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Tara Bush
****The Articles of Confederation stressed a smaller less powerful government. A weak central
system and state sovereignty.
Convention of 1787: People thought that there needed to be a stronger central government so
each state sent representatives to draft a constitution.
-The Constitution was then reviewed in each state by Constitutional Conventions that
represented the community to determine whether or not to ratify the constitution. All states
(except NC and Rhode Island) ratified the Constitution.
Popular sovereignty- ultimate political power “resides in the people.” People are the ultimate
authority. (central principle of US Constitution).
People elect President and Senate President appoints US Supreme Court Supreme Court
Justices confirmed by Senate Thus, “the people” choose the US Supreme Court
***When Congress enacts legislation, they are enacting laws that we hope are Constitutional
however if:
Congress enacts law Found unconstitutional by US Supreme Court Congress goes
back to drawing board People don’t like the law, so they vote out Congress New
laws made
Con Law I – Ross – Fall 2014
Tara Bush
Types of Constitutional Arguments: (I don't think this is really important but may be a
listing short answer?)
****Strongest court opinions combine several types of arguments.
(1) Textual argument- finds meaning and operation of provisions of the Constitution by
looking at the meaning of the words included in the text.
****Ross said always start with the text.
****We look to the dictionary or what the framers meant.
Ex. The President must be 35 years old.
(2) Argument from context- focuses on the use of words in other parts of the Constitution to
throw light on the clause under consideration.
(3) Argument from structure and relationship- looks at the broader objects or purposes of
the Constitution and asks how the Constitution must be interpreted to achieve those purposes.
(4) An argument from precedent- Looks to judicial decisions (highly persuasive precedent)
(5) An argument from history- examines the historical problem that the constitutional
provision was addressing.
-Original intent of Framers-
-Original meaning- how the words would have been commonly understood at the
time.
-Larger historical context and grievances that led to the proposal- look at the
larger social and political problems the provision sought to address.
-History as experience leading to practical wisdom- Use history to show what
should be avoided. (negative precedent)
-History as a tradition used to limit broad constitutional phrases-
-The arc of history as revealed by the text of the constitution-
(6) An argument from ethical aspirations- looks to ethical aspirations reflected by the
language of the Constitution as a guide for interpretation.
-ex. "all men are created equal" and "endowed with certain unalienable rights."
(7) Public Policy- Seeks to serve the needs of the people. Certain interpretations are
necessary to promote some social good.
****Ross said whenever possible focus on the text.
II. Powers and Limits of the Federal Courts: Article III of the United
States Constitution.
ARTIICLE III, SECTION 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such
inferior courts as the Congress may from time to time ordain and establish. The judges, both of
the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at
stated times, receive for their services, a compensation, which shall not be diminished during
their continuance in office.
Creates Supreme Court only and gives justices Lifetime Tenure as long as they have
good behavior. Also enables Congress to create other federal courts .
****Impeachment:
(1) Treason
(2) Bribery
(3) High Crimes and misdemeanors
***Judges Salaries cannot be cut under article 3.
***Article 3 doesn't tell us how many justices there are...currently there are 9 (set by
statute).
Judiciary Act of 1789: Basic foundation and charter of our judicial system. Filled in the gaps
contained in Article III Section I by ordaining and establishing the lower federal courts.
****So Article III Section I created the Supreme Court and enabled Congress to establish
the lower federal courts through the Judiciary Act of 1789 under the power vested to it
under Article III Section I.
****Under Article III and the Judiciary Act of 1789 there were two federal courts: The
Supreme Court and the Federal Circuit Courts.
-Until 1891 the Supreme Court Justices served on the Supreme Court and the Circuit
Court. This was strange b/c you often appealed to the same Judge. This was also hard on
the Justices b/c travel ect.
**** In 1891 Congress created the three tier system of today by abolishing the Circuit
Court and replacing it with the US Court of Appeals. (added district court as well).
The judicial power shall extend to all cases, in law and equity, arising under this Constitution,
the laws of the United States, and treaties made, or which shall be made, under their authority;--
to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty
and maritime jurisdiction;--to controversies to which the United States shall be a party;--to
controversies between two or more states;--between a state and citizens of another state;--
between citizens of different states;--between citizens of the same state claiming lands under
grants of different states, and between a state, or the citizens thereof, and foreign states, citizens
or subjects. (FEDERAL JURISDICTION)
In all cases affecting ambassadors, other public ministers and consuls, and those in which a
state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases
before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact,
with such exceptions, and under such regulations as the Congress shall make. (exceptions
clause)
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be
held in the state where the said crimes shall have been committed; but when not committed
within any state, the trial shall be at such place or places as the Congress may by law have
directed.
Con Law I – Ross – Fall 2014
Tara Bush
Section 2 deals with jurisdiction of the federal court. (gives us federal question jur.)
****The United States Supreme Court has original jurisdiction or is a trial court when
there is a dispute between two states named as parties.
**** Section 2 gives Congress the power to limit the Supreme Courts Appellate
Jurisdiction.****===> The Exceptions Clause.
-The Supreme Court's review is discretionary. They will usually grant review over circuit
splits for statutory interpretation and cases dealing with the constitutionality of state
statutes/legislation.
II. The Courts ordained and established by congress under the power granted to it by Article
3 of the U.S. Constitution:
2) Dr. Bonham's Case (English, 1610): An English court held that an act of Parliament was
repugnant to the unwritten English Constitution. Judicial review has never been exercised in
the now U.K.
****So really no judicial review in England.
3) Hayburn Case (1792): Supreme Court was invited to rule on whether certain non-judicial
duties could be assigned by Congress to the federal circuit courts in their official capacity.
Another federal circuit indicated the law was constitutional. After Congress repealed the
statute the U.S. Supreme Court indicated that the statute would have been unconstitutional
had it imposed non-judicial duties on the judges in U.S. v. Todd. First time SC addressed
justiciability
****This seems to be determining Constitutionality.
4) Champion and Dickason v. Casey (1792): Federal Circuit Court held that a state statute
impairing contractual obligations violated the Contract Clause of the U.S. Constitution.
(nullified a state law).
5) Hylton v. United States (1796): The U.S. Supreme court sustained the constitutionality of
a federal statute imposing an excise tax on carriages.
Con Law I – Ross – Fall 2014
Tara Bush
****Important: If the Court can say that a statute is constitutional they can also say
that it is unconstitutional!
6.) Calder v. Bull (1798): U.S. Supreme court held that a state law permitting the legislature
to order new civil trials did not violate the federal constitution's prohibition against ex post
facto laws.
****Ex post facto only applies to criminal law not civil law. So Civil statutes can be
retroactive.
****He said this is a very important case.
-Black letter law: Ex Post Facto laws are constitutional as long as they are civil not
criminal law.
7) Throughout the 1780s and 90s state courts in numerous states (Virginia, N.Y.) reviewed
the constitutionality of state statutes.
Background:
****Many people thought the Constitution gave the central government too much
power/excessive power. As a result, political parties were formed...so begins the two
party system.
Original party conflicts: how much power did the federal government have?
o Federalist Party- favored a strong, centralized government.
o Republican party- favored states’ rights and a weaker central government, led by
Thomas Jefferson.
John Adams followed Washington (who hated political parties) and was the first president
to belong to a political party (Federalist).
John Adams then lost to Thomas Jefferson and freely gave Jefferson power/office.
Before losing power, the federalist enacted the 1801 Judiciary Act to increase the judiciary
in an attempt to maintain power.
In the last days of his office commissioned and signed many officers of peace but many of
the commissions were not delivered.
Facts:
-Marbury was one of the Justices of the Peace commissioned by President Adams in the last
hours of his presidency.
-His commission was not delivered before Jefferson’s inauguration. Marbury sued James
Madison, the new Secretary of State, for his commission and filed the suit in the Supreme
Court. (Jefferson administration ignored the suit).
o Justice Marshall was the original Secretary of State who failed to deliver the
commission. Should he have recused himself?
****Marbury was seeking a writ of Mandamus to force the secretary of state to deliver
the commission.
- Writ of mandamus- an injunction from a higher court to a lower court or government
official telling a public official that they must do something/do their duty.
Con Law I – Ross – Fall 2014
Tara Bush
Issue 1: Does Marbury have a right to the commission? OR was there a wrong?
-Yes, Marbury had a vested legal right to the commission when the commission was
signed. So there was a wrong.
-The Court concluded that “It is . . . decidedly the opinion of the court that when a
commission has been signed by the President, the appointment is made.”
Issue 4: The Jurisdiction Issue: Does the U.S. Supreme Court have the
authority/jurisdiction to grant the writ of mandamus in this case?
-Having determined that Marbury was entitled to the commission and that the writ of
mandamus was the appropriate remedy, the Court turned its attention to the question of
jurisdiction.
-Marbury argued that the Court had original jurisdiction over the claim pursuant to § 13
of the Judiciary Act of 1789 which states: The Supreme Court shall have the power to
issue writs of prohibition . . . and writs of mandamus in cases warranted by the
principles and usages of the law to . . . any person holding office. Gives Supreme Court
original jurisdiction over this type of case.
-However, Article III: Gives appellate jurisdiction to this type of case.
Held: The mandamus cannot be issued and the part of the judiciary act granting the
Supreme Court original jurisdiction to issue writs of mandamus is unconstitutional.
-In sum, the Marshall Court decided that it only had appellate jurisdiction over
mandamus petitions pursuant to Article III of the Constitution.
*****This is the first time that the Justices had struck down a federal statute as
unconstitutional.===> Doctrine of Judicial Review.
A. Marshall argued that the Constitution imposes limits on government powers and that
these limits are meaningless unless subject to judicial enforcement. Borrowing from
Federalist No. 78, Marshall stated, “The powers of the legislature are defined and
limited; and that those limits may not be mistaken or forgotten, the constitution is
written.”
B. Marshall also argued that it is inherent to the judicial role to decide the
constitutionality of the laws that it applies. “It is emphatically the province and duty
of the judicial department to say what the law is.”
C. Marshall then argued that the Court’s authority to decide cases arising under the
Constitution implied the power to declare unconstitutional laws conflicting with the
basic legal charter.
D. It is the power or right of the Judiciary to interpret the constitution and strike
down laws that are repugnant to the constitution.
Con Law I – Ross – Fall 2014
Tara Bush
E. Marshall defended judicial review on the ground that judges take an oath of office
and that they would violate that oath if they enforced unconstitutional law.
F. Finally, Marshall argued that judicial review is appropriate because the
Constitution is superior to the laws of the United States under Article VI which
makes the Constitution the “supreme law of the land”—the Supremacy Clause
argument.
****In Ross's words Madison handed them a small victory but established the far greater
federalist principle of judicial review.
****BIG PICTURE FROM THIS CASE: The First time that the Supreme Court stated
that an act of Congress is unconstitutional. THE SUPREME COURT HAS THE POWER
TO REVIEW and STRIKE DOWN FEDERAL STATUTES/LEGISLATION AS
UNCONSTITUTIONAL.
IV. The Scope of Federal Judicial Review over State and Local Actions
****Fletcher v. Peck (1810): The Supreme Court can review the Constitutionality of State
Legislation.
- The first time an act of state legislature is struck down. Struck down a Georgia statute
that violated the Art. I Contracts Clause
-Marbury established the power of the Supreme Court to review the constitutionality of federal
executive actions and of federal statutes. Two other cases—Martin v. Hunter’s Lessee and
Cohens v. Virginia—were key in establishing the Court authority to review state court decisions.
Although the Constitution does not grant this power expressly, the Judiciary Act provided for
Supreme Court review of state court judgments. Section 25 of the Act allowed the Supreme
Court to review state court decisions by a writ of error to the state’s highest court in many
situations.
Con Law I – Ross – Fall 2014
Tara Bush
Issue: Does the Supreme Court have appellate jurisdiction over state court decisions
involving federal law? YES
RULE: The Supreme Court has appellate jurisdiction to review the constitutionality
of state judicial proceedings.
Policy: If the Supreme Court could not be the final say in how treaties are
interpreted, then there would be mass chaos for how these treaties were applied.
interpretation of federal laws the very nature of the Constitution, the contemporaneous
understanding of it, and many years of experience all established the Supreme Court’s authority
to review state court decisions.
****Important: This increases the power of the federal government v. the states and
increases the power of the Judiciary v. Other branches of the government. Finally, Martin
gets the land so this facilitates economic development by protecting vested property
interests (the state cannot take your land and sell it.).
****This case protects vested property interests.
****Marshall once again extended the power of the judiciary while ruling in favor of
Virginia so that Virginia could not defy the court. Gives Virginia a victory and prevents
embarrassment of the court while growing the Court's power.
What are the states Police Powers? The police powers grant the states the authority/power to
legislate and promote the public health, safety, welfare, and morals of the citizens.
(1) Enhanced the power of the Federal Government v. the States (Martin v. Hunter's Lessee)
(2) Enhanced the power of the Supreme Court v. the legislature (Marbury)
(3) Protected vested property interest/rights (Martin, Marbury, Fletcher v. Peck)
-Governor of Arkansas openly defied the order of Brown v. Board of Education refusing
to comply with school desegregation. It contended that it was not bound to follow the
orders of the Supreme Court.
RULE: The Federal judiciary is supreme in the exposition of the law of the
Constitution. The Constitution is the supreme law of the land so the U.S. Supreme
Court's interpretation of the Constitution is the supreme law of the land.
****Supremacy Clause (Art. 6): The U.S. Constitution is the supreme law of the land.
****This case invokes Marbury in stating that the U.S. Supreme Court is the supreme interpreter
of the Constitution.
-The state law is “independent” of federal law in the sense that it doesn’t conflict with federal
law
RULE: The federal constitution is a floor not a ceiling on individual civil liberties
and the States can give individuals more rights under their state constitutions as
long as doing so does not come into conflict with federal rights provided under the
federal constitution. (the rights cannot collide).
Con Law I – Ross – Fall 2014
Tara Bush
****Historically, the Supreme Court greatly expanded civil liberties under the Bill of
Rights and provided MORE liberties than state constitutions.
****Then the state courts began to interpret state constitutions more generously than
Federal Courts
***ISSUE HERE: Can a state court interpret its state constitution unconstitutionally
under the federal constitution?
ex: There is a federal statutory right to free press and fair trial. The US Supreme Court
held that sometimes Free Press right can collide with the fair trial right. So if a state
constitution tried to open up all proceedings in a trial to the press this would be
unconstitutional under the federal statute (the state right to press would collide with the
federal right to fair trial).
RULE: If a state court has decided on an issue based solely on state law, and if the state
decision does not conflict with a federal constitutional provision, statute, or treaty, the
Supreme Court has no jurisdiction to decide the case.
OR
Rule: When a state court decision fairly appears to rest primarily on federal law, or to be
interwoven with federal law, and when the adequacy and independence of any possible
state law ground is not clear from the face of the opinion, the Court will accept as the most
reasonable explanation that the state court ruled the way it did because it believe the
federal law required so.
****So Congress can confer appellate jurisdiction and Congress can remove jurisdiction
under the Exceptions Clause.
Con Law I – Ross – Fall 2014
Tara Bush
Question Presented: How far can Congress go under the exceptions clause? Could
Congress remove all appellate jurisdiction and make the Supreme Court essentially a trial
court?
****Ross said it says exceptions suggesting that congress can partially remove power not
totally remove power.
-Habeas Corpus: Writ by the court demanding the incarcerated person to appear before
the court.
-Habeas Corpus Act of 1867: Allowed a state prisoner to file Habeas Corpus Petitions
in Federal Court.
-There was a fear that African Americans and pro-reconstructionists would be
treated unfairly in southern state courts.
-McCardle was arrested for violating the Military Reconstruction Act, and filed a writ of
Habeus Corpus in federal court challenging the constitutionality of the Military
Reconstruction Act under the 1867 Act.
-Congress feared that if the U.S. Supreme court reviewed the case it might lead to the end
of reconstruction.
-However, prior to the Court making a decision or hearing the case Congress took away
the U.S. Supreme Courts Appellate Jurisdiction granted under the 1867 Act..
-Issue: Was Congress appropriately exercising its authority to make exceptions to the
appellate jurisdiction of the Supreme Court?
-Held: This was an appropriate exception to the Supreme Court's jurisdiction under
the exceptions clause.
****Ross said the weight of authorities suggests that if Congress tried to take away the
Court's appellate jurisdiction to hear Free Speech Cases it would create a disparity in the
law and would not fly.
****This was a very small portion of the Court's Habeas Corpus power (Withdrawal of the
federal court systems jurisdiction over state claims) and the Court had only had the power
for around a year.
****Essentially, this was a very small withdrawal of Habeus Corpus rights.
JUSTICIABIITY
1. The term justiciability refers to a body of judicially created doctrines that define and
limit the circumstances under which an Article III federal court may exercise its
constitutional authority, including its authority to engage judicial review.
2. Article III, § 2 extends the federal judicial power to cases or controversies arising
under the Constitution, laws, and treaties of the United States. Per this language,
technical requirements arise.
1. The court will not issue mere advisory opinions.
2. The court will not decide a case that falls within the scope of a political
question.
3. Parties asserting claims must have adequate standing to sue.
4. A claim must be ripe and may not be moot.
****The Political Question Doctrine does not say/mean that Courts cannot decide
issues that have political implications or controversies. The Political Question
Doctrine means that if the constitution itself says that the issue is supposed to be
Con Law I – Ross – Fall 2014
Tara Bush
-Powell was a NY congressmen elected in 1966 who was not permitted to take his
seat due to deceitful travel expenses.
-Powell filed suit in federal court, arguing that the House could only exclude him if he
failed to meet the standing requirements of age, citizenship, and residence contained
in Article I.
-Respondent argued that a “textually demonstrable commitment to a co-ordinate
branch” existed in the House’s adjudicatory power to determine Powell’s
qualifications. Therefore, they argued no justiciability because it was a political
question for Congress.
Rule: The Court could decide the issue/question because the Constitution does
not textually give Congress the power to exclude based on corruption.
****So essentially, the Constitution does not preclude the court from deciding
the issue/question.
****If Congress had excluded him based on his qualifications then the Court
could not have reviewed the decision because it would have been a political
question for congress. THIS WOULD BE A TEXTUALLY DEMONSTRABLE
CONSTITUTIONAL COMMITMENT.
****The constitution states that there are certain qualifications listed that allow
House to Exclude members if they fail to meet the requirements; However, the court
said the issue here was not his qualifications. The question was whether his behavior
allowed him to be excluded. THIS WAS A QUESTION OF CONSTITITIONAL
INTERPRETATION because the constitution did not specifically give the House the
power to exclude except for a failure to meet the mentioned requirements.
-Essentially, there was only a textually demonstrable commitment of Congress to
judge the qualifications expressly set forth in the Constitution.
****THEY COULD REMOVE NOT EXCLUDE HIM.
- For many years, the court would not address these issues because it was a political
question (lack of judicially discoverable and manageable standards for resolving the
question).
-The court was essentially saying if we find this unconstitutional how would we give a
remedy?
****In this case the Court, rejecting political question logic, said that Equal Protection
Clause was being denied to disadvantaged voters and adjudicated this issue.
- The U.S. refused to recognize the communist government of China and only recognized
the non-communist government. (so there were 2 Chinas)
- Carter then recognized the communist China and derecognized the non-communist.
-This caused great controversy and forced the government to abrogate a defense treaty
with the non-communist government.
- Goldwater attempted to bring this action claiming that it was unconstitutional for Carter
to abrogate the treaty without congressional consent.
Held: The Court stated that this was a political question and that the Court
was not going to get involved.
****Ross said we need to know this case for the last four factors listed above.
-Former Mississippi district court judge (Nixon) convicted of false statements before a
federal jury.
-A committee of Senators conducted impeachment hearings and reported their findings to
the full senate and Nixon was impeached.
-Nixon sued alleging that Senate Rule violated the constitutional grant of authority to the
Senate to “try” all impeachments because it prohibited the whole Senate from taking part
in the evidentiary hearings.
**** The Constitution grants the sole power to adopt Articles of Impeachment to the
House, and gives the Senate the sole power to try all impeachments. By doing so, there
is no mention of judicial review of such actions.
-No history in constitutional conventions or evidence that alluded to the possibility of
judicial review in the context of impeachment powers.
-Impeachment designed to be the only check on the Judicial Branch by the
Legislature. If Judicial Branch could review, it would undermine checks and
balances logic.
****The court wanted to respect the Senate and the Senates procedures were not
inconsistent with the word "try."
****This demonstrates respect for the Senate.
STANDING
Generally: Questions of standing posit whether the individual bringing a cause of action
is a proper party to invoke the court’s jurisdiction as to some or all of his claims.
General Elements of Standing: At an irreducible minimum, Art. III requires the party
who invokes the court’s authority to show:
(1) Injury in Fact: that the he personally has suffered some actual harm or threat
of injury as a result of the putatively illegal conduct of the defendant;
(2) Causation: that the injury fairly can be traced to the challenged action; and
(3) Redressability: that the injury is likely to be redressed by a favorable decision.
Federal Standing
(1) Private Litigation: In order to bring a lawsuit one must have a stake in the action.
The person must have "a dog in the fight."
-Semi-exceptions from having direct stake:
(1) 3rd party beneficiaries
(2) Association or organization on behalf of members: may have standing in some
circumstances.
(3) Surrogates: Parents, Guardian, administrators of estates, etc.
State Standing
-Federal taxpayers brought suit to enjoin expenditure of federal funds for the
purchase of textbooks and other teaching materials to religiously oriented schools,
authorized by the Elementary and Secondary Education Act of 1965.
-The United States Supreme Court REVERSED the order of the lower court, holding
that taxpayers do have standing on the rare occasions satisfying a two‐part test.
1. First, a taxpayer will be the proper party to allege the unconstitutionality of
exercises of Congressional power under the Taxing and Spending Clause (Art I.
§ 8 cl. 1), and under this clause only.
2. Second, a taxpayer must show that the challenged enactment exceeds specific
constitutional limitations upon the exercise of taxing and spending and not
simply that the enactment is generally beyond the powers of Congress.
- Because the Establishment Clause of the First Amendment prohibits the making of
any law respecting the establishment of a religion, taxpayers in this case have a
legitimate grievance against the spending of federal dollars in religious institutions,
educational or not.
Valley Forge Christian College v. Amers. United for Separation of Church & State, Inc. (1982
– J. Rehnquist)
-The Secretary of Defense closed Valley Forge General Hospital in a cost‐cutting
measure.
-Per the Federal Property and Administrative Services Act of 1949, the Secretary of
Health, Education and Welfare conveyed free‐of‐charge a 77‐acre tract of the former
federal land to Valley Forge Christian College, a non‐profit educational institution
affiliated with the Assemblies of God.
-Americans United brought this taxpayer action against the college, contending that the
conveyance violated the Establishment Clause of the First Amendment. The district court
granted summary judgment to the defendants and dismissed the suit.
-Held: Americans United did not satisfy the first prong of the Flast test for taxpayer
standing. Indeed, source of the complaint was not any Congressional action of taxation or
spending; rather, it was the decision of an executive agency to dispose of a parcel of
property. The transaction in no way involved Congress’s taxing and spending power.
**** Congress authorized the executive branch to give land to religious
organization.
****Even though congress authorized the executive department to give land to the
organization this was not congress acting under its taxing and spending power.
****Must be a direct congressional expenditure.
****Ross said the concept is fairly simple: Taxpayer standing does not exist unless
Congress itself has spent money on religion.
-The Supreme Court cannot deny a hearing of a case where it has original jurisdiction.
Appellate jurisdiction- Supreme Court has complete discretion. Writ of certiorari must be
granted by at least 4 Justices.
states respectively, the appointment of the officers, and the authority of training the
militia according to the discipline prescribed by Congress;
-To exercise exclusive legislation in all cases whatsoever, over such District (not
exceeding ten miles square) as may, by cession of particular states, and the acceptance of
Congress, become the seat of the government of the United States, and to exercise like
authority over all places purchased by the consent of the legislature of the state in which
the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other
needful buildings;--And
-To make all laws which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Constitution in the government of
the United States, or in any department or officer thereof.
Article 1, §§ 7-8 enumerate express powers granted to Congress. Significant among these
are:
(1) Override presidential vetoes;
(2) Originate expenses (specifically, to the House);
(3) Regulate Commerce (the Commerce Clause);
(4) Govern the Post;
(5) Raise revenues (Tax & Spending Clause);
(6) Print Currency;
(7) Govern admiralty and maritime;
(8) Declare War (War Powers Clause);
(9) Raise and support the army/navy;
(10) Govern D.C.; and
(11) Make all laws necessary and proper in executing the above powers (Necessary &
Proper Clause).
- Jeffersonian Republicans, the states’ rights crowd, opposed the charter of a bank.
Under Jefferson’s reading of the necessary and proper clause, Congress could only enact
laws and create agencies which were absolutely necessary, not simply those which may
be convenient. In addition to the constitutional argument, Jeffersonian Republicans
opposed the bank on philosophical grounds. These were agrarian people; they lived in a
world of barter and trade, and were ideologically opposed to contemporary capitalism (as
well as any federal debt).
- Alexander Hamilton, a prominent Federalist and proponent of the national bank,
managed to win the support of President Washington and the Congress.
Purpose of the First National Bank:
1) Power to Tax – must have somewhere to put tax money, however, state banks
were unstable, therefore they needed somewhere to put the money
2) Congress Spending Power – needs a central location to draw funds in order to
have a uniform system of payment
3) Loans to Private Individuals – used to held build industrial enterprises (this
was controversial)
- As a compromise, Congress chartered the First Bank of the United States on a limited
term of 20 years. The charter expired in 1811, and renewal was defeated.
- Come 1816, though, revenues were low. The War of 1812 was a disaster, and the
United States needed credit. In order to serve this need, Congress chartered the Second
Bank of the United States.
Notes on McCulloch
-McCulloch remains good law today. As such, Congress is vested with broad
discretion in choosing the means through which it will exercise its granted
powers.
-Commenting on the Tenth Amendment, which reserves for the states all the
powers not granted to the federal government, Marshall observed that the text
does not include the word “expressly.” -Hence, the federal government implicitly
has powers that are not expressly enumerated. Many of these powers, as we’ll see,
arise as natural outgrowths of the express powers. Others arise in response to
systemic change in society, etc.
-Ross considers an implicit power not granted to the federal government, but one
reserved to the states—the police power. Nowhere in the Constitution is it
expressly reserved to the states, but the grant of such is implied by silence. The
federal government, in turn, has no general police power.
- Ross further highlights the elliptical reasoning of calling something “legitimate,’
“appropriate,” or “in the spirit” of the constitution. These words don’t really mean
anything.
Con Law I – Ross – Fall 2014
Tara Bush
Four General Categories of Activity that Congress can Regulate Under Commerce Power
(1) Channels of Interstate Commerce (roads, waterways, air):
- Embraces power to prescribe the rules of conduct to be applied to any activity
that can rationally be characterized as constitute interstate commerce.
- Congress may, on this basis, regulate the terms and conditions on which goods
or service sold interstate and may restrict the types of goods that can be shipped
interstate.
(2) Instrumentalities of Interstate Commerce (e.g., vehicles and machines that
facilitate interstate commerce)
- Includes the usual suspects of commercial travel and freight—railroads, airlines,
trucking companies, etc.
- Includes power to protect such instrumentalities from threats both interstate and
local.
(3) Economic activity that substantially affects interstate commerce or is related to it
Con Law I – Ross – Fall 2014
Tara Bush
- Includes any economic activity that has a substantial relationship with interstate
commerce or that substantially affects that commerce.
- Operationally extends the commerce power to activities that are not themselves
part of interstate commerce, often called the “affecting commerce” rationale.
(4) Persons or things that move in interstate commerce
Standards of Review:
(1) Rational Basis: Must be rationally related to a legitimate government interest.
Fairly low bar
High level of deference to Congress
Presumption of Constitutionality
Rational Basis- Used to examine ordinary social and economic legislation that
impacts citizens
1) State must have a legitimate purpose
2) The means need only be rational or reasonable to meet that purpose.
Rational basis is used to review legislation dealing with economic activity
including review of commerce clause issues!
****Ross said Rational basis is all we really need to know.
(2) Intermediate Scrutiny: Must be substantially related to an important government
interest.
(3) Strict Scrutiny: Must be narrowly tailored to a compelling governmental interest.
(less restrictive alternative)
Congress Has Plenary Power Over Matters of Interstate Commerce, States May Not
Frustrate [Navigable Waters]
Gibbons v. Ogden (1824 – J. Marshall)
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-The State of New York granted Livingston and Fulton the exclusive right of steamboat
navigation on New York state waters.
-Livingston assigned to Ogden the right to navigate the waters between New York City
and ports of New Jersey. Ogden brought this action against Gibbons, seeking to enjoin
him from operating steam ships on NY waters in violation of his state‐granted privilege.
- Gibbons contended that his steamships were duly licensed by the Coasting Act of 1789,
which required federal registration of interstate vessels.
-Issues:
(1) Was steamship movement of passengers interstate commerce? YES
RULE: Commerce is defined as commercial activity generally, not just the
transportation of goods across state lines. The waters provide a channel of interstate
commerce between the states.
(2) Whether a state has the power to pass a law that impacts interstate commerce,
where the law directly contravenes existing Congressional statute? NO
RULE: Congress has exclusive power in regulating interstate commerce and a state
cannot pass statutes to regulate interstate commerce that is inconsistent with a
federal law under the commerce clause.
-No State may employ its police power, through channels of presumably concurrent
jurisdiction, to confer a privilege inconsistent with federal law.
****A state statute that comes into conflict with a Federal Statute governing
interstate commerce===> Federal law trumps state law.
NOTE: States can govern interstate commerce as long as there is no specific
limitation and Congress is silent/ it does not conflict with federal law. In this case, if
Congress had not enacted the coasting law then N.Y. could have done this under its
police powers.
RULE: Where the power of Congress is dormant, then the States are free to
regulate. Once Congress occupies the field (or wakes up), then the States must yield
and conform to whatever the Congressional regulation may be.
local exercises of police power are affirmed. Both implicitly and explicitly, Marshall
recognizes the existence of a State’s internal commerce.
****The Marshal Court is famous for promoting a strong federal government and
expanding the powers of the federal government.
****After the Marshal Court came the Taney Court, which is famous for expanding the
power of the states by way of the police powers.
Except in those areas which by their nature require a uniform national rule, the states
retain a concurrent power to regulate local activities that affect interstate commerce
until such time as Congress might opt to regulate those matters itself. Such local
activities, after all, characteristically require diverse treatment.
****So Congress has acted but not in a way that preempts state action; in fact,
Congress allowed for state action on this subject.
-This legislation was passed to promote public morals, which is a police power of the
states.
-Champion challenged the statute, contending that it overreached Congress’s power to
regulate interstate commerce. Mere transport, he argued, was not commerce.
Issue: Was the federal prohibition a proper exercise of congressional power under
the Commerce Clause?
(a) Is a lottery ticket commerce?
Held: Yes! because the ticket holds economic value and is linked to a
broader economic value in the lottery. Essentially, it is worth something is
worth a lot more if you win.
Rule (my rule): Anything that has economic value constitutes
commerce, such as a lottery ticket.
Hipolite Egg Co. v. U.S. (Rotten eggs are articles of commerce) (1911)
-Prohibited adulterated food and drugs.
-Clearly articles of commerce.
-Motivated by police power type goal but court once again says O.K.
-INFERENCE OF CONSTITUTIONALITY!
Houston, East & West Texas Railway Co. v. United States (1914 – J. Hughes)
- Shreveport, Louisiana lies just east of the border with Texas. Railways in Texas were
charging much more for shipment of goods westward into Texas than they were charging
for a shipment from Dallas and Houston eastward. The Interstate Commerce Commission
(ICC) brought suit, alleging that the rate differences negatively impacted interstate
commerce.
Issue: May the federal government regulate carriers engaged in intrastate commerce
where the same carriers engage in interstate commerce? Yes
Holding: Congress was granted the power to regulate interstate commerce, which it chose
to do through the ICC. This power extended to “matters having such a close and
substantial relation to interstate traffic.” Since the price discrimination adversely affected
interstate commerce, “it is immaterial … that the discrimination arises from intrastate
rates as compared with interstate rates.” Therefore, the railroads’ intrastate rates were
subject to regulation and the ICC order was valid.
Held: Congress was attempting to exercise a police power through the commerce
clause, which was unconstitutional. The Child Labor Act fell beyond the ambit of
power afforded Congress under the Commerce Clause. Specifically, the Court read the
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Act not to prohibit the transport of any inherently dangerous goods, but rather to deter
and prohibit the conditions under which the goods were manufactured. The power of
Congress under the Commerce Clause to exclude certain goods or activities must hinge
on the nature of the goods themselves and the relationship of that nature with interstate
transportation. Manufacturing, in short, is not interstate commerce.
Regulation of manufacturing, an exercise of a police power, is a purely local activity, and
per the Tenth Amendment, such regulation is reserved to the States.
****Essentially, held that Congress was trying to regulate child labor and the
furniture was incidental and not inherently dangerous itself.
****Overruled by Darby
****Ross: "You can't really distinguish these cases and if one falls they should all
fall."
Held: Regarding the prohibition of interstate shipment of goods, the Court found no
difficulty in sustaining the law under the Commerce Clause alone, unaided by the
Necessary and Proper Clause. “While manufacture is not of itself interstate commerce,”
the Court wrote, “the shipment of manufactured goods interstate is such commerce and
the prohibition of such shipment by Congress is indubitably a regulation of the
commerce.” Even if the prohibition on interstate shipment was designed to compel in‐
state manufacturers to adopt federal standards and even if the prohibition had that effect,
the law was constitutional so long as it actually regulated interstate commerce. This
reasoning implicitly overrules Hammer.
-Regarding the direct regulation of manufacturing (wages and hours, etc.), the Court
found the regulation of the otherwise local activity a permissible exercise of the
commerce power under the Necessary and Proper Clause. The Court stated: “The power
of Congress over interstate commerce is not confined to the regulation of commerce
among the States. It extends to those activities intrastate which so affect interstate
commerce or the exercise of the power of Congress over it as to make regulation of
them appropriate means to the attainment of a legitimate end, their exercise of the
granted power of Congress to regulate interstate commerce.” Via the Necessary and
Proper Clause, Congress regulate intra‐state activity that had a substantial effect on
interstate commerce. In the context of the FLSA, direct regulation of substandard
working conditions prevented (or at least made more difficult) the interstate shipment of
goods made under those conditions. Per the Court, interstate commerce served as an
instrument for the spread of substandard labor conditions and unfairly affected businesses
adhering to higher labor standards. Via the reasonable relationship to these interstate
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effects, the direct regulation of manufacturing was constitutional without any reference to
shipments themselves.
-Lastly, the Court rejected Darby’s argument that the FLSA frustrated the Tenth
Amendment. Per the Court, the amendment states but a truism that all is retained which
has not been surrendered. Since the power over commerce was ‘surrendered’ to the
federal government by the Constitution, and since the FLSA came within the scope of
that power, the Tenth Amendment had no bearing on the constitutionality of the FLSA.
****Court said that despite the wages being paid locally, the lumber is being
transported interstate and has an effect of interstate commerce.
****This case once again expanded the commerce clause and laid the precedent for
a police power under the commerce clause.
Notes on Darby
1. As noted, Darby revisits nearly the same issue as evaluated in Hammer, and
comes out the other way. While not expressly overruled, it is implicit.
2. Beginning with Darby, the Court abandoned the view that under the Commerce
Clause, Congress could regulate only “stream of commerce” and those activities
with “direct effects” on interstate commerce; instead the Court adopted a more
inclusive substantially effects test that broadened the reach of the commerce
power.
3. Further, by treating the Tenth Amendment as a mere “truism,” the Court, for all
intents and purposes, destroyed the enclave theory and the notion that certain
activities were expressly off limits to federal regulation.
4. Post‐Darby, Congress, pursuant to the Commerce Clause and the Necessary
and Proper Clause, may regulate interstate commerce itself, as well as any local
economic activity that substantially affects interstate commerce.
Rule: Even if it’s local activity, and though it may not be regarded as commerce, it
may still be reached by Congress if it exerts a substantial economic effect on
interstate commerce, whether “direct” or “indirect.”
Held: The power to regulate interstate commerce includes the power to regulate
commodity prices and prices affecting them. The AAA was designed to restrict the
amount of wheat produced for market and the extent to which one may avoid resorting to
the market by producing for his own needs. Though Filburn’s production of wheat for
personal consumption may be trivial, this fact does not remove him from the scope of the
federal regulation. The aggregate effect of such practices by many famers would be far
from trivial. Farmers growing for home consumption, for example, would deliver their
entire allotment to the market, potentially glutting the market and driving prices down.
This decision implicitly overrules the Schechtner Poultry “direct” versus “indirect” test.
****Congress can regulate the crops because it could have a substantial effect on
interstate commerce in the aggregate. So, the court said that this was a local activity
but it can have a substantial effect on interstate commerce.
The Court observed that 75% of Heart of Atlanta’s clientele came from out‐of‐state. By
way of these substantial effects on interstate commerce.
****Essentially, the court held that the discrimination substantially affected
interstate commerce b/c it prohibited black people from traveling. Ross said that
this concept is very well established/supported.
the Court would draw a line with what constitutes a “substantial portion of the
food” served by a restaurant. If a restaurant specialized in all‐local ingredients,
but served Coke products, would they be free of the regulation?
Keep in mind the two‐level reasoning the Court employs in these cases:
1. Does Congress have authority to reach the activity under the Commerce Clause?
a. If the activity is inherently “interstate,” then yes.
b. If the activity is local, then Congress has the power to regulate if that activity,
in aggregate, has a substantial effect on interstate commerce.
2. Assuming the satisfaction of this jurisdictional question, does the regulation, as
applied, exceed the power of Congress?
- In other words, what is the substantial effect, and is it that effect which is
actually being regulated?
Local Gun Control Beyond Scope of Commerce Clause [Substantial Effect, Guns in School
Zones]
United States v. Lopez (1995) (Deals with #4) (mere possession of a gun is not interstate
commerce)
- The GunFree School Zones Act of 1990 made it unlawful for any individual to
knowingly possess a firearm at a place that he knew or had reasonable cause to know was
a school zone.
- Lopez, a high‐school student, carried a concealed and loaded handgun into his school
and was arrested and charged.
Held: That the Act exceeded Congress’s authority under the Commerce Clause. The
Court premised its holding on two related concerns:
(1) the nature of the activity being regulated, and
(2) the activity’s relationship to interstate commerce.
(1) Regarding the nature of the activity, the Court stated: “Where economic activity
substantially effects interstate commerce, legislation regulating that activity will be
sustained.” Elaborating, the Court suggests that economic activity establishes a
threshold requirement for regulating conduct under the commerce power. To be
defined as economic activity, an activity must either (1) be properly characterized as
economic in itself, or (2) be an essential part of a larger regulation of economic activity.
Applied to the instant case, gun possession in a school zone is not itself economic, nor is
the regulation prohibiting it part of a larger economic regulatory scheme.
(2) Regarding the activity’s relationship to interstate commerce, the Court invokes
familiar language: The activity must have a substantial relation to interstate commerce,
or it must substantially affect interstate commerce. The Court emphasizes substantial,
holding (1) that a nominal effect will not suffice, and (2) the Court will not defer to the
discretion of Congress on this standard.
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****From my notes: The court held that there was no economic activity being
regulated. The state just says you cannot possess a gun and there is not economic
activity associated with having a gun on you!
-What is the difference between this case and the civil rights cases? Selling a
hamburger is economic activity but carrying a gun does not involve economic
activity.
****Ross said that there is more of an economic effect with discrimination that with
gun control in a school zone.
****NOTE: The states can still regulate here but Congress cannot use its commerce
power.
Notes on Lopez
- The Court does not make clear whether the “substantial effect on interstate
commerce”
test employs a hard‐line two‐part analysis—(1) economic activity, plus (2)
substantial affect on interstate commerce—or whether the lack of economic
activity would be merely
suggestive, not determinative, of the outcome. The Court answers this question in
Gonzales below.
Violence Against Women Beyond Scope of Commerce Clause [Substantial Effect, Violent
Acts]
United States v. Morrison (2000 – J. Rehnquist) (Focuses of economic ACTIVITY in #4)
- The Violence Against Women Act of 1994 provided a federal civil remedy for victims
of gender‐based violence, even absent criminal changes.
-Virginia Tech freshman was allegedly assaulted and raped.
- College disciplinary proceedings failed to punish either Morrison or Crawford, and
Brzonkala brought this civil action under the Act.
Held: That the legislation did was unconstitutional because the statute did not
regulate and economic activity. The mere fact that the abuse had an economic effect
does not mean that the abuse is an economic activity.
****The majority said that this legislation did not regulate and economic activity.
The majority focused on economic activity and the dissent focused on economic
effect.
RULE: In order for Congress to regulate under the commerce clause there must be
an economic activity not just have an activity that has an economic effect.
-On Board:
-Dissent talks about economic effects.
-Majority focuses on economic activity.
-The Court was unswayed by the data gathered by Congress, finding Congress’s
conclusion based on the same method of reasoning rejected in Lopez—a “but‐for causal
chain from the initial occurrence of violence crime (the suppression of which has always
been the prime object of the States’ police power) to every attenuated effect upon
interstate commerce.” Per the Court, such reasoning would allow Congress to regulate
any crime, as long as the nationwide, aggregated impact of that crime has substantial
effects on employment, production, transit, or consumption.
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****The Court rejected the Government’s argument that “Congress may regulate
noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect
on interstate commerce . . . . The regulation and punishment of intrastate violence that is
not directed at the instrumentalities, channels, or goods involved in interstate
commerce has always been the province of the States.”
Quick Review:
(1) Wicker: Even products the farmer raised for his own table can be regulated as
interstate commerce.
****Ross said that Wicker was limited to Commercial Farmers who
participated in Commercial activity NOT the farmers who was producing
strictly for personal use. THERE IS STILL SOME TYPE OF LIMIT HERE
MAYBE.
(2) Lopez: Federal Gun statute preventing possession was unconstitutional b/c it did
not regulate Economic Activity. This regulated the possession not sale of guns.
-Dissent said that there was an economic effect but the majority said there
must be an economic activity.
(3) Look at 4 part test again. THIS IS WHAT WE HAVE TODAY.
(4) Morrison: Violence against women is not an economic activity!
Held: Yes, the court found that this was an economic activity that had a substantial
effect on interstate commerce. The court found that growing and selling medical
marijuana would have a substantial effect on interstate commerce because it is plausible
that med. marijuana would effect the supply and demand, sale, and transportation of
marijuana nationwide.
- Regarding the nature of the regulated activity, previous case law suggested that the
terms “economic” and “commercial” were synonymous. The Court clarified the
distinction, holding that for Commerce Clause purposes, an activity may qualify as
being “economic” in nature even though it is “not itself ‘commercial,’ in that [the
goods are] not produced for sale . . . .” Per the Court, “’Economics’ refers to ‘the
production, distribution, and consumption of commodities’”—a definition clearly
embracing personal cultivation and use of marijuana. Characterizing the activity as
economic allows Congress to regulate it under the Commerce and Necessary and Proper
Clauses with only rational basis judicial review, effectively narrowing the circumstances
under which the strict scrutiny of Lopez will apply.
- In Lopez, the sole activity being regulated was non‐economic in nature. In Gonzales,
though, the allegedly non‐economic activity was part of a broader regulatory scheme
that embraced what was clearly economic and commercial drug activity. Hence, as long
as “Congress acted rationally [in] including this narrower ‘class of activities’ within the
larger regulatory scheme” the regulation of that subclass of activity is constitutional.
Dissent: Dissent argued that Congress should be able to regulate markets that will almost
surely exist. Such markets should be treated as if they already exist.
Dissent (Ginsburg): Uninsured individuals have an inevitable participation in the
medical market, whether they choose to or not. Their uninsured activities impose a high
cost and substantially affect the national market.
- Facts: Jones threw a Molotov cocktail into the home of his cousin. The home was
severely damages. Jones was convicted for violating 18 U.S.C. § 844(i), which makes it a
federal crime to “maliciously damage or destroy, … by means of fire or an explosive any
building … used in interstate or foreign commerce or in any activity affecting interstate
or foreign commerce.” Jones argued that § 884(i), when applied to the arson of a private
residence, exceeds the authority vested in Congress under the Commerce Clause.
- Issue: Whether arson of a private residence falls within a federal statute criminalizing
arson of property used in interstate or foreign commerce? No.
- Holding:
- An owner-occupied residence not used for any commercial purpose does not
qualify as property “used in” commerce or commerce-affecting activity, such that
arson of such a dwelling is not subject to federal prosecution under § 844(i).
- Where a statute is susceptible of two constructions, by one of which grave and
doubtful constitutional questions arise, and by the other of which such questions
are avoided, the Court’s duty is to adopt the latter.
- By reading the statute as such, the Court sidesteps the Constitutional question of
whether the statute falls within the ambit of the Commerce Clause.
- Acknowledging this logic, the Court stated: “When the choice has to be made
between two readings of what conduct Congress has made a crime, it is
appropriate, before we choose the harsher alternative, to require Congress
should have spoken in language that is clear and definite.” Presuming this
statement to indicate that Congress’s language in the statute at issue is ambiguous,
the Court refrains from even considering whether applying the federal arson
statute to a private home implicates the Commerce Clause.
-Recall the Pollock cases (1895) overturning the first peacetime income tax. The
Sixteenth Amendment (1913) directly circumvented this decision, authorizing direct
taxes that did not have to be apportioned by population.
****Before the 16th amendment, a income tax was unconstitutional because it was
not apportioned between the states. The 16th amendment was a direct response to
the income tax cases.
program to protect unemployed works from poverty. Cardozo, writing for the
Court, highlighted the national emergency of joblessness and held that the taxes
authorized by the legislation fell squarely within the general welfare clause.
Congress May Withhold Federal Funds from States in the Name of General Welfare
South Dakota v. Dole (1987 – J. Rehnquist)
-In 1984, Congress enacted legislation directed the Secretary of Transportation to
withhold 5% of federal highway funding from states that did not adopt a 21‐year‐old
minimum drinking age.
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-South Dakota, a state permitting persons 19 years and older to purchase alcohol,
challenged the law under the Taxing & Spending Clause.
Issue: Was the mentioned legislation a valid exercise of Congress's taxing and spending
power?
Held: Yes, Congress, acting indirectly to encourage uniformity in the States’ drinking
ages, was within constitutional bounds. Per the Court, the funding legislation was in
pursuit of “the general welfare,” and the means chosen to pursue the goals—uniformity,
safety, and deterrence of drunk driving on federal roads—were reasonable.
-The Court likewise confirms Congress’s interest in this specific aspect of the general
welfare, given that Congress paid for the roads. The Court rejected South Dakota’s
argument invoking the Twenty‐first Amendment (which repealed prohibition and
expressly gave State the power to regulate liquor), holding that the Amendment in no
way limited Congress’s ability to achieve federal objectives indirectly. The 5%
withholding of highway funds was not unduly coercive, and as such does not usurp the
State’s authority as granted in the Twenty‐first Amendment.
RULE: Congress can withhold funding to Promote the General Welfare under the
taxing and spending clause. THIS MUST BE DONE UNAMBIGUOUSLY.
****This was not Coercion because it provides incentives but does not FORCE the
states to set a drinking age. If the legislation withheld all funding then it would be
coercive and unconstitutional.
- President Roosevelt imposed the embargo, and Curtiss‐Wright was charged with
conspiring to sell machine guns to Bolivia. Curtiss‐Wright challenged the
constitutionality of this delegation of power.
-The Court agreed with the defendant that legislation over the international field may
accord to the President greater discretion than would be admissible for domestic affairs.
But the court went beyond the issue of delegation to add pages of obiter dicta to describe
the far-reaching dimensions of executive power in foreign affairs. He assigned to the
President a number of powers not found in the Constitution.
-The Court spoke generally of a fundamental difference between foreign and domestic
policy. Justice Sutherland declared that “the two classes of power are different, both in
respect of their origin and their nature. The broad statement that the federal government
can exercise no powers except those specifically enumerated in the Constitution, and
such implied powers as are necessary and proper to carry into effect the enumerated
powers, is categorically true only in respect of our domestic affairs.”
-Court held that the embargo was within the enumerated powers of Congress.
International relations were never a state issue, and as such the legislation was not in
violation of states’ rights. Further, the War power expressly gives the government the
right to regulate this sort of activity
****This case said that Congress has substantial power over foreign affairs.
States May Not Challenge Constitutional Treaties Under the 10th Amendment
Missouri v. Holland (1920 – J. Holmes)
- The United States and Great Britain entered into a treaty to protect a number of
migratory birds in the U.S. and Canada.
-Congress passed the Migratory Bird Treaty Act in 1918 in order to facilitate
enforcement of the treaty.
-When Holland, a U.S. Game warden, threatened to arrest citizens of Missouri for
violating the Act, the state of Missouri challenged the treaty.
Issue: Was the Migratory Bird Treaty Act a constitutional expression of Congress's treaty
power?
-Held: Yes, The Act (and Treaty) were valid exercises of congressional treaty power.
Article VI declares that treaties made under the authority of the US are the
Supreme law of the land (Supremacy Clause.) Congress acted under Necessary and
Proper Clause to execute the powers of the Government.
-The Act did not contravene anything in the Constitution, and the States had no inherent
power to regulate the birds. The States do not “own” the migratory birds, which are only
passing through the States anyway.
-RULE: The treaty power, and the power to enact legislation necessary and proper
to carrying out treaties, were both delegated to the United States. Therefore, a valid
treaty cannot, by definition, transgress the limits of the Tenth Amendment.
****Essentially held that this was proper under the necessary and proper clause to
carry out the treaty.
****The court said that this was an international issue and Congress has plenary
power to ratify treatises on the matter.
- Clarice Covert killed her husband, a sergeant in the U.S. Air Force, at an airbase in
England. Ms. Covert, herself not a service‐person but subject to the treaty, was tried and
convicted by a court‐martial for murder.
Issue: Was this valid under the constitutional (Bill of Rights) right to a trial by a jury of
one’s peers?
RULE: The US Constitution maintains supremacy over treaties with foreign
countries.
****So treatises can be held unconstitutional!
****Note: The court does give more deference to treatises than ordinary legislation
b/c the court gives deference to congress regarding foreign affair and military
issues.
-Held: A treaty can be unconstitutional because the constitution is the supreme law
of the land. In this case, it was unconstitutional to try citizens in Military Court
UNLESS civilian courts are not open and functioning.
-“no agreement (treaty) with a foreign nation can confer power on the Congress, or on
any other branch of Government, which is free from the restraints of the Constitution.”
- Citing the jury trial provisions of Art. III, § 2 and the Fifth and Sixth Amendments,
the Court holds that the jury‐trial protections afforded civilian citizens in the Bill of
Rights and elsewhere are paramount to the technicalities of the treaty.
- Court: Article I § 8 “To make rules for the Government and Regulation of the
land and naval forces.” The Necessary and Proper Clause would not extend to classes
beyond “land and naval forces.” (Not to ordinary citizens.)
Tenth Amendment, Federalism Revived as Check on Federal Power Congress May Not
Regulate the Labor Market of State Employees
National League of Cities v. Usery (1976 – J. Rehnquist)
- In 1974, Congress passed amendments to the Fair Labor Standards Act, regulating
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minimum wage and overtime pay for state and local government employees.
-The National League of Cities along with several state and local governments challenged
the constitutionality of these amendments.
Issue: Was the federally imposed minimum wage a violation of the 10th amendment?
Held: YES, the Court stated that the FLSA clearly fell within the scope of the commerce
power, but violated the principle of federalism as embodied in the Tenth Amendment.
- Unlike Darby, the Court here did not treat the Tenth Amendment as a “truism”; rather,
the Court viewed the Tenth Amendment as a reflection of the philosophy of federalism
embodied in the Constitution and AN INDEPENDANT SOURCE OF LIMITING
THE FEDERAL GOVERNMENT. Per the Court, Congress cannot exercise its power
to impair the States’ integrity or their ability to function effectively in the federal
system. Congress may have the authority to regulate individual businesses under the
Commerce Clause, but in this case it is regulating not just individuals, but the States
as States. As such, this exercise of the commerce power runs afoul of the Tenth
Amendment.
BIG DEAL FROM THIS CASE****The majority essentially held that the 10th
amendment can act as an independent restraint on Federal Power.
-RULES: Usery’s Rules (for States to succeed on 10th Amendment basis against
Federal Statutes)
1) The challenged statute must regulate the “States as States,” not as private
citizens
2) The statute must address matters that are attributes of state sovereignty.
3) States’ compliance would directly impair their ability to “structure
integral operations in areas of traditional governmental functions.”
4) The relation of state and federal interest must not be such that “the nature
of the federal interest … justifies state submission.”
- Balancing Test
****So the Federal government can have a minimum wage for private organizations but
such minimum wages do not apply to the states!
-Further, the court believed that the principle of federalism was to be protected, if at all,
through the political rather than the judicial process. In other words, Congress, the body
of state representatives, must make the necessary judgments about the scope of any
intrusion upon state sovereignty.
Ross: The direct election of senators, 17th amendment, matters and supports this
result:
(1) Because the people speaking through the senators have imposed these
regulations on themselves. (not ross's big point.)
(2) Originally, the senators were regarded as representatives of the state but
after the 17th amendment they represent the people ... This concept eroded
the concept of state sovereign immunity.
Federal Gov’t Cannot Compel Action of State Law Enforcement, Even Temporarily
Printz v. United States (1997 – J. Scalia)
- The Gun Control Act of 1968 established federal regulation of firearm sales.
- The Brady Bill amended the GCA, requiring mandatory background checks of gun‐
buyers and the issuance of a permit before delivery of the weapon.
-The Act provided for creation of a federal agency under the DOJ to conduct the checks,
but the in period leading up to creation of the agency, it compelled state law enforcement
officers to conduct the checks.
Issue: Whether certain provisions of the Brady Act, commanding state and local law
enforcement officers to conduct background checks on handgun purchases, violated the
Constitution?
RULE: Barring a compelling reason, the Federal Government cannot commandeer
state officials to carry out federal programs.
OR
The federal government may not compel the states to implement, by legislative or
executive action, federal regulatory programs.
Held: YES, The Court held that Congress may not require state law enforcement
agencies to perform the duties mandated by the Brady Bill. The court noted that
provisions mandating state action regulated the functioning of the state executive
branch in a manner that offended the principle of “separate state sovereignty” by
forcing the respective States to administer a federal regulatory scheme. As such, each
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Despite the literal language of the Amendment, limiting the grant of federal jurisdiction
to suits brought by “citizens of another state,” citizens are also prohibited from suing
their own state in federal court. As such, the Eleventh Amendment has since been viewed
as a grant of state sovereign immunity to the federal forums.
****Extended the scope of the 11th amendment.
****Note from Ross: Sovereign Immunity can be waived!
-This happens in suits where the Government believes that justice requires
the state to be potentially liable.
****So congress cannot enact legislation that allows an individual to sue a state in
state court!
Held: No, State sovereignty prohibits any Article I federal legislation providing an
individual with a cause of action against a State (even in state court). State sovereignty
existed before the constitution and still exists today.
****So after this how can Federal legislation be enforced if the states have
Sovereign immunity? Essentially, how can states be sued?
(1) Does not bar suits against “lesser entities” (municipal corporations, other
government entities, state officers)
- Suits against state officers can only lead to injunctions or declaratory relief,
unless using on an individual capacity
(2) If the state provides consent.
(3) The Federal Government (14th Amendment § 5 Suits)! The 11th
Amendment prevents states and individuals from suing not the Federal
Government.
****Once again, read literally, the 11th amendment is just an exception to diversity
jurisdiction! (THIS WILL OBVIOUSLY BE ON THE TEST).
Article II Section 2: The President shall be commander in chief of the Army and Navy of the
United States, . . . and he shall have power to grant reprieves and pardons for offenses against
the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties,
provided two thirds of the Senators present concur; and he shall nominate, and by and
with the advice and consent of the Senate, shall appoint ambassadors, other public
ministers and consuls, judges of the Supreme Court, and all other officers of the United
States, . . .
Article II Section 3: He shall from time to time give to the Congress information of the state of
the union, and recommend to their consideration such measures as he shall judge necessary and
expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in
case of disagreement between them, with respect to the time of adjournment, he may adjourn
them to such time as he shall think proper; he shall receive ambassadors and other public
ministers; he shall take care that the laws be faithfully executed, and shall commission all the
officers of the United States.
****Few things Ross noted:
(1) The president SHALL report on the state of the union.
(2) The President can make proposals for legislation but the Bill has to be proposed
by a legislator and enacted by Congress. Usually such a proposal is substantially
changed and the president may veto it.
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-The President can act pursuant to direct grant of authority from Article II (appointing
ambassadors, for example) or pursuant to a delegation of authority from Congress
(setting specific tax rates, criminalizing interstate trafficking of specific drugs). While
delegation operates in many cases without question, many situations pose substantial
ambiguities. Specifically, whether the executive branch is implementing the
congressional standard or legislating on its own.
****Practically, the President does have a quasi legislative power under the "taking
care" clause to legislate/fill in the gaps through executive orders and Administrative
Agencies.
Jackson Concurrence: Stated that the President’s action was “at it’s lowest ebb.”
Three Pronged levels of Presidential Power:
1. Highest ebb: When the President acts pursuant to an express or implied
authorization of
Congress, the President’s authority is at its greatest.
2. Middle ebb: When the President acts in the absence of either a
congressional grant or denial of authority, he can only rely upon his own
independent powers, but there is a zone in which he and Congress may have
concurrent authority. When this is the case, the
test depends on the imperatives of events and contemporary imponderables
rather than on abstract theories of law.
3. Lowest ebb: When the President takes measures incompatible with the
expressed or implied will of Congress, the authority of the President is at its
lowest.
****There is a general understanding that a President will not appoint friends to the U.S.
Supreme Court.
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****Essentially, The Court held that this sort of action was legislative. Legislative
action must comply with the presentment clause and the bicameralism provision.
The presentment clause dictates that both houses present a bill to the President,
which he either signs or vetoes. Bicameralism states that both the House and the
Senate must act on bills. This action is inconsistent with that, therefore, the one
House veto rule of executive decision is unconstitutional.
Notes on Chada
- The presentment clause dictates that both houses, following an affirmative vote,
present a bill to the President for his signature or veto. Permitting Congressional
veto of an executive action reverses this process. The presentment process—
especially the President’s veto power—is intended to provide a mechanism by
which the executive can check the legislature, defend itself against legislative
encroachment, and prevent ill‐conceived policies and decisions.
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- The bicameralism provision is part of the legislative process in Article II. One
house acting without the other defeats the virtue (and check) of the system. The
provision serves as an implicit self‐check on encroachment.
- Despite Chada, Congress still follows such procedures, though perhaps not so
blatantly. The Court lacks enforcement power (of the purse or otherwise), so it
can’t really do anything other than moan.
Line Item Veto Amounts to Amendment by the Executive, Violates Separation of Powers
Clinton v. City of New York (1998 – J. Stevens)
- Pursuant to the Line Item Veto Act of 1996, President Clinton cancelled a provision in
the Balanced Budget Act of 1997, which relinquished the government’s ability to recoup
$2.6B in taxes levied against Medicaid providers by the State of New York.
-New York challenged the action, arguing that the Act permitting the veto was an
unconstitutional delegation of the amendment power from Congress to the Executive.
BLACK LETTER RULE The Line Item Veto Act is unconstitutional.
Held: that the Line‐Item Veto Act violated the legislative process as defined in the
presentment clause of the Constitution. Per the Court, legislation must either me entirely
approved or rejected by the President. By cancelling only selected portions of bills, the
President in effect exercises an amendment function—a unilateral power to change the
text of duly enacted statutes. Such discretion violates the “finely wrought” legislative
procedures of Article I. If the President is to possess such power—which is enjoyed by
many state governors—“such change must come not by legislation but through the
amendment procedures set forth in Article V of the Constitution.”
-Executive Orders- the President has the power to issue these (derived from the Take
Care Clause). They have to be based on existing law, though.
-Signing Statements- when the President signs a bill into law, the President may add his
own statements that comment on the legislation.
-Rhetorical- innocuous statements praising the legislation.
-Constitutional reservations- President expresses doubt as the legislations
constitutionality, or of the scope thereof.
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Recess Appointments: If Congress is not in session the President can elect Principal
officials without confirmation by the senate under Article 2. § 2.
"The President shall have power to fill up all vacancies that may happen during the recess of the
Senate, by granting commissions which shall expire at the end of their next session."
****This is a temporary appointment but it is much harder for Congress to not confirm
the official when the official is already in office/serving.
Cannon Case:
Rule: The Recess Appointment clause applies when Congress was not in session
AND when Congress recesses for a short time DURING a session.
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****So the President can appoint principal officials when Congress is in Session but on a
recess.
**** The court stated that the recess had to be at least 10 days unless there was a national
emergency.
REMOVAL
RULE: The President can remove an official at his own choice without
Congressional Confirmation unless the official has Constitutional or Statutory
protection. (Myers)
ex. Cannot remove Supreme Court Justices because they have lifetime
tenure.
1. Other than providing for impeachment of the president and federal judges, the
Constitution is silent on the procedure for removal.
****Article II Section 4: "The President, Vice President and all civil officers of
the United States, shall be removed from office on impeachment for, and
conviction of, treason, bribery, or other high crimes and misdemeanors."
2. Generally, officers serving at the pleasure of the President (i.e. in an executive
agency) can be removed unilaterally by the President.
3. Congress can hypothetically create wholly independent agencies apart from the
executive functions, and this may be important, depending on the function of the office,
to prevent excessive concentration of power in the President.
4. The Court has rejected efforts by Congress to reserve for itself a role in the removal of
executive branch officials.
EXCEPTION:
Humphrey's Executor v. U.S. (1934)
-Roosevelt removed an FTC Commissioner. Widow brought suit for backpay.
- Held: A statute stated that the Commissioner could only be removed for certain
reasons that were not satisfied.
-Court distinguished the postmaster from the commissioner.
-Independent Regulatory Commissions: make policy as an independent agencies
(not part of executive or legislature) free of political influences.
ex. Federal Trade Commission, Federal Reserve Board.
RULE: The President cannot remove members of Independent Regulatory
Commissions which are supposed to make regulations independent from
political influences.
(1) Congress was elected in November and would not take seat until December of
the next year. So people would not be serving until a year after they were elected.
(2) The President would "come to town" when Congress "left town."
-Two big events associated with this problem:
(1) Lincoln during the civil war.
(2) Johnson during Reconstruction.
****This was all solved with the 20th amendment. Under the "Lame Duck"
Provision elected Congressmen take seat on January 3rd after being elected
in November and when the President takes office Congress is in session.
****So the Lame Duck provision Shortens the length between when the
President is elected and when he takes office and does the same for
Congressmen.
22nd Amendment: No person shall be elected to the office of the President more than twice,
and no person who has held the office of President, or acted as President, for more than two
years of a term to which some other person was elected President shall be elected to the office of
the President more than once.
****President may only serve 2 terms plus 2 years. Roosevelt tried to serve 4!
PARDON POWER: Art. II, § 2 cl. 1 declares the president commander‐in‐chief, grants power
to require opinions from the executive departments, and grants the power to pardon federal
crimes, except Impeachment.
Article II Section 2: "The President shall be commander in chief of the Army and Navy
of the United States."
Presidents Have Absolute Immunity from Civil Liability for Acts Within Scope of Office
Nixon v. Fitzgerald (1982 – J. Powell)
- Fitzgerald, then a civilian analyst with the United States Air Force, testified before a
congressional committee about inefficiencies and cost overruns in the production of the
C‐5A transport plane.
-Roughly one year later he was fired, an action for which President Nixon took
responsibility.
-Fitzgerald then sued Nixon for damages after the Civil Service Commission concluded
that his dismissal was unjust.
RULE: The President is shielded by absolute immunity from civil damages liability
for acts done in his official capacity.
HELD: Found Nixon immune from prosecution. The Court held that the President "is
entitled to absolute immunity from damages liability predicated on his official acts."
This sweeping immunity, argued Justice Powell, was a function of the "President's unique
office, rooted in the constitutional tradition of separation of powers and supported by our
history."
Arizona v. US (2012)
Held: States do have some power to regulate illegal immigration as long as the legislation
does not come into conflict with the Federal Regulation.
****This was NOT FIELD PREEMPTION. This was conflict pre-emption.
States can enact regulations that regulate commerce/affect interstate commerce unless:
(1) The regulation comes into conflict with a Federal Law.
(2) Congress has preempted the field.
(3) The regulation discriminates against other states.
(4) The regulation unduly burdens interstate commerce/ interferes with the free
flow of commerce (Gibbons).
Economic Discrimination Not OK, Even in Enumerated Area of Control [Alcohol, 21st
Am.]
Granholm v. Heald (2005 – J. Kennedy)
-Via state laws, Michigan and New York allowed in‐state wineries to ship alcohol
directly to consumers but restricted the ability of out‐of‐state wineries to do so.
-In separate challenges, the state argued that the laws were valid exercises of the 21st
Amendment, which granted exclusive control of alcohol regulation to the states
Held: The state statutes violated the commerce clause by favoring instate businesses at
the expense of out of state businesses we unconstitutionally discriminatory. Explicit
discrimination against interstate commerce. States may not enact laws that burden out of
state producers or shippers simply to give a competitive edge to in-state business.
(Protectionist)
****Essentially, this is protectionist and unconstitutional.
****Congress has the commerce power to ensure a nationwide market and prevent
states from discriminating against each other.
-Per the Court, state authority to engage in economic discrimination was not the purpose
of the 21st Amendment. As such, the Amendment does not save state laws violating other
provisions of the Constitution.
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21st Amendment: Interpreted to grant the states the power to regulate liqueur. (dissent
argues this)
Ross on the 18th Amendment (Deals with the 21st Amendment argument here)
"After one year from the ratification of this article the manufacture, sale, or transportation
of intoxicating liquors within, the importation thereof into, or the exportation thereof
from the United States and all territory subject to the jurisdiction thereof for beverage
purposes is hereby prohibited."
****Essentially made liquor sale or production illegal.
Ambiguity according to Ross: What is intoxicating?
-Congress enacted law stating that everything that had alcoholic content
constituted intoxicating!
****A lot of people argued that the 18th amendment was Substantively
Unconstitutional Because it contradicted fundamental rights contained in the
Constitution: Due Process, separation of powers.
Argument against 18th Amendment: It does not act on the government it acts
directly on the people. Congress does not have the power through a constitutional
amendment to act directly on the people. All other amendments effect the structure and
management of the government with the exception of maybe the 13th amendment.
H: Laws that favor the government in such areas, but treat every private business the
same, do not discriminate against interstate commerce. (Even handed)
Analysis: Distinguished from Carbone (similar ordinance) because the private
processing plant there was a private company. Favoring local government by its nature
differs from favoring a particular private company.
-Government is vested with the responsibility of protecting the health, safety, and
welfare of its citizens. Here the citizens and businesses within the state would bear
the costs of the ordinances.
-The benefits substantially outweighed any burden on interstate commerce.
-This case is somewhat of a retreat on the power of the DCC. Shows a reluctance on
the Court’s part to scrutinize economic legislation passed under the auspices of the
police power.
MARKETPARTICIPATION EXCEPTION
Generally, the dormant commerce clause applies to the states only when they tax or
regulate private trade in the national marketplace. If a state instead enters the
marketplace as a participant, its actions are treated as being like those of any privative
party.
***Taxing Power under Dorman Commerce Clause (four part test in Ross handout)
Analysis Flow Chart to Determine if A Statute Violates the Priv. and Immunities Clause
Piper Case:
-State had to allow the people that passed the bar exam to practice law in the state EVEN
if they don’t live in the state.
Held: Virginia's residency requirement was unconstitutional. The Court held that "'one
of the privileges which the Clause guarantees to citizens of State A is that of doing
business in State B on terms of substantial equality with the citizens of that State,'"
and that the practice of law was sufficiently basic to the economy to be deemed a
privilege protected by the Clause. The Court found that the regulation discriminated
among otherwise equally qualified applicants solely on the basis of residency, failing to
bear a close relation to a substantial state interest.
****So, essentially, the practice of law is a fundamental right protected under the
P.I. clause and the statute was protectionism in that it protected local lawyers from
out of state competition. NO STATE INTEREST!
4) It was related to services provided by the state because the sale took
place wholly within Oklahoma
Do NOT have to know the rest of the cases on the handout
To what extent does this apply to the Dormant Commerce Clause?
o You do Dormant Commerce Clause test first, then do Brady test
Article 1 § 10
o No state shall enter into any treaty, alliance, or confederation; grant letters of
marque and reprisal; coin money; emit bills of credit; make anything but gold and
silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law,
or law impairing the obligation of contracts, or grant any title of nobility.
Fletcher v. Peck (1810)
o State of GA sold vast tracts of land in 1795 to four large companies. Every legislator
voting for the measure sold his vote either for money or for shares of stock in the
companies. Public outrage forced the new legislature a year later to rescind the
statute.
o Issue: Did the repeal of a corrupt statute violate the contractual rights of prospective
settlers who purchased land from the companies?
o Court held that the legislature possessed constitutional authority to pass the initial
statute. The innocent third parties who bought land from the companies were not
responsible for legislative corruption or fraud.
Charles River Bridge (1837)
o Massachusetts legislature had incorporated a company to build a bridge and take
tolls. This was a very lucrative business. Then after 20 years, the legislature built its
own bridge, which was toll free. Naturally, the business on the original bridge
decreased and owners of bridge came to court claiming a violation of contract.
o Court said “too bad,” the state never promised the corporation that it would not
build a rival bridge.
o Vested economic rights must yield to competition – want competition because this
promotes the economy
Dartmouth College (1819)
o The college has been created as a charity school to instruct Indians in the Christian
religion. In 1769 it was chartered by the British crown as a private corporation. In
1816, New Hampshire passed legislation to increase the number of trustees in the
college and thereby transfer control to appointees of the governor.
o Court held this was unconstitutional because the state had granted the charter to
the private company and could not use its power to alter that contract.
o Provided the constitutional foundation for the development of business
corporations in this country
Calder v. Bull (1798)
o The prohibition against ex post facto laws might have been used to protect contracts
and property rights, but in Calder, the Court restricted this constitutional provision
to criminal statutes only.
o States can pass ex post facto laws, but they still CANNOT impair contracts
Sturges v. Crowninshield (1819)
o State of NY created a bankruptcy law
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o Court held that this was a violation of the Contracts Clause for a state to enact a
bankruptcy law to relieve debtors of their debt to creditors
o However, if one enters into a contact at the time the bankruptcy law is in effect, it is
NOT a violation of the Contracts Clause because the parties are on notice of the laws
then. (Ogden v. Suanders)
Home Building & Loan Association v. Blaisdell (1934)
o Minnesota legislature created a statute that farmers would be given a grace period
to pay their mortgages, because too many farmers were having their land foreclosed
on and this would have been very bad for the U.S.
o The Farmers were not released from their debt and interest would be incurred
during the grace period, so Banks would get more money in the end (but they didn’t
care)
o Banks challenged the constitutionality of this under the Contracts Clause
o Court held that the “essence” of the contract had not changed since the farmer still
had to pay and it only delayed that time frame
o Court also held that emergency conditions do not create power, but they may
furnish the occasion for exercise of power.
After Blasidell, if a State wants to create a statute that affects contracts, but does not nullify
the contacts totally, they can do so under their Police Powers/Emergency Conditions
Doctrine.
o Essentially the Contracts Clause doesn’t hold much power anymore
Fifth Amendment - “… nor shall private property be taken for public use, without just
compensation.”
Regulatory Takings
o Miller v. Schoene (1928)
Virginia legislature passed law stating that infected cedar trees should be cut
down. Plaintiffs were ordered to cut down a large number of ornamental
red cedar trees, due to the threat to nearby apple orchards.
The State did not exceed constitutional powers by deciding on the
destruction of one class of property in order to save another class, which is
of greater value to the public.
This was not an actual taking
o Euclid v. Ambler Realty Co.
The Court upheld zoning laws.
Not a regulatory taking
o Penn Central Trans. V. NY (1976)
The Court applied regulatory zoning analysis to zoning ordinances
Three-Part Test to determine if zoning is a taking:
1) What is economic impact of regulation?
2) What is the extent to which it interferes with investment-
backed expectations?
3) What is the character of the governmental action?
o Nuisance – powerful interests
o Aesthetics – lesser interests
o Lucas v. SC Coastal Council (1992)
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People have certain natural rights that are not explicitly in the Constitution. Those liberties
are protected under the Due Process Clauses of the 5th and 14th Amendment
Per Ross: Idea is that government cannot deprive citizens of their fundamental rights
without a legitimate purpose or by means that are not rationally related to that legitimate
purpose, then the government has deprived them of their liberty of property without due
process of law.
Rationale Basis Level of Review
14th Amendment – “[N]or shall any state deprive any person of life, liberty, or property,
without due process of law.”
5th Amendment – “No person shall be deprived …”
Two Separate Time Periods
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o Pre-1937 Period
Generally called “Economic Substantive Due Process”
Before 1937, SC held that economic regulatory legislation was
unconstitutional because it deprived businesses and employees of their
property without due process of law because the legislation was not
sufficiently necessary or rational
Court was who decided what was fair and rational
o Next Semester, Post-1937 Period
Lochner v. New York (1905)
o New York’s Bake Shop Act prohibited bakery employees from working more than 60
hours a week or ten hours per day.
o Supreme Court held that the Back Shop Act was unconstitutional violation of due
process. This violated the liberties of the employer and employees.
o Violation of 14th Amendment because it was a violation of Liberty of Contract
o Rule: Law that unduly restricts liberty of contract constitutes a violation of
Due Process.
There was no reasonable grounds in which it could be inferred that the State
was impeding a contract based on a legitimate exercise of police power.
o Court does not talk about Contract Clause
Holden v. Hardy (1896)
o 9 years before Lochner
o SC had sustained constitutionality of a Utah statute that limited the number of hours
miners could work
o Distinction from Lochner – more protection on safety of miners (which is very
dangerous), whereas in Lochner, they was more concerned with the safety of the
public than the baker (which was less dangerous)
Lochner Era
o Most people believed that this time was just the Supreme Court knocking down
State economic regulatory legislation. However….
o Between 1890-1937, the state and federal courts did sustain economic regulatory
legislation.
Muller v. Oregon (1908)
o Supreme Court sustained the constitutionality of an Oregon law that limited the
number of hours that women could work
o Idea was that women needed special protection and were more vulnerable to
disease. Since women gave birth to children, they needed to be in particularly good
health for the benefit of the baby.
Morehead v. Tipaldo (1936)
o Supreme Court struck down a statute involving minimum wages for workers in New
York.
o Interfered with right of employer and employee to negotiate time and rate at which
they work (liberty of contract)
West Cost Hotel v. Parrish (1937)
o Supreme Court sustained constitutionality of a Washington State law that was
virtually identical to Morehead
o This was the DEATH of economic substantive due process
Morehead was the last case that Supreme Court struck down a statute based
on economic substantive due process
o Called the Judicial Revolution of 1937
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Procedural Due Process is not concerned with content of legislation, but more with
the means by which the government goes about enforcing it. (NEED TO BE ABLE TO
DISTINGUISH FROM SUBSTANTIE DUE PROCESS FOR EXAM)
2 Basic Questions in Procedural Due Process Cases
o 1) Is there any property?
Cannot be deprived of Due Process without violation of property interest
o 2) If there is property interest, what procedures need to be undertaken for
that person to be deprived of that property?
Right to Notice
Right to be Represented by Counsel
Right to present witnesses
Right to have rules of evidence
Rule to a written record
Right of a written transcript
Right of appeal
These are given in every criminal cases, and also provided in many
administrative context, but the Court struggled with how many of these
rights should be given in each administrative context.
Goldberg v. Kelly (1970) (welfare) – pre-termination hearing
o For welfare benefits, one has a right to a hearing BEFORE welfare benefits were cut
off
Matthews v. Eldridge (1976) (disability) – no pre-termination hearing
o Court said there is no pre-termination hearing before disability benefits are cut off
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o Difference from Goldberg – person who lives on welfare desperately need welfare
benefits to eat, but if you are on disability you probably have other assets
This is important because state governments cannot afford to give every person the full
benefits of all those rights.
Fuentes v. Shevin (1969) (repossession) – pre-repossession hearing
o Does a finance company have to give a person a right to a hearing when they are
repossessing consumer goods? Yes, they do
o They must be able to be heard before it is taken away
Sniadaoh (1969) (wage garnishment) – no pre-wage garnishment hearing
o There is NOT a right to a hearing before wage garnishment