Constitutional Law

General Types of Arguments

Textual

Arguments

Historical

Arguments

Framers

Intent

Less

important to

Originalists

Structure of

the

Constitution

(broadly)

Other Parts of

Constitution

Precedent

Broad

Interpretations

Social Policy

And/Or

Consequences

of Decision

Words and

placementNarrow

Mix of All of

the Above

(esp. history

and text)

Judicial Review

& Marshall’s Opinion in

Marbury v. Madison

Court’s Role in

Interpreting the

Constitution

Review of

EXECUTIVE &

LEGISLATIVE

Limits &

Restraints

Political & Discretionary Acts

Non-Discretionary

Rights of Individuals

Beginning of

Political Question

Doctrine

Specific

Intent

At time

Tradition

Natural

Law

Processes

of Gov‟t

Contemp.

Values

Mix of

Opinion

Directed to perform certain

acts, individual rights,

officer of the law

Political powers, actions

respect the nation & not ind

rights – conscience guides

Constitution is

supreme law of

land and SCOTUS

is in charge of

interpreting

Textual

Defenses

Appellate review of

decisions arising

under the

Constitution

Issues “especially

for the courts”

Judges take an

oath to the

Constitution &

must uphold

(hence review)

Supremacy Clause

– laws are made in

pursuance of the

Constitution

Judiciability Doctrine

Advisory

Opinions Standing

Timeliness

Article III – “Cases & Controversies”

Linked to Desirability of Judicial Review

Broad & Narrow View – Policy Decision

Actual Dispute

between Adverse

Litigants

“Real & not

hypothetical

controversy”

Must Bring

Some

Change

Hayburn

Case

No override

by Sec. of

Def of a

Supreme

Court

decision

Plout

Case:

No overturn

by C of a

final

judgment

(yes to

prospective

& in

litigation)

CausationInjury In Fact

Lujan:Failure to

purchase airline

tickets… whether

imminent enough

of a threat

(speculation)

Mass v. EPA:

Congress giving

power to create IIF

– weight of report &

whether concrete

injury is clear

Redressabiltiy

Considered

together generallyTriggers for

Standing Problems

Generalized Grievance:

Gov‟t failing to follow the law and

bringing suit to do so (injury in fact)

Third Party Actor:

That gov‟t is failing to regulate some 3rd

party - q‟s about

causation & redressability

(Allen v. Wright – IRS failure on tax exemptions for racially

segregated schools; Lujan: failure of Sec of Interior on

endangered species)

Separation of

Powers

Problems:

Court not having

the ability to

determine law,

concerns about

overstepping

Mootness

(most

flexible)

Ripeness

(like IIF)

Pre-Enforcement Review of

Statute or Regulation

(Abbott Labs)

Hardship for having to wait

*generally economic

hardship will allow CT to

push through

Factual Development:

*the more facts that can

be developed the less

chance of a review

Capable of Repetition yet

Evading Review

(a) every time that it comes up, it

will be short lived

(b) for individual – likely to find for

the exception

(c) unanswered for ind v. class

Voluntary

Cessation:

(a) no realistic

chance that D

will go back to

harmful conduct

Rendering a

decision is no

longer possible or

purposeful, or

would be hypo

Exceptions

As a whole, the

question is incapable of

judicial review

A. IV, Sec. 4 =

Guaranty Clause =

always non-justiciable

Political

Question

Final decision would

lead to a political

outcome

(Both sides point

back to Marshall‟s

Opinion in MvM)

Baker Factors

Textually

Committed to

Another Branch

Art. I, Sec. 5

Lack of judicially

discoverable and

manageable

standards for

resolution

(competence)

Embarrassment

Potential for another

branch, policy

question, or

deference to another

branch

Often occur

together

Class

Actions:

Self-

interested

parties are

still

advocating

Concrete, certain, and ripe for review – normally need

violation; sometimes just never enforced or too

hypothetical – (a) probability that event will occur (b)

hardship to parties if denied, (c) fitness of record to

determine legal issues presented

Collateral

consequences:

Effect will be

longer lasting

even if seemingly

decided

(Poe v. Ullman –

no actual

prosecution)

Necessary

Washington

Question to

Justices:

Refused to

answer b/c

advisory and

not

necessary

“Personal injury fairly traceable to the D‟s allegedly

unlawful conduct and redressed by requested relief”

(a) distinct &

palpable, (b) not

abstract or

hypothetical, (c)

personally injured

Fairly traceable to the

action of D, generally

measures Ps stake in

the outcome

Lyons:

Failure to show

the possible

future injury

(D: Marshall)

Whether ruling would

bind D and have an

effect for P

Aikan:

Access to

information was

enough to meet

standard

Richard:

Actual payment of

child support not

guaranteed

Notes:

-Only 1 need standing

-State surrender of rights

Mass v. EPA:

Third party

Powell v.

McCormack:

House adjudicatory

power of Art I, Sec. 5,

but determined only

as qualifications not

power to not seat

Goldwater:

Rescinding a treaty,

question left for

executive, must look

at terms of

constitution to this

factor

Goldwater:

Not appropriate if

only left to

inferences, dissent

(Brennan) says that

foreign relations can

be det by SCOTUS

Goldwater:

If there would be

multiple

determinations from

different branches of

gov‟t

Tied to Const.

Eval through

Nixon:

Const. did give

standards House/

Senate to act &

would not be

appropriate for SC to

determine

consider

Vertical Separation of Powers:

FEDERALISM

Enumerated Powers Rationale

10th Amendment &

States‟ Rights

Rationales

Effectiveness of

the Federal

Government

Historical Issues

Historical

Understanding of

the Commerce

Clause

Art. I, Sec 8

McCulloch v. MD:Marshall gives a very

broad interpretation of

Necessary & Proper

Clause, importance of

Const in regulation of ppl

not the states; implied/

inherent powers justified

Early Interpretation

“All leg powers

herein granted”

Article I

Generally Sec. 8

Necessary &

Proper Clause

(17)

(must be tied to

power in Sec 8)

Commerce

Clause

Gibbons v. Ogden:

Broad interstate, but

considered a broad sphere

of independence

*when only affects 1 state

Commerce = „traffic‟ &

„interstate‟, „navigation‟,

„intermingled‟

Area for Congressional Regulation = intermingled

and sharing among state commerce

1890s to 1937:

State Sovereignty

(1) Narrow definition of „commerce‟

(2) restrictive of „among the states‟

(3) Cong violates 10th when in area of states

1937 to 1990s:

Broad Nat’l Power

Wickard v. Fillmore (1942):

Broad interstate, but considered a broad

sphere of independence - *when only affects

1 state”; disband ideas of directness,

production, et al

1990s to Today:

Shift Back – Cong. Limits

Exclusively State

Rights for Some

Spheres & 10th

amd back in action

Manufacturing v.

Commerce

Direct v. IndirectBright Line

Approaches

More of a

Spectrum

Approach to

Determining

Congressional

Power

Very few limits on

Congressional

Power, started by

G. Depression

Limits to C reg based on effect on 1 state =

completely internal

Prevent federal

tyranny

Enhance democratic

rule closer to ppl

States as laboratories

for projects

Elections will be limit,

not 10th amd

Protection of States‟

Rights

Senators no longer

elected by state govt

EC Knight: direct effects test –

mfer is not commerce, no reg if

w/ no effect on other state

Carter Coal: commerce going

elsewhere is NOT subject to

regs when inside state

TX Railway: intrastate cannot

damage industry in another

state (move to intra)Stream of

Commerce

ALA Schechter: not SOC

among states, not direct

10th Amendment Limits: Next Page

NLRB v. Jones (1937):

Steel production regs; statute defines

“affecting commerce” - effect on commerce

NOT the injury needed for inspection

Look at effect on

commerce, not injury itself

Darby (1941):

Overturn Dagenhart, intrastate which so

affect interstate commerce or the exercise of

power of Congress over to make legitimate

end – w/in Cong power

Effect on interstate

commerce generally

Broad “Among the States”

Regulation Permitted

Heart of Atlanta (1964):

Moral wrong allowed for regulation, disruptive

effect that racial discrimination has had on

commercial intercourse – means must be

reasonably adapted to the end permitted

by Const.

Katzenbach (1964):

Within state = completely within and does not

affect other States & not interfering with other

goals of govt; - the interstate nature of the

restaurant permitted regulation

Hodel (1981):

Strip-Mining: Regulation permitted so long as

rational basis by Congress for regulating

Perez (1971):

Loan-sharking, Congressional enactment

and basis for regulation (even criminal)

Congressional

Authorization

Federalism protects

individuals

Madison‟s Double

Security

Noneconomic criminal will

likely fail under Comm Cl

Must be tied to Congress

Authorization

Not traditional state

activity (fam, ed, land)

Congress should give

expression of justification

10th Amd = Limit on

commandeering and state

acting for fed govt

Channels affirmed for reg

Commerce Clause

“A thing in interstate commerce”

InstrumentalitiesChannels of Interstate

Commerce

Roads, Waters,

Airways, Internet, et al.Persons or Things

Moving Between States

Substantial Effect on

Interstate Commerce

If within the (1) Channels or (2)

Instrumentalities then often easier for

Congress deference & broad power

Non-EconomicEconomic

Rational Basis &

Aggregate Effect

Examined &

Deference to

Congress

Wickard =

Governing Law

(Aggregating) &

Deference to

Congress

(1) Specific Activity

Examination

(Non-Agg) &

(2) No Deference to

Congress &

(3) Link to I/C Required

Factors for Analysis:

(1) type of action linked to

commerce (JX link), OR

(2) statutory authorization

or Congressional findings,

OR

(3) not traditional function

(family, education, land-

use) and no national

productivity nexus

10th

Amendment & Commerce Clause Over Time

Dagenhardt

(1914)

10th Amend.

Triggers

Conditioning

federal funds to

state action

Spending

Power LimitsDole Elements:

Highway Funding

“Production,

distribution, and

consumption of

commodities”

Employee regs on

child labor; no power

in Cong to force

states to exercise

police power = child

labor is purely local

decision and does

not affect inter comm

Holmes Dissent:

consideration of

Congress and not the

Court to decide, once

product cross state

lines then open to

regulation

Ames

(1903)

Harlan:

Congressional

decision to regulate

interstate commerce

is PLENARY and

complete in self

Darby

(1941)

If analysis comes

within the commerce

clause, then no need

for 10th amendment

analysis,eliminate

direct/indirect analys

Usery

(1976)

Traditional state

functions are

protected by the

10th amendment,

displacement of

state decisions

(how to fund,

spend) –

Factors: typical for

protection of

citizens

Brennan Dissent:

wrong decision

against Darby

Stevens Dissent:

Should be subject

to fed regulation

Garcia

(1985)

Overrule Usery,

reject state immunity

and traditional

framework; structure

of govt will protect the

states

Powell/Rehnquist:

Court is wrong, too

broad interpretation

of Cong power, “we‟ll

be back”

Lopez

(1995)

Rehnquist: defines

3 categories, says

this is sub effect

(crim gun statute) –

a. ess part of broad;

b. tied to Cong

authorization; c. not

traditional function

of state proc by

10th;

O’Connor: need for

judicial certainty

Thomas: sub effect

test is bogus

creation

Stevens/Souter/

Ginsburg:

Guns are part of

commerce, should

look at aggregate –

should have found

“rational basis”

Morrison

(2000)

Rehnquist:

Congress exceeds

bounds with crim

stat on Violence

Against Women

Act; noneconomic &

criminal statute; no

express JX

element; no

Congressional

findings (maybe not

enough)

Thomas:

substantial effect

doc shld be

abolished

Stevens/Souter/

Ginsburg:

Data was produced

by Cong & was

sufficient –

formalism criticized

US Corps of

Eng

(2001)

Rehnquist: Ponds

not in open water

are not a part of the

channels; Cong did

not clearly intend

fed to include ponds

Stevens/Souter/

Ginsburg:

More than

commerce power at

stake in question,

comm included in

birdwatching &

hunting; should

include natural

resources

Guillen

(2001)

Thomas: state

highway info

protected from

discovery in civil

cases b/c part of

channels

New York

(1992)

O’Connor:

Cannot simply

compel states

to eliminate

radioactive

waste products;

bad direction to

states;

commandeer

state

decisions not

accepted – do

through

spending power

even if states

have accepted

the regs (no

choices given

to state)

White/

Blackmun/

Stevens:

Seriousness of

the public

problem, irony

of ignoring state

desires, fed is

involved in

other state

areas

(railroads,

prisons, et al)

Printz

(1997)

Scalia:

Fed govt may

not compel the

states to enact

or administer a

federal

regulatory

program – no

issuing of

directives or

command of

state officers or

those within to

administer a

program

Thomas:

Return to comm

clause roots is

needed, 2nd

amd mention

St/Sout/Gins/

Breyer:

Threat of a

national

emergency,

10th doesn‟t

limit delegated

powers;

historical

arguments that

taxes were

collected by

state agents

Condon

(2000)

Rehnquist:

Allow banning

of state info

distribution

(1) applies to

more than just

the states –

also applies to

private entities

(2) regs not as

affirmative act

but as owners

of database info

(3) not a

required action

but required

prohibition

Specifically 10th

Amendment Limits &

Guideposts (only when state actor)

(1) Condition is for

the general welfare

with extensive

deference to

Congress

(2) unambiguous –

st must now what it‟s

losing for funds

(3) related to fed

interest through

program or project –

Reasonable

Relation Test

(4) not coercive – ex

5% of highway funds

was not, full effect

EC Knight

Carter Coal

TX Railway

ALA Schecter

Reference to

Lopez/Gonz

NLRB (1937)

Wickard (1942)

Katzenbach (1964)

Ht of ATL (1964)

Hodel (1981)

Perez (1971)Greater

Power

Less

Power

(1) Why created - what‟s regulated?, (2)

Enumerated/Implied, (3) If Implied then

Necessary/Proper - Commerce

Commandeering

Affirmative

actions needed

by state govt

State capacities

Gonzalez

(2005)

O’Connor: Broad

Regulatory

Scheme, places

the issue into

aggregate analysis

Broad

Regulatory

Scheme

(Gonzalez)

Requiring state

legislation

Separation of Powers

Federal Executive Powers

Youngstown Framework:

Jackson’s Concurrence

Acting w/ Express

Congressional

Authorization

Inaction by Congress OR

Conflicting

Congressional Action

Inaction by Congress OR

Conflicting

Congressional Action

(a) either absence of

Congressional grant/denial

(b) OR acting on independent

presidential responsibility

(c) Cong inertia, indifference

or acquiescence

(d) Doesn‟t necessarily require

a lawmaking process, may

just have leg actions

Article II, Sec. 1 = “Executive powers;” Art. II, Sec. 3 = “Take Care Clause”

“Highest Ebb”

Debatable

“Lowest Ebb”

(a) maximum power

(b) strongest

presumptions in favor of

Congress

(c) burden of persuasion

falls on attacking party

(a) Pres takes measure

that is incompatible with

express OR implied will of

Congress

(b) maintained ONLY IF

able to disable Congress

from decision

Example

Youngstown

(1952)

Frankfurter &

Jackson Opinions –

Pres decision is

covered by statute so

in 3rd

and NOT a war

power – FF says

clear indication of C

Vinson/Reed:

In Korean War, need

to defer to Pres war

powers – “take care

clause”

Executive

Privilege

Nixon Case:

Arguments

regarding

Executive Priv.

Justiciability:Baker = textually

committed, not

enough that

intra-branch

dispute, regular

course of

criminal

proceeding so w/

in Art. III court

power

Separation of

Powers:Job of the jud br

to “say what the

law is” - not

shared w/ another

branch – must

have claim of:

(a) military,

diplomatic, or

sensitive national

security secrets

for deference

(b) evaluate

balance of need

of judicial process

over exec priv

Factors/

Triggers:- Mindfulness

of burdens on

the executive

branch

- public policy

- whether

criminal or

civil case

Line Item Veto

Clinton Case:

2 other branches

agree but court

finds invalid

Nature of

Power:Specific

regulations on

how and why

Pres could veto

spending section

of bill post-

passage

Problem:Not in line with the

“finely wrought

procedures of the

lawmaking

process in the

Constitution” -

must have an

amendment if

want this power;

even though

following the law,

still not acceptable

Dissent:

Different

form of

government

nowadays,

court has

interpreted

broadly the

ideas of leg

and exec,

no need to

referee

dispute

Foreign Affairs

Curtis

Wright

(1936):No inherent

powers in

states for

foreign

relations –

solely federal

concern; Pres

“sole organ” -

Pres is better

branch suited

for such

determinations

Numerous

challenges – not

how Const looks

Dames &

Moore

(1981):Executive

Agreements:

Place in bucket

1 b/c Cong has

approved

through statute

in Foreign

Claims

Settlement

Comm, exec

agreement

permitted

Must tie the

Presidential action

being challenged to a

statute

Evaluate the

constitutionality of the

statute in question w/

strong deference to

Congress

War Powers

Resolution:Inaction by

Congress may

prevent Pres

from being

able to act;

often

dismissed on

standing or

political

question

doctrines

Cheney Case:

Permitted –

Criminal v. Civil

War on Terror

AUMF:“all necessary and

appropriate force

against nations,

organizations, or

persons associated

with Sept 11”

US can detain for duration of hostilities of

conflict if engaged in armed against US

Process still allowed for US CITIZENS –

challenge status as enemy-combatant

Writ of habeas corpus is allowed for all

citizens

Standard of Review – “some evidence” v.

private interest of unjust detainment

Must be provided: (a) notice of fact-basis of

classification, (b) fair opportunity to rebut in

front of neutral decision maker

Non-Detention

Act:“No citizen shall be

imprisoned or

otherwise detained

by US except

pursuant to act of

Congress” - after

WWII det of JA

O’Connor:

Within statute but

not in line with due

process concerns

for citizens

Ginsburg/Souter:

Not within the

statute –

Korematzu

Stevens/Scalia

Dissent:Cons Suspension Clause

(I.9.2) says this is illegal

for US citizens

Thomas Dissent:This is war – get over it;

this is an executive

power protected by

Const

DTT of Non-

Citizens:Order for military

tribunals being

established and rules of

procedure for

interrogation/trial

Hamdi (2004)

Military Commissions

Civilian in

times of

martial law

Temporary

military govt

“incident to

conduct of

war”

Hamdan (2006)

UCMJ:Court Martial

instructions

Stevens Maj:Not in line with the

Geneva

convention and

the court is not

permissible –

captured in conflict

and tried in

conflict, not miles

away

Br/Ken/Sout:

No blank check for

the pres

Scalia/Al/Th:

JX was given by

congress through

DTT

Thomas

Dissent:Exec should have

expansive power

in FP, in bucket 1

in this case

Alito Dis:

Geneva Art 3

satisfied

Separation of Powers

Administrative Delegation

Non-Delegation Doctrine

Art. I, Sec. 1 = “All Leg”

Principle that Congress may not delegate its legislative power to

administrative agencies – generally eroded to standards of delegation

Appointment & Removal

Powers

ALA Schechter:No restraint on

President‟s legislative

choices – no

standards for trade,

industry, or activity –

unfettered discretion

for enacting laws by

President so invalid

Standards

Necessary for

Discretionary

Choices Made by

Executive Branch

Intell. Principle:

Criteria to Guide

Agency‟s

Discretion is

Necessary;

Agency cannot

make policy

decision, but may

use benchmarks

Panama Refining

(1935):HOT OIL –

Regulation of whole

economy based on 1

standard (“unfair

competition”);

President cannot

have choice of what

is injurious or “unfair

competition” - cannot

make these choices

and act accordingly,

must be left to

legislature

NO other law has

been determined

to be invalid based

on delegation

Whitman

Trucking (2005):“Necessary to protect

the public health [air

standards]” -

“determinable

standard” is not

necessary even for

Broad Regulatory

Schemes – use of

scientific data

allowed

Has Cong delegated a leg power

inappropriately?

Legislative

Veto as Check =

Unconstitutional,

Bicameralism

Chadha (1983):Efficiency alone will

not save an action;

House judiciary

comm tried to revoke

a hold on deportation

for Chadha;

Deemed legislative

and needed

legislative process

Dissent:

Leg Veto is useful

tool and has been

used throughout

statutes

Evaluate the

legislative nature

of the decision

Evaluate the

Framers‟ Intent

(limited indp role

for each branch)

Whether efficient

or not is

immaterial, must

protect through

sep of powers and

structure

Includes legislative

veto as uncon for

all agency rules

too, must have

bicameralism to

overturn exec

action

Principal

Officer

Inferior

Officer

Must be selected by

the President and

consented to by the

Senate

Appointments Clause, Art. II, Sec. 2, cl. 2 – President nominates w/ Advice &

Consent from Senate, but may vest power for inferior officers in President, Courts

of Law, or Heads of Departments

(1) appointed by

President alone, OR

(2) appointed by

heads of depts, OR

(3) appointed by the

judicary

No reservation of

removal by

Congress

permitted EXCEPT

through

impeachment

Subject to

removal by

higher executive

official (i.e.

removed by

Attorney General)

Statute only

provides certain,

limited, duties

(not policy making

and no

administrative

duties outside

specific office)

Officer is limited

in jurisdiction –

examine through

scope off

jurisdiction

Limited tenure –

generally

“temporary” to

accomplish

specific task

Outside vesting is

granted Cong

deference but

need to evaluate

separation of

powers concerns –

no

“incongruous”

inter-branch

appointments

Principals may be

removed at will of

President, but

agency officers

generally must

have just cause –

measure is NOT

whether “purely

executive”

Must look to

whether removal

power restriction

impedes Pres

executive power to

execute laws – is

the burden

hampering ability

to control the

official?

If quasi-executive

and quasi-

legislative then

“good cause” is

permitted to

separate from full

executive control

over office

Interference in the

executive branch

functions?

Some means of

controlling the

actions of officer

are included –

then does not

violate sep of

powers

Generally Look

At:

(1) Incongruity

(2) Power Intrusion

(3) Power

Expansion

Scalia Dissent:

Any restriction on

the executive‟s

power should be

void and invalid;

good cause

restriction did so,

and so should not

be permitted

Morrison

Analysis