4LawSchool Outlines Bank

Author: VS

School: UC Davis

Professor: Professor Wolff

Textbook:  Constitutional Law, 14th Edition.  Sullivan & Gunther,

 

 

Con Law I- Professor Wolff

 

Articles of Confederations àstates retained full sovereignty.  Agreement of independent sovereign states.  Federal courts were virtually nonexistent

Under Constitutionà True national Government.  Much greater limits on the sovereignty of states.  Strong central executive.  Creates a strong federal court system.  Easier amendment process.  But still, federal government is a government of enumerated powers.

 

I. Judicial Review & the Role of the Courts in Constitutional Interpretation

 

v     Article III created the Federal Judicial System.  Supreme Ct. the superior ct. and Congress given the power to create inferior courts.  But federal courts have limited jurisdiction.  Some limits: standing, ripeness, mootness, and the political question doctrine.

v     Judicial Review

o       Marbury v. Madison

§         Facts- Marbury’s commission not delivered and Jefferson told his secretary of state James Madison not to deliver it.  Marbury brought suit in Supreme Court seeking a writ of mandamus to compel Madison to deliver the commission.

§         Holding- Marshall rule that Supreme Ct. doesn’t have original jurisdiction to hear this case.  Even though allowed in Judiciary Act of 1789, but that act unconstitutional because original power of the court restricted to those instances listed in the Constitution. 

§         Three main questions:

·        Does Marbury have the right to commission?

o       All proper procedures followed and the seal of U.S. placed on the commission.  So Π has right to commission.

·        If yes, do the laws of this country afford him a remedy?

o       Marshall said that even the President is not above the law.  There are some matters that are left to the political process.  But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, the individual has a right to look at the laws to afford him a remedy.

·        If yes, can the Supreme Court issue this remedy?

o       Ct. has no right to review questions that are strictly political in nature (e.g. President’s decision to veto a bill).  But where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide remedy including a mandamus.

·        Now Ct. turned to the jurisdiction question[1].  Ct. agreed that Judiciary Act of 1789 gave Supreme Court the original jurisdiction in such cases (by looking at the statute, it seems that ct. wrongly decided this issue).  But Marshall ruled that Under Art. III, Congress can’t add to the Court’s original jurisdiction (again questionable interpretation by Marshall).  Principle of expresso unius- the explicit mention of one (thing) is the exclusion of another

·        According to Marshall, Ct. doesn’t have to follow a law that is unconstitutionalà Horizontal Judicial Review Born J[2]

·        Justifications for Judicial Review

o       We are populous sovereignty and not legislative sovereignty

o       Constitution imposes limits on government and these limits useless if not judicial enforcement.

o       “It is emphatically the province and duty of the judicial department to say what the law is.”  Judicial review is inherent to the body of the judiciary (Structural Argument)

o       Judges takes oath to uphold the constitution.  But same oath taken by the President, senators, etc.

o       Art VI makes Constitution the supreme law of the land.

§         Judicial Review After Marbury

·        Cooper v. AaronàSupreme Ct. held that its decisions regarding the constitutionality of law were not only binding on the parties litigating the case, but were treated as supreme law of the land applicable to all branches of the gov. (Judicial Supremacy connected to Judicial Review)

·        Dickerson v. United StatesàSupreme Court decision announcing a constitutional rule may not be overruled by Congress through the enactment of a statute.

v     Limits on the Roles of Judges

o       In some cases, judges will decline to rule in certain cases.

o       Political Question Doctrine

§         Under this doctrine, where there can be found constitutional violation, the ct. just dismisses the case and leaves it up to the other branches to fix the problem

§         Political question nonjusticiable if any one of the following true (Baker v. Carr factors):

·        Textually demonstrable commitment to another branch

·        There is lack of judicially discoverable and manageable standards for resolving the question

·        The need to show unquestioning adherence to a political decision already made (e.g. judge trying to say that President’s decision was unconstitutional in sending troops to Iraq)

·        There exists the potential for embarrassment for multifarious pronouncements by various departments

·        It is impossible to decide the case without an initial policy determination of a kind more suitable for nonjudicial discretion

·        The court cannot resolve the issue without expressing a lack of respect due to coordinate branches of government

§         Some Broad Incidents when PQD USED

·        There is a clear contextual assigning to some other branch of power (e.g. Nixon v. U.S.)

·        Problem of invading the core functions of other branch of government

·        Problem of Judicial Competenceà Ct. is either not equipped to decide on some situation or situations in which it will be inappropriate for the ct. to resolve dispute (e.g. ct. is called upon to decide what the legitimate government of a foreign power is)

§         Court has applied Political Question Doctrine in following areas: the republican form of government clause and the electoral process, foreign affairs, Congress’s ability to regulate its internal processes, the process for ratifying constitutional amendments, instances where the federal court cannot shape effective equitable relief and impeachment process.

§         Baker v. Carr

·        Facts: Voters in Tennessee sought injunction to reform outdated legislative districting plan.  Claim that current plan violates Equal Protection Clause.

·        Holding: This issue is justicable.  Here individual liberties under Equal Protection Clause are at stake so the ct. can rule on this issue.

§         Nixon v. United States

·        Facts: Judge impeached and claimed that the Senate Rule XI violated Constitution because didn’t give him fair trial.

·        Holding: Issue political in nature so non-justiciable.  Art. I § 3 cl. 6- “The Senate shall have the sole Power to try all impeachments.”  Therefore, Senate alone shall have authority to determine whether individual should be acquitted or convicted.  Furthermore, impeachment is only check legislature has over federal judiciary and Ct. can’t get involved in it.

§         Should there be a political question doctrine?

·        Some argue yes because helps the court rule in some controversial issues and therefore limits the court’s role in a democratic society.  Also, leaves some decisions to other branches of government that are better equipped.  Also, federal courts’ self-interest disqualifies them from ruling from some issues (e.g. process of constitutional amendments- only way to overrule Supreme Court’s decisions).  Also justified on separation of powers doctrine. 

·        Critics argue that Court’s job to uphold the Constitution and not leave some issue to the political process.  Also, this doctrine  keeps the court from ruling in areas where judicial review is needed the most.

v     Some major checks Congress and Executive have on the court (Comes from the exceptions clause of Art. III)

o       Congress sets size of the court

o       Selection process of the justices- President nominates and Senate approves

§         Hard for Presidents to predict how their nominees will end up voting

o       Under Art III, congress can make “Exceptions” to the Supreme Court’s appellate jurisdiction.

§         Ex Parte McCardle

·        Congress with the Act of 1868 repealed the appellate jurisdiction of Supreme Court in habeas corpus cases which it had grated in the Act of 1867

·        The appellate jurisdiction of the ct. is conferred by the constitution with such exceptions and under such regulations as Congress shall make.

·        The appellate powers of the Supreme Court are not given by the judicial act, but are given by the Constitution.  Since Congress repealed the jurisdiction, Ct. can’t act.  Also, Ct. is not entitled to look into the motives of the Congress in making this decision.

§         In United States v. Klein, court ruled that the authority of the Congress to curb jurisdiction of Art. III Courts is not unlimited (both internal & external).

§         “The law prescribed how a court should decide an issue and hence interfered with judicial autonomy; and it denied effect to a presidential pardon, thus interfering with executive autonomy.”

§         Limits on Congress’ power to limit Court’s appellate jurisdiction

·        Internal Restraints (those found in Art. III)

o       “The exceptions must not be such as will destroy the essential role of the Supreme Court in the constitutional plan.” (e.g. law that says Supreme Court has no appellate jurisdiction whatsoever)

·        External Restraints (those derived from constitutional provision other than Art. III)

o       E.g. congress not allowed to pass laws that violate individual rights.

·        Practical Concern: If access to Supreme Court were barred, final decisions made by lower courts and that can be a threat to uniformity.

§         Question: Whether Congress can strip Court to hear some issues (e.g. desegregation)?  Professor thinks would place external limits.

 

II. Federal Legislative Powers

 

v     Three Major Issues

o       Scope of Legislative authority- What Congress can and can’t do.

o       The states’ sovereign authority- when states can resist the application of federal law.

o       Structural limits on state authorities (e.g. Dormant Commerce Clause)

v     Congress may act only pursuant to express or implied authority in the Constitution (enumerated powers doctrine)

v     2 questions to ask when testing authority of Congress

o       Does Congress have authority to legislate under the Constitution?

o       If yes, does the law violate another Constitutional provision?

v     McCulloch v. Maryland

o       Two Major Issues

§         Whether congress had power to make national bank?

§         Whether state can interfere with national instrumentality?

o       1st Issue:  Congress may make all laws which shall be necessary and proper for carrying into execution the enumerated powers, and all other powers vested by the Constitution.  “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.  Justice Marshall dramatically increased the power of Congress. According to this case, Necessary under Article I §8 doesn’t mean indispensable or essential but means useful or desirable.

o       So what limits are there on Congress under this decision?

§         “Should congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal[3] to say, that such and act was not the law of the land.”

o       2nd Issue: Broad protection for the federal government in not being interfered by state gov.  Inherent in the Supremacy clause and broad structure of the Constitution.

v     U.S. Term Limits v. Thornton

o       Arkansas adopted amendment to state constitution that placed term limits on the state’s representatives in U.S. Congress

o       Court held the amendment unconstitutional.  Stated didn’t have such power when Constitution ratified so no such power reserved for states under 10th Amendment.  Furthermore, Arkansas law is affecting the nation as a whole.  Constitution is the exclusive source of qualifications for members of Congress and in order to add extra qualifications, Constitution will have to be amended.

v     The Commerce Clause

o       Art. I § 8

§         The Congress shall have power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

o       In its most basic definition, commerce refers to buying, selling or trading goods across state lines.

o       Supreme Court decision on Commerce Clause can be divided into 4 phases

§         Gibbons v. Ogden – Civil War

§         Late 19th Century – 1937 (New Deal)

§         1937 – 1995

§         1995 – Present

o       1st Phase- Gibbons v. Ogden – Civil War

§         Gibbons v. Ogden

·        According to Justice Marshall, Commerce is more than mere buying and selling or interchange of commodities.  “Commerce is undoubtedly is traffic, but it is something more: it is intercourse.  It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”

·        Also, according to the court, “among states” doesn’t mean that Congress cannot regulate internal activities of states.  Therefore, Congress may regulate intrastate commerce if it has affects on interstate activities.  But there area areas that are strictly internal and Congress can’t enter those areas of commerce. So gave way to a case-by-case standard where ct. had to decide if direct or indirect effects on interstate commerce enough for Congress to regulate.

·        Ct. further ruled that 10th Amendment has no limits on Congress’s commerce power.

o       Phase 2: 1887-1937 (Court protecting dual federalism)

§         A conservative court actively used its judicial review power to invalidate Congress’s laws passed under Commerce Clause

§         Ct. followed dual federalism- fed. Gov. and state governments are separate sovereigns and duty of Court to protect states from excessive powers of Congress

§         3 Approaches followed by court in this era

·        Ct. defined commerce narrowly to include one stage of business. Other stages such as manufacturing controlled by states.

o       U.S. v. E.C. Knight

§         Congress using Sherman Antitrust Act to prohibit acquisition by American Sugar Refining Company of 4 competing refineries.

§         Ct. ruled that Congress cannot regulate in manufacturing state.  Since the company in the current case was involved in production of sugar and not in its commerce, Congress had no power to regulate under the commerce clause.  Ct. stated that it would be far-reaching to allow Congress to act whenever interstate or international commerce may be ultimately affected

·        Ct. defied ‘among the states’ to only those activities that had substantial and direct effects on interstate commerce

o       Schecter Poultry Corp. v. United States

§         Working conditions at chicken poultry farm being regulated by Congress.

§         Ct. said can’t regulate because Schecter Poultry selling at local level.  Therefore, there was not a sufficiently direct relationship to interstate commerce.  Ct. ruled that when intrastate commerce has direct effects on interstate commerce, Congress can regulate.  But when indirect, states’ have exclusive power.

o       Swift v. U.S.

§         Congress allowed to apply Sherman Act to an agreement among meat dealers

§         Ct. stated that although the stockyard was intrastate, but it was a temporary stop for the cattle.  The stockyards were in a current of commerce among the states.

·        Even if some activities come under commerce clause, 10th Amendment protects states form federal action

o       Hammer v. Dagenhart

§         Congress passed law that prohibited goods in interstate commerce that were produced in factories that allowed child labor

§         Even though goods banned in interstate commerce, Court struck this law down.  According to the court, “the grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce, and not to give it authority to control the States in their exercise of the police power over local trade and manufacture.”

o       Compare Hammer with Champion v. Ames (Lottery Case) where Court upheld a law that banned lottery tickets form interstate commerce.[4]

o       Phase 3- 1937-1995 (Judicial Restraint)

§         NLRB v. Jones & Laughlin Steel Corp.

·        Congress trying to regulate employee relations at this large company.

·        Court upheld the law! According to the court, the fact that the employees were involved in production was not a determinative factor.  Court described the Commerce Clause power in a broad sense.  A great shift from the previous cases.  Ct. rejected direct vs. indirect test.  Ct. rejected distinction between commerce and production.  Ct. rejects the court’s investigation as to when Congress has legitimate economic end as opposed to some local social goal.

§         United States v. Darby

·        Congress’s law prohibited items in interstate commerce that were produced by workers who were paid wages below the minimum level

·        Court overruled Hammer v. Dagenhart.  According to the court, “While manufacture is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of Commerce.”

§         Wickard v. Filburn

·        National quota set for wheat farmers.  Filburn owned small farm and grew wheat for personal consumption.  Fined because went beyond his quota.  Filburn argued that wheat he grew for personal consumption not part of interstate commerce.

·        Ct. upheld the law.  Abandoned the earlier direct vs. indirect and production vs. commerce tests.  Court came up with the aggregating effect principle.  “Even though Filburns own contribution to the demand for wheat may be trivial by itself, it is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.

§         From these cases, it can be seen that under Phase 3, court upheld laws that regulated activities that had substantial effect on interstate commerce.  Of course, cumulative effect principle of Filburn extended the Commerce Clause power further.

§         Congress used its broad commerce power in other areas such as Civil Rights.  Since 14 Amendment only applied to states, Congress used its commerce power to regulate private behavior.

§         Heart of Atlanta Motel v. U.S.

·        Ct. upheld law prohibiting discrimination in a Motel and a restaurant.  Ct. ruled that even though moral purpose involved in this statute, but as long as Congress can show that the practice effects interstate commerce, it can regulate under its commerce power.

o       Phase 4: 1995-Present (Narrowing the Nation’s Power)

§         United States v. Lopez

·        An act made it a federal crime to possess firearm in a school zone

·        Court struck this law down as unconstitutional.  According to the court, the Constitution created the national government of enumerated powers.  The Congress can act pursuant to its Commerce power under 3 situations

o       Congress can regulate the use of Channels of interstate commerce (e.g. motels- Heart of Atlanta)

o       Congress can regulate the instrumentalities of interstate commerce (e.g. railroads)

o       Congress can regulate those activities that have a substantial affect on interstate commerce

·        In the current case, the presence of guns near schools had no substantial affect on interstate commerce.

§         United States v. Morrison

·        Female student raped by football players and brought suit under Violence Against Women Act.

·        Court ruled that Congress tried to regulate in a traditionally local issue.  Violence against women not economic activity.  Even though the aggregate effect of such violence can have substantial effect on interstate commerce, but this cannot be the sole basis for regulation.  If congress is allowed to regulate in such areas, then there will be no distinction between truly national and truly local activities.

·        Therefore, Morrison goes one step further than Lopez.  Under Morrison, Congress cannot regulate non-economic activity based on a cumulative substantial effect on interstate commerce.

§         Bottom Line

·        In Lopez 3 Categories for Commerce Power

o       Channels of interstate commerce

o       Instrumentalities of interstate commerce

o       Those activities having a substantial effect on interstate commerce

·        Reasons why ct. limited Commerce Power

o       If the regulated behavior is non-economic in nature and therefore not appropriate for aggregation under Wickard.

o       Law touches upon tradition state concerns.  E.g. criminal statutes, schools and educations etc. have been traditionally been the province of the states.  It is a particular concern when Congress tries to regulate in such areas.

o       Congressional findings:  In Lopez congress didn’t make extensive findings and Ct. held that against Congress.  But in Morrison, there were extensive findings but Ct. rejected them.

o       The absence of jurisdictional hook- in both of the cases, Congress said we are going to regulate this activity and we don’t require any showing that commerce was affected.  Congress can pass laws like Lopez if can be proven that gun traveled through interstate commerce (this provides the hook).

o       No analogical stopping point- if accept Congress’s argument here, then no imaginable stopping point.

o        Dual Federalism

§         In most commerce clause cases, as seen above, private individuals are being regulated.  But what if law pursuant to commerce clause regulates states?

§         If federal law compels state legislative or regulatory activity the statute is unconstitutional even if there is a compelling need for the law

§         National League of Cities v. Ustry

·        Congress tried to impose minimum wage and maximum hour limits on state employees.

·        Congress has no power to intrude upon integral governmental functions of the states.

§         Garcia v. San Antonio- Ct. stepped away from National League.  Only situations where preserve the right of inherent government function only if states are signaled out in the national political process.  We will not try to protect states from general federal regulations.  For now, GARCIAL IS THE LAW OF THE LAND. But very shaky, see Sovereign Immunity below.

o       Anti-commandeering principle[5]

§         Fed. Gov. can’t take over the instrumentalities of state gov. (e.g. state legislature, state police)

§         New York v. U.S.

·        A federal law required states to take title of any waste produced within their borders that was not property disposed and held them liable for any damages incurred from this waste thereafter.

·        The court held that Congress pursuant to its commerce power can regulate disposal of radioactive waste.  But the law either gave states option to accept the waste or dispose it according to the federal regulation.  Accepting the title commandeers the states and enforcement of federal regulation would have the states impose federal legislation.  Allowing Congress to commandeer state government would undermine political accountability.  Under 10th Amendment, law unconstitutional.

·        “Where Congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate’s preferences; state officials remain accountable to the people.  By contrast, where the Federal Government compels states to regulate, the accountability of both state and federal officials is diminished.”

§         Printz v. United States

·        Brady Handgun Act required local law enforcement officers to conduct background checks on prospective handgun purchasers.

·        Ct. held law unconstitutional under 10th Amendment because it commandeers state executive officials to implement a federal mandate.  Furthermore, violates separation of power by reducing the power of the executive.

§         Therefore, Congress cannot order states to enact or enforce a federal regulatory program and cannot circumvent that prohibition by conscripting the States’ officers directly.

§         Compare the above 2 decisions with Reno v. Condon

·        Congress passed law prohibiting state DMV departments from selling personal information of drivers.

·        Court upheld this law.  Law prohibited a conduct and was not an affirmative mandate as was involved in NY and Printz. “It does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals.”

v     The Taxing and Spending Powers of Congress

o       Art. I § 8- 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; but all duties, imposts and excises shall be uniform throughout the United States.

o       Congress has broad power to tax and spend for the general welfare so long as it does not violate other constitutional provisions (U.S. v. Butler). 

o       Decisions that limited taxing and spending power

§         U.S. v. Butler

·        A processing tax to raise revenue for payments to farmers to stabilize agricultural production.

·        Court held that Congress cannot use the taxing power to raise funds to purchase compliance in an area that Congress is powerless to command.  The law of congress ruled unconstitutional under 10th Amendment because regulated production.  This ruling of Butler has not been followed by later decisions.  This case did accept though that the power to tax is not limited by powers listed in § 8. 

§         Bailey v. Drexel Furniture Co. [Child labor tax case][6]

·        Federal tax on companies that shipped in interstate commerce goods made by child labor.

·        Ct. ruled this tax to be unconstitutional.  Even though taxes can have incidental regulatory effects, this tax on its face was trying to penalize and regulate in an area that is reserved for the states.  The primary purpose of this tax was to regulate.

o       Spending Power

§         Congress may spend in any way it believes would serve the general welfare, so long as it does not violate another constitutional provision (U.S. v. Butler)

§         South Dakota v. Dole

·        Congress passed law to withhold 5% of federal highway funds from states that had minimum drinking age less than 21.

·        Ct. upheld this law.  Even though Congress might not have power to directly impose national minimum drinking age, but it can certainly encourage states through its spending power. Also, in this case Congress was trying to safeguard a legitimate interest in highway safety.  But where financial inducement offered by Congress is so coercive as to pass the point at which pressure turns into compulsion, then unconstitutional.

§         Standard:

·        1. Congress must be doing it for the general welfare and we defer to Congress what that is.

·        2. Conditions have to be unambiguous and clearly stated (Pennhurst v. Halderman)

·        3. There has to some relatedness (germaneness) between the grant and the condition

·        4. Independent Constitutional Limits apply (e.g. can’t induce states to pass laws that would prohibit critics of federal government).

v     War Powers

o       War power has been used to remedy wartime conditions or to conserve resources.

o       Congress can use its war power to remedy the evils of war even after the cessation of hostilities.  But effects has to direct and immediate effects. (Woods v. Cloyd W. Miller Co.)

o       Hamilton Case 1920- Congress prohibited production of alcohol.  Ct. upheld because increased productivity in this period of demobilization.

v     Foreign Affairs

o       Art. II § 2 gives President the power to enter into treaties

o       Art VI- Treaties made under laws of United States are supreme law of the land

o       Art. I § 8 “necessary & proper clause”- Congress can pass laws to take into effect anything done pursuant to the Constitution, including treaties.

o       A Congressional statute that would otherwise be invalid may be upheld if created pursuant to a treaty (Missouri v. Holland).

o       What if law passed pursuant to a treaty clearly commandeers states.

§         Professor thinks the Court will strike it down.  Missouri v. Holland allows Congress to go around the enumerated powers, but Congress will not allow it to go around Bill of Rights.

v     Sovereign Immunity

o       Suits barred under 11th Amendment

§         Suits by citizens of other states against a state

§         Suits against states by its own citizens (see Hans v. Louisiana)

§         Suits against states by foreign nations and Indian tribes

§         Suits against states in state courts

o       Suits allowed

§         Federal suits where Federal government brings suits against states (even where feds representing an individual)

§         States against states (but state must be trying to protect its own interests and not interest of individual citizens)

§         Does not bar Supreme Court’s appellate jurisdiction over cases which decided in state courts where state a party

o       Congress’ power to abrogate sovereign immunity

§         Current law is that Congress may authorize suits against state governments only when it is action pursuant to § 5 of the Fourteenth Amendment. (Fitzpatrick v. Bitzer)

·        Congress abrogation intent has to be very explicit in order to override state sovereignty.

§         Statutes adopted under other Congressional powers

·        Seminole Tribe of Florida v. Florida

o       Congress cannot abrogate states’ sovereign immunity under the Indian Commerce Clause

o       Overruled Pennsylvania v. Union Gas Co.

v     Sovereign Immunity (Balance between state immunity and state accountability)

o       Chisholm v. Georgia

§         Suit brought by Π, a citizen of South Carolina against the state of Georgia.

§         Ct. said under Constitution, concept of SI that exists under European monarchies is not present so Π can sue the state.

o       Highly controversial decision and led to the adoption of the 11th Amendment

o       11th Amendment

§         The Judicial power of the United States shall not be construed to extend to ay suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.

o       Hans v. State of Louisiana

§         Louisiana amended its constitution in order to avoid payment on some bonds.  Π, a citizen of Louisiana, brought suit against the state- considered 11th amendment to not bar suit because citizen of same state + suit based on federal law and not diversity.

§         Held: Π can’t sue Georgia even if citizen of the same state.  According to the court, 11th Amendment reiterated the SI that the Chisholm case tried to take away.  According to the court, the current type of suit was anomalous and unheard of when the constitution was adopted.

·        According to some scholars, common law used by Justice Bradley in this case to justify immunity.  But Constitution superior to CL and according to these scholars, Bradley gave CL immunity a kind of constitutional gloss.

o       Suits Against State officers (Big Exception)

§         Ex parte Young

·        11th Amendment does not preclude suits against state officers for injunctive relief.  This is allowed even when the remedy will enjoin the implementation an official state policy.[7]

o       Power of Congress to Abrogate States’ Immunity

§         Many scholars argue that 11th Amendment places limits on federal judiciary and not on the Congress.  Furthermore, federal statutes are supreme law of the land.

§         Statutes Adopted under 14th Amendment

·        Fitzpatrick v. Bitzer

o       Suit brought against state government based on violation of Title VII.  Congress applied Title VII to states pursuant to its power under § 5 of the 14th Amendment.

o       Ct. ruled that Congress can abrogate states’ immunity under § 5 of the 14th Amendment.  According to the court, this part of the Constitution gave power to the Congress at the expense of states’ immunity.

o       Major Requirement:  Even if law passed pursuant to § 5 of 14th Amendment, court requires that Π must show that Congress expressly abrogated the immunity of the states[8]

o       Statutes adopted under other Congressional Powers

§         Pennsylvania v. Union Gas Co.

·        Held that the Congress may authorize suits against states under statutes that are passed under its Commerce Clause power.  Statute has to show abrogation expressly in its text.

·        This short lived case overruled by Seminole Tribe

§         Seminole Tribe v. Florida

·        Congress made states liable to suits under a statue that was passed pursuant to its power under the Indian Commerce Clause of the Constitution.

·        Ct. ruled that Congress may authorize suits against states only when action pursuant to § 5 of the 14th Amendment and not pursuant to other federal powers.

§         Alden v. Maine

·        Congress cannot abrogate states’ immunity in state courts in statutes that are passed pursuant to its Art. I powers.

o       2 Current Competing Interpretations of the 11th Amendment

§         Majority Interpretation (5 Justices)

·        11th Amendment restricts the subject matter jurisdiction of the federal courts that bars all suits against state governments

§         Minority View (4 Justices)

·        11th Amendment only restricts subject matter jurisdiction in cases against states that are founded solely on diversity jurisdiction

o       Justifications for sovereign immunity

§         Bringing the state into court without its consent impairs its dignity

·        But individuals are sued everyday and it cannot be said that their dignity is harmed by their answer the suit or to appear in court to fight the lawsuit

·        Under the 7 exceptions, states are brought to federal courts very often and it can hardly be said that they are losing their dignity each time they appear in court

·        According to Balckstone, SI applied to kings and rulers because they had to get the extreme respects of their subjects

·        Same cannot be said about the states

§         Practical reason- protect states’ pocketbooks

·        Seems paternalistic of the court to be protecting states like this.

·        Also, sets bad example.  Even corporations have to take care of the mess they createà states like CA or NY are obviously financially in a better position to defend legal suits than many business corporations

§         Constitutional History

·        According to the SC, SI is inherent in the constitutional plan

·        Immunity is the background principle that is embodies in the 11th Amendment  

o       Conclusion

§         Suits Allowed Under 11th Amendment

·        U.S. government against states (even when representing a private individual)

·        States against states

o       But states cannot represent the interests of its individual citizen.

·        Suits in admiralty

·        SC’s appellate jurisdiction over state court decisions where state is ∆

·        Can sue State officials for injunctive releif

§         Suits not allowed

·        Individual can’t sue states in federal courts based on diversity

·        Individuals can’t sue state in federal courts under federal law issues

·         

 

III. Structural Limits on State Power

 

v     Unlike Congress, states have plenary powers.  But there are limits.  Already saw some limits in McCulloch v. Maryland and U.S. Term Limits v. Thornton.

v     The Dormant Commerce Clause (DCC)

o       Principle under which state and local laws are unconstitutional if they place an undue burden on interstate commerce

o       This principle not explicitly stated in the Constitution but is inferred by the Court.  Basic notion is that the assignment of commerce authority to Congress, took away the power from the states to control or affect interstate commerce.

o       3 category of cases: facially discriminatory laws, protectionist laws, laws that are neutral but burden interstate commerce

o       Justifications for DCC

§         Historical justification: Framers intended to prohibit states form interfering in interstate commerce

§         Economic justification: Economy is better off if local laws impeding interstate commerce are struck down

§         Political Justification: states and their citizens should not be harmed by laws of other states where they have no representation

o       Arguments against DCC

§         Textual Argument:  Framers could have listed this limitation on state power in the Constitution.  Many limits on states are present in constitution (e.g. Art. 1 § 10)

§         Congress has the power to invalidate laws of states that unduly burden interstate commerce.  Judiciary should not be handling this job.

·        Some argue that courts better equipped because:

o       Courts are better at being selectively reactive than Congress.  Congress can’t respond to every single burden that comes up.

o       When Congress does act, the result might preempt a lot of state legislation.

o       DCC before 1938

§         Gibbons v. Ogden (Police power vs. Regulating Commerce)

·        Facts discussed above.  Justice Marshall used this case to insert DCC.  Even though the Congress had not acted on the issue, Marshall invalidated the NY statute that created a monopoly in NY waters.  According to Justice Marshall, NY in this case was doing what is reserved for Congress under the Constitution.  “When a state proceeds to regulate commerce with foreign nations, or among the several states, it is exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do.”

·        Marshall recognized certain policing powers of states that might affect interstate commerce.  But those laws are good (e.g. quarantine laws, health laws, etc.)

·        Wilson v. Black-Bird Creek Marsh

o       State constructed a dam that obstructed an interstate waterway

o       Ct. upheld state’s construction because construction of dam fell under state’s exercise of its police power

·        Mayor, Aldermen and Commonality of NY v. Miln

o       Ct. upheld  a stat law requiring passenger identification lists for all ships arriving from other states and countries

o       Again, ct. ruled that state practicing its police power

·        Problem with Gibbons’ approach is that it does not provide a solution for laws passed under policing power that unduly burden interstate commerce

§         Cooley v. Board of Wardens (National vs. Local Subject Matter)

·        State law required all ships entering or leaving the Port of Philadelphia to use a local pilot or to pay a fine that went to support retired pilots.

·        Ct. upheld this law because it involved a local matter where diversity was desired.  There were some matters that were local and diversity ok, but there are matters that are national and uniformity is desired and states can’t regulate in such national subject matters.

·        Some problems with the Cooley test:

o       If local matter, states can discriminate all that they want against other states

o       Very hard to judge what is truly local and what is national

§         DiSanto v. Pennsylvania (Direct v. Indirect Effects Test)

·        State law required a state-issued license in order to sell tickets for foreign travel.

·        Ct. struck law down because had direct effect on interstate commerce.

·        Problem: This test is “too mechanical, too uncertain in its application, and too remote from actualities to be of value.”

o       Modern Approach (Balancing Test)

§         Balancing the benefits of a law against its burden on interstate commerce

§         In State Highway Dept. v. Barnwell Bros., ct. upheld a law that imposed a width and length requirement for trucks operating in the state.  Ct. stated that the safety benefits of the law outweighed the burdens on interstate commerce.

§         In Southern Pacific v. Arizona, ct. struck down a law that limited the length of trains operating in the state.  The benefits of the law were little and the burden on interstate commerce was extreme.

§         Balancing test not needed where state’s law discriminates against out-of-staters.  In case of such discrimination, law struck down without consideration of its benefits.

§         Criticism: Some argue that courts are not well equipped to judge the benefits and burdens of laws.  Congress should control such area.

o       Laws that Facially Discriminate[9]

§         No balancing test used here.  Laws under this category are struck down unless the state shows that the law is necessary to achieve an important government purpose.

§         Examples:

·        Baldwin v. G.A.F. Seeling: law restricted prices of milk produced outside the state and prevented it from being sold at lower prices than instate produced milk.

·        Reynoldsville v. Casket v. Hyde: law allowed longer tolling period for statute of limitations for suits against out-of-staters than suits against in-staters.

·        Nwefound/Owatonna v. Town of Harrison: Tax exemptions for charitable that served instate residents, and others were penalized.

§         Philadelphia v. New Jersey

·        Ct. strikes down a NJ law that prohibits instate waste disposer companies from taking waste from other states.

·        Ct. sees three exceptions under which such laws can be upheld:

o       E.g. Quarantine Cases- Diseased livestock cases

§         Transportation of these material is inherently dangerous

o       Maine v. Taylor

§         Exclude out of state bait fish- because had distinct parasites

o       General Motors v. Tracey

§         Services that in state producers offer is substantively different form those offered by out-of-staters

§         Ct. has also held that reciprocity requirements in laws are also unconstitutional

§         Local subdivision laws don’t survive the power of the court just because they also discriminate against in-staters

·        Dean’s Milk Co. v. Madison

o       City ordinance that required all milk sold in city had to be pasteurized within five miles of the city.  This law discriminated against in-state milk producers as well as out-of-state milk producers

o       Ct. found this law discriminating against interstate commerce.  “It is immaterial that Wisconsin milk from outside the Madison area is subjected to the same proscription as that moving in interstate commerce.”

o       Facially Neutral Laws

§         Most laws do not facially discriminate.  Most are facially neutral but their purpose and/or effect is discriminatory

§         Hunt v. Washington State Apple Advertising Commission

·        Law that required all apples sold in North Carolina to carry only a U.S. Grade or standard.  Washington had a superior grading system but due to the law, all Washington applies sold in NC couldn’t carry this superior grading system grade.

·        Ct. struck down this law.   Even though facially neutral, but had discriminatory effects: 1. Washington companies will have to spend more to get the U.S. grade but NC companies will not 2. law takes away Washington’s advantage over other producers which Washington has built by spending a lot of $ in building a superior grading system 3. law has a leveling effect that favors local NC apple producers.

§         Sometimes Ct. finds discriminatory purpose but still upholds the law as not having enough discriminatory impact

§         No clear test, but several assumptions can be made:

·         A law is likely to be found discriminatory if tis effects is to exclude virtually al out-of-staters from a particular state market, but not if it only excludes one group of out-of-staters.

o       E.g. in Minnesota v. Clover Leaf Creamery co., only out-of-state plastic industry disadvantaged and not the out-of-state paper industry.  Law upheld.

·        Law is likely to be found discriminatory if it imposes costs on out-of-staters that in-staters would not have to bear.

o       E.g. In Hunt, Washington apple industry had to bear costs that NC companies did not.

·        Law is more likely discriminatory if motivated by a protectionist purpose, helping in-staters at the expense of out-of-staters.

o       Non-discriminatory Laws

§         If law not discriminatory, then court will apply balancing test. 

§         Pike v. Bruce Church, Inc.

·        “Where the 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.”[10]

§         Pike Balancing Test

·        Allow states to regulate if can show a pretty good reason.

§         Bibb v. Navajo Freight Lines

·        Illinois law required all trucks to have curved mudguards instead of straight mudguards to enhance road safety.[11]

·        Ct. struck down this law.  Only Illinois and one other stated required curved mudguards.  Furthermore, evidence showed that curved mudguards more dangerous than straight. According to the court, this is “one of those cases- few in number- where local safety measures that are nondiscriminatory place an unconstitutional burden on interstate commerce.”

§         In its balancing test, the court sometimes considers whether the goals of the law can be achieved by other less burdensome methods.

§         South Carolina State Highway Dept. v. Barnwell

·        Law limited width of trucks to 90 inches and weight to 20,000 pounds.  This law excluded 85-90% of trucks operating in state

·        Ct. upheld the law because weight requirement protects highways and width requirement enhances safety.  Ct. emphasized the need for judicial deference to state highway regulations.  Highways are local in nature.

§         Kassel v. Consolidated Freightways Corp.

·        State law limited the length of trucks to 55 feet.

·        Ct. struck law down because placed substantial burden on interstate commerce and no proof that the law contributed to highway safety.

§         Southern Pacific Co. v. Arizona

·        State law limited train length.

·        Ct. stuck law down.  Placed substantial burden on interstate commerce and had minimum benefits.  Also, unlike highways, railroads are not local in nature and more of tools for interstate commerce.

o       Ct. has also declared laws unconstitutional that try to regulate out-of-state businesses.

o       Three categories under which discriminatory laws fall

§         Laws that limit access to in-state resources

·        Philadelphia v. New Jersey (discussed above)

·        H.P. Hood & Sons v. Du Mond: NY law struck down because prevented an out-of-state from constructing an additional depot for receiving milk

·        Oregon Waste Systems v. Dept. of Environmental Quality: Law that imposed a fee on out of state waste was struck down.

§         Laws that limit access to local markets by out-of-staters

·        Laws that keep out of state businesses from competing with in state businesses

·        Law that limit the ability of out of staters to do business in state (e.g. Hunt- apple case)

§         Laws that require use of local businesses

·        E.g. Dean Milk, Cooley v. Board of Wardens

o       Some Concluding Principles

§         A law that discriminates will only be upheld if servers important governmental purpose and there are no less discriminatory alternatives

§         Economic protectionism has been subject to per se rule of invalidity

§         Some state laws have survived the Court’s strict scrutiny e.g. Maine v. Taylor (Baitfish case)

o       Two exceptions to DCC

§         Congressional Approval- Otherwise discriminatory laws that are approved by Congress

·        Even discrimination against out-of-staters can be authorized by Congress.

§         Market Participant Exception

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

·        But, states may not impose conditions that have a substantial regulatory effect outside the particular market in which the state is competing.  State owned business may not attach conditions to the sale of products that will significantly burden interstate commerce (South-Central Timber Development v. Wunnicke).

o       Privileges and Immunities (PnI Clause of Art. IV § 2)

§         The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

§         SC has used P&I in cases where states discriminating against out of staters with regard to constitutional rights and when a state is discriminating against out of staters with regard to important economic activities.

§         Very similar to DCC.  Protects individuals.  Citizens should be free to travel around the county without being penalized for being out-of-staters and without being dissuaded from traveling.  It is an anti-discrimination individual right provision. 

§         Similar to DCC but some major differences

·        Corporations enjoy no protection under PnI

·        Congress cannot consent to the violation of PnI

·        The standard of review for privileges and immunities denials is arguably stricter than the balancing test used in dormant commerce clause analysis, though not as strict as that for discriminatory legislation challenged as a commerce violation.

·        PnI does not extend to all commercial activity but only to fundamental rights

·        There is no market participant exception to PnI violations as there is in DCC.

·        PnI only against laws that discriminate against out-of-staters while DCC can be used to strike down laws that don’t discriminate but still burden interstate commerce

§         United Buidling & Construction v. Camden

·        A local Camden ordinance required builders to hire at least 40% of their workers that were residents of Camden.

·        Holding: Violates PnI.  PnI applies even if violation by municipality instead of a state.  Two prong test:

·        1. Does the ordinance burdens one of those privileges and immunities protected by the Clause?

o       Not all type of discrimination unconstitutional.  Only when violates some fundamental right.  But the opportunity to seek employment with such private employers is sufficiently basic to the livelihood of the Nation as to fall within the purview of the Clause even though the contractors and subcontractors are themselves engaged in projects funded in whole or part by the city.

·        2.  Are there substantial justifications for discrimination? 

o       Not enough factual info present to decide on this issue.

§         Strict Scrutiny Test

·        Whether there is a substantial reason for the difference in treatment, and

·        Whether the discrimination practiced against nonresidents bears a substantial relationship to the state’s objectives?

§         Supreme Court of New Hampshire v. Piper

·        Ct. ruled that the states argument that out of state attorneys were less familiar with local rules, and less likely to perform pro bono work not substantial reason for the state to limit bar license only to residents.

§         It is implicitated

·        State denies benefits or denies services based on state citizenship

·        But only if these benefits are “fundamental”

§         Important differences between DCC and Immunities

·        DCC applies only to burden on commerce.  P&I applies to all rights so long fundamental.

·        Discrimination in commerce clause doctrine in per se bad.  In P&I, there is no per se rule of constitutional invalidity.

o       Strict Scrutiny Test:  1. sate has substantial interest.  2. Discrimintion has a closely relates to that substantial reason.  3. show that non-residents are source of the evil at which the statute is aimed at.

·        DCC laws that burden interstate commerce even if not discriminatory.  In P&I, only care about laws that facially discriminate.

·        There is no market participant exception in P&I clause.

§         P&I of Art IV § 2 vs. P&I of 14th Amendment

·        14th Amendment- No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United State.

·        Supreme Court has given an extremely narrow meaning to the P&I clause of the 14th Amendment so it is rarely used.

§         CAREFUL: P&I doesn’t apply if no discrimination based on constitutional rights or ability to earn livelihood.

§         E.g. State charging out-of-staters much more for elk hunting licenses than it charged in-staters.

·        “Equality in access to Montana elk is not basic to the maintenance of well-being of the union.”

IV. The Powers of the Executive, Legislature and Judiciary

v     2 Basic Types of Separation of Power Arguments

o       Identifies when one branch of gov. is trying to do which is not assigned to it by the Constitution (e.g. Ct. trying to legislate)- Division of Authority Arguments.

o       One branch of government is trying to do something that intrudes too much into the activity of another branch government (e.g. Congress trying to tell President who pardon)- Preservation of Prerogatives argument.

v     Separation of Powers- Executive Authority

o       Art. II states: “The executive Power shall be vested in a President of the United States of America.” (executive power clause; commander in chief clause, take care clause)

o       Some scholars argue that since unlike Art. I, the wording of Art. II doesn’t limit the powers of executive to those provided in the Article, it can be assumed that the framers intended to create inherent presidential powers.

v     Executive Authority

o       Many separation of powers relating to President involve issues of whether Congress allows President to act and if not, does President have separate Constitutional power.

o       Youngstown Sheet & Tube Co. v. Sawyer

§         Facts: President Truman ordered secretary of commerce to take over all the steel mills in order to keep them running. Need steel for Korean War.

§         Holding:  Truman had no power to take over the mills.  “the president’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” Majority relied on the declining of Congressional to give such power to the President.

§         Justice Jackson’s 3 Part Test[12]:

·        In cases where the President is acting pursuant to express or implied Congressional authorization, his power are at its maximum.

·        There is a twilight zone in which congress has expressed no opinion. In these situations, president might be enabled to act when circumstances set a need for presidential action.  This invites political negotiations.

·        Situations where Congress has spoken either by expressly rejecting presidential authority or has spoken indirectly (ct. places a lot of weight on the rejection of an amendment to the Taft Hartley Act)  the President will have to demonstrate that he has an independent power.

o       Dames & Moore v. Regan

§         Compare to Youngstown.  Here Regan allowed to cancel all lawsuits against Iran.  Ct. ruled that President is permitted to enter into executive agreements with foreign governments when doing so is necessary to the resolution of a major foreign policy dispute and Congress has acquiesced.

o       War Powers Act

§         President as Commander-in-chief may introduce armed forces into hostilities only where

·        a declaration of war

·        specific statutory authorization, or

·        a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

·        This act places other restrictions on President’s powers as commander-in-chief of the armed forces.

·        Constitutionality of War Powers Act

o       Presidents have argued that this act places unconstitutional restraints on executive power

o       But this act can be seen as a checks and balances measure

o       Scholars think that Supreme Ct. will not decide this issue because it is nonjusticiable under political question doctrine.

v     Congressional Encroachments on Executive Power

o       Executive branch has had a dramatic increase in size and strength over the years.

o       Congress has two options to control this giant:

§         It can retain control over executive officers’ actions, or

§         It can retain control over executive officers’ jobs

o       Legislative vetoes in general and one-house vetoes in particular are another way to limit the executive branch’s power.  But one house veto in INS v Chadha was held unconstitutional. According to court, one-house veto violate bicameral requirements of Art. I §§ 1, 7

o       INS v. Chadha

§         Facts: INS ordered Chadha to be deported but Attorney General suspended deportation.  Act provided that one house of congress can override the suspension.

§         Holding: A house of congress cannot act alone in legislative powers.  The House’s act altered the legal rights and status of Chadha, therefore, the resolution was legislative in character.  Constitutional requires bicameral legislature along presentment to the executive in such cases.

o       4 exceptions where one-house veto ok

§         Power of House to initiate impeachment

§         Senate’s power to conduct trials on impeachment charges

§         Senate’s power over Presidential appointments

§         Senate’s power to ratify treaties.

o       Bicameral Requirement: Art. I §§ 1,7 require that legislative branch be divided into two houses, both of which must approve all legislation by majority vote

o       Presentment Clause:  Art. I § 7 cl. 2 requires that all legislation be presented to the president before becoming law.

o       Clinton v. New York

§         Facts: Line Item Veto gave the president the power to cancel any parts of the appropriation bills.  Congress could overturn such a veto by a majority vote in both houses. 

§         Holding: Act that created line item veto was unconstitutional.  This act gave the President the power to change the law adopted by the Congress which is not allowed under the text of the Constitution. (Formalist Approach)

§         Dissent: Dramatic increase in federal budget so line item veto was a practical necessity. (Functionalist Approach)

v     Appointment and Removal of Executive Officers

o       Art II, § 2: President shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law:  but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, to the courts of law, or in the heads of departments.

o       5 Major Issues to be aware of when dealing with appointment and removal:

§         Appointment issue: who gets to appoint an officer and are there any limitations on this authority

§         Inferior/superior issue: great distinction in clause between inferior and superior officers

·        Superior officers have to be confirmed by the Senate.  Inferior officers do not.

·        Superior officers can be appointed only by the President but the inferior officers can have their appointment vested in other entities.

§         Removal Authority: Appointment clause doesn’t say how to fire an officer except for the impeachment power of the house.  Who gets to remove or fire an officerà to whom is the officer ultimately accountable?

§         Formal problems: whether the procedure violates some formal authority of the Constitution

§         Functional Problem: Does the way that position has been defined or the appointment or removal authority has been defined threaten functional authority. (e.g. Issue in Olson case that Judiciary got too much policy making power + executive authority shifted to legislature)

§         Buckley v. Valeo

·        Federal law that empowered the speaker of the House and the president of pro tempore of the Senate to appoint four of the six members of the Federal Election Commission.

·        Ct. said that Congress cannot give the appointment power to itself or to its officers.  Art. II clearly does not include Congress and its offices as one of the option.  But Congress can give a slate of names from which appointment can be made.

·        Professor’s Analysis:

Position

Appointment Issue

Inferior/Superior Officers

Removal Issue

Formal Problem

Functionalist Problem

Federal Election Commissioner

Appointment by Congressional Leasers

No- clear that inferior officers

No

YES- Significant Authority

N/A

 

v     .

§         Bowsher v. Synar

·        Comptroller General of the United states given power to impose budget cuts.  Comptroller General superior officer and removable only by Congress and therefore a legislative officer.

·        Ct. struck down this law because it empowered a legislative officer to perform executive functions.  Takeaway from this case: Congress cannot give itself the power to remove executive officials.  The only exception is that Congress can remove an executive official through the impeachment process.

§         Morrison v. Olson

·        Act allowed attorney general (executive officer) to determine whether further investigation needed in crimes committed by government officials.  If yes, then a panel of federal court judges appoint an independent counsel.  The counsel is removal by attorney general for good cause.

·        First, ct. determined that independent counsel is an inferior officer: can be removed by AG for sufficient cause; possesses inferior powers compared to the AG (limited scope of duties); has limited tenure[13]

·        Also, no violation of Art. III.  Under the act, the judges don’t have any supervisory powers over the independent counsel so therefore no violation of separation of power. 

·        Ct. further ruled that limitations on the removal of independent counsel not unconstitutional.  AG can still remove, but needs good cause.  Furthermore, independent counsel needs some independence because investigates crimes committed by executive officers (Functionalist Approach).

·        Dissent:  Constitution vest the prosecutorial powers in the Executive and Congress trying to usurp executive powers (Formalist Approach)

v     Executive Privileges and Immunities

o       Not in the Constitution, but Presidents have claimed Executive Privilege all through history.

o       U.S. v. Nixon

§         1st- Ct. ruled that it has the power to decide whether President has executive privilege and if so, its scope[14].

§         2nd- Ct. recognized that there is executive privilege even though not stated in the Constitution.  There is an inherent need for confidentiality in some executive functions.  Court allows camera reviews.

§         3rd- This privilege is not absolute and must yield when important countervailing interests.

§         “allowing the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.”[15]

o       President enjoys absolute immunity from civil damages liability for his official acts in the absence of explicit affirmative action by Congress- Nixon v. Fitzgerald

o       A sitting President does not enjoy temporary immunity from all civil lawsuits based on his unofficial acts- the President can be sued for unofficial acts while still in office- Clinton v. Jones

 

 

V. Personal Liberties

v     Dred Scott v. Sanford

o       Case about a family and its claim for freedom.  How slavery can enjoy protection at national level.  Π argues that when brought into free jurisdiction of Illinois, they became free by virtue of being on free soil.  When brought back to Missouri, they remained free.

o       1st Holding: Simply on the merits, Π lost.  Can’t become free by moving to free states and then coming back. (SC could have stopped here but didn’t)

o       2nd Holding: Status of African Americans in the U.S.--> people brought from Africa were not human being enough to become citizens of U.S. by any action of the states or congress.  So they can’t sue in its court based on diversity jurisdiction.

o       3rd Holding: Missouri Compromise of 1830 is unconstitutional.  Congress has no power to eradicate Slavery.  This was only the 2nd time that SC had held a federal statute unconstitutional. (So see the protection of slavery against state and federal interference)

o       3 places where Constitution refers to slavery

§         1808 Clause:- Art I § 9- provided that for 20 years after Constitution, Federal gov. will have no power to control slave trade

§         Fugitive Slave Clause- Art. 4 § 2- states have obligation to return any individual who escapes bondage and makes it across state lines

§         Art. 1 § 2 Clause 3- 3/5 compromise- apportionment of representatives “other persons”- refers to slaves

o        

v     Bill of Rights (BoR) and Post-Civil War Amendments

o       BoR originally enacted as limitation on the powers of Federal Government

o       Nothing in 1st ten amendment restrained the states (only restraints found in Art. I § 10.)  But Reconstruction Amendments changed all that.

o       14th Amendment: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No state shall make or enforce an law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

o       The Pre-Civil War Situation

§         Barron v. Mayor and City Council of Baltimore

·        Facts: Due to state’s actions, Π’s wharf was destroyed.  Π claimed that state violated the 5th Amendment of U.S. Constitution when it took his property without just compensation.

·        Holding: 5th Amendment doesn’t apply to the states.  The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states.  During the constitutional convention, the fear that lead to the enactment of first 10th Amendments was posed by the federal government and not by the state governments.

§         Note: Most of BoR amendments speak in general terms.  So one can argue that BoR also applicable to the states.

v     The Purpose and Impact of the Post-Civil War Amendments

o       13th, 14th, and 15th Amendments- Many thought these amendments overturned Barron v. Mayor.  But Slaughter-House Cases said otherwise.

o       Slaughter House Cases

§         Louisiana law gave monopoly in slaughter house business to one company.  Butchers challenged this monopoly using the newly adopted amendments.  Πs argued that the law created involuntary servitued, deprived them of property without due process of the law, denied them equal protection of the law, and abridged their privileges or immunities as citizens.

§         Holding: Purpose of 13th and 14th Amendments was solely to protect former slaves.

o       Saenz v. Roe

§         For the first time in history, the SC used P&I[16] of 14th Amendment to strike down a state law.  California law that limited the welfare benefits of new residents to the amount of the previous state of residency.

§         “…it has always been common ground that this clause protects the right to travel and the citizen’s right to be treated equally in her new State of residence.”

v     Due Process and the Incorporation Controversy

o       Selective vs. total incorporation- the majority of the Court has never accepted the view that the 14th Amendment due process clause incorporated all the provisions of the Bill of Rights.

o       Palko v. Connecticut

§         ∆ convicted of second degree murder and upon state’s appeal, new trial ordered.  ∆ convicted of first degree murder.  ∆ claimed double jeopardy and violation of 5th and 14th Amendments.  Claimed that 14th Amendment made all of Bill of Rights apply to the states.

§         Holding: There is no such general rule.  Only rights in the Bill of Rights that are the very essence of a scheme of ordered liberty have been extended to the states.  Ordering a new error free trial as the court did in this case did not subject ∆ to a hardship so acute and shocking that our polity will not endure it.  Therefore, ∆ had no protection.

o       Adamson v. California

§         Even though prosecutor’s comment violated the 5th Amendment’s self incrimination principle, ct. said that this principle didn’t apply to the states.

§         Justice Black’s Dissent: The 14th Amendment was designed to establish total incorporation.

o       Duncan v. Louisiana

§         Ct. held that the 6th Amendment’s right to jury is fundamental to American scheme of justice and it is incorporated in the 14th Amendment.

o       Current Condition of Incorporation Doctrine

§         SC has never acquiesced to total incorporation.  But almost all of the rights of BoR have been incorporated.

v     Substantive Due Process

o       Very Early History

§         Ct. used the natural rights argument to protect property.  “A act of the legislature contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.” (Calder v. Bull).

§         Some like Justice Iredell argued that can’t use natural law because it is based on subjective principles and Ct. should just follow the written principles of the Constitution.

o       Initially Substantive Due Process Rejected By Court

§         Courts argued that due process met as long as government’s procedures are in accord with the law. See Slaughter House Cases

o       The Lochner Era (1905- 1937)

§         Lochner v. New York

·        Facts- A NY law set a maximum hour limit on the work of the bakers.

·        Holding: Law unconstitutional under due process.  Court set out 3 major principles:

o       1. Freedom of contract is a basic right protected as liberty and property rights under the due process clause of the Fourteenth Amendment.

o       2. Government can interfere with freedom of contract only to serve a valid police purpose (i.e. protect public safety, public health, or public morals)

o       3. It was a judicial role to carefully scrutinize legislation interfering with freedom of contract to make sure that it served a police purpose (i.e. to see if the act fair, reasonable, and appropriate or is it unreasonable, unnecessary and arbitrary)

§         What was Wrong With Lochner Era

·        Many argue that freedom of K should not be an obstacle to necessary regulations.  State had valid interests in protection workers, consumers, and the public generally.

·        Many decisions in this era were inconsistent (e.g. Ct. allowed maximum hours laws for women but no minimum wages laws, allowed maximum hour laws for coal workers and manufacturers and not bakers)

·        Some criticize the degree of judicial activism in this ear.  Ct. acting like legislature to protect rights not listed in the Constitution.

o       End of Lochner Era

§         By mid-1930s, copious pressures on court to end its laissez-faire philosophy.  Legal realists argued that freedom of K and related property rights not natural liberties but political choices that seemed to favor owners and businessmen

§         Nebbia v. New York

·        Ct. upheld a NY Law that sets prices of milk.

·        Ct. admitted that neither property rights not K rights are absolute. The power to promote the general welfare is inherent in government.  “..a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare and to enforce that policy by legislation adapted to its purpose.  The courts are without authority either to declare such policy, or when it is declared by the legislature, to override it.”

§         West Coast Hotel Co. v. Parrish

·        Ct. upheld minimum wage law for women.  Ct. overruled the Adkins decision and ruled that Ct. has valid police interest in protecting employees form unconscionable Ks.

§         United States v. Carolene Products Co.

·        The existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis.

§         Williamson v. Lee Optical

·        Ct. upheld an Oklahoma statute that prohibited an optician to fit or duplicate lenses without a prescription from an optometrist or an ophthalmologist.

·        Ct. stressed the judicial deference to the legislature. “The Oklahoma law may exact a needless, wasteful requirement in many cases.  But it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement. “The day is gone when the court uses Due Process Clause to strike down state laws regulatory of businesses and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.”

o       Substantive Due Process and Family Relations

§         Question Presented: Does substantive due process include a right to marry, divorce, retain relationships with one’s children or decide the composition of the household in which one lives?

§         Marriage

·        Loving v. Virginia

o       Ct. struck down a statute that prohibited interracial marriages.  “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

·        Zablocki v. Redhail

o       State statute that denies marriage license if person not paying child support. Ct. strikes this statute down.  Marriage, under Griswold line of decision had established that the right to marry is of fundamental importance for all individuals.  “It would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.”

·        Turner v. Safley

o       Prison regulation that restricted prison inmates’ right to marry.  Ct. strikes this regulation down as unconstitutional.  Ct. held that right to marry is fundamental and remained intact even in the prison context.

§         Extended Family Relationships

·        Moore v. East Cleveland

o       Ct. struck down a law that prevented relatives other than the ones in nuclear family from living together.  “Our decision establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.” [relied on Justice Harlan’s concurrence in Griswold]

·        But in Belle Terre v. Boraas, found no privacy rights involved in a  family-oriented zoning restrictions excluding most unrelated groups from a village.

·        Troxel v. Granville

o       Ct. ruled that law requiring Mother to let the grandparent see the child violated mother’s substantive due process.  14th Amendment protects the fundamental right of parents to make decision concerning the care, custody, and control of their children. 

§         Family relationships and the role of tradition

·        Justice Scalia accepts the use of tradition but some justices reject it.

o       Sexuality

§         Bowers v. Hardwick

·        Facts: ∆ charged under law against sodomy even in the private.

·        Holding:  Sodomy not protected under the 14th Amendment.  Fundamental liberties:  In Palko described as those that are implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed.  In Moore- liberties that are deeply rooted in this Nation’s history and tradition.  Neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy.  NOTE: Otherwise illegal conduct is not always immunized whenever it occurs in the home.

v     In the modern substantive due process cases

o       How do you know what is fundamental right?  3 approaches

§         Textual foundation: Penumbrasàfind those values embodies in the bill of rights that are explicitly protected and apply them to other situations (Value associated with privacy in one’s home 4th and privacy in one’s personal information 5th amendmentà in these amendments finds penumbras protecting privacy in marital relationship)

·        Weaknessà Very limited approach.  Textual argument may give too much (e.g. laws protecting against domestic violence)

§         History & Traditionà History and tradition and collective conscience of our people.

·        Reliance upon history gives this doctrine a conservative structure.

·        How narrowly do you define the activity to see whether traditionally is protected.

§         Human Nature Approachà to identify those activites or interests that if state regulates it will so interfere you liberty to design your life.  Your ability to be a free and autonomous person. 

·        Strengthà Adaptable to new situations and admits that it is doing something new (more ballish)

v     Areas recognized

o       Abortion and reproductive rights

o       Marriage

o       Upbringing of children

o       Family relations

o       Contraception

v     Abortion

o       4 issues

§         question of fundamental right

§         definition of a person within the meaning of 14th amendment and other parts of the constitution

§         states’ interest in regulating abortion- protecting potential life

§         what regulations will be allowed and what will not be allowed

o       Undue burden standard

§         Pregnancy divided into 2 pahses- pre viability and post viability

§         Post viabilityà compelling interest of the state has been met.  So long as life of the mother not threatened.

§         Pre-viabilityàwoman is free to terminate her pregnancy.  But the state can impose limitations and regulations on the aborting physician than can serve the purpose of informing the mother on her decision.  SO long as these regulations do not add up to become an undue burden and there has to be explanation for each regulation.  Can’t simply make abortion harder for a woman.

§         Majority in Casey adopts the personhood and autonomy argument of Justice Harlan.

 


[1] Usually courts consider this question first.  But Marshall discussed the Supreme Court’s power before turning to the jurisdiction question.

[2] Supreme Court didn’t strike down another federal law under its judicial review power until the Dread Scott Decision in 1857. 

[3] See how Justice Marshall reaffirms the Court’s judicial review power over other branches of federal government J

[4] Could be that court was conservative and was ready to accept Congress’s regulation based on moral issues than economic issues.

[5] Ct. has said that even in case of emergency, federal gov. can order states around.

[6] On the exam, look for taxes that are more of penalty provisions than revenue raising tools.

[7] For 11th Amendment purposes, ct. says that official is stripped of state authority.  But 14th Amendment applies to state actions and not individuals.  Inconsistency. J

[8] The clear expression doesn’t have to be in the text of the statute.  Ct. can use legislative history to establish this express authorization.

[9] On exam, ask whether law discriminates or whether it treats everyone alike.  If discriminates, violates.  If doesn’t, apply balancing test.

[10] Notice the great discretion the court gets in deciding such cases.  I am not sure if the court is well equipped, or if it even has the constitutional authority to get itself involved in such balancing tests.

[11] I can’t believe that the Illinois legislature has time to think about truck mudguards.  Now that’s ghetto!

[12] Very important test.  Start your presidential power analysis with this test.

[13] Are lower federal judges inferior officers?  Get broad authority but have to report to higher ct. judges.

[14] One can question whether Marburry really did give the Supreme Court this power.  Marbury only gave the Court the authority to review executive actions.

[15] But doesn’t this happen all the time- e.g. attorney client privilege, spousal privilege.  These privileges are used much more often than executive privilege and they are not seen as a threat to the functions of Title III courts.

[16] Notice, unlike P&I of Art IV, here discrimination not because someone is an out-of-stater.  But discrimination because new resident.