con law outline (fall)

7/29/2019 Con Law Outline (Fall)

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L516 Constitutional Law

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PRE-CONSTITUTIONThe Constitution cannot be understood unless we understand why we took up arms against the British in asuccessful revolution.

John DickensonMost reluctant to declare independence, and was author of olive branch petition. Declaration ofIndependence was unanimous was because people who disagreed, like John Dickenson, stayed home to notembarrass the movement. He also immediately went out and raised a regiment to fight for the continentalcongress.

Parliament had laid duties (tariffs) on glass and paper. Dickenson said that an external tax created byparliament is valid as parliament has a right as sovereign to lay duties to regulate commerce/mercantilisttrade. He says, however, that an internal tax directly on the people is taking property and invalid.

Parliament says well, if we cant tax you, then we can increase the duties and get the money anyways! Thisis where Dickensons argument comes in. He says that duties can be laid but not to solely raise revenue. Hesays the nature of the thingnot what you call itis what it is (cant be pretextual)

He says that the purpose of a tax is to raise revenue, while the purpose of the duty is to regulate behavior.Colonists believed that the parliament was deeply corrupted and was lying about what they were doing.

James Otis' SpeechJames Otis speech resonated with people of all classes, in that it articulated something they hadnt reallybeen able to put into words. His letter sets the stage for the revolution.

He also uses check and balance for the first time as far as we know. Also, this is the only revolution foughtfor a legal causeit was the lawyers who took up arms.

James Otis explained the sources of colonists rights: God, natural laws, common law, and parliamentaryacts. He also spoke out against the Writs of Assistance (general search and seizure, did not need probablecause) turning point to focus Americans on their rights as Englishmen.

He said that law is the legitimating mechanism of a nation. Permanent legal principles that allow someone tohave authority over someone else. Liberty is a communitys right to rule itself. Consent only comes throughrepresentation in Parliament. Slavery is when property (taxes) are taken away w/o consent.

Declaration of IndependenceThe Declaration of Independence is a legal document in two senses: Its an international legal document, anda british legal document, as its made in the form of a traditional english petition to the king.

First is a legal , asserting that they would become independent under international law. Only subjects tointernational law at the time were sovereign states; colonies had no standing. The declaration ofindependence was asking the international community to acknowledge them as a new legal entity. Jefferson

wisely puts this first, almost as a threshold issue. Dutch were the first to give recognition by lowering itscolors in respect to an American ship passing by.

The declaration sets out the ultimate purpose of man, then explains that government flows from thatpurpose, not the other way around.

Up until the time of the declaration, the revolution had been fought on legal terms. The declaration also isbased on legal terms. So the next challenge was to create a structure for government based on these legalarguments.


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Articles of ConfederationStarts out by establishing sovereignty of the states, rather than the people centric sovereignty of theconstitution. It says that the union would be perpetual, and secession was not thought; they were in it for thelong haul.

Most of the powers given to the united states are foreign, so it existed internationally as an entity, butdomestically, it might not have been a single entity.

There was no office of the president, rather it was a committee with a presiding officer, and congress had alegislative and judicial and executive function. Also there was a lot of turnover in the system, short terms, etc.made it very inefficient.

Northwest OrdinanceWhile the constitutional convention met in Philadelphia, the confederation congress continued to meet inNY, passing their greatest triumph, the NW ordinance. It was re-passed by first congress under USconstitution.

This document established the govt over the NW territory. All the states gave up their claims to the US in

the confederation congress so the confederation congress had to pass laws regulating the territory. 5 statesformed from the NW territory were subject to the ordinance.

NW ordinance setup how territories could join the nation. And, most important thing was that when newstates joined they would be equal to the other states. Eastern states knew that eventually they would beoutnumbered, which southern states feared because of their hold on slavery.

It also had a kind of bill of rights attached to the inhabitants of the states: Article I - Freedom of worship;Article II - common law rights; Article III - religion had to be encouraged because a republic cannot lastunless the people possess a modicum of virtue; and Article VI - no slavery, which testifies to the fact that theframers wanted slavery to be geographically limited.


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THE CONSTITUTIONArticle I - Sets out legislative powers; congress is limited to the powers enumerated.

Article II - Executive duties/powers; powers are not enumerated.

Article III - Judicial branch; Supreme Court is the only court required by law.

Core Powers - Each branch has central core functions that the other branches are not permitted to impede. If acore function is invaded, the branch being invaded has a right to action.

Partial Agency - Gives each branch some limited power in the other branches (e.g. presidential veto). Prevents onebranch from becoming more powerful than any one other branch. Protects the core functions of each branch.

Constitutional ConventionDifferent interests were presented. Some wanted strong states rights, some wanted to do away with thearticles of confederation. All votes were by state, but needed a quorum of the state delegation to have a votefor your state. Hamilton was left for NY in the middle because other anti-federalists left. Out of the 50 whostarted, 35 stayed through to the end.

There was a vote between the VA and NJ plans, and the VA plan won, but after resolutions, the two planswere truly melded together/compromised. Most say that they got the best of both plans.

Had a hard time figuring out how to elect the president. Didnt want popular vote, since that leads toplebiscitary tyranny. Thats why they came up with the electoral college system (first was bad, changed by12th amendment to elect president and VP together).

Had a question about separate federal judiciary or just a supreme court. They let congress decide, and now wehave a separate federal judiciary.

Thoughts on Government

Great ideas found in this document written by Adams: two houses of legislature; the reasongovernment is instituted is happiness of people; independent judiciary; an executive veto on legislature;

and judges appointed by governor with advise and consent of council.

Why should judges have less checks and more independence than other branches? Judges should bemore learned/experienced, exemplary moral, patience, calmness, coolness. The framers had great trustin the character of judges in how they would exercise their power, but were distrustful of legislatures,etc. The question is whether their optimism was well founded based on what has happened since.

Virginia Plan

Presented first. (He who sets the agenda sets the conclusion). This plan goes right for a nationalgovernment, getting rid of the articles of confederation. Its a larger state plan with a strong nationalgovernment (e.g. it says the national government could veto state laws). A proposed council of revisionwould meet to determine whether or not to veto acts of the legislature, and the council would be

formed by the executive and judges.

New Jersey Plan

Proposed to protect the smaller states; three fifths rule was proposed; independent judiciary/supremecourt established.

Makes the Constitution the supreme law of the land. Also, local judiciary would take an oath to enforcethe constitution. This was rather than making the vetoing of state laws (Virginia plan) a political issue.


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This concept is found in the supremacy clause of article VI of the constitution.

All agreed on national govt having: direct power to tax, control commerce, ind. judiciary, and able toform an army.

Resolution of Congress of the Confederation

Once constitution went back to confederation congress in NY, they unanimously supported thedocument and submitted it to the states. The confederation congress, no matter what the delegates haddone, unanimously ratified the end of the confederation and the going forward with the constitution.

Ratification of ConstitutionRather than go to state legislatures, they called for a popular vote from the people to call for an election for aconvention in each state to determine to ratify (which is what John Adams did with the Mass. constitution).

Whats the legal significance of going to the people of the several states rather than the state legislatures??When the people of the several states ratify the federal constitution, they ipso facto (by the act) change theirstates constitutions, because some powers were transferred to the federal government. Only the people hadthe power to do this, not the legislatures, since legislatures were a product of the state constitutions. legallyspeaking, only the people had the power to do this.

The Federalist Papers

Federalist 10 (Madison)

Anti-federalists argued that the new government was focusing too much power in the center,because it cannot be a republic because republics by definition must be small. A large republicangovt would not be responsive to the people, so therefore the best we can hope for is a looseconfederation of states.

Madison starts by talking about faction.

Federalist 10 shows how much 18th century Calvinism was influencing the framers. Unlike theFrench who thought that civilization was the restraint on the freedoms of man to be truly

virtuous. The framers say that the cause of vice is innate in the person; vice is within people. Theclassical authors agreed that passions within are not necessarily rational or logical.

Federalist 10 is how to structure the governing mechanism based on the self-interest of people,even if they arent entirely self-interested. Goal is to control the effects of the sinful nature ofman, and give opportunity to the benevolent good aspects of man.


Montesquieu wrote the spirit of the laws praising the British constitution because it had aseparation of powers. Because the branches were so separate, and one couldnt take over theother, that prevented a constellation of forces that could lead the government to becometyrannical.

The anti-federalists argued that the overlapping of the branches of government could lead to thebranches taking over each other.

Federalist 10 + 47 shows how the structure of government can be used to preserve liberty.


Here Madison does something even more sophisticated, he harnesses passions to pit themagainst each otherBut the great security against a gradual concentration of the several powersin the same department consists in giving to those who administer each department necessary


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constitutional means and personal motives to resist encroachments of the others. The provisionfor defenses must in this, as in all other cases, be made commensurate to the danger of attack.Ambition must be made to counteract ambition.

This argument is why the federalists didnt think we needed a bill of rights. The desire for onebecame so powerful though, that some wouldnt ratify without a promise to pass one later.

Why else didnt they think a bill of rights was necessary? Because of a basic rule of statutoryinterpretation: inclusio unius est exclusio alterius (the inclusion of one thing excludes all others).Fundamental rule of statutory interpretation. If you say X is not allowed, then everything non-Xis allowed. Essentially, the constitution is a document of enumerated powers (Article I, Section 8powers herein granted).

So they would say, we dont have the power to pass a law against religion, so you dont need a billof rights. The reason you have bills of rights in state constitutions is because they dont haveenumerated powers. If your legislature can legislate on everything, then you need a bill of rightsto create exceptions.

On top of this, they said it was dangerous to have this list of rights, because the congress wouldthen operate up to the limits of those listed rights. Congress will do everything else up to those

listed powers. The ninth amendment was added to the bill of rights to say inclusio unius estexclusio alterius wouldnt apply here, to attempt to prevent Congress from overreaching itspowers.

He also mentions that the society will be broken into so many parts that factions wont arise.

Separation of PowersThree mechanisms by which separation of powers is enforced: (1) partial agency; (2) self-restraint (Marbury);and (3) non-compliance.


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THE SUPREME COURTAS COURT

Marbury v. MadisonThe Constitution is law, not just an organization of government. And is found in conflict with a later actpassed as law, so the court has to resolve the issues. This is why Marshall has to talk about the nature of the

law of the Constitution.

Why did Marshall have to argue for judicial review? Jefferson made the innovation, and was arguing for hispolitical agenda, that the court could not second guess what congress was doing. Marshall was defendingtraditional judicial review against this political argument of Jefferson.

Under Article III, what exceptions can Congress make to appellate jurisdiction? Congress cannot makeexceptions to appellate jurisdiction to expand original jurisdiction. The only exception would be to take awaythe Supreme Courts appellate jurisdiction in some areas, making the highest court to hear a case would be alower court. In fact, the judiciary act does this.

In short, Congress cant give the court more jurisdiction, but can take it away. So how is this a power grab bythe court? It isnt, it gives Congress a means to knock the Supreme Court out of hearing controversial casesaltogether.

So, Marshall did not invent judicial review, and did not grab for power. Its a very conservative and virtuebased opinion, as Marshall says his job is to say what the law is when it falls under his jurisdiction.

Issues of the Case

Though jurisdiction is normally discussed first, in this case its not because other issues needed to betackled: (1) does Marbury have a right to the commissions? and (2) If so, do the laws offer a remedy?then (3) is Marbury is entitled to the remedy that he wants?

The third issue depends on (a) the nature of the writ (remedy was writ of mandamus to make thepresident give the appointment), and (b) the power of the court.

First question was: Were madisons acts legally examinable? Was madison under a legal duty? Yes, we

found he was.

Second question is now: Can we issue an order to an executive official to do something? Is that aninvasion of the executive branch?

Article III, Section 2

1 Judicial power shall extend to all cases, in law and equity. Cases affecting ambassadors, otherpublic ministers and consuls (In Personum Jurisdiction), admiralty and maritime cases (Subject MatterJurisdiction).

Controversies with U.S. as a party, between states, between citizens of different states, citizens of thesame states claiming lands, foreign states, etc. In Personum Jurisdiction

2 Refers back to list of cases, cases affecting ambassadors, etc. are given to Supreme Court underoriginal jurisdiction, and in all others ( listed prior), they have appellate jurisdiction.

Original & Appellate Jurisdiction

Last sentence of 13 of the Judiciary Act of 1789 includes mandamus powers under the appellatejurisdiction of the court, not original. And appellate jurisdiction revises or corrects the proceedings of alower court.

In Marbury, Marshall explains that even though a writ of mandamus may be issued to a court, and in


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that sense would be appellate jurisdiction, when it is issued to direct the delivery of the commissionwould be original jurisdiction. As a result, the Judiciary Act of 1789 attempted to expand originaljurisdiction.

But can the legislature expand the original jurisdiction of the Supreme Court? If Congress can changethe jurisdiction of the supreme court, then much of the wording of the constitution is just a waste ofwords, since the congress can change it at any time. This references a rule of statutory interpretation,that extra wordiness, mere surplasage, is not really allow. All words in a statute should mean something.So a construction of a statute that renders these words useless cant be the right construction.

Juticiability DoctrinesAs a court, the Supreme Court is subject to justiciability doctrines (what the court is competent to decide):Finality of Decisions, No Advisory Opinions, Political Question, Standing, Ripeness, and Mootness.

Limits on Judicial Review

The Fears at the Founding

Anti-Federalists

Brutus hit the papers first, and his arguments had some traction, which is why Hamiltonresponded in Fed. 78. Brutus thought that the courts would be too powerful. We can see thatBrutus understands pretty well how a court acts, and how a statue is interpreted.

Federalists Papers 78

Where in 78 has Hamilton disagreed with Brutus? He thinks that the judiciary is the weakest ofthe three branches, and it is more likely to be overwhelmed by the other two, because it doesntcontrol the sword (executive power) or the purse (legislative power). He believes that thelegislature operates by will (passions) and the executive operates by force (power, troops,enforcement), but that the judiciary only operates byjudgment.

Judges serve under good behavior (doesnt mean nice guy), which is a term of artit meantyou cannot be fired. This is preferred as if their salaries could be reduced, they would bebeholden to the other branches.

Hamilton agrees that the judiciary is independent, and that in the main, the normal checks andbalances do not apply to the judiciary. Amendments would be hard to get, and impeachment isalso difficult, and appointment power was only granted to prevent appointment of cronies. Hebelieves they haveto be independent because theyre so weak.

Brutus may ask, and did, however, what makes these people free of the passions that the otherbranches have?? Hamilton responds that judges wont be so dangerous because the very craft ofjudging limits the judge. Its a self limiting type of function.

Self-Regulation of Judges (What Binds Judges?)

These principles create a self-enforcing craft that is self-binding, if adhered to. The mechanismto check these principles is the appellate process, as theyre probably checking these principlesagainst the lower courts judgment.

(1) Law of Statutes (or regulations) all kinds of treatises, etc. why do courts pay attention tothese? because they are boundby them.

(2) Law of the Court (stare decisis) in most cases precedent binds; its very rare that it does


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not. there are all kinds of mechanisms as to how to follow or distinguish precedent. For both ofthese two, rather than judging their will, theyre looking at whats out there and judging on it

(3) Law of Process civil procedure rules limiting what the court can hear or what it can do

(4) Law of the Subject (doctrine) very complex areas of law and rules of the substance thatbind the court to decide a particular case before it

(5) Law of the Case (res judicata) cant change a case thats been decided; the law of the caseis binding on those parties

(6) Law of the Judge (judicial ethics) recusing from cases youre too close to; its an internalrestraint on what judges can do. is he limited to the written law? or unwritten law as well?

(7) Law of Law (principle of legality) courts will study a law to see if it meets minimal aspectsof what it makes binding law. It cant be vague, or its called absurd. law has certain internalelements that make it what it is, and the judge will enforce that.

(8) Law of Reason - in the Anglo-American system of justice, judges have to give reasons. Theyhave to be completely (or at least pretend to be) transparent. The judge has to put themselves outthere and show they have reasoned their way; congress doesnt have to do this. Courts haveto

justify themselves, which is an extraordinary limitation.

(9) Law of the Constitution underlying basis of our system, always a background principleeven in other topics (1st amendment and libel, for example)

Modern Court's View of Itself

In Cooper v. Aaron, Justice Burger says you are bound by the Constitution because we say so. Burgersays the Constitution is what we say it is, while Marshall says that the Constitution is outside himself. Isthis different from Marbury or not? There is a subtle difference, but its significant. In this case,uncharacteristically, each justice signed the opinion to give it more force.

Congress and the Court

Writ of Habeas Corpus

Habeas Corpus is a powerful, ancient, and precious right for Englishman. You cannot hold thebody of a prisoner absent a legal justification to do so, and they have a right to demand youexplain or produce the person held under his liberty.

If someone is in jail and thinks they are being held illegally, he files a Writ of Habeas Corpus andthat forces the government to give cause for why youre being held.

Pardon Power

The President has the power to pardon someone found guilty of a crime. This power is a corepower of the president, and cant be undermined or qualified by Congress.

Ex Parte McCardleThis case is significant as the entire reconstruction scheme hinged on how it would turn out.Also, it illustrates how the core powers of the three branches of government work together.

In Milligan, the court said it was unconstitutional to suspend habeas corpus or try a civilian inmilitary court if theres a civilian court operating. The Supreme Court had appellate jurisdictionat that time and could review denial of the writ.

In McCardle, Congress then changed the law and limited the Courts appellate jurisdiction


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during the case, which theyre allowed to do, to prevent them from reviewing writs of habeascorpus. The court then said they were bound by the law and couldnt review the denial of the writbecause they had no jurisdiction.

Congress removed appellate jurisdiction with regards habeus corpus relief prohibited under theact of 1867. He also says that if the legislature exercises a legitimate power, the court is notallowed to review, as a constitutional matter, what the congress had done. Congress exceptionpower is a partial agency power to check the court, and is meant to be defensive (per Madison inFederalist).

Three Kinds of Rights

There are three kinds of rights:

(1) Civil Rights legal rights to common law rights; rights of being part of the city/polity.rights to contract, right to labor, right to own property, right to sue and be sued, right tofollow a trade, etc. (rights of englishmen). this is what lincoln said was the minimum, thecompletion of the revolution.

(2) Political Rights separate from civil rights, and optionally given by the state.

(3) Social Rights social relationships. marriage is regulated as a social relationship. you

dont have the right to marry anyone you please.

Pennsylvannia v. Wheeling Bridge

Congress has the power to regulate internal nagivable waters. The court said the bridge,authorized by the state, was a nuisance to travel on the water. So the congress declares that thebridge is not a nuisance. The court says congress wasnt interfering with the decision, but waschanging the underlying law, which it has the power to do. So, the rule is, if the underlying law ischanged, the court has to follow it.

U.S. v. Klein

Issues in Klein are if Congress can limit Presidential Pardon power, and whether a pardon can beused in evidence as an affirmation of guilt.

The court says that congress cant tell the president who he can pardon. Pardon power is ajudicial power of the president, he determines the legal position/status of a person when hepardons. Also, the pardon cant be used in evidence as a pardon completely eliminates the actsdone by the person as if they never happened.

[Exam] How could the congress written the law to avoid the decision in Klein? (good examquestion). They could have repealed the original actthey cant keep the original act and make itcome out their way. Theyd have to remove their right to recover property under the underlyinglaw. The motive to do it doesnt matter, so someone couldnt say that the repeal was just pretext.

U.S. v. Sioux Nation

Treaty in 1868, land given to Sioux, and no changes would be made without approval of 3/4 of

adult males. There was a change with only 10% of the Sioux, causing them to lose land. Theywerent allowed to recover in the court in 1942. In 1946 they filed again, and they said they wereentitled to review, but couldnt because of 1942 decision. Congress then passes an act saying theyshould have de novo review, and the court should hear he case again. Congress could have justgiven them money, but they passed it offto the courts instead.

The court holds that itd be wrong for congress to prescribe a rule of decision in an ongoing case,or to act as an appellate body and tell the court to hear something again. The court said theywerent re-opening the case, but were rather waiving the right to have the case dismissed ongrounds of res judicata (they could do that because the US was the defendant in the case). Res


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judicata is a procedural right of a winning party, not something the court would do sua sponte.

Dissenting, Rehnquist says that the law says to the court of claims to hear the case again,directing the court to hear a close case. It wasnt just waiving res judicata like Blackmun said,rather, they were telling the court to do something.

A.I.G. v. IranIranian hostage crises where Iran seizes American assets. American companies want to sue Iran,so they attach/seize the assets of Iran in America to give them quasi in rem jurisdiction. PresidentCarter blocked removal of assets.

The U.S. and Iran reached an agreement, which required the U.S. to terminate the legalproceedings, so the president by executive order quashes the legal proceedings, settling theclaims.

The American companies lost out on their attachments, so they sue saying you cant take awayour rights and duties by executive order, because that would undermine the court.

The court holds that the president does have the power to suspend claims of americans against aforeign sovereign. The president has the power to enter into agreements and treaties with foreign

governments, and in this case, finalizing the agreement modified the law. Can those agreementsmodify domestic law? In this case, yes.

Memorial Hospital v. Heckler

Hospital sues for unpaid medical cost for a patient and while the case was on appeal (afterjudgment for the hospital was found in the trial court), Congress enacted an act that disallowedthe reimbursement. Trial court held Congress could not change the law in an ongoing case.

The Supreme Court said that courts are obligated to apply law (otherwise valid) as they find it atthe time of final judgment, including, when a case is on review, the time of appellate judgment.Until appellate rights are exhausted, even an otherwise valid judgment may be negated by

supervening legislation.

Spotted Owl Cases (Robertson v. Seattle Audobon)

In this case the question is whether congress instructs courts to reach a particular resultsidentified by caption and file number, which was actually in the law.

Congress not only legislated a forest management plan, but also directed the courts to find thatthat plan satisfied the environmental laws underlying the ongoing litigation.

Congress can only modify the underlying law but cannot prescribe a rule of decision in aparticular way. Here, the court found that Congress did not prescribe an outcome but onlychanged the underlying law. The caption and file number of the ongoing case was only used forconvenience to reference the sections of the statute at issue.

Plaut v. Spendthrift Farm

An untimely claim (past statute of limitations) was filed and the party lost the case. Legislationwas passed saying cases should be re-opened.

The court (Scalia) holds that Congress may pass acts that affects decisions that are pending (evenpending appeal), but not those that are already decided, so they cant be re-opened having alreadypassed the statute of limitations. Scalia reinstates for the first time since Klein, that the court


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cannot be told a rule of decision. The only case in his way is Sioux, so he tries to limit that.

Scalia says that because the judicial power is one to render dispositive judgments, the Federallaw effects a clear violation of separation-of-powers. The statute was unconstitutional becauseit overturned a Supreme Court decision and gave relief to a party that the Court had said wasentitled to none.

This case is important because the court in Sioux and Robertson (Spotted Owl) gave congresswide berth to change law, and in 1995, the court gets its back up, and starts to draw some lineswhere congress had had fairly wide discretion in the past.

Dickerson v. United States

Congress tried to overrule Miranda. The court disagreed, saying that the decision in Mirandawas a Constitutional one and therefore cannot be overruled by Congress.

The miranda rule was fundamentally that confessions have to be voluntary, and that this is howconfessions will be voluntary. Congress then passes a law saying that the court just has todetermine if a confession was voluntary, and the court says no, the decision was a constitutionaldecision regulating the executive powers.

Pledge Protection Act

Is the Pledge Protection Act constitutional? [Final exam] usually ask two questions: one is astandard fact kind of question, another is evaluativeis the pledge protection act constitutionalor not?

Pledge Protection Act of 2003: No court created by Act of Congress shall have any jurisdiction,and the Supreme Court shall have no appellate jurisdiction, to hear or decide any questionpertaining to the interpretation of, or the validity under the Constitution of, the Pledge ofAllegiance, as defined in section 4 of title 4, or its recitation.

Inferior Courts

Congress under Article I has the power to establish tribunals inferior to the Supreme Court. Thisis sort of a partial agency interaction between Congress and the Supreme Court, as Congresscreates the lower courts.

The President and the Court

When is the president justified in not complying with the decisions of the court? Presidential powershave widened, but they havent yet said that they just wont follow a supreme court decree. Non-compliance is expanding in the executive branch with regards to congress, but not with regards to thecourt yet.

If the President does not support decisions of the Court, he cannot overrule their decision, but he cantake action that might remedy the outcome that is within his Constitutionally granted power (e.g.granting of a pardon). A few specific examples are below.

Jefferson

Can the president prevent the execution of laws passed by congress? Jefferson pardoned printerswho were put in jail, and congress paid back the fines. They checked the court, but through theirown powers, he didnt avoid enforcing the law.

Jackson

Jackson didnt like the banks, but the court said they were constitutional. So Jackson said yeah


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sure, but we dont have to renew its charter, so congress didnt.

Lincoln

Lincoln says that Dred Scott didnt get his freedom, and that we cant interfere with that becauseof res judicata. Secondly, Lincoln said that the courts dicta saying that slavery cant be regulatedby congress isnt binding, and that congress can just pass another law.

Roosevelt

In gold clause cases, FDR expected the court to strike down acts, and the court upheld thelegislation, to his surprise. FDR had drafted an executive decree if the decision had come downdifferently.

Other Limits on the Court (The Amending Process)

The amending process serves as another limit on the judicial review of the Supreme Court, as theConstitution can be changed which would change how the Court decides cases (similar to changingunderlying law).

Limits on the Supreme Court: Political Questions[Outline] This falls under the self-restraint check on the court. The court can have jurisdiction over a case,but refrain from judging.

The political question doctrine (or doctrine of non-justiciability) was first mentioned in Marbury v. Madison,where Marshall says that where the president has discretion, the courts cant intervene.

Whats an example of a power that weve studied so far thats non-justiciable? The pardon power is anexample, as you cant do anything about it.

The political question doctrine means that the political process is the check. Not only the electoral process(throw the bums out!), but that the political branches are the ones who decide the issues, such as foreignaffairs issues. Or where the president orders soldiers into battle and they try to say that the war isnt legal, thecourt says go to congress.

Guarantee Clause

The Constitution guarantees States: (1) popular rule; (2) a republican form of government (nomonarch); and (3) rule of law. This allows states wide latitude to innovate, so long as they have thesethree basic elements.

In Luther v. Borden and in Colgrove v. Green the Supreme Court has said that enforcement of theGuarantee Clause is a political question and is non-justiciable. After Baker v. Carr, the GuaranteeClause is not a political question anymore.

Luther v. Borden

RI revolution, which govt is legit, court says its not up to them.

Colgrove v. Green

The court holds that apportionment is a political question.

Baker v. Carr

Before Baker v. Carr, reapportionment was determined to be a political question becauselegislatures were supposed to figure out how they were to be elected.


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Frankfurter argued that the court shouldnt become an administrative body, drawing lines andenforcing rights around the country. Brennan believes that they should become that kind of quasi-administrative body.

This case provides a good summary of the political question cases, even though the opiniondramatically changes how political questions are handled. Political question cases are foundwhere: (1) there is a textually demonstrable constitutional commitment of the issue to acoordinate political department (veto, impeachment); OR (2) a lack of a judicially discoverableand manageable standards for resolving it (dissent focuses onto this point); OR (3) theimpossibility of deciding without an initial policy determination of a kind clearly for nonjudicialdiscretion (foreign affairs); OR (4) the impossibility of a courts undertaking independentresolution without expressing lack of the respect due coordinate branches of government (askingfor Nixon tapes, papers in the executive branch); OR (5) an unusual need for unquestioningadherence to a political decision already made; OR (6) the potentiality of embarrassment frommultifarious pronouncements by various departments on one question. If any of these arefound, then thats a reason for the court to stay out of the case.

Brennan gets out from under the doctrine because he isnt looking at whether a political questionis present, but rather that the political question cant be completely removed.

House of Representatives (Seating Qualifications ofLegislators)

Powell v. McCormack

Powell elected from Harlem for 12 consecutive terms. Became somewhat corrupt, rancommittees with an iron fist, had relatives put on congressional payroll, took flights to theBahamas on government pay, etc. So a committee was held to determine what to do. The Houserefused to seat him, but not on the grounds of the qualifications in the Constitution.

The Warren court said that the issue was justiciable, as house is the judge of the qualifications ofage, citizenship, and residency, but only to these qualifications. Its not a political question, butCongress does not have the power to alter the Constitutional qualifications of a member of

CongressWhen Powell tries to get his seniority back in another case, the House threatens non-compliance

with the supreme courts decision. The judge dismissed the claim because the House has theright to punish him.

Foreign Affairs

Goldwater v. Carter

Carter denounced the treaty with Taiwan, and Goldwater brings suit to say that the Senateshould have 2/3 vote to get out of treaty too. A Plurality of four on the court said that the senatedidnt have this right, and that its the a political question for the president to decide.

Trial of ImpeachmentNixon v. U. S.

Judge Nixon claims he wasnt tried before the Senate because he was tried before a committee.The question is whether the Senate has the sole power to determine how to try its cases.

[Rehnquist] The court holds that the issue is non-justiciable on both textual and prudentialgrounds because the plain meaning of the word sole is that the Senate alone has the authorityto determine how to try the case (its procedures).


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FEDERALISM

Supreme Court Reviewing State Court Judgments

Martin v. Hunter's Lessee

Here Justice Story is saying that the Supreme Court is at the top of the court system and says thatbecause the legislature has power to pass federal laws that remove some state sovereignty, thenanalogously the court can hear these cases as well.

It is the case then, not the court, that gives us jurisdictionthe Supreme Court can hear any casethat involves federal law.

Cohens v. Virginia

The judicial power extends to all cases arising under the Constitution or a law of the U.S., whomeverthe parties may be.

Congress and the States

Necessary and Proper ClauseClause was included to give Congress the power to organize the government; to carry into effect thepowers granted the government by the Constitution. Congress organizes the branches of thegovernment (procedure and structure of the courts, administrative agencies, etc.) through this clause.

The laws passed by Congress under this clause must promote an end (be a means to an end) that iswithin the Congress enumerated powers. There may be other ends (extraneous objectives) that comeout of the means of the legislation, but they do not render the act unconstitutional.

Congress cannot use this clause to enact any law that it deems reasonable, only laws that areappropriate for carrying into execution other powers.

McCulloch v. Maryland

McCulloch was the head of the Maryland branch of the national bank who refused to pay the taxpassed by Maryland. Suit was brought against him by Maryland, and it went all the way up to theSupreme Court.

Hamilton and Marshall had long argued that there are implied powers granted to Congress in theConstitution, but the Necessary and Proper clause was put in the Constitution because of theexperience under the Articles of Confederation where Congress was forbidden to use ancilliarypowers.

The Necessary and Proper clause also allowed the Congress to organize the government: thefederal judiciary, administrative offices under the executive branch. The clause is (1) a grantedpower to organize the other branches of government, and (2) it is an affirmation of the impliedpowers of Congress to effectuate its own enumerated powers. Congress is still limited by Article I

(powers "herein granted").

There are three points we should take from McCulloch: (1) there should be a plain connectionbetween the means and the ends; and (2) Congress shouldn't be allowed to use Necessary andProper clause pre-textually to get around some limit on its powers; and (3) States cannot regulatethose people outside of it's sovereign control (this is shown when Maryland taxes the bank, as thepeople of the other states aren't represented in Maryland).

For the most part, subsequent to McCulloch, particularly in the 20th century, the means and theends don't have to be very close, and they use the rational basis test (minimal scrutiny) to find


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out if the means are at least somewhat related to the ends.

U.S. v. Comstock

This case is troubling. Was there an extrinsic due process restraint such as due process orsomething in the bill of rights?

Does the necessary and proper clause allow congress to order the civil commitment of mentallyill and sexually violent federal prisoners beyond their federal prison term?

[ Justice Breyer, for the court] holds that yes, the congress does have that power. Merely aconvenient and logical extension of federal power over people who are already in federal custody.

What is a legitimate purpose of punishment? The majority presumes the purpose is safety of thepublic. Assuming the safety purpose, its logical under the necessary and proper clause to keepthem in custody. The extrinsic issue of how we know theyre dangerous isnt covered.

What test does justice Breyer use to determine the connection between the means and ends? Helooks at whether Congress could have reasonably concluded that it was necessary to do this. Thisis a speculative minimum rationality version of the rational basis test, not just minimumrationality.

[Concurrence by Kennedy and Alito] Kennedy wants the rational basis test to be at least asexacting as the rational basis test in the commerce clause. He believes there has to be objectivelya rational connection between the means chosen and the ends sought to be achieved. He wants itto be a demonstrated link in fact, based on empirical demonstration.

[Dissent by Thomas, joined in part by Scalia] Thomas and Scalia dissented, writing that thestatute intrudes on the states sovereign police powersthe necessary and proper clause cant beused to facilitate powers not enumerated in the Constitution.

Thomas says there needs to be a specific enumerated power for the necessary and proper clauseto be used (the majority was doing a kind of bootstrappinge.g. you put people in prison underthe N&P clause because of drug laws under the commerce clause, and then you can use N&Pagain to keep him in prison longer). If you keep using N&P to connect to N&P reasoning, youcan add layers and layers of regulation getting further from an enumerated power.

He wants a direct relationship, even if its a minimum scrutiny test, and a specific delegated end(enumerated power).

Qualifications for Legislators

U.S. Term Limits v. Thornton

Issue is whether a state can add qualifications to those already provided in the Constitution.

Both Stevens and Thomas agree that the State governments retained rights of sovereignty thatwere not already granted to Congress. They disagreed whether the ability to add qualifications tolegislators was reserved by the States.

Stevens first argues about when you know something is reserved, which he says is whether theState had the power in the first place--did the States have the power before ratification? Thomasdisagrees with the definition of reserved, and says if it's not strictly in the Constitution, then thepower is in the states. He says the states couldn't have had the power to add qualificationsbecause before 1787 there was no Congress to add qualifications to. Rather, Thomas sayswhatever you grant to Congress in the Constitution, the rest is left open (inclusio unius).

Stevens then argues that Congress intended the Constitution to be the exclusive source ofqualifications for members of Congress, thereby divesting the States of any power to add


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qualifications. So the question is whether the Framer's intended that the qualifications beexclusive to Congress?

Steven's third argument is that the House is to represent all the people of the United States. ButHouse reps are residents of States, and have to represent the people of a State, so this isn't a verygood argument.

The Commerce Clause

Elements of the Commerce Clause

Congress has the power to regulate commerce among the several states. The power is to (1)regulate. The thing regulated must be (2) commerce, and must be (3) among the several states--interstate.

Regulate

Regulate - To prescribe the rule by which commerce is to be governed. This is decided bycongress and is a political question; it is non-justiciable according to Marshall; it is not ajudicially determinable rule.

CommerceBuying, selling, and trafficking goods, and the incidents thereto, such as navigation. Itslimitation is in its definition. Instrumentalities of commerce, methods of commerce.

Qualitative

The thing itself is commercial and is in commerce. Quality of the thing, the nature ofthe thing (same as Marshalls definition above).

Quantitative

The thing itself is not commercial and not in commerce, but it effects commerce.Anything that has an effect on commerce is commerce, such as manufacturing.

Causal

Justice Cardozo wants a test to examine the immediacy of the effects of commercial

activity. If we just look at all effects of acts on commerce, then everything becomescommerce and under the commerce power. So Cardozo wants affects to be measured indegrees. This can overlap with with the quantitative approach, as something can havean immediate affect and substantial affect.

Jurisdictional

If a thing is transported in interstate traffic, it can be regulated, whether it iscommercial or not. The court has really never cut back on this power, and the court willnot scrutinize the purpose.

Necessary and Proper Clause

Someone may choose the qualitative definition of commerce, but then use N&P toreach some local activities that effect commerce. For the most part we will put this

aside, because the court and the academics on the court wrote mainly that this was acommerce power issue. Only in the last 5-10 years has the Supreme Court started tofocus on this clause as a way to solve Commerce Clause problems.

Among the States (Interstate)

Commercial intercourse, i.e. commerce that involves more state than one. It doesnt apply tointernal commerce, and touches the whole journey of the good, not just when it crosses aborder.

Qualitative Era (Before the New Deal)


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Gibbons v. Ogden

NY legislature grants a monopoly to Ogden operate steamboat in NY waters. Gibbons wantedto operate his steam boat in NY waters. Gibbons ferries were licensed under a federalnavigation act from 1793.

Issue is whether federal statute pre-empts the NY law granting a monopoly. Because thenavigation act would trump the NY monopoly under the supremacy clause, Ogden has toargue that commerce does not include navigation, so the navigation act was outsideCongress' powers to regulate.

Marshall says that commerce includes not just buying or selling, but the means to transportgoods. This is a textual argument--what is the intrinsic (what's in the word) definition ofcommerce? He holds that navigation is commerce.

Marshall says that "among the several states" is commerce involving more than one state--interstate, not just when the good crosses the state line, but is from the beginning of the tripto the end of the trip, and Congress can regulate the whole trip. That said, commercecompletely internal to a state is not interstate commerce.

Marshall says that the legal definition of "regulation" is determined by the Congress, and thenthe people--it's non-justiciable as it's a polical question. The court can determine if

something is commerce or not, or whether it's interstate, but the court cannot determinewhat's a real regulation and what's not.

There are two powers operating here as well, commerce clause and necessary and properclause. So there might be a trip thats wholly internal to a state that can be regulated throughthe Necessary and Proper clause to effectuate something under the Commerce clause, andthen we have to look at how close the means is to the ends.

Manufacturing v. Commerce (Direct v. Indirect Test)

U.S. v. E.C. Knight

EC Knight was buying out other sugar companies, and the US sued asking for aninjunction to stop the American Sugar Company from controlling 98% of the sugarmarket. Would the monopoly restrain trade in sugar? Not directly, but it would havethat effect (early instance of quantitative reasoning?).

The Supreme Court disagrees that the Antitrust act can regulate the manufacture ofgoods. The court makes a qualified distinction between manufacture and commerce.Manufacturing is transforming raw materials into a good, and then shipping itsomewhere is commerce.

String of justices then decide that Congress' power is qualitative (limited) to what iscommerce. If this distinction was gone, then the States would be stripped of theirpolice powers to regulate their own economies and manufacturing in their states.

Substantial Economic Effects Test

Shreveport Case

Railroad in Texas was shipping within the state and between Texas and Louisiana, andcharged a lower rate for shipping within Texas than to Louisiana.

Trip from Houston to Shreveport is regulated by the Interstate Commerce Commission(ICC), but the trips within Texas was not. The ICC tells the railroad to raise the rateswithin Texas to make the rates consistent.

Sherman Anti-trust Act was designed to maintain competition. ICC on the other handwanted all rates to be the same, to prevent competition among railroad companies.

Can regulate totally internal commerce because of its effect on external commerce:This is not to say that Congress possesses the authority to regulate the internalcommerce of a State, as such, but that it does possess the power to foster and protect


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interstate commerce, and to take all measures necessary or appropriate to that end,although interstate transactions of interstate carriers may thereby be controlled."

Stream of Commerce Test

Swift & Co. v. U.S.

This case concerned price fixing by meat dealers. The court ( Justice Holmes) stated

that the Sherman Anti-trust Act applied to this practice because the cattle for saleaffected the "stream of commerce". They were sent from one state to another for sale inthe destination state.

Cattle were coming in from all over to the Chicago yards, and then butchered into meatand sold everywhere else. It sounds like manufacturing, but Justice Holmes says theyare in the stream of commerce.

Stream of commerce is a qualitative doctrine, as once something is injected into thestream, it remains in commerce until it reaches its final destination. It may be afiction, and be a way to expand commerce power without having to go to thequantitative rationale.

Swift is an expansion of the qualitative rationale for stream of commerce, for thingsthat dont get transformed in a substantial way.

National Police Regulation

Champion v. Ames

Transport of lottery tickets was regulated by prohibiting the importation or transport oflottery tickets. The purpose of the act was to protect the people against the pestilenceof lotteries which is a police power purpose, which Congress does not have, as it wasleft to the states (to regulate health, welfare, morals, and safety of the people). Eventhough the federal government doesnt have police power, Justice Harlan compares thelottery tickets to diseased cattle, which can be kept offtrains to prevent others frombeing harmed.

What about the means? The means was to prohibit the trafficking of tickets. JusticeFuller says the tickets are just like a contract, but Harlan says they have a value, and are

then included in commerce[The cases] show that commerce among the Statesembraces navigation, intercourse, communication, traffic, the transit of persons, andthe transmission of messages by telegraph.

This case begins to open up the idea that if the means are within Congress power, wewill not look at the purpose to determine whether it is constitutional. Here, Fuller istaking a quantitative position, as he believes both the ends and the means must beconstitutional.

This case is the basis of many future acts, such as the Pure Food and Drug Act(Hipolite Egg), and adds a third element to our discussion of the commerce clause, thejurisdictional element. It also shows that regulation can be prohibition.

Hipolite Egg v. U.S.

Preserved eggs were transported across state lines, and once at their destination (wherethe owner argued they left interstate commerce), they were confiscated under the PureFood and Drugs Act of 1906 because of a label that was missing information.

The court held that Congress had the power to regulate commerce, and thereforeproperty that is an "outlaw" to commerce can also be affected (e.g. something that isbanned). The court holds that Congress can prevent certain items from enteringinterstate commerce.

Hoke v. U.S.

This case dealt with a Madam who was importing girls for prostitution. In this case the


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court upheld the Mann Act which prohibited the transportation of women in interstatecommerce for immoral purposes. The court reasoned that Congress had the power toprohibit certain types of interstate commerce based on its commerce power.

Caminetti v. U.S.

In this case, Caminetti just bought a ticket for his mistress to cross state lines, and wasarrested and that was upheld. Similar to Hoke, this case deals with an act of Congressprohibiting the trafficking of "white slaves" which applies to women transported acrossstate lines for prostitution or other reasons.

Hammer v. Dagenhart

This case dealt with an act of Congress that banned the shipment of goods made withchild labor into interstate commerce. The majority opinion distinguished this case fromThe Lottery Case,Hipolite E, andHokeas each of those cases involved the regulationof the transportation of something that was harmful was the object of the regulation.The act in this case dealt with the standardization of the employment age of children,as the goods shipped were harmless. The court explained that interstate commercebegins when goods are shipped, and not when they are being produced, as that is amatter for local regulation, otherwise all local production intended for interstatecommerce could be regulated.

The majority is claiming that commerce was just being used as a pretext to get tomanufacturing of goods. In other words, the purpose was bad, even if the means wasconstitutional.

The dissent argues that an act that is within the powers of Congress should be upheldregardless of the "incidental effects" it may have. Justice Holmes in his dissent alsoargued that child labor was bad, therefore it is ok to be prohibited, as the courtshouldn't intrude on questions of policy or morals decided by Congress.

Its very hard to reconcile this with Champion v. Ames, as the court is looking at thepurpose of the act, while in Champion, they didnt evaluate the purpose. Onedistinction is that the goods inHammerare just fine, while in Champion, the good itselfwas the problem was was being regulated.

Qualitative & Causal Era (During The New Deal)

Railroad Retirement Bd. v. Alton Railroad

This is a high-water mark of the qualitative test, as it does not allow a quantitative rationale towin. The government had implemented a pre-cursor to the social security system, andargued that the act was constitutional as the retirement and payment of pensions boostsmorale which makes people more cheerful and work better, improving commerce indirectly.

The court argued that the pay was established based on the job being done, not how longsomeones been working there. And that if morale is being regulated, then the governmentcan regulate anything. Roberts was seeing that if you open up to the quantitative reasoning,then Congress has no practical limitation on its power. The reasoning here was qualitativereasoninglabor requirements may affect commerce but labor requirements are not

qualitatively commerce.Schechter Poultry v. U.S. ("Sick Chicken Case")

The court held that the National Industrial Recovery Act of 1933 unconstitutionallydelegated legislative power and that the application of the act exceeded the commerce clausepowers of Congress. The chicken slaughterhouse in this case had hour and wagerequirements that did not comply with the federal regulation, and the chickens were onlysold the local poultry retailers. The decision was unanimous which shows that this is animportant case, as that was very rare in the New Deal era.


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The government tried to argue that wages and hours affect prices in the state which in turnaffect prices out of the state. This kind of broad power would essentially get rid of the limit ofthe power because it would only be limited by the discretion of Congress.

Qualitative reasoning was used herethe rules about conducting business are not interstatecommerce. The government tried to argue that the chickens were still in the stream ofcommerce, and Hughes says that the stream ends when the chickens reach the

slaughterhouse. The government also tried to say that the wages/rules affected interstatecommerce, and Hughes said "that proves too much" and that if the government couldregulate this it could regulate everything. Hughes is saying that if you use the quantitativetheory, the commerce power becomes totally a political question, as congress can then define"commerce" and "among states", rather than just "regulation".

In this case Justice Cardozo creates a third option, the causal test. He wrote that although allcommerce in some ways affects the entire country, there are different degrees of commerceand that the law is not indifferent to these degrees, so he wants to look at the immediacy ofthe affect for a causal test. This is similar to Cardozo's view inPalsgraf, he looks at thecloseness of the causal connections between commercial activity.

Carter v. Carter Coal Co.

In this case the court invalidated the Bituminous Coal Conservation Act of 1935 thatregulated the coal industry (FDR did not want any doubts as to the Constitutionality of thislegislation to stop it from being passed). The act established minimum wage and maximumhour provisions, and essentially taxed anyone who would not comply with the code, and italso fixed prices.

At this time, the court thought that Congress could get at the prices of goods under anytheory, so the big issue that came up is whether the price fixing and the labor regulationswere severable. Cardozo thought they were, which is why he dissentedhe agreed that pricefixing and labor regulations were unconstitutional.

The government tried to argue that because the distribution of coal affect the entire countryand no one state could address the issue, that the federal government could then step in.Justice Sutherland says that the founders rejected that rationale and gave Congress delegatedpowers rather than power over all national issues.

The court used causal reasoning, the effect of wages and hours in production on interstatecommerce is too distant to be regulated by Congress.

Quantative Era (After the New Deal--Judicial DeferenceToward Exercise of the Commerce Clause)

After 1937, the court adopts the quantitative rationale, which we'll see in Darby. So why didn'tthe causal theory hold? Cardozo died in 1938. Also, Justice Black came onto the court andrejected the causal view, and convinced Justice Stone to remove that rationale and stick with thequantitative view.

Progressive theory of what government should be has filtered through to the Court, and theCourt adopts a new persona. It no longer regards itself as watching over formal divisions in the

government. The progressive view of government is that it should be a closer democraticrelationship, and that the courts should stay out of the political battle between factions.

Two stages - 1938-1954 the court is very restrained, lets Congress do what it wants as long as itsfair. From 1954-1990 the court is more substantively progressive (more second semester).

NLRB v. Jones & Laughlin Steel

Even though the analysis seems to be a Causal Analysis, this case is cited all the time as thecase that established the Quantitative theory for the future. It is regarded as the case thatflipped the court to supporting the New Deal. When NLRB is cited, it's re-characterized as a


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quantitative case. Justice Hughes talks about acts having a "close and substantial" relation tointerstate commerce.

As a quantitative case (having been re-characterized), this case adds the "enterprise" conceptto the quantitative idea of a local activity substantially effecting interstate commerce. Ratherthan showing that wages affect interstate commerce, you just have to show that the wholeenterprise effects interstate commerce.

Difference between majority and dissent has to do with the enterprise concept. Themajority says that if the whole enterprise affects commerce, then any little part of it can beregulated.

The causal test is very similar to the necessary and proper test. Is there a rational basis, acausal connection, between the means and the ends of the regulation. The court says themeans must be substantially related to the ends. Very similar to plainly adapted fromMarshall inMcCulloch.

Why doesnt the Court pick up on this test? Because at the time the Court was gutting thenecessary and proper clause from the plainly adapted test and just wanted a rational basistest. So they just missed this test and this approach dies.

U.S. v. Darby

Case concerns the prohibition of goods in interstate commerce of goods produced in sub-standard labor conditions (overrulingDagenhart). The court uses the quantitative analysisagain, as the court mentions the "affect" of local activities on commerce throughout thecountry.

The act prohibit substandard labor, using bootstrapping to get at local activity directlythe prohibition is the means and the end, its necessary and proper to prohibit hiring ofworkers at low wages to prevent shipment of goods made at low wages ( jurisdictionalelement).

Court says that Congress has a police/plenary power, and that there is no longer an intrinsic(definitional) limit on this power. Rather, we have to look at extrinsic limits on the power,such as through the Bill of Rights.

Wickard v. FilburnThe court uses quantitative reasoning, that growing outside quotas affects interstatecommerce. This is used to create the horizontal class rationale similar to the verticalenterprise concept. If you put these together, its very hard to find something thatCongress cannot reach through the Commerce Clause.

For the horizontal class test the court looks at whether the whole group of similarlysituated individuals have an effect on commerce, not just the individual.

Court is giving the definition of interstate and commerce over to the Congress as a politicalquestion, in addition to regulation which they already had. Also in this case, all of a sudden,commerce becomes economics. They say that Congress can regulate economic activityamong the several states.

Maryland v. Wirtz

Fair labor standards case. It upholds the substantial effects test and enterprise concepts.Justice Harlan is also looking for a limit on the substantial effects test, and doesnt find one asthe law is upheld.

Heart of Atlanta Motel v. U.S.

Hotel case where the Court found that racial restrictions at hotels harmed interstatecommerce and could therefore be regulated. This is quantitative reasoning: racial restrictionson hotels affects interstate commerce. Theres no doubt that racial discrimination has anaffect on interstate commerce, but this case is about a moral issue.


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Court says that if there are two means, one restricted (moral, police) and one allowed(commerce), Congress can regulate commerce even if it has an impact that is moral andsecondary.

Katzenbach v. McClung

Restaurant case where court found that Congress could regulate activities of restaurantbecause it affected commerce (same as Heart of Atlanta pretty much).

Three ways to use commerce power: (1) in interstate commerce; (2) substantial effects; and(3) supplies in interstate commerce used in intrastate activity.

Perez v. U.S.

Loan sharking case. Congress federally prohibits loan sharking. Justice Douglas says right outhow can you arrest a local loan shark? Through being a member of a class.

On what grounds does Justice Steward dissent? Seems to be disagreeing with the classtheory, and might also be making a tenth amendment argument as well. During this era youhave some of these bad conscience dissents asking how far have we gone? Where do wedraw the line?

U.S. v. Bass

Gun case where court says if Congress was ambiguous and therefore statute must beconstrued towards lenity, and also that federal crimes aren't usually defined where a statealready has power.

Justice Marshall defines a rule saying that where there is no jurisdictional element, and theactivity regulated is traditionally left to the states, Congress can reach the activity, but mustclearly state the purpose of the regulation.

Rehnquist Court's Revival of Internal Limits

U.S. v. Lopez

Law made it a federal offense to knowingly possess a firearm at a place that the individualknows, or has reasonable cause to believe, is a school zone.

[Rehnquist, for the Court] Broad categories of activity Congress may regulate under the

Commerce Clause: (1) regulate the use of channels of interstate commerce; (2) regulate andprotect the instrumentalities of interstate commerce, or persons and things in interstatecommerce, even if the problem is caused by only intrastate activities; (3) regulation ofpersons or things in interstate commerce ( jurisdictional element); and (4) regulate thoseactivities that have a substantial relation to interstate commerce (contains both enterprise andclass rationales that can cover all kinds of intrastate activities).

Law has nothing to do with commerce, but is a criminal statute. Its also not part of a largerregulatory scheme which would be hurt by removing the statute. Therefore it cant besustained under the commerce clause rationale.

Government tries to argue that guns lead to violent crime which hampers education andnational productivity, affecting commerce. The Court says this rationale would allow them toregulate almost anything, even parenting, as parenting has the same kind of effect that the

dissent by Breyer says education does.

The Court holds that possession of a gun is not economic activity, which is a qualitativeelement.

Test from Lopez - (1) activity has to be economic; (2) effects have to be substantial, notsignificant; and (3) has to be more than just speculative rational basis (N&P?).

What about the jurisdictional issue? He says that the law contains no jurisdictional elementthat would ensure, through case-by-case inquiry, that the gun in question affects interstatecommerce. He basically says that you have to show that the thing actually travelled through


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interstate commerce, and that it affected interstate commerce. Hes impliedly overruling theCaminetticase. He wants a kind of nexus connection between the thing that travels throughinterstate commerce, and that it somehow affects commerce. This is trying to put some limiton the jurisdictional element.

[Kennedy and OConnor, concurring] Court should be deferential to Congress and shouldntoverturn Commerce Clause precedent, but that said, the Court should still be a check on the

legislature when it goes too far. Allowing Congress to regulate everything that wouldnormally be within the States powers eliminates borders and effectively ends Federalism.

Theyre saying that progressive democratic accountability melds with the federal idea,because states are better at figuring out democratic accountability, since theyre closer toissue.

[Thomas, concurring] The Court has drifted far away from the first 150 years of case law onthe Commerce Clause; commerce is different than manufacturing and agriculture; lookingback on the older view of the clause doesnt mean throwing out recent case law; andCongress should not have a blanket police power through the Commerce Clause.

Also, the entire constitutional structure is violated, as the enumerated powers are meresurplusage, as is the rest of the constitution, if we use the substantial affects test.

[Breyer and Ginsberg, dissenting] Congress has the power to regulate any activity that has asignificant effect on commerce (he thinks substantial is too narrow). The court shouldlook at whether the regulated activity cumulatively effects commerce, and if Congress had arational basis for concluding that it does.

Breyer says because we spend lots of money on schools, and because gun violence aroundschools is a problem, Congress should be able to regulate guns around schools.

In effect, he says that this is a political question and that it should be left up for Congress todecideits a non-justiciable issue because courts arent competent to decide the limits ofthe regulation.

He also says not that Congress hada rational basis, but that they could have hada rationalbasis, which is the lowest bar for the rational basis test (speculative minimal rationality).

[Souter, dissenting] Guns are articles of commerce, and can restrain commerce. People dont

get guns without commerce. Because guns are part of commerce and have a harmful use,Congress should be able to prohibit them from certain markets.

This is a qualitative argument of sorts. But I think it fails when you consider school children amarket or the possession of a gun commercial just because its a product. There isvirtually no limit on Congress power under this logic.

[Stevens, dissenting] Rational basis test and the Court should defer to the legislature.

U.S. v. Morrison

Court invalidates civil damages provisions of the Violence Against Women Act. Student tookdisciplinary action against two football players after being raped. The school didnt punishthem, so she dropped out and sued the football players and the school in federal districtcourt.

[Rehnquist, for the Court] Gender motivated acts of violence are in no way economic activity(qualitative argument). Non-economic activities cannot be aggregated to show a substantialeconomic effect. Whats commerce and whats interstate is still for the courts, and shouldntbe turned over to Congress.

He also brings up the jurisdictional element like inLopez, but doesnt apply in this case(statute is struck down on its face).

That said, unlikeLopez, this act was supported by many congressional findings that criminalactivity would, in aggregate, affect interstate commerce. This reasoning has no logical limit,


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and is rejected by the court. Congress may not regulate violent crime simply because of itsaggregate affect on interstate commerce. This would be a police power that is reserved to thestates.

[Thomas, concurring] Substantial effects test is inconsistent with original understandingof commerce. If we dont go back to original understanding, we will continue to see Congressuse the Commerce Clause to gain police powers.

[Souter, Stevens, Ginsburg, and Breyer, dissenting] Congress has the power to regulateactivity, that in aggregate, has a substantial effect on interstate commerce. Congress isallowed to determine what those affects are, and the courts shouldnt review congressionalassessment (political question, non-justiciability argument). Here congress had lots of data,therefore the act should stand.

Gonzales v. Raich

Medical marijuana case. Is the personal growing of marijuana for personal consumption aneconomic activity? Majority says that even though marijuana is illegal, it is an item ofeconomic trade as there is a huge market for it. So now, how far should the substantial effectstest go, and how far should deference to congress go.

This case opens up the necessary and proper clause. Also, first cases in decades where the

necessary and proper clause is spoken about, argued over, and analyzed.[Stevens, Kennedy, Souter, Ginsburg, and Breyer, majority opinion] Congress can regulate aclass of activities that may have a substantial effect on interstate commerce. Also, congresshad a rational basis that aggregate activities will have a substantial influence on interstatecommerce.

[Scalia, concurring] Prohibition of interstate commerce in marijuana can be reached by thecommerce clause, but not local growing and consumption. Those activities can only bereached through the necessary and proper clause, as banning local growing and consumptionis necessary to effect a ban on interstate commerce in marijuana.

Scalia sees a regulatory scheme to destroy the trade in marijuana, so its necessary and properto ban possession of marijuana to accomplish the total ban.

[OConnor, Rehnquist, and Thomas (in part), dissenting] States are laboratories to try novelsocial and economic experiments. The majoritys view of economic activity is too farreaching, and would cover all productive human activity. Effect of marijuana growing is toosmall to effect interstate commerce.

How does she distinguish Wickard? She says there is no evidence that personal consumptionhas substantial affects on interstate commerce.

[Thomas, dissenting] Thomas argues for the same kind of rule as Scalia, but then goesfurther and says that the current means is neither necessary or proper. Thomas finds that theregulation must be necessary AND proper, and he citesMcCulloch on those standards.

Whats necessary? The means must be appropriate plainly adapted to executing anenumerated power. He rejects the minimum scrutiny rational basis test, and says that it mustbe subject to judicial scrutiny.

What is proper? A measure which is (1) designed to accomplish a legitimate purpose, and (2)does not overly encroach on the federal system. This brings up the 10th amendment again.This is a difficult argument, because the line drawing for how far the 10th amendment goes isunclear. He also says its not a legitimate state purpose because local growth is not economicactivity.

Thomas says that local possession is not just personal possession, but was authorized by thestate of California for the health of its people under its traditional police powers, and thateliminating it destroys the police powers of the states, so its not proper, even if its necessary(plainly adapted).


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Alderman v. U.S.

Certiorari was denied in this case, and Scalia and Thomas thought i t should have been heard.Rehnquist had made a concession in Lopez listing the different types of goods that are incommerce, allowing the jurisdictional clause, so Congress just tacked on a jurisdictionalrequirement and the law was ok.

This is why Thomas argues here in Alderman that the jurisdictional clause is no real limit.This is a doctrinal marker, as well probably see this come up again. Thomas is saying thateven for the jurisdictional element, he wants to see a substantial affect on interstatecommerce that must be proven.

Looking back at jurisdictional clause cases (Hipolite E, Champion v. Ames), if you use thesubstantial affects test included with a jurisdictional test, these cases would probably stillstand. Thomas says its time to apply the substantial affects reasoning fromLopezto thejurisdictional element of the commerce power, because its just hanging out there as anexcuse for congress to regulate something (which doesnt make much sense, because its justtraffic over a border, not necessarily commercial).

External Limits on the Commerce Power: Federalism and the

Tenth and Eleventh AmendmentsThis is a shift from an intrinsic limit on congress power to regulate power to extrinsic limits.Most limits on govt that the courts impose are extrinsic limits; the rights talk.

Tenth Amendment

Founders believed a bill of rights was unnecessary because the powers of the federalgovernment were enumerated, and the federal government did not have the extensive policepowers of the states. Furthermore, Federalists argued that if we had a bill of rights restrictinggovernment in some areas, it was necessarily implied that the government could restrict thepeople in all other areas (inclusio unius est exclusio alterius).

Bill of rights was promised so Constitution could be ratified, but Tenth Amendment wasadded to serve as a bulwark against any implying of the alteration of the original enumerated

powers of the Constitution.Unfortunately, in theLegal Tender Casesin 1871, the Supreme Court used this exactreasoningthat the restriction of the Federal Government in the Bill of Rights impliespowers granted to the Federal Government.

The Tenth Amendment provides a rule of construction between the amendments and theConstitution, and also serves to affirm the Constitutions basic scheme of defining therelationship between the national and state governments.

Founders were wary of national government so they created a scheme of mixed sovereignty.Enumerated federal powers was critical to this scheme.

The New Deal court expanded federal powers far beyond anything that the founders wouldhave imagined. That said, the court more recently has invoked the Tenth Amendment to

prevent the federal government from commandeering the state governments.Coyle v. Oklahoma

When Oklahoma joined the union, there was a federal act that set the state capital, and theSupreme Court invalidated this condition.

U.S. v. California (1936)

California operated a railroad and was penalized by the Federal Govt under the SafetyAppliance Act. California tried to argue that they were operating the railroad under theirsovereign capacity, but the Supreme Court said the Commerce Clause applied to regulate the


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railroad because of its nature as a railroad, regardless of who owned it.

Case was decided in 1936, towards the end of the qualitative era. If this was a private railroad,this would not have been a problem even in the qualitative era (the decision was unanimous).The problem is whos running the railroad: the state of California.

The question is is there a special limitation on congress power because this is a state runrailroad? The court says that the states and private companies werent on different grounds.

Why was there no dissent? In this era there was a whole series of cases dealing with thenature of the thing being done, not who does it. Therefore, running a railroad is a private-like activity, no matter who does it, based on the nature of the activity being done.

N.Y. v. U.S. (1946)

New York bottled water from State owned springs and the federal govt taxed it. Issue is cancongress tax a state agency? The court says that federal power of taxation goes as far ascommerce power. Again, the nature of the activity is private, so there is no intergovernmentalimmunity (McCulloch v. Maryland).

Maryland v. Wirtz

Expansion of Fair Labor Standards Act to schools, hospitals and removed exemption of Stateemployers with respect to employees of hospitals, institutions, and schools. Court held thatthis was within the power of congress under the commerce clause.

Fry v. U.S.

Federal wage freeze case to stave off inflation.

[Marshall, majority] Federal government can fix wages because it has power to regulatecommerce that is very broad. Following Wirtz, governmentt can even regulate stateemployees. Also, fixing wages is even less intrusive than activities in Wirtz.

[Rehnquist, dissenting] Even if congress has the power, a state or individual can assertaffirmative constitutional right that limits congress. He would still allow regulation whenactivities of state are outside traditional governmental activities. This is a lone dissent thateventually gets turned into a majority opinion in National League of Cities.

National League of Cities v. UseryFederal govt amended Fair Labor Standards Act to set minimum wage and maximum hourprovisions for state and local government workers. Employees in this case were police andfirefighters, not bottlers of water or engineers on railroads.

[Rehnquist majority] Regulating wages and hours is within commerce power of congress, butis invalid when it runs up against State sovereignty. States are different from privatecompanies, and dictating wages and hours wouldnt leave much up to the states to determinehow to deliver services.

The federal govt was regulating an integralfunction of the state, because the employeesregulated were police and firefighters. By telling the states what they had to pay, congress wasintruding on the states own decision making in how to distribute resources among theessential operations of the state.

He says that the regulation interferes with integral operations (qualitative) and significantlyalters them (quantitative). Its a mixed opinion to get Blackmun as a 5th vote. Rehnquistwants a qualitative black line, while Blackmun wants a balancing test.

What aboutFry? Wirtzwas overruled, but notFry, because he didnt have the votes(Blackmun wouldnt have overruled). So he had to distinguishFry because he couldntoverrule it. This sounds like Blackmuns concurrence as a balancing test, but is not, its aStrict Scrutiny test. To distinguishFry he points out thatFry was a temporary provision.

[Blackmun, concurring] Supports conclusion of court, and adds that interests should be


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balanced. Federal power should be allowed when the federal interest is greater and wherestate compliance with federal standards is essential.

Why do judges want a balancing test? Three or four different times, this is one where thejudge is unsure of the doctrine or what the rule should be, so wants to decide on the facts ofthe case what side has the better balance of the equities.

[Brennan, joined by White, Marshall, dissenting] This is a political question and should beleft up to congress. They also say theres a long line of precedents being affected, but theydont want to recognize anything pre-1938.

Hodel v. Virginia Surface

Can land within a state be regulated by congress through the commerce clause? Theres nodoubt that surface mining is an economic activity and affects commerce.

[Marshall, majority] Congress has the power under the commerce clause, and no 10thamendment challenge is presented.

In the modern court, when someone loses in a prior case but can then write the majority later,he tries to constrain the previous case. So Marshall construes three tests fromNationalLeaguefor the 10th amendment: (1) states as states; (2) indisputably attributes of statesovereignty; and (3) traditional govt functions. These tests are raised to such a high level,

that you couldnt find anything that would give the state immunity under this test.

Marshall adds a footnote here too: Even if the state can show that the regulation meets theabove, if the federal interest is still stronger, the federal government wins on balance(Blackmuns balancing test). Marshall pretty much gutsNational Leaguehere.

[Rehnquist, concurring] Outcome is correct, but test is not rational basis, but rather issubstantial affect test.

Garcia v. San Antonio Metro

Fair labor standards wage regulation (again).

[Blackmun, majority] Courts determining traditional, integral, or necessary servicesis unworkable, and the political process is the best guard against regulations that would beburdensome to states.

[Powell, joined by Burger, Rehnquist, OConnor, dissenting] States role in our system ofgovernment is a matter of constitutional law, not legislative grace. Making congress thejudge of the limits of congress power is inconsistent with the constitutional framework.

[OConnor, dissenting] States as states have legitimate interests which the federalgovernmentt must respect, even though its laws are supreme. For federalism to have anymeaning, there has to be a limit on the federal government.

[Rehnquist, dissenting] Said he shouldnt have to spell out what will eventually be themajority view in the court.

South Carolina v. Baker

Exemption from federal income tax on interest from state bonds was removed causing statesto have to switch to different bonds. SC takes up Justice Powells dissent in Garcia and tried

to show that the political process really is no protection for the states.

[Brennan, majority] The court said that it wasnt a situation where states interests wereimpaired because of extraordinary defects in the national political process.

He also said that SC wasnt deprived of participation in the political process, and thatnothing in Garcia or the 10th amendment allows courts to second guess the substantivebasis for congressional legislation. Since the process wasnt defective, the 10th amendmentdoesnt come into play.

The real question is the threshold question as to whether the issue even goes into the political


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process. Once its given over to the political process, its too p

con law outline (fall)

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