Constitutional Law. P. Bellia, Spring 2008. Randy Barnett Casebook1. Modalities of Constitutional Interpretation

1.1. Textual Arguments

1.2. Original Meaning

1.3. Original Intent

1.4. Structural

1.5. Precedent

1.6. Tradition

1.7. "Grand Theoretical"

1.8. Purpose of Constitution Arguments

2. The Evolution of Constitutional Law2.1. First Constitutional Controversies

2.1.1. Constitutionality of the Bank of the US

2.1.1.1. Madison: Power to incorporate a bank not within the powers expressly granted to federal government

2.1.1.2. Hamilton: Broad conception of N&P clause; makes structural, textual, original intent arguments

2.1.1.2.1. Advocates deference to Congress, and argues that they should get broad discretion (prevailing view)

2.1.1.2.2. Implied Powers are to be considered as delegated equally with express ones

2.1.2. Fundamental principles vs. Express Constraints (Calder v. Bull)

2.1.2.1. Chase: Argues for "vital principles in our free Republican governments"

2.1.2.1.1. Arguments based on "natural law," or "principles of natural justice"

2.1.2.1.2. Argues that any act of the legislature contrary to the social compact is not a rightful exercise of legislative authority

2.1.2.2. Iredell: Legislative power must have limitations on what it may enact

2.1.2.2.1. Our Constitution defines, with precision, the objects and restraints of legislative power

2.1.2.2.2. Any act violating the Constitutional provisions is thus void

2.1.2.2.2.1. Court cannot pronounce an act void simply b/c it is contrary to the principles of natural justice; it must actually beunconstitutional to be declared void

3. The Marshall Court3.1. The Judicial Power (Marbury v. Madison)

3.1.1. Judicial Review - "it is emphatically the province and duty of the

judicial department to say what the law is"

3.1.1.1. If two laws conflict with each other, the courts must decide on the operation of each

3.1.1.2. The judicial power of the United States is extended to all cases arising under the Constitution

3.1.1.3. Main idea: The judiciary has the ability to rule on the Constitutionality of the actions of other branches of government

3.1.1.3.1. Includes the power to nullify unconstitutional legislation

3.1.1.3.2. Court sees itself as the authoritative, privileged, and supreme interpreter of the Constitution

3.1.2. Fletcher v. Peck

3.1.2.1. A Legislature is competent to repeal any act which a former legislature was competent to pass, and that one legislature cannotabridge the powers of a succeeding legislature

3.1.2.1.1. BUT, if an act be done under a law, a succeeding legislature cannot undo it

3.1.2.1.2. Constitution prohibits Bills of attainder and ex post facto laws

3.1.2.1.2.1. Bill of attainder - a law that declares some person or group guilty of a crime and imposes punishment without benefit of a trial

3.1.2.1.2.2. Ex post facto law - a law which renders an act punishable in a manner in which it was not punishable when ti was committed

3.1.3. Martin v. Hunter's Lessee

3.1.3.1. Supreme Court can review the decisions of state courts even though they are not within the federal system

3.1.3.1.1. Constitution was not established by the states, but by "the people"

3.1.3.1.1.1. "The people" made the powers of State governments, in given cases, subordinate to those of the nation

3.1.3.1.1.2. Supreme Court, in Article III, given jurisdiction over "all" cases arising under federal law

3.1.3.1.1.3. Constitution is "supreme law of the land"

3.1.3.2. Federal Courts can declare unconstitutional the acts of state governments

3.1.3.2.1. S.C. given original jurisdiction in some cases and appellate jurisdiction in others

3.1.3.2.1.1. If inferior federal courts had not been created, then it stands to reason that the appellate jurisdiction would HAVE to come from review of state court cases

3.2. The Necessary & Proper Clause (McCulloch v. Maryland)3.2.1. "Let the ends be legitimate, let it be within the scope of the

constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

3.2.1.1. Marshall argues for deference to Congressional action

3.2.1.1.1. Construction of the Constitution must allow the legislature

SOME discretion

3.2.1.2. N&P Clause is placed among the powers of congress, not among the limitations of those powers

3.2.1.2.1. So it's an expansion of power

3.2.1.3. Terms of N&P clause purport to enlarge, rather than diminish the powers vested in the government

3.2.1.3.1. If Congress adopted measures contrary to the Constitution, it would be the painful duty of this tribunal to nullify such an act

3.2.2. Side issue: States have no supremacy over the federal government

3.2.2.1. States have no power to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress

3.2.3. Andrew Jackson's Veto denying reauthorization of 2nd BUS charter

3.2.3.1. Precedent is a dangerous source of authority

3.2.3.2. Oath argument: Each federal officer takes an oath to uphold the Constitution and that he will support it as HE understands it, not as it is understood by others

3.2.3.2.1. Essentially says that the executive AND legislative get to interpret the Constitution as well

3.3. The Commerce Clause (Gibbons v. Ogden)3.3.1. The fountainhead of commerce clause interpretation

3.3.2. "Commerce" means traffic, but more - intercourse (not merely buying and selling)

3.3.2.1. Includes navigation

3.3.3. Word "among" means "intermingled with"

3.3.3.1. Commerce among the states cannot stop at the external boundary line of each state

3.3.3.1.1. May be introduced into the interior

3.3.3.2. Argued that commerce clause should only apply where the issue concerns more than one state

3.3.3.2.1. Completely internal commerce of a state may be reserved to the state itself

3.3.4. If Congress has the power to regulate, this power must be exercised whenever the subject exists

3.3.4.1. The power to regulate is the power to prescribe the rule by which commerce is to be governed

3.3.4.2. States CANNOT regulate commerce with foreign nations/among the states while Congress is regulating it

3.3.5. Do states have a concurrent power?

3.3.5.1. The same measures may flow from distinct powers, but this does not prove that the powers themselves are identical

3.3.6. Willson v. Black Bird Creek Marsh Co.

3.3.6.1. In the absence of Congressional action, a state may regulate

commerce

3.3.6.1.1. "Measures calculated to produce such objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the states"

3.3.6.1.2. This is the idea of the "Dormant commerce clause"

3.3.6.1.2.1. Does NOT allow protectionist commercial regulation by a state; otherwise, state regulation is ok

3.3.6.2. Doctrine: There is a realm of overlap between unexercised congressional commerce power and the state's police power; that iswhat we have in this case

3.3.6.2.1. The state has power to regulate when the Congress has not taken any action

3.4. The Bill of Rights (Barron v. Baltimore)3.4.1. Bill of Rights was NOT intended to apply against the states, but to

the federal government

3.4.1.1. Each state established a Constitution for itself

3.4.1.1.1. The State Constitutions contain restrictions on the state governments

3.4.1.1.2. If people want changes in the state governments, the remedy is in their own hands

3.4.1.1.3. Had Congress intended to improve the constitutions of the several states, they would have declared this purpose in plain language

3.4.1.1.4. 5th amendment restrains the power of the general government, not the states

3.4.1.1.4.1. Bill of Rights amendments contain no expression indicating an intention to apply them to state governments

3.4.2. Theme of Marshall Court: Continued fear of federal power (emphasized here)

3.4.2.1. Fear of Taney Court will be fear of state governments

4. The Taney Court4.1. Slavery and the Constitution

4.1.1. The Fugitive Slave Clause & the Enforcement Power of Congress (Prigg v. Pennsylvania)

4.1.1.1. Holding: The owner of a slave has the entire authority, in every state, to seize and recapture his slave, w/o any breach of the peace or illegal violence

4.1.1.2. National government is clothed with the appropriate authority and functions to enforce the clause

4.1.1.2.1. Fundamental principle: Where the end is REQUIRED, the means are given

4.1.1.2.2. It is the duty of the federal government to enforce this clause

4.1.1.2.2.1. Power of legislation upon this subject is exclusive in the national government

4.1.1.2.2.1.1. But states still possess the police power; they can still arrest

and restrain runaway slaves

4.1.1.2.2.1.2. State regulations may NEVER be permitted to interfere with or obstruct the just rights of the owner to reclaim his slave

4.1.2. Citizenship and the Missouri Compromise (Dred Scott v. Sanford)

4.1.2.1. Question 1: Is Dred Scott a citizen?

4.1.2.1.1. No, and therefore there is no diversity of citizenship; thus Supreme Court does not have authority to hear the case

4.1.2.1.1.1. Words "people of the United States" and "citizen" are synonymous

4.1.2.1.1.1.1. Slaves are a distinct class of persons that differ from citizens, and are discussed separately from citizens in the Constitution

4.1.2.1.1.1.1.1. This class was not acknowledged as part "of the people" at the time of the founding

4.1.2.1.1.1.1.2. Treated as a separate class in the clause stipulating the importation ban on slaves after 1808

4.1.2.1.1.1.1.3. Treated as a separate class in the fugitive slave clause

4.1.2.1.1.2. Right of Naturalization

4.1.2.1.1.2.1. Surrendered by the states and confided to the federal government

4.1.2.1.1.2.2. Missouri did not have the power to naturalize Scott as a US citizen

4.1.2.1.1.2.3. S.C. says that the rule of naturalization is confined to persons born in a foreign country

4.1.2.1.1.2.3.1. It is not the power to raise to the rank of a citizen anyone born in the US who belongs to an inferior and subordinate class

4.1.2.2. Question 2: Is the Missouri Compromise constitutional?

4.1.2.2.1. No, because no power is given to acquire a territory to be held and governed permanently in character

4.1.2.2.1.1. Thus Scott cannot claim freedom by virtue of being in a free state

4.1.2.2.2. To deprive a slaveowner of his slave (property) would be a denial of due process of law

4.1.2.2.2.1. If a slaveowner is deprived of his slave because of bringing him into a free state, he has been deprived of property without due process

5. The Civil War5.1. The Constitutionality of Secession

5.1.1. Jefferson Davis

5.1.1.1. Argued that the states unified, as sovereigns, at the time of the signing of the Declaration of Independence

5.1.1.1.1. The right to secede was thus claimed at the birth of the United States

5.1.1.1.1.1. This is the right of the people to resume the authority delegated for the purposes of government

5.1.2. Abraham Lincoln

5.1.2.1. Argued that secession or rebellion is treason

5.1.2.1.1. States have neither more nor less power than is reserved to them by the Constitution

5.1.2.1.2. Original states became part of the Union even before they cast off their British colonial dependence

5.1.2.2. States have status IN the Union, but no other legal status

5.1.2.3. State sovereignty

5.1.2.3.1. Not mentioned in US constitution

5.1.2.3.2. Not mentioned in ANY state constitution

5.1.2.4. Debts argument

5.1.2.4.1. US govt. bought territories out of which many states were formed

5.1.2.4.2. If one state may secede, so may another; when all shall have seceded, none will be left to pay the debts

5.2. The Presidential Power in Wartime5.2.1. Power to Suspend the Writ of Habeas Corpus

5.2.1.1. Ex Parte Merryman - Circuit Court, written by Taney

5.2.1.1.1. Constitution allows for suspension of the writ of habeas corpus in times of rebellion or invasion, but this provision is inArticle I, which concerns the powers of Congress

5.2.1.1.1.1. Taney argued that the president did not have this power, but rather that it lay with Congress

5.2.1.1.1.2. If president was intended to have this power, it would have been listed in Article II

5.2.1.1.2. President has a duty to "take care that the laws shall be faithfully executed"

5.2.1.1.2.1. In exercising the power of suspension of the writ he acts in subordination to judicial authority

5.2.1.1.2.1.1. Essentially, Taney is rejecting the view that the president can interpret the laws as well

5.2.1.2. Lincoln's Response

5.2.1.2.1. Suspension of habeas corpus was used very sparingly

5.2.1.2.1.1. Constitution is SILENT as to who may exercise the power

5.2.1.2.1.2. Can't be believed that framers intended danger should run its course until Congress could be called together to suspend writ

5.2.1.2.2. The whole of the laws which were to be faithfully executed were being resisted in nearly 1/3 of the states

5.2.1.2.2.1. Should he have ignored those that were being broken to POTENTIALLY violate this one?

5.2.2. The Power to Emancipate Slaves

5.2.2.1. Emancipation Proclamation

5.2.2.1.1. Only aimed to free slaves in territory controlled by Confederates

5.2.2.1.2. By making the war "about slavery," rather than solely about the Union, Lincoln could hope to keep the British government from allying with the South

5.2.2.1.3. Frees slaves via his commander-in-chief power

5.2.2.2. Objections to Emancipation Proclamation (Benjamin Curtis, former Supreme Court Justice)

5.2.2.2.1. The power to abolish slavery within the states was not delegated to the federal government in the Constitution, but was reserved to the states

5.2.2.2.2. The president's executive power should not encompass confiscation of property (slaves) in a time of war

5.2.2.2.2.1. If the president has an implied Constitutional right to disregard any one positive prohibition in the Constitution, he hasthe same right to disregard each and every provision

5.2.2.2.2.2. The president is general-in-chief, but may not disregard the laws of his own country

5.2.2.2.3. Powers of the president are merely executive; he cannot make or repeal laws

5.2.2.2.3.1. He is not the military commander of citizens of the US, but of its soldiers

5.2.2.2.4. The Constitution is as much the supreme law of the land in the South today as it was before the void act of secession was attempted

5.2.3. The Power of the Commander-In-Chief (The Prize Cases)

5.2.3.1. Right of prize and capture has its origin in jus belli

5.2.3.1.1. To legitimate the cpature of a neutral vessel or property on the high seas, a war must exist de facto

5.2.3.1.2. Majority intimates that a state of war existed already between North and South

5.2.3.1.2.1. It is not necessary to constitute war that both parties are independent sovereignties

5.2.3.2. By Constitution, Congress alone has the power to declare war

5.2.3.2.1. Congress cannot declare war against a state, or any number of states, by virtue of any clause in the Const.

5.2.3.2.1.1. Note: When these ships were seized, Congress had not declared war on the Confederacy

5.2.3.2.2. HOWEVER, the President is authorized to suppress insurrections, as here

5.2.3.2.2.1. Therefore, the president had a right, jure belli, to institute a blockade of ports in possession of the states in rebellion, which neutrals are bound to regard

5.2.3.3. Importance: This case effectively confirms the Emancipation Proclamation

5.2.3.3.1. If the president can lawfully take the property of loyal citizens of rebel states, he can also, by implication, take the property of those in rebellion

5.3. The Power to Establish Military Tribunals (Ex Parte Milligan)5.3.1. Constitution provides for the trial of all crimes by jury

5.3.1.1. Military jurisdiction is subordinate to the Supreme Court's jurisdiction, which has the WHOLE of the judicial power

5.3.1.2. The right of a trial by jury is preserved to everyone accused of a crime who is not attached to the army, navy, or militia in actual service (as here)

5.3.1.2.1. Martial law such as this destroys the Constitution

5.3.1.2.1.1. Martial law cannot arise from a threatened invasion; the need must be actual and present

5.3.1.2.1.2. Martial law can NEVER EXIST when the courts are open

5.3.2. Neither Congress NOR the President can authorize military tribunals when the courts are open

5.3.2.1. This is a landmark decision protecting civil rights, and particularly upholding amendments IV, V, and VI

6. The Reconstruction Era6.1. Limiting the Privileges or Immunities Clause (The

Slaughterhouse Cases)6.1.1. Privileges or Immunities Clause is within Section 1 of the 14th

Amendment

6.1.1.1. "No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States"

6.1.1.2. Was intended to apply mainly to state legislatures and deals with law-making

6.1.1.2.1. Because of Slaughter-House cases, now protects almost nothing

6.1.2. Court upheld state law on the basis of its police power

6.1.2.1. The police power is incapable of any very exact definition or limitation

6.1.2.1.1. This statute was framed for the convenience, health, and comfort of citizens, which are all within the police power

6.1.3. Court draws a distinction between state citizenship and US citizenship

6.1.3.1. The 14th amendment only protects US citizens, not state citizens

6.1.3.2. **The "privileges or immunities" are those which belong to the states as such, and these are left to the state governments for security and protection**

6.1.3.2.1. Dissents proffered by Field, Bradley, and Swayne

6.1.4. Substantive v. Procedural Due Process

6.1.4.1. Butchers had made a substantive due process claim, ultimately rejected, that there was a deprivation of property that was unlawful for the government to undergo

6.1.4.1.1. Substantive Due Process - Government can't do it, no matter what procedure is followed

6.1.4.1.2. Procedural Due Process - Government can't do it this way, but can do it in another procedural manner

6.2. The Commerce Clause and Necessary & Proper Clause (The

Legal Tender Cases) BELLIA EMPHASIZED (Concourse)6.2.1. Historical (at Founding):

6.2.1.1. Note: A promise to pay an obligation using specie

6.2.1.2. Bill: Fulfilled the (payment) obligation then and there

6.2.1.2.1. The Legal Tender Act removed notes/bills from their association with gold

6.2.1.2.1.1. Federal Government was not constitutionally prohibited from emitting bills of credit, as states were

6.2.1.2.1.2. Act allowed the government to issue paper money ("greenbacks")

6.2.2. Relevant Constitutional Provisions:

6.2.2.1. Art. I, Section 10: "No state shall...coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts."

6.2.2.2. Art. I, Section 8: "The Congress shall have power to...coin money, regulate the value thereof, and of foreign coin..."

6.2.2.3. Art. I, Section 8: "The Congress shall have power to...borrow Money on the credit of the United States."

6.2.3. United States v. Dewitt 1869

6.2.3.1. Note: Chase was Secretary of the Treasury under Lincoln; he is fairly resistant to the Legal Tender Act, even though he was the one who asked for it

6.2.3.2. Inseparability of the Commerce Clause and the Necessary & Proper Clause

6.2.3.3. Court holds that Congress does not have the power under the Constitution to prohibit trade within the limits of a State

6.2.3.3.1. This is within the police power of a state, relating only to the internal trade thereof

6.2.4. Hepburn v. Griswold

6.2.4.1. Court argues an interpretive method that acts are constitutional until proven otherwise

6.2.4.1.1. Here, they contend that it has been proven otherwise

6.2.4.1.2. Application of the Necessary & Proper Clause

6.2.4.1.2.1. Legal Tender Act does not fall within the powers enumerated under the coinage clause

6.2.4.1.2.2. Does not fall under the power of carrying on war (because every power relates to money)

6.2.4.1.3. Court ultimately takes a less deferential view to Congress than in McCulloch v. Maryland

6.2.4.2. Implied powers are extensive, but are limited to those that are "necessary and proper" for carrying out the expressed powers

6.2.4.2.1. The rule for determining whether a legislative enactment can be supported as an exercise of an implied power was stated in McCulloch v. Maryland:

6.2.4.2.1.1. "Let the end be legitimate, let it be w/in the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, are Constitutional"

6.2.4.2.2. Holding: An act making promises to pay dollars as legal tender in payment of debts previously contracted is NOT a means appropriate, plainly adapted, really calculated to carry into effect any express power vested in Congress

6.2.4.2.2.1. The power to make notes a legal tender is not the exact same thing as the power to issue notes to be used as currency

6.2.5. Knox v. Lee (REVERSES Hepburn only a year later)

6.2.5.1. Holding: Legal Tender Acts are constitutional when applied to contracts made before their passage, and they are valid as applicable to debts contracted since their enactment

6.2.5.1.1. Policy reasoning:

6.2.5.1.1.1. If Congress didn't have this power, fed. Govt. wouldn't have means of self-preservation

6.2.5.1.1.1.1. Constitution's objective was to establish a government capable of self-preservation; it is unreasonable to construe the document to deny this power

6.2.5.1.1.1.1.1. Right of self-preservation given via Necessary & Proper Clause

6.2.5.1.1.2. A decision holding paper money invalid as legal currency would cause financial disarray

6.2.5.1.2. Role of judiciary:

6.2.5.1.2.1. Judiciary should presume, until the contrary is shown, that there has been no transgression of power by Congress

6.2.5.1.2.2. It is not the judiciary's role to decide if there was some "better" means to accomplish these ends

6.2.5.1.2.2.1. There only needs to be some relation between means and end

6.2.5.1.2.2.1.1. That relationship does NOT have to be "direct' and "immediate"

6.2.5.1.3. Implied Powers can be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined

6.2.5.1.3.1. This is what N&P Clause allows: conglomerating multiple enumerated powers to give rise to implied powers

6.2.5.1.3.1.1. Auxiliary powers are given expressly via the N&P clause

6.2.5.1.3.2. Also advocates implied powers test of McCulloch (but adds to it, obviously)

6.2.5.1.4. Emergency rationale:

6.2.5.1.4.1. Acts adapted to the exercise of a lawful power, and appropriate to it, in seasons of exigency, are acceptable even if they might be inappropriate at other times

6.2.5.1.5. "Spirit" of the Constitution

6.2.5.1.5.1. General power over currency was clearly intended

6.2.5.1.5.1.1. Whatever power there is over currency was vested in Congress and specifically denied to the states

6.2.5.1.5.1.2. Gift of power to coin and regulate money was understood as

conveying general power over currency

6.2.6. Juilliard v. Greenman

6.2.6.1. States are forbidden, but Congress is expressly authorized, to coin money

6.2.6.2. The States are prohibited from emitting bills of credit, but Congress has this power

6.2.6.2.1. Congress thus has the power to issue legal tender

6.2.6.2.1.1. Congress has the power of both coning money and regulating foreign and interstate commerce

6.2.6.2.1.1.1. Taken together (via N&P), this implies the power to establish a national currency

6.2.6.2.1.1.2. Impressing upon the treasury notes of the U.S. the quality of being legal tender in payment of private debts is an appropriate means

7. The Progressive Era7.1. The Commerce Clause and Necessary & Proper Clause

7.1.1. United States v. E.C. Knight Co.

7.1.1.1. That which belongs to commerce is within the jurisdiction of the United States, but that which does not belong to commerce is within the jurisdiction of the police power of the State

7.1.1.1.1. General government can regulate all articles of general consumption

7.1.1.1.2. BUT, commerce succeeds to manufacture and is NOT a part of it

7.1.1.1.2.1. At this time, there was still a distinction being drawn between manufacture and commerce

7.1.1.1.2.2. The fact that an article is manufactured for export to another state does not of itself make it an article of interstate commerce

7.1.2. Champion v. Ames (The Lottery Case)

7.1.2.1. The power to regulate commerce includes the power to prohibit

7.1.2.1.1. Congress power to regulate interstate commerce is plenary (complete in itself)

7.1.2.1.1.1. It is subject to no limitations except those provided in the Constitution

7.1.3. Hammer v. Dagenhart (Later overruled by United States v. Darby)

7.1.3.1. Facts: Dealt with child labor law which was intended to prevent interstate commerce in the products of child labor (no goods that are produced via child labor may cross state lines)

7.1.3.2. Again distinguishes between commerce and manufacture

7.1.3.2.1. The act in its effect does NOT regulate transportation among the States, but aims to standardize the ages at which children may be employed in mining and manufacturing within the states

7.1.3.2.2. The goods shipped are harmless

7.1.3.2.2.1. Differs from prostitution, or impure foods, or gambling, which had previously been prohibited via Congressional power to

regulate interstate commerce

7.1.3.3. In interpreting the Constitution, it must never be forgotten that the nation is made up of States to which are entrusted the powers of local government

7.1.3.3.1. The states have the power to regulate their purely internal affairs

7.1.3.3.2. This is a purely state authority

7.2. The Due Process Clause of the Fifth and Fourteenth Amendments7.2.1. The Court found limits on both state and federal powers under the

Due Process clauses of these two amendments

7.2.2. Chicago, Burlington, & Quincy Railroad Co. v. City of Chicago

7.2.2.1. Property shall not be taken for public use without just compensation

7.2.2.1.1. Due process of law in each particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs

7.2.2.1.1.1. The restraints are that, when specific property is taken, a pecuniary compensation, agreed upon or determined by judicial inquiry, must be paid

7.2.2.2. This is one of the first places we can identify a substantive component to the due process clause (requiring just compensation)

7.2.3. Lochner v. State of New York (NO LONGER GOOD LAW; OVERRULED)

7.2.3.1. "Right of contract" is party of the liberty of the individual protected by the 14th Amendment

7.2.3.2. Police powers of a state deal with the safety, health, morals, and general welfare of the public

7.2.3.2.1. These are the limits of a state power

7.2.3.2.2. But almost all trade can come under some sort of "health" regulation

7.2.3.2.2.1. A law such as this (Bakeshop Act) is actually NOT within the health power and is invalid

7.2.3.2.2.2. It is not a health law but actually a law designed to interfere with freedom of contract (the rights to negotiate regarding labor)

7.2.3.2.2.2.1. Legislature has no power to limit this liberty of contract that was guaranteed under the due process clause of 14th amendment

7.2.3.2.2.3. Statute has no direct relation to, and no substantial effect upon, the health of the employee

7.2.3.2.2.3.1. Dissent offered by Holmes rejecting the notion of "liberty of contract"

7.2.4. Muller v. State of Oregon

7.2.4.1. The difference between the sexes justifies a different rule

respecting a restriction on the hours of labor (Thus does NOT overturn Lochner)

7.2.4.1.1. Healthy mothers produce healthy offspring, which is an object of public interest

7.2.4.2. Again acknowledged "liberty of contract" protected by 14th amendment

7.2.4.2.1. This liberty is not absolute; it may be restricted by a state in many ways

7.2.4.2.1.1. This law has enough of a direct relation to public health/public interest

7.2.5. Adkins v. Children's Hospital of District of Columbia (Freedom of Contract)

7.2.5.1. Every possible presumption is in favor of the validity of an act of Congress until overcome beyond rational doubt

7.2.5.1.1. This statute was criticized on the ground that it authorized an unconstitutional interference with the freedom of contract included within the guarantees of the due process clause of the FIFTH amendment (other cases have dealt w/14th)

7.2.5.2. Liberty of contract - parties have an equal right to obtain from each other the best terms they can as the result of private bargaining

7.2.5.2.1. No such thing as "absolute" freedom of contract

7.2.5.2.2. When is interference allowed?

7.2.5.2.2.1. Those dealing with statutes fixing rates and charges to be exacted by businesses impressed with a public interest

7.2.5.2.2.2. Statutes relating to contracts for the performance of public work

7.2.5.2.2.3. Statutes prescribing the character, methods, and time for payment of wages

7.2.5.2.2.4. Statutes fixing hours of labor

7.2.5.3. This statute is invalid

7.2.5.3.1. It exacts from the employer an arbitrary payment for a purpose and upon a basis having no causal connection with his business

7.2.5.3.2. A statute which prescribes payment solely with relation to circumstances apart from the contract of employment is the product of a naked, arbitrary exercise of pwoer

7.2.5.4. Dissent of Holmes

7.2.5.4.1. "Liberty of contract" is not specifically mentioned in the text ofthe Constitution

8. The New Deal (And Post-New Deal) Court (A shift in constitutional law concerning first the due process clause, and later the commerce clause)8.1. Contracts Clause (Home Building & Loan Assoc. v. Blaisdell)

8.1.1. Article I, Section 10: "No state shall pass any law impairing the obligation of contracts."

8.1.2. Emergency

8.1.2.1. Does not create power, or increase power

8.1.2.1.1. The Constitution was adopted in a period of grave emergency, and thus cannot be altered by emergency

8.1.2.1.2. The Constitutional question presented in the light of an emergency is whether the power possessed embraces the particular exercise of it in response to particular conditions

8.1.3. Legislative deference

8.1.3.1. This idea lost in the Lochner-era cases, but resurfaces here

8.1.3.2. The question is whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end

8.1.3.2.1. This mortgage moratorium law is within the police power of the state

8.1.3.2.1.1. The relief afforded by the law is justified by the emergency and is only of a character appropriate to that emergency, and granted only on reasonable conditions

8.1.3.2.1.1.1. Does not thus violate the contract clause of Constitution

8.1.3.2.1.2. The emergency "furnished a proper occasion" for the exercise of the reserved power of the state to protect the vital interests of the community

8.2. Due Process Clause (West Coast Hotel, Carolene Products)8.2.1. Presumption of Constitutionality

8.2.1.1. West Coast Hotel Co. v. Parrish - Addresses due process clause of 14th amendment

8.2.1.1.1. ***The Constitution does not speak of freedom of contract***

8.2.1.1.1.1. Liberty under the Constitution is necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process

8.2.1.1.1.2. Power to restrict freedom of contract may be exercised in the public interest

8.2.1.1.1.2.1. Health is a public interest

8.2.1.1.1.2.2. Workers have unequal bargaining power with employers and thus are defenseless against the denial of a living wage

8.2.1.1.1.2.2.1. This impairs their health and well-being, and casts a direct burden for their support upon the community

8.2.1.1.1.2.2.1.1. The community should not be bound to provide because of employers' selfish disregard for the public interest

8.2.1.1.2. Advocates a general policy of deference to legislatures when public policy conflicts with individual liberties

8.2.1.1.2.1. If the Court can identify some rational basis for the legislation, that is sufficient

8.2.1.1.2.2. This becomes qualified by the next case

8.2.1.1.3. OVERRULES Adkins v. Children's Hospital

8.2.1.1.3.1. Even if the wisdom of a policy chosen by the legislature is

debatable, the legislature is entitled to its judgment

8.2.2. Qualifying the Presumption of Constitutionality

8.2.2.1. United States v. Carolene Products Co.

8.2.2.1.1. Fifth Amendment does NOT have an equal protection clause like the 14th

8.2.2.1.2. Prohibition of shipment in interstate commerce is a constitutional exercise of the power to regulate interstate commerce

8.2.2.1.3. Advocates a "Rational Basis" test: Did the Congress have a rational basis for passing the legislation?

8.2.2.1.3.1. Test applied under Due Process, Equal Protection, 1st amendment, and commerce clause

8.2.2.1.4. FOOTNOTE FOUR: (Exceptions to the presumption of Constitutionality)

8.2.2.1.4.1. There may be a narrower scope for the operation of the presumption of Constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the 14th

8.3. Commerce, and Necessary & Proper, Clauses8.3.1. The commerce clause both authorizes (and presumably limits) the

exercise of federal power, while at the same time its "dormant" aspect limits the exercise of state power

8.3.2. Substantial Effects Doctrine

8.3.2.1. National Labor Relations Board v. Laughlin Steel Corp.

8.3.2.1.1. The cardinal principle of statutory construction is to save and not to destroy

8.3.2.1.2. Act is constitutional

8.3.2.1.2.1. It defines commerce as "trade, traffic, commerce, transportation, or communication among the states"

8.3.2.1.2.2. It also defines "affecting commerce"

8.3.2.1.2.2.1. Commerce thus contemplated by the act is interstate and foreign commerce in the Constitutional sense

8.3.2.1.3. Main idea: The Congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a "FLOW" of interstate or foreign commerce

8.3.2.1.3.1. ***Substantial Effects Doctrine: Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commercefrom burdens and obstructions, Congress cannot be denied the power to exercise that control***

8.3.2.1.3.1.1. Short form: There is a distinction b/w national and local, but if a local activity has a "close and substantial relation to interstate commerce," it may be regulated

8.3.2.2. United States v. Darby (Overrules Hammer v. Dagenhart)

8.3.2.2.1. Manufacture is NOT interstate commerce, but shipment IS

8.3.2.2.1.1. Prohibition of shipment is thus a regulation of commerce (b/c the power to regulate includes the power to prohibit)

8.3.2.2.2. Congress commerce power is neither enlarged nor diminished by the exercise or non-exercise of state power

8.3.2.2.2.1. Power of Congress under Commerce Clause is plenary

8.3.2.2.2.2. But, in the absence of Congressional legislation on the subject, state laws are not forbidden even though they affect interstate commerce

8.3.2.2.3. Central idea: The power of Congress over interstate commerce is not confined to regulation of commerce among the states

8.3.2.2.3.1. It extends to those activities which so affect interstate commerce (or the exercise of the power of Congress over it) as to make regulation of them appropriate means to the attainment of a legitimate end

8.3.3. Aggregation Principle (Wickard v. Filburn) - A REFORMATION OF COMMERCE CLAUSE JURISPRUDENCE

8.3.3.1. Aggregation Principle: Even if an activity may be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economiceffect on interstate commerce

8.3.3.1.1. This is irrespective of whether such effect is "direct" or "indirect"

8.3.3.1.2. General idea: the contribution of an individual, with that of manyothers similarly situated, will have a substantial effect on interstate commerce

8.3.3.1.2.1. An EXTREMELY deferential view to Congress

8.3.3.1.2.2. Generally, if there is a substantial effect on interstate commerce, Congress may reach the activity

8.3.3.1.2.2.1. Essentially says there is no judicially enforceable limit to Congress' commerce power

8.3.3.1.2.2.1.1. This will later be tempered by Lopez and Morrison, but then somewhat reinstated by Raich

8.3.3.1.2.3. Also, notes that 10th amendment has no content other than the remainder of Congressional Power

8.4. Civil Rights Cases/Commerce and N&P Clauses again8.4.1. Civil Rights Act of 1964 was based on the Commerce Clause, rather

than Section 5 of the 14th amendment

8.4.2. Heart of Atlanta Motel v. United States

8.4.2.1. Rejects the previous Civil Rights cases because the Court had not considered whether the 1875 act could be sustained as an exercise of the commerce power

8.4.2.2. Determinative test of the exercise of power under the Commerce Clause:

8.4.2.2.1. Whether th activity sought to be regulated is "commerce which concerns more states than one" and has a real and substantial relation

to the national interest

8.4.2.2.1.1. The power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof which might have a substantial and harmful effect upon commerce

8.4.2.3. Statute only reached places of public accommodation if their operations affected commerce

8.4.2.3.1. There was overwhelming evidence that discrimination by hotels and restaurants impeded interstate travel by blacks

8.4.3. Katzenbach v. McClung

8.4.3.1. There was no evidence that Ollie's Barbecue's discrimination, individually, had an affect on interstate commerce

8.4.3.1.1. Court rejects "case by case" analysis

8.4.3.1.2. Cites Aggregation principle of Wickard v. Filburn

8.4.3.1.2.1. Commerce power extends to activities of retail establishments, which DIRECTLY or INDIRECTLY burden or obstruct interstate commerce

8.4.3.2. Argues "Rational Basis test" for analyzing Congressional action

8.4.3.2.1. Where we find that the legislators had a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end

8.4.3.2.1.1. The restaurant served food, a substantial portion of which moved in interstate commerce

8.4.3.2.1.2. Congress thus had a rational basis for finding racial discrimination in restaurants

8.4.3.2.1.2.1. The absence of DIRECT evidence is not a crucial matter

8.4.4. The Enforcement Clause of the 14th Amendment (Katzenbach v. Morgan)

8.4.4.1. Section 5 of the 14th amendment is used here (instead of commerce clause) to uphold a provision of the Voting Rights Act

8.4.4.1.1. Applies "Let the ends be legitimate..." test of McCulloch

8.4.4.1.1.1. This standard is what constitutes "appropriate legislation" under Section 5 of the 14th amendment

8.4.4.1.1.1.1. Section 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the 14th Amendment

8.4.4.1.1.1.2. Broad scope of Congressional power

8.4.4.2. Advances the idea that Section 5 of the 14th Amendment gives Congress the power to prevent violations of Constitutional rights, or provide complex or nontraditional remedies that the courts might have difficulty doing on their own

8.5. The War Power (Quirin, Hirabayashi, Korematsu, Endo)8.5.1. Ex Parte Quirin

8.5.1.1. By Articles of War, Congress has provided that military tribunals shall have jurisdiction to try offenders against the law of

war

8.5.1.1.1. By the president's order, he has exercised the authority conferred by Congress

8.5.1.1.2. The law of war recognizes lawful combatants, who may be taken as prisoners of war, and unlawful combatants, who are subject to military tribunals for acts which render their belligerency unlawful

8.5.1.1.2.1. These men were belligerents

8.5.1.1.2.1.1. Govt classifies lawful belligerents as POWs, punishable by regular courts

8.5.1.1.2.1.2. Unlawful belligerents are punishable by military commission

8.5.1.1.2.1.2.1. US citizenship does not relieve one from the consequences of belligerency

8.5.1.1.2.1.2.2. They cannot invoke 5th and 6th amendments, because those do not apply to military tribunals

8.5.1.2. Two main issues here:

8.5.1.2.1. President had the authority to try these individuals by military commission via the Articles of War, passed by Congress

8.5.1.2.2. The 5th and 6th amendments do not apply to these men because they committed offenses against the law of war as unlawful belligerents

8.5.1.2.2.1. Only lawful combatants are given 5th/6th amendment protection

8.5.2. Hirabayashi v. United States

8.5.2.1. The war power of the national government is the power to wage war successfully

8.5.2.1.1. It extends to every matter and activity so related to war as substantially to affect its conduct and progress; it has a very wide scope

8.5.2.1.1.1. The president's executive order was later supported by a congressional act

8.5.2.1.1.2. By acting in tandem, the President and Congress had this authority

8.5.2.2. The actions taken by the President and Congress must be appraised in the light of the conditions with which they were confronted in 1942

8.5.2.2.1. The challenged orders were defense measures for the avowed purpose of safeguarding the military area in question from sabotage/espionage

8.5.2.3. The Fifth Amendment contains no equal protection clause

8.5.2.3.1. Therefore, the federal government can single out a race for separate treatment

8.5.2.3.1.1. Children born of Japanese ancestry are under many circumstances deemed, by Japanese law, citizens of Japan

8.5.2.3.1.2. There is little social intercourse between the Japanese and the white population

8.5.2.3.1.2.1. This may have been enough for President/Congress to conclude that many Americans of Japanese descent could have been attached to Japan and Japanese institutions

8.5.2.3.1.2.2. It is therefore reasonable to conclude that some of them may have been disloyal

8.5.2.4. Court refuses to determine the boundaries of the war power here

8.5.3. Korematsu v. United States

8.5.3.1. Both a power issue and a rights issue

8.5.3.1.1. Power issue: Does the government have the authority to issue the exclusion order?

8.5.3.1.1.1. Yes. Same analysis as Hirabayashi

8.5.3.1.2. Rights issue: Is this discrimination/racial prejudice?

8.5.3.1.2.1. Pressing public necessity may sometimes justify the existence of legal restrictions which curtail the civil rights of a single racial group; racial antagonism never can

8.5.3.1.2.2. This was an EMERGENCY situation that gave rise to the exclusion

8.5.3.1.2.2.1. Hardships are a part of war

8.5.3.1.2.2.2. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier

8.5.3.1.2.3. Korematsu was not excluded because of his race; he was excluded because we were at war with the Japanese empire

8.5.3.1.2.3.1. The Executive Order authorizing removal from the military zones is thus constitutional

8.5.3.1.2.4. Many dissenters

8.5.4. Ex Parte Endo (Decided the same day as Korematsu, above)

8.5.4.1. Detention of Endo was not based on the Constitution, but on statutes

8.5.4.1.1. Endo granted her liberty because the DoJ and War Relocation authority do not contest her loyalty

8.5.4.1.1.1. Relocation is only valid when the loyalty of a Japanese-American is in question

8.5.4.1.1.2. War Relocation Authority has no authority to subject citizens who are concededly loyal to its leave procedure

8.5.4.1.2. The single aim of the acts was to prevent espionage and sabotage

8.5.4.1.2.1. A citizen who is concededly loyal poses no threat of espionage or sabotage

8.5.4.1.2.1.1. When the power to detain is derived from the power to protect the war effort against espionage and sabotage, detention which has no relationship to that objective is unauthorized

8.5.4.2. The Supreme Court never ultimately addresses the constitutionality of the detention of US citizens of Japanese ancestry in Hirabayashi, Korematsu, and Endo

8.6. The Executive Power (Youngstown Sheet & Tube Co. v. Sawyer/The Steel Seizure Case)8.6.1. Majority Opinion (Textual)

8.6.1.1. The President's power, if any, to issue the order must stem

either from an act of Congress or from the Constitution itself

8.6.1.1.1. There is no statute, so if there is authority, it must come from the Constitution in this instance

8.6.1.1.1.1. This would have to be an implied power

8.6.1.1.1.1.1. It is NOT an exercise of the president's military power

8.6.1.1.1.1.2. It is NOT an exercise of the executive power

8.6.1.2. This Executive Order was like a statute

8.6.1.2.1. But the Constitution does not subject the lawmaking power of Congress to presidential or military supervision or control

8.6.1.2.2. The Founding Fathers entrusted the lawmaking power to the Congress alone

8.6.1.3. Five concurrences, one dissent (joined by 2 others)

8.6.2. Jackson's Concurrence (modern doctrine)

8.6.2.1. Three zones of presidential authority:

8.6.2.1.1. When the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers, butalso those delegated by Congress

8.6.2.1.1.1. Strongest presumption of validity and the widest latitude of judicial interpretation

8.6.2.1.2. When the President acts in the absence of congressional authorization he may enter "a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain"

8.6.2.1.2.1. This concerns the president's inherent powers

8.6.2.1.3. When the President acts in contravention of the will of Congress, his power is at its lowest ebb, and the Court can sustain his actions only by disabling the Congress from acting upon the subject

8.6.2.1.3.1. Has only his constitutional powers, minus any constitutional powers of Congress over the matter

8.6.2.2. Executive Action in any particular case falls not neatly into one of these categories, but rather at some point along a spectrumrunning from explicit congressional authorization to explicit congressional prohibition

8.6.2.2.1. Here, the president's actions fall into category three

8.6.2.3. The fact that "The executive Power shall be vested in a President of the United States" does not mean that this clause is a grant of all conceivable executive power

8.6.2.3.1. There are still limits to the President's executive power

8.6.2.3.2. President, as commander-in-chief of army and navy, is NOT the commander-in-chief of the country, its industries, and its inhabitants

8.6.2.4. Notes:

8.6.2.4.1. Burger and Black and Scalia tend to be formalists

8.6.2.4.2. White and Douglas and Souter and Breyer are functionalists

9. Article I - The Legislative Power9.1. General:

9.1.1. The phrase "herein granted" qualifies the legislative power of Congress; no such qualification exists with the executive or judicial powers

9.1.2. "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written."

9.1.3. There are both "internal" and "external" limitations to legislative power

9.1.3.1. Internal approach - examines and defines the nature of a federal power itself to see if it contains within it some inherentlimitations

9.1.3.2. External approach - looks at outside constraints on the exercise of delegated powers

9.1.3.2.1. Ex: Bill of Rights, state sovereignty

9.1.4. Powers most commonly cited to justify federal legislation:

9.1.4.1. Power to tax and spend

9.1.4.1.1. There isn't a specific "power to spend" clause, but rather a power to tax, and a power to provide for the general welfare

9.1.4.1.1.1. But what does "general welfare" mean? Courts typically defer to Congress in this regard

9.1.4.1.1.2. Prevailing view is that Congress' power to provide for the general welfare goes beyond the bounds of Art. I, Section 8

9.1.4.2. Power to regulate commerce among the several states

9.1.4.3. Power to enforce the 14th amendment

9.1.5. Article I, Section 8

9.1.5.1. "The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for thecommon defence and general welfare of the united States; but all duties, imposts, and excises shall be uniform throughout the united States."

9.2. Spending Power (South Dakota v. Dole)9.2.1. Incident to the Spending Power, Congress may attach conditions on

the receipt of federal funds

9.2.1.1. Objectives not thought to be within Article I's "enumerated legislative fields" may nevertheless be attained through the use of the spending power and the conditional grant of federal funds

9.2.1.1.1. Ex: Congress cannot say, "The federal drinking age is 21," but they can say, "We won't give you as much money for your highways if 21 isn't your state's drinking age."

9.2.1.1.2. Regulation-by-contract: Congress can often accomplish indirectly what it perhaps could not accomplish directly

9.2.2. Spending Power is NOT unlimited; subject to several restrictions:

9.2.2.1. Expenditure must be for the general welfare

9.2.2.1.1. Courts will presume that Congress is acting for the general

welfare, so this requirement is almost always met

9.2.2.2. Conditions imposed must be unambiguous

9.2.2.2.1. In other words, the state must have been given notice of, and agreed to, the stipulation

9.2.2.3. Conditions must be reasonably related to the purpose of the expenditure

9.2.2.4. Legislation may not violate any independent Constitutional prohibition

9.2.2.4.1. Courts have not been aggressive in enforcing these restrictions

9.2.2.4.2. Fifth restriction (comes up later): In some circumstances, the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion

9.2.3. Central ideas of Dole:

9.2.3.1. Congress can spend money on whatever it wants, subject to the four restrictions

9.2.3.2. Congress can attach conditions to the receipt of federal funds (subject to four restrictions)

9.2.3.3. Congress can use the spending power to achieve means it otherwise could not have achieved through its enumerated powers

9.2.4. Concurrence of Thomas in Sabri v. United States

9.2.4.1. Questions the Court's commerce clause jurisprudence

9.2.4.2. Also questions Court's interpretation of the Necessary & Proper clause

9.2.4.2.1. Court seems to hold that N&P clause authorizes the exercise of any power that is no more than a "rational means" to effectuate one of Congress' enumerated powers

9.2.4.2.2. If using the McCulloch test, "appropriate" and "plainly adapted" are hardly synonymous with "means-end rationality"

9.2.4.2.2.1. To show that a statute is "plainly adapted" to a legitimate end, one must seemingly show more than "rational means"

9.2.4.2.2.2. It would seem necessary to show some obvious, simple, and direct relation between the statute and the enumerated power

9.3. Commerce Clause - These are the first significant commerce clause cases since Wickard v. Filburn9.3.1. United States v. Lopez (SUBSTANTIAL EFFECTS DOCTRINE)

9.3.1.1. There are three broad categories that Congress may regulate under its commerce power

9.3.1.1.1. Congress may regulate the use of the channels of interstate commerce

9.3.1.1.2. Congress is empowered to regulate the "instrumentalities of interstate commerce," even though the threat may only come from intrastate activities

9.3.1.1.3. Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, or those that "substantially affect" it

9.3.1.1.3.1. **Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained**

9.3.1.2. Rehnquist's observations:

9.3.1.2.1. Prior cases were all resolved based on whether or not economic activity substantially affected interstate commerce

9.3.1.2.2. This case involves no "jurisdictional hook"

9.3.1.2.2.1. A jurisdictional hook is an element of the statute that is explicitly tied to the source of federal authority

9.3.1.2.2.1.1. It is a nexus between the prohibited activity and interstate commerce

9.3.1.2.2.1.1.1. If there were a jurisdictional hook, it would require the prosecutor to show that this gun traveled in interstate commerce

9.3.1.2.2.1.1.2. Otherwise there is nothing proving that this traveled in interstate commerce

9.3.1.2.3. Here there were no legislative findings on the connection between the regulated activity and interstate commerce

9.3.1.2.3.1. But Rehnquist did NOT say that formal findings were required; he merely says they would have helped

9.3.1.3. Concurrence of Thomas

9.3.1.3.1. Again questions the Court's commerce clause jurisprudence

9.3.1.3.1.1. At time Const. was ratified, "commerce" did not include manufacture or agriculture

9.3.1.3.1.2. Commerce only consisted of buying, selling, bartering, and transportation for these purposes

9.3.1.3.2. Substantial effects test, if taken to its logical extreme, would give Congress a police power over all aspects of American life

9.3.1.3.2.1. Police power has ALWAYS been reserved to the states

9.3.1.3.2.2. Test is flawed mainly because of the aggregation principle, which has no stopping point

9.3.1.4. Dissent of Breyer

9.3.1.4.1. Argues for a "rational basis" test: Did Congress have a rational basis for concluding that that regulated activity sufficiently affected interstate commerce?

9.3.2. United States v. Morrison (Distinguishes "economic" and "noneconomic")

9.3.2.1. Here the Supreme Court rejects Congress' attempt to use the commerce clause to regulate purely INTRASTATE, NONECONOMIC activity

9.3.2.1.1. Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution

9.3.2.1.2. Where ECONOMIC activity substantially affects interstate commerce, legislation regulating that activity will be sustained

9.3.2.1.2.1. Gender-motivated crimes of violence are not, in any sense, economic activity

9.3.2.1.2.2. Supreme Court cases have upheld Commerce Clause regulation of intrastate activity ONLY where that activity is

economic in nature

9.3.2.1.2.2.1. Simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so

9.3.2.1.3. Congress may not regulate non-economic conduct based solely on that conduct's aggregate effect on interstate commerce

9.3.2.1.3.1. The regulation and punishment of intrastate violence is within the police power of the states

9.3.2.2. Concurrence of Thomas

9.3.2.2.1. Reiterates his disdain for "substantial effects" test

9.3.2.2.1.1. The test is inconsistent with the original understanding of Congress' powers and with the Court's early commerce clause cases

9.3.2.3. Dissent of Souter, joined by Stevens, Ginsburg, and Breyer

9.3.2.3.1. Why should there be an economic/noneconomic distinction, after that idea was rejected in Wickard?

9.3.2.4. Questions answered by this case:

9.3.2.4.1. What are the limits on the Commerce Clause?

9.3.2.4.1.1. If you use the substantial effects test, you must have an economic activity, or something that is commercial

9.3.2.4.2. What is the role of the Court?

9.3.2.4.2.1. The Court has a role in drawing a line to limit Congress' Commerce Power; the courts MUST have a role because governments don't police themselves as well as they should

9.3.2.4.3. Are Congressional findings necessary in order to enact legislation using the Commerce Clause power?

9.3.2.4.3.1. In Lopez, the absence of Congressional findings (on relation to interstate commerce) was a factor for the court

9.3.2.4.3.2. In Morrison, there were Congressional findings presented, and the law was still struck down

9.3.2.4.3.2.1. Also note: Here there was an absence of a jurisdictional hook - Prosecution would have to prove in every case that the gun moved through interstate commerce

9.3.3. Gonzalez v. Raich (written by Stevens, who dissented in Morrison)

9.3.3.1. Rule advanced here: Congress has power to regulate purely local activities that are part of an economic "class of activities" that have a substantial affect on interstate commerce

9.3.3.1.1. Decision in Wickard applies here: Wickard establishes that Congress can regulate purely intrastate activity that is not itself "commercial" if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity

9.3.3.1.1.1. The Court does not explicitly reject the economic/noneconomic distinction of Morrison

9.3.3.1.1.1.1. Here, the respondents cultivate, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market

9.3.3.1.1.1.1.1. I.e., they are making a product that they COULD sell, if they wanted

9.3.3.1.1.1.1.2. The activities here regulated are "quintessentially economic"

9.3.3.1.1.2. Controlled Substances Act is permitted because it is part of a larger regulatory scheme (Majority)

9.3.3.1.1.2.1. Some purely intrastate activities can be regulated if non-regulation would mean undercutting the whole regulatory scheme (which pertains to interstate commerce)

9.3.3.1.1.2.2. Scalia, concurring, emphasizes that the laws in Lopez and Morrison were overturned because they were not part of a broader regulatory scheme

9.3.3.1.1.2.3. In concurrence, argues that Congress may regulate noneconomic intrastate activities only where the failure to do so could undercut its regulation of interstate commerce

9.3.3.1.1.2.3.1. Scalia takes an N&P, stacking on top of the Commerce clause approach

9.3.3.1.1.2.3.2. 2 situations where you can use commerce clause to regulate intrastate activity

9.3.3.1.1.2.3.2.1. First is when Congress is eliminating obstructions to interstate commerce

9.3.3.1.1.2.3.2.2. Second of which is the "larger regulatory scheme"

9.3.3.2. Readopts rational basis test

9.3.3.2.1. "We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for so concluding"

9.3.3.2.2. Findings were not required; absence of findings does not call into question Congress' authority to legislate

9.3.3.3. Dissent of Thomas

9.3.3.3.1. Again questions the Court's commerce clause jurisprudence

9.3.3.3.1.1. At time of Founding, Commerce only consisted of buying, selling, bartering, and transportation for those purposes

9.3.3.3.1.1.1. It most certainly did not include manufacture and agriculture

9.3.3.3.1.1.2. Also did NOT mean all economic or gainful activity that had some attenuated connection to trade or exchange

9.3.3.3.2. Also argues that CSA is not a valid exercise of Congress' power under the Necessary & Proper clause

9.3.3.3.2.1. This law is not "necessary"

9.3.3.3.2.2. Even if it were necessary, it is not "proper"

9.3.3.3.2.2.1. Congress here encroaches on state police powers

9.3.3.3.2.2.2. Congress may not use its incidental authority to subvert basic principles of federalism and dual sovereignty

9.3.3.3.3. Again harps on how he despises the substantial effects test

9.3.3.3.3.1. It is a rootless and malleable standard

9.3.3.3.3.2. Argues that the Court has never held that Congress can regulate noneconomic intrastate activity that substantially affects interstate commerce

9.4. Enforcement Clause of the 14th Amendment (Section 5 gives

Congress power "to enforce" the article "by appropriate legislation"9.4.1. City of Boerne v. Flores (Remedial v. Substantive powers)

9.4.1.1. Section 5 is a positive grant of legislative power to Congress, and though broad, it is not unlimited

9.4.1.1.1. Congress only given the power "to enforce" the provisions of the article

9.4.1.1.1.1. This power is REMEDIAL

9.4.1.1.1.2. The design of the amendment and the text of Section 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the 14th amendment's restrictions on the States

9.4.1.2. The line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern

9.4.1.2.1. Remedial: There must be a congruence and proportionalitybetween the injury to be prevented or remedied and the means adopted to that end

9.4.1.2.1.1. **While preventive rules are sometimes appropriate remedial measures, there must be a CONGRUENCE between the means used and the ends to be achieved**

9.4.1.2.1.2. Congress must be able to show deliberate, intentional discrimination in a facially neutral law in order to prevail

9.4.1.2.2. Substantive: When this connection is not present, legislation is substantive in both operation and effect

9.4.1.3. The judicial branch embraces the duty to say what the law is

9.4.2. United States v. Morrison

9.4.2.1. Prophylactic legislation under Section 5 of the 14th amendment must have a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end

9.4.2.1.1. In this case, the proposed legislation (against spousal abuse) did not correct or remedy the problem in any way

9.4.2.1.2. Remember that 14th amendment, by its terms, prohibits only state action; amendment erects no shield against private conduct

9.4.2.1.3. Act was too expansive; it applied across all states, even though findings had only been presented for a few states

9.4.3. Board of Trustees of the University of Alabama v. Garrett

9.4.3.1. The Court, and not Congress, defines the substance of Constitutional guarantees

9.4.3.1.1. Section 5 legislation reaching beyond the scope of section 1's actual guarantees must exhibit "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end"

9.4.3.1.2. TWO PRONG TEST to apply the principles of congruence and

proportionality:

9.4.3.1.2.1. Identify with some precision the scope of the constitutional rights at issue

9.4.3.1.2.2. Examine whether Congress identified a history and pattern of unconstitutional employment discrimination (injury) by the States

9.4.4. Nevada Dept. of Human Resources v. Hibbs

9.4.4.1. Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct in order to prevent anddeter unconstitutional conduct

9.4.4.1.1. Again, the Court, not Congress, must decide the substance of constitutional guarantees

9.4.4.1.2. Prophylactic (preventive or protective) legislation can be distinguished from substantive redefinition of the 14th amendment by applying the test of Boerne:

9.4.4.1.2.1. Valid Section 5 legislation must exhibit congruence and proportionality between the injury to be prevented or remedied andthe means adopted to that end

9.4.4.2. Distinguished from Boerne and Garrett:

9.4.4.2.1. Here, there is more evidence of discrimination

9.4.4.2.2. In Boerne and Garrett, the legislation was too broad; here it is nice and narrow, and easier to show congruence/proportionality

10. Federalism Limits on Congressional Power10.1. The 10th Amendment

10.1.1. Gregory v. Ashcroft

10.1.1.1. Constitution establishes a system of dual sovereignty between the states and the federal government

10.1.1.1.1. The federal government is one of limited powers

10.1.1.1.2. Because of the 10th amendment, the states retain substantial sovereign authority

10.1.1.1.2.1. States and federal government will act as mutual restraints only if both are credible

10.1.1.1.2.1.1. Fed. Govt. holds an advantage b/c of supremacy clause

10.1.1.2. "Plain Statement" Rule: If Congress is going to interfere with integral state functions, it must do so very, very clearly

10.1.1.2.1. It must be clear to anyone reading the act precisely what is intended/covered

10.1.1.3. Tenth Amendment is a tautology; all that is not surrendered is retained

10.1.1.3.1. Structural principle that states have reserved autonomy

10.1.2. New York v. United States (Encourage v. Compel/Noncommandeering Doctrine)

10.1.2.1. Noncommandeering Doctrine: Congress may ENCOURAGE the states to adopt a legislative program consistent with federal interests, but it may not COMPEL the states to adopt it

10.1.2.1.1. Two methods by which Congress may urge a state to adopt a legislative program consistent with federal interests:

10.1.2.1.1.1. Under the Spending Power, Congress may attach conditions on the receipt of federal funds

10.1.2.1.1.1.1. Such conditions must bear some relationship to the purpose of the federal spending

10.1.2.1.1.2. Where Congress has the authority to regulate private activity under the Commerce Clause, Congress has the power to offer states the choice of regulating that activity according to federal standards or having the state law pre-empted by federal regulation

10.1.2.1.1.2.1. By either of these 2 methods, the state retains the ultimate decision as to whether or not it will comply

10.1.2.2. If a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has NOT conferred on Congress

10.1.2.2.1. Because an instruction to State governments to take title to waste, standing alone, would be beyond the authority of Congress, and because a direct order to regulate, standing alone, would also be beyond the authority of Congress, it follows that Congress lacks the power to offer states a choice between the two

10.1.2.3. When Congress exceeds its authority relative to the States, the departure from the constitutional plan cannot be ratified by the "consent" of state officials

10.1.3. Printz v. United States

10.1.3.1. NY v. US stood for the principle that Congress cannot commander state legislatures; here, we see that they cannot commandeer the state executive

10.1.3.1.1. Therefore, Congress cannot COMPEL states to enact OR administer a federal regulatory program

10.1.3.2. The utter lack of statutes imposing obligations on the States' executive suggests an absence of such a power

10.1.3.2.1. If Congress had wielded this tremendous power, they certainly would have used it repeatedly by now

10.1.3.3. Stevens' Dissent

10.1.3.3.1. Alternative understanding of 10th amendment

10.1.3.3.1.1. Historical: Framers intended to enhance the power of federal government w/Constitution

10.1.3.3.1.2. 10th amendment itself imposes no restriction on the exercise of Congress' delegated powers

10.1.3.3.1.3. Functionalist approach: The structure of the federal government itself is a political safeguard of federalism

10.1.3.3.1.3.1. Since each state receives an equal number of senators, it is unrealistic to assume they ignore the sovereignty concerns of their constitutions

10.2. The 11th Amendment (Limits the liability of states in court)

10.2.1. Chisholm v. Georgia

10.2.1.1. Held that a state was liable to be sued by a citizen of another state, or of a foreign country

10.2.1.2. The 11th amendment was adopted shortly thereafter to reverse this ruling

10.2.1.2.1. Text: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of anotherstate, or by citizens or subjects of any foreign state."

10.2.1.2.1.1. Says nothing about a citizen suing his own state, or about federal question cases

10.2.2. Hans v. State of Louisiana

10.2.2.1. The intent of 11th amendment was to prevent states from being sued by ALL citizens, not just foreign citizens (Sovereign immunity)

10.2.2.1.1. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent (Hamilton, Fed. 81)

10.2.2.1.2. It is not within the power of individuals to call any state into court (Madison)

10.2.2.2. Court merely declares the existence of a rule which exempts a sovereign state from prosecution in a court of justice at the suit of individuals

10.2.2.2.1. General idea: The Court holds that the 11th amendment not only bans diversity cases, but also, by implication, federal question cases

10.2.3. Seminole Tribe of Florida v. Florida

10.2.3.1. 11th amendment stands not so much for what it says, but for the presupposition which it confirms (2 parts):

10.2.3.1.1. Each state is a sovereign entity in our federal system

10.2.3.1.2. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent

10.2.3.1.2.1. Congress' authority to abrogate state's sovereign immunity is available only under section 5 of the 14th amendment

10.2.3.1.2.1.1. Formerly could abrogate under Commerce clause as well (Union Gas), but Union Gas overturned here

10.2.3.1.3. Blind reliance on only the text of the 11th amendment is "to strain the Constitution and the law to a construction never imagined or dreamed of"

10.2.3.1.3.1. FOUR dissenters

10.2.4. General ideas:

10.2.4.1. States are immune from suits by private parties in both state AND federal courts

10.2.4.2. Immunity applies in both diversity and federal question cases

10.2.4.3. Congress may abrogate state sovereign immunity only under section 5 of the 14th amendment

10.2.4.3.1. They can no longer abrogate under the commerce clause

10.2.4.4. Exceptions:

10.2.4.4.1. Suits CAN proceed against a state official carrying out state policy

10.2.4.4.2. Localities lack immunity

10.2.4.4.3. States are NOT immunized from suits initiated by the federal government

10.2.4.4.4. States may waive immunity

11. Article II - The Executive Power11.1. Congress and the President in the Legislative Process

11.1.1. Nondelegation Doctrine - One branch may not delegate its constitutionally delegated powers to another branch

11.1.1.1. The standards for determining when Congress has crossed the Constitutional line between delegating legislative authority and simply allowing executive and judicial actors to carry out the legislature's constitutionally prescribed functions

11.1.1.1.1. Only two cases where the Court found violations of the nondelegation doctrine

11.1.1.1.1.1. Panama Refining Co. v. Ryan

11.1.1.1.1.1.1. The Congress manifestly is not permitted to abdicate, or transfer to others, the essential legislative functions with which it is thus vested

11.1.1.1.1.1.2. Congress must declare a policy, standard, and/or rule

11.1.1.1.1.2. A.L.A. Schechter Poultry Corp. v. United States

11.1.1.1.1.2.1. Test: Whether Congress has itself established the standards of legal obligation, thus performing its essential legislative function, or, by the failure to enact such standards, has attempted to transfer that function to others

11.1.1.2. Modern Doctrine - Mistretta v. United States

11.1.1.2.1. Congress, generally, cannot delegate its legislative power to another branch

11.1.1.2.2. Intelligible Principle Test: So long as Congress "shall lay down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to perform, such legislative action is not a forbidden delegation of legislative power"

11.1.1.2.2.1. If you can identify an intelligible principle that tells the agency what to do, then it satisfies nondelegation concerns

11.1.1.2.2.1.1. Essentially, Congress needs to lay down a framework within which the agency is to operate

11.1.1.2.2.2. It is constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority

11.1.1.2.2.2.1. Breadth of the mandate is relevant when assessing constitutional delegation of legislative power

11.1.1.2.2.2.2. Vagueness/nonvagueness is also relevant

11.1.1.2.3. Nondelegation doctrine no longer has much "bite"

11.1.2. The Legislative Veto (Bellia is fascinated by this case; it is themost consistently violated case in our law)

11.1.2.1. General:

11.1.2.1.1. Legislative Veto: A provision which gives Congress (or one House, or even one committee) the ability to overturn agency (executive) action without going through the constitutional formalities of "making law"

11.1.2.1.1.1. Two different requirements for "making law": Art. I, Sec. 7

11.1.2.1.1.1.1. Bicameralism - It has to pass through two Houses

11.1.2.1.1.1.2. Presentment - Presenting the bill to the president for him to sign

11.1.2.2. INS v. Chadha - declares unconstitutional the legislative veto

11.1.2.2.1. There are four provisions in the Constitution by which one House may act alone

11.1.2.2.1.1. The House has the power to initiate impeachments

11.1.2.2.1.2. The Senate has the power to conduct trials following impeachment

11.1.2.2.1.3. The Senate was given power to approve or disapprove presidential appointments

11.1.2.2.1.4. The Senate was given power to ratify treaties negotiated by President

11.1.2.2.1.4.1. Thus, when the Framers sought to confer special powers on ONE house, independent of the other, they did so in EXPLICIT, UNAMBIGUOUS terms

11.1.2.2.1.4.2. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked

11.1.2.2.1.4.2.1. A one-house legislative veto is thus not authorized by the constitutional design of the powers of the legislative

11.1.2.2.1.4.2.2. Corollary: Legislative veto is NEVER an option, because veto is part of the executive power

11.1.2.2.2. Theory used here: The suspension authorized by the Attorney General is EXECUTIVE (not legislative) and the House of Representatives cannot interfere

11.1.2.2.2.1. Rejected theory: that the H.o.R. cancellation is Legislative and must comply with bicameralism/presentment to the president

11.1.2.2.3. Formalist argument: You don't want anyone on the Executive side to perform Legislative functions; you don't want anyone on the Legislative side to perform Executive functions

11.1.2.2.4. Majority is formalistic (Burger); dissents are functional (White)

11.1.2.2.4.1. Majority (formalism): The legislative veto IS law-making in purpose and effect

11.1.2.2.4.1.1. B/c legislative veto fails both Bicameralism AND Presentment, it is unconstitutional (it'd be unconst. if it failed either)

11.1.2.2.4.2. Minority (functionalism):

11.1.2.2.4.2.1. The proper inquiry is to focus on the extent to which the

legislative veto prevents another branch from accomplishing its constitutionally assigned functions

11.1.2.2.4.2.1.1. 2 things you're looking for:

11.1.2.2.4.2.1.1.1. Interference

11.1.2.2.4.2.1.1.2. Aggrandizement of power

11.1.2.2.4.2.2. Separation of Powers is a doctrine of accommodation and practicality

11.1.2.2.4.2.3. If Congress does not have a legislative veto, they're faced with a "Hobson's Choice":

11.1.2.2.4.2.3.1. First choice: They have to refrain from delegating the necessary authority, leaving itself with the task of writing laws so specific that they cover every circumstance

11.1.2.2.4.2.3.2. Second choice: Completely abdicate the lawmaking function to the executive branch

11.1.3. Appointments Power/Removal Power

11.1.3.1. Morrison v. Olson

11.1.3.1.1. Text and structure of the Constitution are important here; this is a way of dealing with the decline of nondelegation doctrine

11.1.3.1.2. Appointments power based on the Appointments clause

11.1.3.1.2.1. The President shall nominate, and by and with the advice and consent of the senate, shall appoint...officers of the United States...but the Congress may by law vest the Appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

11.1.3.1.3. Central Questions

11.1.3.1.3.1. Who are the "officers" of the United States?

11.1.3.1.3.1.1. Any appointee exercising significant authority pursuant to the laws of the United States

11.1.3.1.3.1.1.1. Excludes those performing purely ministerial functions

11.1.3.1.3.2. Who is a principal (vs. "inferior") officer

11.1.3.1.3.2.1. Inferior officers have limited tenure, with a limited scope of jurisdiction, and is subject to removal by a higher executive

11.1.3.1.3.2.1.1. DISSENT of Scalia: Inferior = subordinate; here she's not subordinate b/c she can be removed only for "good cause"

11.1.3.1.3.3. Who are the "Heads of Departments" and "Courts of Law" in whom Congress may vest appointment of inferior officers? Are interbranch appointments permissible?

11.1.3.1.3.3.1. There is nothing in the Constitution to suggest that the Framers intended to prevent Congress from wielding the power of interbranch appointments

11.1.3.1.3.3.1.1. Does not violate the doctrine of separation of powers

11.1.3.1.3.3.1.1.1. Does not involve an attempt by Congress to increase its own powers at the expense of the other branches

11.1.3.1.3.3.2. Heads of Departments likely consist of Cabinet members only

11.1.3.1.3.3.3. Courts of Law include all Article I tax courts

11.1.3.1.3.4. May Congress expand an officer's duties without reappointment?

11.1.3.1.3.4.1. There is no need for a "germaneness" test, but duties of military judge are "germane" to those of a military officer

11.1.3.1.4. Formalism v. Functionalism

11.1.3.1.4.1. Majority takes a functional approach

11.1.3.1.4.1.1. Rehnquist sees this as no interference with executive power of appointment/removal; Congress is not trying to aggrandizetheir own power at the expense of another branch

11.1.3.1.4.2. Dissent (Scalia) takes a formalistic approach

11.1.3.1.4.2.1. Focuses on Separation of Powers; THE executive power (all) vested in the president

11.1.3.1.4.2.1.1. The power to prosecute is a quintessentially executive activity

11.1.3.1.4.2.1.2. Giving Independent Counsel that power violates the constitution (Independent counsel not under any branch)

11.1.3.1.4.2.1.2.1. B/c I.C. could only be removed for "good cause," she was a principal officer (difficult for A.G. to remove)

11.1.3.1.4.2.1.2.2. Congress can only create inferior officers, not principal officers

11.1.3.1.5. Removal Power - There is no Removal clause

11.1.3.1.5.1. Present considered view is that removal power can't turn on classification as "purely executive."

11.1.3.1.5.1.1. Functionalism in a nutshell: Analysis is not designed to define rigid categories but to ensure that Congress "does not interfere with the President's exercise" of the executive power

11.1.3.1.5.1.1.1. President can remove purely executive officers, but might need Congressional approval to remove "administrative" officers

11.1.3.1.5.1.1.2. Here, even though the officer is within the "purely executive" category, the Executive still manages control through the attorney general

11.2. Executive Power in Foreign Affairs (Applications of the Youngstown framework)11.2.1. Executive Agreements (Dames & Moore)

11.2.1.1. Re-examines Jackson's concurrence in Youngstown. 3 Possibilities articulated by Jackson concerning Presidential actions:

11.2.1.1.1. Actions taken in concert with express or implied Congressional authority

11.2.1.1.2. Actions taken amidst Congressional silence

11.2.1.1.3. Actions taken despite the express or implied prohibition of Congress

11.2.1.1.3.1. Again notes that most actions occur somewhere along this spectrum

11.2.1.2. In this case, the Court says that the Executive's action (An Agreement with Iran to suspend all pending claims that was NOT a treaty) was falling into category one - with implicit Congressional approval (Later courts saw this as a category 2 case)

11.2.1.2.1. Failure of Congress specifically to delegate authority does not imply congressional disapproval of action taken by the executive

11.2.1.2.2. There had been a longstanding practice of settling claims by executive agreement without the advice and consent of the Senate

11.2.1.2.2.1. Congress thus implicitly approved of this practice

11.2.1.2.3. The enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to invite measures on independent professional responsibility

11.2.1.2.3.1. IMPLICIT APPROVAL OF CONGRESS: When there is no contrary indication of legislative intent and when there is a history of congressional acquiescence to the President's conduct

11.2.2. Commander-in-Chief Power

11.2.2.1. Hamdi v. Rumsfeld (Again uses 3 categories from Steel Seizure Case) - PLURALITY OPINION

11.2.2.1.1. Central Question: Does the President have the authority to detain U.S. citizens who qualify as "enemy combatants"? YES.

11.2.2.1.1.1. The detaining of individuals who qualify as "enemy combatants" is so fundamental an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the president to use

11.2.2.1.1.1.1. It is critical here that the President was acting with Congress' express (and implied) approval (First category of Steel Seizure case)

11.2.2.1.1.1.2. There is no bar to this Nation's holding one of its own citizens as an enemy combatant

11.2.2.1.1.1.2.1. In Quirin, one of the belligerents was an enemy combatant

11.2.2.1.1.1.2.2. Milligan does not apply here b/c Milligan was not a POW

11.2.2.1.2. Thomas' Opinion: He says that this is category 2, but is within the president's inherent powers (he is the only one to touch on the inherent powers issue)

11.2.2.2. Hamdan v. Rumsfeld (Court again avoids answering the question of category 2: What are the president's inherent powers?)

11.2.2.2.1. Central Question: Does Authorization to Use Military Force give the President implied power to create military commissions that overcome existing restrictions in US law? NO

11.2.2.2.1.1. This case falls within Category 3 - President acting with Congressional disapproval

11.2.2.2.1.2. President restrained from using a military commission because of the Uniform Code of Military Justice, which:

11.2.2.2.1.2.1. Incorporates the "Common law of war" - if not triable under common law of war, then not triable by UCMJ (A CONGRESSIONAL STATUTE)

11.2.2.2.1.2.2. Imposes the uniformity requirement of Article 36 - whether statutory restrictions exist must apply to military commissions

11.2.2.2.1.2.2.1. All rules and regulations under article must be uniform

11.2.2.2.1.2.2.1.1. Court construes this to mean that military commissions must be uniform with courts-martial (unless uniformity

is not practicable)

11.2.2.2.1.2.2.1.2. This is what moves this case into Category three; thus, the commission lacks power to proceed against Hamdan

11.2.2.2.1.2.3. Incorporates the Geneva Conventions

12. Article III - The Judicial Power12.1. General:

12.1.1. Article III, Section 2 defines the scope of the judicial power

12.1.1.1. The fact that this section defines judicial power in terms of "cases and controversies" is of great importance

12.1.2. The earliest self-imposed limitation on judicial power was the refusal of the Supreme Court to issue "advisory opinions" to the other branches in advance of a case or controversy

12.1.3. The doctrines of standing/ripeness/mootness rest on the nature of the judicial power and the separation of powers

12.2. Political Question Doctrine (Baker, Nixon)12.2.1. What is a political question?

12.2.1.1. A political question is a conclusion that allegedly wrongful conduct should not be ruled on by a court

12.2.1.1.1. The issue is more appropriately left to the political branches to resolve

12.2.1.1.2. Does NOT necessarily mean political "issues"

12.2.1.2. PQ doctrine only applies when there is a separation of powers issue

12.2.1.2.1. Does NOT apply against the states; only applies against other branches of the federal government

12.2.1.2.2. Not everything involving separation of powers is a political question

12.2.2. Baker v. Carr

12.2.2.1. Elements of the doctrine. Prominent on the surface of any case held to involve a political question is found:

12.2.2.1.1. A textually demonstrable constitutional commitment of the issue to a coordinate political department, OR

12.2.2.1.2. A lack of judicially discoverable and manageable standards for resolving it, OR

12.2.2.1.3. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion, or

12.2.2.1.4. The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government, OR

12.2.2.1.5. An unusual need for unquestioning adherence to a political decision already made, OR

12.2.2.1.6. The potentiality of embarrassment by various departments on one question

12.2.2.1.6.1. Final three elements are prudential strands; the first two

are constitutional strands

12.2.2.2. Nixon v. United States

12.2.2.2.1. Relies on the first two elements

12.2.2.2.1.1. Focused mainly on the Constitutional text to show that the issue was entrusted to a coordinate branch of government

12.2.2.2.1.2. Also noted that there would be a lack of finality in any decision and the difficulty of fashioning relief counseled againstjusticiability

12.2.2.2.2. Court has a bit of difficulty in applying the PQ doctrine

12.2.2.2.2.1. Court seemed to be actually looking at the merits of the arguments and then judging those merits, and then letting that cloud their judgment as to whether it was a political question or not

12.3. Standing12.3.1. Three Constitutional standing requirements:

12.3.1.1. Injury-in-fact

12.3.1.2. Causation

12.3.1.3. Redressability

12.3.2. Prudential requirements (?) - Courts impose on themselves, but Congress can override

12.3.2.1. No generalized grievances

12.3.2.1.1. If an injury is equally shared (all people are injured in the sameway), then resolution should be left to the political process

12.3.2.1.1.1. Exception: Class-actions

12.3.2.2. No third-party standing

12.3.2.2.1. You can't assert someone else's rights were violated, only your own

12.3.2.2.2. Exception: When there is a total identity of interests

12.3.2.3. Must be within zone of interests that are protected

12.3.3. Allen v. Wright

12.3.3.1. The requirement of standing has a core component derived directly from the Constitution: A plaintiff must allege (1) personal injury (2) fairly traceable to the defendant's allegedly unlawful conduct and (3) likely to be redressed by the requested relief

12.3.3.2. Law of Article III standing is built on the idea of separation of powers

12.3.3.2.1. Federal Courts may exercise power only "in the last resort, and as a necessity"

12.3.4. Federal Election Commission v. Akins

12.3.4.1. Article III limits Congress' grant of judicial power to "cases and controversies"

12.3.4.1.1. This requires a showing of a genuine "injury-in-fact"

12.3.4.1.2. Just because an interest is widely shared does not necessarily mean it is abstract

12.3.4.1.2.1. If it is concrete, even though widely shared, the Court

will find injury-in-fact

12.4. Ripeness (John Doe v. George W. Bush)12.4.1. If the injury has not happened yet, or the controversy is

speculative, the case cannot be adjudicated

12.4.1.1. Exceptions: Two reasons to hear a case that is not ripe:

12.4.1.1.1. Hardship that might flow to the parties if you refuse to hear the case

12.4.1.1.2. The issue is otherwise fit for judicial decision

12.5. Mootness (DeFunis v. Odegaard/Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.)12.5.1. To be heard, a lawsuit must present a live and continuing

controversy

12.5.1.1. If a case is "moot," there is no longer any injury for a court to rectify

12.5.1.2. The inability of the federal judiciary to review moot cases derives from the requirement of Article III, which says that the judicial power is dependent on the existence of a case or controversy

12.5.2. Mootness dismissals often occur when litigants had standing at the outset of litigation, but there has been a change in the facts or in the law that render the controversy moot

12.5.2.1. Exceptions:

12.5.2.1.1. Something that is capable of repetition but evades review (like Roe v. Wade)

12.5.2.1.2. Voluntary cessation of an unlawful activity

12.5.2.1.3. A continuing harm/collateral consequence

13. Formalism v. Functionalism (Separation of Powers Doctrine)13.1. Formalism - Each branch is pretty much distinctly sealed off

from the other13.1.1. Only the executive can exercise executive power; only the

legislative can exercise legislative power, etc.

13.2. Functionalism - Looks at the underlying purpose of separation of powers13.2.1. As long as the executive's action doesn't interfere with the

legislative or judicial powers (and vice versa)

13.2.2. As long as the executive doesn't aggrandize too much power to itself (applies to other branches as well)