. What is Commerce?

i. It is one stage of business or does it include all aspects of economics and business?

1. What is “local” and under state control?2. What is “interstate commerce” and under Federal control?

b. What does “among the several states” mean ? i. Limited to direct effects on interstate commerce; or does any effect suffice?

c. Does the Tenth Amendment limit Congress’s power over State sovereignty? i. If Congress is acting within scope of commerce power, can a law be

declared unconstitutional as violating Tenth Amendment?

1790s -1890s GIBBONS v. OGDEN BROADLY DEFINES COMMERCE POWER

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I. Gibbons v. Ogden (1824): NY State had given Ogden a license to operate a ferry boat between NY and NJ. Gibbons has a license from Federal Government to operate steamboat. Ogden sues arguing Gibbons violated his monopoly rights given by NY. Ogden argues that Congress’ commerce power is limited to trade only, not transport. Holding Congress’s commerce power extends to “intercourse” not just traffic. Congress has broad power to regulate interstate waterways. Federal law authorized Gibbons to operate ferry; thus the NY grant of a monopoly was preempted by federal law under commerce clause.

II. Marshall’s Expansive Definition of Commerce Power a. What is “Interstate Commerce”?

i. Interstate Commerce is NOT limited to trade, but includes traffic and intercourse, navigation and all phases of business.

1. “ Commerce undoubtedly is traffic, but is something more: it is intercourse”

b. What is “Among the States”? i. Court defines “among the states” as concerning more than one state.

1. Congress can NOT control completely internal commerce within a state, but may regulate commerce if it has an impact on interstate activities.

2. “Among” means “intermingled with” and “cannot stop at the external boundary line of the state, but may be introduced into the interior”

a. Congress can regulate ports (foreign commerce)b. Congress can regulate any interstate waterways (btw

two states)

c. Does State Sovereignty (10 th Amendment) Limit Congressional Power ? NOi. Marshall rejects any constraint on Congress’ power to regulate interstate

commerce 1. Congress’ power over “interstate commerce” is plenary or

absolutea. This is an express power (not merely implied)

2. Congress has complete authority to regulate all commerce among the states.

a. Only check on Commerce Power is the political processi. NOT judicially enforced limits to protect the

states. 3. If state and federal regulation conflict Federal law is supreme

a. Nature of plenary authority = the ability of Congress to regulate commerce power and trump any state laws that conflicts with the federal power

4. HOLDING: where state and federal law conflicts, federal law wins, but case doesn’t directly address areas where there is a void of regulation, but there’s the idea that the power is too broad and thus states can regulate until congress steps in; if govt. doesn’t act, then doesn’t mean that state actions in areas of silence are void or that the federal govt is invalidated

Wilson v Black-Bird Creek Marsh Co (1829): Wilson, the owner of a sloop who was licensed under federal navigation laws, broke through a dam that blocked his passage which was built by the Black-Bird Creek Marsh Co. and had been authorized to do so by

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Delaware law. The company brought a case against Willson, claiming Delaware authorized the building of the dam through a law which was passed under the police power of the state in order to clean up a health hazard and there was no legislation by Congress dealing with the same subject matter. Wilson claimed that the law authorizing the building of the dam was a violation of the commerce clause. Holding Marshall ruled that because no federal law dealt specifically with the situation, and the state law did not violate Congress' Dormant Commerce Clause power, the state law was valid. The law was a valid exercise of state police power b/c it affected the health, safety and welfare of the people of Delaware.

5. The “Dormant” Commerce Clause, also known as the “Negative” Commerce Clause, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the United States Constitution. The Commerce Clause expressly grants Congress the power to regulate commerce "among the several states." The idea behind the Dormant Commerce Clause is that this grant of power implies a negative converse — a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce. The restriction is self-executing and applies even in the absence of a conflicting federal statute.

6. As long as Congress has not exercised its power over commerce in a certain area, a state may regulate that area as long as such regulations do not conflict with the Dormant Commerce Clause of the U.S. Constitution.

III. Framework following Wilison: ASK: has what the state done violate of Congress’ ability to regulate commerce?

1. Court included: mining, manufacturing and agriculture – are local endeavors

2. If these are regulated, then this is a permissible exercise of police power by the states

3. Doesn’t constitute commerce b/c is what precedes commerce 4. This is internal commerce – reflection of state police power The products

produced may be sent into interstate commerce, but the mining is local and therefore the impact on commerce is INDIRECT B/c it’s INDIRECT impact, the states may regulate

1890s – 1937 Era LIMITED FEDERAL COMMERCE POWER I. Aggressive use of Judicial Review to Invalidate Economic Regulations

a. Conservative Justices committed to laissez-faire economics and strongly opposed to government regulations (idea of Freedom to Contract emerges)

i. Court regularly invalidated federal laws as exceeding the scope of Congress’s commerce power or violating the Tenth Amendment and the zone of activities reserved to states.

ii. Also in this era Court invalidated federal laws as interfering with economic substantive due process and violating “freedom of contract”

b. “Dual Federalism” federal and state governments were separate sovereigns and each had its separate “zone of authority”. Judiciary’s role is to protect the states by interpreting the Constitution to protect the states zone of authority.

c. Three Doctrines reflected “Dual Federalism”:

1. Court narrowly defines “commerce” to leave a zone of power reserved to States.

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2. Court narrowly defines “among the states” so Congress may regulate only when there was a substantial effect on interstate commerce

3. Court used Tenth Amendment to reserve a “zone of activities” to States 1. Even if regulation was within commerce power law was

unconstitutional if it invaded the States “zone of interest” protected by Tenth Amendment.

II. NARROW DEFINITION OF “COMMERCE ” a. 1890s-1937 Court narrowly defined “commerce” to mean trade (not

“production”) in order to preserve a zone of authority to the States. i. Early view “Commerce” does NOT include “manner of production”

which is wholly intrastate and can’t be reached by Congress’s under commerce power.

b. Early distinction btw “Production” (state control) and “Trade” (federal control):

Unites States v. E.C. Knight (1895): US attempted to use Sherman Anti-Trust Act to stop a monopoly in the sugar refining industry. Holding Congress can NOT use commerce power to stop a monopoly in the “production” of sugar. Court holds that “production” or manufacture is NOT interstate commerce even though it effects the whole nation. Only States have power to police monopolies of intrastate manufacturing. The effect on interstate commerce was only “indirect” and thus outside the scope of federal power.

Carter v. Carter Coal Co (1936): Can Congress pass New Deal legislation bringing significant regulation of Coal Mining Industry (minimum wage, labor regulation, price fixing). Holding Court invalidates this New Deal law b/c it falls outside Congress’ commerce power. Mining (like manufacturing) is NOT “commerce” and therefore outside of federal control. “Dangerous step” toward eroding State sovereignty to allow Congress to regulate local activities. Judiciary must protect the States issues of labor unions, minimum wages, etc are local issues. This law involves only “indirect” effect on interstate commerce because it deals with manufacturing of goods that will eventually travel interstate. (Congress can’t regulate mining b/c it precedes commerce.)

III. NARROW DEFINITION OF “AMONG THE STATES” a. Requirement of “Direct Effect on Interstate Commerce”

i. 1890-1937 Court interpreted “among the states” as requiring a “direct effect” on interstate commerce in order for Congress to regulate. But court was inconsistent.

1. Direct Effects Trading and transportation of goods between states

a. Congress has authority to regulate “direct effects” (movement)

2. Indirect Effects Manufacturing of goods intrastate that will eventually travel through interstate commerce.

a. Production of goods is a “local” activity under exclusive State control.

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b. Congress could NOT regulate “indirect effects” on commerce.

b. “Stream of Commerce” Approach i. Court allowed Congress to regulate to “protect the stream of commerce”

1. Congress can reach into “intra-state” activities if they have a “direct effect” on the stream of commerce between states.

c. Example Upholding regulation of intra-state activity w/ “direct effect” on commerce

Shreveport Rate Cases (1914): RR runs intra-state as well as interstate lines. RR charges high rate for line btw TX and LA. RR charges lower rate for same distance inside TX. Can Congress regulate RR and require equal rates for interstate lines? Holding YES. Congress may regulate RR lines b/c the unequal rates have a “direct effect” on stream of interstate commerce.

d. Example Invalidating regulation of intra-state activity w/ mere “indirect effect”

Schecter Poultry (1935): New Deal law provided for “Poultry Codes” regulations for NYC chickens imported from other states. Law designed to protect against diseased chicken and regulated labor hours. Holding Court invalidated law because there was NOT a sufficiently “direct” effect on stream of interstate commerce. Although chickens had come from out of state, they had reached final destination in NYC. Thus chickens had stopped being in “stream of commerce”. Law struck to protect state sovereignty over local intra-state activities.

IV. TENTH AMENDMENT AS A LIMIT ON CONGRESS’ POWER a. Tenth Amendment “The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.

b. Key Question Is Tenth Amendment a judicially enforceable limit on Congress’ powers?

i. If federal law is otherwise within the scope of Congress’ powers, can it be declared unconstitutional simply as violating the Tenth Amendment?

c. Two approaches to interpreting Tenth Amendment :i. Approach #1 Tenth Amendment is merely a reminder that Congress

may only legislate if it has express or implied authority in the Constitution (“truism”)

1. Under this approach, a federal law can never be unconstitutional simply as violating the Tenth Amendment

ii. Approach #2 Tenth Amendment protects State sovereignty from federal intrusion

1. Tenth Amendment reserves a “zone of activity” for exclusive state control and federal laws intruding into this zone must be declared unconstitutional

d. 1890s-1937 Court used Tenth Amendment to protect State sovereignty over production and federal laws regulating intra-state production were declared unconstitutional.

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i. Even if activity was “commerce” and “among the states,” Congress still could NOT intrude into the zone of activities reserved to States by the Tenth Amendment

1. Congress could NOT regulate intra-state mining, manufacturing, production

ii. However Court allowed Congress to regulate intra-state production of inherently morally evil products (lottery tickets and tainted milk).

e. Example Using 10 th Amend to invalidate federal regulation of interstate commerce

Hammer v. Dagenhardt (1918): Child Labor regulation prohibited shipment in interstate commerce of goods produced in factories that employed children under 14. Holding Even though law only applied to goods in interstate commerce, the Court invalidates law because it regarded “production.” Regulating hours of labor of children is “production” and is entirely within the State police power. Court argues that if Congress can regulate production inside a state, federalism is destroyed.

f. Counter Example Court upholding federal regulation of “moral evils ” (lottery)

Lottery Case (1903): Court upholds federal law prohibiting the interstate shipment of lottery tickets. Even though lottery tickets are “produced intra-state”, Court concluded that sale of lottery btw states “polluted the channels” of interstate commerce with moral evil. Thus Court makes an exception for federal regulation of inherently moral evil products and upholds the federal regulation. Court rejects argument that the federal law violated Tenth Amendment. (analogous to tainted milk)

1937 – 1995 ERA BROAD FEDERAL COMMERCE POWER I. Causes for Change in Doctrine Depression and New Deal

a. Great Depression: i. Economic crisis made laissez-faire economics seem untenable.

ii. Court’s wide use of Judicial Review to invalidate national economic regulation seemed anachronistic in the face of depression.

b. FDR and Court Packing i. FDR is re-elected in 1936 by wide margin mandate for New Deal

Programsii. FDR tries court-packing to pass New Deal legislation, but fails

1. However In 1937, Justice Owens changed his position and upheld New Deal economic regulations

II. KEY DECISIONS CHANGING COMMERCE CLAUSE DOCTRINE a. 1937-1942 Court makes a huge shift in Commerce Clause Doctrine:

i. Court overrules the earlier era of decisions and expansively defines the scope of Congress’ commerce power.

1. From 1937-1995 Not one federal law was declared unconstitutional as exceeding the scope of Congress’ commerce power.

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b. Example Congress regulating labor b/c “substantial effect” on interstate commerce

i. Overruling “direct/indirect effects” and “transportation/production” distinctions

NLRB v. Jones & Laughlin Steel (1937): Court upholds federal law regulating labor unions because labor disputes have a “substantial effect” on burdening free flow of interstate commerce. Court shows major shift by rejecting the old “production” vs. “transportation” distinction. The fact that the employees were engaged in “production” is NOT determinative. Congress has “plenary” power to protect interstate commerce no matter the source of the dangers which threaten it.

c. Example Congress may control Production of goods shipped in interstate commerce

i. Overruling Hammer v. Dagenhart Court rejects Tenth Amendment as a limit on Congress’ commerce power (merely a “truism”).

United States v. Darby (1941): Lumber Mill (D) sells products to several states. Fair Labor Act prohibited the shipment in interstate commerce of goods made by employees paid less than minimum wage. Holding Court upholds federal law under commerce power. Although intra-state manufacturing is not commerce, the shipment of goods interstate is commerce and Congress may regulate it. Court rejects Tenth Amendment as a basis for invalidating laws merely a “truism”

d. Example Very broad view of commerce reaching “ Cumulative Substantial Effects”

i. Complete rejection of old test of “direct effects” on interstate commerce ii. Court broadly interprets Commerce Clause as permitting Congress to

regulate even small intra-state activities with negligible impact if the activity, looked at cumulatively, had a substantial effect on interstate commerce.

iii. Marks surrender of Court in reviewing the Actions of Congress under the Commerce Clause Congress made decision to regulate on a REASONABLE/RATIONALE basis and feels that the aggregate effect of wheat growers will affect interstate commerce, then the Court will not second guess that decision

Wickard v. Filburn (1942): Agricultural Adjustment Act set quotas for wheat production. Filburn has small dairy farm and grew wheat only for home use. Filburn argues AAA could not constitutionally apply to him b/c his wheat was only for personal use and was never sold to anyone. Holding Court upholds application of federal regulation to small farmer’s home-grown wheat b/c of the cumulative/aggregate effect of that wheat on national market. Even though his wheat alone/individually had trivial impact, Congress could regulate his production b/c cumulatively/in aggregate homegrown wheat had a “substantial effect” on interstate commerce. Problem Looks like there is NO limit on Congress’ power.

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III. THE TEST FOR THE COMMERCE CLAUSE AFTER 1937: a. 1937-1990s Very Expansive view of Congress’ Commerce Power:

i. From 1937-1995, not one federal regulation was invalidated as beyond scope of Congress’ commerce power. Court “gives up” limiting federal commerce power

ii. Extreme Deference to Congress if there is any “rational basis” that the regulated activity substantially effects interstate commerce.

1. Broad definition of “commerce”

1. Reject old distinction btw “direct/indirect” effects or “trade/production”

2. New Test Congress may regulate any activity (intrastate or interstate) that has a substantial effect on interstate commerce.

a. Congress can even regulate small/individual activities that, looked at cumulatively/in aggregate, have a substantial effect on interstate commerce.

b. Court will uphold any law enacted under Commerce Clause if there is a “rational basis” for Congress to find that the regulated activity substantially effects interstate commerce.

i. Huge deference to Congress on what effects commerce

2. Broad definition of “among the states”

1. Court extended the meaning of “commerce among the states” to include authority for Civil rights laws, regulatory laws, and criminal laws.

3. Rejection of Tenth Amendment as a limit on Congress’ commerce power.

1. No longer was Tenth Amendment used to limit Congress’ power.

IV. VERY BROAD MEANING OF “COMMERCE AMONG THE STATES” a. 1937 -1995 Congress enacted wide array of federal legislation under commerce

clausei. Court’s broad interpretation of “commerce among the states” upheld all

regulations.b. Rational Basis Test:

i. Court gives broad deference to Congress and asks only two questions:1. Did Congress have a “rational basis” for finding that the regulated

activity had a substantial effect on interstate commerce?2. Are the “means” selected reasonably related to protecting

commerce (the ends)? c. Example Civil Rights Laws Enacted under Commerce Clause

i. Civil Rights of Act of 1964 Enacted by Congress under commerce power.

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1. 1883 Court held that Fourteenth Amendment only permitted Congress to regulate government conduct and state activity (not private behavior)

2. Uncertain in 1964 whether Congress could use the Fourteenth Amendment (§ 5) to outlaw private discrimination in employment and public accommodations.

a. Thus Congress used commerce power to enact Civil Rights Act

b. Under this approach ask: Could Congress have reasonably concluded that this kind of transaction, even if local, has a substantial impact on interstate commerce?

c. If YES “it has a real and substantial relation to the national interest” b/c commerce is diminished through discriminatory practices, then Congress may regulate the activity

Heart of Atlanta Motel (1964): Motel operated near interstate highway discriminated against blacks. Holding Civil Rights Act applies to Motel b/c there is a rational basis for Congress finding racial discrimination had a “substantial effect” on channels of interstate commerce. Discrimination effects black travelers. It makes NO difference that Congress has a “moral” motive for the regulation. Dating back to Lottery Cases, court had upheld federal exercise of commerce power to remedy moral evils.

1. TEST: Determinative test for Congress’ exercise of power under Commerce Clause = whether the activity sought to be regulated is “commerce which concerns more States than one and has a real and substantial relation to the national interest”

Katzenback: Small family-owned Ollie’s BBQ restaurant discriminated against blacks. Court upheld application of Civil Rights Act to small restaurant via commerce power. Restaurant got 46% of its meat from out of state. Holding Court concludes that Congress had “rational basis” to find restaurants discriminating against blacks, looked at cumulatively , had a “substantial effect” on interstate commerce. (RULE: Although an activity may be regarded as local and may not be regarded as commerce, it may still be reached by Congress if it exerts a substantial economic effect on interstate commerce)

d. Example Federal Regulatory Laws Enacted under Commerce Clause i. Congress can regulate purely intra-state activities, including all aspects of

business, if there is a “rational basis” for the belief there is an effect on interstate commerce.Hodel v. Indiana (1981): Court upheld a federal law that regulated strip mining. Court stated that it will only invalidate a federal regulation enacted under commerce power if there is NO rational basis.

e. Example Federal Criminal Laws Enacted under Commerce Clause

Perez v. United States (1971) Court upholds federal law criminalizing “loan sharking.” Congress has plenary power to protect the “challenges and instrumentalities” of interstate commerce from misuse. Even though extortionate loans are wholly local, Court concluded that Congress had a “rational basis” for finding that loan sharking effects national organized

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crime and thus has a “substantial effect” on interstate commerce. Dissent argues this is slippery slope because ALL crime is a “national problem.” No limit to Congress’ power to intrude on State’s sovereignty over police power.

1995 – TODAY THE MODERN COMMERCE POWER I. 1995 – Present Narrowing of the Commerce Power and Revival of Tenth

Amendment as a Constraint on Congress’ Powera. The New Era Modern Court seems committed to limiting scope of Congress’

commerce power and protecting state sovereignty by invoking the Tenth Amendment.

i. Ask: What is Congress’ authority to regulate among the States? 1. Needs to be related to commerce and have some sort of

commercial impactii. In Lopez (1995) For the first time in 60 years, the Court invalided a

federal law as exceeding Congress’ commerce power. (regulation of guns is not commercial)

iii. In New York (1992) The Court again used the Tenth Amendment to protect state governments from federal encroachments into state sovereignty.

b. Examples Narrowing Congress’ Commerce Power over Non-Economic Activities i. New distinction between “ Economic ” and “ Non-Economic ” Activities

1. Congress may regulate “economic” activities based on cumulative/aggregate impact

2. However “non-economic” activities may NOT be regulated solely on “cumulative impact.” Requires showing of “substantial effect” on commerce. Categories!

United States v. Lopez (1995): Congress passes “Gun-Free School Zone Act” under commerce power making it a crime to possess a firearm near school zone. Holding Act unconstitutionally exceeds Congress’ commerce power b/c the law is a criminal statute that bears NO relation to commerce or any sort of economic enterprise. New rule If the regulated activity is “non-economic,” then court will NOT look to “cumulative substantial effects” on interstate commerce. For non-economic activity must show clearer “nexus” btw statute and commerce. Criminal law is traditional area of State sovereignty. Act has nothing to do with commercial activity at all, so it is an unconstitutional interference w/ State’s police power. There must be some limit to protect States’ rights. (Congress’ authority is not without bounds) Dissent Court should use restraint and give deference to congress via “rational basis test.” Majority is trying to revive “formulaic” tests for commerce power that are outdated.

United States v. Morrison (2000): Under commerce power, Congress passes Violence Against Women Act to create a federal cause of action for victims of gender-related violence. Congress found that gender violence costs US economy billions and contracts women’s freedom of travel. Holding Act exceeds Congress’ commerce power b/c there was insufficient evidence this non-economic activity

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“substantially effected” interstate commerce. Court emphasized that Congress was regulating non-economic activity that is traditionally under State Laws. Court does NOT overrule Wickard, BUT For regulations of non-economic activity, court will NOT look at “aggregate effect” on interstate commerce. Need distinction btw what is truly national and truly local. Court has ultimate authority to decide if Congress can regulate interstate activity

c. Example Narrowly Interpreting Laws to Avoid “Constitutional Doubts”

Solid Waste Agency (2001): Clean Water Act regulates discharge of materials in “navigable waters.” Agency had interpreted statute to apply to temporary ponds which are habitat of migratory birds. P wants to build dump on land. Agency refuses to grant permit. Holding Court avoids difficult constitutional question of whether Act exceeds Congress’ commerce power. Instead the court resolves the case by reading the Statute very narrowly. Court rejects Agency’s reading of the statute as extending to temporary ponds for migratory birds. Court will avoid constitutional collision if the fight is unnecessary.

d. Examples Upholding Federal Law and Rejecting Commerce Clause Challenges

i. In 2005 Court reaffirms that Congress may regulate “economic activity” by looking to “cumulative impact” across nation to determine if the economic activity has a “substantial effect” on interstate commerce.

Gonzales v. Raich (2005): Court holds that Congress may use its power to regulate commerce among the states to prohibit possession of small amounts of “home grown” marijuana for medicinal purposes. CA passed a law exempting medical marijuana from criminal prosecution. (note: direct conflict b/w state and federal law) Federal agents arrested P’s under federal law banning all possession. Holding Court upholds federal prohibition because home-grown marijuana, looked at cumulatively, has a “substantial effect” on interstate commerce. Regulating marijuana was also part of Congress’ broader regulatory scheme. Court reaffirms Wickard Court will uphold federal regulation of “economic” activity if there is a “rational basis” for finding “substantial effects” on interstate commerce in looking at the activity in the aggregate.

II. THE SCOPE OF CONGRESS’ COMMERCE POWER TODAY:

a. The Modern Test for the Constitutionality of Commerce Clause Regulations :i. Congress, under its commerce power, may regulate:

1. Channels of interstate commerce; and

2. Instrumentalities of interstate commerce (persons/things

within) ; and

3. “Economic activity” having a “substantial effect” on interstate

commerce a. “Rational Basis Test” Court will generally defer to

Congress if they had a “rational basis” for finding that the regulated activity had a “substantial effect” on interstate commerce

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i. The “means” chosen must also be reasonably related to the legitimate end of regulating interstate commerce.

ii. For “ economic/commercial activities ” Congress may consider “substantial effects” on interstate commerce based on “cumulative/aggregate impact” across the nation (Court will give more deference to Congress)

iii. For “ Non-economic/non-commercial activities ” Congress may NOT look to “cumulative/aggregate impact” to determine “substantial effect” on interstate commerce

1. Court requires a “clear nexus” btw statute and interstate commerce

b. Court will narrowly construe Statutes to avoid unnecessarily reaching constitutional questions on exercise of commerce power

ii. Tenth Amendment as a Limit on Congress’ Authority: 1. Even if Congress acts within its commerce power Tenth

Amendment bars Congress from “compelling” state governments to implement federal laws

a. Congress may NOT directly “commandeer” state legislatures to enact or administer a federal regulatory program

b. Congress may NOT “commandeer” state executive officials to implement a federal mandate

c. Congress may prohibit harmful conduct by state governments, particularly if the law also applies to private entities

i. However Congress may NOT impose affirmative duties on state governments

III. National Federation of Independent Business v Sebelius (2012) a. The federal government enacted the Patient Protection and Affordable Care Act,

which, among other things, had an “individual mandate” and a “Medicaid expansion”i. In this case, Chief Justice Roberts brings an original meaning argument,

saying that Framers created a formalist idea1. He gets the economic argument that non-activity affects commerce,

but Framers accepted that and understood this, but put limits on Congressional power by limiting their power to just economic ACTIVITY

ii. If you have not voluntarily joined the market, gov’t cannot force you to using the Commerce Clause (Roberts)

iii. Roberts says Framers created line by using language “interstate commerce,” meaning Congress can only regulate commerce already in motion

1. AFA forces people into marketa. This creates activity, does not let people choose if they

want inb. Wickard, Raich, Comstock, there was already a market

i. Such as Comstock, people were already in custody

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TAXING AND SPENDING POWERArt. 1, § 8, cl. 1 grants Congress 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.”Taxing Power Test: Is this law capable of raising revenue?

- No law using taxing power has been struck down since 1996- It seems anything capable of bringing in money will raise revenue- Really easy to do b/c test is so easily satisfied- Only problem: Taxes are extremely unpopular, so voters might not elect people who want to

raise these -> this is a political check - Other limitation: a tax cannot be used for just the purposes of a penalty to punish- GENERAL RULES

Tax producing significant revenue is likely going to be sustained Regulatory provisions relating to tax are valid if there is a rational

relationship to the tax’s enforcement A tax that regulates directly through its rate structure is valid

Spending Power: Congress may provide for the common defense and general welfare of the US. Spending may be regulated by placing conditions on spending power

Power to spend is an independent federal power (US v. Butler). (pg 12) Spending power is a broad power

o Steward Machine Co v Davis & Helvering v. Davis: Congress may spend in any way it wants so long as it doesn’t violate another Constitutional provision.

o Sabri v. US: reaffirms broad spending power in a recent decision. Congress may use conditional spending power to achieve a result indirectly by depriving

states of money if they do not meet regulatory scheme goals. (South Dakota v Dole) (pg. 12)o Main question Rehnquist asks in Dole: Is the USC § 158 requiring Congress to

withhold 5% of federal highway funds from States that let people under 21 to purchase alcohol too coercive?

In this case, no b/c this law is just “relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose

o MODERN TEST: Exercise of spending power must be in pursuit of general welfare If there is a condition placed on state receipt of funds, it must be clear and

unambiguous Conditions on federal grants must have a relation to some federal interest Some other part of the Constitution that restricts federal power may be

applied

State Immunity from Federal RegulationV. TRYING TO REVIVE TENTH AMENDMENT’S LIMITS BETWEEN 1937 AND 1990s

a. In Darby (1941 ) Court declared that the Tenth Amendment is simply a “truism” to remind Congress that it must have express or implied authority to act under the Constitution.

i. 1941-1976 Court refused to use Tenth Amend to limit federal commerce power.

b. Under this analysis: We might concede that something is not beyond the power of the commerce clause for Congress to regulate, but a second inquiry: we might say that it’s still beyond the scope of the Congress b/c it has an impact on state authority and prerogatives (rights analysis instead of powers analysis)

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Something may fall under Commerce power, but still be prohibited b/c effectively regulates the states in violation of the 10th Amendment of the Constitution.

c. In Nat’l League of Cities (1976) Rhenquist attempts to revive Tenth Amendment as a limit on Congress’ Commerce Power and define a “zone of activity” where State government was immune from federal regulation as a separate sovereign of general powers.

i. Hodel’s 4 part Test Applied in Usery’s When does a federal law violate the Tenth Amendment?

1. If the federal law/statute attempts to regulate the “States as states”;

2. Federal law interferes with “traditional/indisputable State functions”

3. State compliance with the federal statute directly “impairs integral operations” of state govts.

4. The relation of state and federal interests must not be such that the nature of the federal interest justifies state submission

National League of Cities v. Usery (1976): Congress passed regulation requiring State and Local governments to comply with Fair Labor Standards Act. Although applicable to private companies, States challenged Congress’ attempt to regulate State governments directly. Holding Applying Act to State govt is a violation of the Tenth Amendment which bars Congress from intruding on the State’s integral/essential or traditional government functions. Nothing left of Federalism w/o some “zone of immunity” for State governments from federal regulation. Act makes police/fire protection more expensive interferes with State’s freedom to make decisions fundamentally within the State’s prerogative. RULE: Congress may not exercise power in a fashion that impairs the states’ integrity or their ability to function effectively in a federal system (However case is later overruled)

VI. In Garcia (1985) Court overruled Nat’l League of Cities i. Court rejects “traditional state function” test for State government

immunity from Federal Regulation is too vague and an unworkable. Court states that Tenth Amendment is NOT a limit on commerce power Garcia v. San Antonio Metro Transit (1985): Federal law enacted under Commerce Power regulates City Bus System. Holding Court overrules Nat’l League of Cities and states that Tenth Amendment does NOT bar Congress from regulating state governments. It is within Congress’ commerce power to regulate City Buses. State sovereignty is sufficiently protected by the “political process, not the legal system” RULE: State sovereign interests are more properly protected by procedural safeguards inherent in the structure of the federal system (legislature) than by judicially created limitations on federal power.

TAKE AWAY: National League of Cities ruling is dead! - can’t use the 10th Amendment as a challenge to the encroachment of federal regulations into the area of state sovereignty

IV. THE TENTH AMENDMENT AS CONSTRAINT ON CONGRESS TODAY: a. 1990s – Today Tenth Amendment limits Congress’ authority in Four basic ways:

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1. Tenth Amendment may be used as a limiting “rule of construction”

i. Court will apply a federal law that imposes a substantial burden on a State government ONLY if Congress clearly indicated it wanted the law to apply

2. Tenth Amendment bars Congress from “commandeering” or compelling state legislatures to adopt federal laws or federal regulations

ii. Congress may NOT conscript state legislatures to enact laws carrying out federal policies Violates Tenth Amendment by interfering with state sovereignty

1. However Congress may set standards, attach funding, and give incentives for State governments to comply with federal laws

New York v. United States (1992): Radioactive Waste Act created duty for States to safely dispose of waste. Act provided monetary incentives for states to comply. However, it also included a “take title” provision for any undisposed waste making States liable. Holding Although Congress may regulate dispose of waste under commerce power, “Take Title” provision is unconstitutional b/c it impermissibly “commandeered” State governments and forced compliance with federal regulation. Tenth Amend limits scope of Congress’ power to compel state governments to enact federal laws. Even a compelling federal interest is NOT enough justify commandeering of states to enact federal policy.

3. Tenth Amendment also bars Congress from “commandeering” state executive officials to carry out federal mandates

Printz v. United States (1997): Brady Act temporarily required state executive officials to conduct background checks for handgun purchases. Holding The Act violates Tenth Amendment by conscripting state executive officials to carry out federal policy. (required local officials to carry out federal regulation) Also violates “separation of powers” b/c President is vested with all executive powers, yet Congress side stepped president by compelling State executives to carry out law instead.

4. The “commandeering” principle is narrow does NOT apply to prohibition on conduct

iii. 10th violated only if Congress imposes affirmative duty on States to carry out policy.

Reno v. Condon: Driver’s Privacy Act prohibited states from disclosing personal info gathered by DMV. Act applied to both state governments and private companies. Holding Court upholds the law. Act did NOT violate Tenth Amd b/c it prohibited harmful conduct (disclosure of info) rather than imposing an affirmative mandate on states. Further law equally applies to private entities

NY and PRINTZ – CONCLUSION: Court declares an ANTI-COMMANDEERING Principle HARD AND FAST RULE: federal govt. can’t tell states HOW to address issuesFederal govt. CAN regulate state govts. directly (does not alter the demise of NLC) -- CONGRESS still has ability under Commerce Clause and other grants of affirmative power to prevent states from doing things

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Rule/Court Does say: Congress can’t say to legislatures and executive branches of state govt, we passed a law and you must enforce it by legislating, creating an executive agency, requiring local law enforcement to carry out our mandate (can’t say you work for me, go do this)

Congress DOES RETAIN the power to regulate states in intrusive and local ways w/out violating Commerce Clause

So what options does this leave the govt. with if they want to carry out their agenda? (How can they make it Constitutional?)

1. Monetary incentives (such as in NY) 2. Federal govt. could pay for funding (via grants) for states that agree to implement

program Could condition $$$ they are already giving the states as being allocated to

fund programs (not money already allocated, but for future fundings) Grant of annual funds based on certain stipulations Bottom line – provision of funding gets you around some problems – but

when funding giving is an issue3. Need something conditional that relates to the issue at hand – way for the states to

opt out

SEPARATION OF POWERS: THE FEDERAL EXECUTIVE POWER

INHERENT PRESIDENTIAL POWER/AUTHORITY

Separation of Powers – generally --- as b/w the 3 branches of federal govt (not federalism) and examinations of sparse legal provisions that regulate powers of president of US (Article 2)

Article 2 – enforcer of law, defender, commander in chief, chief executive No clear and crisp lines to distinguish b/w president and other branches of govt. – this

is a fuzzy area of the law, not explicit rules

This section will examine the validity/willingness/appropriateness of judicial second guessing and questioning of the authority of the Presidential Authority

I. Scope of Inherent Presidential Power :a. When may the President act without express constitutional or statutory

authorization? i. Article II “The executive power shall be vested in a President of the

United States of America.” Article II then enumerates specific powers of the president.

1. Hamilton Argued that the language of Article II reveals framers intention to create inherent presidential powers.

2. Madison Argued president has NO inherent powers that are not expressly enumerated in Article II.

b. Key Question Separation of Powers i. What is the proper balance to “checking” President’s power and allowing

discretion? ii. Formalist Approach Court likely looks solely at text and framer’s

intent when 1. there is a clear tension with the text; 2. Congress is attempting to aggrandize its power over the

president.

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iii. Functionalist Approach Court is more likely guided by “underlying values” of separation of powers and permit expansion of presidential power in:

1. Foreign policy or emergency situations (national security)

II. Youngstown Sheet & Tube v. Sawyer (1952)a. Inherent Power of President? Ability of president to act without express

constitutional or statutory authority. Can the president possess inherent “lawmaking” powers?

Youngstown: Steel workers planned nationwide strike. Truman orders secretary to take possession (seizure) of the steel mills and keep them running. Truman fears strike could endanger national defense and Korean War. Truman immediately reported to Congress and asks for input. Congress took no action. Owners of mil sue to enjoin President’s seizure. Holding Court declares the seizure of the steel mills unconstitutional. - There is NO express constitutional provision permitting the president to seize property. Only Congress may seize property, not president. - There is NO statute or act where Congress authorized president to seize property. - This was NOT an emergency action in a “theater of war.” Therefore, Truman’s act was outside the scope any inherent executive authority

b. Different Approaches to Inherent Presidential Power in Youngstown : Formalist (Categorical) Approach Justice Black (Majority Opinion )

1. Look to the literal text of the Constitutiona. Formal, literal, categorical, rule bound approach b. If No express constitutional text No power to act

2. There is NO inherent presidential powera. President may act only pursuant to express or clearly

implied constitutional or statutory authorization

Functionalist Approach Justice Jackson (Concurring Opinion)

1. Flexible view of constitution and executive power, open-ended balancing

a. Modern problems are complex need a “sliding scale” of powers based on the circumstances of the situation

2. If Executive branch is not usurping the “functions” of Congress, there can be a balancing of interests to determine if President’s act was constitutional.

a. President may exercise powers not mentioned in the text of the Constitution so long as he does not violate a statute or Constitution.

3. Jackson’s “Three Zones” of Presidential Authority: a. Zone #1 When President acts with express or

implied authorization from Congress, executive authority is at its max

i. In this zone President’s acts are presumptively valid

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b. Zone #2 When President acts with Congress having neither given permission nor denied authorization (“Zone of Twilight”)

i. President can only rely on his own powers, but there may be a middle area where power is uncertain, implied or concurrent.

ii. In this zone No presumption that President’s act is valid

1. Balancing of Interests:a. Emergency Situation? b. Has Congress acquiesced?

c. Zone #3 When President acts contrary to the express or implied will of Congress, President’s power is at its lowest ebb.

i. In this zone Presumption against validity of President’s act

ii. Truman’s seizure of mills falls in Zone 3 Thus, Truman’s action was unconstitutional and outside his inherent powers.

Delegation Questions: (You ask these every time delegation question comes up)

1. Is there intelligible principle?a. Almost always yes

2. Who is executing disputed power? 3. What is nature/kind of disputed power?

May (2) exercise (3)?

CONSTITUTIONAL PROBLEMS OF THE ADMINISTRATIVE STATEI. ADMINISTRATIVE AGENCIES

a. Huge growth of Administrative Agencies (1932-today)i. No express Constitutional provision for administrative agencies. However,

complex modern problems gave rise to many regulations.ii. Complex regulations are better handled by specialized agency (rather than

Congress)iii. Political dimension Expansive delegation of legislative power to Agencies

allows Congress to act, but avoid the political heat of specific regulations. b. Administrative Agencies exercise all government powers: legislative,

executive, judicial i. Combination of all power into a single, unelected agency conflicts with:

1. separation of powers and 2. checks and balances.

ii. However Congress routinely delegates its power to executive agencies

II. THE NON-DELEGATION DOCTRINE (and its Demise)

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a. Non-Delegation Doctrine Theoretically prevents Congress from delegating its lawmaking power to an executive agency without guidelines or “intelligible standards”.

i. However court gives wide deference to Congress and upholds even very vague guidelines. Court has not invalidated delegation of power in 70 years.

b. 1935 Doctrine was a “ false start ” attempt to limit executive power during the New Deal.

c. After 1935 Court has abandoned use of the “non-delegation doctrine” to limit Agencies

III. THE LEGISLATIVE VETO (and its Demise) – Congressional Interference with Presidential Prerogative a. In 1930s Congress was looking for a way to “check” the power of growing

administrative agencies. Congress could enact a law overturning an agency’s rule, but this would require getting a bill passed by both houses and obtaining presidential signature.

b. The Legislative Veto Created by Congress as a “check” on administrative agencies. Congress included in statutes provisions authorizing one-House or a committee to overturn an agency’s decision by doing something less than fully enacting a new law.

c. In Chadha (1983) Court declared the Legislative Veto Unconstitutional i. Modern Rule Legislative vetoes are unconstitutional. If Congress wants

to overturn an executive agency’s action, there must be:1. “Bicameralism” (passage by both houses of Congress); and 2. “Presentment” (giving the bill to President to sign or veto)

Anything less is an unconstitutional legislative veto

INS v. Chadha (1983): Chadha was an immigrant was up for deportation. Administrative Judge declares Chadha’s deportation could be suspended. House of Reps passes “legislative veto” overturning agency’s decision to suspend Chadha’s deportation. Chadha (P) challenges constitutionality of legislative veto. Holding The legislative veto is unconstitutional. Article I says Congress may ONLY legislate if there is: Bicameralism (both houses vote) and Presentment (President signs). Legislative Veto is “legislative” in effect by affecting legal rights but does NOT comport with specific textual provisions in Article I. Court rejects argument that legislative veto is “necessary” for efficient “check” on agencies. Follow text! (Formalistic approach) Dissent Legislative veto is needed in the modern, complex world and is consistent with the basic “functions” of lawmaking. Constitution was meant to be flexible and Congress needs some way to “check” Agencies. Makes sense for Congress to retain some power and ability to exercise legislative veto in certain situations (Functionalist Approach)

Note: Process Altering Decision -- This case struck down more statutes than any other case – struck down immeasurable amount of prior legislation – demands nothing less than bicameralism and presentment for any legislation (to overturn an executive action)

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THE AUTHORITY OF CONGRESS TO INCREASE EXECUTIVE POWER I. Does Congress have the ability to enhance the powers of the President by conferring

upon him authority not contained in the Constitution? Underlying issue Separation of Powers a. SEPARATION OF POWERS ISSUES:

i. Two approaches to Separation of powers 1. One view Separation of Powers issues are best resolved btw

Congress and the President. If the branches agree, Judiciary should only rarely interfere

2. Another view Separation of powers is Constitutionally mandated. Courts should actively enforce separation of powers.

ii. Formalist vs. Functionalist Approach to Separation of Powers 1. Formalist Rigid focus on text of Constitution. Court should

interfere and invalidate a law to strictly enforce separation of powers even when two branches are in agreement.

2. Functionalist Emphasizing the need for change and flexibility. Court should only invalidate laws that actually interfere the “functions” of the separate branches within separation of powers

iii. Two Important Concepts:1. Non-delegation doctrine: the principle that the Congress of the

United States, being vested with "all legislative powers" by Article I, Section 1 of the United States Constitution, cannot delegate that power to other branches of government (e.g., the Executive Branch). However, the Supreme Court has ruled that Congress does have latitude to delegate regulatory powers to executive agencies as long as it provides an "intelligible principle" which governs the agency's exercise of the delegated regulatory authority.

2. Bicameralism and Presentment Clause (Article I, Section 7, Clauses 2 and 3) of the United States Constitution outlines federal legislative procedure (that is, how bills originating in Congress become federal law) in the United States.

b. LINE ITEM VETO ACT (President’s Power to Determine National Policy – Delegation of the Legislative Power to the Executive)

i. Supreme Court invalidated in the “cancellation provisions” of the “Line-Item Veto” as an unconstitutional attempt by Congress to increase Presidential power.

1. Even though both Congress and President agreed on Line-Item Veto, the Court interferes and invalidates it as a violation of Separation of Powers.

2. Congress can only change the process of passing laws through a Constitutional Amendment Take away: Congress may not increase the Presidential powers, via statute, beyond what is granted to him in the Constitution. Changes to the procedures for enacting and vetoing laws must come from a Constitutional

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Amendment, not by legislative action. Majority = formalistic Constitutional view Dissent = functional constitutional view

Clinton v. City of New York (1998): Line Item Veto Act allowed President to “cancel” provisions of enacted laws. President could “cancel” certain expenditures and then send it back to Congress who could overturn veto w/ majority vote.

Majority Holding “cancellation” provisions of Line Item Veto are unconstitutional. President is changing a law adopted by Congress. The constitutional procedures for enacting laws in Article I must be strictly followed. The final bill, that is altered by president by the line item veto, is different than what Congress passed and outside of the regular veto process, the president can’t exercise veto option. Thus the Line Item Veto violates separation of powers. Violation of text of constitution and the framework set forth (tradition is to veto entire bill) (Majority uses Highly Formalist approach)Dissent Complexity of budget has changed in modern times. We need a flexible standard for veto-- Different way to achieve same result (Functionalist Approach.)

OTHER DELEGATION CASE EXAMPLES;Myers:Who? CongressWhat? Executive (President wants to remove person who is solely involved in executive functions)Whether? No

Court is saying REMOVAL is critical b/c people know you can fire them, removal is a very powerful tool

Could President remove a prosecutor? Yes, a prosecutor’s sole duty is to enforce the law

Huphrey’s Executor:Congress put restriction on President to remove person from Federal Trade Commission, which is not soley executive; FTC was independent commission that carried out judicial powers, as well.Who? POTUSWhat? Quasi-judicialWhether? No

Bowsher:Who? CongressWhat? Legislative (But it tries to give power to remove someone without impeachment)Whether? NoBottom line, formalist argument b/c it forbids Congress from removing an officer w/o impeachment b/c no other means of removal is allowed in Constitution

OTHER CHECKS ON ADMINISTRATIVE AGENCY’S POWERS:d. Key Question With demise of non-delegation doctrine and legislative veto, are

there sufficient checks on administrative agencies? i. Congress can overturn Agency’s action by enacting statute

1. Congress must go through slow process of bicameralism and presentment

ii. Congress can control “purse strings” and withdraw fundingiii. Congress can use “oversight committees”

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iv. Senate approval of President’s appointees to Agencies

IV. NO DELEGATION OF EXECUTIVE POWER TO CONGRESS a. Congress has broad authority to delegate legislative power to administrative

agenciesi. Court has taken “functionalist” approach to Congress relinquishing its

own legislative authority and assigning it to another branchb. However Congress may NOT delegate executive powers to itself or its agents.

i. Court takes a “formalist” approach to Congress attempting to aggrandize its own powers and assume power to execute its own laws.

1. This is a clearer violation of separation of powersa. Article II specifically assigns the executive power to the

President

V. THE APPOINTMENT POWER – Congressional Interference with Presidential Prerogative a. Article II § 2 “President shall nominate, and by and with the advice and consent

of the Senate, shall appoint Ambassadors, Judges of the Supreme Court, and all other Officers of the United States…but the Congress may by law vest the appointment of such “inferior officers” as they think proper in the President alone, to the Courts of Law, or in the Heads of Departments.”

b. “Principal” vs. “Inferior” Officers i. “Principal” Officers may only be appointed by the President, with

advice and consent of the Senateii. “Inferior” Officers Congress may vest appointment of “inferior” officers

in other departments like the Courts or in Executive Departments. 1. However Congress may NOT vest Courts with appointment

power if it would be “in-congruous” with the functions of judiciary

c. Appointment of “Independent Counsel” - Appointment, Discharge, and Supervision of “Officers of the United States”

i. Independent prosecutors are considered “inferior officers” because they have limited authority and are subject to removal by executive officials.

ii. Thus Congress may vest Federal Courts with power to appoint independent counsel without violating separation of powers.

1. Represents a “functionalist” approach Independent counsel (special prosecutor) is needed to investigate abuses by President. A flexible interpretation of Article II permits appointment of independent prosecutor by the separate judicial branch.

Morrison v. Olson (1988): Ethics in Gov Act allowed for appointment of independent counsel to investigate abuses. If attorney general finds investigation into wrongdoing is needed, panel of Federal judges could appoint independent counsel. Holding Court upholds constitutionality of federal judges appointing independent counsel b/c they are “inferior” officers with limited tenure/power and jurisdiction and not appointed by the AG. Can be Appointment by judges was not “incongruous” b/c judiciary given no authority to supervise prosecutions. Judiciary is NOT trying to “aggrandize its own power.” Also, there is a good justification for

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deviating from text of constitution --To effectively investigate president, counsel must be appointed by a separate branch. (Protection that independent counsel could only be removed for “good cause”) (Functionalist approach). Scalia Dissent The power to prosecute is an executive activity and it usurps the presidential power for Congress to vest this authority in the independent counsel outside of President’s control. This is an unconstitutional limit on president’s power. (Formalist approach)

Majority – says that there is great overlap of branch authority (executive, legislative, and judicial) -- but we need flexibility here so it’s okay BUT, what about President’s authority to be the sole person to

prosecute? o This limits authority of President to determine whether to have

prosecutor, whether to fire prosecutor (thus limits power of AG) o HELD: some limitations on power to remove is okay (b/c not

exercising core executive authority)

Take away – president has power to remove any one in executive branch But Congress can limit that power only where division from the

president is desirable There is a shift in the reasoning here b/c there is an exercise of

core executive authority here (enforcement of law) -- the court has to alter its previous approaches slightly -- b/c has taken core executive power of president and limited it in some way

So the Court doesn’t restrict its examination to just blanket authority – but goes further by asking question of whether there is a usurpation of power of the core aspects of sovereignty of the President?

This may be the far reach of functional approach to separation of powers

It is an extreme version of this is not expressly constitutional but it serves a purpose

This is the outlier of cases in terms of applying Justice Jackson’s approach – FUNCTIONAL approach

Extreme version of notion of saying this isn’t precisely constitutional, but makes sense so we should do it – there’s a strong purpose to be served by Independent Counsel, so it’s okay

d. Limitation on Congress’ Appointment Power i. Congress may NOT give the appointment power to itself or its officers.

1. Article II states that Congress may vest the appointment power for inferior officers in the president, heads of departments, or federal courts. Congress is NOT on this list. (Buckley v. Valeo)

2. Thus Congress can NOT “aggrandize” its own powers without violating separation of powers.

VI. THE REMOVAL POWER a. Constitution is silent on President’s authority to remove executive branch officials.

Court has used a “functionalist” approach to president’s power to remove executive officials.

b. Basic Principle :

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i. The president has the power to remove executive officials; But Congress may limit the removal power if it is an office where independence from the President would be desirable. However, Congress cannot completely prohibit president’s removal power entirely and Congress cannot give the removal power to itself (other than by exercising its impeachment power).

ii. Approaching “ removal” issues involves a two pronged analysis :

1. First Is the office one where independence from the president is desirable?

a. If so, Congress may limit the removal power.

2. Second Are Congress’ limits on President’s removal power constitutional?

a. Congress cannot completely prohibit presidential removal, but it can limit removal to where there is “good cause.”

b. Congress cannot give itself the sole power to remove an executive official. (except by exercising impeachment)

c. The basic principle emerged from the following cases: i. The President has exclusive power to remove “purely executive” officials or

cabinet members without any interference from Congress (Myers)ii. However Congress may limit by statute the president’s removal power

over commissioners of non-partisan independent regulatory agencies like FTC which are not under direct executive control. (Humphrey’s)

iii. Further Even without a statutory limit on removal, President is restricted from removing an administrative officer from a commission where independence from the president is desirable (Weirner).

iv. Congress may NOT give itself the power to remove executive officials except through the impeachment process. Congress may NOT aggrandize its own powers by giving executive powers to itself or to its agents. (Bowsher).

v. Congress may limit President’s power to remove an independent counsel appointed to investigate and prosecute alleged wrongdoing in the executive branch. Counsel may only be removed for “good cause.” (Morrison)

vi. Distinctions btw “quasi-legsilative” or “quasi-judicial” functions not dispositive. The real question is whether removal restrictions are of such a nature that they “impede the president’s ability to perform his constitutional duty. (Morrison).

OPPOSING VIEWPOINT (SCALIA)UNITARY POWER OF THE EXECUTIVE:

- President should have all executive powero This Act interferes w/ President’s full power (‘good cause’ restriction)

He says if President does not have complete control over his branch, he will not be equal in power with other branches (Congress can impeach him, delegate powers) so this diminishes Presidential power2 arguments for UNITARY POWER

1. There are checks on everyone in executive office, everyone has “boss” until you reach President, who himself is politically accountable.

2. However, Special Officer has no boss, no checks on him. President needs power to be boss

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PRESIDENTIAL ACCOUNTABILITY

US vs. Nixon- Nixon refuses to give up tapes b/c he says he has executive privilege to keep them secret

- Nixon’s lawyer says he is willing to go to court over thiso All presidents up to Nixon believed they had absolute executive privilege

Gerhardt says this is not a “silly” position at all- Subpoena is delivered to Nixon

o Should he challenge this?o Problem with litigation: You could lose

If Nixon loses, changes executive privilege for every other president to come

- What were Nixon’s bases for absolute executive privilege?o Professor Black hated Nixon but still thought Court got this decision wrong, so there

must be compelling argument for this side Structure argument- He needs this power to stay on even playing field with

other branches If he cannot be able to keep what he wants secret, he becomes less

powerful than other branches and will be subject to their scrutiny- Counterargument is…

o If you give President absolute executive privilege, he will never be able to be held accountable for anything he does

- Holding When President uses executive privilege, Court may review this information in private to balance whether this information should be held against President or whether it should be kept secret

QUALIFIED executive privilege is new standard- Need for disclosure balanced against need for law and order

I. SCOPE OF INHERENT POWER ISSUE OF EXECUTIVE PRIVILEGE a. Presidential Immunities and “ Executive Privilege ” the ability of the

President to keep secret conversations with or memoranda from advisors. i. The Constitution does NOT mention such authority, but Presidents

have claimed it throughout history arguing it is necessary because:1. President’s need candid advice2. National Security demands secrecy 3. Diplomacy requires secrecy

United States v. Nixon: Special Prosecutor investigating Watergate wants Nixon to turn over tapes. Nixon refuses claiming executive privilege.

Nixon argues this is a non-justiciable political question involving an “intra-branch” dispute because special prosecutor is part of executive branch.

Nixon argues that he has “absolute” executive privilege and the Judiciary cannot compel a “co-equal” branch of government to do anything. Impeachment is the only way to compel the President to do anything.

Holding Court finds this is a justiciable issue because of the context of a criminal prosecution. The parties are “adverse” b/c prosecutor is investigating the President.

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“Executive Privilege” is NOT absolute, but merely an “implied” power without express textual support. The Court has the power to “say what the law is” and the legitimate needs of the judicial process will outweigh Executive Privilege. Therefore, Nixon must turn over the tapes.

II. SCOPE OF EXECUTIVE PRIVILEGE AFTER NIXON :a. Judiciary has sole power to determine scope of Executive Privilege .

i. “It is the province and duty of the judicial department to say what the law is”

1. President does NOT have power to define the scope of Executive Privilege.

b. Court recognizes Executive Privilege as an Inherent Presidential Power i. Article II does not expressly grant executive privilege, the court

implies from structure of Constitution and President’s duties 1. Executive Privilege needed for candid advice w/o fear of

disclosure to publicc. Court holds Executive Privilege is NOT absolute

i. Executive Privilege can be invoked to protect military, diplomatic, or national security secrets. (presumption in favor of privilege)

ii. However Executive Privilege must yield to countervailing interests/judicial review

1. In the context of a criminal proceeding Presumption against privilege

2. An absolute executive privilege would place the President above the law and interfere with Judiciary’s ability to perform its functions under rule of law

a. (In criminal trial courts must be able to compel evidence, etc)

3. Must be a balance b/w need for information v. need for secrecy

Nixon v. Adm. General Services- Question: If President is asked day after leaving office about something that was under

executive privilege, can they keep it secret?o No, information belongs to current office

Nixon said “No, tapes are mine now” Court said no- Once you leave office, you do not hold these powers anymore

o Same for judges; can’t influence opinion once they aren’t a judge anymoreWorks as a check against Office- must worry about what you are leaving behind

- What is going to happen- current President will want same treatment later once he leaves office, so presidents are very selective of what they will bring out about past president

- Happens even across party lines- Bush protected things from Clinton

Executive Immunity- Extent to which President will be subject to legal processes

o A few different holdings US v. Burr- President subject to subpoenas as far as information goes

o Nixon v. Fitzgerald President is entitled to ABSOLUTE immunity from “damages liability

predicated on his official acts” b/c without it, people could use court system fairly easily to distract President

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President must be able to fully focus on his duties as president What are checks to keep him in line then?

o Media coverageo Congress (such as threat of impeachment)o Desire for reelectiono Concern for historical statureo Prestige/popularity

Problem with these- in Nixon and Clinton cases, problems arose in second terms (reelection does not matter)

o Clinton v. Jones Arkansas state employee files federal suit against Clinton seeking damages

for sexual advances Clinton argues suit should be dismissed b/c of Presidential immunity Court rejects this, but discovery is pushed off until after his reelection (not

b/c of ruling, b/c of legal action taking so long) Court says immunity is ONLY available to things done while in office-

conduct in question occurred when he was not yet President

IMPEACHMENTHistory- Federal judges have been only people removed by this Johnson and Clinton only two impeached by House (both acquitted by Senate)Threat of Impeachment- Does it work??

- If you are federal judge, no incentive to resign b/c you keep receiving salary no matter what, even if you are sitting in prison

It is almost impossible to convict a President of impeachment- Johnson was basically hated and survived it***Impeachment is not legal process, it is a POLITICAL processConsists of treason, bribery, and other high crimes and misdemeanors

House votes first to impeach, thenAt least 2/3 of Senate has to vote to enforce

How much should we rely on impeachment as a check on anything?

Impeachment:Crimes only?All crimes?Crimes that violate public trust- not very specificDiffering standards? Likely depends on what somebody’s job is, but yes

- A lie probably is not enough; depend on nature of lieo Could be protecting national security

House role? No consensus here. 3 cases where they did no fact finding: In Andrew Johnson case, they did no fact-finding. Johnson admitted he fired someone who he couldn’t fire without vote of Senate. 2. Claibourne asked to be impeached so he would have hearing in front of Senate 3. Clinton caseSenate role? Burden of Proof? House- not rigorous standard; Senate- each decide which burden (beyond reasonable doubt, etc.)Sanctions? Removal from office; other is disqualification (only 3 people in history has been dq’d, which makes you unable to ever run for another office)

DORMANT COMMERCE CLAUSE- State treating business practices differently

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- ALL these cases begin with critical presumption that Federal Gov’t has not actedo Federal Gov’t can preempt any state law in which both address same subject (unless

Federal law is unconstitutional) Express preemption (states that any state law on _____ is overridden) Implied preemption

Fed and state law flatly inconsistent Federal law occupies field state law tries to occupy

o All contextual

1. Does it discriminate?a. MPE appliesb. If a state law DISCRIMINATES against out-of-state interests, it is barred

i. How would you know if it is discriminating?1. If the law facially discriminates (treats out of state interests less

well than in state interests)a. Strike down these laws almost every time

c. Philadelphia v NJi. Law preventing people from bringing solid waste from out-of-state into NJ

1. Expressly discriminating- applies only to out-of-state actors2. Commerce clause precludes this law- imagine what it would do to

national economya. Only way to make it not discriminate is say NOONE can

dump garbagei. Seems highly impractical

1. Politically, would hurt NJ politicians as well (NJ citizens would have to dump out of state)

3. Balancing test does not really come into play when it is express discrimination

4. Only other option would be Federal Gov’t- they have tremendous authority, so they could regulate the way the waste gets disposed- Could probably do this

5. If states created compacts with one another, they could do this (Collective waste barges, community waste disposal for agreeing states)

2. Balance- If not express discriminationa. If discriminatory effect that is not purposeful, you still probably strike down

UNLESS really good reason by the stateb. HUNT v WASHINGTON APPLE case

i. NC state law says everyone must package apples the same to be sold in the state

1. Why is NC doing this? This answer is why it gets struck downa. Appears even handed, even people in NC have to do itb. This law removes advantage out-of-state apple growers

had b/c they had higher standards and were a better product

c. People would then not know where apples came from b/c law removed label

c. How can Universities get away with in-state discriminationi. Market Participant Exception

1. When a state is a PARTICIPANT in economics, it can discriminate2. University accepts more funds from in-state people, therefore they

can give in-state people advantage3. UNC is a participant in market of higher education

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a. UNC does not get to tell other universities or private schools how to run themselves

i. UNC says we have to compete with other places of higher education

Regulation of Transportation In balancing test consider the following:

o the absence of discrimination (ie: if regulation burdens intra and interstate commerce equally, regulation will likely be upheld.)

o Differing regulations among states may produce a cumulative burden and the court will strike down. (see: Southern Pacific Co v. Arizona)

o Regulations with a discriminatory intent or effect will likely be struck down. (see: Kassel v. Consolidated Freightways) (pg 29)

Regulation of Trade Court strikes down barrier to incoming trade whose clear purpose is to favor local economic

interests (see: Hunt v. Washington Apple) Court strikes down embargo of outgoing trade resources if less discriminatory alternatives

are available (see: Hughes v. OK) Court is suspicious of regulations that pressure out of state business to perform certain

operations within the state like locally process garbage (see: Carbone v. Clarkstown)Regulation of Environment

Even if regulation is enacted to further a non-economic motive, court may strike it down unless there are NO less discriminatory alternatives (see: Philadelphia v. New Jersey) (pg 28)

Environmental acts that merely burden interstate commerce are sustainable under DCC. (see: Minnesota v. Clover Leaf Creamery)

Article IV- Privileges and Immunities Clause- many cases align w/ dormant CC cases(b/c state is interfering w/ actions with another state)

- Some interests where state cannot discriminateo What are these interests?

Vague test Economic interests that gives people in one state advantage over

another in discriminatory manner that prevents people from participating in national economy

P. 332o Examples of interests so important that it would ruin national economy

1. Who is eligible to take state bar- Modern Test p. 334- When a law treats in state people and out different, state can defend in

two mannerso 1. There is a substantial reason for the difference in treatmento 2. The discrimination practiced against nonresidents bears a substantial

relationship to the State’s objectiveQuestion: What does it MEAN to discriminate? How do you recognize it? B/c every law discriminates

- Every law distinguishes a group of people to which it applies and people who it does not apply to

Intro to 14th Amendment and Economic Due ProcessClause: “no state shall make or enforce any law which shall deprive any person of life, liberty or property without due process of law.” Early Expressions of the Notion that Governmental Authority has implied limits:*CALDER v BULL

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- J. Chase made a point to strike down legislation without regard to explicit constitutional limitations

o Purposes for which men enter society will determine the nature and terms of social compact

Since they are foundation of legislative power, they will decide what are the proper objects of it

- Iredell disagreed:o If any member of the Union, shall pass a law, within the general scope of their

constitutional power, the Court cannot pronounce it void merely b/c it is in their judgment contrary to the principles of natural justice

*DRED SCOTT- Majority ruled even though Dred obtained freedom under law of Illinois and Wisconsin, the

Constitution did not count slaves as “citizens” so he did not get the right to do this- Scott could NEVER be a citizen, for that matter

o Framers intent- Judge says they were more than capable of including slaves but did not do so

- Also says due process prevents slave owner from being deprived of his property (5th Amendment protection)

- Dissent says international common law is used in Missouri, and that United States law in place directly changed status of a slave in Wisconsin, so change of status should be recognized elsewhere

o Also makes point that slaves in northern states who were freed would no longer be citizens, according to the majority ruling

Now… How do you deal with Southern states as far as reconstruction laws, etc.?- Lincoln says the states never actually left Union, but rebelled against other states in Union- But how can these laws be valid if Southern states were not represented at the time?

Ratification of 13, 14, 15 Amendments- All 3 work to reverse Dred Scott decision- Put federal gov’t in charge of civil rights, but states subject to these rights- These amendments were predicated on idea that they could not trust states in this area

End of slavery led to right to contract theory- sell your services in exchange for compensation

ECONOMIC SUBSTANTIVE DUE PROCESS

I. EARLY HISTORY OF ECONOMIC SUBSTANTIVE DUE PROCESS (1790s-1880s)a. Early Antecedents Using Natural Law to Protect Property

i. Early Court believes Constitution protected “natural rights” concerning personal property that limited government actions.

b. Initial Rejection of Economic Substantive Due Process i. Slaughterhouse Cases (1872) Court expressly rejected a substantive

due process claim. Court emphasized that Due Process only concerned “procedures” and could not be used to challenge laws as violating economic rights.

1. Field’s Dissent argues Due Process includes protection of “natural rights” to property and to practice profession that could not be “arbitrarily assailed”

c. Rise of Regulations and Suggestions of Economic Substantive Due Process i. 1870s Industrialization changed economy and legislatures begin to enact

regulations for railroads and grain storage.

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ii. Laissez Fair Economic Philosophy influences Judges to interpret a “freedom to contract” into Due Process Clause as a basic “liberty interest” (Alleger).

II. “LOCHNER ERA” ECONOMIC SUBSTANTIVE DUE PROCESS (1897-1937)

a. “Lochner Era ” Under Laissez-Faire philosophy, Court interprets an implicit “freedom of contract” into the Due Process Clause of the 14th Amendment. Court actively invalidates state government economic regulations as violations of economic substantive due process.

Lochner v. New York (1905): Court invalidated a NY regulation that set the maximum hours that bakers could work. Court held that the regulation of labor hours did NOT come within the State’s police power to regulate health and safety. Thus, the law violates “freedom of contract” btw bakers and employers. Court tries to “constitutionalize” laissez faire” economics and will second guess legislature’s determination of what constitutes valid exercise of police power. Holmes Dissent objects that Constitution does not imply any economic theory or policy.

b. Three Main Principles of “Lochner Era” i. “Freedom of Contract” is an implied right protected by the Due Process

Clause of the 14th Amendment. (the right is seen as a property right that can’t be taken away)

ii. Legislatures could interfere with “freedom of contract” only to serve a valid police purpose of protecting public safety, public health, or public morals, but other things are beyond the scope of the govt. power to regulate

iii. The judiciary will scrutinize regulations and second-guess legislature’s determination of what constitutes valid police purpose. (“ends” and “means”)

c. Examples Lochner Era Cases i. Invalidating laws protecting labor unions:

1. Coppage v. Kansas (1915) Court uses economic substantive due process to invalidate a law prohibiting Employers from requiring non-union workers

ii. Upholding Maximum Hours Laws for Women Workers

1. Muller v. Oregon (1908) Court upholds maximum work hours for women b/c female reproduction is a legitimate exception to “freedom of contract.” As a lawyer, Brandeis files a detailed brief with “scientific data” (this is an EXCEPTION – involved a special interest to protect rights and health since women couldn’t vote)

iii. Invalidating Minimum Wage Laws for Women Workers

1. Adkins v. Children’s Hospital (1923) Court invalidates (rules unconstitutional) minimum wage law for women b/c 19th amendment gave women equality through voting rights. This infringes on liberty of K.

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III. CRITCISM OF “LOCHNERISM” AND PRESSURE FOR CHANGE (1930s) a. Criticism of “Lochnerism”

i. Depression Era created widespread perception that government economic regulations were essential and “freedom of contract” should not be an obstacle.

ii. Legal Realists argued that Lochnerism was really just about political policy choices rather than restoring “natural order.” Pointed out inconsistent decisions

iii. Problematic Judicial Activism Criticism that “unelected judges” were unduly substituting their values for those of democratically elected legislatures to protect rights that were NOT expressly stated in any text of the Constitution.

Vices of Lochner: (6)IV. Liberty of Contract is not protected by the due process clauseV. Liberty of contract might be protected by DP, but not substantivelyVI. Court too skeptical of means and ends

a. Institutional criticism, Court should have been more deferentialVII. Problem with the ends

a. Idea that Court is too skeptical of the end the government was going for- just because do not agree with end does not mean it is illegal

VIII. Lochner and political processa. Look at lawmaking process that made law- was there anything defective about it? If

not, do not need judicial reviewIX. Locher gets the status quo wrong

a. Perhaps the most devastating attack on Lochneri. Right to contract had certain look that had no standing

ii. Don’t confuse status quo as what Constitution requires

b. Demise of Lochnerism

Nebbia v. New York (1934): Court upholds a government regulation that set prices for milk. Court states that any state regulation that is “reasonably related” to a legitimate government purpose satisfies due process. Court stresses need for judicial deference to decisions of legislatures as to what qualifies as valid police purpose and “in the name of public good.”

X. THE END OF “LOCHNERISM” (1937) a. In 1937 Justice Owen Roberts switched sides (after court-packing plan) and

upholds regulations in two cases signaling the end of Lochner Era. b. “Rational-Basis” Test for Economic Regulations - Heavy Presumption of

Constitutionalityi. Economic regulations will be upheld if “rationally related” to serve any

legitimate government purpose and court will defer to legislature’s judgment.

West Coast Hotel v. Parrish (1937): Upholding minimum wage law and abandoning of Lochnerism. Court announces it will no longer protect “freedom of contract” as a fundamental right and government could regulate to serve any legitimate public purpose; court will defer to legislature’s reasonable choices. (Overrules Adkins)

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c. Reaffirming Judicial Deference to Legislature i. Economic regulations upheld so long as supported by any conceivable

rational basis, even if it cannot be proved that it was the legislature’s actual intent.

United States v. Carolene Products (1938): Court upholds another economic regulation on milk products. Court announces it will no longer second guess the legislature as to whether a regulation has a “rational basis” linking a public purpose.

d. Carolene Products Footnote #4 and New Theory of Judicial Review i. Generally, the court will give broad deference to the legislature and uphold

laws so long as they are rationally related to legitimate public purpose. 1. Court defers to democratic process where voters are the “check”

on laws.2. Moving from a time of rigid intervention to a presumption of

constitutionality

ii. Three Exceptions Court will NOT give presumption of constitutionality if:

1. The law conflicts with explicit text of Bill of Rights2. The law restricts citizen’s access to political process (voting

rights)3. The law prejudices “discrete and insular minorities”

a. In these areas, the political process is NOT sufficient to protect the rights involved. Minorities and those denied voting rights cannot have any recourse by voting out members of legislature.

b. Thus Court must intervene with a more searching/heightened scrutiny.

XI. MODERN ECONOMIC SUBSTANTIVE DUE PROCESS SINCE 1937

a. Modern Rule “Rational Basis Test” for Economic and Social Regulations i. Economic regulations will be upheld when challenged under Due Process

as long as they are “rationally related” to any legitimate government purpose. (heavy presumption of Constitutionality)

1. “Legitimate purpose” can be any goal not prohibited by the Constitution

a. Any conceivable basis/public purpose (need not even be stated)

b. No relationship to health, safety, welfare required2. The law only need be a reasonable way/means of attaining the

enda. Need not be narrowly tailored to achieving the goal.

3. Thus virtually any law can meet this deferential standard

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a. Almost NO judicial 2nd guessing of legislation (great deference)

b. Example Extreme Deference to Legislature for Economic Regulations and Freedom of K

Williamson v. Lee Optical (1955): Oklahoma law required that all lenses prescriptions be filled by licensed optometrist. Holding Even though law is unnecessary and unreasonable, court refuses to second-guess legislature’s discretion in linking a public purpose with the law. It is up to the legislature, not the courts to decide upon the wisdom and utility of economic regulations. Court sends signal that people must use the political process to strike down laws that regulate business and industrial conditions.

c. Example Extreme Deference to Legislature for Restricting Rights of Trades and Professions

Ferguson v. Skrupa (1963): A Kansas statute made it a misdemeanor for any person to engage "in the business of debt adjusting" except as an incident to the lawful practice of law, "debt adjusting" being defined as the making of a contract whereby an adjuster, for consideration, agrees to distribute payments by a debtor among his creditors in accordance with an agreed upon plan. Effect of law was to put those who were not lawyers out of business of debt collecting. Holding Not unconstitutional – there is a conceivable basis – could be dangerous - Case shows that no longer did the Court interpret the DP clause to protect a right to practice a trade or profession or even freedom of K [willing for there to be limits on rights] – States have power to legislate as long as their laws don’t conflict with the Constitution or federal laws

Since Locher/1937 - economic substantive due process has been unavailable to challenge govt. economic and social welfare laws and regulations

No economic regulatory statute has been held invalid under DP since 1937 (limits are permissible)

GRISWOLD-Warren Court- only case where they use substantive DP

Implied fundamental right of married couples to be able to use contraception

The law made a fine or low prison sentence for married couples to use contraception, with another law with it saying whoever helped couples get contraception was also in violation

Douglas opinion-Right- Right of marital privacySource- precedents, amendments, prenumbrasState Interest- Keep people from sleeping around- Douglas says even if you say this is a legitimate state reason for law, it is not immense enough to justify taking away rightIs this like Lochner? NO! Douglas does not want to reintroduce substantive DP- this law operates on intimate relationship between husband and wife, unlike Lochner that the Court say as “super-legislature to determine the wisdom need, and propriety of laws that touch economic problems, business affairs, or social conditions”Level of scrutiny? High

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Goldberg opinion-Right- Right of marital privacySource- 9th Amendment, precedent, which both point that there is additional fundamental rights, protected from gov’t infringement- to ignore a right as fundamental as right of marital privacy is to give 9th Amendment no effect whatsoeverState Interest- Keep people from sleeping aroundLochner? NOLevel of scrutiny? Strict

Harlan opinion:Right- Right of marital privacySource- Relies on DP clause of 14th by itself- substantive DP!

How he goes about saying what is substantive DP and what is not- it is a continuum- balance of what history teaches as traditions which it developed and traditions which it broke. Tradition is a living thing.- Tradition is not limited by bill of rights- use reasonable and sensible judgment combined

with statutes, law, common law- If you look at existing traditions such as these, martial privacy is never regulated

Is this like Lochner? No, b/c on a continuum (in Lochner, economic interest was what was regulated, not here)Level of scrutiny? High Scrutiny

Justice WhiteRight- Right to be free of marital intimaciesSource- DP and precedentLochner? No, Scrutiny? Strict

Black opinion (dissenting, formalism):Right- NoneSource- Don’t have to worry about itState interest- Does not matter, if no right, does not matter what state interest isSays 9th amendment is used to limit Federal powers, not strike down state lawsLochner- Yes, this case is like LocherScrutiny- None, b/c there is no right

For Black, terrible thing about substantive DP gave Court too much power; if it was wrong in Lochner, it is certainly wrong in this case. You must protect what is WRITTEN in Constitution (Black will let any free speech be okay)

Stewart opinion (also dissenting):Right- NoSource- XInterest- XLochner- YesScrutiny- XHe says no reason to go down substantive DP road, even though he himself would not have voted for this “silly law.” His answer- vote the silly people out of office.

Roe v. Wade

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