Judicial Power

I. Source & Scope Article III Section 1 Judicial power shall be vested in one SC; independent of Congress. Pres. & political process Article III Section 2 Delinates Fed. Courts jurisdiction as limited to cases & controversies (Fed Quest) II. Jurisdiction - Article III Section 2 1. Original All cases affecting ambassadors, public Congress shall not expand or limit OJ. BUT Congress may grant concurrent OJ to lower Fed. courts 2. Appellate Review state court decisions & statues based on Fed. law. Means: (1) Discretionary Review (2) Direct Appeal. Must be on Adequate & Independent state grounds. (see pg 49 in Crunch) III. Foundations of Federal Judicial Review

A. Authority for Judicial Review U.S. Constitution does not explicitly create judicial review
Rule(Judicial Review): The Constitution is supreme law because it comes from a super-majority, and because it is so, with separation of powers, it is natural to think that the framer's intended for the Supreme Court to have judicial review over the executive and legislative branches.

a. Marbury v. Madison ^
IMPACT/HOLDINGS: (1) Establishes authority to review the acts of the Executive and (2) Legislative branches - despite the USC being silent on judicial review. (3) Establishes that Fed courts are of limited jurisdictions & Congress may not expand the jurisdiction granted in Art. III. (1) Executive Actions: Executive has no right to ignore a duty that affects individual rights Beginning of the political question doctrine legal v. political dichotomy Creating this distinction empowers the court to: (i) decide whether an Executive branch action is justiciable (e.g. standing, mootness, PQ); -- (ii) if it is, to review that action; Even if the Court declines to find something justiciable, it is still left for the Court to decide whether action is political or legal and thus, where it has authority to review! (2) Legislative Actions: a. Legislative statutes may be declared unconstitutional when they conflict with USC i. Art. VI: Supreme Law of the LandSupremacy Clause viewed as a declaration that Congress shld only enact laws authorized by the constitution. ii. Art III, 2, cl. I: vests Congress w/ ability to create inferior courts iii. Art III, 2, cl. 2: apportions original vs. appellate jurisdiction to SCOTUS - Marshall interprets this as a ceiling to the power & jurisdiction of the court and such, Congress may not add to the SCOTUS original jurisdiction (3) Jurisdictional Problem a. Judiciary Act of 1789 13: Grants SCOTUS Original Jurisidication to issue writs o Marshall interprets this as unconstitutional expansion of OJ bc of Art III, 2, cl. 2. o Reads the OJ as a closed list, but it can be read either way in the Constitution. o Interprets as ceiling instead of the floor (min. grant of jrsdctn than cant be reduced) b. REASON: Constitution says that the Supreme Court has original jurisdiction in a small number of cases and appellate jurisdiction in all other cases. If the legislature were to be allowed to make laws that give the Supreme Court original jurisdiction in cases other than those outlined in the Constitution, then there would be no point to specifying those particular cases in the constitution. It cannot be assumed that any clause in the constitution is to be without effect. 1. Three steps to the Marbury Analysis:

(1) Marbury has a vested right to his commission Marshall decides that commissions are complete (valid) when signed & sealed; dont have to be already delivered; While the court could have gone the other way on this, it creates a right vested in Marbury. (2) Marburys entitlement to commission is a legal (violation of right), not a PQ: a. Legal Track: Where there is a specific duty to a particular person, the judiciary can provide remedies against even the executive branch The law must provide a remedy for a deprivation of a vested right. The court could provide that remedy b. Political Track: Where there is a discretionary duty (such as vetoing a law), the judiciary cannot review or overturn [by their nature political] Political in the term of art sense Ministeral not political o Narrow construction were talking only about non-discretionary duties (such as here delivering the commission) (3) Notwithstanding that Marbury had a legally vested right, the Supreme Court lacks the power to issue a writ of mandamus a. Marshall agrees with Marbury that section 13 of the Judiciary act gives the Supreme Court original jurisdiction to hear requests for mandamus - He could have taken the escape hatch that this applied to appellate jurisdiction (only type actually mentioned) He doesnt, because he needs a way to both avoid issuing the writ, and because he needs to have a law in conflict with the constitution of the Unites States, in order to be able to establish judicial review. b. Court concludes that section 13 of the Judiciary Act violates Article III of the constitution because the latter enumerates exhaustively the courts original jurisdiction & congress could not enlarge that: 1. Marshall: presence of a written constitution implies judicial review 2. It is the judiciarys duty to say what the law is where two laws conflict, Constitution trumps! Two ways of construing Marbury Narrow Theres no constitutional authority for court to hear this case (its outside of the SMJ of the court); The scope of such a holding would be ambiguous ii. Broader Marbury establishes judicial competence to interpret the scope of the federal statute in an appropriately litigated case i.

B. Authority to Review State and Local Actions Just as constitution is silent on review of federal actions, it is silent on review of state court decisions. a. Argument for Authority of Review Appellate jurisdiction extends to all other cases not in the OJ of the SCOTUS we expect that state courts can hear federal questions with SCOTUS as appellate court. i. If Congress had decided not to create the lower federal courts then denying the Supreme Court any sort of appellate jurisdiction over state court decisions would essentially destroy SCOTUS ability to act as an appellate court (if no lower court decisions to hear on appeal). ii. Policy Arguments (1) uniformity of laws want Fed. law to be the same nationwide; (2) Concern about protecting Defen putting D at mercy of P who can select the forum. IV. Sources for Judicial Review

A. Calder v. Bull ^
1) SC held civil ex post facto law ix constitutional b/c the Const. only forbids criminal ex post fcto 2) Here, SC is narrowly construing judicial review only when theres text on point.

B. McCulloch v. Maryland ^ - Congress can choose any means not prohibited by the Constitution to reasonably carry out its authority -- Never forget, its a Constitution we are expounding
McCulloughs effects: 1) Federal gov. is supreme over states. 2) Congress powers are beyond the just enumerated ones. 3) States cannot tax federal activities. IMPACT: Vast expansion of federal power; relaxed standard for necessary and proper - Rejects compact federalism and emphatically declares the federal government is supreme over states in its sphere of operation and states have no authority to negate that action Expansively defines the scope of Congress power test of validity is whether Congress might reasonabley find a relation between the law and federal powers Limits the ability of states to interfere with federal activities by imposing taxes on federal gov.

Facts: Congress created the Second Bank of the U.S. The state of Maryland wants to tax the bank and the bank wont pay the tax. Maryland sues in state court and wins. Bank appeals. Creation of a bank is not listed in the enumerated powers but it should be inferred and should be implicit that Congress has the power without the power being explicitly stated b/c Congress needs tools to carry out their duties we need the NPC.

Rule: (1) Historical practice shows that Congress has the power to create a natl bank. (2) States are not the ultimate sovereign in the Republic because the Natl Gov. did not get its power from them but from the People. Therefore States do not retain ultimate sovereignty. (3) Congress has the power to do anything it has to in order to carry out one of its many powers unless the Const. prohibits it. (4) NECESSARY AND PROPER CLAUSE (Article 1, section 8, clause 18) proves that Congress has the power to do what it has to in order to carry out its duties, unless prohibited by the Const. ISSUE #1: Does Congress have Constitutional power beyond those specifically enumerated? a. Historical Experience i. Political Safeguards of Federalism = states are represented in Congress so Crts should stay out

ii. iii. iv.

Power was already consented to at very early period of American history recognized by successive legislatures and acted upon by the judiciary Tradition is pedigree Indiv.(Jefferson/Madison) formerly against bank now support it Creates presumption of constitutionality (despite absence of any previous SCOTUS review)

b. Compact Federalism (REJECTED) i. MD = that USC was created by compact of states states are ultimate sovereign power ii. Marshall = core sovereignty is retained by the people, not the states federal government acts on behalf of all the people, who ultimate source of authority --- States cant limit a grant of power to Congress c. Congress has incidental/implied powers i. Federal government, though limited in its powers, is supreme in its sphere of action ii. Omission of express from 10th Amendment (compared to Articles of Confederation) suggests stronger powers for Congress including incidental and implied powers d. Necessary and Proper Clause Nature of a const. is one that must be capable of enduring beyond prblms anticipated by the Framers any reading must depend on construction of the whole clause expands rather than constricts power it is placed among the affirmative grants and should be read as such e. Deference Congress must be allowed to select the means of executing its enumerated powers so long as the ends are constitutional i. If Congress acts outside enumerated or implied powers, Court will strike it down ii. Reasonable Relationship Test i. Federal laws are valid so long as reasonable relationship to enumerated power ii. Defer to Congress choice (best judgment, by any means not prohibited) ISSUE #2: May a state tax an institution created by Congress pursuant to its Constitutional powers? a. Conflict Preemption: federal law is supreme under the Supremacy Clause i. States are expressly forbidden to lay any duties except whats absolutely necessary (Art. 1, 10) ii. Power to create a bank includes the power to preserve its existence; power to tax is power to destroy; power to destroyed may defeat power to create overrode by federal law b. Representation Reinforcement: courts must fix this problem as the normal operation of the political process will not Constitutional Interpretation in action. Rule: Federal law is paramount to state law. Issue #1: Congressional power to incorporate a bank Custom: Congress had already established a law creating a bank, but allowed it to expire, never tested in Court. History: Delegates at the Convention supported big government that would have power to establish a bank Maryland says that State law is supreme to Federal law b/c the Constitution was approved by the States. Marshall rejects this b/c it is the PEOPLE that ceded sovereignty to the Federal government. Since Federal govt is ratified by the people (and states had nothing to do w/ ratification) states are subordinate to Federal Text: Maryland says that because right to incorporate bank is not expressly given in the constitution, Federal government doesnt have right to do it. Broad Text: SCOTUS rejects this b/c the right is IMPLIED (e.g. Constitution gives right to regulate the postal service but says nothing about punishing people that steal letters. Congress still has right to do so). Fed govt. is given plenty of other financial powers, power to tax, borrow money, regulate commerce.

Strict Text: Court says that "necessary" in everyday usage means what is efficient and convenient, not "absolutely necessary." Also, "proper" is right next to "necessary", should lend meaning to the phrase and idea of efficiency. History/Original Intent: Marshall says that Constitution is an IDEA, not a legal code. Just get the general idea of what the founders wanted to do. INTENT is important Structure & Relationship: Maryland also says that Article 1, Sec. 10 says that Congress can only enact laws that are necessary & proper. Maryland argues that national bank isnt necessary/proper SCOTUS rejects b/c this is obviously not the intention of founders. Structure: Necessary & Proper clause is found in a section that grants power to Congress, so it cannot be construed as a limitation of Congressional power. Issue #2: States right to tax the Federal Government Power of taxation is the power to destroy. Since state govt is inferior to Fed. no right to tax. States DO have the right to tax its citizens and they CAN collect taxes from Fed. Govt on land purchases and other issues relating to state matters. Implied Political Theory: State CANNOT, however, tax the bank itself b/c it would be imposing penalties on the whole National Bank (and punishing people outside its jurisdiction). This is a representation reinforcement/taxation without representation issue - people in Virginia will have no say in the taxes being levied upon them. Important! The Constitution is an outline. It marks the important things, leaves the rest to interpretation. Otherwise it would be too long and too cumbersome to amend every single time you want to change it.

A. Necessary and Proper Clause Article I, 8 - Congress is given the power to make all laws which shall be N&P for carrying into execution The fact that NPC is in Section 8 (Enumeration of Powers) and not in section 9 (limitations of powers) shows that this provision expands Congressional power. Rational-Relation Test: (congress can use any means that is): 1. Rationally Related to the some constitutionally-enummerated power they have and 2. Means is not forbidden by the Constitution What is NPC? i. It does not mean essential to achieve the governmental goal. - very narrow reading. ii. Necessary: useful or desirable not indispensable or essential. (as in Art. 1, 10) Marshall iii. Proper: sth that is plainly adapted for the ends that are not prohibited . LIMITATIONS the due process clause might limit the NPC; must also find an authority in the Constitution to exrcise the NP power, kind of like a boot-strapping mechanism

Separation of Power I. Check & Balances in Theory

1. Two types of Separation of Powers Cases: 1. Power: does the Government have the power to do XYZ? (McCulloch) 2. Rights: even if the Government has the power to do XYZ, is the execution an unconstitutional infringement on rights? 2. Source: 1) Executive -- Carries out the laws (Art II US Const.) o War Powers o Execution of the Laws o Foreign Affairs & Treaties 2) Legislative makes the laws (Art. I US Const.) 3) Judicialinterprets the law in the context of resolving legal disputes (Art. III US Const.) 4) Quasi 4th Branchregulatory agencies; disputed how this fits into the separation of powers model (part legislative and part executive in nature). 3. 1. 2. 3. Purposes for Separation of Powers: Prevents tyranny -- slice up power so each can check each other; no branch gets too much power. Efficiencydivision of labor and specialization enhance efficiency; Enhance accountability

4. How do you apply this doctrine in specific disputes when theres no text on point? - Considered gray area powers - fall in between the 3 traditional types of governmental functions. - Two different views on how much overlap in power should be allowed: 1. FormalismConstitution created 3 separate branches and all questions must be fit exclusively into that schema. Division of powers is but a means to an END. -- more conservative Scalia, OConnor o No one branch can impinge at all on the other branches. No overlap whatsoever 2. Functionalismultimate purpose matters most; the 3 branches are not an end but a MEANS. Dont worry about form, just worry about function of the s of p. -- more liberal Madison, White, Kennedy 5. Special problem about agency 1. Concern of Congress i. Let agency function: B/c of its workload, Congress delegated its power to the agency to implement special regulation. The agency was making law as Congress did. ii. Keep control of Agency-set the boundary from Executive branch (a) Legislative veto (b) Control the hiring and firing, appointment process 2. Problem-imbalance of power, and its effect on function of democracy. i. A cannot fit into any branch, which branch the agency best fits into? (a) Formulism-A goes to E (b) Functionalism-quasi-legislative and quasi-executive. A is sth new and different, so A is not classical E branch, and there should have some isolation b/w A and E to maitain the balance of power. Otherwise, A+ E will > L, and it will cause imbalance of power. ii. What is the check on A? the hiring and firing process (a) Formulism-A goes to E, so E should hire and fire A, especially firing, since there is no removal clause (b) Functionalism-isolation b/w A and E, then there should be a prevention of removal by E.

Separation of Power

II.

How are the Powers of the Supreme Court Checked?

Constitutional Amendments o Very difficult measure. Most successful way to check power of the justices, but extremely hard to get through o Constitution has only been amended four times to overrule a supreme court ruling o Differing views on why Constitution should be amended: 1. Strong presumption against amending. The Constitution is flexible enough to accommodate change and it is imprudent to constitutionalize the normative values of the time (e.g. Prohibition and the passage of the 18th Amendment, only to repeal it several years later) 2. Amendments should be welcomed. No reason to give deference to the past. (Thomas Jefferson liked this view and encouraged regular revisions of the entire Constitution) 3. Only make amendments if they remedy serious structural defects or attempt to expand rights for groups that are previously excluded. (More pragmatic middle ground) Appointment process Judges are nominated by President, senate confirms. o There is democratic input. President and senators are elected. Presumably, the people take into account the type of judge that they will select before they cast their votes for their senators/president Impeachment o Nobody has EVER been impeached from SCOTUS o Reasons for impeachment are limited: treason, bribery, high crimes & misdemeanors Judicial/Jurisdictional Tinkering o Congress can alter jurisdiction of the court to hear certain types of cases (like in Ex Parte McCardle) o Based on the text of the Constitution (Exceptions Clause), Congress could probably even get rid of the federal courts in its entirety (just not the Supreme Court) o Caveat: Congress cannot direct SCOTUS on how to interpret cases (US v. Klein). Although Congress can alter jurisdiction, it cannot give any instruction on methods of interpretation o Jurisdictional tinkering is very rare. Court Packing o Since the Const. does not set the # of Supreme Court justices, Roosevelt tried to pack the court with people that shared his ideology when SCOTUS began to reject some of his New Deal initiatives

Separation of Power III. Executive Violation of the Separation of Powers

A. Youngstown Sheet Tube v. Sawyer ^ - Justiciability and policing power grabs are major issues
Power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up. Holding: there is a categorical distinction between legislative and executive power no inherent power beyond that allowed under Article II or w/ explicit Congressional approval. If Youngstown is an emergency...Why is the Court having a hard time to justify the Pres. action? b/c Threat wasn't too imminent!

FACTS: (1952) Steel Seizure case. President Truman nationalizes the steel mills. Congress had previously denied the President the right to seize the steel mills but he does it anyways. After President seizes the mills, Congress is silent. There were 3 times in the past Pres. did something like this and Congress Black(Majority, Textualist): The Presidents powers must be expressly granted by either the Constitution or Congress. If President acts w/out legislative direction, he is probably exceeding the scope of his powers. In the Const., basically just limited to "executing" not "legislating". Also, this isn't commander in chief power, this is not in a foreign theater of war. Frankfurter(Concurring, Custom/Tradtion): Same result, but custom does the work, not text. There have been 3 times pres did this and Congress approved, but not enough for custom to be established. Also, Congress witheld approval when they shortly approved it afterwards in the past, should be interpreted as Pres doesn't have the power. Jackson (Concurring, Structure & Relationship: Emphasized Court cannot use history/original intent to solve specific problems today. Points out that there is no explicit separation of powers clause in the Constiit is implied in the structure of doc.Identifies 3 different states of Presidential Power: Framework-probability o 1. Zenith: President acts with express/implied authorization of Congress Presidential power is strongest here. President gets the benefit of the doubt and his actions are supported by presumption of legality. To challenge this type of action, burden of persuasion rests heavily on the person challenging authority. For example: if Congress passes a law, Pres still can't do it if the law is unconstitutional. o 2. Twilight: President acts in absence of congressional grant OR absent a denial of authority President is in zone of twilight of his powers. Congressional indifference means that President sometimes may need to act w/out authority. Determination of whether this is legal or not depends on exigency of current events. Need text or long-standing custom to justify the Presidential action. This is divergence from Black (no text, no power). o 3. Lowest Ebb: Pres. takes measures incompatible with the expressed or implied will of Congress Pres. can only rely on his own Constitutional powers minus whatever power Congress has This situation is most comparable to Youngstown because Congress had expressly rejected the legislation that wouldve given President authority to seize mills. Courts can sustain Presidential action like this only by cutting congress out of the picture. Courts will not do this easily, will only allow this type of action with great caution/scrutiny. DISSENT (Vinson): Unless it actually violated USC, the President can take the action People are the check

Separation of Power B. Summary of potential Constitution interpretation

a. b. c. d. e. f. Statute authorization Text of Constitution Custom-what presidents have done in the history History-what the framers original intent Political theory-what makes sense in the theory The Structure & Relationship-how to internalize the power

Custom=Power: While Truman loses, at the end of the day, the presidency is stronger - the seeds for expansion of presidential power are in Frankfurter and Jackson. Custom and tradition can now be a source of presidential power instead of text. Govts arguments in favor of Expanded Pres. Power (bullets reflect Justice Jackson's reasons to reject): o 1. Executive Powers clause History: no way that founders would want to allow such expansive powers to the president (King George did the same thing and the Founders revolted as a result) Executive powers clause is NOT a grant in bulk of all conceivable executive powers. Rather, its limited to the generic powers stated in Article II o 2. Power of Commander in Chief gives President authority to use force sometimes as necessary Has nothing to do w/ labor disputes. Text: Art. I Sec. 8 gives CONGRESS the power to provide and maintain Navy and raise and support Armies. Steel mills are used to provide/maintain/support so CONGRESS alone has power to appropriate/determine what the army needs No indication that Founders think that Commander in Chief of the Army & Navy means that President can command the entire country, industry, and labor. o 3. Faithful execution clause: President has duty to faithfully execute the laws of the USA Must measure faithful execution clause against Due Process clause. No person can be deprived of property w/out due process of law. Since there was no Due Process, President exceeded his authority o 4. Custom: President has authority to act during emergencies. Textual Reading trumps Custom argument. Founders definitely knew that national emergencies existed. They specifically allow suspension of habeas corpus in times of emergencies. They made no other express provisions for exercise of extraordinary authority in times of crisis Congress couldve granted emergency powers, but didnt. President is in clear contravention of Congressional policy. Art II, 1, Cl1, vesting clause (the executive power shall be vested in a President. . .) Art II, 2, Cl1, Commander-in-Chief clause Note! The taking of the property in order to keep labor disputes from stopping production of war m aterial was too far removed from the actual theater of war in which the Pres. had the right to set policy. Art II, 3, take care clause - President shall take care the laws will be faithfully executed - very language shows that the President must merely carry out the laws, not make them

Separation of Power

Dames & Moore v. Regan ^ (TWILIGHT) Congressional silence is not always disapproval
FACTS: Executive agreement signed to release American hostages. Agreement called for 1) unfreezing Iranian assets and 2) any litigation between the Government of each party and the nationals of the other would be resolved through binding arbitration. The unfreezing and the removal of litigation from the courts were challenged in the suit ARGUES: 1) President is not executing the law but entrenching of legislative power to make laws; 2) USC delegated Congress the express power to constitute inferior courts and the President is entrenching on that area by suspending those courts power; and 3) Congress has spoken in this area but did not authorize this power HOLDING: #1 = Zone 1 based on express Congressional authority/Article II power finding otherwise would saying the legislative/executive action is itself unconstitutional; #2 = Zone 2-1 (trends towards presumptively constitutional) based on implicit Congressional authorization assessed through various data points o Though the two statutes that President relies on dont explicitly speak to the issue, but show that Congress has (previously) authorized broad spectrum of executive power in times of emergency Another statute implicitly approved the practice of claim settlement by the Executive o Congress has not shown any express statutory disapproval or displeasure after the fact o Executive has acted in this regard in the past (Congressional acquiescence as gloss on power) o Aggregating all of the prior Congressional approvals of presidential action proves that the President acted constitutionally.

Compare: Youngstown to Dames & Moore v. Regan , where expansive Presidential powers to nullify court
attachment of property, seize property, and terminate proceedings in American courts are affirmed b/c the President is acting at Zenith of his power. After seizure, Congress was silent as to whether or not the President had authority to do this. Justice Rehnquist writes that even though the International Emergency Economic Powers Act did not explicitly grant the President such expansive powers, o Court is willing to infer that expanded powers exist based on existing statutes & legislative intent. o Congressional silence in this case is indicative of approval. SCOTUS also notes that since the President provides an alternate forum to bring the claim (claimants can bring claims in special tribunal), there's no problem with stripping federal courts of their power). This court adopts Jackson's analysis from Youngstown even though it's not majority Note: Jackson would say that this is in the twilight zone. Has congress addressed this? No. Has the president tried to extinguish claims and congress has not addressed this? Then this would be custom. Jackson would not approve. NO CUSTOM

In this case, Rehnquist extends Jackson's analysis of custom to SIMILAR or GENERAL powers in national emergency, but not SPECIFIC power to extinguish claims. You could argue against this because Congress has legislated all kinds of things, but not this power, then congress has implicitly says no. Rehnquist would argue that because Congress has extended similar powers, it would extend this as well, make this a Zenith, not a twilight

Foreign Relations: Executive Assertions IV. Executive Assertions of Foreign Affairs Power Rule: The President is the sole organ of the nation in its external relations and is the sole representative of the USA to foreign nations. SOLE ORGAN: He quoted John Marshalls letter, but Marshalls letter actually meant the President is the sole organ of communication, not foreign affairs authority. This is misquoted all over the place. This interpretation is used to justify more meaning of executive power. SCOTUS has some involvement w/ foreign relations - original jurisdiction over cases involving ambassadors // Congress ratifies treaties

A. United States v. Curtiss-Wright Corp.^

Effect of this case:
This case stands for the bold proposition that foreign affairs law is federal, unconstrained and is to be almost exclusively exercised by the President. Text of Const constrains Presidents domestic power but leaves foreign power fairly open. So, since strong foreign affairs power is essential to the sovereignty of the nation, we imply that the President needs extensive powers.

Emphasizes the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. In this vast external realm [of foreign affairs] with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation Facts: - FDR issued a proclamation barring the sale of weapons to Bolivia under penalty of fine. - Congress authorized this proclamation by means of a Joint Resolution. - Curtis-Wright (gun sellers caught) challenged constitutionality of seemingly legislative act of Pres. Holding: the SC upheld. Rationale: (1) Based on the Youngstown framework, the President is at the zenith of his power b/c he is acting with Congressional authority on top of his own authority. (2) Problem of delegation: (a) TextArt. I, sec. 8foreign powers clause-Congress can regulate commerce among the U.S. and foreign nations.
(b) Is Congress giving away too much power b/c Congress cannot just delegate at will. (c) The SC answers this delegation question at this timeNew Deal Era. SC waters down nondelegation, ex. Congress gave away power to agencies. (d) The SC is actually saying that the broader delegation of lawmaking power by Congress to the president will be tolerated in the area of international affairs than in the domestice area. (3) When dealing with foreign affairs, President has independent power. -- Court does not need to address if the Congressional delegation was constitutional b/c FDR had the power to issue the proclamation on his own. (a) Pres. has this power, b/c unique nature of foreign affairs & P need for authority & confidentiality. (b) Constitution applies to foreign and domestic affairs in different waysArt. I, sec. 8 takes power from the state in national foreign affairs [accurate?]. States are prohibited from entering into treaties by textArt I., sec. 10. (i) Tradition - Articles of Confederation - national entity had the foreign affairs power so idea of foreign affairs sovereignty remains with fed. government; was never part of the states. (ii) History/original intentForeign affairs is an area thats distinctly reserved to the federal govt

not the states by the founders (this is a questionable assumption, according to Flaherty)

(4) Critiquewhat about Congressional war powers? a. History--Under the Articles of Confederation, foreign affairs power rested with the legislative body. b. TextCongress has some war powersdeclare war, maintain an army, navy (Art I, 8, Cl11-13) etc; treaty clause does not give foreign affairs power exclusively to the Pres. (with the advice and consent of the Senate.). 10th amendment says any powers not express to federal government are retained by the states; pre-emption clause (fed has foreign affairs power over the states).

B. Hamdi v Rumsfeld.^ - (Zenith) Citizen detained as enemy combatants require a modicum of due process
Facts: Govt detains US citizen caught on the battlefield. Tries to detain him as an "enemy combatant" & deprive him of all rights. Rule: Due Process requirement in 5th Amendment only requires that US citizen be given a meaningful opportunity to contest the charges against him and the right to meet with counsel. Categorizing a US citizen as an enemy combatant is legal b/c Congress passed the Authorization of Use of Military Force AUMF (President is acting at Zenith + commander in chief power), just need to give him some due process rights. Ex Parte Quirin - Pres.can detain enemy soldiers to prevent them from returning to the battlefield. In war on terror, Pres. can hold the detainee for as long as necessary/until the war is over (whichever comes first) Detainees are entitled to some rights (neutral arbiter, counsel, right to defend himself), but does not get all rights that are guaranteed in Federal Courts

Art. II Commander in Chief powersgives executive plenary authority to detain indefinitely w/o judicial review Separation of Powers: neither the Court nor Congress has a role here.

C. Hamdan v. Rumsfeld.^ - (Low Ebb) Pres. may not convene a military tribunal by Executive Order
One way to put detainee on trial is Federal Court, Hamdan was put in military court b/c its easier to convict (less due process rights) Article 36 (a) Military courts should be as close as civilian courts as the President deems possible. (b) Military commissions shall be as close to courts- martial as possible; prohibited from issuing military commissions unless there are explicit reasons Question: Is the military commission system, which Pres. Bush set up, an unconstitutional executive act? Rule: Yes, the military commission because it violated the Uniform Code of Military Justice and the Geneva Conventions. Both acts of Congress FACTS: Hamdan, was captured by Afghani militia forces and turned over to US military. Held at Gitmo when the Pres. issued an Executive Order that deemed him eligible for trial by military commission for then-unspecified crimes. Hamdan charged with count of conspiracy to commit offenses triable by military commission. Hamdan petitioned for a writ of habeas corpus to challenge status as enemy combatant. GOV ARGUES: AUMF and DTA provides overriding authorization for the commission convened to try Hamdan and strips the SCOTUS of jurisdiction to hear habeas claims HELD: Exigency alone will not justify the establishment and use of penal tribunals outside of Article I, 8 or Article III, 1 unless some USC authority is granted jointly by the Executive and Legislative -

Foreign Relations: Legislative Assertions V. War Powers Act - Response by Congress to regulate Executive overstepping President/Congress War Powers are shared in the USC - Congress seemingly is the dominant authority (Article I provided with a tremendous amount of specific power) o Power to declare war, tax and finance war, determine the rules of war, to raise and support Army and Navy, and make all laws necessary and proper for exercising that power - President is commander and chief of armed forces o Read within context of Article II power vested in President, his role seems to be more that the laws that Congress makes about war are faithfully executed The War Powers Resolution: President is supposed to consult with Congress unless: 1. There is a declaration of war. 2. Specific statutory authorization 3. National emergency War Powers Act: - Congress response to codify the power to make and declare war in response to Pres. involvement in a number of wars without formal declarations by Congress (ex., Korea, Vietnam). - Congress passes super-statute in 1973. Passed through House and Senate, President vetoed it, House and Senate override the veto - The President has to report within 48 hours that these acts of war are going on) If Congress does not approve after 60 days, president must withdraw (another 30 day period extension allowed This is 90 days allowed to President before Congress gives the OK. - Act says there is war when: 1) Use of armed forces (shooting), 2) Entering troops into another sovereign, and 3) Moving troops along a border 1. Background: make war vs. declare war distinction Art I, 8, Cl11. - Historically, declare war meant Congress wld have the power to initiate hostilities w/a foreign nation. - Original Intentframers changed from make to declare to account for situation when Congress not in session and could not be easily assembled so President would have this war authority. - Structure & relationshipargue for Congress b/c this makes it harder for U.S. to get involved in a war than when one executive makes the decision. - TraditionPresident has involved the country in hostilities w/o formal declarations of war from Congress. (in major conflicts such as WWII, there have been formal declarations.) 2. Commander in Chief Power vs. Congressional Power to Declare War - Original Intent - Pres. has power to repel sudden attacks but not start a war w/o Congressional authoriztn - In times of insurrection/civil war, Congress does not declare war against the USA. Rather, President has authority to repel attack -Prize Cases (Lincoln blockades southern ports during civil war): holds that Congress can only declare war against a foreign country, not a State. - Congress can authorize use of military force without declaring war by paying for it(x.Vietnam, Iraq) 3. Emergency Constitutionalism Article I, 9, cl 2 The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it Article I, 8, cl 15 To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions Article 2, 2, cl 1 The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; Article I, 10, cl 3 No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Foreign Relations: Law Epilogue

A. Reid v Covert A treaty cannot infringe on a Constitutional right, such as Individual Rights.
Wives arent in military, so this is taking away a civilians due process (5th & 6th amendment) The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government. Rule: A treaty may not violate any distinct constitutional prohibitions or guarantees (the Bill of Rights). Facts: W killed military H while stationed in another country; Britain & U.S. had treaty stated that servicemen & spouses be tried by court martial; violates criminal constitnl protection of right to a jury trial. Holding: Treaties must be in accordance with Constitution & cannot amend it. - TEXT: Art. XI Supremacy Clause: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made shall be the Supreme Law of the Land. - POLITICAL THEORY: Harder to get an amendment to the consti. than a treaty. Art. V: Tough to amend the Consti, so why would the treaty power be a loophole for the President to amend?

B. Holland v. Missouri - Treaties expanding Congressional power.

Rule: Because a treaty becomes the supreme law of the land, legislation to enforce the treaty is constitutional even if, prior to the treaty Congress did not have that specific power. (assuming treaty itself is constitutional). Facts: Congress passes Migratory Bird Treaty Act, to enforce treaty btw US & GB, prohibits kill of birds. Issue: States claim under 10th A. its not w/in Congress's authority to regulate migratory birds under Art I. Holding: Treaty is constitutional. Its an additional source of power for Congress. Rejects 10th A claims. o TEXT/Structural Arg: - Art II, independent power - President and Senate can make treaties. - Necessary and Proper Clause - grants Cong power to execute nec & proper law - 10th amendment only applies to non-delegated powers and treaty power is delegated - The treaty does not contravene any prohibitory words found in the Constitution. o Federalism: - A national interest (saving birds) can be protected only by national action in concert w/ that of another power. It is not sufficient to rely on the States (kind of like Maryland).

C. The Paquete Habana

Facts: During Spanish-American war, we seized two fishing vessels; Navy wanted courts to confirm libel action, sell it, and captain and crew get the proceeds Refused based on the general consent of the civilized nations of the world...it is an established rule of international law...that coast fishing vessels...are exempt from capture as prize of war. Policy Reason: Fishing industry would collapse, people may starve. There is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is

Domestic Relations: Executive Assertions

A. United States v. Nixon - (Executive Privilege) Court detemines scope of qualified privilege.

Rule: Exec. privilege exists but its not an absolute privilege --Court determines scope of the privilege. If Pres
makes claim of natl security, may have absolute priv. Otherwise, a qualified privilege as determined by Court. FACTS: Nixon is an unindicted co-conspirator in obstruction of justice & conspiracy charges. Special Prosecutor subpoenas Nixons tapes. Nixon moves to quash the subpoena. DC denies the motion; SCOTUS takes the case. NIXON ARGUES: USC provides an absolute privilege of confidentiality for all Presidential communications which is consistent with the public interest. There is 1) the need to protect the confidentiality of executive communications and 2) implications of separations of power. President is immune from the subpoena based on this privilege and he alone, as the sole interpreter can determine the scope of his Article II privilege judicial review is precluded here. PROSECUTOR: Nothing in the USC provides for Executive privilege & thus Pres not entitled to any privilege. HOLDING: President has an executive privilege. The need for candor justifies it. But the privilege is not absolute but qualified. While the President enjoys a presumptive privilege to keep his communication secret, that privilege must yield when there are important countervailing interests. Its emphatically the Courts role to decide whether the President has executive privilege, and if so, its scope o Because there is no explicit Article II power, it is created entirely by judicial implication o There is no separation of powers concern with having the Judiciary oversee Executive privilege President has executive privilege to execute his duties in the public interest there is a clear need for candor in communication and unvarnished opinions from advisors without unbridled threat of judicially discovery o Although no express Article II power, the privilege derives from the supremacy of each branch within its own constitutional duty powers and privileges flow from enumerated duties and the confidentiality of communications have similar underpinnings (particularly with military/diplomatic secrets) But that presumptive privilege is not absolute and must yield when there are important countervailing interests o Neither SOP nor the need for confidentiality of communication, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial processes in all circumstances

B. Nixon v. Fitzgerald - President is immune from civil suits related to official acts.
HOLDING: Both sitting and former Presidents have an absolute and permanent immunity, even if it violates federal law or the USC, from civil damages liability going to the outer perimeter of their official acts. Facts: Fitzgerald suing Nixon in civil court for wrongful discharge Issue: Constitution says, under Art. II, that executive powers are vested in President; President infers from this that he has immunity from civil actions This immunity is needed to protect President acting within his executive powers Without immunity, President would have to hesitate before every decision he makes

C. Clinton v. Jones - President is not immune from civil suits related to his unofficial conduct
RULE (Civil v. criminal suits against the president) President has immunity from criminal trials and civil suits charging official misconduct during office, but NOT for civil trials charging non-official misconduct. Pres can be sued for anything that falls outside realm of official acts. * Distinction is that a civil suit for non-official misconduct does not distract from job Clinton saying now that he is President, he cant be sued, even though actions werent within Presidential powers; that suit must be postponed until his term is over Clinton argues that the Constitution affords the President temporary immunity from civil damages litigation arising out of events that occurred before he took office. Court says immunities are grounded in the nature of the function performed, not the identity of the actor who performed it. No support for an immunity for unofficial conduct

Domestic Relations: Legislative Assertions

A. INS v. Chadha - President is not immune from civil suits related to his unofficial conduct
RULE (Legislative Veto): legislative veto unconstitutional b/c it violates SOP b/c Congress veto was an attempt to pass a bill and this action fails b/c it was not subject to the formal bill requirements, bicameralism and presentment. Four provisions in the Constitution under which the House may act alone: 1) To initiate impeachments Art. I, Sec. 2, cl. 5; 2) Senate alone given power to conduct trials following impeachment on Houses initiated charges; 3) Senate alone given final unreviewable power to approve or disapprove Presidential appointments, and; 4) Senate alone given unreviewable power to ratify treaties negotiated by the President. - Congress may delegate authority, but once it does so it must abide by its decision until that delegation is legislatively altered or revoked - House legislative veto lacked the bicameral approval requirement; violates Art. I Sec. 7 Presentment Clause o Rule: 1st: Congress may only legislate only if there is bicameralism and presentment of the bill to the president to sign or veto (instructions from Article 1, 7). o Rule 2nd: Legislative veto is legislation without bicameralism or presentment. It was legislation because it altered the legal rights, duties, and relations of persons. o SCOTUS has interpreted the work done by agencies as executive work. They are just executing the broad grant of power given by Congress. A judgment call does not mean that it is legislation. Key Chadha Take-aways: Cases like this arise when Congress tries to overrule power it has given to the executive (thrgh agencies). Though Congress loses veto power, there is an argument that it should retain some power over executives power to dismiss and hire agency heads. Congress should be able to retain some say over who gets to execute the tasks it was originally assigned. If there is no legislative veto, how can Congress supervise the agencies? Write specific statutes and avoid broad grants of power. It could amend statutes after it notices something wrong. It could eliminate the agency. Power of the purse: 1) cut back the funding; 2) De-fund specific activities; 3) Have a substantive provision in the appropriation bill (looked down upon). Advice and consent of appointments by the Senate.

B. Morrison v. Olson -- From Formalist to functionalist

Rule:(judiciarys power to appoint) FUNCTIONALIST: Judiciary can appoint independent prosecutors for
gov wrongdoing, even though it traditionally fall under exec power 1. Court uses a formalist approach and finds the statute which created the office of the Independent Counsel constitutional 2. The objectin to the statute is that the judicial branch is appointing the Independent Counsel. Whether this is constitutional depends on which part of the appointments clause the IC falls into. 3. The Court says the IC falls into the category of the inferior official, thereby holding the statute constitutional. 4. Separation of Powers rationaleThe limiting effect of the IC on the executive does not expand the power of the legislative branch. It was not significant which branch the IC fit in to but that the existence of the office did not upset the balance of power. 5. Scalias dissent[Flaherty thinks his history is dead wrong].

Federalism

A. Garcia v. San Antonio MTA (chipped away by NY & Printz)

1) Facts: Garcia seeks overtime pay from his employer, San Antonio MTA (for purposes of this inquiry state agency, under the Federal Fair Labor Standards Act. 2) The States argument i. MTA contends that since it is public & intrastate, constitutional doctrine shields it from federal labor regulation of transit workers. ii. Under NLOC case, the state should have been immune to the federal regulation as it only applied to private industry. 3) Holding: i. However, SC directly overruled National League Of Baseball Club. ii. Garcia is a case of shield federalismfederal govt trying to encroach on a right traditionally held by the statetransportation. iii. Garcia eliminated the shield around what states may do in terms of traditional activities which had been protected in NLOC. 4) Rationale: i. Supremacy clause, Art VI, Cl2: Fed. law trumps state law! CST is supreme law of the land. ii. Interpretation of 10th amendment: (a) While 10th amendment does say that any powers not enumerated to the federal govt. are retained by the states, state sovereignty is protected by representation in Congress which passes federal regulations. (b) 10th amendment really goes to sword federalismquestions of whether the federal govt has the POWER to do something vs. the states. (c) 10th amendment doesnt apply to shield federalism b/c it there is no prohibition on a federal power just b/c a state has a certain power. iii. Structure & Relationship (a) State sovereign interests are protected by procedural safeguards inherent in the structure of the federal system, not by judicially created limitations on federal power. (i) Text-Art V, each State has equal suffrage of senators and cannot be amended w/o am (ii) The states are given general control over electoral qualifications for federal elections, (iii)The states have a special role in presidential elections by means of the electoral college (b) Taken together, all indicates the structure of the federal government has been constitutionally arranged so as to protect state sovereignty. 5) Effect: After Garcia, shield federalism is pronounced DEADno more states rights that the federal sword cannot extend to. 6) RULE: i. Once congress acting pursuant to its Commerce power, regulates the states, the fact that it is a state being regulated has virtually no practical significance-if the regulation would be valid if applied to a private party, it is also valid as to the state ii. Anytime a state argues that its sovereignty has been impaired, the Court will say it is outside the scope of judicial review(a) the mere fact that Congress (whose members are elected from individual states, pursuant to state-controlled qualification) (b) passed the bill, (c) and that the bill was not vetoed by the President (in whose election the states play a key role via the electoral college), (d) necessarily means that the state sovereignty has not been impaired.

B. New York v. United States -

RULE: (Sword does not extend/Anti -commandeering): Federal government cannot directly commandeer the state legislative process b/c the sword/power of the federal does not reach that far. This is a SWORD federalism case. The right of a state not to be commandeered (a shield) is a federal power (sword). Fed does not have power here. The sword does not extend long enough to reach it. Effect of this is a quasi-shield federalism comeback or an anti-commandeering principle. States are the only beneficiaries of the holding. Fed govt cannot commandeer states by telling them how to regulate Commandeering: Congress forcing/coercing states to do something or enact a law of its own preference. Facts: Congress enacted the Radioactive waste policy act to force state to make its own arrangement for disposing the radioactive waste. -- Does this federal interference reach too far? Holding: Yes, Court invalidates the federal law as violates 10th A. SC said monetary and access incentives are fine ways to coerce the state No use of states lawmaking mechanism: the Congress does not have the power to comandeer the legislative process of the States by directly compelling them to enact & enforce a fed. regulatory program Rationale: History: Under Art of Confederations, national govt could only operate on states, not on people. Under Const, changed it so Congress can pass laws directly affecting people: therefore no longer have power to regulate states as states. (Flaherty sees this as BS) Text Argument: 10th A, what fed doesnt have, states have, & fed does not have the power to commandeer Court doesnt want to overrule Garcia so creates an anti-comandeer principle and talks in terms of swords/power. o Garcia was shield case Mirror image: Absence of a power is really the beginning of a shield. Is there a power to commandeer rather than is there a shield against commandeering? -- Creates a quasi shield o Congress would be holding a gun to NYs head if it forced state to take title direct coercion not allowed b/c this is commandeering.

C. Printz v. United States Congress may not commandeer state executive branches violates 10th Am
RULE : (Permeable Shield returns/ Extending the anticommadeering principle): Federal govt cant commandeer either the state legislature or the state executive officials. STATUTE: 1) Purpose: Prevent persons from purchasing guns who are flagged ; 2) Effect: compels state/local police (executive branch) to check the national system; 3) Rationale: Compelling state officers to execute intrastate enforcement of federal laws will reduce gun violence and protect interstate commerce HOLDING (Scalia): States are not implements of federal regulatory policy reduces the state to puppets of a ventriloquist Congress reduces political accountability and forces states to absorb financial burden DISSENT (Stevens): Court creates perverse incentives for national government to create vast national bureaucracies to implement policies Facts: Congress enacted the Brady Handgun Violence Prevention Act which required for state/local law enforcement officers to conduct background checks on prospective handgun purchasers. Reasoning for Decision: - The law commandeered the states by forcing state/local police officers to execute Congressional plans. - The command for police officers to conduct background checks was a violation of separation of powers by forcing state executive officers to do its bidding. - The Brady Act should have been given over to the President so that he could take Care that the Laws be faithfully executed. - Here, Congress would not be held accountable for the law; it would be the state/local officers who never made the decision to conduct the background searches.

Privileges and Immunities Clause

A. Slaughterhouse Cases - PI clause NOT meant to protect individuals from state govt actions
Rule (The P or I clause): The privileges and immunities clause does not protect very many P or I of US citizens. It just applies to a small set of P or I (right to do business with US, navigable waters, life liberty property when on the high seas). The rest of P or I protection is left to the States. 1) Facts: Butchers sued for a violation of 13th and 14th amendments, attacking a Louisiana statute that gave a monopoly to a particular company. 2) Butchers arguments i. 13thinvoluntary servitude to the company, ii. 14thstatute was a denial of the privileges and immunities of national citizenship, including the right to practice ones calling (right to livelihood). 3) Majority opinion by Miller Holding: i. the 14th amendment PI clause merely forbade state infringement of the rights of national citizenship, not the rights of state citizenship. ii. SC upheld the Louisiana statute. 4) Majority opinion Reasoning: i. 14th only applies to PI of national citizenship-Distinguished between US citizenship and state citizenship and narrowly construed the 14th amendment P&I clause to only apply to U.S. citizenship. (a) Caveatthe purpose of the amendment when it specifically defined state citizenship was to make sure blacks were explicitly made citizens of the states.(so state legislatures couldnt deny them citizenship). And to prevent the southern state to deprive the US citizenship of the slave. ii. Right of practice ones calling is not PI of national Citizenship but state citizenship -Narrow reading of the P&I clause iii. Therefore, P should look to LA law for protection-SC views as to the state power Flaherty: Slaughterhouse is wrong. The fed P or I should be BIG. This is an anti-originalist opinion. However courts haven't overturned b/c they have used DP and EP to pick up slack (which they should not). Text/structure-P or I clause is first, P or I protects citizens (small group), the DP or EP are about persons (bigger group). Its intuitive that a national document will give more protections to citizens and a smaller group of people. History (original intent)-this is what the P or I clause was meant to protect by the amendment framers. Corfield. This is the reason we fought the civil war, to protect free slaves and guarantee them a broad array of rights. Text/Political Theory/Intent-The fed/state citizenship-why did they define federal citizenship? Dred Scott, but this is part of the reason only. They define state citizenship because they are afraid that the Southern States wont let the free slaves be citizens. States have to follow this because its the Supreme law of the land. They then define the rights of the citizens in the P or I. The immigrants and visitors get DP and EP. Implied Political theory: It seems like it was meant to guarantee a BROAD array of fundamental rights to all citizens of the united states (this jives with the reconstruction idea of protecting freed slaves and southerners loyal to the union) Purpose of civil war was to federalize broad fundamental rights The court just goes against all of this. Why? The court could have just said sure the P or I applies to fundamental rights, but it doesnt apply to right to livelihood. This would be less harsh. Instead, P or I is wiped out, basically only protecting a small set of P or I.

Due Process A. Griswold v. Connecticut - Peripheral rights (c&c w/McCulloch) Right to Privacy(a fundamental right)-The right of privacy includes the right to use contraception. Facts: Statute in CT prohibits any person to use any drug, instrument for purpose of preventing conception. HELD: Statute violated the 14th Amendment. DP. 1. Douglas(main opinion)-He was a new deal guy. He hated economic rights and Lochner. a. Peripheral Rights-We dont need to use the 14th Amendment, that would be like Lochner and we rejected Lochner in West Coast Hotel and Lee Optical. Were not a super-legislature.The first amendment, free speech, includes peripheral rights like in Meyers and Pierce, and we re-affirm those cases. NNACPv.Alabama freedom to associate is peripheral to free speech as well, and we need to enforce this or free speech wouldnt mean as much. b. Zone of Privacy Penumbra:Just like this Free Speech Penumbra, right to privacy zones are created by various provisions. i. Right of Privacy Zones . Third amendment-need consent of owner to quarter soldiers in their house. 4th Am.-right to be secure in their person against unreasonable search and seizure. 5th Amendment-Self-Incrimination privacy. 9th Amendment-the enumeration in the Const. of certain rights shall not be construed to deny or disparage others retained by the people. Justification of the penumbra approach. Trying to stay with the text. c. Privacy in the Home: The 4th and 5th Amendments create a protection against all governmental invasions of the sanctity of a mans home and the privacies of life. This present case is a violation of this right. The statute is unnecessarily broad and sweeping because you could just restrict their sale and manufacture of contraceptives. The goal is to have people not use contraceptives. When there is an alternative way to prevent activities subject to state regulation, the goal may not be achieved in the more sweeping and destructive way. Marriage is sacred, lets not intrude on that. 2. Class Discussion: Some people think this is bad reasoning. However, this is like McCulloch. Theres a power to do all kinds of financial things, but not to establish a bank. But the bank is established. Howveer, in McCulloch, there is a relation and the means to the enumerated rights are the unenumerated rights to get a bank. However, in this opinion, there are penumbras that try to do this work...not good. Implication of Griswold - Test 1. Unenumerated fundamental rights can be protected by the Constitution through the 14th amendment Due Process clause. (this is substantive DP, as opposed to procedural DP). 2. Test for whether an uenumerated right is fundamental: Is it implicit in the concept of ordered liberty as evidenced by our tradition (Harlans Griswold concurrence). 3. Fundamental rightif you find the right is fundamental, apply strict scrutiny test to detrmine whether to uphold the statute or strike it down; a. Strict ScrutinyCompelling ends & narrowly tailored means. b. Govt. always almost loses; statute regulating will almost always be struck down. 4. Non-fundamental rightif you find the right is not fundamental, apply rational relationship test. a. Rational relationshipLegitimate ends & rationally related ends.

Equal Protection I. Classifications that Disadvantage Minorities Get Strict Scrutiny

A. Strauder v. West Virginia (1880)

Facts: D convicted by all-white jury. WV statute provides that all juries must be comprised of white males of 18 years or older. Held: SCOTUS reverses b/c it's a violation of EPC. Rule: Cannot pass discriminatory statutes based on race.Legislative Intent of 14th Amendment is really designed to give equal rights to black people. Blacks must be exempt from all legislation that discriminates against them as a class. Cannot discriminate based on immutable characteristics like race Note (Representation Reinforcement): Black ppl. cannot have their views represented by the government b/c they're an underrepresented minority in the government, so it's up to the courts to enforce them. Additionally, when the legislature is passing laws that are clearly to the detriment of an underrepresented group, it's clear that the legislature is not acting in the underrepresented group's best interest so unelected judges have to step in because there's a breakdown in the democratic process. We need judges to step in because minorities will not be able to elect people into the legislature and the only way for minorities to have their voice heard is through the judicial process.

B. Korematsu v. United States (1944) - During WWII it's feared that people of Japanese descent will sabotage
America/assist w/ Japanese invasion of the USA. Federal government sends all Japanese ppl. on the West Coast to internment camps. SCOTUS affirms the decision. a. Rule: Race-based classifications are subject to strict scrutiny b. Even though the government is making a race based classification, it defeats strict scrutiny because of grave & imminent danger to national security. i. Ends: Save America from Japanese invasion on the West Coast (compelling government interest). Means: Remove all Japanese people from the West Coast (narrowly tailored?). SCOTUS doesn't have a problem with this c. Dissent: Justice Murphy says that, absent martial law, habeas corpus cannot be suspended. Must temper military judgments with considerations of Constitutional rights. i. Once SCOTUS legitimizes the order, it puts the stamp of approval on discrimination based on race. Civil courts should NEVER enforce any orders that infringe on/violate the Constitution d. Note (Race & Strict Scrutiny): As Justice Thomas notes in Grutter v. Bollinger, the only time after Plessy that gov't restrictions on race survive is when national security is at risk. e. Note (Youngstown): This case represents an example of President acting at Zenith of his powers, according to Youngstown, b/c Congress approved of the President's decision to move Japanese to internment camps. f. Note (Contemporary Applications of Korematsu): Today, if government starts rounding up Arabs, we could try to distinguish Korematsu by saying: i. 1. Korematsu is universally agreed upon as bad policy. ii. 2. Show how ends do NOT justify means. How can we narrowly tailor the action if it's based on immutable characteristics? iii. 3. Point to cases like Hamdi & Hamdan - everyone should get due process when federal courts are open during war-time. II. Facially Neutral Classifications Get Rational Relationship Test C. Washington v. Davis (1976) - black applicants to Washington DC police force say that a test measuring verbal ability and vocabulary discriminates based on race solely because of the disproportionate rate of black failures to white failures. SCOTUS says that the test is fine b/c it's racially neutral and there's no actual discrimination going on a. Rule (Facially Neutral Statutes): For facially neutral statutes that purport not to discriminate based on race, use the Rational Relationship test. b. In Washington v. Davis, the real classification is based on LITERACY, which is not a suspect class c. The test is acceptable under Rational Relationship b/c the ends meet the means (ends: have a police force that has enough vocabulary to communicate w/ the citizenry, means: use a test that tests for

vocabulary) i. If, however, the test itself was discriminatory (e.g. it tested stuff that only white people would know) then it would be unconstitutional d. Just because a test has a disproportionate impact on a certain race does NOT mean that strict scrutiny is automatically triggered or that the statute employs racial animus. Need ACTUAL INTENT to prove discrimination e. Policy (Disproportionate Impact): It is a good policy that disproportionate impact doesn't trigger strict scrutiny because it would lead to many absurd results and unnecessary litigation (e.g. state sponsored segregation of schools just because a certain district has more whites than blacks). Having the INTENT requirement (which can be satisfied just by showing a historical pattern of discrimination in the area, see Rodgers v. Lodge, below) is necessary, otherwise the courts will be forced to judge lots of unnecessary claims Bad Policy: As Justice Stevens notes in his dissent, intent is very difficult to prove/assess. Although actual intent is usually the most probative form of evidence, numbers

Commerce Clause: Old Deal

A. COMMERCE CLAUSE POWER = Art. 1, 8 [To Regulate Commerceamong the Several States]
Pre-New Deal History Broad power = 1820s-1887s o Gibbons v. Ogden Marshall finds no limit on federal commerce power (extremely broad interpretation); power to regulate = power to proscribe the rule by which commerce is governed o Sherman Anti-Trust Act Narrowed = 1890s-1937 Dual Federalism embodied in 3 Doctrines (below) o Commerce = just commercial sales/transactions (NOT agriculture, manufacturing, mining, etc.) o Among several states = must have a direct substantial effect on interstate commerce o 10th Amendment = Reserves huge zone of activity to states Congressional regulation in those areas of reserved powers is unconstitutional Hammer v. Daggenhart: federal statute prohibiting interstate shipment of goods made by child labor was unconstitutional as it violated the 10th Amendment

B. Federal Baseball Club v. National League (1922 Holmes) classic pre-New Deal case!
a. Facts: Federal baseball league sued MLB under Sherman Antitrust Act monopoly challenge to baseball b. Issue: how far does the Congress commerce power reach what is the interstate commerce c. Held: Since MLB did not deal with interstate commerce, Congress statutes could not reach it. i. Why the baseball was NOT interstate commerce according to Holmes 1. It was just local exhibition of baseball purely state affairs (although it sure seemed like it was interstate with traveling, etc.) 2. The exhibition induced free persons to cross lines, but such transport is mere incident, not the essential things. 3. A display of personal effort, not related to production, is not a subject of commerce ii. Congress could only apply the Sherman Act in case of interstate commerce. NO InterState COMMERCE IN THIS CASE! Intra-state, not interstate here. Local exhibition d. Flaherty: This doesn't seem right. - Teams travel, National money making/big business i. Facts: the the federal baseball league sued the major baseball league under Sherman Antitrust Act monopoly challenge to baseball.

C. Hammer v. Degenhart - Child Abuse Case

a. The child labor case (this exceeds power under commerce clause) Law: goods produced by factories in which children work cannot be shipped interstate. b. Court strikes down the statute, b/c fed government does not have power to regulate working conditions/wages/hours c. The product shipped was not an evil, only child labor is evil. but employment of children is not directly related to interstate commerce

Commerce Clause: New Deal

A. Summary of the cases-three theories upon which a commerce-based regulation may be permited
a. b. c. d. An expanded substantial economic effect theory, NLRB v. Jones & Laughlin A cumulative effect theory, Wickard v. Filburn An expanded commerce prohibiting protective technique, Darby v. US Always think of separation and federalism problem

B. NLRB v. Jones & Laughlin part of the switch in time. Substantial Effect
o Fact: Challenge to the National Labor Relations Act (New Deal regulatory measure). o Holding: Upheld by SC. o Rationale: Court says a labor dispute-the regulated activities have a substantial impact on interstate commerce & it wont second guess Congress that unfair labor practices will have a substantial impact.

C. Wickard v. Filburn Aggregate Effect

a. Facts: Congress passes a Agricultural Adjustment Act which set a quota on wheat production to help the economy. Filburn, a local farmer, brought challenge to applicability of statute to person who grows wheat for personal purpose and does not sell any. b. Holding: SC upheld the statue. c. Rationale: i. Filburns wheat production has a substantial impact on the economy when considered in the aggregate b/c we live in an integrated national economy (this is why Congress can regulate the seemingly local activity). ii. Consumption (in the local barn) has a market effect less interstate commerce iii. Taken into account of all those others similarly situated. d. Effect: This cumulative effect theory provides that Congress may regulate not only acts which taken alone would have a substantial economic effect on interstate commerce, but also an entire class of acts, if the class has a substantial economic effect, even though one act within it might have virtually no interstate impact at all.

D. US v. Darby - Means reasonably adapted.

a. Fact: Congress passed a statute i. indirect-prohibiting the interstate sale of the products made by those without minimal pay ii. direct-declaring it is a federal crime to employ workman without minimal pay iii. Congress true motive: to use prohibition on the interstate transportation of items or people in furtherance of police power or general welfare regulation b. Holding: upheld c. Rationale: i. indirect regulation Wickard method, substantial effect in aggregate ii. direct regulation reasonable means to achieve end-two prongs approach 1. Step One: ends=regulation of interstate commerce, means=prohibition 2. Step two: prohibition=ends, means=regulate the minimal wage locally, intrastately a. Wage regulation is a reasonable means of implementing the prohibition on interstate shipments. iii. Congress may choose the means reasonably adapted to the attainment of the permitted end, even though they involve control of intrastate activities. d. It overrules the Hammer v. Dagenhart.