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Constitutional Law Outline Spring 2019

Constitutional law - Core principle: separate and diffuse power: Checks and balances- Federalism- Individual rights = natural rights

Introduction: The Nation’s History - Declaration of Independence 1776, Unalienable rights - Articles of confederation, ratified in 1981 (not much power to congress//states were the all-

powerful) - Constitution, ratified 1789,

o Replaced articles of confederation o Federalist papers, persuasive authority

- Bill of Rights, ratified 1791 o List of prohibitions on the government

Constitution: - Art I- Legislative branch - Art II -- Executive - Art III - judicial - Art IV -- States provisions

o Full faith and credit o Privileges and immunities

- Art V -- amendments to the constitution- Art VI -- supremacy clause and oath requirement - Art VII -- ratification

Bill of Rights 1791 (limits federal government) 1. Freedom of expression, press, assembly and religion clauses 2. Keep and Bear Arms 3. Quartering soldier’s clause 4. Search and seizure clause 5. Grand jury, double jeopardy, self-incrimination, due process, takings clauses 6. Criminal trial clauses 7. Civil jury trial clauses 8. Bail/punishment clauses 9. Unenumerated rights clause -- other rights still exist that aren't mentioned10. Powers not delegated to the federal government are reserved to the states or the people

Government Structure The reconstruction (post-civil war) amendments

o Change federal-state balance

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13th amend -- abolition of slavery Section 2: Congress shall have power to enforce this article by

appropriate legislation Gives congress the power to enforce this on the states

14th amend -- civil rights (citizenship; privileges or immunities; due process; equal protection)

Section 2: Congress shall have power to enforce this article by appropriate legislation

Gives congress the power to enforce this on the states 15th amend -- black suffrage

Section 2: Congress shall have power to enforce this article by appropriate legislation

Gives congress the power to enforce this on the states o These amendments changed the structure of federalism

Gave Congress more power Regulatory State:

o The process by which congress uses its powers to enact legislation o The tools regulatory agencies use to implement statutory mandates o The means by which congress, the president, judiciary, and the public control

regulatory agencies ______________________________________________________________________________

Federal Judicial Power: Art 3 o The power of the judiciary to decide the constitutionality of:

Laws (created by elected legislatures) Executive actions (taken by elected representatives)

- Issue: justices are not elected by the people - Unelected judges over turning what the elected representatives are doing - Protection of individual rights

o Worry of majority oppressing people o The answer: judicial review

- Marbury v. Madison 1803: The constitution is paramount lawo The judicial branch is the one with the power to state what the law is o entitled to a remedy for which he applies. This depends on: o The nature of the writ applied for, and o The power of this court

Judicial Review of Legislative Actions The courts are in charge of applying the law Constitution is paramount law

Judicial review of executive actions: depends on the nature of the act If the act is political: no review If the act involves duty assigned by law or affects individual

rights there is review o Provides the basis we use today for the court to review actions of the other

branches (judicial review) o It is the duty of the judiciary to interpret the law o Scant textual authority

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- Martin v. Hunter’s Lessee o Where scotus gets the power to review state court claims o Sc review is essential to ensure uniformity in the interpretation of federal law o From the Supremacy clause

- Michigan v. Long o Scotus will not review a state court opinion that is decided on adequate and

independent state grounds - Limits on the federal judicial power

o Interpretive limits Raise the question of how the constitution should be interpreted Some approaches seek to greatly narrow the judicial power while others

accord judges broad latitude in deciding the meaning of the constitution o Congressional limits

Refer to the ability of congress to restrict federal court jurisdiction Ex parte mcCardle Us v. Klein

o Justiciability limits Refer to a series of judicially created doctrines that limit the types of

matters that federal courts can decide (RAMPS) - Interpretive limits

o textualism: what is the plain meaning of the words on the page o originalism: look to the original intent and meaning of the words on the page,

coming from the framers, contemporary documents –intent of the framers o non-originalism: living document, shouldn’t rely on the views of the long dead,

white males, things change in the modern worldo structuralism: look to the structure over the plain meaning of the text (how its

laid out) - Although the United States Supreme Court’s appellate jurisdiction is derived from

Article III of the Constitution, it is conferred subject to whatever exceptions and regulations Congress chooses to make.

- Congress has a right to define what the appellate jurisdiction is of the SC o Didn’t question why they did it, just accepted that they have the right to do that

and they did- United States v. Klein

o limits on constitutional authority o Congress cannot provide a rule of decision (or evidentiary standard) on the

courts- Based on the principle of separation of powers in the United States Constitution, the

legislative branch may not impair or direct the exclusive powers of the judicial or executive branches.

- Prohibition of advisory opinions o Federal courts cannot issue advisory opinions, must be an actual dispute

between the litigants

Rise of the Regulatory StateUsing Auto-Safety as an Example

- Court is developing policy sense as a way to hold companies to be responsible

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for their items that they are selling, incentive for companies to take extra steps to ensure that their products are as safe as possible.

Justifications for regulations (early-mid 20th c). - Economic: to adjust for market failure

o Compensate for externalities o Inadequate information

- Social: as a society, we may aspire to certain norms of conduct for their own sake (eg. Prohibit discrimination, moral obligations, fairness)

- Holding people/manufactures to a duty to make things carefully

Limits on Federal judicial Power1. Interpretive limits

2. Congressional limits3. Justiciability limits

Justiciability limits (RAMPS)1. There can be no advisory opinions – For scotus: Court cannot give advice to

other branches 2. Standing 3. Ripeness: is the matter ripe for review 4. Mootness: there no longer a case/controversy, settled already 5. Political question: whether the court is appropriate entity to decide a

particular matter

- No advisory opinions: the case or controversy does not exist - Standing:

o Constitutional requirements The P must allege that he has suffered or imminently will suffer an

injury Has to be a personal injury

The P must allege that the injury is fairly traceable to the defendant's conduct (causation)

That injury can be linked to the D actions The P must allege that the favorable federal court decision is likely to

redress the injury (redressability) o Prudential standing principles (congress can override)

A party generally may assert only his own rights and cannot raise the claims of third parties not before the court

No third party standing A P may not sue as a tax payer who shares a grievance in common

with all tax payers No generalized taxpayer or citizen standing

Zone of interest The complaint needs to fall within the zone of interest

prescribed by the law

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Limited to administrative types of action o Third party standing

The likelihood that the third party can sue on its own behalf Could the parties bring a suit on their own? Is there a

substantial obstacle in the way? Will they bring the suit? Is the person bringing the suit close enough to the injured parties?

o Hesitancy on third party standings Third parties are the best proponents of their own rights Some people don’t want to assert their rights in court Holder may wish to assert them personally

o Prohibition of generalized grievances Prevents individuals from suing if their own injury is as a citizen or

taxpayer concerned with having the government follow the law For a taxpayer to show sufficient personal, direct injury to justify his or

her standing to challenge a government action, he must challenge an enactment under the Taxing and Spending Clause of the Constitution and must claim that the challenged enactment exceeds specific constitutional limits imposed on the taxing and spending power.

The act must be the cause of the injury Social implications: political forum is the best place to solve problems

like this, not the judiciary Exception where the taxpayer standing is permitted: to challenge

government expenditures as violating the Establishment Clause of 1st amendment, the provision that prohibits Congress from making any law respecting the establishment of religion

o Flast v. Cohen, scotus, 1968 – never been overruled (just narrowed) Has to be a tax from the legislative (direct tax) Unconstitutional use of funds for textbooks for religious schools A taxpayer asserts a sufficient personal interest in the litigation to

justify standing: (1) if the taxpayer alleges a violation of Congress’s Article I,

Section 8 taxing and spending powers; and (2) if that taxpayer brings suit based on an aspect of the

Constitution that is a specific limitation on Congress’s taxing and spending powers.

o Narrowing decisions on Flast v. Cohen Has to be expenditures Has to be an act of congress Tax credits are different than direct expenditures

o Constitutionality of Congress action/law: Where in the constitution is the power found/allocated to congress Has congress exceeded some other limitation/bar on its power

- Ripeness o Seeks to separate matters that are premature for review because the injury is

speculative and may never occur o P must show that the review is not premature – must show that a harm has

occurred or will imminently occur

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o Primary purpose of declaratory judgement act A person can challenge the legality of a statute or regulation, when he is

prosecuted for violating it Unfairness of requiring a person to violate a law to challenge it

o Ripeness: case or controversy does not yet exist Factors a court will consider

Fitness of the issues for judicial decision Hardship to the parties

o For a lawsuit to be ripe for adjudication, the injury threatened must be relatively immediate and certain to occur without court intervention

o Judicial review of a final agency action by an aggrieved person will not be cut off unless Congress clearly intended to prevent such review.

- Mootness o P must present a live controversy at all stages of federal court litigation o Exceptions of mootness

Wrongs capable of repetition but evading review i.e. suits involving pregnancy

Voluntary cessation: a case is not dismissed as moot if the D voluntary ceases the allegedly improper behavior but is free to return to it at any time

Class actions where the names P personal case if moot, but the rest of the class action is still live

o Have to ask if the case is capable of repetition for that specific reason/person - Political question

o Refers to a particular matter is more appropriate for the political branches – the branches that have been elected, mechanism for the court to avoid getting to the merits the matter is inappropriate for judicial branch to consider

It is for the political branches to decide Defends separation of powers

o Baker v. Carr, scotus, 1962 Gerrymandering, 1 person 1 vote needs to be constituent among the

districts For an issue to be a non-justiciable political question, one of six tests

(listed in descending order of importance and certainty) must be satisfied:

(1) a textually demonstrable constitutional commitment of that issue to another political branch;

o Does the text give that power to another branch (2) a lack of judicially discoverable and manageable standards

for resolving the issue; o Is there a reason they shouldn’t decide the case?

(3) an impossibility of deciding the issue without making an initial policy determination of a kind not suitable for judicial discretion;

o i.e. foreign affairs and how the military is being used o Not the justices expertise to figure out military matters,

leave that to the political branches

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(4) the impossibility of a courts undertaking independent resolution without expressing a lack of respect for the other branches of government in undertaking independent resolution of the case;

(5) an unusual need for unquestioning adherence to a political decision already made; or

(6) the potential for embarrassment for differing pronouncements of the issue by different branches of government.

o Last three -- is it respectful? Test for political question (under Goldwater v. Carter)

1. Does the issue involve resolution of questions committed by the text of the constitution to a coordinated branch of government; OR

2. Would resolution of the question demand that a court move beyond areas of judicial expertise; OR

3. Do prudential considerations counsel against judicial intervention

The Federal Legislative Power - Limited authority

o Congress may act ONLY if there is express or implied authority in the constitution

Two questions to ask when considering if an act (law) of congress is constitutional (i.e. valid under the constitution)

1. Does congress have the power? What clause in the constitution gives that power?

2. Is there a constitutional LIMIT on that power? i.e. often one of the provisions in the Bill of rights/10th amend/14th amend

- Where congress is acting within scope of power, its laws are supreme (they “preempt” state laws) supremacy clause

- Necessary and proper power - McCulloch v. Maryland, scotus, 1819, congress chartered a bank

o Established the scope of congress’s power beyond express power in Art 1 § 8 o Congress is also given general powers under the Constitution’s Necessary and

Proper Clause, which states that Congress may create laws it deems necessary and proper to help carry out its enumerated powers expand, not limit, congress’s enumerated powers

o The states are not able to encumber the federal government - The necessary and proper clause to be interpreted broadly (reasonable?)

o Cannot allow for one state to burden the rest of the states

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o Congress has the power to use any means, not prohibited by the constitution, to carry out its authority

o How to interpret necessary Let the end game be legitimate and within the scope of the constitution

(plainly adapted and not prohibited)

Commerce Power - "the congress shall have power … to regulate commerce with foreign nations, and

among the several states, and with the Indian tribes" Art I, §8[3]- Congress has the power to regulate

o Channels of interstate commerce o Instrumentalities of interstate commerce o Activities that substantially affect interstate commerce o Must be economic activity

- Gibbons v. Ogden: congress has the sole power to regulate the commerce clause o If a state and Congress both pass conflicting laws regulating interstate

commerce, the federal law governs pursuant to Congress’s constitutional grant of power to regulate interstate commerce.

o States can only regulate inter-state commerce to the extent that they do not have bias against out of state people

- Commerce Clause o Active: deals with congress’s power to regulate interstate commerce o Dormant: deals with state power to regulate interstate commerce

- 1890s-1937: limited federal commerce power o Commerce was narrowly defined o Could not regulate if it was intruding into the zone of activities reserved for the

states (i.e. mining, manufacturing, production) - 1937-1990s: broad federal commerce power – using the commerce clause to get what

congress wants o Roosevelt New Deal Programs/Court packing program (the switch in time that

saved 9 – Justice Roberts changed position on key decisions) o Laws to improve the lives of American workers

- Reconstruction/post-civil war amendments o Changed the relationship between states and the federal government o 13, 14, 15 – gave congress more power to regulate, adds the ultimate right of

congress to regulate on these activities - Heart of Atlanta Motel, Inc. v. United States, 1964

o As long as there is a substantial affect, it doesn’t matter what congress's underlying purpose is to pass the law

Congress has the complete power to regulate interstate commerce Focus on the commerce aspect, not the race

o Standards of review: Reasonably adapted What the interest is here and how its affecting interstate commerce on

a nationwide basis Congress is subject to one caveat, that the means chosen by it must be

reasonably adapted to the end permitted by the constitution

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Can be a low burden o Used commerce clause because the 14th amendment regulates states, not

private businesses (at this time) o 10th Amendment between 1939-1990s – broad power

Hodel v. Virginia Surface mining Test for the 10th amendment

o For a federal law to violate the 10th amendment, it needed to

Regulate "the states as states" Must address matters that are indisputably

attributed to state sovereignty Must directly impair the state’s ability to

structure integral operations in areas of traditional government functions

Must not be such that the nature of the federal interest justifies state submission

o Garcia v. San Antonio Metropolitan Transit Authority, 1985 Congress has the constitutional authority to regulate the wages and

hours of state employees under the Commerce Clause. - 1990s -- ?? narrowing of commerce power and revival of the 10th amendment as a

constraint on congress - UNITED STATES V. LOPEZ, 1995 – CURRENT APPROACH

o Congress may not, pursuant to its Commerce Clause powers, pass a law that prohibits the possession of a gun near a school.

o Have to expressly state where the power lies o Dissent: should be referring to congress

Minority view today Commerce power current rule test: Lopez Test

Congress has the power to regulate only in: o Channels of interstate commerce

Anywhere where there is commerce (waterways, roads, etc) o Instrumentalities of interstate commerce

How commerce gets around on/through the channels between states o Activities that substantially affect interstate commerce

Must be economic activity

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- Rational basis = general rule unless some special circumstance exists, then heightened scrutiny (strict scrutiny if suspect classifications or certain rights)

- Necessary to have accountability from elected officials -- presume that the law passed by congress is constitutional

o Everything equal Laws passed by congress is presumed to be constitutional

Presumption of constitutionality Challenger has the burden to show that the law is not related to

the government interest o High burden of review

Not absolute deference to the legislature Court will act as a body of review to review the actions

o Presumptions can be rebutted if there is a necessary argument o Need to ask two questions

Legitimate government interest Very broad, low burden

How the law has passed, is there some relation to the interest Rational relation

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Difficult for a challenger to overcome If the government has acted arbitrary or unreasonable

o Rational basis is the standard of review - New York v. United States, 1992

o There are two ways Congress may urge a state to adopt a legislative program consistent with federal interests:

(1) as part of its spending powers, Congress may attach conditions on states’ receipt of federal funds, or

(2) where Congress has the authority to regulate private activity under the Commerce Clause, Congress may offer states the choice of regulating that same activity according to federal regulations or having state law preempted by federal regulations.

o Congress may not compel states to enact or administer a federal regulatory program.

o Congress cannot commandeer states - Anticommandeering principle

o Rule serves as one of the constitutions structural protections of liberty

In order for [a federal act] to preempt state law it must satisfy 2 requirements - It must represent the exercise of a power conferred to congress by the constitution - Since the constitution confers upon congress the power to regulate individuals, not

states the provision at issue must be best read as one that regulates private actors

- Notion of accountability - Congress needs to be clear if a piece of legislation is severable or not - Preemption cases: congress cannot regulate the states alone

Taxing and Spending Powers - "The congress shall have power to lay and collect taxes, to pay the debts and provide for

the common defense and general welfare of the US; but all taxes shall be uniform throughout the US" Art. I, Sec 8 [1]

- General welfare -- designed to give congress a broad power to tax and spend o Closest thing congress has to a police power

- Congress has the power to spend for the general welfare and may enact, under the Necessary and Proper Clause, any provision rationally related to carrying out its spending powers for the promotion of the general welfare

- Conditions on grants to state governments o The court has held that congress may place strings on such grants as long as the

conditions are expressly stated and as long as they have some relationship to the purpose of the spending program

o Congress has broad power to set conditions for the receipt of federal funds even as to areas that congress might otherwise not be able to regulate

- South Dakota v. Dole, 1987 o Money from federal government to states as long as the legal drinking age is 21

“highway safety”

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The potential loss is not so great as to force states to comply with federal standards – 5%

o Under congress's spending power, congress may attach conditions on receipt of federal funds

o Where congress have the authority to regulate private activity under the commerce clause, power to offer states different choices

o Conditions on taxing and spending are acceptable WITHIN BOUNDS- National Federation of Independent Business v. Sebelius, 2012, Obama Care Act case

o The Court interprets legislation as constitutional if possible, and the individual mandate can be saved by interpreting the penalty provision as a valid exercise of Congress's power to tax.

o Cannot force states to join – Federal government cannot commandeer states – lack of accountability to voters

o Congress cannot force people into markets that they are not participating in Commerce clause does not extend to inactivity

Congress must meet certain requirements when it attaches conditions on funds to state/local governments (SD v. Dole)

o Spending must be in pursuit of the "general welfare" o The conditions must be unambiguous o The conditions must be related to a federal interest in a particular national

project/program

The Reconstruction (Post-Civil War) Amendments- 13th Am. - Abolition of Slavery

o sec. 2: “Congress shall have power to enforce this article by appropriate legislation.”- 14th Am. - Civil Rights (citizenship; privileges or immunities; due process; equal protection)

o sec. 5: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

- 15th Am. - Black Suffrageo Sec. 2: “The Congress shall have power to enforce this article by appropriate

legislation.”- What is the scope of Congress's power?

o 2 views under section 5 Narrow

Accords congress only authority ….. Under this view congress cannot expand their rights

Broad (more expansive) Congress can create new rights that were not found in the

constitution o Dispute over the appropriate role of the court

- Congress may make whatever laws are necessary and proper for enforcing the Thirteenth Amendment’s abolition of slavery and the negative effects of slavery

- Congress may pass legislation to enforce the Equal Protection Clause of the Fourteenth Amendment even when the legislation conflicts with state law

- City of Boernes v. Flores, 1997, must be congruent and proportionality between injury to be prevented and the means adopted

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o Limits on congress's power to enforce -- congress cannot exercise section 5 (of 14) power in an unlimited way --- limited in the sense that its actions must be congruent and proportional to the matters

o When freedom of religion is implicated, the test is strict scrutiny o Congress may enact only legislation that utilizes congruent and proportional

means for to achieving that legislative purpose.- Shelby County, Alabama v. Holder, 2013

o A federal law that departs from the fundamental principles of federalism must be justified by current needs.

Congress’s Power to authorize suits against state governments - 11 amendment -- judicial power of the US shall not be constructed to extend to any suit

against one of the US by citizens of another state, or by citizens of any foreign state o Ie. State sovereign immunity o Diversity jurisdiction v federal question o SCOTUS has read this where states have a very broad sovereign immunity

Any time there is a potential lawsuit against a state, have to ask if the state had sovereign immunity

- Chisholm v. Georgia o 11th amendment was adopted to overrule this

- Hans v. Louisiana, 1890, still good law o Held that the 11th amendment also bars suit against a state by its own citizens o Sovereign immunity extends to suits against its own citizens o Our structure of federalism, states should not have their treasuries open to suits

of citizens of any state, its own included, unless they agree to do so, or unless congress authorizes it

Three ways around the 11 amendment to hold state governments accountable in federal court

o State officers may be sued Sovereign immunity does not stop this, state official can be enjoined

from maintaining an unconstitutional practice As the person who is administering the practice, that person can be

enjoined from continuing it Damages would be from that individual, not the state treasury

o States may waive their 11-amendment immunity and may consent to be sued in federal court

Ie. Federal and state tort claim acts -- do it for public policy, so the individuals feel they get redress. -- the state government may sometimes care (Sometimes)

Requirement that the state is very clear when waiving immunity and giving consent

o SC has held that congress, acting pursuant to §5 of the 14 amend. May authorize suits against state governments

Has congress clearly expressed that this is what they wanted (to get rid of the immunity)

Has Congress acted pursuant to valid exercise of powers

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- Alden v. Maine held that congress cannot authorize suits against state governments in state courts

o Held that state governments have sovereign immunity and cannot be sued in state courts without their consent even for violations of federal law

- The basic rule: congress may authorize suits against states pursuant only to §5 of the 14th amendment

- Seminole Tribe of Florida v. Florida, 1996 o Indian Gaming Regulatory Act and state immunity --- court said that the act

could not waive the state immunity o In order to determine whether Congress has abrogated states’ sovereign

immunity, two questions must be asked: (1) whether Congress unequivocally expressed its intent to abrogate

such immunity and (2) whether Congress acted pursuant to a valid exercise of power.

o Established that there is one way and one way only to aggregate state sovereign immunity and that is through section 5

- Cases denying congress authority to act under section 5 to authorize suits against state governments

o Congruence and proportionality o Requirements for congress’s act to be successful to get rid of state immunity

Make the language clear they are taking away immunity Have the actual power to do so

o Equal protection doctrine 2 categories where a law will not get rational basis review, will have

heightened scrutiny, presumption shifts that the law in unconstitutional and it’s the governments burden to disprove that

If the law is in some way affecting a fundamental right o i.e. Bill of rights

Suspect classification o If the law classifies in a way that is "suspect" o Areas where looking at the history of laws and the

nation there has been problems with these groups o Can’t just be congress's determination, has to have

history of this -- the court determines Race National origin Alienage (with some exceptions) Non-marital children (BASTARDS) Gender

If one of those is implicated, then the law in congruence in proportionality

o Its not up to congress to say what the suspect classifications are o Only has the power to enforce not determine what the suspect classifications

are -- that’s the power of the judicial branch (power-grab by the court) - If within the 5 suspect classifications (determined by SC) then subject to a heightened

basis of review - Congress’s power to authorize suits against state governments in state courts

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o Alden v Maine: states have to give consent to be sued, anywhere Congress may not authorize suits against state governments in state

courts, even on federal claims, without the state governments’ consent.

Review section 5 power to aggregate state sovereign immunity- City of broene case, the means and ends must be congruent and proportional - Closely tied with how the court analyses its equal protection doctrine - Where there is a fundamental right or a suspect class (race, national origin, alienage,

gender, non-marital children) at issue then very possibly the court will find that congress is operating within its section 5 power -- the means are congruent and proportional to the end.

Limits on state regulatory and taxing power - Supremacy clause:

o This constitution and the laws and all treaties shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding

Federal law/constitution is supreme

- 2 scenarios for constitutional limits on state power: o Where congress has acted:

Preemption (Supremacy clause) [look for congress’s intent] Express preemption Implied preemption

o Field preemption o Conflict preemption o Federal objective

o Where congress has not acted Dormant commerce clause (DCC)

In the absence of congress action, judiciary determines that state/local government is placing an undue burden on interstate commerce

Privileges and immunities clause (Art. IV) Limiting the ability of states to discriminate from out of staters Notion of national economic unity The states sink or swim

together - Preemption

o Degree is on congress's intent o KEY in all preemption cases is congress's intent

If intentional, they have the authority to preempt state law They decide how much or how little

o Express preemption “hey states, you can’t do this” in the statute Clear language of statute

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Looks to legislative history Wherever congress has the authority to legislate, congress can make

federal law exclusive in a field Clearest way to do this is to expressly preclude state or local regulation

in an area o Implied preemption

Field preemption Where the scheme of federal regulation is so pervasive that

reasonable inference is that congress left no room for states to supplement it

Immigration – it’s definitely a federal thing, get out states Conflict preemption

Where compliance with both federal and state regulations is physically impossible

If a state law and a federal law are mutually exclusive, so that a person cannot comply with them both, the state law is deemed pre-empted

Goes to intent of congress If can comply with both, not pre-emptive

Federal objective Where state/local laws impeded the achievement of federal

objective - Court looks at the argument the states make and if it leads to a determination of

preemption

The Dormant Commerce Clause Sink or swim together To encourage the flow of commerce other states cannot put an undue

burden on interstate commerce - The principle that state and local laws are unconstitutional if they place undue burden

on interstate commerce - There is no constitutional provision that expressly declares that states may not burden

interstate commerce - Commerce clause:

o "congress shall have power … to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes

- Congress has that power, what does that mean for states?o States may regulate interstate commerce -- but to what extent

May not regulate in a way that discriminates against out of staters- In the absence of congress action, the judiciary determines that a state/local

government is placing an undue influence interstate commerce o Analytical framework: See handout

2 stages Discriminatory purpose? Cannot favor the in-staters at the

expense of the out-of-staterso If yes, struct down without question o If no, go to step two

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o If there is a question on this, benefit goes to the state Balancing

Court balances the benefits of the law to the burdens it places on interstate commerce and balancing whether one should prevail over the other

o Discriminatory on its FACE -- strict scrutiny-like test o Is the measure discriminatory in effect

Intermediate scrutiny o Is the measure evenhanded in effect

Rational basis-like test

Exceptions to the DCC:- Congressional approval - Market participant exception

- Cooley Doctrine – distinguishes between local and national doctrines o kinda faded away now (but not reversed) o All states can regulate police power for the benefit of their citizens, but cannot

regulate economics for the benefit of their citizens - Discriminatory purpose can be found

o On the face of the statute -- facially discriminatory First thing assume: purposefully discriminatory

o Is there a discriminatory effect? Look to legislative history Combination of purposes and reasons for the law

Approach, to legitimate and illegitimate purposes --give the benefit to the state

- Facially discriminatory laws: When it clear disfavors out-of-staters - The court has held that reciprocity requirements -- a state allows out-of-staters to have

access to markets or resources only when the out-of-staters are from states that grant similar benefits -- are facially discriminatory

o They do discriminate on states outside the compact - Facially neutral laws

o Can be found discriminatory if they either have the purpose of the effect of discriminating against out of staters

o Facially neutral laws can be found to be discriminate if they have the purpose or effect of discriminating against out of staters

- Difference between discriminatory on face and discriminatory on effect o Face: Strict scrutiny

Like beyond a reasonable doubt from crim Unavailability of adequate alternatives

o Effect: reviewed with a little more leniency, intermediate scrutiny Unavailability of adequate alternatives

- Several factors are helpful when determining whether a statute impermissibly discriminates against interstate commerce:

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o the regulations (a) create obstacles for interstate dealers, (b) impede the flow of interstate goods, (c) add costs to interstate goods, or (d) create distinctions between in-state and foreign sellers.

- Talks about how the market structure would be affected by this o Court says that’s not what the commerce clause was designed to affect, the

commerce clause is to protect the market itself The clause protects the interstate market, not interstate firms within

that market - Under the Commerce Clause, a state may enact legislation that creates hardships for

some interstate companies operating in the state, provided the statute does not discriminate against or unduly burden interstate commerce.

- Is there an non-discriminatory alternative?! - Its okay for states to engage in certain behaviors to bolster state businesses BUT IT

CANNOT GO AGAINST THE DORMANT COMMERCE CLAUSE- Even handed statute -- look to balancing test to see if clearly

o Challenger has the burden of proving burden o Does the law create clearly excessive burdens

- Legitimate purposes states may have: Health, safety and welfare - States may prohibit the importation of out-of-state goods moving within the flow of

commerce as long as the prohibition serves a legitimate local purpose, and there are no available less discriminatory means to accomplish that same purpose.

- Analysis if a law is deemed non-discriminatory o If the court concludes that a state's law is not discriminatory (it treats in-

staters and out-of-staters alike) then it is subject to a much less demanding test

o Non-discriminatory laws are upheld as long as the benefits to the government outweigh the burdens on interstate commerce

- Pike v. Bruch Church, Inc, 1970 – Cantaloupes packing case o Applies to everyone -- evenhanded -- not facial discriminatory o Test

Where a statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. (508)

Court does find that this is clearly excessive The expense to build a facility is massive and the benefits are minimal Scale the interest of the state and the burdens of interstate

commerce, if balanced the presumption is the state law stands When it’s even handed, even if there is a burden, it survives

o A state law that furthers a legitimate local public interest and only incidentally affects interstate commerce will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

Summary - State laws that discriminate against out of staters are almost always declared

unconstitutional - Such a law is only allowed if it can be proven that the law is necessary -- the least

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restrictive means -- to achieve a non-protectinist purpose - If a law does not discriminate against out of staters, the court balances its burdens on

interstate commerce against its benefits - The inquiry is fact dependent and the outcome obviously turns on how the court

appraises the burdens and the benefits

- Evenhanded: applies to everyone the same (out of state and in state) - South Dakota v. Wayfair, Inc., 2018 -- have to pay tax on amazon now case

o Physical presence rule for taxing -- court decided that there doesn’t need to be a physical presence to be taxed for business within a state -- hugely important case for a taxing/collection POV

o There must be a substantial nexus with the taxing state -- some definite link, some minimum connection, between a state and the person, property, or transaction it seeks to tax

TEST: Court will sustain attacks so long Substantial nexus Fairly apportioned Does not discriminate against Interstate commence Fairly related to the services the state provides

- Exceptions to the Dormant commerce clause o if congress approves the state law o Market participant exception (515)

A state may favor its own citizens in receiving benefits from government programs or in dealing with government-owned businesses

If the state is a participator then the DCC doesn’t not apply - Congressional approval

o The constitution empowers congress to regulate commerce among the states and that therefore state laws burdening commerce are permissible even when they otherwise would violate the dormant commerce clause if they have been approved by Congress (515)

o Congress may confer upon the states an ability to restrict the flow of interstate commerce that they would not otherwise enjoy

o Still can be challenged under other constitutional provisions o Congress may authorize state laws that would otherwise violate the dormant

Commerce Clause.o When congress passes a law in this way, it’s under the commerce clause in

general, look back at the constitutionality of the act of congress Is it within its power? Limits to that power?

- The market participant exception o Provides that a state may favor its own citizens own citizens in dealing with

government-owned and in receiving benefits from government programs o If the state is literally a participant in the market, such as state-owned business,

and not a regulatory, the dormant commerce clause does not apply

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o Nothing in the purposes animating the commerce clause prohibits a state, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others

o State as a participator, then the DCC does not applyo If a state is acting as a regulator, DCC applieso If market participant go through DCC analysis (GREEN SHEET) o underlying policy is whether there should be a market participant exception

The market participant exception can be critized The DCC is meant to stop protectionists actions by state

governments Protectionism should not be allowed regardless of whether

the state is acting in a proprietary or a regulatory capacity There is not a clear distinction between situations where the

government is acting as a regulatory and when it is market participant

On the other hand, the market participant exception can be defended as allowing citizens in a state to recoup the benefits of the taxes that they pay

The Privileges and Immunities Clause of Article IV, §2 The citizens of each state shall be entitled to all privileges and immunities of citizens in the

several states o Constitutional rights o Important economic activities (i.e. ability to earn a living)

o Limits the ability of a state to discriminate against out of staters with regard to fundamental rights or important economic activities o Only applies to laws that outright discriminate against out of staters

Aliens/corporations cannot being an action under this DCC and the P+IC

o In Both can be used to challenge state and local laws that discriminate against out of

staters o Differences:

P+IC can be only used if there is discrimination against out of staters Corporations and aliens can sue under DCC but not PIC (which is expressly

limited to citizens) There are two exceptions to the DCC that do not apply to the PIC

If congress approves state laws then they do not violate the DCC If congress has acted its commerce power no long dormant

Analysis under privileges and immunities clause Test

o Has the state discriminated against out-of-staters with regard to privileges and immunities that it accords its own citizens

o If there is such discrimination, is there sufficient justification for the discrimination

Analysis

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o does the law affect a constitutional right/important economic interest? If yes, go to next question If no, no violation

o Does the state have: "substantial" reason/objective for discrimination? AND

Is discrimination substantially related to the state's reason/objective? If yes to both, state/local law is upheld If no to either (or both), state/local law is struck down Consider the availability of less restrictive means for if the

discrimination is substantially related to the state's reason/objective

If yes to both, uphold the law What are the privileges and immunities of citizenship?

Court has primarily applied it in 2 contextso When a state is discriminating against out of staters with regard to constitutional

rights and economic activity

Course Packet: constitutional law and the regulatory states Legislation: Art 1, Sec 7

"every bill which shall have passed the house of representatives and the senate, shall, before it becomes a law, be presented to the president, if he approves he shall sign it, but if not he shall return it.. If after such reconsideration 2/3 of that house shall agree to pass the bull, it shall be sent to the other house, and if approved by 2/3 of that house shall become law"

The structure of a modern statute o Title o Enacting clause o Short title o Statement of purpose, preamble, findings o Definitions o Principal operative provisions o Subordinate operative provisions and exceptions o Implementation provisions o Specific repeals and related amendments o Preemption provision o Savings clause

Severability -- if one part of the law is unconstitutional, the rest of the statute remain

o Temporary provisions (if any) o Expiration date (if any) o Effective date (if different from enactment date)

Interpretive tools and theories o Interpretive tools

Text what does the text say, the plain meaning Ordinary meanings v. technical meaning

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Use of ordinary meaning majority of the time Factors the court might considered:

Degree to which terms have accumulated settled meaning under the common law

Tomato being a fruit or veggie Audience to which statute is addressed

Layman circumstances: ordinary meaning would prevail

Whether there is an industry understanding Think harpoon in the whale from property

Whether the terms appear in technical context Courts job: determine what congress’s intent was when

enacting the statute Textual canons of construction

Linguistic canons Ejusdem generis: of the same kind

When a statute sets out a series of specific items ending with a general term, that general term is confined to covering subjects comparable to the specific it follows

Noscitur a sociis: a thing is known by its companions

a term is interpreted consistently with surrounding words so as not to unduly expand statutes beyond their reasonable reach

Expression unius est exclusion alterius: the mention of one thing is the exclusion of the other

courts apply canon when they can infer from inclusion of one term that omission of another term was intentional

justified only where the terms themselves have a commonality

if you name certain things, you intend to eliminate/exclude the rest

Others Punctuation last antecedent rule

a limiting clause or phrase should ordinarily be read as modifying the noun of phrase that it immediately follows

objective v. disjunctive terms connected by a

disjunctive should be given

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separate meanings, unless the context dictates otherwise

may v shall Whole act canons

The whole act rule: views statutory terms as a part of the entire legislation in which they were enacted

Identical words = consistent meaning Avoid redundancy and surplusage

Titles and provisos Used to confirm or inform

interpretation Whole code canons

Whole code canons – look to other statutes to construe

In pari materia Separate statutes addressing the same

subject matter generally should be read as if they were one law

Under this canon a later act can be regarded as a legislative interpretation of an earlier act…. In the sense that it aids in ascertaining the meaning of words used in their contemporary setting

Inferences across statutes Even where statutes are insufficiently

related to be In pari materia, courts may draw inferences from separate statutes

i.e. when congress uses the same language in 2 statutes having similar purposes, particular when one is enacted shortly after the other, it is appropriate to presume that congress intended that text to have the same meaning in both statutes

Repeals by implications Repeals by implication are not favored

and will not be presumed unless the intention of the legislature to repeal is clear and manifest

Different from other canons because it can be overcome only by clear language to the contrary

*** Interpretation of one statute should not moot another statute

Doctrine of constitutional doubt

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Seeks to minimize disagreement between the branches by preserving congressional enactments that might otherwise founder on constitutional objections

Think back to avoidance principles and justiciability --> the court should avoid matters when the interpretation places the statute in constitutional doubt

Constitutional avoidance canon 2 variants

o As between 2 possible interpretations of a statute, by one it would be unconstitutional and by the other valid, the courts plain duty is to adopt the one which will save the act

o A statute must be construed, if fairly possible, so as to avoid not only the conclusion that is it unconstitutional but also grave doubt upon that score

Not practical in terms of the court consistently using

Words of the statute must be read within their context and within the view of the full statutory scheme

Substantive canons of construction The rule of lenity

Ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity

The constitutional avoidance canon 2 variants

As between 2 possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, the court’s plain duty is to adopt the one which will save the act

A statute must be construed, if fairly possible, so as to avoid only the conclusion that is unconstitutional, but also grave doubts upon that score

Canon is only available when statutory provision is ambiguous

The federalism clear statement rule If congress intends to alter the usually constitutional

balance between the states and the federal government, it must make its intention to do so unmistakably clear in the language of the statute

The presumption against preemption The historic police powers of the states are not to be

superseded… unless that was the clear and manifest purpose of congress

Intent and purpose-based tools Forms of legislative history

Committee reports

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Written by those responsible/most informed about the bill

Circulate with bill to whole chamber (congress)

Read widely by members and staff (for fairly plain language)

Neg: not subject to whole vote of congress/cant be amended/don’t reflect disagreement

Author/sponsor statements Prepared by a person knowledgeable

about the bill Neg: reflect only one voice/may be

laden with bias/sales talk Member statements

Certain members may be expert on topic

Neg. not much weight if on losing side Hearing records

Records of oral testimony, written reports, comments/questions from committee members

A court may use to understand info or discern awareness of committee

Other legislative statements Legislative history of other statutes,

past and future, might serve as interpretive guides (recall “whole code” canon)

Presidential and agency statements Authoritative: signing statements come

from actor with constitutional rile in enacting legislative

President/agency may have proposed/drafted original version of bill, so possess special understanding

Agency has responsibility for interpreting legislation in the course of implementing it

Etc. Floor debate // committee mark-up

debates // analysis by legislative or executive counsel // amendments (accepted or rejected – can help to know an updated view) // actions (re: separate bills on same topic) // recorded votes // status of person speaking on floor

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Judicial reliance on legislative history Black lung case: look at what the legislative

intended Formal consistency – if there is a

difference in language, there’s an intended different interpretation

Tools for considering changed circumstances Bob Jones univ. v. US: Under federal tax law, an

organization that violates public policy cannot qualify for charitable tax-exempt status

Theories of statutory interpretation Textualism – not going beyond the text

The ordinary meaning of words dictionaries and textual canons Directs courts to stop with the text of the

statute; not to engage in broader search for legislative intent

Intentionalism: suggests collective legislative intent is coherent

General intent of majority is ascertainable Purposivism: once legislative purpose is determined,

interpret the text to carry out that purpose as best it can

But in doing so, don’t give words a meaning they won’t bear

Read the text combined with the purpose of the whole code/act whole code/act canons

Imaginative Reconstruction The intent of the legislature with respect to an

issue it did not consider Judge will look at the usually things such as

language and apparent purpose, background and structure, legislative history and related statutes plus values and attitudes of the period in which legislation was enacted

Dynamic Interpretation The statute’s meaning in light of changed

circumstances Analyzes statute as if it has been enacted

yesterday and tries to make sense of it in todays world

Other indicia of legislative intent and statutory purpose Changed circumstances

Public purpose: must not be contrary to established public policy Everything must meet the public policy of the current time

o i.e. case of university (Bob Jones who no longer can accept donations as a charity as their policy was contrary to the public policy of the time)

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if the language of the statute would defeat the plain purpose of the statute courts should go beyond the literal language

Federal Executive Power

- Presidents power arises from o Express act of congress; and/or o Express constitutional provision; and/or

treaty power; power to pardon; appointment power vesting clause – the executive power shall be vested in a president take care clause – he shall take care that the laws be faithfully executed commander in chief clause – he shall be commander in chief of the

armed forces cannot act as a law-maker, the inherent powers do not give him powers

to do this o Inherent authority

The executive power shall be vested in a president of the US compared to all legislative power herein granted shall be vested in a congress

Relationship between congress and president is KEY (YOUNGSTOWN—Jackson concurrence outlines the authority of the president)

- Presidents power is at a MAXIMUM when he acts pursuant to congress’s authorization (express or implied)

o Presumption is in factor of authorizing presidential power o Power consists of:

All the president’s own independent constitutional power Plus all the power that congress can delegate

- Presidents power is at MEDIUM (relies only on presidents own independent power) when he acts in absence of Congress’s authorization (silence)

o Power consists of: The president’s own independent constitutional power only But there is a kind of twilight zone where he and congress may have

concurrent authority or where the distribution is uncertain - Presidents power is at LOWEST when he acts in a way against congress’s will

(express or implies) o Power consists of:

Presidents own constitutionally-granted power MINUS any power that congress has over the matter

When asking if a president can do something? - Where in the constitution/act of congress does this power come from?

o Is it express or implied? - What are the limits of this power?

Rational basis standard of review: the ends have to only be rationally connected to the

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menas - Plausible related or conceivable is enough

- Inherent power: o Executive privilege

The president does not possess an absolute generalized privilege to keep secret all communications with advisors and others

Eg. He may not withhold material relevant to a pending criminal prosecution (US v. Nixon)

o President has to approve or veto the ENTIRE bill cannot strike items from the law (if so, he would have too much power)

o it’s not up to who is in congress/president to determine how power is allocated it’s up to the constitution *insert N. Cage joke here* there is not provision in the constitution that authorizes the president

Separation of powers and foreign policy - constitution says very little about foreign policy decisions - Constitution

o Congress is constitutionally given the power over ratifying treaties and ambassador appointments, regulating international commerce, and declaring war.

o President is constitutionally given authority to command the army, enter treaties, and receive and appoint ambassadors.

- Precedent: court has very little to say about foreign policy – finds it to be political question

- United States v. Curtiss Wright Export (1936) – stopping sale of arms to countries involved in Chaco border dispute

o Distinction between internal affairs and external Internal -- framers separated the powers between congress and the

president External -- the presidents power is outside of constitutional limitation

This hasn’t been overturned/reversed, but the extent of the statement has never been observed by the sc since

o President alone has the power to speak/listen as a representative of the nation

President is the sole organ of the federal government in the field of international relations

President alone as the power on foreign relations o Congress can delegate powers to the president in terms of foreign affairs

- Treaty Power o President “shall have power, by and with advice and consent of the senate, to

make treaties, provided two third of the Senators present concur” As needs concurrence of legislative bodies, might get more deference

from other countries o BUT executive agreements also have force of treaty

Given the force of law/treaty Courts have never struck down an executive agreement

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o Article II of the Constitution grants the U.S. president the exclusive authority to formally recognize a foreign sovereign through executive power that Congress may not contradict via statute.

President has the power to recognize o The scotus, in US v. Pink (1942), held that international executive agreements

validly made have the same legal status as treaties and did not require Senate approval.

o Also, in Reid v. Covert (1957), while reaffirming the president’s ability to enter into executive agreements, the Court held that such agreements cannot contradict existing federal law or the Constitution.

o Congress has frequently amended the ICSA to address particular problems stemming from settlement agreements with other nations, evidencing Congress’s continued approval of the President’s claim settlement authority.

The President has authority to settle claims through executive orders where the settlement of claims is necessary for the resolution of a major policy dispute between the United States and another country and where Congress acquiesces to the President’s action.

- War on Terror

o Art I §9[2] “Suspension clause” The privilege of the writ of habeas corpus shall not be suspended,

unless when in cases of rebellion or invasion, the public safety may require it

o 3 factors relevant in determining reach of suspension clause (Boumediene v. Bush)

1. The citizenship and status of the detainee and the adequacy of the process through which the status determination was made

2. The nature of the sites where apprehension and the detention took place

3. The practical obstacles inherent in resolving the prisoner’s entitlement to the writ

o Terror cases - 2001 - Congress passes Authorization for Use of Military Force (AUMF) –

gives President power “to use all necessary and appropriate force…. [to respond to 9/11 attacks]”

o President power to use all necessary and appropriate force o Still in affect today o Huge grant of power o Every president since has used this authority for engaging in various

warfare about the world - 2004 - Rasul v. Bush – detainees being held at Guantanamo Bay, Cuba

have a right to have their habeas corpus petition heard in a federal court.- Detainees have no right to a habaes petition

o Writ of habaes corpus -- if the government is holding the person, the person has the right to get the government to show the cause of holding them

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o Key protections that exists in the constitution that carried over from England -- the government cannot hold someone without cause, they have the prove why holding

o Suspension clause: Qualification on the writ, exception of the right

If the public safety requires it, it can be suspended o Not clear who possesses the right to

suspend (does not say executive/congress) o Interpreted to mean that it’s the president

who has the power - Enemy combatants post 9/11 do not have this right ?

o Scotus, said they do have that right - Talking about foreign nationals or US citizens

o For Habeaus -- everyone has the right - 2004 - Padilla v. Rumsfeld – U.S. citizen apprehended in U.S. and being

held as enemy combatant in U.S. must file habeas corpus petition in proper court.

- -2004 - Hamdi v. Rumsfeld – U.S. citizen captured and detained in a foreign country (1) may be designated as an enemy combatant; but (2) must be afforded due process (including a meaningful hearing).- US citizen in the US being held as an enemy combatant being held in the

US, must file in the appropriate court - 2004/05 - DOD establishes Combatant Status Review Tribunals (CSRTs) to

determine if detainees are enemy combatants and to provide process (designed to comply with Hamdi)

- 2005 – Congress passes Detainee Treatment Act (DTA) – provides process for review of detainees’ status (designed to comply with Hamdi); limits habeas appeals (including challenges to CSRT process) to DC Circuit Court of Appeals. has to be brought in the certain court, after have though the military process

- -Hamdan v. Rumsfeld (2006) – Military tribunals created by the President are invalid, since by their terms they violate: (1) the Uniform Code of Military Justice, and (2) the Geneva Accords. Also holds DTA does not apply to pending cases.

o Military tribunals are not enough o Violate the UCSM and Geneva accords o Doesn’t apply to pending cases (future cases – not to the

detainees already incarcerated) - Boumedienne v. Bush (2008) – the provision of the Military Commission Act of

2006 creating military tribunals, which denies non-citizen enemy combatants detained in a foreign country access to federal court for habeas corpus petitions, violates the Art. I, Sec. 9[2] Suspension Clause.

- Challenging the practices after 9/11 In light of Eisentrager, three factors are relevant in determining the scope of the Suspension Clause with respect to detainees: three relevant factors in determining the reach of the suspension clause of Haebas Corpus

- (1) the citizenship and status of the detainee and the adequacy of the process that

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determines the status;- (2) the nature of the sites where apprehension and then detention took place; and - (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the

writ.

Have to determine whether one is considered an enemy combatant - If so, they get fewer rights - If there an adequate process for determining if someone is an enemy

combatant - Need to have a process to challenge that

o Process determined by the DTA and CSRT Court says when they put all that up against the requirements

for the writ, find the procedures to be inadequate

Checks On The President - Immunity

o Executive privilege: the president does not possess an absolute generalized privilege to keep secret all communications with advisors and others

o Absolute immunity: immunity only for OFFICIAL acts as president President has complete protection from civil suit (money damages) for

all official actions while in office – official capacity But not for unofficial acts or acts that take place before he takes

office Nixon v. Fitzgerald -- established absolute immunity -- complete

protection from civil suit while in office of president Clinton v. Jones -- rejected any immunity for acts that occur

before a president takes office

- Impeachment the ultimate check on presidential power o House of Rep has the sole power of impeachment o The senate has the sole power to try all impeachments

No person shall be convicted without the concurrence of 2/3 of the members present

Senate deliberations are an entirely closed session o Treason, bribery, high crimes, and misdemeanors – have to argue about what

the terms o Past impeachments:

President Johnson, 1867, avoided removal by 1 vote in the senate President Nixon, 1974, resigned President Clinton, 1998, perjury, senate did not convict

The Constitutional Problems of The Administrative State Federal administrative agencies with broad powers

o Exercise all the powers of the government Legislative power: authority to promulgate rules that have the force of law

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Executive power: responsible for bringing enforcement actions against those who violate the relevant federal laws and regulations

Judiciary: employee administrative law judges who hear cases brought by agency officials against those accused of violating the agency regulations

Nondelegation doctrine: o Principle that congress cannot delegate legislative power

The agencies are authorized to exercise all three functions of the government o Some of those functions all reside within one person – worry of potential tyranny

- Congress may not delegate legislative power to the executive without outlining strict standards for how the executive is to exercise that power

- Congress does not have the authority to regulate wholly intrastate activities that have only an indirect effect of interstate commerce

- Congress needs to be sufficiently narrow in assignment of responsibilities to not be called a delegation

- Checking administrative power o Statutes (congress)

Laws to remove/alter agencies o Budget (congress)

Congress can take away $ from an agency (oversight process) o Appointment power (President and congress)

Principal officers: president with advice and consent of senate Inferior officers: not so much Principle v. inferior

Whether they can be removed by a higher ranked officer Whether the officer has limited duties Whether the office has limited jurisdiction Whether the officer has limited tenure

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate by granting Commissions which shall expire at the End of their next Session.

Power extends to both inter and intrasession recesses o Intersession: break called during a session, between the

formal session of congress o Intrasession: break called in the middle of a session

Length of the recess o Court says that senate is in session when it says it is o Constitution provides the senate to create its own rules,

they can have a pro forma session, because they COULD have conducted business during that time counts as a break in the recess

Recess power exists, but needs to be longer than three days Presumptively 10 day period is too short too Constitution power to the president to fill existing vacancy in any

recess of sufficient length

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Pro forma sessions count as sessions, senate is in session when it says it is as long as it retains the capacity to perform business during that time

The president of the United States may invoke the Recess Appointments Clause to fill a vacancy that exists during any sufficiently long Senate recess.

- Removal Power o General rule: president may fire any executive official

But, congress may limit removal by statute if both: It is an office where independence from the president is

desirable; and The statute does not prohibit removal, but limits it to where

there is good cause o Constitution is silent on this o Under the doctrine of separation of powers, Congress may not retain removal

power over officials charged with executing the laws except by impeachment.o The president may fire any executive official o Congress can limit removal by statute if it is an office for which independence

form the president is desirable, the statute foes not prohibit removal but limits it to where there is good cause, and the statute does not keep the president from firing executive branch officials where there is good cause

o Congress cannot delegate to itself the power to remove // it is acceptable to appoint inferior officers, and can vest the authority to appoint to others, but itself cannot remove

o President can only remove commissioners for good cause commissions can only remove oversite board for good cause Court says that second step cannot be allowed Removed from the president to remove that person

o Lucia v. Securities and exchange commission (April 9) Significant authority test:

1. Does the official hold a continuing officer established by law?

2. Does the official wield significant authority?

Implementation of Statutory Mandates by Agencies - What is an agency:

o Usually created by federal legislation But occasionally created by president by executive order, then followed

by legislation by congress establishing the agency and delegating authority to it (ie. Homeland security)

o Powers: To act with force of law, by issuing regulations (legislative) and issuing

orders after adjudication similar to judicial hearing Power also to conduct research, provide produce info, produce

guidance documents, etc.

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o Huge volume of regulations and adjudications - Regulatory state

o Comprised of 15 cabinet departments and their sub-cabinet agencies, plus other agencies

o Federal government employs over 2.5 million workers o Given the size/scope of agencies in the system, there is continual quest for

control of their decisions by president, congress, regulated parties, public interest groups, courts

- Factors contributing to Agency legitimacy o Expertise or institutional competence

Broad access to info, specialized knowledge, trained staff o Fairness and rationality

Subject to administrative procedure act (APA) o Interest representation

Through open process of notice and comment rule-making o Political accountability

Indirectly accountable through president o Efficacy and flexibility

Espec. As compared to congress o Coordination with other agencies o Efficiency

Required to do cost-benefit analysis of expensive regs

Executive Branch Agencies

Run by officials who can be fired at-will by the president

Includes: “departments” headed by a “secretary”

o Subdivisions of departmentso i.e. national highway safety

administration within the department of transportation

o ie. Food and drug administration within the department of Health and Human services

Independent Agencies

heads serve fixed terms that expire in staggered years

removable by the president only for cause or good cause

usually run by multi-member commissions or boards

o bi-partisan requirements eg. Federal communications

Commission; federal reserve board; securities and exchange commission

Procedural requirements of Administrative Procedure Act – what procedures do agencies have to follow?

- APA Applies o Provides 2 default procedures

Formal: requires agency conduct trial-type hearing, resulting in order resolving dispute between 2 parties (formal adjudication) or rule-with future effect (formal rulemaking—more rare)

Informal: “notice and comment” rule making (agency relies on written submissions from interested parties)

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o Little procedure required for guidance materials and staff manuals - Publications

o Federal register (fed. Reg) Contains federal agency regulations; proposed rules and notices; and

executive orders, proclamations, and other presidential documents Published daily

o Code of Federal Regulations (CFR) Codification of general and permanent rules published in the federal

register Divided into ~50 titles Updated once each calendar year, print copy issues quarterly

- Process once the agency decides to proceed with the proposed rule o Public notice of proposed rulemaking (NPRM) in fed. Reg.

Must contain: Reference to legal authority under which rule is promulgated

o Statutory reference Either the terms or substance of the proposed rule or

description of the subjects involved Statement of time and place of any public proceedings

Provide reasonable time for interested parties to submit written comments (may be a couple of rounds)

May be a couple of rounds where the notice is published and asking for comments and may respond to comments made and publish another notice

This is the mouth for government action in these areas Issue final rule (or not)

Concise general statement of rules general basis and purpose – including rationale and legal authority

- Impetus to initiate the rule making process o Agencies own initiative

Its own statutory mandates // own initiative Regulatory action plans New scientific data Triggering events (i.e. increase in accidents or lawsuits based on

accidents) o Response to a “prompt letter” from office of info and regulatory affairs (OIRA)

calling for regulatory review on a certain matter o Recommendation by other agencies or governmental bodies o Petition for rulemaking from private parties or groups

Implementing statutory mandates:

Tools of statutory implementation (i.e. factors agencies consider and analyses they perform) - Statutory

o Agency must assure its regulations are: (a) within scope of statute; and (b) consistent with terms of statute

- Scientifico Analysis helps agencies evaluate risk of bad event occurring and develop

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appropriate responses o Question of who are the appropriate people to participate in this scientific

data and info… career scientists, what extent can politicians get involved… - Economic

o Cost-benefit analysis (requirement for all proposed major regs) - Political

o Public attitudes o Political preferences – large impact of current president’s preference

Look to the president’s policy consideration

Congressional control of agency action - New legislation

o Might abolish an agency or restrict its authority // can control agencies o Preclude a particular agency regulation or compel a different regulation o Mere threat of such legislation can assert some measure of control to the extent

then congress can conduct oversight hearings and other actions – can control other actions

- Appropriation legislation o May restrict funding for a particular agency or regulatory program

Power of the purse—can starve an agency, can refuse to fund/lessen the funding

o Funded on annual basis through separate appropriations legislation o The constitution provides for the courts and the use of funds

- Oversight hearings o Uncover facts in aid of further legislative activity

Power that the committees have in the senateo Accountability hearings for agency officials (public airing) o Subpoena power (contempt of congress for failure to comply)

Contempt of court in judicial realm, with subpoena power, if someone refuses to comply, congress can bring an action of contempt of congress and that person can be held and incarcerated

- Fire alarms o Other ways for congress to obtain info about agency action o Tools that position constituents (the people) to monitor agency activity and to

alert congress when legislative action is necessary Empowers the public to keep an eye on what is happening in

the agencies Administrative procedure – rule and comment rulemaking Statute provides for citizen-suit – authorizing any person to seek judicial

review provide an eased standing so a citizen can bring a suit Still need an injury, causation, and redressability But this still lowers the court threshold by providing for citizen

suit status Freedom of info act (FOIA) – directs agencies to provide records to any

person upon a requires that reasonably describes such records - Legislative vetos (Chadha – no longer relevant)

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o Statutory provisions that enables congress to reverse an agency action without enacting a new statute

- Congressional control of Agency officials o Has role in appointment of agency officials (president appoints officers with

advice and consent of senate) principal officer o Power to order appearance for oversight hearing

What does it mean to be an officer Principal officer

Has to be appointed with the advice and consent of senate Inferior officer

What does that mean for the removal of officers? What about the appointment power in times of recess?

Congress has the power to create pro-forma sessions within a longer recess -- just meeting on Tuesday and Friday in only a formal sense -- scotus said that was enough to thwart Presidents power to engage in recess appointments

Judicial control of agency statutory interpretation - Chevron: clean air act required polluters in certain areas to obtain a permit from a state

regulator before building any new or modified stationary sources of air pollution o Bubble policy of total polluters being a net zero o Scotus, in terms of process, if not explicitly stated, move to the agencies, the

court can only decide if the agency used a permissionable and reasonable definition

o Given the many competing interests at stake, the EPA’s use of the bubble concept was a reasonable policy choice for the agency to make

- CHEVRON TEST (provides the principle of deference to agencies) o Steps:

(a) clear statutory meaning? (is the intent of congress clear) If yes, court decision based on Congress’s intent

(b) if no, (i.e. the intent is ambiguous), agency decision is upheld so long as it is reasonable

o Reviewing courts should defer to agency interpretations of ambiguous statutory provisions so long as those interpretations are reasonable

o Court is trying to figure out what congress’s intent was when they made the law If the intent is clear, unambiguous, job of the court is to make sure that

congress’s intent is carried outo Decisions should be made by the agencies that have the experts o Highly deferential to agencies

- An agency’s interpretation of a statute is not entitled to deference when it goes beyond the meaning that the statute can bear.

Judicial control of agency statutory implementation

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- A statute can either authorize court to review agency action or preclude them from doing so

- Often statutes specify judicial review under terms of APA - Admin procedure act (APA) authorizes judicial review

o Specific standards for courts to use: Courts should set aside agency action that is arbitrary, capricious, and

abuse of discretion, or otherwise not in accordance with law- Motor Vehicle Manufactures association v. State Farm

o Agency action is “arbitrary and capricious” where it: Relied on factors which congress had not intended it to consider Entirely failed to consider an important aspect of the problem Offered an explanation that runs counter to the evidence before the

agency; or Is so implausible that is cannot be justified

- Have to offer a rational connection between the facts found and the decisions made

Admin law: anything that is not being reviewed by Chevon is being reviewed by Arbitrary and capricious

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