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Gudridge
Casebook (CB): Young, The Supreme Court and the Constitutional Structure (1st ed.)
All con law questions can be broken down into 2 issues:
1. Does the government have the power to act?
2. Has the government violated a limit on their authority?
The Constitution
I.
Why do the wishes of the (very dead) Framers trump the wishes of contemporary elected officials?
o The Constitution is entrenched due to Article V (U.S. Constitution 27 amendments)
Theory vs. Doctrine
o Theories are general organizing ideas
3 Constitutional Theories
Theories of obligation (explain why we obey the Constitution)
o Divine Right C came from God
o Consent Lockean social contract to consent
o Morality Its the right thing to do
Theory of Judicial review (explain why judges, get to interpret it and not other
government officials)
o Judicial job description Courts must apply the highest law in cases
before them
o Institutional capacity courts > other governmental actors @ enforcing
the constitution
o Representation reinforcement judicial review might be necessary to
correct for defects in the ordinary political process
Theory of interpretation (What does the constitution mean?)
o Textualism Formalist theory of the interpretation of law
o Originalism fixed as of the time of enactment
o Common law development custom and judicial precedent
o Moral theory what actions are right and wrong
o Doctrines are the more local rules and principles that guide decision in particular cases
Ex. In Heller, Test for 2nd amendment in Justice Breyers dissent
The black letter rules in Emanuels study aides
Section 1Heller
Chap 1. Constitutional Functions and the Dead Hand Problem:
CB 21-45;
District of Columbia v. Heller (2008) (Emmanuel pg.442-450) (pg.25)
Individual has right to bear arms regardless of militia, based on 2nd Amendment
Facts: D.C. passed a law that barred registration of handguns, required licenses for all pistols and mandated firearms be
kept unloaded/disassembled or trigger locked. Respondent, Heller, is a cop authorized to carry handgun and DC refused
registration to keep it at home. Heller filed sued to enjoin the bar on registration of handguns, licensing requirements for
at home and the trigger-lock requirement as prohibits functional use at home.
Issue: Do the D.C. Codes violate the rights of 2nd Amendment to keep handguns and other firearms for private use in
their homes when the codes:
(1) general bar against the registration of handguns,
(2) prohibition against carrying a pistol without a license, and
(3) requirement that all firearms be unloaded/disassembled or trigger locked, violate the rights of 2 nd Amendment to keep
handguns and other firearms for private use in their homes?
Holding: Yes, the D.C. Code violates the 2nd Amendment, which protects an individuals right to possess a firearm for
private use, but more reasonable regulations are permissible.
(a) Language of the 2nd amendment:
1. Language refers to an individual right of the people to bear arms outside of an organized militia, including
weapons of offense and armor of defense.
2. Security of a free state refers to the freedom of the people to dissent and security from suppression of
freedom.
3. Total ban on handgun possession in the home, requires guns to be inoperable and disassembled.
a. A disassembled or inoperable gun is not a gun at all.
b. Need for protection of family and property against home invasion.
(c) The Operative Clause: the right of people to keep and bear Arms, shall not be infringed is controlling and refers to
rights to carry weapons for self-defense/tyranny
(b) The Prefatory Clause: well regulated Militia, being necessary to the security of a free State, is consistent with
operative clause and refers to well-trained militia (all males physically capable of acting in concert for the common
defense) as being necessary sec of free people
-Today, we dont use strict white able bodied males
-Scalia says legislature can determine what subset of people is the people
Dissent (Stevens): 2nd Amendment protects only the rights of individuals to bear arms as part of a well-regulated state
militia, not for other purposes, even if they are lawful
-Reinforces that prefatory clause shows real purpose and intent not purely prefatory
Dissent (Breyer): Even if possession were allowed, any law regulating use of firearms has to be unreasonable or
inappropriate to violate the 2nd Amendment
-The D.C. laws here are both reasonable and appropriate
Significance: First SC case to directly address whether right to keep and bear arms is right of individuals, in addition to
being a collective right that applies only to state-regulated militias.
-Suggests that 2nd Amendment is applied to States, though unanswered, otherwise this decision would not have much
impact.
-This case illustrates the problems of originalist interpretation and different levels of scrutiny; does not specify exact
level of scrutiny to be used but rejects Breyers balancing of interest.
-Justices themselves establish review of the case either originalist or non-originalist
Friedman v. City of Highland Park, (2015);
Facts: City ordinance prohibited possession, manufacturing, or sale of semi-automatic rifles and high capacity clips
(10+).
Issue: Whether the citys ordinance restricting assault rifles violates 2A?
Holding/Reasoning: City ordinance did not violate 2A.
Appellants rely on Heller, which said a ban against all pistols violated 2A. However, it did reserve states the right to
enforce bans on some weapons not expounded upon.
- Looks at a rational basis for the firearm.
- But states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade
firearms, so as to have them available when the militia is called to duty.
- Highland Park's ordinance leaves residents with many self-defense options.
- Local crimes are most likely to be committed by local residents, who are less likely to have access to firearms
banned by a local ordinance. A ban on assault weapons won't eliminate gun violence in Highland Park, but it may
reduce the overall dangerousness of crime that does occur.
- Highland Park's ordinance may increase the public's sense of safety
- Difficult opinion to grasp. Not simple and does not provide a test. However, it is important and does tell us that when
judges cant decide and issue, perhaps it should be left to the political process to resolve it.
5 Justiciability Doctrines
(1) Standing: if the P is the proper party to bring a matter to the court for adjudication. SC has stated that this is the most
important requirement.
Requirements for standing include:
a. Injury: the P must present only personally suffered injuries. P seeking injunctive or declaratory relief must show a
likelihood of future personal injury.
b. Causation and Redressability: P must allege and prove that the defendant caused the injury so that a favorable fed court
decision is likely to remedy the injury.
c. No Third Party Standing: P cannot present the case of a third party. Only can brings personal claims in front of the
court.
-Exceptions: a P that meets the other standing requirements and one of the following exception must be met: (1)
sufficiently close relationship b/w the P and injured third party. (2) if the injured third party is unlikely to assert its own
rights. (3) Organizational standingan org can assert the rights of its members if 3 requirements are met
1. Individual members have standing
2. Interest must pertain to the orgs purpose
3. Neither the claim nor relief request must require individual participation.
d. No Generalized Grievances Allowed: SC has said the Ps asserting general grievances lack standing. General Grievance
refers to a specific type of claim. P must not be suing solely as a citizen or a tax payer interested that the gov follow the
law.
-One exception: taxpayers have standing to challenge government expenditures, pursuant to a statue as violating the
establishment clause.
(2) Ripeness: may the fed court grant preenforcement review of a statute or regulation?
-Usual way to challenge a law is to break it be prosecuted and assert that the law is unconstitutional.
-If the P doesnt want to break the law, they can ask for declarative judgement. SC asses ripeness on 2 criteria:
a. Hardship P will suffer w/o preenforcement review.
b. Fitness of the issue and the record for judicial review. Any reason that the fed court should wait for someone to actually
break the law and pass judgement then.
(3) Mootness: if events after the filing of the law suit end the Ps injury then the case shall be dismissed as moot. Few
exceptions where Ps injuries are over but the fed court can still hear the case:
a. Wrongs capable of repetition but evading review.
b. Voluntary Cessation: D voluntarily halts the offending practice, but is free to resume it at any time the case will not be
dismissed as moot.
c. Class action suits: if the name plaintiffs claim becomes the class action will not be dismissed so long as one of the
members of the class has an ongoing injury.
(4) Political Question: allegations of Constitutional violations that the Fed court will not adjudicate. 4 examples that fed
court will not hear bc of political question:
a. Cases under the republican form of government clause. Art 4 sec 4 (Guarantee Clause).
b. Challenges to the Presidents conducting of foreign policy.
c. Challenges to the Impeachment and Removal Process (Nixon v. U.S.)
d. Challenges to partisan gerrymandering.
Solicitor General Brief in Texas v United States (Article III discussion only)
Marbury v. Madison (1803) (Emmanuel pg.5) (pg. 40)
**Single most important decision in American Con Law. It established the authority for the judiciary to review the
constitutionality of executive and legislative acts.
Facts: Adams, outgoing President, named 42 justices of the peace one of whom is Marbury. Commissions of the justices
signed on Adams last day in office and signed and sealed by Marshall but the formal commissions were not delivered by
the end of the day. New President, Jefferson, treated unformalized papers that werent delivered prior to Adams leaving as
nullity. P brought writ to SC to compel Jeffersons Secretary of State, Madison (D), to deliver the commissions.
Issue: Does the Court have the power to judge the constitutionality of laws? (Yes)
-Marshalls questions:
1. Does the applicant have a right to the commission?
2. If so, has the right been violated?
3. Does the law offer a remedy, and is that remedy a mandamus from the court?
Holding: Yes-Yes-NO. SC ruled against Marbury and held that it could not constitutionally hear the case as a matter of
original jurisdiction. Although the Judiciary Act of 1789 authorized such jurisdiction, this provision of the statute was
unconstitutional because Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution.
1. Does Marbury Have a right to the commission?
a. Yes. Court concluded that Marbury had a right to the commission b/c all appropriate procedures were followed.
Marshall said when the commission is signed, the appointment is made, but President Jefferson said delivery was
necessary. Court rejected Jeffersons view and ruled delivery was merely a custom no law on it.
2. If yes to 1, do the laws of his country afford him a remedy?
a. The judiciary could provide remedies against the executive when there is a specific duty to a particular person,
but cannot when it is a political matter left to executive discretion. So not all injuries can be remedied by the
court. However, can review administerial even if stems from political matter.
3. If yes to 2, can the SC issue this remedy and is mandamus the appropriate remedy?
a. Where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide a remedy,
including a writ of mandamus.
-This established the power of the federal courts to review presidential actions and is the basis for many important
SC decisions throughout American history. Sneaky Marshall
-Congress cannot increase the SCs original jurisdiction or expand the jurisdiction granted in Article III
specifically lists what has original jurisdiction, expansion is unconstitutional.
(a) Marshalls reasoning for Judicial Review:
a. Constitution is law. Courts have to interpret the law when resolving a case.
b. Constitution is written
c. Constitution is superior law.
d. Government offices must follow the constitution as it is the will of the people.
e. Separation of powers.
f. Judicial oath / duty to protect the Constitution as the Supreme Court interprets.
Note on Marbury and the Legitimacy of Judicial Review:
1. Creates authority for judicial review of executive decisions where there are individual rights and therefore government
duties. But where the executive has discretion on how to act the check is political. Technically was win for executive, but
was REAL win for judicial power now.
2. Establishes that Article III is the ceiling of federal court jurisdiction and says congress cannot expand the original
jurisdiction of the Supreme Court. this means that the courts get their jurisdiction from Article III, not from Congress
3. Establishes authority for judicial review of legislative actions; end of democracy with out this power there was no
directive straight from the Constitution
Baker v. Carr (1962) (Emmanuel pg.751; 752; 754)most important case on political question!!! Justiciable
Fact that suit seeks protection of political right does not mean necessarily is political question
Facts: Baker and other Tennessee citizens alleged that a 1901 law designed to apportion the seats for the state's General
Assembly was virtually ignored. Baker's suit detailed how Tennessee's reapportionment efforts ignored significant
economic growth and population shifts within the state.
Issue: Whether an Equal Protection challenge to malapportionment of state legislatures is a non-justiciable political
question?
Holding: In an opinion which explored the nature of "political questions" and the appropriateness of Court action in them,
the Court held that there were no such questions to be answered in this case and that legislative apportionment was a
justiciable issue.
-Justice Brennan provided past examples in which the Court had intervened to correct constitutional violations in
matters pertaining to state administration and the officers through whom state affairs are conducted.
-Brennan concluded that the Fourteenth Amendment equal protection issues which Baker and others raised
in this case merited judicial evaluation.
6 independent tests for the existence of a political question (listed in descending order of both importance and certainty)
1. A textually demonstrable constitutional commitment of the issue to a coordinate political department history
of issues management by another governmental branch; or
a. The only Constitutionally demanded one all others are made up by the Court
2. A lack of judicially discoverable and manageable standards for resolving it; or
3. The impossibility of deciding without an initial policy determination of a kind clearly for non-judicial
discretion; or
a. Policy question not fit for judges, purely institutional in way judges view role
4. The impossibility of a courts undertaking independent resolution without expressing lack of the respect due
coordinate branches of the government; or
5. An unusual need for unquestioning adherence to a political decision already made; or
6. The potentiality of embarrassment from multifarious pronouncements by various departments on one question
another policy reason
Rationale: None of the above mentioned characteristics are present.
- Cases under the guaranty clause are non-justiciable; SC has never varied from this
- Court holds that the claim does not rest upon nor implicate the guaranty clause so it is justiciable
Dissent: This has all of the elements that make the Guarantee Clause cases nonjusticiable. The Equal Protection Clause
provides no clearer guide for judicial examination of apportionment statutes than would the Guarantee Clause. Rewriting
the Constitution by choosing between Clauses.
Nixon v. United States(Emmanuel pg.752)
Judge collected pay while in jail and impeached by committee is political - Not Justiciable
Facts: Walter Nixon, a Federal District Judge, was convicted of a felony, making false statements to a grand jury.
-The House of Representatives voted three articles of impeachment; impeachment in the Senate followed.
-In accordance with Senate Rule XI, a Senate committee heard the evidence and reported its findings. The full Senate
convicted Nixon and sought to remove him from office.
-Nixon challenged Senate Rule XI in federal court on the ground that the rule violated the impeachment clause of the
Issue: Is Nixon's claim -- that Senate Rule XI violates the Impeachment Trial Clause -- justiciable, i.e., appropriate for
judicial resolution?
Constitution, which declares that "the Senate shall have the sole Power to try all Impeachments."
-The lower courts deemed the issue non-justiciable and declined to intervene in the dispute.
Holding: No. A unanimous Court held that the question of whether or not the Senate rule violated the U.S. Constitution
was non-justiciable since the Impeachment clause expressly granted that the "Senate shall have sole Power to try
any impeachments."
-The clause laid out specific regulations that were to be followed and as long as those guidelines were observed
the courts would not rule upon the validity of other Senate procedures regarding impeachments.
-Chief Justice William Rehnquist observed that while the Supreme Court was the "ultimate interpreter of the
Constitution," a matter would be deemed non-justiciable when there was "a constitutional commitment of
the issue to a coordinate political department."
Reasons judiciary was not chosen to have a role in the impeachment proceedings (nonjusticiable):
1. There would be 2 sets of proceedings, the impeachment trial and a separate criminal trial and judicial review
of the Senates trial would introduce the same risk of bias as would participation in the trial itself
2. Judicial review would be inconsistent with the framers insistence that the system be one of checks and
balances and the only check on the judicial branch by the Senate is the ability to impeach a judge
3. Judicial review of process could expose countrys political life to periods of chaos
Concurrence (White): Framers intended use of word sole to be limitation on potential interference by the House and
not on review by the judiciary. Saying word try does not present judicially manageable standard is dumb where would
intuitively think Framers used in legal sense.
Robins v. Spokeo, Inc., 742 F.3d 409 (2014)
Issue: Can Congress authorize a cause of action based on a violation of a federal statute and therefore confer Article III
standing on a plaintiff who has not suffered concrete harm?
Holding: The court identified three components required in establishing a standing in statutory right:
(1) the plaintiff has suffered and injury in fact that is
(a) concrete or particularized and
(b) actual or imminent, not conjecture or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant;
(3) it is likely as opposed to merely speculative that the injury will be redressed by a favorable decision.
-Further the court stated that in standing cases that analyze statutory rights, Congresss creation of a private cause of
action implies that Congress intended the enforceable provision to create a statutory right, and a violation of a statutory
right is usually a sufficient injury in fact to confer standing.
-The Court also identified two constitutional limitations on congressional power to confer standing:
1. a plaintiff must be among the injured in a sense that she alleges the defendants violated her statutory rights
2. the statutory right at issue must protect against individual, rather than collective, harm.
Solicitor General Brief in Texas v United States (Article III discussion only)
Issue: Whether TX had any Art. III standing by providing voluntary subsidiaries to aliens that would allow TX to
challenge the federal policies of DACA and DAPA?
Holding: TX was able to establish the minimum needed to establish standing under article three which was cognizable
injury that affects it in an individual way that is fairly traceable to the policy.
-TX voluntarily provided (1) subsidized cost for aliens to receive temporary visitor drivers licenses; and (2)
allowed aliens with deferred action to apply for those subsidized licenses.
-By the Fed increasing the number of deferred action recipients through DACA and DAPA the cost to TX would
increase dramatically causing the alleged financial injury
-The brief clearly shows that Congress has given the Secretary discretion to establish all consequences that result from
deferred action under federal law through both the PRWORA and INA.
-The brief also established that any pressures felt by TX were self-imposed and that TX could end the self-imposed
programs if the federal programs did not align with their interest. Also, shows Congress delegation of power in a federal
issue trumps the state interest in such a federal issue.
Marshall court empathized federalism in the cases they took. Was a nationalizing court that sought to establish the
powers of the national government and check the power of the states.
Seminal case: McCulloch v. Maryland.
o Held that congress had implicit authority to establish the Bank of the US. Powers of congress to be
interpreted generously. Court invalidated MDs attempt to tax the bank. Marshall told the states not to
interfere with federal gov.
o In Gibbons v. Ogden, the court took the limits in McCulloch a step further in limiting states laws the less
directly impinged on federal authority.
o In Willson v. Black Bird Creek, the court did not limit state action when federal authority was absent.
Significance: Necessary and Proper Clause comes from this case. Article 1, Section 8, Clause 18
- Where does the 10th amendment come from? Articles of Confederation
- Only one word was changed expressly was left out of the 10 th amendment; on purpose!
- So this now means the fed government has implied powers not just express powers
- Real issue in McCulloch shows standard for implied powers as being as long as the ends are legitimate, the means are
not prohibited if they work towards the end.
- Marshall says that the Court must inquire into the motives of Congress.
- We must never forget that it is a constitution we are expounding. John Marshall
- Constitution is merely a framework, not supposed to explicitly cover all contingencies
This fundamental case established the following two principles:
1. That the Constitution grants to Congress implied powers for implementing the Constitution's express powers,
in order to create a functional national government; and
2. That state action may not impede valid constitutional exercises of power by Fed Gov
Gibbons v. Ogden (1824)
Commerce is intercourse and includes all phases of business Defines Commerce Power; expands the scope of the
Commerce Clause
Facts: NY legislature gave monopoly to 2 guys for operating steamboats in NY waters. Gibbons was licensed under law
of the US and began operating a competing ferry service and thus violated the exclusive rights given to Fulton and
Livingston, and their licensee, Ogden, under the monopoly. Gibbons maintained that he held the right to operate his ferry
b/c it was licensed under a federal law as vessels in coasting trade.
Issue: If a state law conflicts with a congressional act regulating commerce, which is controlling?
Holding (Marshall): The congressional act is controlling and NYs legislature granting of the monopoly was not
constitutional. It was preempted by federal law and was an impermissible restriction of interstate commerce. Power to
prescribe the rules by which commerce can be governed.
Rationale: Congress has the power to regulate navigation within the limits of every state and, therefore, regulations that
Congress passed controlling navigation within NY boundaries are valid. Congress was given all the power to regulate
interstate commerce, although it is possible for the states to pass regulations that may affect activity associated with
interstate commerce though this must be based off a different power (like PP or state) and must yield to federal law.
What is commerce?
- Counsel for Ogden said commerce was limited to traffic of buying and selling, or the interchange of
commodities (the buying and selling of goods) and that his clients operating of a steamboat was not considered
commerce.
- Marshall says everyone just knows commerce includes navigation (no citation really); much more than buying
and selling of commodities. It is commercial intercourse. Includes all phases of business not just the typical
buying and selling of goods; proceeds from sale may go interstate. Says only limit on Congress is political vote
em out if not like
It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This
power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and
acknowledges no limitations, other than are prescribed in the Constitution.
What does among the states mean?
- Among means intermingled with or concerning more than 1 state. By this view, Congress may regulate when
commerce has interstate effects, even if the commerce occurs within a state.
What are limitations of power?
- Congress has complete authority to regulate all commerce among the states
- Sole check is Political people vote for reps according to how much regulation they want
Significance: In the years after Gibbons there were few cases dealing with challenges to commerce power. Manufacturing
is not interstate commerce even if everything youre manufacturing is to be sold in another state. To this day, Supreme
Courts COMMERCE CLAUSE ANALYSIS ALWAYS BEGINS WITH Gibbons v. Ogden even to this day
- Fundamental i.e. protect by gov, right to acquire/own prop, happiness, and safety
- Refused to give due process clause a substantive meaning (only gave procedural; narrow interp)
Dissent (Fields): Views 14th amendment as protection for all citizens of fundamental rights of free government from
abridgment by the states if states differ than nation, people will lose out
Significance: Narrow interpretation of the P or I Clause precludes using provision to apply BOR
- Shot down argument that BoRs provis are the basic privileges and immunities all citz possess
- Narrow interpretation of Equal Protection lasted until 20 th cent now gender, alienage, legitimacy
Rosenn: This is an empty vessel basically makes the privileges and immunities clause of the 14 th worthless
because it only gives us the rights we already have this still holds true today
- To hold otherwise would be to freeze state legislation in 1868 if you had a right to do something before the 14 th
was adopted, the state cannot later limit this
Civil Rights Cases: US v. Stanley (1883) - Initial articulation of the state action doctrine
Civil rights guaranteed by the Constitution cannot be impaired by wrongful acts of individuals unless such acts are
sanctioned or authorized by the state
Facts: Passed Civil Rights Act of 1875 under 13th and 14th prohibiting private citizens from excluding others from public
places based on race. Challenged in 4 criminal and 1 civil suit.
Issue: Can civil rights guaranteed by Constitution be impaired by individuals if not ok in state?
Holding: No, 1 of 14th only applies to state and local government actions, not to private conduct
- Congress under 5 of the 14th can only regulate what is covered under 1 (state conduct), so cant regulate private
conduct but, rather, only could legislate against wrongs by state governments
- Because State law guides the conduct of individuals, first two sections of Act are invalid since
Dissent (Harlan): Read to narrowly and goes against framers intent of inherent liberty to US citz
Significance: Constitution offer no protection against private wrongs 14th only affects state action
- Does not matter how discriminatory or how much they infringe fundamental rights
- Congress now has broad power under 2 of the 13th Amendment to prohibit private racial discrim
Rosenn: Rehnquist court reaffirmed Civil Rights Cases in the United States v. Morrison (2000) that Congress lacks the
power under 5 of the 14th Amendment to regulate private conduct
Nobody argued commerce clause because in 1883 it was puny
13th Amendment does not have state action requirement because States dont own slaves
So why is there a state action doctrine? 3 major answers:
1. Text of the Constitution
2. History it used to be that the common law protected individuals from private interference of their rights, but
congruence has diminished over time when constitutional rights such as freedom of speech become recognized
makes SA requirement more troubling
3. Policy arguments that the state action doctrine enhances individual autonomy and safeguards federalism
United States v. Cruikshank (Justice Bradley decision)
United States v. Cruikshank (Chief Justice Waite decision)
Plessy v. Ferguson (Emmanuel pg.276)
Issue: Is a Louisiana law requiring separate railway cars for blacks and whites constitutional?
Holding (Brown): Yes
a. Separate but equal doctrine: as long as the separate quarters are equal, constitutional.
Adamson v. California
Prosecutor allowed to comment on the defendants lack of testifying
Facts: Adamson was convicted in California of murder in the first degree. During the trial, the prosecutor, in accordance
with a California law, made comments to the jury which highlighted Adamson's decision not to testify on his own behalf.
Issue: Does the 5th amendment guarantee of freedom against self-incrimination extend to the states?
Holding (Reed): No
a. It is settled law that the clause of the 5th amendment [in question] is not made effective by the 14th amendmentas a
right of national citizenship.
b. Palko v. Connecticut: 5th amendment protection against double jeopardy did not apply to the states through the 14th
amendment.
c. Twining v. New Jersey: Intended to leave the states wholly free to compl confessions
d. I fear to see the consequences of the Courts practice of substituting its own concepts of decency and fundamental
justice for the language of the Bill of Rights
Concurrence (Frankfurter): Incorporation would tear up by the roots much of the fabric of law in the several states,
and would deprive the states of opportunity for reforms in legal process designed for extending the area of freedom.
Dissent (Black): Court should not incorporate unenumerated rights, but should extend the enumerated rights of the Bill of
Rights to the states.
-Criticized natural law approach
Dissent (Murphy): Murphy would follow Blacks approach, but also incorporate those implied rights NOT specifically
enumerated.
Duncan v. Louisiana (1968) -Warren Courts approach to DP meaning incorporate almost all BoR
Right to jury trial in serious criminal cases punishable by 2+ years prison is a fundamental right that must be recognized
by states as part of their obligation to extend DP all person in jurisdiction
Facts: D charged with battery, which is punishable by max of 2 years prison and $300 fine. LA law only grants jury trial
for cases that may impose capital punishment or imprisonment at hard labor
Issue: Does 14th guarantee right of jury trial in all crim case that would have 6 th guarantee in fed ct?
Holding (White): Yes, trial by jury in crim cases is fundamental right in American justice scheme
- It is fundamental right because it avoids oppression by government and biased judges
- Ex. overzealous or corrupt prosecutor and the compliant, biased, or eccentric judge
- Incorporates the 6th Amendment through the 14th Amendment
Test: Is it fundamental to the American scheme of justice? How know do you know when it is?
- Other states actions, other courts said, what Courts own policy considerations are
Concurrence (Black/Douglas): Prefer not to give settled meaning to DP since changes over time
- Want incorporate whole Bill of Rights, but ok with 1 at a time Total then Selective incorporation
Rosenn: Incorporation means its identical for the states as it is for the federal government
Exception: Jury trials States not need 12 people; allow non-unanimous jury verdicts in state courts
What is not incorporated yet?
2nd Right to bear arms ; uphold state gun control laws
3rd Quartering soldiers ; not likely to come before court obviously
5th Right to grand jury indictment in criminal cases ; can use alternatives like prelim hearg
7th Right to jury trial in civil cases
8th Prohibition on excessive fines
Mapp v. Ohio
Facts: Mapp was convicted of possessing obscene material after an illegally conducted police search of her home for a
fugitive.
Issue: May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal
proceeding?
Holding (Clark): No
a. All evidence obtained in violation of the constitution is inadmissible in state court.
b. 4th Amendment right of privacy, exclusionary rule
c. Placed the requirement of excluding illegally obtained evidence from Court at all levels of the government.
deciding cases involving the Commerce Clause and enormous power to influence the balance of state versus federal
power.
- Article I limits Congress legislative powers to those that are express or implied in the Constitution. Federalism allows
states to have their own criminal codes.
- Powers not written were not meant to be given to Congress. Not written = not wanted
- Point at which line is drawn to limit federal government is where a regulated activity does
not substantially affect interstate commerce this point has been passed here.
Concurrence (Kennedy): When an exercise of power under the Commerce Clause unduly upsets the balance of power
between the states and the national government, as the law does here, it is proper for Court to intervene though usually
best left to political sectors of government.
Forecloses the states from experimenting and exercising their own judgment in an area to which states lay claim by right
of history and expertise.
Concurrence (Thomas): Point is to show how far they have strayed from framers intent. Substantial effects test goes
beyond original intent of framers and grants Congress something closer to a general Police Power and is at odds with the
10th Amendment. Argues with shades of Carter v. Cole and Dagenheart Neanderthal view of Commerce Clause.
Dissent (Stevens): Education of youth has major impact on national economy and is proper subject for Commerce Clause
regulation
Dissent (Souter): Is excessive judicial activism similar to judicial review from 1 st third of century
Dissent (Breyer): To determine if has significant impact on interstate commerce, need to think of cumulative effects of all
similar instances of the conduct not a single example of regulated activity. Cumulative impact of guns on campus will
have significant impact on national economy.
Breyers 3 Basic Principles of Commerce Clause Interpretation ( Rosenn would like this)
1. Encompasses the power to regulate local activities insofar as they significantly effect interstate commerce
2. In determining that significant effect, the Court must consider not the effect of an individual act, but rather the
cumulative effect of all similar instances
3. Courts must give Congress a degree of leeway in letting them determine how to control commerce b/c the
Constitution gave them the Commerce Clause power and their branch is better suited to make that judgment.
Rational Basis captures this point. Trust Congress.
Significance: 1st case to limit Congresss power under the Commerce Clause since the Great Depression. May signal a
trend back towards States rights?
- After this case, Congress amended the statute and added a jurisdictional element saying the gun must have traveled
interstate
The Court specifically looked to 4 factors in their determination:
1. Whether the activity was non-economic as opposed to economic activity; previous cases involved economic
activity.
2. Jurisdictional element: whether the gun had moved in interstate commerce.
3. Whether there had been Congressional findings of an economic link b/t guns and education.
4. How attenuated the link was between the regulated activity and interstate commerce.
- Whether there is a substantial effect on interstate commerce (3rd prong), does this really matter?
- If Congress decides that the Moose is an endangered species, can Congress pass an Act saying that you cant harm
Mooses?
- Moose travel across state lines the same way that companies pollute irrespective of state
borders. Rosenn does not believe the economic only argument makes any sense!
- Kids bringing guns to school is a national problem, not restricted to any specific state. So does it make sense that
Congresss power is restricted to an economic sense?
- This Statute was put back in the books under the same # immediately after this case. Statute was just clarified to add the
3-prong test given by Rehnquist
- Usually conservative arguments interpret the original intent of the Framers of the Constitution
- Its not the Courts job to figure out why Congress made the decision it did.
3 Problems with the Majoritys Opinion
1. The holding runs contrary to modern Supreme Court cases.
2. The Court thinks it can reconcile this holding with past holdings by making the difference between
commercial and non-commercial transactions
3. It threatens legal uncertainty in an area that until this case seemed reasonably well settled. (Theyre creating a
shit-storm when there doesnt need to be one.)
4.
Facts: J&L (D) engaged in unfair labor practices. NLRB issued cease and deceased at two steel plants in and around
Pittsburgh. D operates in multiple states with thousands of employees. D refused to comply saying that National Relations
Act unconstitutional since plants not engaged in interstate commerce, being totally manufacturing facilities. Act was
limited to things that affected interstate commerce.
Issue: Do the manufacturing portions of a large, integrated multistate corporation fall within the constitutional meaning of
the term activities affecting commerce to allow fed regulation?
Holding: National Relations Act is Constitutional. Yes Commerce can regulate.
Rationale: Congress has the power to regulate any activity, even intrastate production, if the activity has an appreciable
effect, either direct or indirect, on interstate commerce. Because the industries crossed over state borders, it was the
Congresss responsibility to regulate. Controlling question is the effect on interstate commerce, not the source of the
interference. Congress still has power to regulate if intrastate acts bear such a close and substantial relation to interstate
commerce that control is appropriate for the protection of commerce. Congress forbidden only from regulating acts that
have a remote and indirect effect on interstate commerce. If production were interrupted at one of plants here because of
labor dispute, extensive nationwide operations would necessarily be an immediate effect on interstate commerce
Congress can regulate to protect interstate.
Significance: This case signals Court changing its view (takes view opposite of Schechter; no more strict geographical
definition of interstate commerce). Abandons direct/indirect idea, takes idea Congress can regulate intrastate commerce if
it has a harmful affect on interstate commerce. First place that you see the close and substantial relationship test. Before
this States were almost always winning. This is where the Federal Govt starts kicking some ass
- Expressly declared that fact that employees engaged in production was not determinative
- Same time that SC abandoned the substantive DP principles of Lochner too!
Wickard v. Filburn (1942) Fed wins again Wheat grown for family = interstate Commerce
Farm production intended for consumption on the farm is subject to Congresss commerce power, since it may have a
substantial economic effect on interstate commerce.
Facts: Congress passed and amended the Agricultural Adjustment Act of 1938 in order to control the amount of wheat
produced and subsequently the price of wheat by setting allotments. Filburn had produced more wheat than he was
allotted by the government. He argued that the extra wheat was for his own personal consumption and did not travel
across any state lines, therefore unable to be regulated by Congress.
Issue: Does Congress, under the Commerce Clause, have the power to regulate the production of wheat that is grown for
home-consumption purposes rather than for sale in interstate commerce?
Holding: Yes, farm production that is intended for consumption on the farm is subject to Congresss commerce power,
since it may have a substantial economic effect on interstate commerce. Congress can regulate even if the activity is local
as long as there is a substantial economic effect on interstate commerce. Aggregation principle: if the 239 bushels and
aggregate it with the other leftover wheat, the number becomes far from trivial and can impact interstate commerce.
Rationale: Congress has power to regulate prices and practices affecting prices. Wheat destined for home consumption
has an effect on the interstate price of wheat so subject to regulation. And if Filburn had not used homegrown, he would
have bought on open market, just like all the other farmers would have. So in aggregate would be substantial effect on
interstate commerce in market for wheat, even if individual effects are trivial.
Significance: These facts were perfect for a test case to test the constitutionality of this Act. Court adds in aggregation
principle. Now Congress has even more power to regulate local activity
- Congress is very close to basically regulating virtually all private economic activity.
- Critical expansion of federal powers because the Court is making explicit that it is no longer conceiving of commerce in
purely mechanical terms. It perceives of it in economic terms.
- Not whether activity is commerce, but whether has a substantial effect on interstate commerce.
- Expressly reject direct/indirect and production/commerce formulas builds on affectation doctrine
liable to instate waste generators for all damages. NY did not join regional waste compact and couldnt settle on in-state
site so sought to invalidate Act as violative of state sovereignty principles of the 10 th Amendment.
Issue: May the federal government order a state government to enact particular legislation?
Holding (OConnor): No. First 2 incentives (both monetary) are constitutional under Spending and Commerce.
However, the take title provision (3rd incentive) crosses the line to coercion. Whether a state chooses to take title to
waste or to accept liability for disposal, the burden of not enacting the federal plan falls on the state. Forcing states to
accept ownership of radioactive wastes would impermissibly commandeer state govts, and requiring state compliance
w/ federal regulatory statutes would impermissibly impose on states a requirement to implement federal legislation.
Strength of fed interest is irrelevant. Fed courts may issue directives to state officials, but Constitution expressly grants
thaity. Such authority is outside Congresss enumerated powers and thus infringes on state sovereignty reserved by the 10 th
Amendment. State may not constitutionally consent to give up their sovereignty.
Congress may urge state to adopt legislative program consistent with fed interests in 2 ways:
1. May attach conditions to the receipt of federal funds conditions must bear some relationship to the purpose of the
federal spending state can just say no if it doesnt want the funds
2. Where congress has authority to regulate private activity, Congress can give a choice b/t letting the states regulate that
activity according to federal standards, or having state law preempted by federal legislation. i.e. clean water act,
OSHA state residents may want their state govt to concentrate on other matters, and thus just basically adopt the
federal legislation
Concurrence/Dissent (White): Acts were product of cooperative federalism as the states bargained among themselves to
solve an imminent crisis and achieve compromises for Congress to sanction. States helped formulate agreement of Act so
shouldnt be able to sue. Majority wrongly finds states cannot consent to relinquish some sovereignty. 10 th Amendment
restrictions on the commerce power are procedural limits designed to prevent federal destruction of state government, not
protect substantive areas of state autonomy.
Concurrence/Dissent (Stevens): Notion that Congress may not order states to implement federal legislation is incorrect
and unsound fed gov already regulates state railroads, schools, prisons, and elections, and in time of war, Congress
undoubtedly could command states to supply soldiers.
Significance: 1st case since Usery that invalidated a federal law as violating the 10th amendment. Everyone agrees that the
Federal Government couldve enacted legislation to solve this problem, but instead they sat back and let the states
determine how to fix this problem. Thats why the SC slams Congress in this opinion. Leads you to believe that this case
doesnt really make much sense.
Rosenn: Cant just look at 10th Amendment for powers need to look at Art I, NPC & Implied Pow
- Thinks OConnor goes to far in trying to make 10th Amendment a meaningful truism its not
- Command comes from obligation States voluntarily assumed, where Garcia was imposed by Fed
- Court seems to be ok w/ Congress regulating states indirectly, but it also regulates states directly.
- It appears that if a federal law compels state legislative or regulatory activity, the statute is unconstitutional even if there
is a compelling need for the federal action.
Alden v. Maine (1999) - probation officers labor case - "congruence and proportionality"
Congresss Article I power does not authorize it to abrogate the states immunity from suit on federal claims in their own
court broad principle sovereign immunity applies in fed/state cts
Facts: Probation officers (P) sued state of Maine saying violated Fair Labor Standards Act of 1938 (FLSA). State did not
consent and sought to dismiss on basis of sovereign immunity.
Issue: Does Congresss Art. I power authorize it to abrogate states immunity from suit federal claim in own courts?
Holding (Kennedy): No. Immunity from suit was a fundamental aspect of sovereignty that the states enjoyed before the
ratification of the Constitution and retained after ratification.
- Congress cannot authorize suits against state governments in state courts; state governments may not be sued in state
court, even on federal claims without their consent
- States sovereignty is confirmed by the 10th Amen and history that led to enactment of 11th Amend
- SI doesnt come from 11th Amendment, but structure of original Constitution itself
- Dont look narrowly at text of 11th(not from here); but comes from history and structure of Constitution
- This supports inference that constitution preserves states immunity form suit absent express waiver
- Power given to Congress in Art. I and by Supremacy Clause may override sovereign immunity only when doing so is in
keeping with the constitutional design history says cant
- Principles of federalism and role of state courts in constitutional design support this conclusion
- States would have to turn against selves and give fed gov more power to control
- Could force states to be debtors and severely burden financial integrity
- Must strike balance between supremacy of federal law and states sovereignty
- States still must obey fed laws that follow constitutional design and subject to suits brought under Congresss
enforcement power under 5 of 14th Amendment; didnt consent here!
- Not judicially enforceable except certain circumstances
Dissent (Souter): Majoritys historical analysis is wrong because sovereign immunity at common law was defeasible
by statute and was not an unalterable right. Wrong on every point.
- When constitution was first framed, did not even mention sovereign immunity
- At ratifying convention, nobody brought up sovereign immunity
- Federalism rationale is wrong too states not sovereign with respect to national objectives
- Once state creates courts of general jurisdiction, supreme clause req. entertain fed claims
- Majoritys ruling would not allow state tort victims (FLSA) to sue without a federal attorney
Significance: First case to set down the "congruence and proportionality" requirement for laws enacted under 5 of the
14th Amendment
Class: While pending, Seminole was decided which made clear that Congress lacks power under Article I to abrogate
States SI form suits so got dismissed, refile in state, then dismissed on SI
- End result here forces the US govt to be the ones who have to sue the states
- There isnt anything that says Cong cant abrogate common law immunity and changing the rules
- Inconsistent state statute loses under supremacy clause when it goes up against an Act from Cong
- No textual support from the Constitution for the conclusion that Justice Kennedy reached.
- The Court has now constitutionalized the principle of State Sovereign Immunity
- If Fed Govt had sued on behalf of people seeking their money, wouldve been a different story.
- Distinguish quarantine cases b/c outside waste is not distinguishable from NJs own waste
- Both on its face and in its plain effect, the statute violates the principle of nondiscrimination
- State may not attempt to isolate itself from problem common to many states by erecting barrier against movement of
interstate trade
- Court says if the state law is for economic protection, its virtually per se invalid
- Isolating themselves economically because landfills privately run and form of economic protection
Dissent (Rehnquist): NJ saw health and safety problems associated with landfills in disposing of waste and state can
validly limit waste citizens deal with under its inherent police power
Significance: Is the statute basically a protectionist measure, or can it fairly be viewed as law directed to legitimate local
concerns, with effects upon interstate commerce that are only incidental?
- Reality is that its hard to justify why in-staters should access states resources and out cant
Consolidated Freightways Copr. Of DE v. Kassel (1981) IA prohibit big trucks Unconstitutional
A state safety regulation will be unconstitutional if its asserted safety purpose is outweighed by its degree of interference
with interstate commerce
Facts: IA statute restricted length of vehicles that use its highway to 55ft for most vehicles and 60ft for doubles. IA was
only state in Western or Midwestern US to outlaw use of 65-foot doubles.
Issue: Will state safety regulation be held unconstitutional if its asserted safety purpose is outweighed by degree of
interference with interstate commerce?
Holding (Powell): Yes, though bonafide state safety regulations are given a strong presumption of validity, asserted safety
purpose must be weighed against degree of interference with inter comm.
- IA failed to give any persuasive evidence that 65ft doubles are less safe than 55ft singles
- States safety interest is illusory
- P showed law substantially burdens interstate commerce by changing routes or smaller trucks
Dissent (Rehnquist): State safety regulation is invalid if safety justification is merely a pretext for discrimination against
interstate commerce
- Here, the statute is a valid safety regulation and entitled to the strongest presumption of validity
Significance: 1st finds that safety aspects are illusory, then uses balancing test to strike down statute
- Follows strike down when marginal increase in safety causes huge burden on interstate commerce
- Look at truck size laws on case-by-case basis looking at specific safety evidence!!!
South-Central Timber v. Alaska (1984) State cant attach restrictions that discriminat Not MP
If state imposes burdens on commerce within market it is a participant, but the burdens have a substantial regulatory
effect outside of that particular market, they are per se invaild under CC
Facts: AK offered large quantity of state-owned timber below cost but required it to be processed within the state. Law
enacted to protect existing timber-processing industries within the state and get more revenue from timber beyond sale.
Issue: If burden within market participate in, but large effect outside market, invalid under CC?
Holding (White): Yes, MP doctrine allows states to impose burdens on interstate commerce within the market in which it
is a participant but allows it to go no further
- Can influence a discrete, identifiable class of economic activity in which is a major participant
- Cannot impose condition by statute/reg/K with substantial regulatory effect outside partic market
- State cant use leverage in market directly participating to regulate a down stream market
- AK is a participant in timber market, but not in the processing market
- Cant attach restrictions on the goods after AK no longer has proprietary interest in them
- As typical seller, state has no say how product is used after sale
- State cannot have these tie-in type regulations
- Local processing requirement burdens interstate commerce and is per se invalid under CC
Dissent (Rehnquist): Distinction here between market participant and market regulation is fake
AK had constitutional ways that would require process in state, all of which in substance are the same as the K
provisions that majority held violates the CC
Coulda only sold to companies that themselves own and operate processing plant in AK
Statute could have paid to have logs processed and sold only processed (direct subsidy)
Significance: This LIMITES THE MARKET PARTICIPATION DOCTRINE
Initial disposition of goods = MP ; No on disposition subsequent goods in priv hands
United Building v. Camden (1984) - Very similar to White v. Boston; discriminate if the source
P&I applies to municipal ordinances that discriminate on the basis of municipal residence
Facts: NJ enacted ordinance requiring contractors and subcontractors working on city construction projects employ
workforce of 40 Camden residents because just using the area and leaving.
Issue: P&I apply to municipal ordinances that discrim on basis of municipal rather than citizenship?
Holding (Rehnquist): Yes, ordinances are enacted under the municipalitys power derived from the state so are not
outside the clause merely because they are enacted by the municipality
- NJ residents outside of Camden affected by ord could expand/contract municipal power by voting
- Out-of-staters did not have this power so Privileges and Immunity Clause does apply!
1. Must decide whether the ordinance burdens a basic P or I (fundamental right)
Yes, ordinance affected rights of nonresidents to pursue a livelihood of their choosing
2. Whether the o-o-Ss are the particular source of evil sought to be addressed by ordinance
Unknown, argued nonres are just mooching, remanded and disappeared (probably settled!)
Significance: P&I imposes direct restraint on state action in the interest of interstate harmony
- Validity under the CC because city was a market participant does not apply when looking at P&I
- Just like White v. Boston where ok by DCC, but P&I strikes it down
- Cant give preferential employment treatment to residents
- Union is regarded as an association, not a corporation (same thing with labor unions)
- Associations can bring a claim under the P&I clause in a 3 rd party standing type way
Metropolitan Life Ins. Co. v. Ward
Pacific Gas and Electric v. State Energy Commission (1983)
AEA preempted state safety regulation but intended states retain economic concerns
Facts: Conflict between 76 CA law (dealing w/ economics) and 1954 Atomic Energy Act (safety). CA law made a CA
nuclear power company wait before they began construction. Company argued that this law was preempted because
Congress intended to preempt the field of nuclear regulation and state law interfered with the fede objective of
encouraging the development of nuclear power.
Issue: Does AEA totally preempt any state regulation of nuclear power or power plants?
Holding (White): No, intent of AEA was to give federal government exclusive regulatory power of the radiological
safety aspects involved in construction and operation of a nuclear plant.
Field: CA law was based on economics, fed law was for safety so no preemption
Moratorium aimed at economic, so statute lies outside occupied field of nuclear safety reg
Not conflict with fed reg of waste disposal because does not impose state disposal standards
Conflict: Congress intended to encourage nuclear power only when economically feasible
Congress intent behind AEA was promote nuclear power, but not intended to be accomplished at all costs.
CAs statute does not frustrate AEA purpose of developing commercial use nuclear power
Rosenn: Shows how preemption determinations are based on record and context of particular case
Also shows outcome turns on the manner in which characterize the purposes of the federal and state laws and how
broad or narrow it chooses to construe the federal and state laws
Forced to (1) Characterize federal objective and (2) Characterize state law and its purpose
Congress Intent to Supersede State Law Found: (when not expressly stated)
1. Scheme of fed reg so pervasive can reasonably infer Congress left no room to supplt it
2. Fed Act touches field with such large fed interest that fed system will be assumed to preclude enforcement of
state laws on the same subject
3. Objective of fed law and character of obligations by it reveal same purpose
Lorillard Tobacco v. Reilly (2001)
FCLAA expressly preempts state regulation of outdoor and point-of-sale cigarette advertising by unequivocally
prohibiting such regulation by the states
Facts: Federal Cigarette Labeling and Advertising Act (FCLAA) prohibited states from further burdening advertising or
promotion of cigarettes that already complied with FCLAA guidelines. Massachusetts 5-foot high rule on tobacco
advertising added more restrictions.
Issue: Does FCLAA expressly preempt state regulations of outdoor and pos ads?
Holding (OC): Yes, Cong intended to bar state reg even if concern for health prompted regulation
- MA regulations are preempted because the asserted attempt to regulation location, and not the content, of cigarette
advertising has no foundation in the FCLAA
- Trying to deter young people smoking by limiting advertising by schools/playgrounds; but
at end of day this is to prevent health. Case closed.
- The FCLAA prohibits states from imposing additional burdens on cigarette advertising. Not ambig
- Express definition of the pre-emptive reach of a statute supports a reasonable inference that Congress did not intend to
preempt other matters Congress purpose is ultimate inquiry
Dissent (Stevens): Where Congressional intent to preempt states traditional police powers is ambiguous, the Court must
read a preemption provision narrowly and not preempt
- In FCLAA, Congress not intend to preempt states from regulating location of sales
- FCLAA restricts state regulation of content, not location
- Even if this wrong, preemption provision is, at best, ambiguous should defer to presumption favoring traditional police
powers of the states
- Court works on the assumption that the historic police power of the States is not to be superseded by the Federal Act
unless that is the clear and manifest purpose of Congress
Significance: Preemption doctrine allows manufacturers some national uniformity, so they only have to meet 1 set of
regulations. Comes from Supremacy Clause in Article Vi, 2 Constitution
Rosenn: Majority / dissent is opposite of what wed think of as far as federalism concerns
- In cases of preemption, the pairings usually end up weird
- Stevens wrote majority in Altria, here he writes dissent
Facts: Religious Freedom Restoration Act (RFRA) prohibited gov from substantially burdening persons exercise of
religion even if result of generally applicable law, unless gov has compelling interest and is using least restrictive means.
Bishop want expand historic landmark church. Denied.
Issue: Does RFRA unconstitutionally exceed Congresss enforcement power under DPC of 14 th?
Holding: Yes, judiciary determines constitutionality of laws; legislative powers are defined and limited.
- Congress under 5 of the 14th Amendment may not create new rights or expand the scope of rights; rather Congress is
limited to laws that prevent or remedy violations of rights recognized by the Supreme Court, and these must be narrowly
tailored proportionate and congruent to the constitutional violation.
- Congress is trying to remedy the SCs previous interpretation Court says they cant do this
- Congress gets to determine what is a violation of the statute so long as Congress is only
expanding theories (ratchet theory)
- 5 gives Congress the power to enact laws to enforce the provisions of the 14th amendment.
- Only authorizes Congress to adopt remedial measures, not alter substantive boundaries
- Legislation, which alters the meaning of the Free Exercise Clause, cannot be said to be
enforcing the Clause rejects definitional theory of Katzenback (overrules w/o overruling)
- RFRA redefines scope of Free Exercise clause, which Congress does not have ability to do
- Congress is thus limited to enacting laws that prevent or remedy violations of rights already recognized by the
Supreme Court and such laws must be narrowly tailored
- Federalist perspective where Congress under 5 cannot create new rights or expand scope
- Court has since reaffirmed Boerne 3 times in Florida Prepaid, Kimel, and Garrett
- On Exam will need to argue both a Katzenbach side and Boerne side since not overruled
- Boerne +SC role as sole interpreter of Constitution not protect human rights
Application: Today application of Boerne and Congresss powers under 5 used to see if a particular law can be used to
sue state governments
Recent cases of Hibbs and Lane suggest Congress has broader authority to legislate if it is a type of discrimination
or right that receives heightened scrutiny
Issue: May the president of the Unites States, under his constitutional executive powers, issue a lawmaking order
directing the Secretary of Commerce to take possession of and operate most of the nations steel mills?
Holding and Reasoning (Black, J.): No. The Presidents power to issue executive orders must come from either an act of
Congress or the Constitution. Congress expressly rejected the use of seizure to solve labor disputes as unconstitutional
when it considered the drafting of the Taft-Hartley Act in 1947. Here, the President does not rely on any statutory
authority to seize real property.
The Governments argument is that there is implied seizure power due to the Take Care clause and Commander in
Chief Clause. The President is resting on either general or implied powers.
The commander in chief clause doesnt cover this case because the link to the war is too attenuated, and the CC power
cant cover anything that has an effect on military efforts. Justice Jackson 2 points: First, expansion of the Presidents
own domestic powers by committing our troops to foreign ventures, would be really dangerous, especially without a
declaration of war from congress. Second, the president has no monopoly of war powers.
The Take Care Clause give the President authority and obligation to take care that the laws be faithfully executed. The
Majority rejects this because the power to execute the laws doesnt include the power to be a lawmaker. The President
attempted to make policy, not execute a congressional policy.
Formal approach vs. Functional approach
-Justices Frankfurter and Jackson pursue a functional approach. Stating the constitutional text doesnt end the matter.
-Justice Jackson concurrence is very important**
I.
II.
III.
Creates 3 categories focusing on the relationship between congressional and executive action (Pg.351)
Presidential Action with Congressional Authorization
a. When President acts pursuant to an express or implied authorization of Congress, his authority is
at its maximum.
Presidential Action/Congressional Silence
a. In the absence of either a congressional grant or denial of authority, President can only rely upon
his own independent powers. There is a twilight zone where him and congress may have
concurrent authority. Test of power likely to depend on the imperatives of events and
contemporary imponderables not abstract theories of law.
Presidential Action Contrary to Congressional Action
a. This case fits into this category***
b. Taking measures incompatible with the expressed or implied will of Congress, the President can
rely only upon his own constitutional powers minus any constitutional powers of congress over
the matter.
Treasury Department regulations implementing the new agreement with Iran. Dames & Moore argued that the executive
branch exceeded its constitutional powers in making such an agreement, and that the agreement was unconstitutional
because it interfered with enforcement of Dames & Moores final judgment against the government of Iran and the
Atomic Energy Organization.
Issue: May the President settle the claims of United States citizens against a foreign government through executive order?
Holding and reasoning (Rehnquist, J.): Yes. Justice Jacksons Analysis in Youngstown is useful, but instead of three
pigeonholes there is probably more of a continuous spectrum. (1) Does 203 of IEEPA authorize the presidents actions?
(Pg. 390)
The court breaks the Presidents action into two parts:
(1) No. An agency may not cure an unlawful delegation of legislative power by adopting a limited
construction of the statute because doing so is itself an exercise of unlawful legislative authority. The
degree of agency discretion that is acceptable depends upon the scope of the power that Congress has
conferred. Here, the text of 109(b)(1) of the CAA places limits on the EPAs discretion that are similar
to those that this Court has approved in earlier cases.
(2) No. Although plaintiffs claims may have some validity, the plain and unambiguous text of 109(b)(1)
make clear that cost considerations do not enter the decision-making process for establishment of
NAAQS. The judgment of the court of appeals is affirmed on that point.
(1) The court asks whether, Congress has narrowed the discretion of the agency sufficiently to give a court a
basis for judicial review of agency action. How broad is the scope of delegation?
(2) No. The court rejects this idea.
The constitution contains only 4 situations in which a single House can take real action:
The majoritys rationale for striking down the statute is a non-compliance with the Art. I process.
o The repeal and amendment must comply.
Nondelegation claim
o The majority rejects the Fields case argument, on the ground that here, the President is not
merely finding facts. Rather, the President gets to make a discretionary decision in light of facts
that also existed when Congress acted. Moreover, the Field-type statutes dealt with foreign
affairs, where the President has inherent authority.
The Mixing claim
o The Court Majority states that this is not simply discretionary spending no prior law has given
President authority to change the text of statutes.
The Encroachment claim
o This seems at least implicit in the Courts Art. I discussion the President is horning in on
Congresss power of the purse.
Note: Scalia and Breyer are both in dissent (functionalist and formalist respectively)
The dissenters say that this isnt an Art. I case at all Congress has simply delegated authority to cancel spending in the
course of implementing the budget act. This is no different than discretionary spending. Field v. Clark argument
upheld law that all President was really doing was finding whether certain factual conditions were met. Breyer and Scalia
state that the President is exercising executive power, therefore no mixing problem exists.
Justice Breyers Hypothetical (p.1149)
3 case distinction (pg.370)
There may be important differences in terms of the weight and placement of the burden of overcoming legislative inertia.
Appointments and the unitary executive (pg. 372):
In Chadha and Clinton v. New York, we dealt with efforts to restructure the legislative process; in Morrison, Congress has
tried to restructure the Executive Branch.
(1) Appointments Clause: Does appointment of the independent counsel by the Special Division, rather than
the President violate this?
a. The President appoints principal officers
b. Congress can appoint inferior officers in Head of Departments or Courts of law
i. Inferior vs. principal (key variables, no clear line)
1. She can be removed by the AG
2. She is authorized to perform limited duties
3. Her office is limit in jurisdiction and tenure
c. Congress inter-branch appointment limits: such as might be unconstitutional if
i. It impaired the constitutional function assigned to a branch
ii. If there were some incongruity between the power to appoint and the functions
normally performed by the appointing branch.
(2) Article III: Does the power of the Special Division to appoint the independent counsel and define her
jurisdiction violate Article III?
a. No. Because they are mostly passive or ministerial
b. Conflicts of interest are avoided by disqualifying judges of the Special Division from
participating in any matter relating to the independent counsel they appointed
(3) Separation of Powers: Does the independence of the independent counsel violate more general
separation of powers principles?
a. No. The Act as a whole does not upset the separation of powers. The three branches dont have to
operate with absolute independence. Here, there is no exaggeration by Congress or the
judiciary. Nor does the Act prevent the Executive from performing its functions.
b. Removal limitation placed upon the president has been upheld in the past (Humphrey v. US)
Scalias Dissent:
Famous quote Frequently an issue of this sort will come before the Court clad, so to speak, in sheeps clothing; the
potential of he asserted principle to effect important change in the equilibrium of power is not immediately evident, and
must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.
Stating that the Court is wrong to take the Appointments Clause first. The requirements of that clause are a function of the
larger separation of powers concerns.
Argument centers on strong unitary executive position. That means the statute is unconstitutional if:
recounts dont get done within the seven-day deadline prescribed under FL law; the Democrats sue arguing that state law
required her to accept the recounted votes. Ultimately, the FL Supremes order a statewide manual recount, but allow
different counties to apply different standards in determining the intent of the voter in ambiguous cases or cases when the
voter failed to properly mark the punch card ballot. Bush people appeal matter to U.S. Supreme Court.
Issue: Whether the use of standardless manual recounts of votes violates the Equal Protection Clause of the Fourteenth
Amendment.
Holding and reasoning (Per Curiam): (5 to 4) Yes. Floridas approach violates the Equal Protection Clause. The
formulation of uniform rules to determine intent based on these recurring circumstances is both practicable and necessary.
Otherwise, different standards will be applied throughout the recount for determining whether a vote was cast, resulting in
impermissible inequality of treatment of votes.
**Important Issues: