4LawSchool Outlines Bank

Author: VS

School: UC Davis

Professor: Professor Wolff

Textbook: Constitutional Law, 14^th 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 1^st 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 2^nd 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 10^th 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 19^th Century – 1937 (New Deal)

§ 1937 – 1995

§ 1995 – Present

o 1^st 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 10^th 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, 10^th 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 10^th 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 10^th 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.”