1 Table of Contents Chapter 1 - The Supreme Courts Authority and Role General Notes and Issues SCOTUS Review

of Congressional and Presidential Actions Marbury v. Madison SCOTUS Review State Court Actions Martin v. Hunters Lessee Cohens v. Virginia Cooper v. Aaron Dred Scott v. Sandford Dickerson v. United States Justiciability Doctrines Advisory Opinions Standing Lujan v. Defenders of Wildlife Massachusetts v. Environmental Protection Agency Allen v. Wright Ripeness United Public Workers v. Mitchell Laird v. Tatum Mootness Roe v. Wade Political Questions Baker v. Carr Powell v. McCormack Goldwater v. Carter Nixon v. United States Chapter 2 - The Nation and the States in the Federal System The Scope of Powers Granted to Congress McCulloch v. Maryland U.S. Term Limits, Inc. v. Thornton Chapter 3 - The Commerce Power and Its Federalism-Based Limits The Commerce Power Before the New Deal Gibbons v. Ogden United States v. E.C. Knight Co (The Sugar Trust Case) Houston E. & W. T. RY. Co. v. United States (The Shreveport rate case) Swift & Co. v. United States Champion v. Ames (The Lottery case) Hipolite Egg Co. v. United States Hoke v. United States Hammer v. Dagenhart (The Child Labor Case) The Commerce Power After the New Deal NLRB v. Jones & Laughlin Steel Corp. United States v. Darby 4 4 5 5 6 6 6 6 6 6 7 7 7 8 8 9 9 9 9 9 9 9 10 10 10 10 11 11 11 11 12 12 12 12 12 13 13 13 13 13 13 13 14

2 Wickard v. Filburn 14 Heart of Atlanta Motel v. United States 14 Katzenbac v. McClung 14 The Rehnquist Courts Revival of Internal Limits on the Commerce Power 14 United States v. Lopez 14 United States v. Morrison 15 Gonzales v. Raich 15 External Limits on the Commerce Power: Federalism and the Tenth and Eleventh Amendments Coyle v. Oklahoma 16 United States v. California 16 New York v. United States 16 United League of Cities v. Usery 16 Garcia v. San Antonio Metropolitan Transit Authority 16 South Carolina v. Baker 16 New York v. United States 16 Printz v. United States 17 Seminole Tribe of Florida v. Florida 17 Alden v. Maine 17 Federal Maritime Commission v. South Carolina State Ports Authority 17 Chapter 4 - Other National Powers: Taxing, Spending, War, Treaties, and Foreign Affairs The Taxing Power as a Regulatory Device 18 The Child Labor Tax Case [Bailey v. Drexel Furniture] 18 United States v. Constantine 18 Sonzinsky v. United States 18 United States v. Kahringer 18 The Spending Power as a Regulatory Device 18 United States v. Butler 18 South Dakota v. Dole 18 The War and Treaty Powers and Implied Power Over Foreign Affairs 19 Woods v. Cloyd W. Miller Co. 19 Missouri v. Holland 19 Reid v. Covert 19 Zschernig v. Miller 19 Chapter 5 - Federal Limits on State Regulation of Interstate Commerce 19 The Dormant Commerce Clause 19 Gibbons v. Ogden 20 Willson v. Black-Bird Creek Marsh Co. 20 Cooley v. Board of Wardens 20 Philadelphia v. New Jersey 20 Maine v. Taylor 20 Dean Milk Co. v. Madison 20 C&A Carbone, Inc. v. Clarkstown 20 United Haulers 20 South-Central Timber Development, Inc. v. Wunnicke 20 H.P. Hood & Sons v. Du Mond 21

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3 Hunt v. Washington State Apple Advertising Commission Bacchus Imports, LTD. v. Dias Exxon Corp. v. Governor of Maryland Minnesota v. Clover Leaf Creamery Co. Pike v. Bruce Church, Inc South Carolina State Highway Dept. v. Barnwell Brothers Southern Pacific Co. v. Arizona Bibb v. Navajo Freight Lines Kassel v. Consolidated Freightways Corp. Lewis v. BT Investment Managers, Inc. CTA Corp. v. Dynamics Corp. of America The Interstate Privileges and Immunities Clause of Article IV United Building and Construction Trades Council v. Mayor of Camden Supreme Court of New Hampshire v. Piper Congressional Ordering of Federal-State Relationships by Preemption and Consent Rice v. Santa Fe Elevator Corp. Florida Line and Avocado Growers, Inc. V. Paul Pacific Gas and Electric Co. v. State Energy Commission Chapter 6 - Separation of Powers Executive Violation of the Separation of Powers Youngstown Sheet & Tube Co. v. Sawyer (The steel seizure case) Dames & Moore v. Regan Executive Discretion in Times of War or Terror Ex Parte Quirin Rasul v. Bush Hamdi v. Rumsfeld Rumsfeld v. Padilla Hamdan v. Rumsfeld Congressional Violation of the Separation of Powers INS v. Chadha Clinton v. New York Executive Privileges and Immunities Nixon v. Fitzgerald United States v. Nixon Clinton v. Jones 21 21 21 21 21 21 21 21 21 22 22 22 22 22 22 22 22 22 23 23 23 23 23 23 24 24 24 24 24 24 24 25 25 25 25

Chapter 1 - The Supreme Courts Authority and Role

General Notes and Issues
Question of the Tyranny of the Majority - From a constitutional point of view, this means that certain forms of majority rule - too distant, too interested, too biased - lead to tyranny. This constitution has a structural federal-state and separation of powers between executive and legislative features to balance out different majorities to reduce the chance of tyranny. - If there is no violation of constitutional principles, there is no tyranny of the majority. - Madisons concerns: mob rule, rogue democracy by factions that are not for the common good, remote majority in charger Three parts of a Modern Constitution: 1. Structure of government - how laws are made and powers distributed 2. Guaranteeing and preserving the rule of law 3. Guaranteeing fundamental rights U.S. Constitutions Unique Characteristics - Old and largely unchanged - Interpreted as being the law, not merely a blueprint for government - Two Major Changes Since Ratification - 27 Amendments - The unwritten constitution - E.G. Abortion rights Constitutionalism Main principle - all human beings are created equal 1. Limitations on the powers of government Separation of powers, both horizontal and vertical, and checks and balances Madison thought that this would diminish the possibility of tyranny of the majority 2. Adherence to the rule of law Rule is by institutions, not individuals - no person is above the law People are given notice of what the law is and what their rights and responsibilities are 3. Protection of fundamental rights Cannons of Constitutional Interpretation How do we make arguments about constitutional interpretation? 1. Text The most basic and simplest argument The text itself can be unclear; usually understood as how it would be understood by the public 2. Framers Intent Provides stability - what the framers intended doesnot change Framers are viewed as quasi-devine Specific or general intent? Framers could not foresee many scientific developments and the attendant issues Original Meaning More legitimate than the interpretation of an unelected, unaccountable supreme court Based on what contemporaries would have understood the text to mean Arguments against: Framers themselves had no democratic legitimacy (but their ideas were embraced by the public which ratified) What about the ratifiers? [Democratic argument (against this) - the ratifiers had democratic legitimacy] No authoritative, contemporaneous account There were divisions among the framers 3. Constitutional Theory Views the constitution as a unified document and interprets each provision in the context of the entire constitution 4. Precedent Common law system - follow how constitution was previously interpreted 5. Value Results in the world of interpretation

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Schools of Constitutional Interpretation - Interpretivists - consider 1, 2, and 3 only - Non-interpretivists - consider all of the above Article III Established Supreme Court Granted congress right to create lower courts as a compromise between those who wanted lower federal courts and those who did not these were created by the first Congress Judicial autonomy was ensured by appointing them for life - 42 states have elected judges Federal courts have two types of functions 1. Enforcing the powers of the federal government - deciding all cases arising under federal laws, treaties and the constitution, hearing all cases in which the Fed. Govt, foreign ambassadors or a foreign country or citizens are parties 2. Resolving disputes between two or more states, or a state and citizens of another state Supreme courts jurisdiction - appellate as to law and fact with exceptions made by congress, and original when a state is a party or those affecting ambassadors

SCOTUS Review of Congressional and Presidential Actions

Marbury v. Madison SCOTUS, 1803, Marshall Established the authority for the judiciary to review the constitutionality of executive and legislative acts, but limited the power of the Judiciary Act of 1792, which was unconstitutionally broad Facts During his lame duck session, Adams passed an act creating 42 justices of peace. His nominations were confirmed the day prior to Jefferson taking office, but a few of the commissions were not delivered prior to Jeffersons inauguration. Jefferson instructed his secretary of state, Madison, to withhold the undelivered commissions. Marbury was one of these justices of peace and sued seeking a writ of mandamus to compel Madison to deliver the commission to Marbury. Issues and Holdings SCOTUS cannot hear the case as a matter of original jurisdiction, Judiciary Act of 1789 provision is unconstitutional because SCOTUSs original jurisdiction is limited to that enumerated in the constitution - SCOTUS has the power to declare it unconstitutional and refuse to follow it 1. Does Marbury have a right to the commission? YES He does because all appropriate procedures were followed - the appointment is made when the commission is signed by the president and the seal is affixed - delivery is not necessary Marbury has a constitutional right here because his right arises directly under the constitution 2. Do the laws afford Marbury a remedy? YES The US govt is one of laws, not of men - the president is not above the law All constitutional rights must be enforceable otherwise the constitution becomes optional The court can grant a remedy against the executive when there is a specific duty to a specific person, but not when it is political matter under the presidents discretion 3. Can SCOTUS issue this remedy and is mandamus an appropriate remedy? Judicial review is appropriate only for ministerial acts (must be performed), not for political acts in which the president can exercise discretion. This court could reach this question except for the jurisdictional issue. Problems 1. Marshall should have recused himself because he was the secretary of state under Adams and had personal involvement in the matter 2. The remainder of the opinion is unnecessary given the purported lack of jurisdiction - possibly Marshall did this because he knew that Jefferson would ignore the opinion had he ruled in favor of Marbury outright 3. Alternative reading of the Judiciary Act granting SCOTUS appellate jurisdiction over the writs of mandamus is more plausible than Marshalls reading, or that court can issue writs of mandamus on issues it otherwise has jurisdiction - either of these readings would have made the statute constitutional and thus should have been preferred 4. Article III list of jurisdiction could be read as the floor - allowing Congress to enlarge it - rather than as a ceiling, as Marshall read it 5. Marshall finds it nearly self-evident that it is for SCOTUS to decide constitutionality of laws - yet this is not written in the constitution and not automatically necessary, other countries have different systems Notes Supreme court interpretation of the constitution is not necessary, other countries have different systems An issue is res judicata only between the same parties - different parties can try the same issue again. Other countries decide issues erge omnis - against all

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Some have drawn the distinction between the constitution and SCOTUSs interpretation thereof; everyone is bound by the former but not necessarily by the latter

SCOTUS Review State Court Actions

Judiciary Act of 1789 (25) provided that SCOTUS can review state court judgments Martin v. Hunters Lessee SCOTUS, 1816 Established the constitutional basis for SCOTUS review of State court actions (Marshall not involved) Facts Two conflicting claims to land - Martin based on inheritance from British citizen and Hunter from grant from Virginia. Hunter claimed that Virginia took the land prior to the treaty that allowed British citizens to own land in the US. Virginia court ruled in favor of Hunter and its own authority to have taken the land. SCOTUS reversed, stating that the treaty controlled. The Virginia Court of Appeals declared that SCOTUS could not review its decisions Issue and Holding Who has a right to interpret federal law? Can SCOTUS review state court judgments about federal law? Yes - constitution assumes and permits review of state decisions, congress granted SCOTUS this power Also, such review is necessary because state prejudices might influence judgments Lastly, such review is necessary to insure uniformity in the application of federal law Cohens v. Virginia SCOTUS, 1821, Marshall SCOTUSs right to interpret constitution is exclusive to it Facts Two brothers were convicted in Virginia for selling DC lottery tickets in Virginia, in violation of Virginia law Issues and Holding Cohens argued that they cannot be prosecuted for selling lottery tickets authorized by congress because federal (DC) law is supreme over state (Virginia) law - this argument failed. Virginia argued that SCOTUS cannot review state cases, esp. criminal cases, or cases in which a state is a party. Marshall reaffirmed constitutionality of SCOTUS review of state court decisions authorized by 25 of the Judiciary Act of 1789. Reasoned that state courts could not be trusted to protect federal rights because in many states, they were not independent of the legislature, and the constitution specifically grants SCOTUS jurisdiction in cases where the state is a party Different from Martin b/c Martin involved two private parties while Cohens involved a private party and a state Cooper v. Aaron SCOTUS, 1958 States are bound by SCOTUSs interpretation of the constitution Facts Federal district court ordered desegregation of Little Rock, AK public schools based on SCOTUS decision in Brown v. Board of Ed (Kansas). State disobeyed out of concern about violence and claim that it was not bound to comply with such decrees. Broader view of Marbury v. Madison Issues and Holding States are bound by SCOTUSs interpretation of the constitution. Each school district does not have to re-litigate the same issue. Dred Scott v. Sandford SCOTUS, 1857 Scott argued that if he was taken by his master to a federal territory, he became emancipated SCOTUS said since he was slave, he was not a citizen and could not sue. Lincoln admitted that he was bound by this decision but sought to limit it to the specific parties only - this decision does not guide or create policy of the other branches Dickerson v. United States SCOTUS, 2000 SCOTUS decided Miranda v Arizona, interpreting the 5th Amendment and creating Miranda rights. Congress tried to modify these rights by statute. Because Miranda is a constitutional decision, Congress cannot modify it by statute. Scalia dissented - Miranda protects a constitutional right but is not the constitutional rights itself, therefore, Congress can change it.

7 Justiciability Doctrines
-- Limitations on the federal judicial power Constitutional Requirements: - Based on case or controversy requirement in Article III, 2 - Cannot be changed by Congress Prudential Requirements: - Based on Courts decision that wise policy militates against judicial review Policy Underlying Justiciability Requirements: - Enforce separation of powers - Conserve limited judicial resources, including judicial credibility and political capital - Improve decision making - adversarial system depends on interested parties to present evidence - Promotes fairness by preventing rights of absent parties from being adjudicated Ongoing Controversies: - Balance between self imposed limitations on power and the need for judicial review - Predictability of rules - should they be predictable or is more discretion appropriate?

Advisory Opinions
Advisory opinions are prohibited by Article IIIs case or controversy requirement Justifications for Prohibiting Advisory Opinions: - Separation of powers between judiciary and legislature - Conservation of judicial resources away from matters that might not even pass - Concrete questions presented in adversary situations are better than hypothetical questions Criteria to Avoid Being an Advisory Opinion: - There must be an actual dispute between adverse parties - G. Washington, through SoS Jefferson asked the courts opinion on treaty of neutrality during the war between England and France, court declined to provide opinion, stating that it would violate separation of powers - If parties collude to file a suit, federal courts must dismiss it - The federal court decision in the claimants favor is substantially likely to result in some change or effect on the claimant - This is not the case when the executive branch has the opportunity to overrule or disregard the decision

Standing
- The determination of whether a specific person is the proper party to bring a matter to the court for adjudication - whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. - Jurisdictional - the court can raise it of its own accord and it can be brought up at any point in the proceedings Values Served by Limiting Standing: - Promoted separation of powers by restricting the availability of judicial review (but not too much) - Prevents a flood of litigation by those who have only an ideological interest in the outcome - Conserves courts political capital by keeping it away from purely ideological fights - Improves judicial decision making because there is a specific dispute and adverse parties with an interest in litigating - Fairness Requirements for Standing: Constitutionally derived requirements: - (Injury) The plaintiff suffered or imminently will suffer an injury Requirements for the injury: - The plaintiffs complaint must specifically allege that he or she has personally suffered an injury (ideological interest alone is not enough) - This is done at the pleading stage so the merits are not arguable - (Causation) The injury is fairly traceable to the defendants conduct - (Redressability) A favorable federal court decision is likely to redress the injury Test for causation and redressability together:

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- Did the defendant cause the harm such that it can be concluded that limiting the defendant will remedy the injury? Prudentially derived requirements: - (Third party standing) A party may assert only his or her own rights and cannot raise the claims of third parties not before the court - Exceptions: - Third party is unlikely to be able to sue - Close relationship between third party and plaintiff - Third party sues for violation of First Amendment rights of another - Organization suing on behalf of at least one member who did suffer an injury - (Generalized grievances) A plaintiff may not sue as a taxpayer who shares a grievance equally in common with all other taxpayers (does not apply if the harm is concrete, even if it is widely shared) - (Suits outside a laws zone of interest) A party must raise a claim within the zone of interests protected by the statute in question Lujan v. Defenders of Wildlife Standing: personal injury requirement SCOTUS, 1992, Scalia Facts: - Lujan is the secretary of the interior. He draws up a list of endangered species and consults with federal agencies to ensure that they are not funding projects that harm these endangered species. - Lujan first decides that this applies to foreign and domestic projects, then changes his mind and decides that it applies only to domestic projects - Two members of Defenders of Wildlife are discussed specifically: - A group has standing if any its members have standing - Joyce Kellys injury is not being able to see crocodiles on a possible future trip to Egypt - Amy Skilbreds injury is not being able to see elephants and leopards on a possible future trip to Sri Lanka - I dont know when. There is a civil war going on right now. Issue and Holding: - Does Defenders of Wildlife have standing? - No - There is no injury because no member has specific plans to go see these animals - There is insufficient causation because they cannot show that the funding is the legal cause of the extinction - There is insufficient remedy because a favorable ruling will not guarantee anything - There is a statutory right to sue here - congress gave the right to sue to every american citizen (this distributes the cost of oversight). Here, the plaintiffs did not identify the injury, which they still have to do even with a statutory right to sue. Kennedys Concurrence Congress has the power to define injuries but needs to define the injury in relation to the violation - there needs to be a more concrete connection Stevens Concurrence Different reading of statute granting right to sue Blackmun and OConnor Dissent - There is a genuine issue of material fact as to their injury and the redressability - The court is too broad in rejecting standing for procedural injuries Massachusetts v. Environmental Protection Agency Standing: Causation and redressability SCOTUS, 2007, Stevens Facts: - Case brought by attorney generals of several states, including Mass. Alleging that the EPA is not adequately regulating emissions of CO2 from vehicles under the Clean Air Act. - Their injury is rising coastlines Issue and Holding: - Is there sufficient causality and redressability for standing? - The erosion of coast lines is an injury to Mass. - they have a legal right to not have their coast lines eroded and EPA has a legal obligation to regulate CO2 - There is causation and redressability because even a marginal change could make a difference. - Majority holds that the causal link between these is sufficient - even if it only caused a small amount of erosion and a positive outcome would only result in a small change, that is enough Roberts Dissent: - This grievance is better addressed by congress and the executive branch

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Allen v. Wright Standing: causation SCOTUS, 1984, OConnor Facts: - Parents of black children attending public schools asserted the IRS failed to deny tax exempt status to racially discriminatory private schools in their district Issue and Holding: - Do the parents have standing to sue? - No - there is insufficient causation - the injury to the parents in to fairly traceable to the government - Causation and redressability are separate requirements and both must be met for standing Standing: Prudentially derived requirements: See textbook, p 44 for cases Only time taxpayer standing is permitted is for a challenge based on the establishment clause.

Ripeness
Separates those matters that are premature for review, because the injury is speculative and may never occur. The inquiry focuses on whether the injury has as yet occurred. When may a party seek pre-enforcement review of a statute or regulation? It is not necessarily fair to require parties to break a law and risk criminal punishment in order to challenge it. Criteria for Determining Ripeness: - The hardship of denying review - if denying review would result in a substantial hardship to the plaintiff, review will generally be granted (and vice versa) - The fitness of the issues and record for judicial review - could waiting for an actual prosecution present a significant gain? United Public Workers v. Mitchell SCOTUS, 1947 - Federal executive branch employees sought to challenge the Hatch Act of 1940, which prohibited them from engaging in active part in political management or campaigns - The court found this to be premature because they had not actually engaged in such illegal behavior, even though they provided detailed affidavits about the activities they wanted to engage in - This decision was later essentially overturned - it is unfair to force plaintiffs to violate the statute and risk losing their jobs in order to challenge it Laird v. Tatum SCOTUS, 1972 - Plaintiffs sued because of allegedly unlawful surveillance of political activity by the U.S. Army. - The majority held that the claim was based on their fear of future, punitive action and therefore did not present a case for resolution by the courts

Mootness
Mootness is the requirement that - the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness). Any change in the facts that ends the controversy renders a case moot. Based on the same policy considerations as advisory opinions and the case or controversy requirement in Article III. Exceptions: - A party voluntarily ceases the allegedly improper behavior but is free to return to it at any time. - Pregnancy and elections - the case would take longer to litigate than the action at issue would take to complete Roe v. Wade - Roes suit to challenge Texass abortion laws was not decided until she was no longer pregnant, rendering the question technically moot. - The court declined to dismiss the case as moot because it would not have been possible to adjudicate it within the natural human gestation period.

Political Questions

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The political question doctrine refers to subject matter that the court deems inappropriate for judicial review and prefers to leave to the political process. - The Court has not announced whether it views this as a constitutional or prudential requirement - The name is a misnomer - not all political questions fall under this doctrine - The doctrine has changed a lot over the course of history - Marbury v. Madison defined political questions very narrowly - where the president has ultimate discretion (e.g. Vetoing a bill) and no individual rights are at stake - Concerns (Baker criteria for determining whether it is a political question): (see Chm. P 131) - Issue is textually committed to another branch - Unmanageable judicial standards - Prudential restrictions against over-stepping bounds and stepping on the toes of the other branches - e.g. Questioning a political decision already made, embarrassment of varying pronouncements by different departments on one question - Chemerinsky criticism of Baker criteria: - Constitution does not mention judicial review at all, or judicially manageable standards - It is difficult or impossible to apply these criteria - Areas where SCOTUS actually invoked the political question doctrine: - Republican form of government clause and electoral process, foreign affairs, Congresss ability to regulate its internal processes, the process for ratifying constitutional amendments, instances where the federal court cannot shape effective equitable relief, and the impeachment process, regulating the military Baker v. Carr Political Question: Apportionment SCOTUS, 1962, Brennan Facts: - Voters in Tennessee sued for an injunction preventing further elections for the Tennessee general assembly under apportionment drawn in 1901. They claimed that because there had been substantial redistribution of the population since hten, their equal protection rights were being violated by the debasement of their votes. Issue and Holding: - Is this challenge to apportionment by a state a political question? - No. - Political question cases arise from the relationship between the federal judiciary and the other federal branches - Congress and the Executive - because of the separation of powers. This is not the same with the states. - Protection of a political right does not necessarily make this a political question. - Case was remanded for the consideration of the substantive issue - whether the states activity is consistent with the Federal Constitution. Frankfurters Dissent: - This is a political question because their complaint is that their representatives are not sufficiently numerous or powerful and because the constitutional guarantee of a republican form of government in the states is not enforceable in the courts. Powell v. McCormack Political question: Congressional activity SCOTUS, 1969 Facts: - House of Representatives refused to seat Adam Clayton Powell, Jr. because a House committee found that he had wrongfully diverted House funds for his own use and made false expenditure reports. - Powell argued that all the requirements are listed in Article I, 2, cl. 2 - age, citizenship and residence. Issue and Holding: - Is the language each House shall be the Judge of the Qualifications of its own Members made this a political question unreviewable by the courts? - No - the Judiciary is the ultimate interpreter of the constitution and interprets this section to mean only that the House can judge the expressly stated requirements Goldwater v. Carter Political question: foreign affairs SCOTUS, 1979 Issue and Holding: - Can the President abrogate a treaty unilaterally (without the Senate, which must approve treaties)? - This is a political question because it involves the authority of the President and because it is a dispute between co-equal branches of government Nixon v. United States Political Question: challenges to impeachment actions

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Facts: - Walter Nixon, district court judge, was convicted of making false statements before a federal grand jury. - Senate held impeachment hearings in committee, then presented findings to full body, which convicted and removed him from office. - Nixon sued, stating that the full senate should have been involved in the impeachment proceedings. Issue and Holding: - Can the courts review the Senates trying of impeachments? - No - this would be inconsistent with checks and balances, as impeachment is the only check on the judicial branch by the legislature. Senate has exclusive authority to try impeachments. SCOTUS, 1993

Chapter 2 - The Nation and the States in the Federal System

The Scope of Powers Granted to Congress
The powers of congress to legislate are specifically enumerated in Article 1, 8. The necessary and proper clause enlarges these powers. How to evaluate the constitutionality of an act of Congress: 1. Does Congress have the authority under the Constitution to legislate in this area? 2. If so, does the law violate another constitutional provision or doctrine? How to evaluate the constitutionality of a state law: 1. Does the law violate the Constitution? McCulloch v. Maryland Necessary and Proper clause SCOTUS, 1819, Marshall Facts: - Maryland sought to enforce its law that banks operating in the state but not chartered by it must pay a tax - against the Bank of the United States and its cashier, McCulloch, who refused to pay the tax. Issues and Holding: - Can Congress incorporate a bank under the implied powers? - Does the supremacy of the Federal government over the states mean that a federally chartered bank is immune from taxation by the states? - Yes and yes - Any means of executing an enumerated power is incidental to it and therefore constitutional - Constitution cannot list every single thing Congress can do without becoming incomprehensible - Necessary and proper clause enlarges the enumerated powers - as long as the ends are constitutional - Necessary is given a broad meaning - useful or desirable, not essential - Creation of a bank is necessary and proper to the fiscal management of the federal government - The federal government is supreme over the states b/c it is a creation of the whole people, and a state is a creation of only a part of the people, therefore it cannot be supreme over the federal government - The power to tax is the power to control, and the states cannot tax/control a federally chartered bank U.S. Term Limits, Inc. v. Thornton Constitutionality of State Law SCOTUS, 1995, Stevens Facts: - Arkansas adopted a constitutional amendment that no candidates name can appear on the ballot if he had already served three terms in the House of Representatives or two terms in the Senate - A citizen challenged the amendment Issue and Holding: - May a state impose qualifications for membership in Congress in addition to those in the Federal Constitution? - No - the qualifications listed in the Constitution are exclusive - The tenth amendment did not reserve the power to add qualifications to the states because it could only have reserved powers that the states already had at the time of the enactment - and the states did not have this power because Congress did not exist! Kennedys Concurrence - Federalism means that people have two political capacities - within the states and within the federal government. The state governments cannot interfere with the federal government. Thomass Dissent

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- The constitution does not address the issue of states establishing qualifications of those who represent them, therefore it is not barred by the constitution or reserved to the Federal government - The qualifications clause establishes minimum qualifications only

Chapter 3 - The Commerce Power and Its Federalism-Based Limits

Article I, 8 of the constitution states: The Congress shall have the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. Main Questions: 1. What is commerce? 2. What does among the several states mean? 3. Does the Tenth Amendment limit Congresss commerce power? Historical Overview: The commerce power was initially interpreted broadly by the court in Gibbons v. Ogden, then a much more narrow view in the late nineteenth century. In 1937, the commerce power was again broadened and remained so until 1995, during which time not one federal law was declared unconstitutional as exceeding the scope of the commerce power. After United States v. Lopez in 1995, the commerce power was again curtailed.

The Commerce Power Before the New Deal

The decisions in this era are very pro- laissez-faire economics and anti-regulation. They emphasize the distinction between commerce and everything else, apparently to keep the commerce clause pretty narrow. The distinction between direct and indirect effects on commerce was also emphasized. Gibbons v. Ogden First interpretation of the commerce clause - broad! SCOTUS, 1824, Marshall Facts: - New York Legislature granted a monopoly to Fulton and Livingston to operate steamboats in New York waters. They licensed Ogden to operate a ferry between NYC and Elizabethtown in NJ. - Gibbons operated a competing ferry, licensed under federal law as vessels in the coasting trade. Issue and Holding: - SCOTUS held that the federal law preempted the New York law and that the New York monopoly was an impermissible restriction of interstate commerce. - What is commerce? - Commerce undoubtedly is traffic, but it is something more: it is intercourse. - Commerce is more than the movement of commodities - includes all phases of business - What is among the states? - Comprehensive as the word among is, it may very properly be restricted to that commerce which concerns more States than one The completely internal commerce of a State, then may be considered as reserved for the State itself. - However, Congress can regulate intra state commerce if it impacts interstate commerce - Does State sovereignty limit Congressional power? - Congresss power is supreme in this area - it has complete authority to regulate all commerce among the states Narrow but inconsistent interpretation United States v. E.C. Knight Co (The Sugar Trust Case) Manufacturing is not commerce (Q1) SCOTUS, 1895, Fuller The court affirmed the dismissal of a governmental civil action under the Sherman Act to prevent consolidation of five sugar refineries, based on the view that Congress could not constitutionally reach a monopoly in manufacture under the commerce clause. Harlan Dissent: A monopoly in manufacture of articles to be sold in interstate commerce affects the people of all the states. Houston E. & W. T. RY. Co. v. United States (The Shreveport rate case) Substantial economic effects test (Q2) SCOTUS, 1914, Hughes Railroad had a cheaper rate from a Texas port to a Texas city than from a Louisiana port to the same Texas city, even though the distance was the same, presumably to encourage shipping to the Texas port. The court sustained the authority of Congress to regulate

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this intra state rate because it discriminated against interstate commerce. Because the carrier is interstate, its activities can be regulated as having substantial relation to interstate traffic Swift & Co. v. United States The stream of commerce test (Q2) SCOTUS, 1905, Holmes Because cattle are purchased with the expectation that they will enter the stream of commerce, the meat dealers can be regulated by Congress. Champion v. Ames (The Lottery case) Police regulation (Q3) SCOTUS, 1903, Harlan The court upheld the Federal Lottery Act, which prohibited importing, mailing or interstate transporting of lottery tickets. Congresss motivation in doing so - to protect the morals of the public - does not matter. Fullers Dissent Police powers belong to the states and not Congress. This is a violation of the Tenth Amendment. Hipolite Egg Co. v. United States SCOTUS, 1911, McKenna (Q3) The purpose of the Pure Food and Drug Act is to prevent the use of adulterated foods, not merely their transport. The seizure of eggs that had passed out of interstate commerce and were within the state of their destination was therefore proper. Hoke v. United States SCOTUS, 1913, McKenna (Q3) The court upheld the Mann Act prohibiting the transportation of women in interstate commerce for immoral purposes. Congress can use the commerce clause to do whatever it wants - even police powers, as long as it is interstate commerce. Hammer v. Dagenhart (The Child Labor Case) SCOTUS, 1918, Day (Q3) Facts: - Congress passed an act that barred products of child labor from being transported across state lines. Issue and Holding: - Does the aim of the act matter under the commerce power? - The Tenth Amendment reserved control over some activities - mining, manufacturing - to the states, and Congress cannot regulate them, even under the guise of the commerce power. - The court rejected the argument that this regulation was needed to prevent unfair competition among states who had such restrictions and those that did not. Holmess Dissent: - The act is within the powers granted to Congress and just because Congress aims to accomplish something else by enacting it does not make it unconstitutional.

The Commerce Power After the New Deal

Because the Court kept shooting down New Deal programs, Roosevelt proposed a court packing scheme. It didnt go through because one justice (Roberts) switched sides to help the court change direction. The court redefined the commerce power very broadly. Nothing was struck down as exceeding the commerce power from 1937 to 1995. Broader Interpretation NLRB v. Jones & Laughlin Steel Corp. Abolished distinction between Commerce and Manufacturing SCOTUS, 1937, Hughes Facts: - Challenge to National Labor Relations Act, which created the NLRB to oversee the rights of employees to collectively bargain. J&L Steel was a national manufacturer and as such argued that Congress could not regulate it. Issue and Holding: - Can Congress regulate a manufacturer whose activity significantly impacts interstate commerce? - Yes - affecting commerce means burdening or obstructing and includes tending to lead to a labor dispute which could cripple the interstate operations of the company.

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McReynoldss Dissent: - This dispute is about the discharge of 10 men out of 10,000 at that factory, and this is way too small to affect interstate commerce United States v. Darby Also abolished distinction between Commerce and Manufacturing SCOTUS, 1941, Stone Facts: - The Fair Labor Standards Act set a minimum wage for goods to be shipped in interstate commerce. Darby was a lumber manufacturer who was charged with violating the act. He said the Act was inapplicable to his employees because they were in manufacturing. Issue and Holding: - May Congress establish and enforce minimum wage for manufacturers of goods for interstate commerce? - Court overruled Hammer v. Dagenhart and stated that Congress can regulate manufacture as long as its destined for interstate commerce Wickard v. Filburn Aggregation approach SCOTUS, 1942, Jackson Facts: - The Agriculture Adjustment Act of 1938 set quotas for amount of wheat farmers can grow. - Filburn grew more wheat than he was permitted and was fined. He sued, arguing that as the wheat was for home consumption on the farm, it was not interstate commerce and congress could not regulate it. Issue and Holding: - Can Congress regulate production (manufacture) that in itself is not intended for interstate commerce? - Although this particular production is not intended for interstate commerce, it has an effect on it (Filburn is not buying that wheat), and in aggregate of all similarly situated farmers, has a large effect on interstate commerce. It can therefore be regulated. Civil Rights Cases: - Congress was worried that the court would not uphold these laws under the 14th Amendment, but that it would pass muster under the broad reading of the commerce clause. Heart of Atlanta Motel v. United States (1964) Motel in Atlanta did not allow blacks. The Court upheld Title II of the Civil Rights Act under the Commerce clause. Now allowing blacks in motels impedes interstate travel and commerce. Congresss motivation in the regulation does not matter - as long as it falls under the Commerce clause, Congress can regulate it. Katzenbac v. McClung (1964) Restaurant did not serve blacks. The Court upheld Civil Rights Act under the commerce clause because this restaurant specifically sourced much of its meat from out of state and because restrictions on restaurant dining are bad for interstate business and travel.

The Rehnquist Courts Revival of Internal Limits on the Commerce Power

Three categories adopted in Lopez Congress can regulate: 1. Channels of interstate commerce 2. Instrumentalities of interstate commerce, and persons and things in interstate commerce 3. Those activities having a substantial relation to interstate commerce. These activities must themselves be economic in nature (U.S. v. Morrison). Significantly narrower interpretation of commerce power, but not as narrow as before the New Deal. United States v. Lopez Narrowed commerce clause, Adopted three categories SCOTUS, 1995, Rehnquist Facts: - Lopez was arrested and charged with violating the Gun-Free School Zones Act. Appealed on grounds that the act was unconstitutional as too broad an interpretation of the commerce clause. Issue and Holding: - Can Congress regulate non-economic activity that may impact commerce?

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- Adopted three part test, above. - Having a gun in a school zone does not have a substantial relation to interstate commerce - the relationship is too tangential and uncertain. United States v. Morrison Congress cannot regulate a non-economic activity, even if it has economic effects SCOTUS, 2000, Rehnquist Facts: - Congress passed a law permitting victims of gender based violence to seek civil damages - Plaintiff here sued football team members who had raped her while she was a freshman at Virginia Tech and got off with no criminal or administrative penalty. Issue and Holding: - Can Congress allow for a civil penalty for violent, non-economic crimes? - No. Even though the crime has economic effects, Congress can only regulate activity that is economic in nature (under the third prong of the test announced in Lopez) Souters Dissent: - There is considerable evidence of economic effect here, unlike in Lopez. Also, in Wickard, the court rejected the distinction between commercial and non commercial activity, which the court is reviving here. Breyers Dissent: - The distinction between economic and non-economic conduct is hard to apply and will lead to random and inconsistent results. Gonzales v. Raich Lopez and Morrison are limited to non-economic activity SCOTUS, 2005, Stevens Facts: - California, by statute, decriminalized medical marijuana. - Plaintiffs sought injunctive and declaratory relief to prohibit enforcement of federal statutes to the contrary. Issue and Holding: - Does the Commerce power allow Congress to regulate local cultivation and use of marijuana within a state, in compliance with a state law? - Yes. Similarly to Wickard, Congress can regulate purely local activities that are economic, and have a substantial effect on interstate commerce. Marijuana grown and consumed in CA affects the national market, which Congress sought to regulate. - This case is different from Lopez and Morrison because those cases involved inherently non-economic activities. Scalias Concurrence: - Congress can regulate this under the Necessary and Proper clause because it affects interstate commerce OConnors Dissent: - Allowing states to experiment with different regulatory schemes is a major benefit of the Federal system. This is non-commercial activity and congress should not regulate it without substantial proof that it makes an impact on commercial activity. Thomass Dissent: - At issue is marijuana that the plaintiffs have never bought or sold and has never crossed state lines. Congress has absolutely no basis on which to regulate this. The states have traditional police powers and they should not be encroached upon.

External Limits on the Commerce Power: Federalism and the Tenth and Eleventh Amendments
External limits are those that come from other parts of the constitution than the Commerce Clause itself. Tenth Amendment Two approaches - The Tenth Amendment as a tautology, all is reserved that has not been given away, which therefore means that it does not have any practical effect in limiting federal power. Congress can legislate as if there were no states at all within its sphere of power. - The Tenth Amendment is a key protection for state sovereignty in the sphere of state power against federal intrusion. A zone of activities is reserved for exclusive state control. Issues - How important is the protection of state sovereignty and federalism? - Should the judiciary protect state prerogatives or should this be left to the political process? - In elections, the focus is on the interests of the voters, not the interests of states The Values of Federalism - Decreasing the likelihood of federal tyranny

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- Framers thought that vertical separation of powers was a great check on power - those closer to the people could be more easily checked - Enhancing democratic rule by providing government that is closer to the people - No longer necessarily true - some states and municipalities are huge - Too much responsiveness to the people could lead to marginalization of minorities - Allowing states to be laboratories for new ideas - When is it worth experimenting and when is it best to have a national mandate? Constitutionally, there are only two levels of government - Federal and State. All municipal governments fall under state for constitutional purposes. Before 1937 Coyle v. Oklahoma SCOTUS, 1911 The Federal government cannot dictate to a state where it should have its capitol. This is mandated by the Tenth Amendment if the state has any sovereign power. 1937-1990s United States v. California SCOTUS, 1936 Introduces the idea that states can engage in activities that are not an exercise of sovereign power. Here, operating a railroad is NOT an exercise of sovereign power. The distinction between when something is and is not an exercise of sovereign power, though, is unclear. New York v. United States SCOTUS, 1946 A state run for profit business is not immune from federal taxation. The business in question was selling mineral water. Dissent argued that such an ownership and running of a business might be deemed necessary for the states economy - there are no clear lines. United League of Cities v. Usery SCOTUS, 1976 Declared the Fair Labor Standards Act (FLSA) as applied to states as employers is unconstitutional. State autonomy defense prevailed. Set up a standard of differentiating between government functions that are traditional, integral, or necessary and those that are not. Blackmun, the fifth vote, wrote a concurrence - saw the case as adopting a balancing approach such that environmental protection is still permitted. Dissent argues that these distinctions should be made by Congress and be left to the political process. Garcia v. San Antonio Metropolitan Transit Authority SCOTUS, 1985 Reversed United League of Cities - declared that FLSA does apply to states as employers. Court found the standard it established in National League of Cities was an unworkable test. The issue should be left to the political process. Suggested that judicial intervention might be possible where the political process has failed. Three dissenting opinions - Powell argued that the court can define the parameters of the Tenth Amendment just as it has with other ambiguous constitutional provisions. OConnor argued that the political process is inadequate protection of states rights. Rehnquist wrote that he disagreed and that the opposite would prevail over time. South Carolina v. Baker SCOTUS, 1988 Upheld removal tax exemption of state bonds form the federal income tax. Rejected the states argument that the state interests were impaired in the political process because it was not deprived of any right to participate in the process. New York v. United States Commandeering legislative power SCOTUS, 1992 Facts: - Federal Low-Level Radioactive Waste Police Amendments Act required states to provide of the disposal of nuclear waste. It included three provisions. The first two provided monetary incentives and access incentives for states to properly dispose of its nuclear states. The third provision, at issue here, is that if the state did not force companies in its borders to comply, it would take title to the waste and would therefore become liable for it. Issue and Holding: - May Congress direct or otherwise motivate states to regulate in a particular field or in a particular way?

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- Congress may provide motivation for the states to regulate as it wishes, so the first two provisions are constitutional. - But Congress CANNOT mandate that states regulate as it wishes - the states are not administrative units but are sovereign entities. - The either/or option given by congress (take title or regulate as Congress wishes) is unconstitutional - Congress cannot force either option on the states, therefore, it cannot make them choose between them. - This is an issue under the Tenth Amendment even though Congress had the option, under the Commerce clause, to regulate the nuclear waste producers directly. But they did not want to do this because it is expensive. Printz v. United States Commandeering executive power SCOTUS, 1997 Federal law required that state law enforcement officers conduct background checks on prospective handgun purchasers. The federal govt did not want to (or could not) administer this because of computer issues. The Court held the provision invalid because it found that the federal government cannot commandeer the executive power either. The Articles of Confederation failed because there was no cooperation between the federal and state branches. The justices disagree as to what the Federalist said - the dissent says that it was understood at the time that the federal government would use state officials for administration (e.g. Tax collectors), while the majority says that this does not imply that Congress could impose these responsibilities without consent of the States. Dissent - Stevens argued that Congress can impose affirmative obligations on the executive and judicial officers of state governments as well as on the people. Eleventh Amendment Eleventh Amendment was adopted specifically to overrule a Supreme Court decision, Chisholm v. Georgia, allowing a citizen of SC to sue Georgia for Revolutionary War debt owed. [Federal court only!] Two interpretations, currently in flux: (From Chemerisnky, might be out of date) - Eleventh Amendment restricts subject matter jurisdiction of the Federal courts and therefore is a complete bar on all suits against state governments (without consent). This view was promoted in Hans v. Louisiana (1890) and has not been overruled, though it is much criticized. - Eleventh Amendment restricts subject matter jurisdiction only in cases founded solely on diversity jurisdiction (without consent). Under this interpretation, all claims of state violations of the United States Constitution or federal laws could be heard in federal courts. Underlying Value Question: - How should state sovereignty be weighed against federal supremacy? Suits Barred by the Eleventh Amendment: - Indian tribes v. State governments - State citizen v. State - Admiralty suit v. State - State citizen v. State (in state court, federal question) (Alden v. Maine) Suits allowed: - United States v. State - State v. Another State (must be protecting own interest as sovereign, not specific citizens) Seminole Tribe of Florida v. Florida SCOTUS, 1996, Rehnquist Congress enacted statute mandating that states negotiate with Indian tribes for gambling contracts on Indian land. The statute authorized the tribe to sue in Federal court in order to compel performance. The court held that Congress may not abrogate a states sovereign immunity without the states consent. The state still cannot be sued! Alden v. Maine SCOTUS, 1999, Kennedy Extended Seminole Tribe of Florida to apply to suits in state courts. Federal Maritime Commission v. South Carolina State Ports Authority SCOTUS, 2002, Thomas Extended state sovereign immunity to federal agency proceedings. Ship that allowed gambling onboard was denied berth at a South Carolina port in violation of the federal Shipping Act.

Chapter 4 - Other National Powers: Taxing, Spending, War, Treaties, and Foreign Affairs
The Taxing Power as a Regulatory Device
Article I, 8 states: The Congress shall have power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States. The distinction between regulatory and revenue raising taxes was judicially created and no longer has any practical significance. The Child Labor Tax Case [Bailey v. Drexel Furniture] SCOTUS, 1922, Taft Congress passed a law requiring though employing child labor to pay a 10% tax. This was in response to SCOTUSs devision in Hammer v. Dagenhart. Question: What is the difference between a tax and a penalty and does the difference matter? This tax is unconstitutional because it is clearly regulatory. It is constitutional for a tax to have a regulatory effect if the primary motivation is raising revenue, but not vice versa. The court distinguished several cases - Veazie Bank v. Fenno (tax is unconstitutional b/c it was excessive, not regulatory of state matters), McCray v. United States (tax is unconstitutional b/c it was excessive, even though it had an incidental regulatory motive), and United States v. Doremus (the regulatory provisions were necessary to enforce the tax, which was constitutional). United States v. Constantine SCOTUS, 1935 A $1000 federal tax for violating a federal law was unconstitutional because it sought to prohibit and punish violations of state law. This is appropriate for a state police power, not Congress. Sonzinsky v. United States SCOTUS, 1937 A $200 annual tax on all firearms dealers was constitutional because it applied equally to all dealers as a tax, not a regulation, and is therefore within the national taxing power.

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United States v. Kahringer SCOTUS, 1953, Reed Congress required those accepting bets to register and be taxed. This seems unlikely to raise significant revenue. The court held that because there is some revenue raised, and registration is a reasonable provision to make the tax simpler to collect, it is constitutional. Dissent argues that the court should not ignore what is obviously a regulatory measure thinly cloaked as a tax.

The Spending Power as a Regulatory Device

This is viewed under a contract model - the grants and conditions are a contract between the federal government and the states. United States v. Butler SCOTUS, 1936 Congress may spend in any way it believes would serve the general welfare, so long as it does not violate another constitutional provision. South Dakota v. Dole SCOTUS, 1987, Rehnquist Congress made 5% of highway fund grands conditional on states raising the drinking age to 21. The court adopted a four part test to limit the freedom of Congress to spend money on: For the general welfare of the people, must articulate the conditions clearly, the grant condition must be related to the federal interest, and it must not violate any other constitutional provisions. Here, the tax is for the tax meets the first three conditions. Question - does the 21st Amendment (repealed prohibition) bar this conditional grant? No, because Congress cannot make states do something that is itself unconstitutional - states changing the drinking age is constitutional - therefore there is no constitutional bar. Also, this financial inducement is not coercive. Dissent - This is insufficiently related to highways - if this can be regulated as related to highways, so could everything else. Congress can only regulate how to spend the grant money itself, not everything possibly related to it.

19 The War and Treaty Powers and Implied Power Over Foreign Affairs
Woods v. Cloyd W. Miller Co. SCOTUS, 1948, Douglas Challenge to Congresss regulation of rents under its war power after the conclusion of hostilities. Question - When does the war power end? The war power does not necessarily end with the cessation of hostilities, and since the conditions, caused by the war, which prompted congress to regulate were still extant, the regulation was appropriate. Also, Congress need not say what power it is passing a law under for the law to be valid. Missouri v. Holland SCOTUS, 1920, Holmes Missouri sued on the basis of an act in support of the Migratory Bird treaty with Britain to keep them from going extinct by creating closed seasons, etc. Because the constitution specifically grants the federal government treaty power, the states cannot claim that a treaty violates the treaty violates the Tenth Amendment. This treaty is valid because it protects an important national interest and does not contravene the Constitution. Reid v. Covert SCOTUS, 1957 Executive agreements. No agreement with a foreign nation can confer power on any branch of the government that contradicts that constitution. This case put to rest the concerns, after Missouri v. Holland, that the federal government would use its treaty making power for domestic action. Zschernig v. Miller SCOTUS, 1968 The court barred a state alien inheritance law because it intruded into the sphere of foreign affairs, which Congress had entrusted to the President and Congress.

Chapter 5 - Federal Limits on State Regulation of Interstate Commerce

The Dormant Commerce Clause
The dormant, or negative, commerce clause is a restraint on state regulation of commerce. First - If Congress has taken no action to make federal policy on the matter, the objection rests on the negative implication of the commerce clause. Second - If Congress has exercised the commerce power, the objection rests on both the commerce clause and on the supremacy clause. Third - Article IV bars state legislation that discriminates against out-of-state economic interests. Analysis: 1. Is interstate commerce involved? 2. Is there a relevant federal law? a. If there is - there is no dormant commerce clause issue - it is a commerce clause issue, and supremacy clause indicates that the federal law wins. 3. If there is no federal law, is there a legitimate state concern? a. Balance the state concern and the federal concern 4. Does the state law discriminate against out-of-staters? a. If so, does the state law fall under the market participant exception? Modern Categories of Dormant Commerce Clause challenge 1. State statutes that facially discriminate against out-of-state commerce have generally been invalidated. 2. State laws that are facially neutral but actually favor local economic interests at the expense of out-of-state competitors (impermissibly protectionist purpose or effect) have also been invalidated. 3. States laws that are facially neutral but have a disproportionate adverse effect on interstate commerce have sometimes been invalidated using a balancing approach. a. If there is a legitimate local purpose, it is a question of degree. The nature of the local interest and whether it can be promoted as well with a lesser impact on interstate activities are the main considerations. Market Participant Exception

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The state participates in the economy in addition to acting as a regulator. This is an exception to the commerce clause (and dormant commerce clause) regulation. A state may favor own citizens when it acts as a market participant. Facially Discriminatory Laws Gibbons v. Ogden SCOTUS, 1824, Marshall Competing ferry boats. States cannot regulate commercial navigation in a way that excludes federally licensed operators. Regulation of interstate commerce is an exclusive, not concurrent federal power. Willson v. Black-Bird Creek Marsh Co. SCOTUS, 1829, Marshall Delaware company licensed to build damn. Federally licensed sloop breaks it. The Delaware law is valid because it aims to protect property values and health of residents, and because the Federal government has not legislated in this area. Cooley v. Board of Wardens SCOTUS, 1851 Old analysis - no longer used. PA passed a statute regulating who may pilot boats entering or leaving the Port of Philadelphia. Cooley violated this law and was sued. He argued that the Federal Act that mandated compliance with such state laws was unconstitutional because Congress cannot delegate its commerce power in this way. The court held that the act was constitutional because it reflected Congresss understanding that some matters are better regulated locally and do not require national regulation. Congress may permit states to regulate in a particular field where it technically has authority. Philadelphia v. New Jersey Facial discrimination SCOTUS, 1978 New Jersey passed a law prohibiting the importation of garbage because it is environmentally destructive. The court held that it cannot do so. New Jersey failed to show any valid reason for prohibiting out-of-state garbage - it is no different from in-state garbage. Dissent - NJs concerns are legitimate, and even if it agrees to deal with its own waste, it should not have to exacerbate the problem by dealing with the waste of others. Maine v. Taylor Upheld facially discriminatory quarantine law that prohibited out of state bait fish because no alternatives existed to protect the health and safety. TRILOGY Dean Milk Co. v. Madison Facial discrimination by localities SCOTUS, 1951 Madison, WI, prohibited importation of milk from any plant other than an approved one inspected by Madison inspectors - these were all within five miles of the city center. D was denied a license to sell its milk solely because its plants were more than five miles away. The statute has a valid purpose and is within state power, but it has an impermissible discriminatory effect on interstate commerce. Reasonable, nondiscriminatory methods of pursuing the same goal are available. The statute was invalidated. C&A Carbone, Inc. v. Clarkstown SCOTUS, 1994 A local government required that all solid waste be processed by a specific local processor. Carbone, a recycler, could have had its waste processed out of state cheaper, so it sued. The court held that the ordinance an adverse effect on interstate commerce because it prevents out-of-state processors from accessing this local market. The ordinance leaves no room for outside investment. United Haulers Same as Carbone but permitted because it was a state owned plant. South-Central Timber Development, Inc. v. Wunnicke

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SCOTUS, 1984, White Alaska was selling state owned timber from state owned land and required that the timber be processed in Alaska. The court held this law to be invalid because it did not fall within the market participant exception. You can choose to sell to whoever you want and choose the terms of the purchase but that is the end - you cannot control what happens to it afterwards. Facially Neutral Laws H.P. Hood & Sons v. Du Mond SCOTUS, 1949, Jackson Out of state milk handler wanted to add facilities but could not do so due to a New York law that allowed the Commissioner to not grant further licenses if it would create too much competition (which would force prices down and possible violation of health standards). The court invalidated this law because it had the effect of allowing the state to exclude out of state handlers even though it is not discriminatory on its face. Hunt v. Washington State Apple Advertising Commission SCOTUS, 1977 NC created a law stating that to sell apples in NC you had to have either no grade or a federal grade on your apples. Because more than half the apples sold in NC were from Washington, this law effectively discriminates against Washington apples, which have their own (generally recognized to be superior) grading system. The court held this to be a discriminatory regulation. Bacchus Imports, LTD. v. Dias SCOTUS Tax exemption in HI for a pineapple liquor that in fact was made only in the state. Facially neutral, but actually unconstitutional because it favors HI liquor producers against others producing other liquors. Exxon Corp. v. Governor of Maryland SCOTUS, 1978 Oil refiners and producers favored their own retail outlets to the harm of others not owned by a refiner. MD prohibited oil and gas companies from owning gas stations. The court held that this is constitutional because it increases competition by decreasing vertical integration. Minnesota v. Clover Leaf Creamery Co. SCOTUS, 1981 Prohibiting the sale of milk in plastic containers but allowing it in pulpwood containers. There is a justifiable health concern and garbage concern, and it applies equally to in state and out of state producers. The law is therefore constitutional. Modern Balancing Test Pike v. Bruce Church, Inc SCOTUS, 1970 If a state has a legitimate local purpose for regulating and the effects on interstate commerce are merely incidental, the regulation will be upheld unless the burden clearly exceeds the local benefits. South Carolina State Highway Dept. v. Barnwell Brothers SCOTUS, 1938 The court upheld a statute regulating the width and weight of interstate carriers on its highways. Since Congress had not acted in this area, a state may impose a nondiscriminatory restriction and it will be upheld if it has a rational basis. Southern Pacific Co. v. Arizona SCOTUS, 1945 Arizona imposed restrictions on the number of cars permitted on trains within the state. This was found to unreasonably burden interstate commerce - if there is any regulation on the subject, it needs to be national. The court held that it may consider the efficacy of the regulation in furthering the state interest. Bibb v. Navajo Freight Lines SCOTUS, 1959 Oh, mudguards. How controversial. A state may not impose even nondiscriminatory safety regulations that conflict with the regulations of most other states where the asserted safety advantages are, at best, negligible. Kassel v. Consolidated Freightways Corp. SCOTUS, 1981

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Iowa passed a law prohibiting the use of 65 foot double trailers on their highways. The court found the law to be unconstitutional. A state cannot avoid a commerce clause attack merely by invoking public health or safety - the interests must be balanced against the federal interest for free interstate commerce. Here, the law substantially burdens interstate commerce. Lewis v. BT Investment Managers, Inc. SCOTUS, 1980 Struck down a state law prohibiting ownership of local investment and trust businesses by out-of-state banks, etc, because it was pure economic favoritism and as such, an impermissible burden on interstate commerce. CTA Corp. v. Dynamics Corp. of America SCOTUS, 1987 Indiana law required purchaser of controlling shares in a public corporation to not acquire voting rights unless the shareholders approved. Law is not discriminatory because it applies equally to both Indiana domiciliaries and out-of-staters.

The Interstate Privileges and Immunities Clause of Article IV

A state cannot discriminate against non-citizens or non-residents with respect to essential activities or basic rights unless justified by a substantial reason. Two part test: - Are the nonresidents a peculiar source of the evil sought to be avoided? - Does the discrimination bear a substantial relation to the problem? United Building and Construction Trades Council v. Mayor of Camden SCOTUS, 1984 City of Camden required that at least 40% of those working on city construction projects be Camden residents. The privileges and immunities clause applies here. The fact that some in-staters are also discriminated against is not material. The opportunity to seek employment is a fundamental privilege and is protected under the clause. Case is remanded for findings of fact. Supreme Court of New Hampshire v. Piper SCOTUS, 1985 A state cannot restrict admission to its bar to state residents only.

Congressional Ordering of Federal-State Relationships by Preemption and Consent

The question of preemption is primarily one of the intent of Congress. Is the continued existence of the state law consistent with the general purpose and application of the federal law? Three types of Preemption: - Express statements - Implied occupation of a regulatory field - Implied preclusion of conflicting state regulations Rice v. Santa Fe Elevator Corp. SCOTUS, 1947 The traditional police powers of the states are not superseded unless Congress clearly indicates its intent to do so. This can be done by: pervasive scheme of regulation, the dominance of the federal interest, the character of the obligations imposed, or an inconsistency between the objective of the federal statute and the result produced by the state policy. Florida Line and Avocado Growers, Inc. V. Paul SCOTUS, 1963 Upheld a CA statute barring avocados that did not meet the states minimum oil content standard even though there was a lower federal standard. This was not a likely area for exclusive federal regulation, hence, federal law is setting a minimum standard. Pacific Gas and Electric Co. v. State Energy Commission SCOTUS, 1983 California prohibited certification of nuclear power plants until the State Energy Commission made a finding of how to dispose of nuclear waste that was approved by the federal government. The federal government already regulates this industry. This was permitted because the purpose of the state act was not preempted by Congress.

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Chapter 6 - Separation of Powers

Executive Violation of the Separation of Powers
Article II, 1 - vests the entire executive power in the President. Presidents limited legislative powers: - Power to propose legislation and report on the state of the Union (Article II, 3) - Congress may delegate some of its legislative power to the President and other executive agencies, as long as the delegation of power is reasonably definite - Veto power, Article I, 7. Legislative powers: Youngstown Sheet & Tube Co. v. Sawyer (The steel seizure case) SCOTUS, 1952, Black - During the Korean war, steelworkers went on a nationwide strike. President Truman ordered his commerce secretary to seize the steel mills and keep them running. The constitutionality of this action was challenged as unauthorized by Congress. Congress had passed an act allowing the President to order an injunction but rejected an amendment to permit government seizures to prevent serious shut-downs. - SCOTUS held this to be unconstitutional because the President cannot exercise a power unless it stems from the constitution or an act of congress. Congress granted him no such power. - This is too far removed from the theater of war to be under the Presidents power as commander-in-chief. Dissent: President has a duty to execute programs to support the armed forces in Korea and correctly exercised this power to perform this duty, and it was clearly temporary. Judicial powers: Dames & Moore v. Regan SCOTUS, 1981, Rehnquist - During the Iran Hostage Crisis, President Carter, as part of the negotiations, agreed to have all pending suits that attached Iranian assets in the US terminated and submitted for binding arbitration. The agreement was implemented through executive order. - This was held constitutional. - The exercise of Presidential power is more legitimate the more closely related to congressional action it is. Here, the International Emergency Economic Powers Act (IEEPA) permits the president to regulate and nullify any right to property of a foreign country or national. The act intended for the president to be able to use such assets as bargaining chips, which is exactly what he has done. - Limited this holding to the narrow situation here, where the resolution of a major foreign policy dispute is in question.

Executive Discretion in Times of War or Terror

Declaring and waging war: - Article I, 8 grants Congress the power to declare war, to raise and support armies, to maintain a navy - Article II, 2 makes the President the commander in chief to the Army and Navy - The interplay of these two powers was not made clear in the constitution. It has long been agreed that the president can deploy the military forces in the event of an invasion or insurrection without waiting for Congress to declare war. - Twentieth century presidents have basically taken over from Congress the war powers. Congress tried to get it back with the War Powers Resolution, which said that in the President unilaterally sends troops somewhere, he has to get Congressional approval or have them back in 60 days. This didnt really work though. Enemy combatants - There is no emergency powers in the constitution. SCOTUS has held that constitutional protections apply even in time of war. Ex Parte Quirin SCOTUS, 1942 - Ps were German born US residents who went to Germany to train to sabotage the US, then came to the US in a german submarine but were captured by the FBI. - The president appointed a military commission to try them for offenses against the law of war - this would be trial without a jury. - This was constitutional because it is part of the president waging war, which in this case had been declared by congress. - The law of war distinguishes between lawful combatants - armed forces - and unlawful combatants. Ps here were unlawful combatants and therefore were not entitled to status as prisoners or war. It doesnt matter that one was a US citizen. The constitution does not extend the right to trial by jury in case of unlawful enemy combatants.

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- After September 11, 2001, Congress passed a joint resolution Authorization for Use of Military Force (AUMF) against any nations, organizations or persons that the President determines aided the terrorist attacks. - Under this authority, the President has detained enemy combatants in Guantanamo Bay, a territory leased form Cuba. Rasul v. Bush SCOTUS, 2004 - Federal judges do not have jurisdiction to consider habeas corpus petitions from Guantanamo detainees. Guantanamo is essentially a territory of the US. Also, the status of the detainees is unclear and there is no legal procedure in place to determine their status. Hamdi v. Rumsfeld SCOTUS, 2004 - P, an american born citizen, was captured in a combat zone abroad and detained as an enemy combatant. P filed a habeas corpus petition. - Held that his detention was unconstitutional. As a citizen, he has to have a meaningful opportunity to contest the factual basis for his categorization as an enemy combatant. Evidentiary standards can be relaxed in favor of the government in this hearing. - AUMF authorized detention for the duration of the conflict, and citizenship is not a bar to detention as an enemy combatant. - P argued that the war on terror is an unconventional war and could go on forever, but the court dismissed this because there is currently combat operations against the Taliban so it is clearly not yet over. Scalia and Stevens Dissent: A citizen cannot be detained without charge, though he can be prosecuted for treason. Traditional treatment of enemy combatants does not apply to American citizens - they should go through the traditional criminal law system. AUMF did not suspend the writ of habeas corpus so it is still in effect for US citizens. Thomas Dissent: The courts should not interfere here because this is a valid exercise of the Presidents war power. Souter and Ginsburg Concurrence: The majority is correct that a hearing is needed to determine status, but if he is determined to be an enemy combatant, that is not enough to him to be detained. Would need to file criminal charges in that case. Rumsfeld v. Padilla SCOTUS, 2004 - US citizen was arrested in Chicago for plotting to detonate a dirty bomb. He was declared an enemy combatant by the president and detained by the department of defense. - Petition was dismissed on jurisdictional grounds but the minority would have found his detention to be unauthorized. Hamdan v. Rumsfeld SCOTUS, 2006 - Yemeni national (bin Ladens driver) captured in Afghanistan and held at Guantanamo Bay. President deemed him eligible for trial by a military commission for unspecified crimes after he had been detained a year. - Military commission did not have authority to try P. Under military commissions, there is no right to be present for the entire trial or to know all the charges against you. - Congress allowed military commissions but this does not apply here because there is no exigency. - The president does not have the power to unilaterally set aside treaties like the Geneva Convention. Dissent - Thomas, Scalia, Alito: Presidents exercise of his authority is entitled to deference, and AUMF allows him all necessary and appropriate force, which is applicable here. Joining an organization such as Al Qaeda, the purpose of which is to kill peaceable civilians, is in itself a violation of the law of war. - After this case was decided, congress passed the Military Commissions Act of 2006 authorizing military commissions and denying habeas claims by aliens detained as enemy combatants.

Congressional Violation of the Separation of Powers

Legislative Veto INS v. Chadha SCOTUS, 1983 - P overstayed his visa, and the immigration judge suspended his deportation and sent a report to Congress as required by the Immigration and Naturalization Act. That act allows either house of Congress to veto a suspension of deportation - HoR did veto it. - Held that congress may not use a legislative veto device to oversee implementation of its laws by the executive branch. - Congress may not act as a court to decide the rights of a specific party. Line Item Veto - Article I, 7 provides the president with veto power. Presidents had for years asked for a line-item veto power, and when it was passed, its constitutionality was immediately challenged. Clinton v. New York SCOTUS, 1998

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- Clinton used the Line Item Veto Act, which allowed him to veto three types of provisions - incl. new direct spending and limited tax benefit - to cancel provisions against taxing NYC. NYC sued on the constitutionality of the act. - The act is unconstitutional because it allows the president to cancel a provision after it has been signed and has become law. Under the constitution, the president may only return the entire bill to Congress without it becoming law. Concurrence/Dissent - Scalia: There is no difference between this and the president disallowing money to be spent on a particular item at his discretion, which has been allowed throughout history. Dissent - Breyer: Cancelation is not the same as repeal because it is an exercise of a limited, contingent power granted by congress to not enforce a particular statute. Congress retains the power to disapprove the cancelation or state in the bill that the Act does not apply.

Executive Privileges and Immunities

- Article I, 3 states that any party convicted of impeachment may be criminally tried. There is an issue of whether a president or vice president would have to be impeached before standing trial. - The president has no express immunity, but at least some limited immunity has been implied. Nixon v. Fitzgerald SCOTUS, 1982 -The president is absolutely immune for civil liability for his official acts. United States v. Nixon SCOTUS, 1974 - The special prosecutor sought and received a subpoena ordering President Nixon to produce records about presidential conversations and meetings. - The court held that executive immunity does not give the President an absolute, unqualified general immunity from all judicial process. A balancing approach is used. Here, legitimate judicial needs outweigh the presidents and publics needs for immunity because no military, diplomatic or sensitive national security secrets are at stake. - The grant of the subpoena was affirmed. No Presidential Immunity for Unofficial Conduct Clinton v. Jones SCOTUS, 1997 - Jones claimed that when she was an employee of the state of Arkansas, Clinton, who was then governor, made sexual advances toward her. By the time she filed suit, Clinton was serving as president. The trial court ordered the trial stayed until the end of Clintons presidency on the grounds of public interest. - The court reversed this, stating that the president has no immunity for unofficial conduct, even while in office because there is no public interest to protect here. The burden on the presidents time and attention does not establish a constitutional violation. On the other hand, a long delay would risk prejudice to the plaintiff. Concurrence - Breyer: The trial court should schedule proceedings so as to not interfere with the Presidents ongoing discharge of his official responsibilities. Article II, 2 gives the president the power to grant pardons. Article II, 4 allows for the impeachment of the president for treason, bribery or other high crimes and misdemeanors. It is unclear what constitutes an impeachable offense.