constitutional law i prof. karl manheim may 28, 2015 slides: copyright © 2015 – karl manheim

Constitutional Law I

Prof. Karl ManheimMay 28, 2015

slides: www.lls.edu/jls/materials

copyright © 2015 – Karl Manheim

The Federal Constitution

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1. Articles of Confederation (1781-1789) Each state with 1 vote (and veto)

2. Federal Constitution (1789- “It is obviously impractical in the federal

government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all….” Geo Washington

3. Const’n of the Confederate States (1861-1865)

1. Modeled after Federal Constitution2. Major difference in states' rights

4. 50 State Constitutions

Our Constitutions

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Creates a “union” (federal gov’t)Vests power in three branches Specifies their modes of operation

State/fed’l relations (supremacy)Limits federal power (indiv. rights) Original Constitution Bill of Rights

Limits state power Original Constitution Citizenship, Eq.Pro, Due Process

Preamble

Arts. 1-3

Arts. 4, 6

Art. 1, § 9

Amds 1-10

Art. 1, § 10

14th Amd

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Creates a “union” (federal gov’t)Vests power in three branches Article I – the Congress Article II – the Executive Article III – the Judiciary

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Nominally, each branch can

exercise only those powers

specified in the constitution

every President also claims “inherent”

powerLimits state powersProtects individual rights

Gives rise to notion of Separation of

Powers



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Limits state powers

Federalism

Executive Power

Judicial Review

these structural issues have generated the most const’l law controversies since

the founding

Preemption

Preclusion

Major Themes in Con Law – Recap

Federalism (States’ Rights) Limits on federal power; immunity;

preemption

Executive Power (Separation of Powers) Conflicts with congress, courts Executive privileges; immunities

Judicial Review Power of courts to review (invalidate) laws Theories of interpretation (strict, fluid, etc.)

Individual Rights Limits on (state & federal) government power

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Case Studies (from 2012-2014 terms)

Federalism - Federal Power NFIB v. Sebelius (2012) – Affordable Care Act Shelby County v. Holder (2013) – Voting Rights

Act

Federalism – State Power Arizona v. United States (2012) – Preemption

Executive Power – Separation of Powers King v. Burwell (2015) – Agency powers Texas v. United States (2015) – Executive power

Judicial Power – Justiciability Clapper v. Amnesty Int’l (2013) - Standing

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Federalism / Federal PowerArticle I – the Congress Section 8 – Congress shall have power

to ....1. Tax & spend for common defense, gen’l

welfare2. Regulate Interstate Commerce5,6 Currency and banking8. Intellectual property10-16Military & foreign affairs

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Every law passed by Congress must be sourced in an

enumerated power

18. Congress shall have power … To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States

18. Congress shall have power … To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States

18 clauses

in all

FederalismArticle I – the Congress Section 8 – Congress shall have power

to .... Tax & Spend for common defense & gen’l

welfare Regulate Interstate Commerce Currency and banking Intellectual property Military & foreign affairs Necessary & proper clause

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Tenth Amendment reserves state powers“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.”

“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.”

federalism lives in the tension

between §8 and 10th Amendment

Issues:1. Whether Congress has power under Article I to

mandate uninsured individuals buy health insurance. Interstate Commerce Clause Tax and Spend Clause

2. Whether the Medicaid expansion violates the 10th Am. by “coercing” states to implement a federal program

3. Whether the ACA must be invalidated in its entirety if any part is found unconstitutional because it is not “severable” from the remainder of the Act.

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Federalism in Affordable Care Act

Whether Congress has power under Art. I to mandate people buy health insuranceArt. I, § 8 - The Congress shall have power: 1. To lay and collect taxes, duties, imposts and

excises, to pay the debts and provide for the common defence and general welfare of the United States;

2. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

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The Interstate Commerce Clause

Congress’ most prolific source of power Everything from highways to employment

to crops to drugs to civil rights

Is the lack of insurance (being self-insured) A species of interstate commerce, or Related to interstate commerce?

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The ACA and Federalism

Art. I, § 8, cl. 3 - Congress has power to: regulate interstate commerce

Also has power to: lay and collect taxes to provide for the general welfare

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includes licensing, prohibiting. Does it include “mandating”?at one time, read very restrictively; now nearly all commerce is interstateinsurance is clearly “commerce” but can congress create commerce in order to regulate it?

is the $695 a “tax” or a “penalty”?Congress can only tax & spend for gen’l welfare, not “regulate” it

The ACA and Federalism

Art. I, § 8, cl. 3 - Congress has power to: regulate interstate commerce

Also has power to: lay and collect taxes to provide for the general welfare

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includes licensing, prohibiting. Does it include “mandating”?at one time, read very restrictively; now nearly all commerce is interstateinsurance is clearly “commerce” but can congress create commerce in order to regulate it?

is the $695 a “tax” or a “penalty”?Congress can only tax & spend for gen’l welfare, not “regulate” it

These seemingly technical questions go to the heart of government – should it be small & decentralized; or large enough to handle issues of our post-industrial society

Nat’l Fed’n of Ind. Bus. v. Sebelius (2012)

The Commerce Clause Power to [regulate] [interstate]

[commerce]

Holdings:although insurance is interstate commerce, lack of it (or self-insurance) is not commercelack of insurance is not related to commercepower to regulate commerce does not include power to create commerce

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Comparing Medical Expenditures

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50 Million Uninsured in US

1. Lack of insurance is not commerce

Nature of insurance 3rd party insurance transfers risk of loss self-insurance retains risk of loss assumption of risk is an economic act

but not an economic activity Does congress lack power to regulate

insurance deductibles?

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Commerce Clause formalism (act vs activity)reminiscent of late 18th / early 19th C. cases

2. Lack of insurance is not related to IC

Art. I, § 8, cl. 18 - Necessary & Proper Clause

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ACA reforms cannot work w/o mandate w/o mandate, premiums for insureds $1,000

each Uninsured cost treasury & economy hundreds

$Billion

Case law on N&P Clause Gonzales v. Raich (2005)

Roberts: Mandate not “proper” because it “undermines the structure of government established by constitution”

“Congress shall have power … To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the

government of the United States”

“Congress shall have power … To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the

government of the United States”

3. Power to regulate is not power to create

What does “regulate” mean? Does it include the power to license? Does it include the power to prohibit? Does it include the power to create?

Roberts: can only “regulate” a thing already in

existence Congress cannot originate (bring into

existence) the object of its power

Compare Congress’ enumerated powers

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Art. I, § 8 - The Congress shall have

power: 1. To lay and collect taxes … 2. To borrow money …3. To regulate foreign, interstate and Indian commerce4. To establish rules of naturalization and bankruptcies5. To coin money6. To punish counterfeiting7. To establish post offices and post roads8. To [grant copyrights and patents]9. To constitute inferior courts10. To define and punish piracies11. To declare war12. To raise and support armies13. To provide and maintain a navy14. To govern the land and naval forces15. To call forth the militia16. To organize and train the militia17. To legislate in the seat of government18. To make all laws necessary and proper

➔ power to originate➔ power to originate➔ no power to

originate➔ power to originate➔ power to originate➔ power to originate➔ power to originate➔ power to originate➔ power to originate➔ power to originate➔ power to originate➔ power to originate➔ power to originate➔ power to originate➔ power to originate➔ power to originate➔ power to originate➔ augmenting power

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Insurance Mandate as a Tax

Relation to § 8 substantive powers A penalty is a form of regulation (enforcement) A tax need not be related to substantive power

Is the noncompliance penalty a “tax” Roberts: The “penalty” merely induces behavior; it

does not compel behavior; thus it is akin to a tax Resurrects Hamilton/Madison debate on tax power

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Congress shall have power: To lay and collect taxes, duties, imposts and excises, to pay the debts and

provide for the common defence and general welfare of the United States



ACA Medicaid Expansion

Medicaid is Congress’ largest grant to States ACA expands coverage

Additional $450 Billion by US over 10 years Additional $20 Billion by States

Non-complying States lose all Medicaid funding “Conditional” federal funding is ok, but “Coercive” federal funding is not

Congress cannot “commandeer” the States24





Shelby County v. Holder (2013)

Civil War Amendments: 13th (1865) – slavery 14th (1868) – citizenship, individual rights 15th (1870) – voting

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§ 1 – “The right of citizens of the United States to vote shall not be denied or abridged by the United States or

by any State on account of race, color, or previous condition of servitude.”

§ 1 – “The right of citizens of the United States to vote shall not be denied or abridged by the United States or

by any State on account of race, color, or previous condition of servitude.”

§ 2 – “The Congress shall have power to enforce this article by appropriate legislation.”

§ 2 – “The Congress shall have power to enforce this article by appropriate legislation.”

note the similarity to the necessary & proper

clause

Shelby County v. Holder (2013)

Voting Rights Act of 1965 (VRA) Fruits of the civil rights movement § 2 prohibits any voting qualification or procedure

that results in a denial or abridgement of the right to vote on account of race, color, or language status

§ 5 prohibits “covered jurisdictions” from changing voting procedures without “pre-clearance” from AG covered jurisdictions are defined in § 4 as those states

with a history of disenfranchising minority voters Change allowed only if it "neither has the purpose

nor will have the effect of denying or abridging the right to vote on account of race or color."

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Shelby County v. HolderCJ Roberts’ Opinion VRA violates state sovereignty to extent it

does more than simply “enforce” the 15th Amend.

past discrimination is not sufficient basis for pre-clearance especially since the VRA has been so successful

also violates “equal sovereignty” principle

§ 4 formula can no longer be used § 5 not invalidated, but inoperative § 2 still being enforced by DoJ

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The Great Federalism War

Federalism Limits on States

Dormant Commerce ClausePrivileges & Immunities ClausePreemption

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Dormant Commerce Clause1 States Can’t Regulate Interstate Commerce

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Business EntryExtraterritorial Effect

Privileges & Immunities ClausePreemption

the DCC is an example of const’l preclusion – state law that is prohibited by the const’n (explicitly or implicitly) because congress has exclusive power

in the matter

Sam Francis Fnd’n v. Christies (9th Cir. 5/5/15)(invalidating part California Resale Royalty Act)


Dormant Commerce Clause1 States Can’t Regulate Interstate

Commerce2 States Can’t Discriminate Against IC

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Higher taxes for out-state business;Regulatory preference for in-staters



Dormant Commerce Clause1 States Can’t Regulate Interstate Commerce2 States Can’t Discriminate Against IC3 States Can’t Burden IC

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Burdensome business regulationsBalancing – on its way out


More “constitutional law” cases in

fed. ct. involve DCC than 1st Am

Amazon claimed that

collecting sales tax in

Calif would be burdensome


Dormant Commerce ClausePrivileges & Immunities Clause States can’t discriminate against non-

residents In enjoyment of “fundamental rights”

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Preemption

Practicing trade, professionsBut not voting, subsidies


Dormant Commerce ClausePrivileges & Immunities ClausePreemption Express preemption (in text of federal

law) Implied preemption (infer from text,

history) Reading tea leaves of congressional intent

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State labor, environmental, banking,health, insurance regs, tort liability

Arizona v. United States (2012)

SB 1070 - Operative terms:§ 11-1051B - state officials must make “reasonable

attempt” to ascertain immigration status whenever reasonable suspicion exists that a person is an [unlawful] alien

§ 11-1051E – arrest without a warrant if probable cause to believe that the person is removable from the US

§ 13-1509A - in addition to any violation of federal law, a person is guilty of trespassing if the person is (in Arizona) in violation of 8 U.S.C. §§ 1304(e) or 1306(a). § 1304(e) – failure to carry authorization

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State & local law enforcement personnel not typically trained in immigration

matters

Arizona Immigration Law – SB 1070

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or what if you’ve filed any of these forms?


Purpose of SB 1070: “to discourage and deter the unlawful entry and

presence of aliens and economic activity by persons unlawfully present in the United States” Does Arizona have power to deter unlawful entry?

Preclusion: States lack power to regulate immigration

Where power does not exist, it does not spring into being by need or failure of the US gov’t to act.

Thus, even where state law is consistent, or where congress is silent, states would be powerless to act

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Preemption: SB 1070 is impliedly preempted by federal

law frustrates congress intent in alien regulation federal immigration law “occupies the field”

Especially true where dominant federal interest National security Foreign affairs Immigration

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Matters of national

sovereignty

"In respect of our foreign relations generally, state lines disappear. As to such purposes the State of New York does not exist." US v. Belmont (1937)

Executive Power

Express (textual) Powers Domestic affairs

Issue pardons & reprieves Fill temporary vacancies Take care that laws are “faithfully executed” Appoint judges & officers Recommend / approve (or veto) legislation

Military & Foreign Affairs Commander-in-Chief of the armed forces Make treaties Appoint & receive ambassadors

Unilateral

Shared

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Executive Power

Express (textual) Powers Domestic affairs

Issue pardons & reprieves Fill temporary vacancies Take care that laws are “faithfully executed” Appoint judges & officers Recommend legislation

Military & Foreign Affairs Commander-in-Chief of the armed forces Make treaties Appoint & receive ambassadors

Unilateral

Shared

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King v. Burwell (2015, pending)

Affordable Care Act §1311(b)(1) ”Each State shall, not later than

1/1/14, establish an American Health Benefit Exchange.”

§1311(c) If a state fails to set up an Exchange itself, then the Secretary of HHS shall "establish and operate such Exchange within the State.”

§1411 Premium Assistance Tax Credit, based on monthly premiums for health plans offered in the

individual market within a State ... and which were enrolled in through an Exchange established by the State under §1311

26 C.F.R. § 1.36B-1: Premium tax credits available to “State Exchanges, regional Exchanges, subsidiary

Exchanges, and a Federally-facilitated Exchange.”

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valid inter-

pretation by IRS?

King v. Burwell (2015, pending)

Lawsuit Pl’s claim absent tax credit they’d be exempt is IRS rule ultra vires (contrary to statute)?

Chevron Rule (Chevron v. NRDC) Where legislative text or intent is clear, courts

will interpret de novo Where text is silent or ambiguous, courts defer

to agency interpretation unless unreasonable text is ordinarily read in context, not isolation 4th Circuit found IRS interpretation was plausible based on Congress’ intent to maximize coverage

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drafters claim the language

was simply inadverten

t

Texas v. U.S. (May 26, 2015)

Challenge to Obama’s DAPA program Deferred Action for Parents of Americans (2014)

eligible for federal public benefits (incl. Medicare) and work authorization

possibly state benefits (e.g., drivers’ licenses) “prosecutorial discretion” similar to DACA (2012)

26 States suit Violates Administrative Procedure Act (APA)

Notice and Comment req’d for substantive law Review because non-enforcement imposes costs on

TX Take Care Clause (faithfully execute the laws)

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Administrative AgenciesRise of the Administrative State Due to breadth of federal regulation Develop institutional expertiseWhat do they do? Legislate, Execute (administer), Adjudicate

Constitutional Framework Agencies are nominally in executive branch

But Congress can create “independent agencies” Exercising powers delegated by congress

“Intelligible principle” principle Chevron test for validity of agency actions

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Federal Government

Legislature ExecutiveExecutive Judiciary

Administrative Agencies

Administrative Agencies

creates and

delegates power

controls

reviews

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Art. II

Examples of Admin Agencies

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Functions of Admin Agencies

Executive functions administer/enforce federal law

Quasi-Judicial Functions adjudicate disputes involv-

ing agency functions

Quasi-Legislative Functions promulgate rules,

regulations, & (micro) policy congress can override by

statute

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Administrative (Agency) Courts

Article I Courts Usually resident within an agency

Ex: USPTO, FCC, FDA, FTC, HHS, SEC Some are free-standing

Ex: Bankruptcy court; Ct. of Federal Claims Administrative Law Judges look like real

judges Hired, not appointed

Ultimate review by Article III courts Guantanamo tribunals

Similar role in state systems49

Administrative (Agency) Courts

Agencies adjudicate “public rights” disputes Controversies involving government Not “inherently judicial” matters

Guantanamo Trials Combatant Status Review Tribunals Outside of (Article III) federal courts SCt rejects effort to insulate from judicial

review Boumediene v. Bush (2008)

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Phenomenon of Agency Capture

Failure of government oversight Cozy relationship with industry

Agencies become “regulated” by the industries they oversee, rather than regulate them

Structural features allowing for capture No direct accountability (except through

Pres.) Little public oversight

Complexity of functions/industry Lack of press investigation

Reduced “standing” to challenge actions

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counter-example: Net neutrality rule

adopted by FCC

The Judicial Power


Federal judicial power is limited in furtherance of federalism

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Each branch can exercise only those

powers specified in

the constitution

in our dual judicial system, limits on federal courts protect the jurisdiction (hence power) of

state courts

Federal Courts

Supreme Court only court created by Article III original jurisdiction

cases involving states and foreign states/diplomats

cases between states => mandatory jdx usually heard by Special Master

appellate jurisdiction all other cases within the S.Ct’s judicial power jdx is discretionary (currently ~ 80 cases /

~3,000) certiorari usually granted when conflict among lower cts

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Federal Courts

Inferior Federal Courts created by Congress (pursuant to Art. III)

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Federal Courts

Limits on jurisdiction (apply to all fed cts) Standing / Justiciability Statutory limits

Non-Article III courts created by Congress under Art. I

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State CourtsDerive “jurisdiction” from state constitutions “General” jurisdiction (not “limited” like fed cts)

Federal issues in state court States must hear federal claims & defenses

unless congress vests exclusive jurisdiction in fed. ct USSC can review fed issues in state decisions Lower federal courts can’t review state cases

Exception: habeas corpus

State judges are elected, may be less faithful to the

constitution

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State issues in federal court

Choice of forum can be

critical

State Constitutional Law

Parallel to federal constitution Structure Rights

Bill of Rights did not apply to states before 14th Amd

Some states have expanded rights

Example Equal Education Funding Federal Law

No right. San Antonio v. Rodriquez (1973) State Law

In many state const’ns (Edgewood v. Kirby, 1989)

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StandingJusticiability – “cases or controversies” Standing – is this the right plaintiff?

Discrete & Palpable Injury (no generalized grievances) Caused by Defendant (Traceability), Redressable by the court Asserting Personal Rights (no 3rd party standing)

Ripeness – is it too soon? Mootness – is it too late? Political Question –

Some constitutional provisions were intended to be enforced solely by the political branches (not courts)

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Clapper v. Amnesty Int’l (2013)

FISC Foreign Intelligence Surveillance Act of 1978

created Foreign Intelligence Surveillance Court 11 judges appointed by the Chief Justice meet in secret; issue secret opinions

FISA Intercepts Issued by FISC If purpose is foreign intelligence gathering

Do not have to meet 4th Amd. standards Pre-PATRIOT Act - intercepts can be used only for

intelligence purposes–NOT in criminal cases Post-PATRIOT – information sharing for crim purposes

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§ 215 bulk metadata collection

Background NY Times discloses massive illegal surveillance Congress passes FISA Amendments Act (FAA) to

retroactively authorize warrantless intercepts Attorneys representing foreign nationals and

journalists communicating with foreign sources challenged FAA as violating 1st Amendment

Holding (5-4, by Alito) Plaintiffs lack standing – no particularized injury

cannot show their communications were likely to be surveilled by U.S. intel agencies

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Clapper v. Amnesty Int’l (2013)

Major Themes in Const’l Law

Judicial Review

Federalism

Executive Power

Individual Rights

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Saturday

constitutional law i prof. karl manheim may 28, 2015 slides: copyright © 2015 – karl manheim

Documents

state federal government

enumerated power

powers slide

union federal govt vests

congress article

executive article

federalism article

branches article