Constitutional Law Outline

I. Judicial Review & It's Limits

A. Judicial Review

Judicial Review - Court's power to invalidate unconstitutional laws.

Supremacy Clause, Art. VI, Cl. 2, prohibits cts. from applies to unconstitutional state laws. Nothing specifies the const. is superior to federal laws, whether legislative or treaties.

o Marbury decided:1. the const. trumps all laws, even federal, 2. the SC’s power of judicial review is implied by the const., 3. cong. cannot grant the SC original jurisdiction over mandamus b/c it’s not part of the SC’s original jurisdiction as defined by Art. III.

Art. III explicitly gives the SC original jurisdiction over:4. cases affecting gov. officials such as ambassadors, and,5. any case where a state or the US is a party.

Fed. cts. cannot review leg. or exec. action if:

1. it exceeds the authority given to fed. cts. in Art III, Marbury v. Madison

Sec. State Madison refused to hand over the fed. judgeship commission to Mabrury & he brought suit b/c it was his property. He filed in the SC b/c there was no inferior federal court in DC, and it was unclear that any state court would have jurisdiction.

Writ enables the ct. to order gov. officials to act if the act is prescribed by law, affects an individual’s rights & the gov. fails to do what’s required. Writ can only be issued if a ct. has original jurisdiction.

SC has power of judicial review from provisions addressed to judges (Treason, Art III. Sec. 3, Cl. 1). But SC cannot violate its oath to uphold the const. (Art. IV, Cl. 3) by hearing a case outside of its constitutionally determined original jurisdiction.

Criticism: limited textual support in the const., little precedent outside the Federalist Papers, every gov. official takes the oath, & judges are fallible.

2. the case involves a non-justiciable political question,Nixon v. US

Nonjusticiable Issues - Involve a political question/issue that’s const. committed to a branch of gov. other than the judiciary. Cts. consider:

1. who the const. assigned to decide the issue, and, 2. whether there are judicially manageable standards to resolve the issue.

Blackmun Concurrence - Key isn’t if the const. gives exclusive responsibility over the issue to the leg. or exec. but if the leg. or exec. has final responsibility to interpret its scope and nature.

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Souter Concurrence - The political question doctrine is “essentially a function of the separation of powers,” existing to restrain courts “from inappropriate interference in the business of the other branches of Government.

Fed. judge Nixon was convicted for perjury on whether he took a bribe to end litigation against a bizman’s son. He appealed to the SC, arguing the Senate’s impeachment committee violated the const. Trial Impeachment Clause (Art. I, § 3, cl. 6) giving trying power solely to the senate acting as a whole.

SC concludes “try” has a broader meaning allowing an investigatory committee & agrees the word solely, used only two other times in the const., gives exclusive impeachment authority.

Checks on the legislature's impeachment power: (1) House has the right to accuse, Senate the right to judge; the division of power requires consensus, (2) Impeachment requires a 2/3 supermajority.

SC cannot review Senate impeachment decisions b/c it’s a nonjusticiable issue, would involve overruling the Senate.

3. there’s no genuine case or controversy,Muskrat v. US

Cong. passed a law giving fed. cts. authority to decide whether previous leg. was const. regarding distribution of tribal land. Problem b/c it instigates litigation though no actual controversy/case exists. Actual controversy requires an injured party with standing.

Gov. had no interest in the land, it already didn't belong to them. Though they had an interest in seeing the law executed the court doesn't consider this to be sufficient to meet the c/o/c req. SC ruled cong. law couldn't name the gov. as a D to satisfy the c/o/c req.

SC ruled the law is an attempt to obtain a judicial declaration on the constitutional validity of a class of legislation. Since the SC’s refusal to answer Sec. State Jefferson’s legal question during a war the SC declines providing “advisory opinions”— opinions about the proper resolution of abstract legal questions that are presented in a setting divorced from an actual dispute between adverse parties.

4. the case isn’t ripe,• A case is ripe once it's actually developed into an actual controversy that can be properly litigated. Claims of injury that are speculative, claimed before the injury has actually occurred, fail under the ripeness doctrine. Ripeness & mootness affect the case or controversy requirement.

5. the case has become moot, Claims are moot when the parties have no longer have a meaningful & concrete stake in the litigation. • Assessment focuses on the requisite personal interest that a party must maintain throughout suit.

• Example: Suit for release from detainment is moot if the party is released before litigation begins. Suit would not be moot if party instead sought damages for unlawful detainment.

6. the plaintiff lacks standing,Lujan v. Defenders of Wildlife A ct. can only hear a case from a P who has standing. A P has standing when:

1. P has suffered an injury in fact of a legally protected interest, that is both a. concrete and particularized, and, b. actual and imminent, non-hypothetical.

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o Can be actual past injury or the substantial likelihood of a future injury. 2. There's a causal relationship between the injury and the Ds challenged conduct, the injury must be fairly traceable to the

challenged conduct,3. Prospect of obtaining relief from a favorable ruling isn't too speculative, injury would likely be redressed by a favorable decision .

If P isn't the object of the challenged gov. action but is instead alleging unlawful regulation injuring someone else, standing is substantially more difficult to establish. Persons directly regulated by the gov. are much more likely to be able to establish standing to challenge the regulation than are persons who are beneficiaries of the gov.’s regulation of others.

Injury in fact test requires that the party raising litigation be within the class of injured persons. Ps failed to show the harm from a threatened endangered species is imminent to them.

Ps claims are non-redressable b/c the court couldn't command individually funded projects to change their regulations, only the sec. of interior could, but said agencies may not even be bound by the changes in regulation.

Invokes Marbury to argue the sole province of the court is to decide the rights on individuals; redress of the general public interest is the function of the leg. & exec.

o Leg. statutes cannot create an individual right out of public interest, cannot authorize the judiciary to assume the executive's function of ensuring laws are faithfully executed and thereby act as a co-monitor of leg. & exec. action.

Kennedy Concurrence: A nexus theory could create standing. O’Conner Dissent: Ps did satisfy imminent injury requirement b/c they intended to return to the endangered sites, though they could

not provide a specific "someday." Court has power to statutorily impose procedural constraints on the executive, therefore the court does have the authority to enforce the procedures

7. cong. deprived the SC of jurisdiction by statute.Ex Parte McCardle There was Marshall Law in all the southern states during Reconstruction. McCardle was a newspaper editor who criticized the

generals & was imprisoned upon trial by a military commission. Claims violation of 1st Amendment & DP. Though cong. previously gave the SC appellate jur. to hear habeas corpus cases, it later repealed the jur.

SC was forced to throw the case out b/c it cannot review the motives of Cong. b/c the Exceptions Clause (Art. III, Sec. 2, Cl. 2) grants cong. plenary authority to deprive the SC of app. jur. & the SC’s app. jur. has always been defined by statute.

The scope of cong.’s power to create exceptions to the SC’s app. jur. remains undecided. o In 1996, the SC upheld restrictions on its power to review certain habeas decisions, reasoning the leg. didn't deprive the SC

of its power under the Judiciary Act of 1789 to grant original jurisdiction habeas petitions.

II. Governmental Powers Under the Constitution

Limited Powers Doctrine – Cong. only has the powers granted to it by the const. (10th Amend.) Beyond the expressly enumerated powers cong. also has implied powers from the Necessary & Proper Clause. (Art. I, Sec. 8, cl. 18) The NPC empowers cong. to pass a law that implements an enumerated power.

McCulloch, Chief Justice Marshall – (i) If the end is legitimately within the scope of the const., then (ii) all appropriate means (iii) clearly adapted towards the ends that (iv) aren’t prohibited & (v) consistent with then letter/spirit of the const. are const.

McCulloch v. MD State banks were trying to drive the US bank out of biz b/c customers preferred the fed. deposit notes, driving biz away by charging a tax on

withdrawals so people would prefer to make deposits in state banks. Issue 1: Does congress have the power to incorporate a bank?

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Power to create the bank is derived from power to collect taxes, to borrow money, & regulate commerce. A gov. entrusted with ample powers must also be trusted with ample means for their execution.

Signed in by GW after Hamilton & Jefferson disputed its constitutionality at the 1ST Cong. Shows the original intent ruled in favor of validity otherwise GW wouldn't have signed it into law.

Marshall defines necessary as "convenient, useful, or essential to another;" necessary is a means calculated to produce a specific end, not a means without which the end is impossible. Const. isn’t just a legal code, the N&P provision was designed to endure into future & make the fed. gov. adaptable to whatever circumstances arise. "Necessary" is in the context of "N&P to carry into execution." N&P, in the const., is placed among the powers of cong., not their limitations. The clause is an additional power, not a restriction on those enumerated.

Issue 2: Can a state tax a fed. bank? Once the const. is accepted by the people of each state, the state govs. are completely bound by it. State & fed. cannot concurrently exercise the power to tax . Power to tax is the power to destroy. Therefore, the state's power to tax loses

to the fed. gov.'s power to create, in this instance, create a bank. Gov. can tax state institutions b/c all states are the gov.'s constituents & the tax is uniform - doesn't work vice versa.

If states were allowed to tax one gov. instrument there's no bright-line preventing them from taxing all gov. instruments, which would defeat the ends of gov. & wasn't intended by the people b/c they didn't design their gov. to depend on the states.

III. Federalism-Based Limitations on State Power

A. Preemption – Under the Supremacy Clause fed. law preempts/overrules state law. Can be express through cong. law, or implied b/c of:

1. Field Preemption – If cong. evidences intent to occupy a particular field of law then any state law within that field is preempted/nullified.

2. Conflict Preemption – If cong. hasn’t completely displaced state regulation over an issue, the state law is still preempted wherever it conflicts with fed. law.

Silkwood v. Kerr-McKee Nuclear plant employee in OK was contaminated with plutonium. Sued the plant successfully for actual & punitive damages, but

the OK Ct. App. set aside the actual award b/c it conflicted with OK worker’s comp. laws & the punitive award b/c fed. law preempted state tort recovery through the Atomic Energy Act.

SC ruled: (1) AEA only applies control over facility development, (2) AEA was never intended to bar state tort recovery, (3) cong. discussion of the AEA assumed state remedies would be available.

o Prince-Anderson Act: Third parties can rely on state law until there's a likelihood that damages will exceed a plant’s financial responsibility cap under the AEA. P can recover any amount under $560 million, whether actual or punitive damages; gov. indemnifies the plant for any financial responsibility beyond this sum. Nothing in regulatory or legislative history contradicts allowing punitive damages, therefore the award wasn’t field preempted.

o In Pacific, Gas & Electric SC held that the fed. gov. occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states.

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Gov. argues recovery is preempted b/c the Nuclear Regulatory Commission created by the AEA assigns penalties on licensees for violating federal standards, which would place them in double jeopardy with state damages. SC held the laws nevertheless don’t conflict, therefore the award wasn’t conflict preempted.

Blackmun Dissent: Punitive damages are expressly designed to act safety check mechanisms, therefore they’re precluded under Pacific Gas.

Medtronic, Inc. v. Lohr (1994): In all preemption cases, particularly where cong. has legislated in a traditionally state occupied field, the SC assumes that states’ historic police powers weren't superseded by the fed. act unless that was cong.'s clear & manifest purpose.

B. Dormant Commerce Clause Doctrine – Art. I, Sec. 8, cl. 3 gives cong. power to regulate the instrumentalities & channels of commerce, creating implicit restrictions on state regulatory power. DCCD holds state laws affecting interstate commerce are invalid if:

1. The state law is preempted by a fed. statute,Gibbons v. Ogden

P Gibbons challenged the constitutionality of a NY law prohibiting him from offering a steamboat service from NJ to NY, because NY had already granted a license to competitor Ogden. P argued the const. gave cong. exclusive power to regulate interstate commerce.

SC concludes the Federal Licensing Act, a federal statute, preempted the NY law affecting steamboat services. SC rejects that b/c cong. was granted the whole power over IC the const. intended to bar states from exercising any part

of it; the gov. & states can simultaneously exercise the power to tax. State power over IC is distinct in quality & scope from that of cong., they can be exercised simultaneously, even executed by the same means, but that’s insufficient to make them identical.

Johnson Dissent: Const. clearly solely granted the authority to regulate commerce to the states to ensure the intercourse of commerce would be "free from all invidious & partial restraints."

2. The state law invokes an issue requiring national uniformity, Required if allowing multiple states to regulate the same subject could result in conflicting laws that makes compliance

impossible.Cooley v. Board of Wardens

PA state legislature passed a law demanding particular ships have pilots or their owners pay the state a fee equal to 1/2 the price of a pilot, which P contests as unconst. b/c cong. has exclusive authority to regulate interstate under the CC.

Cong. has exclusive authority when a uniform national standard is necessary, but not generally. Pilot laws don’t require uniformity b/c fed. pilot law explicitly states the regulations should be local. Non-uniformity is necessary b/c each state has different pilot needs/realities according to their bodies of water/use, so the regulations have to serve local needs.

Wabash v. Illinois An IL state statute charged P with discrimination in RR pricing b/c P was charging different parties different rates per

hundred pound of load to be transported by freight despite using the same route. P contends the IL statute is unconst. b/c it attempts to regulate IC.

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States can pass laws affecting navigation/commerce by building bridges, local rules governing pilots, etc. Focus on creating laws of limited application that don't attempt to regulate the transportation of persons or property across the continent or several states through which they may be carried.

IL statute is unconst. b/c here a uniform standard is necessary, otherwise (i) multiple states will attempt to establish their own freight rates, (ii) will use divergent methods to prevent rate discrimination, and (iii) will inhibit freedom of commerce by stalling the transit of goods through states. A local standard cannot be imposed across states.

3. The state law (i) treats interstate commerce differently from intrastate commerce, (ii) intentionally or through practical effect, (iii) when there’s a reasonable & nondiscriminatory alternative method to further the state’s legitimate interests,

Dean Milk v. City of Madison Ps pasteurization plants are located farther from the city than permitted to obtain a milk-selling license. P argues it’s

unconst. to deny b/c of distance alone given that he sells “Grade A” milk modeled after US Public Health Service standards. The city counters its ordinance creates stricter quality control.

o City laws are also state laws because they derive their authority from a grant of state power. SC agrees with P the law is unconst. b/c it intentionally burdens interstate commerce. Fed. law doesn’t regulate where

milk is from & neither can state regulation b/c Ps milk is completely sanitary, meaning there’s no legitimate safety interest, just an attempt to control competition.

Hughes v. OK OK statute prohibiting the export/sale of minnows caught within state waters is unconst. b/c it inhibits the flow of

interstate commerce & is commercially protection in its effect despite claims of nature conservancy in its design.o Not related to conservancy b/c the minnows can be taken out of the state for any purpose except sale, sold within

the state, & there are no limits on how many may be caught though a person needs to have an OK license in order to catch them.

When a wild animal becomes an article of commerce its use can't be limited to the citizens of one state at the exclusion of citizens of another state.

Chief Justice Dissent: Doesn't agree the statute discriminates against out of state enterprises in favor of local biz b/c the ban applies to everyone, residents & nonresidents alike. Doesn't interfere with the IC sale of minnows because merchants can export however many farmed minnows they want, just not naturally caught minnows.

4. The state law creates an excessive burden on interstate commerce when weighed against legitimate state interests, Legitimate state interests are protecting health & safety, conserving natural resources. Pike v. Bruce Church - Extent of burden tolerated depends on the nature & degree of local interests, & whether there are alternatives

with a less severe IC impact.South Carolina Dept. of Transportation v. Barnwell Brothers

South Carolina Act 259 regulates the width & weight of motor trucks using the highway. SC concludes this wasn’t an excessive burden on IC b/c states have a primary & immediate concern in the safe & economical administration of state highways.

o Weight limit justified b/c 60% of South Carolina's roads were built with weak asphalt, therefore they develop cracks and weak points. Width limit justified b/c evidence shows wider trucks force cars onto the shoulders, increasing maintenance costs, & obstructing clear view of the highway.

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State regulations affect interstate & intrastate commerce equally, thus safeguarding against abusive regulations. The conditions & demands on state highways are unique to each state, therefore no state can be bound by another legislature's restrictions/laws, no uniform national standard is necessary.

Southern Pacific v. AZ AZ Train Limit Law prohibited trains greater than a certain number of freight cars, creating an excessive burden because the

trains would need to be stopped & reassembled at state boundaries. 66-85% of freight trains are longer & the penalty fee imposes a $1million spike in operation costs.

Trains longer than allowed by AZ law are standard practice in the RR industry, therefore any legislation affecting train length requires a national uniform standard that only cong. can provide. The law had no relation to safety, actually made train operation more dangerous because there’s more accidents from reduced length trains than long trains.

Criticism of the Dormant Clause:Camps Newfound v. Town of Harrison

o P is Maine summer camp who cannot property tax exemptions because town law restricts exemptions from institutions who predominantly serve non-residents.

o Town argues the CC isn't implicated by the property tax because (i) it doesn't affect interstate commerce, and (ii) cong. can't enact a tax on real estate. SC disagrees because camp provides goods & services that are marketed nationally & results in transportation of youth across state lines, an act of IC. SC views the camp as akin to a hotel, where, though the services are consumed locally, the solicitation of patronage from across the country makes it an interstate enterprise impacting interstate travel.

o Nonprofit organizations still engender profit, and should therefore be treated like profit-earning institutions under the scope of the commerce clause. Though the summer camp's impact on national commerce is insignificant, it does still conduct IC.

o Chief Justice Rehnquist Dissent: Town statute isn't an act of economic protectionism; instead akin to laws that limit state welfare to residents, the town just limited subsidies to charitable organizations serving residents.

DCC is unworkable in its application. Forces judges to act as legislatures by deciding: 1. whether a statute serves a legitimate local interest,2. whether a statute's impact on IC is incidental or excessive in relation to its putative benefits, 3. the nature of the local interest, 4. whether there are alternative means of furthering the local interest that have a lesser impact on IC.

C. Privileges & Immunities Clause

Principles:1. The clause is an anti-discrimination measure that limits the ability of states to treat non-citizens differently from citizens; inhibits

discriminatory legislation;2. Only prohibits discrimination of fundamental rights essential to the promotion of interstate harmony,

Example: obtaining employment, medical services.3. Discrimination may be allowed if the state has a substantial justifying interest,

Example: Voting is only open to citizens.4. Applies only to people, not aliens or corporations.

Baldwin v. Fish & Game Commission7

P runs a hunting biz in MT & sues arguing state law violates the PIC b/c it charges higher fees for non-resident hunting permits & has different rules on what game they can kill. SC disagrees because a hunting permit isn’t a fundamental right, just a recreational license, therefore it doesn’t fall within the PIC’s scope.

SC has construed the PIC as:1. Justice Field, Paul v. VA - Clause was intended to promote nationalism by assuring equality of all citizens with any state. Gives non-residents

(i) right of free travel to/from, (ii) equal freedom in acquiring property & the pursuit of happiness, & (iii) provides equal legal protections.2. Justice Roberts & Black, Hague v. CIO - Clause recognizes a group of "natural rights" held equally by all citizens regardless of what state

they're in. Clause doesn't import the unique privileges & immunities conferred by a specific state's laws into another state.3. Justice Marshall, Austin v. NH - Clause establishes the norm of comity without specifying which rights are guaranteed equal treatment.

IV. Federal Power to Regulate Commerce, Tax & Spend

A. What cong. can regulate under the modern CC doctrine:

1. IC & its channels & instrumentalities.Gibbons v. Ogden

Commerce isn't merely traffic or the interchange of commodities, its commercial intercourse between all parts of the nation. "Among the states" signifies interior to the states. Cong. acts apply to the nation as a whole & to the internal affairs of each state

generally, but not to a state's particular concerns if they don't affect other states & it's not necessary for cong. to interfere in order to execute a gov. power.

Power to regulate is complete in itself, can be exercised to its full extent, & has no limitations other than those set in the const. Cong. can expand, ban, limit, etc. - it has plenary regulatory power to control over IC.

The validity of state laws depends on whether they interfere with or are contrary to an act of cong. Therefore the issue at hand is whether the NY law deprives citizens of a right they're entitled to through federal legislation. If Yes, the NY law is void because it's trumped by the federal law.

The discretion of cong., legislator's identification with the public & public electoral power secure the public from abuse by cong. legislation.

2. Affectation Doctrine - Intrastate economic activities that cong. could rationally conclude might substantially affect IC, either by themselves or by nationwide repetition/in the aggregate; after 1937.

US v. Darby D is a GA lumber manufacturer indicted for violating the Fair Labor Standards Act of 1938 by not paying employees overtime for products

they manufactured for him to sell in IC. The power of cong. under the CC is plenary to exclude any article from IC, subject only to the specific prohibitions of the const.

o FLSA Sec. 15(a)(1) prohibits shipment of goods in IC that were produced for IC by employees who's wages & work hours don't meet FLSA standards.

Jurisdictional Hook - Though manufacture isn't an act of commerce, shipment is, & regulating shipment is regulating IC. o D argues that though the prohibition nominally affects IC its purpose is to control intrastate wages & work hours. SC says the

motive & consequence of federal leg. is at cong.'s discretion; the const. makes no restrictions, & cts. have no control.

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o FLA Sec. 15(a)(2) requires employers to conform to the wage & hour provisions for all employees working to produce goods for IC.

Power of cong. isn't limited to regulating commerce between states, it extends to in-state activities that sufficiently affect IC if regulating those intrastate activities is appropriate as a means for the legitimate ends of regulating IC.

Affectation Doctrine - The intrastate transaction is so co-mingled with IC that cong. must regulate both to effectively control the latter.

Wickard v. Filburn D sued to avoid a fine imposed under the 1938 Agricultural Adjustment Act because he exceeded his wheat bushel quota. The act created

quotas for individual farmers to control the volume of wheat moving through interstate & foreign commerce, thereby avoiding shortages & abnormally high or low prices that obstruct would commerce. D challenged the fine because he intended to use the excess bushels for personal consumption, for his family & farm, so the excess only indirectly affects IC.

Even if Ds activities are local in nature if they have a substantial effect on IC they can be regulated by cong. regardless of whether they're direct or indirect.

When Ds production is combined with others’ in similar circumstances then the effect on IC becomes substantial. Problem of aggregate effect. The volume & variety of personal-consumption wheat still influences price/market conditions that cong. intends to control by limiting volume.

Heart of Atlanta Motel v. US 1964 Civil Rights Act, Title II - Prohibits discrimination based on race, color, religion or national origin in places of "public

accommodation." Was enacted through the CC because the ct. interpreted the 14th Amend. to only apply to state action & cong. wanted to sanction private enterprises.

o Public Accommodation - Places whose operations affect commerce, such as theatres.o Includes those that serve interstate travelers or places where a substantial portion of the food served came through IC.

P is a motel accessible by interstate highways. P solicits out-of-state patrons through national advertising in magazines & 75% of its patrons are out-of-state. Gov. sued when P continued to refuse serving African Americans after the CRA passed.

Exclusionary practices in interstate travel affect AAs capacity for mobility & discourages interstate travel, thereby inhibiting IC. Though cong. enacted Title II to address a moral problem there is overwhelming evidence that racial discrimination impacts IC, & is

therefore within the scope of cong.'s power regardless of whether it implicates moral & social wrongs because the leg. functions to remove a burden on IC.

Katzenbach v. McClung Ollie’s, a BBQ restaurant in AL, only has take-out service for AAs though whites can eat inside. Spent $69k on out-of-state meat that

accounts for 46% of its total food budget but challenges Title IIs application b/c they rarely serve out-of-state customers though they’re located near an interstate highway.

Where racial discrimination is allowed consumer spending is significantly less in the aggregated South as opposed to other states because of customer loss, therefore it closely impacts IC. Discrimination creates unrest & a depressant effect on general biz conditions in communities.

o Impacts interstate travel because AAs are restricted from traveling, since people need to be able to eat wherever they travel through. Ollie's tries to argue the aggregation rule should be abandoned for case-by-case determination, but SC returns to Rational Basis Approach

because once it's decided that an activity substantially affects IC then cong. has plenary power to regulate any way it wants to. o Regardless of whether Ollie's solicits interstate customers its racial discrimination is a national commercial problem "of the first

magnitude" according to cong.US v. Lopez

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Gun-Free School Zones Act made it illegal to knowingly possess a firearm in a school zone. D was arrested as a high school senior. SC concludes there wasn’t a rational basis for cong. to conclude guns at school impact IC b/c they don’t involve (1) the channels,

(2) instrumentalities, or (3) substantially impact IC in the aggregate.o Though cong. doesn't have an obligation to make findings of substantial impact, without them the court can't evaluate cong.'s claim

that the act does impact IC. SC rejects cong’s arg. that guns impact IC by detracting from the learning environment & making citizens less productive, b/c that

reasoning would give cong. power to regulate any activity that affects productivity, whether violent crime or marriage, that would make the CC unlimited police power by introducing an unacceptable level of generality to the commercial activity definition.

Stevens Dissent: Guns are articles of commerce & can be used to restrain commerce. If cong. can regulate the sale of firearms it should be able to regulate guns at schools.

Ginsburg Dissent: There's an obvious link between education & the national economy. Guns are a serious problem threatening education, therefore it was reasonable for cong. to regulate the problem.

Gonzales v. Raich Ds have serious medical conditions & wanted medical marijuana, so they sued seeking injunctive & declaratory relief from enforcement of

the Federal Controlled Substances Act that prohibits possessing marijuana for personal use despite CA state law’s exemption for physicians/patients.

Cong. has the authority to regulate purely local activities part of an economic class of activities that substantially impact IC; if the intrastate activities undercut the regulation of the interstate market in that commodity. Like the farmer in Wickard Ds are cultivating crops for personal use, for which there’s an interstate though illegal market. Like the Agricultural Act, the primary purpose of the CSA is to control the supply & demand of controlled substances in both lawful & unlawful markets.

SC doesn't need to decide whether the activities substantially affect IC in the aggregate, only whether a rational basis exists for their conclusion. B/c locally vs. elsewhere grown marijuana is difficult to distinguish it can be diverted into illicit channels, thus cong. had a rational basis.

o Distinguishable from Lopez because the GFSZA didn’t mention commercial activity generally, while the CSA specifically addresses the system of producing, distributing and possessing controlled substances. Marijuana production/consumption is an economic issue because it's a commodity for which there's a developed market.

3. Cong.’s regulatory power is plenary over the states. Its const. review doesn’t include (a) whether the leg.’s actual purpose is regulating IC, Darby, or, (b) the wisdom/workability/fairness of the leg, Wickard.

But, cong. cannot create IC by compelling citizens to buy a product.NFIB v. Sebelius The individual mandate is the gov.'s solution to the guaranteed issue problem because it forces healthy people to buy insurance, subsidizing

the sick & easing the cost burden on insurers. Gov. justified the mandate by invoking the CC on grounds that failure to purchase insurance has a detrimental effect on IC because of cost-shifting. Hospitals uncompensated by people without insurance transfer the cost onto the state or fed. gov., onto insurers through higher rates, & onto policy holders through higher premiums of $1k annually.

o Guaranteed Issue provision prohibited insurance co.'s from denying coverage to anyone with pre-existing health conditions or charging unhealthy citizens higher premiums as compared to healthy citizens.

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SC concluded the power to regulate presupposes that the commercial activity intended to be regulated already exists; cong. cannot create the activity it intends to regulate. IM doesn't regulate a pre-existing IC activity, instead it compels citizens to become active in the interstate market by purchasing a product/insurance. The CC didn't give cong. the power to regulate individuals for inactivity/failure to act.

o Holding otherwise allows cong. to make decisions for its citizens by bringing their potential actions within cong.'s regulatory scope. This is incompatible with the principle of a gov. of limited powers.

o Gov. counters that b/c sickness is unavoidable, uninsured people as a class are constantly purchasing health care services from the national market. SC responds that just b/c people need to eat or have shelter, meaning they're within the interstate market for those goods, doesn't give the gov. the right to force people to buy those goods. People don't buy cars & broccoli merely for their own sake, but to address specific transportation & food needs. Thus people buy insurance or just pay at the ER depending on their specific healthcare needs.

o Not purchasing health insurance is distinguishable from Wickard b/c the farmer who wasn't purchasing wheat from commerce b/c he was manufacturing it at home was already engaged in the commercial wheat biz.

IM isn't justified by the NPC because SC has only supported cong.'s leg. involving exercise of authority derived from an enumerated power. Through IM cong. is creating the necessary predicate to exercise an enumerated power; it isn’t impacting an existing, valid regulatory scheme as in Gonzales .

Scalia: CC doesn't enable the gov. to regulate all private conduct or to compel the states to function as administrators of fed. programs. Holding otherwise "makes simply breathing in and out" sufficient for the gov. to regulate all of the population's activities. IM only regulates the failure to maintain minimum coverage, therefore the uninsured have not yet entered into commerce by purchasing insurance & are outside cong.'s ability to regulate commerce because that commerce doesn't exist yet.

B. Taxing Powers

Penalty Doctrine – Cong. can’t create tax penalties whose primary purpose is regulating conduct cong. can’t regulate under the CC instead of raising revenue.

However, cong. can impose taxes designed to regulate conduct it can reach under the CC.Child Labor Tax Case Gov. fined Drexel Furniture Co. 10% of its net profit for the year because they'd employed a boy under 14 in their factory. Drex. argues regulating

child labor is exclusively a state function. Gov. insists the fine falls under its Art. I, Sec. 8 broad power to tax. SC asks whether (a) the employment restraint is incidental to the tax, or, (b) if the tax is being used as a regulation. SC decides on (b) & invalidates

the CLT looking to McCulloch, where it warned cong. it couldn’t pass laws using the pretext of executing its enumerated powers (NPC) to accomplish objectives not entrusted to it in the const.

A penalty is distinguishable from a tax based on the method of collection. Here Sec. Labor worker welfare employees collect the fine. If regulation is an incidental motive to a tax whose primary purpose is revenue, the tax is still a tax despite the incidental motive. If regulation is

the primary purpose the tax is just a penalty.o Regulating labor is a power reserved to the states under the 10th Amend. State sovereignty would be severely infringed by allowing cong. to

regulate reserved powers through penalty taxes.

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Objective Constitutionality Doctrine – Circumvents the penalty doctrine by requiring cts. to uphold tax laws unless they have provisions that don’t raise taxes. So long as the law actually raises revenue it cannot be invalidated just b/c it’s cong. intended purpose is regulatory.

US v. Kahriger 1951 Revenue Act occupational tax provisions impose a tax on anyone in the betting biz & requires them to register with the Collector of Internal

Revenue. D was charged with violating the act, he responded that (1) b/c gambling was illegal under state law he had a right to not incriminate himself under the 5th amend, & (2) cong.'s primary motive is to penalize/regulate illegal interstate gambling, infringing on state police power.

SC says (1) is untrue b/c the fed. isn’t initiating criminal proceedings, & (2) unless there are provisions that don't actually produce revenue within a tax, SC doesn't have the authority to limit cong.'s exercise of the taxing power. The act does produce revenue, even if negligible, even if it’s regulatory intent is manifest.

Jackson Concurrence: The tax isn't imposed on income, but on the source of income, & therefore cannot be a good-faith revenue measure. Frankfurter Dissent: Cong. can't use its taxing power to regulate conduct reserved for state reg.; preventing gambling falls within state police powers.

Direct Taxes – Taxes must be apportioned so each state pays proportional to its population. Art. I, Sec. 2, Cl. 3; Art. I, Sec. 9, Cl. 4. Example: Land/real property tax. A tax imposed for failure to have insurance isn’t a direct tax.

NFIB v. Sebelius Q: Is the No-Insurance Penalty a const. exercise of cong.'s power to tax? Yes: Though labeled a penalty instead of a tax, it operates as a tax b/c it raises revenue for the gov., about $4 billion annually by 2017. SC

previously upheld exactions not labeled taxes in NY v. US (SC upheld a surcharge on out of state nuclear waste shipment paid to the Treasury).o Distinguishable from the Child Labor Tax because (1) the amount of the penalty is less than or equal to the cost of purchasing

insurance, (2) there's no scienter/knowledge of wrongdoing requirement, and (3) the tax is collected by the IRS.o A penalty punishes illegal activity, but here someone who chooses to pay the penalty instead of purchasing insurance is acting in

compliance with the law. No: SC has never decided that a penalty is so frivolous it actually constitutes a tax, or an exaction for violating the criteria of proper conduct is

a tax though it’s titled a penalty. Though collected by the IRS, the penalty is administered & defined in scope by the Dep. Of Health, which is untrue of taxes. Gov. included the penalty in Title I of the act, the operative core, not Tilte IX, that contains the act's revenue provisions.

C. Spending Powers

General Welfare Clause - Implicitly grants cong. power to spend money intending to promote general welfare. Signifies cong. can use funds for purposes related to the powers enumerated in Art. I, Sec. 8.

The spending cannot violate any other const. limit. US v. Butler AAA allowed the Sec. of Ag. to pay farmers for reducing their market production. Payment was funded bu taxing processors or whatever ag.

commodity the sec. wanted to limit. Since the fed. wasn't granted the power to regulate ag. production, it's prohibited from doing so, and is exclusively within the state's power to regulate. The tax is therefore a means for an unconst. ends.

SC agrees with Hamilton that the GWC represents a separate un-enumerated power. Therefore the power to tax is broad/substantive & only limited by the condition that it provides for the general national welfare.

o The limits of the power to tax are expressed in the clause that confers it, not Sec. 8.

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Cardozo Dissent: Act isn't coercive b/c coercion requires a threat of loss, but the act provides possible gain. Farmers aren't penalized for non-compliance, they just can't access the same subsidies, but no one is entitled to subsidies. Cong. is merely setting the terms of a fiscal grant, just like it couldn't make state colleges teach ag., but could give them money & specify the funds can only be used for that purpose.

o Restrictions on the power to tax & spend: (1) The purpose of the act is national, (2) Cannot be used to coerce action reserved for state power/authority, (3) Conscience of cong. & the executive.

Cts. will defer to cong.’s decision on what spending promotes general welfare unless its clearly wrong, a display of arbitrary power, & not an exercise of judgment.

Helvering v. Davis: Upheld the validity of the Social Security Act (against argument that it did not serve the “general welfare” because it took $ from workers & gave it to retirees, thus only benefitting the retirees). Determining what serves the “general welfare” is up to cong., not the cts.

Cong. can condition a tax rebate upon the taxpayer’s conduct, even if the rebate’s purpose is motivating the taxpayer to engage in the conduct. Charles C. Steward Machine Co. v. Davis

Cong. can use GWC spending power to induce states to pass laws cong. couldn’t pass, if:1. Cong. intends to promote the general welfare,2. Cong. states any spending conditions unambiguously, so states can choose/act with proper knowledge,3. The conditions imposed on receiving fed. funds are related to fed. interests in national projects/programs,4. There isn’t a const. prohibition against the state passing the law,5. The financial inducement offered doesn’t pass the line from pressure to compulsion.

Threatening a state with a 10% budget loss passes the line to compulsion, leaving a state with no option except consent.NFIB v. Sebelius Q: Can cong. use the Spending Clause to induce states to participate in Medicaid expansion? Kagan No: Gov. threatens states with loss of all their Medicaid funds if they fail to expand; cong. is coercing the states to comply with

fed. leg. in direct violation of the NY v. US principle that the gov. can’t compel the states to enact or administer a fed. reg. program. SC agrees with states' arg. that withholding funds already granted crosses the boundary between encouraging participation & coercion.

o Distinguishable from South Dakota v. Dole b/c there the state would lose only 1% of its fed. funding for failure to raise the drinking age to 21, but here it would be roughly 10-20% of the state budget; SC called it "a gun to the head."

Scalia No: Coercing states through conditions destroys the intended balance of power in federalism. Unpersuaded by gov.'s arg. that by operating Medicaid as a joint fed-state program it allows the states greater freedom than by merely administrating the program through fed. agents alone. Counters that this misses the point of separate powers because the fed. isn't accountable to the state's constituents for the impact of the program.

Ginsburg Yes: The "pressure turns into compulsion" boundary was raised as a potential criteria, but not formally adopted. Medicaid is a fed. program, therefore the gov. has the right to withhold fed. funds if it so chooses as a condition of how the program is implemented.

South Dakota v. Dole SD allows anyone over 19 to buy beer. Cong.'s 28 USC 158 allows the Sec. of Trans. to withhold highway funding from states allowing anyone

under 21 to buy alcohol, in order to create national uniformity. SD sued alleging it exceeds cong.'s spending power. SC rules cong. can use its spending power legitimately in USC 158 even if it couldn't directly legislate to control state drinking ages. Incident

to its spending power cong. can impose conditions upon states accepting fed. funds. Cong.'s regulation serves the general welfare b/c young people drinking & driving is a national problem requiring a national solution. Lack of

uniformity between state drinking ages encourages young people to drive to a state with a lower drinking age. USC 158 was reasonably 13

calculated to address this problem. Law’s success isn’t evidence of a coercive nature. SD would only lose 5% of the fed. funds available, which is diminutive.

D. State Governmental Immunity From Federal Regulation

Rules:

The gov. is immune from state regulation & taxation. McCulloch v. MD

States aren’t immune from fed. commercial regulations that equally apply to non-gov. entities.Garcia v. San Antonio Metro Transit Authority

San Antonio MTA didn’t pay workers overtime in violation of the FLSA. MTA alleged immunity from the fed. regulations b/c it’s a state institution when workers sued.

SC ruled there no limits in the const. on the fed’s power to regulate states beyond the limits that apply in all cases. So long as fed. regulation applies to non-state entities equally, states aren’t immune from the regulation. The “political process” will maintain States’ sovereignty.

o Abandoned the “traditional government function” test to exempt any state activity that was a “traditional” gov. function b/c of the problem of defining “traditional.”

Cong. can’t compel states to pass leg. or administer fed. programs. Printz v. US

Followed NY v. US to invalidate the Brady Handgun Control Act requirement forcing state police officials to conduct background checks on gun purchasers pursuant to a federal policy. SC reiterated that it’s an unconst. violation of state sovereignty to direct state officials to administer fed. programs just as it’s unconst. for the fed. to force a state to adopt leg.

Cong. can induce states to pass legislation by – a. Threatening to withhold fed. funds, or,b. Offering states the choice of internally complying with fed. standards, or, have their state law pre-empted.

NY v. US Cong. passed an act giving states an ultimatum: if they didn’t create a radioactive waste disposal plan, they’d be forced to take title to all the

waste generated in its borders. The gov. cannot force states to adopt leg. or admin. a gov. program. Allowing this would decrease accountability for fed. & state elected

officials b/c they can blame one another for the leg. To deal with radioactive waste, the gov. needs to make the tough decision on where to place disposal sites, and stand behind those decisions.

V. President's Powers

A. Domestic Affairs - The pres. doesn’t have extra-const. powers, the pres. can only exercise powers expressly or implicitly granted by the const. or a statute.

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The pres. lacks authority to seize private property outside the theatre of war unless authorized by statute.Youngstown Sheet & Tube v. Sawyer

Q: Did the pres. have the power to order the Sec. of Commerce to take possession of & operate most of the nation's steel mills?o Mill owners arg. the pres. overstepped his const. authority b/c the order amounts to legislating, a power the const. reserves

for cong. alone. Gov. says the order was justified to prevent a national emergency that’d occur if steel production was stopped, giving the pres. authority to make the order as the country's chief executive. The steelworkers were on a nation-wide strike & fed. mediation had failed to resolve the problem. Because steel is indispensable to the production of weapons, & we were involved in the Korean War, the pres. took over the mills to not jeopardize the war effort.

A: No. All of the pres.' powers must derive from the const. or cong. There's no statute authorizing the pres. to take possession of property., whether expressly or implied. Though there are two cong. acts that give the pres. authority to take property under specific conditions, the gov. admits those conditions weren't met.

o Gov. argues there isn't sufficient time to meet the conditions given the immediacy of the looming crisis. But SC points to cong.’s specific rejection of gov. seizures in time of emergency when rejecting the 1947 Taft-Harley Act b/c the technique of seizure would interfere with the process of collective bargaining.

o Gov. argues pres. had authority to issue the legislation through his aggregate const. powers under Art. II, through military power as commander in chief & exec. power to ensure execution of laws. SC rejects the military power arg. because it doesn't extend to seizing private property; this is a gov. act to end a labor dispute, which should be done by cong.

Frankfurter Concurrence: Exec. power isn't strictly limited to the words of the const., but to how pres.'s have exercised it, systematically, making it a part of the gov. structure & creating "a gloss on exec. power."

Jackson Concurrence: Const. diffuses power to secure liberty, but also envisions its practice will integrate dispersed powers into a workable gov. Pres. powers fluctuate depending on their degree of junction with cong.'s powers.

o Maximum exercise of pres. authority occurs when the pres. acts according to cong.'s express or implied authorization.o Without express or implied authorization pres. can rely solely on his independent powers, though pres. & cong. authority

overlap. Cong.'s failure to act can invite the exercise of the pres.' independent powers. o If the pres. is acting contrary to cong.'s express or implied will he's relying solely on his const. powers; courts can sustain

this action only by disabling cong. from acting upon it.

B. Foreign Affairs – Pres. has extra-const. powers in foreign affairs derived from the foreign affairs powers shared by all sovereigns. Art. II, Sec. 2 - Pres. has the power to make treaties with 2/3 of the senate vote. Executive Agreement - Agreement negotiated with a foreign nation by the pres. that doesn't require senate ratification.US v. Curtiss-Wright

Q: Is a delegation of legislative power to the pres. invalid if the joint resolution pertains only to foreign, not internal, affairs? A: Yes. The gov. was vested with external authority by virtue of its national sovereignty since the American Revolution. Powers

related to FA are necessarily vested in the gov. as inherent properties of nationality. The pres. alone is the nation's sole representative to foreign nations; he can negotiate alone.

o This power is not derived from a delegation of legislative power, & though it's still restricted by the const. it accords the pres. a greater degree of discretion & freedom from statutory restriction than allowed for domestic affairs.

Non-Delegation Doctrine – Limits the discretion cong. can give the pres. to enforce statutes related to domestic affairs. However, diplomacy needs require cong. to allow the pres. greater discretion & freedom from statutory restrictions in FA.

Pres. can practically exercise extra-const. FA powers b/c cts. won’t review the pres. actions b/c of the political question doctrine.

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o Example: The const. grants cong. the power to rescind treaties by statute, but doesn’t say whether the pres. acting alone has this power. SC refused to consider cong.’s challenge to the pres.’ rescission of a treaty.Goldwater v. Carter

Carter wanted to recognize the PRC as the sole gov. of China, thereby abrogating the US' treaty with the ROC that was in control of Taiwan. Sen. Goldwater sued to enjoin Carter from violating the treaty, but the D.C. ct. ruled the pres. hadn't exceeded his authority.

SC held that though DC reached the proper decision, the case should be dismissed because it's not ripe. A dispute between the pres. & cong. isn't ripe until both have acted to assert their const. authority. Because the disagreements between the two are mostly political, not legal, the judiciary shouldn't become involved until an impasse is reached.

o Though cong. argues the pres.' decision to recognize the PRC deprives cong. of their const. role to change the law of the land, they'd yet taken no action to assert this.

Stevens: The issue at hand is political & therefore nonjusticiable. The const. is silent as to whether the pres., acting alone, can abrogate a treaty. The political nature of the issue is by its direct relation to FA & b/c the treaty promises use of military force if a foreign gov. is attacked.

Brennan Dissent: The political question doctrine prevents courts from reviewing foreign policy decisions by the political branch that has the authority to make that decision. It cannot apply when the antecedent issue is whether the political branch had that authority in the first place. The const. gives the pres. alone the power to recognize foreign countries, therefore there's nothing to litigate because the pres. has the authority to abrogate a treaty as a means of achieving the ends of recognizing/withdrawing recognition from a foreign country.

C. Executive Privilege – Doctrine implied by the need to effectively enact executive power. Gives the pres.:1. An absolute right to keep confidential any communication with executive advisors regarding military, diplomatic, or sensitive

national security interests,2. A presumed right to keep confidential any communication with executive advisors on other subjects unless it conflicts with a

demonstrated, specific need to produce evidence for a pending criminal trial.US v. Nixon

Nixon supporters tried to break into & burglarize the Watergate Democratic Party HQ before the '72 election. Nixon didn't know of the crime in advance but tried to cover it up with help from his advisors later to avoid negative political consequences. The US AG brought Nixon before a grand jury to decide if he'd tried to obstruct justice, demanding access to tape recordings of Nixon's plotting with advisors.

Art. II, Sec. 2 gives the AG power to conduct US' criminal litigation. This power extends to naming representative. The AG named the Special Prosecutor as it's representative in this instance, with explicit power to contest claims of exec. priv.

o Nixon argued the subpoena created an intra-branch dispute between the exec. & his subordinate officer, therefore it isn't justiciable b/c it's not based on a case or controversy. SC counters that conflict between the SP & pres. is traditionally justiciable b/c of its concrete adverseness. Baker v. Carr

Nixon argues b/c the exec. has exclusive & absolute discretion on whether to prosecute a case, the pres.' decision on what evidence to use for a criminal trial should also be final. SC disagrees because the AG has the power to compel the exec. branch through the Special Prosecutor & the SP was appointed with approval from 8 cong. legislators.

Nixon's exec. priv. arg.: (i) importance of keeping communication with advisors confidential, (ii) separation of powers insulates the pres. from a judicial subpoena. SC counters neither creates an absolute & unqualified exec. priv. This would

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conflict with the judiciary's primary const. duty to deliver justice in criminal prosecutions. Legitimate needs of the judicial process outweigh exec. priv. because rule of law must be maintained.

VI. Separation of Powers

A. Unorthodox Attempts to Exercise Legislative Power

Cong. & the pres. can only exercise leg. power by enacting laws compliant with Art, I, Sec. 7’s Bicameralism & Presentment requirement. Leg. Power – Actions that have the purpose & effect of altering the legal rights, duties & relations of persons.

INS v. Chadha D is a British national admitted to the US on a student visa and overstayed. He filed for suspension of deportation based on the Immigration &

Nationality Act's Sec. 244(a)(1) exception for persons of good character who would suffer extreme hardship if deported. INS judge said D met the requirements & suspended deportation. Under the sec. cong. has the authority to veto the suspension by passing a resolution. If cong. doesn't act then the AG cancels all deportation proceedings. Rep. Eilberg wrote a veto resolution that was never made available to other House members, passed without debate or a recorded vote, and was never sent to the pres. D appeals b/c the sec. violates the bicameralism req.

Const. Convention records show the framers intended for all legislation to be shown to the pres. before becoming law. Madison specifically worried legislators would try to circumvent this req. by calling something a resolution instead of a bill. Lawmaking was a power to be shared by cong. & the pres. because the pres. has limited power to nullify legislation through veto.

o Art. I, Sec. 1&7 bicameral requirement requiring a majority vote to pass leg. was created to distribute power; an important constitutional protection ensuring distribution of power.

Four ways a chamber can act alone without the other chamber, creating law not subject to presidential veto: House initiates impeachments, Senate conducts impeachment trials, Senate approves or disapproves presidential appointments, Senate ratifies treaties negotiated by the pres.

Whether actions taken by either chamber of cong. are actually law depends not on their form but whether they contain matter that's legislative in character & effect. However, b/c the sec. violates the bicameral requirement though legislative, it’s unconst.

White Dissent: Court's decision invalidates every use of the leg. veto. Problem b/c it's the mechanism by which cong. ensures agencies and exec. officials are accountable. SC forced cong. into not delegating authority or creating overly specific laws. Cong. hasn't used the veto to expand its power at the expense of the other branches. Veto is necessary for cong. to retain its ultimate leg. authority, as required by Art. I, instead of letting agencies or exec. officials have the final say. Veto doesn't create laws any more than the pres. veto does; it's just a method of review.

Clinton v. City of NY Line item veto enabled the pres. to amend an act of cong. by repealing a portion of the leg. However, a repeal of a statute has to conform to Art.

I according to INS v. Chadha , and there's no provision in the const. authorizing the pres. to amend or repeal statutes. Pres. can only approve or veto a bill according to Art. I, Sec. 7, Cl. 2.

The line item veto isn't like the const. authorized veto b/c the latter occurs before the bill becomes law while the former occurs after the bill is already passed into law. Const. is silent on pres.' unilateral power to repeal or amend enacted statutes, & intentionally so because the leg. process was intended to be an exhaustive procedure involving debate.

o GW understood the Presentment Clause as requiring total approval or rejection.

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Gov. points to cong. statutes that give the pres. broad authority over the amount to spend & how it's allocated, therefore the line item veto cancellation is an allocation judgment. SC counters the veto gives the pres. unilateral authority not subject to cong.'s legislative intent, & is therefore both unconst. considering Art. I, Sec. 7, and inconsistent with any previous presidential behavior/interpretations of authority.

Breyer Dissent: The pres.’ reductive authority isn't limited by the const., but by the prohibition on delegating legislative authority. Pres. augmentation of laws is unconst. only when it violates the separation of powers. The veto is const. under Youngstown because the ct. should interpret nonliteral separation-of-powers conflicts in light of the need for a workable gov. The founders didn't envision the kind of impacted legislation that makes it unfeasible to separate spending provisions from other laws, which the pres. wouldn't have an opportunity to veto or approve separately. Therefore though novel, it's an adaptation to meet the needs of modern gov./legislative process.

Leg. cannot give exec. powers to (i) officials the pres. cannot remove, and, (ii) officials cong. can remove by any means other than impeachment & conviction.

Const. text doesn't expressly prohibit cong. from delegating it's leg. power to gov. actors but the SC ruled cong. cannot delegate its leg. power, can only delegate authority to make rules/policies that implement cong.'s statutes. Loving v. US

SC ruled that cong. impermissibly delegates leg. power only when it fails to provide an intelligible principle to guide an agency's or exec. official's exercise of discretion. Gives exec. officials considerable power to make policy decisions.

Removal by Federal Agencies: Executive – Pres. acting alone can remove head at will. (DoJ, DoD, State, etc.) Independent – Pres. acting alone can remove the head, but only for specified causes. (SSA, Fed. Reserve, FTC, FEC, etc.)

Still part of the exec. branch, exercises exec. power & head is usually appointed by pres. Legislative – Pres. acting alone cannot remove head. (Library of Cong., General Accounting Office, General Procurement Office, etc.)

Bowsher v. Synar Through the Gramm-Rudman-Hollings Act of 1985 cong. gave the Comptroller General power to decide amount by which annual budget

exceeds expected income, then the Pres. orders agencies to reduce their annual budgets by an amount stated in CG’s report. SC held cong. cannot retain removal power over any officer charged with the execution of the laws (except by impeachment) – this power

would amount to a cong. veto power over execution of the laws. The CG is executing the laws b/c he’s interpreting how the act’s provisions apply & deciding how to adjust the fed. budget accordingly.

B. Unorthodox Attempts to Exercise Executive Power

Appointments Clause – Permits cong. to give the cts. power to appoint inferior executive officers, like prosecutors, & gives cts. some discretion in defining the nature & scope of the appointed officer’s jurisdiction.

Art. III allows fed. judges to exercise ministerial functions that weren’t traditionally limited to the exec. branch. Cong. can impose restrictions on the pres.’ power to remove executive officials, such as a good cause requirement, unless the standard for

removal itself unduly impedes exec. authority. Morrison v. Olson

Ethics in Gov. Act requires the AG to notify the Special Division if the act is violated, recommending lawyers & their scope of jurisdiction to create an independent council. The SD then appts. counsel. Olson was under investigation for false testimony & subpoenaed by Morrison. Olson moved to quash for violation of the Appointments Clause, Art. II Sec. 2 cl. 2, b/c of Morrison's appt. as indep. counsel.

Const. recognizes two classes of officers for appts:1. Principal - Chosen by pres. with the senate's consent & advice.2. Inferior - Cong. can allow to be appt. by the pres. alone, by heads of depts., or by the judiciary.

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Morrison was an inferior officer b/c she was (i) subject to removal by the AG, an executive branch official, (ii) had limited duties, (iii) limited jur. assigned by the SD, & (iv) her office is temporary, to be terminated when action is completed by the counsel or SD.

SC rejects Ds arg. that the const. prohibits inter-branch appts. of exec officials to the judiciary b/c not only does the Appt. Clause text not have this limitation, but the phrase "as they think proper" gives cong. broad discretion.

Would only be a problem if the branch given appt. power, here the judiciary, had a work conflict that prevented them from performing their normal function in order to make the appt.

SC also rejects the applicability of its Buckley ruling that exec. or admin. duties of a non-judicial nature cannot be imposed on judges holding office under Art. III b/c the functions are analogous to those the judges already perform, they're not distinctly executive in nature. Though the power to terminate counsel isn't judicial it doesn't sufficiently encroach on exec. power to be unconst.

Neither cong nor the judiciary is trying to increase it's own power at the expense of the exec. branch. Myers v. US - Pres. has authority to discharge purely executive officials at will. v. Humphrey's Executor - Q: Do removal restrictions on quasi-

legislative or quasi-judicial officials impede the pres.' ability to perform his const. duty of properly/faithfully executing the laws? A: If no, then the exec. cannot terminate them at will.

Scalia Dissent: Art. II, sec. 1, cl. 1 vests all of the exec. power in the res, & b/c the act deprives the pres. of control over the decision of whether to criminally prosecute someone, a purely exec. decision/exercise of power. It's irrelevant that the infringement is insignificant b/c any is enough to violate the const. sep. of powers principle. Morrison isn't subordinate to anyone in her opinion/work, therefore she's not inferior.

C. State Attempts to Regulate the House & Senate

The only qualification requirements that can be imposed on members of cong. stem from Art. I, the states cannot impose additional qualifications by limiting candidate ability to have their name appear on general ballots.US Term Limits, Inc. v. Thornton

Ark. passed a law that no senator who’d served 2 terms & no rep who’d served 3 terms could have their name on the ballot for future elections; 14 states had similar laws. SC ruled this unconst.

Powell v. McCormack held that cong. cannot add to or alter the qualifications for membership dictated in the const. Allowing the states to do so would be inconsistent with Framers’ intent. The 10th Amend. doesn’t reserve term limits to the states b/c that decision power didn’t exist before the const. was adopted. Although states have the right to legislate the “manner” of elections (Art. I, §4, cl. 1), this leg. has the express intent of creating new restrictive candidate qualifications to increase turnover, doesn’t serve the purpose of holding “orderly elections.”

Dissent: 10th Amend. arg. has force b/c it’s the people, not the states, who reserve rights not granted to the fed by the const. & the people always had the right to determine who should represent them. The framers would’ve allowed the states to set their own qualifications for their delegates consistent w/ democratic principles. This holding prevents states from disqualifying mental incompetents or convicts from office.

VII. Legislative Power & Individual Rights

A. Bills of Attainder - Legislative acts determining guilt & inflicting punishment without judicial trial, prohibited the const. (Art. I, sec. 9, cl. 3) for both state & fed. gov. Cts. decide whether a law is a BoA by considering:

1. Precedent,2. Is the challenged statute within the historic meaning of leg. punishment? (imprisonment, death, forfeiture of employmeny)3. Does the statute further non-punitive leg. purposes? (objective)

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4. Does the leg. record evidence an intent to punish? (subjective) A law isn’t a BoA just b/c it only imposes burdens on one person. Recent BoA controversies: censure of Pres. Clinton, fed. law cutting off funds to ACORN, fed. law denying employment to

persons who didn't register for the draft. Const. sec. constitutes a prohibition, along with the K-Clause, written to secure liberty. BoA applies to legal liberty while the K-

Clause applies to economic liberty.Nixon v. Admin. Of General Services

Cong. passed the “Presidential Recordings & Materials Preservation Act” to prevent Nixon from destroying White House tapes & journals. Some were Nixon’s personal property, some were fed. docs which the pres. could arguably control disposition of, some possibly needed for Watergate prosecutions.

SC concluded: (1) Even if a bill singles out one individual it’s not a per-se a BoA; (2) Act isn’t punishment b/c Nixon is being compensated for any personal property taken – more like eminent domain than punishment; (3) Act isn’t punishment bc/c cong.’s intent is to preserve history; not punish for Watergate scandal.

Note: Construing cong.’s subjective intent is questionable b/c cong. is unlikely to ever admit its intent is to punish.

B. Impairment of Contracts by State Laws

K-Clause – Prohibits substantial impairment of existing Ks by state leg. unless the law is responding to an emergency, serving the legitimate ends of protecting society. Law cannot merely advantage particular individuals. (Art. I, Sec. 10, Cl. 1)

Created to prevent states from passing laws helping debtors at the expense of creditors. Ogden v. Saunders (1827) - The clause prohibits states from interfering with existing Ks, but doesn't limit state power to reg. the terms of future Ks. Stone v. Mississippi (1880) - States can interfere with existing Ks if they have a valid gov. interest for doing so.

Home Building & Loan v. Blaisdell During the Great Depression MN passed the Mortgage Moratorium Law allowing people facing foreclosure to obtain from cts. a time extension

delaying foreclosure & extending redemption time after foreclosure. SC decides that though an emergency cannot create power, increase granted power, or remove restrictions - it can create a reason to exercise

existing reserved power. Using reserved power temporarily in an emergency to maintain K conditions can be consistent with the const.'s intent behind the K Clause. If a state has power to give temporary relief from K enforcement due to natural disaster, then it should have the power to do so during economic disaster.

Const. isn't limited to the circumstances the founders could foresee when writing the const. Relies on Martial's statement in McCulloch to illustrate the const. is a living document.

SC has a growing recognition of public need & the relation of individual rights to public security. MN leg. was created during an emergency for a legitimate ends, not to advantage particular individuals but to generally protect the broad interests

of its society. The extension conditions are temporary, limited, & not unreasonable; they don’t affect the integrity of the mortgage process. Sutherland Dissent: The meaning of const. provisions never changes, only their application. They're not as flexible as common law doctrines. K

Clause prevents impairment even during emergencies, prevents impairment under any circumstance. MN’s substitution of payment from the debtor for a forfeited right to foreclose by the creditor is state interference in the K.

Cts. decide whether a law violates the K-Clause by considering:1. Is the law intended to address a broad, generalized economic or social problem?

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2. Is the law operating in a field already subject to state regulation at the time the affected Ks were created?3. Does the law merely temporarily alter K-relationships?4. Does the law apply to everyone party to an affected K or just a narrow group of people?

A state can impair a K by either decreasing or increasing the duties of a party.Allied Structural Steel v. Spannaus

MN passed the Private Pension Benefits Protections Act requiring employers to pay a pension fund charge if they (i) terminated a pension plan, (ii) closed a MN office, and at that time (iii) the existing pension funds were insufficient to pay the employees who'd worked at least 10 years. When P closed its MN office there were 9 employees without vested pension rights in the co. but were entitled to a pension anyway under MN law.

SC rules the law directly acts upon a co.'s K relationship with its employees. It substantially alters the relationship by retroactively superimposing pension obligations the co. didn't agree to.

States can interfere with Ks despite the K Clause only so long as the leg. is both necessary & reasonable. Blaisdell The severity of impairment indicates "the height of the hurdle" state leg. must clear to still be const . Minimal is generally

allowed, but severe requires investigation of the legislation's nature & purpose. K allows parties to rely on the obligations created. P had no reason to anticipate its employees' pension rights could

suddenly become vested, therefore MN's law's effect is severe. Wasn’t necessary b/c it doesn't protect a broad interest instead of a narrow class & wasn’t a response to desperate

economic conditions. Wasn’t reasonable b/c the alteration to K isn't temporary, it’s permanent.

C. Government Takings of Private Property – The 5th Amend. requires the gov. to pay just compensation when taking private property.

i. Possessory Takings – Confiscation of property, or requiring its owner to submit to a physical occupation of the property (whether complete or partial).

Yee v. City of Escondido CA Mobile Home Residency Law limits the reasons for which a park owner can terminate a home owner's tenancy, &

while the rental agreement is in effect the park owner cannot prevent the sale of the mobile home so long as the new purchaser can pay rent. Mobile home owners in Escondido can apply for a rent increase directly to city council, & council can approve it without vote if deemed fair. P argues the rent control ordinance violates the Takings Clause b/c if park owners can't set rent or choose their tenants the tenant gains an increase in the value of their mobile home at the owner's expense. The ordinance transferred a discrete interest in the land, the right to occupy the land indefinitely at submarket rent, to the mobile home owner.

A physical taking occurs only when the gov. compells a landowner to submit to the physical occupation of his land. CA law didn’t compel park owners because they voluntarily rent out their property. The law still allows eviction of tenants, therefore it hasn't taken away Ps right to exclude.

o Law merely regulates the use of the land in mobile landlord-tenant relationships; doesn't sufficiently impose to constitute a reg. taking. Ordinary rent control also transfers wealth from the landlord to the tenant, but this doesn't constitute a taking.

Though the fed. gov. has immunity for tort-nuisance, the ct. can construe direct & immediate interference with the use & enjoyment of a citizen’s property as a physical occupation requiring compensation.

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US v. Causby P sued after gov. planes flying low over his house required closing his chicken farm b/c they died from the loud noise.

SC affirms trial ct.’s judgment that the gov. effectively created an easement over Ps property. The gov. conceded in oral argument that if flights over P’s property rendered it uninhabitable there would be a taking

compensable under the 5th Amend. Though airspace is public domain, to have full enjoyment of his land a landowner must have exclusive control of the immediate atmosphere – otherwise he couldn’t build buildings or plant trees,

The ct. doesn’t precisely demark landowner’s atmosphere from the public domain, concluding instead that flights over private land aren’t a taking, unless they’re so low & frequent that they’re a direct & immediate interference with an owner’s enjoyment of his land.

ii. Public Use Requirement – Property can only be taken if it serves a public use, but the cts. will uphold a taking for private economic development if that development enacts a public purpose.Kelo v. City of NY

Co. was trying to acquire land to build up around a pharmaceutical co. that’d be built to provide jobs/income for the city. Co.’s authority granted by city council. The co. bought most of the land needed but Ps refused & the city initiated condemnation proceedings b/c the property obstructed the intended development area. Ps sued, alleging the gov. wasn't taking the property for public use b/c it was accommodating a pharm. co.

SC concludes a condemned property doesn’t need to literally be put to public use. A state can transfer property from one private individual to another so long as the property's final use is public; uses a broadly defined Public Purpose Test. Though the intended development area wasn't blighted SC defers to city's judgment that it was sufficiently economically distressed to warrant affirmative measures. The city's entire economic restructuring plan to bring in biz & build up residences is consistent with the public purpose necessary for the Takings Clause under Berman. Promoting economic development is a traditional function of government & cannot be distinguished from other recognized public purposes. The public, not the pharm. co., was the intended beneficiary of the taking/development plan.

Berman v. Parker - Condemnation of a non-blighted store in a blighted community was valid b/c an area must be planned as a whole.

Midkiff - State could validly transfer ownership licenses b/c reducing land ownership oligarchy is a public good. Immediate transfer to private individuals upon condemnation didn't reduce the public purpose.

States can impose stricter than federal public use requirements in recognition of the hardship imposed by takings. Dissent: In Berman & Midkaff the beneficial public purpose was created by taking property contributing to a harmful condition;

untrue of Ps property here. By recognizing a public purpose without harm the SC expanded the definition of public purpose, but b/c any taking has some incidental public benefit the SC effectively erased a restraint on ED. The decision favors citizens with disproportionate influence in the political process, & transfers property from those with fewer resources to those with more.

SC imposed only two limitations: (1) Ct. has to make sure the benefit isn't going to a private interest, &, (2) ED can only be used to upgrade property.

iii. Regulatory Takings – When gov. regulation so substantially decreases the value of, or, impairs the owner’s property interest that it amounts to a taking.

Laws restricting the sale of property are seldom takings though they cause a loss of future profits.22

Even if the gov. reg. reduces the value of the property, no compensation is required unless the reg. amounts to a taking. Cts. seek to preserve traditional property rights.

Andrus v. Allard Bird conservation acts prohibits economic transactions involving prohibited endangered birds. Applies even to birds

killed before the act went into effect. Ps were prosecuted for selling Indian artifacts with endangered bird feathers. Gov. reg. is the adjustment of rights for the public good; gov. isn't required to compensate everyone who's economic

activity is being curtailed as a result. Restrictions on property rights have to be viewed through their relative impact on a person's property rights as a whole. The cost imposed on Ps is part of the burden & "advantage of living & doing biz in a civilized community."

Though Ps lost the most profitable use of their artifacts, they can still profit from them (by charging to view their exhibition). The acts don't compel surrender of the artifacts, doesn't physically invade or restrain them. Loss of future profits is a weak is a weak basis for a takings claim.

A reg. that deprives the owner of all previously permissible economic use of their land is a per-se taking that “goes too far.”Lucas v. South Carolina

P purchased two lots in SC to build single family homes, but before he could begin construction SC passed a law banning building houses within a certain distance of the coast to prevent beach erosion. P sued arguing this was an uncompensated taking.

Recognized categories of regulatory compensation: (1) Regulations that compel the property owner to suffer a physical invasion of their property. Regardless of how minute the intrusion or how heavy the public/gov. interest, compensation is required. (2) Regulation denies all economically beneficial or productive use of the land. Total deprivation of use is equivalent to physical appropriation. However, the gov. can impose restrictive/harmful conditions on property affecting it's value/use without requiring compensation. Land-use regulation isn't a taking if it substantially advances legitimate state interests. Nollan v. CA Coastal Community

B/C SC is depriving Ps land of all beneficial use it can only avoid paying compensation by proving the current owner doesn't actually hold title to the land interests. Regulations that prohibit beneficial use of all land can no longer be created (unless they provide compensation), they can only be inherited through title as a result of previously existing state property & nuisance laws.

Blackmun Dissent: P isn't deprived of all beneficial use, he still has the right to exclude others, the most essential stick in the property rights bundle. P can camp there & alienate the land. State interests should be assigned heavy weight & SC is justified in it's land-use law.

Stevens Dissent: To say an owner deprived of 100% value receives compensation but an owner deprived of 95% value receives nothing is arbitrary. P assumed the risk in the property investment, & the State has legitimate interests, so the law isn't a taking.

VIII. State Action Doctrine – Though the const. restrains gov. action, it doesn’t limit the actions of private individuals & corps.The Civil Rights Cases In 1875 cong. passed a comprehensive CRA. All people were entitled to full & equal enjoyment of the accommodations, advantages, facilities,

etc. subject only to the conditions & limitations applicable to citizens of every race & color. The Solicitor General actively prosecuted violations, including against private individuals; CRA allowed both civil & criminal prosecution.

SC held 14th Amend. only prohibits states from denying equal protection. Sec. 1 nullifies all state leg. that impairs the privileges & immunities of citizens & Sec. 5 vests cong. with authority to enforce the amend. by passing laws correcting state laws. Cong. can pass laws that enforce

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the amend. against states, but not against municipalities or private actors. Therefore, until a prohibited state law has been passed, no fed. leg. enforcing the amend. can be passed. If the injury results from private action, unless it's state sanctioned it cannot be redressed through fed. law, must turn to state law.

The 13th Amend. can be enforced by cong. to correct any “badge or incident” of slavery. To hold all private racial discrimination to be a “badge or incident” would “run the slavery argument into the ground.” Social discrimination isn’t part of slavery; only legal discrimination is (property rights, ability to contract, etc.), therefore private individuals can’t be fed. prosecuted for social discrimination. Individuals cannot destroy another's rights, just interfere with their use/enjoyment, for which they can be punished by state law.

Harlan Dissent: When corps. are engaged in public or quasi-public things, it’s a badge of slavery for them to keep out blacks/former slaves. The 14th Amend. made blacks citizens, and citizens must have equal rights/freedom from discrimination. If private entities are involved in public functions, that should be recognized as state action.

A. Public Function Exception – Applies const. limitations to private actors when they engage in activity traditionally exclusively reserved to the gov. Though a corp. town, functioning like a city, must ensure First Amend. protections, a shopping center doesn’t need to.Marsh v. Alabama

Jehovah’s Witness arrested for trespassing on private property by distributing religious writings. The property was a street-corner in a Chickasaw, Alabama company town.

SC followed Harlan in the Civil Rights Cases & concluded that if a private actor is doing all of the functions expected of a government (here, running a town), it will be deemed to be a state actor. Otherwise, there would be millions of people living in company towns exempt from the protections of the Constitution. Also, b/c the state government imposed criminal sanctions, there’s a state actor involved; but this arg. can’t be stretched very far.

Hudgens v. NLRB Labor union members picketing inside a mall were removed under threat of criminal prosecution for trespassing. Previously, SC held in Logan Valley held that a mall must allow picketers, because a mall “is the functional equivalent of the business

district of Chickasaw in Marsh.” But later the SC distinguished in Lloyd Corp. that a mall does not have to permit war protestors because they could protest elsewhere.

SC finally held that a mall doesn’t qualify as a “state actor” b/c it doesn’t perform all the functions of a town. Overruled Logan Valley.

B. Judicial Enforcement Exception – A ct.’s enforcement of a private K may constitute state action. Enforcing a restrictive covenant requiring an unwilling party to racially discriminate violates the 14th Amend.

Shelley v. Kramer Fitzgerald willingly sold his home to the Shelleys, a black couple. Neighbors (Kraemer) sought to enforce racially-restrictive covenant

to bar Shelleys from moving in. SC prevented the covenant’s enforcement by deciding there’s state action when cts. enforce a racially-restrictive covenant. This has

been limited in application to those cases where the cts. would force a party to discriminate against his will.

C. Joint Participation Exception – A private party engages in state action when:1. Acting with & having a close, interdependent financial relationship with the gov.

Example: Leasing a public building.Burton v. Wilmington Parking Authority

Coffee shop renting space in a city-owned garage discriminates against blacks. Shop gets tax benefits from city, patrons from the parking garage, & City gets rent & increased parking revenue from the shop’s customers.

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SC ruled the shop was a state actor b/c it has a close & interdependent financial relationship with the city such that there’s effectively joint participation in the discrimination. Relevant factors: (1) mutual benefits (city benefits from shop’s discrimination when shop has more customers), (2) the appearance of city interest (state flags flying on the building), & (3) city inaction to prevent discrimination (could’ve made this a term in the lease).

2. The private party exercises powers under a statute/law in circumstances that make it fair to conclude they’re a state actor.Lugar v. Edmondson Oil Co.

Finds state action where a VA statute allows allows a private party to cause the government to seize his opponent’s property prior to any trial: violates DP. The state statute permits the seizure, and the sheriff executes the confiscation, therefore the gov. is backing the private actor, such that there is joint participation under the statute.

Test for State Actor where deprivation is under state law/rule: whether the actor “may fairly be said to be a state actor.” Might be b/c he’s a state official, or has worked together w/ a state official, or conduct is otherwise linked to the state.

Edmonson v. Leesville Concrete Co. SC decides the jury selection process is “state action” b/c it proceeds pursuant to ct. authority. It’s not permissible to

discriminate against jurors (use peremptory challenges) on the basis of race during the voir dire process.

3. When the gov. or it’s officials take action in a conspiracy with the private party.NCAA v. Tarkanian

UNLV’s basketball coach was fired b/c the NCAA imposed sanctions on the school requiring them to fire coach. UNLV didn’t want to but submitted to NCAA . Coach sued UNLV (a state school) and the NCAA for denying him DP. Tarkanian argued that UNLV & NCAA jointly participated b/c UNLV enacted NCAA’s rules; NCAA exerted control over UNLV to make the state actor do its bidding.

Q: Is the NCAA is a state actor due to its coordinated actions with UNLV? This is a would-be “mirror image” case b/c the private party isn’t a state official & didn’t itself enact the challenged action.

A: SC rules the NCAA isn’t a state actor b/c there was no conspiracy/joint participation b/c the NCAA and UNLV had conflicting interests.

Dennis v. Sparks A private co. bribed a TX state judge to issue an injunction prohibiting P from producing oil on his property. The SC held the

co. could be sued under fed law even though it is not a state agent and didn’t issue the injunction itself b/c the co. conspired with a state official to deprive P of DP. The private co. acted as a “mirror image” of the state.

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