Constitutional Law Paulsen 3rd ed.

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Constitutional Law
Authors Michael Paulsen
Steven Calabresi
Michael McConnell
Samuel Bray
William Baude
Text Image of The Constitution of the United States (University Casebook Series)
The Constitution of the United States (University Casebook Series)
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The U.S. Constitution[edit]

• Influenced by three things:

1. English law – Magna Carta, John Locke, Glorious Rev (EBoR)

2. Colonial experience

3. Failure of the Articles of Confederation

• 6 Themes of the Constitution

1. People as Sovereign

2. Functional Separation of Powers

3. Federal structure / Federalism

4. Written Constitution

5. Protection of individual rights

6. Imperfect justice

• 1. People as Sovereign

o Preamble – Establishes sovereignty in people, not the crown or legislature

o Vesting Clause – Provides a set amount of power, given by people, to legislature ➔ limited government

• 2. Functional Separation of Powers o Article I = Legislative

▪ Powers enumerated in Art I, Sec 8 o Article II = Executive

▪ Article II Vesting Clause

• Puts power in hands of a single person (the president), but limits term

• The absence of the words “herein granted” leads to arguments about the breadth of powers

▪ Three ways of interpreting Article II Vesting Clause

• 1. Executive power is limited to one person, not a branch

• 2. Since there’s no limit of “herein granted,” it provides Executive with powers not explicitly enumerated

• 3. Executive is limited to powers listed in Art II, Sec 2

o Article III = Judicial power

▪ Powers not explicitly articulated

▪ Establishment of multiple levels of courts (Supreme and inferior)

• 3. Federal Structure o Separation of powers of Legis, Exec, and Judicial btw first 3 Articles o Infringements/overlap does occur

▪ President can veto Congress

▪ President needs “Advice and Consent” of Legis for treaties (ie confirmation votes)

▪ Judiciary can create common law

▪ Legislature can create law that limits judiciary

▪ Senate can impeach President and remove judges o Federalism

▪ Article IV enumerate states rights

▪ Fed and State are the two sovereigns of the US (besides the People)

• They check each other

• Benefit of central regulation by Fed, but States are closer to and can protect regional interests

▪ Sometimes Fed/State overlap, but that structure (tension) protects rights

• 4. Written Constitution o Pros

▪ Protects fundamental rights

▪ Functions as gag rule (some new ideas are automatically off the table)

▪ Framework for intergenerational lawmaking

▪ Guarantees rule of law since it can’t be erased

▪ Common reference point – Everyone can read it and understand

▪ Creates government

▪ Limits and divides power

▪ Aspirational o Cons

▪ Limited to rights listed

▪ Gag rule can be stifling

▪ Originalist – Static document, rigid

• It is flawed, containing notions and language of a society quite distant from modern day o Ex: Slavery protected by Art I, Sec 2; Art I, Sec 9; Art IV, Sec 2

▪ Document written by white, slave-owning men

▪ Only Presidents before Lincoln to oppose slavery were John Adam and J Quincy Adams

• Counter argument: You can always amend the Constitution o Difficult process, but intended to be difficult

▪ Misleading/breed cynicism

▪ Document is imperfect (see point 6) – But its meant to be!

• 5. Protection of Individual Rights o Contains language, besides the Bill of Rights, which protects individual rights o See: Art I, Sec 9 (Habeas Corpus), Art IV, Sec 2; Art III, Sec 2

• 6. Source of imperfect justice

Magna Carta[edit]

• Date: 1215, only four surviving copies• Why it matters o 1. Written legal document – First major one of its kind o 2. Binds the power of the Sovereigno 3. Protects the rights of individuals (nobles, in this case)• Backgroundo Before King John (John Lackland), the king had to convince barons of his need for funding▪ The “Great Council” of barons would meet and debate whether or not to fund the king’s requesto John, however, led a very costly failed military campaign to reclaim parts of France. Hence why he’s called Lackland.o John pissed off the barons▪ Lost lands in France, initiated French invasion w/o consulting them▪ Taxed barons heavily for it w/o consulting▪ He also banned Catholic services, and he confiscated Catholic Church property and then sold it back to the Church at a profit▪ Invaded Ireland o Barons rebelled, captured London, and forced concessions from King.o MC is basically a contract, where king gives securities in return for baron peaceo Signed at Runnymeade – “regular meeting” + “meadow” o John broke agreement a year lated, then died o A revised version issued n 1225 by grandson Edward I• What it accomplished o 1. Rights of baronso 2. King is not above law – first time binding of Sovereign• Notable provisions:o No cruel/unusual punishment – proportional punishment = 8th Amend o Right to trial by peers – No articulation of what this looks like in practice, no particulars mentioned = 6th Amend / Art III, Sec 2o Right to due process, no seizure of property = 5th Amend o Separation of powers = Clause 24 of MC o Clause 63 binds future monarchs (like Constitution) o Clause 61 gives authority to baron legislative councilo Freedom of English Church (from Catholic) and freedom English Church for its own elections separate from Catholic Church. o Crown authorizes barons to revolt if the Crown does not meet the criteria laid out o Financial securities▪ Inheritance guarantees – Crown won’t confiscate land after death, widows can collect inheritance portion▪ Debt security – Crown won’t seize land or rent (as means of production) to pay off debt if it can otherwise be paid▪ Money owed to Jews (Court) upon death won’t see interest for kids▪ No unreasonable military taxes or obligated troop supply from the Crown▪ Trials and judicial Court summons will happen in local jurisdiction, so don’t need to travel far▪ No unreasonable fines o Limitations on Crown and corruption▪ Barons get a jury of peers▪ Crown can’t arrest people w/o evidence▪ Royal officials must be qualifies (know law and observe it) o Personal security▪ Crown must return hostages▪ Crown must not have foreign mercenaries in England o Common system of weights and measureso Baron jurors should recuse themselves if under similar complaint• English Bill of Rights, 1689 o Date: 1689o Background: Followed the 1688 Glorious Revolution. Catholic King James II was very politically tolerant and had close ties to France, which made him unpopular in England. After the birth of his son (ensuring a Catholic heir), Parliament overthrew him by inviting his Protestant daughter Mary and her husband William of Orange to take the throne. They arrived with a Dutch fleet, and James fled to France thereby abdicating. Parliament produced this set of conditions for William and Mary to accept in exchange for the throne.o Notable provisions▪ Grievances against James – including corrupt and unqualified jurors▪ Freedoms won• Suspension or enacting of law requires Parliaments’ consent• Right to petition king, free speech and debates in Parliament• No excessive bail or excessive fines• No cruel and unusual punishment• No standing army during peace time w/o Parl consent• Free elections of Parl• Right of Protestants to bear arms for self defense• Right to habeas corpus – no fine before conviction• Frequent meetings of Parliament secured▪ Succession path of the Protestant Crown laid out to ensure continuity▪ Crown shall not pass to Catholics, and royals can’t marry Catholics• Locke’s Right of Revolution (1689)• Blackstone Commentaries on the Laws of England• The Constitution

Constitutional Structure

Federalist No. 39[edit]

• Author: James Madison, 1788• Argues that republicanism is best form of govt for America• Characteristics of republicanism o Derives powers “directly or indirectly” from “great body of the people”▪ Must be great body, not a select or favored group of society▪ Otherwise, susceptible to tyrannical usurpation by nobles o Administrators appointed “directly or indirectly” from people o Govt positions limits to terms or good behavior• Notes that some criticize Constitution on the lack of federal nature• Defense of Constitution: Is it “federal” or “national” act? BOTH!o Foundation = Federal▪ Ratification by States o Source of authority = Mixed▪ Each state has sovereign power▪ Majority people of each state give ratification authority to state reps▪ Ratification for Constit must be voluntary, unanimous among state reps▪ Constitution thus derives authority from both will of majority of people(national) and unanimous consent of States (federal)o Operation of Govt = National (mostly) o Extent of powers = Mixed▪ State authorities are subject to federal govt within its sphere, but federal is subject to State within its own sphere▪ Federal govt has certain limited jurisdiction, and jurisdiction otherwise falls to states▪ Federal govt should naturally have jurisdiction in matters btw states o Amendment process = Mixed▪ No unanimous vote required by States (national)▪ More than majority vote required calculated by proportion of States (fed)• Definitions used o Federal govt = A confederacy of sovereign stateso National govt = A union of states into aggregate nation

Ratification and the Bill of Rights[edit]

• Debate over the “Bill of Rights” o Federalists supported a federal government of only limited, enumerated powers - argued that inclusion of a Bill of Rights would give Fed carte blanche constitutionality of actions unless directly violating the BoRo Anti-Federalists argued that Fed powers would probably still be construed broadly▪ Called the Necessary and Proper Clause “the Sweeping Clause”• Deal was struck to secure critical ratification votes of MA/NH/VA/NY in exchange for guaranteed amendments of BoR afterward• Bill of Rights o Written by James Madison o 12 originally proposed, 10 were ratified• What the Anti-Federalists Were For (Herbert Storing) o Bill of Rights stressed 3 kinds of rights▪ 1) Common law procedural rights in criminal prosecutions• These included:o Safeguard from general search and seizure o Indicted by grand jury o Trial by jury o Confront witnesseso Protection from cruel and unusual punishments• Most important was trial by jury in civil cases, which was not covered in the Constitution o Federalists argued that state practices were too varied for one overarching right to be enumeratedo Anti-Feds responded by saying that was unacceptable and further evidence of unification problem▪ 2) Liberty of conscience• Complex position for Anti-Feds: liked state encouragement of religion and liberty of individual conscience• Some interpreted prohibition against religious tests for US officers as implicitly saying religious regulation was widespread• Ultimately thought rights of conscience important, even if there was no immediate threat. Since men are deeply bigoted.▪ 3) Liberty of the press• Considered strong deterrent against tyrannyo BoR was the anti-Federalist legacy, but it required an implied acceptance of the“consolidated” character of new government o Federal arguments against BoR▪ 1) Alfredus: No Federal Sovereign, No BoR• True federal government would need no BoR b/c it’s a collection of sovereigns, not sovereign itself• Anti-Feds countered that new govt was not just confederation of sovereign states, and thus needed its own BoR▪ 2) James Wilson: Retention of Rights not Stated in Constitution• Better argument o Typically, powers not expressly preserved in constitution are implied granted to governmento But this is case of govt of specifically enumerated powers and intended to be limited otherwise. Thus, rights and authorities not granted in Constitution are implied retained.• Big theory used by Constitution defenders, and considered important for American constitutional orthodoxy• Problems with argument o Assumes “powers” given to govt are easily identifiable and unambiguous▪ Ignores that govt, in acting on its delegated powers, might wield relevant implied powers, and these powers need to be limited to protect individuals▪ Indeed, govt powers pervades all life → need for limits▪ Ex: Wilson argues that govt has no right to regulate press. But Congrss has authority to tax and regulate commerce – couldn’t these be used to control press?o If there was no need for BoR, why are some individual rights protected even within the Constitution?▪ Ex: Habeas Corpus, prohibition on titles of nobility▪ Reinforces govt powers to be complex and easily expandedo BoR still not unnecessary; why not be safe?

6 Modalities of Analysis[edit]

1. Textual2. Structural3. Historical/original intent – What was the context at the time it was produced?4. Purposive – What was the purpose of the document, what issue trying to be resolved5. Precedent or practice (binding, original, persuasive)6. Policy – Implications of document, what we’re trying to achieve now

Summary of Arguments For/Against BoR[edit]

1. Textual o For: Necessary and Proper Clause (“Sweeping Clause,” Art I.8) would give boundless power to Fed unless rights explicitly limitedo Against: There already are enumerated rights in the Constitution (habeas corpus, titles of nobility, no govt religious test)▪ Counter: If you enumerate some, you need to enumerate all o Against: Government has strictly enumerated powers▪ Counter: Wilson’s argument assumes that limits are clear. There might be implied powers needed to execute on enumerated powers, hence we gotta be explicit about limits – Ex: press can be limited for purposes of protecting trade.2. Structural o For: Write down the rights as amendments makes them carry equal constitutional weight (as opposed to say, a legislative act or state constitutional right).▪ Counter (maybe): Create a Bill of Rights as separate document above theConstitutiono For: Rights need to be written down to make them permanent3. Historical/original intent o Against: Bill of Rights is primitive document used in England to bind the king the king as sovereign. People are the sovereign now, no need to bind them.▪ Counter: Not ancient history, we just had a revolution against a government (with legislature). Limit government even if people are sovereign.4. Purposive o For: Constitution was developed to protect individual rights – Hence why some are enumerated in the constitutiono Against: Constitution exists to simply establish government with limits, hence why enumerated individual rights are in the context of government limitations(habeas corpus is only within context of when government can suspend it)5. Precedent or practice (binding, original, persuasive) o For: England has written BoR enumerated a lot of these individual rights(freedom from cruel/violent punishment, freedom of press, etc.)▪ Counter: In EBoR, we started with total power of king and were limiting. Here we are starting with no power of government and giving.6. Policy o For: Limits on government to break certain rights▪ Counter: It’s not restrictive at all. Gives government authority to infringe on all other rights. → Can’t enumerate alllll rights. Forces people trying to defend unnamed rights to fit those rights into the enumerated rights. (Ex: Right of Privacy squeezed into 4th Amendments)• Counter: You’re worried about protecting unnamed rights. But if we do nothing, then all rights are unprotected.

Constitutional Interpretation[edit]

Case Brief: Barron v. Baltimore[edit]

NAME: Barron v. Baltimore (SCOTUS, 1833) FACTS:• Barron (plaintiff) owned commercial wharf in Baltimore harbor• City of Baltimore (Defendant) had to lower water in harbor → too shallow for ships → hurtBarron’s financial prospects from wharf• Barron sued in Maryland state courts. Claimed state and city had violated 5th Amendment by taking his property without just compensationPROCEDURAL HISTORY: Trial court sided with Plaintiff and awarded $4,500. Judgment overturned on appeal. Plaintiff appealed to SCOTUS.ISSUE: Was the taking of private property w/o compensation by the City of Baltimore in violation of the 5th Amendment of the US Constitution? Does Bill of Rights constrain both federal government and legislative power of the state?DECSION: SCOTUS ruled for Defendant. No violation by Baltimore.HOLDING: The Bill of Rights, including the Fifth Amendment, are restrictions on the federal government only, unless explicitly about State.REASONING:• Article I, Sec 9 and 10 are key. Sec 9 uses language that broadly limits government power. But then Sec 10 uses the very same language to specifically limit the same government powers by the state. This was intentional: Sec 9 can be assumed limits on only federal govt, Sec 10 only on states.o Ex: “No bill of attainder or ex post facto law,” “no state shall enter into treaty”• No limitations on state powers in Constitution unless explicitly stated.• If Founders wanted Constit limits to apply to states, they would have decalred so “in plain and intelligible language”• Clear by history that people were afraid of giving too much power to Fed. Hence, limits stated in Constit were intended for fed govt, not states.

Summary of Arguments For/Against Application of BoR to States (in Barron v. Baltimore)[edit]

1. Textual o Against: Language of the BoR says nothing in 5th amendment about it applying to states. If it wanted to limit State, it would use “no state shall” language of Art I.10. They should have stated in “plain and intelligible language.”2. Structural o Against: The language of Fifth Amendment mirrors language in Sec I.9. No direct mention of “Congress,” but its point is to limit just Congress. Only Art I.10 limits states, all else is just limiting Congress.3. Historical/original intent o Against: Founders were just concerned with the big central power being limited.Weren’t concerned about states.4. Purposive o Against: Each state has its own constitution. So can just assume that this new Constitution is just for federal government.▪ Counter: BoR was intended to protect individuals’ rights. In this case, rights were violated, and so needs recourse.5. Precedent or practice (binding, original, persuasive) o Against: There is no precedent here in the 42 years since BoR passed. So surelyBoR has not limited states▪ Counter: Just because no one argued it legally doesn’t suggest mean that it never occurred6. Policy o Against: It would be cumbersome to make states bound by fed BoR b/c whole country would have to follow Art V process of Amending.▪ Counter: Counter: it’s hard to amend… Counter: supposed to be o Against: This is an isolated occurance without importance across states. It would be unreasonable to reframe constitutional language via judiciary without “some strong reason.”▪ Counter: This does matter to across the states. It is a big deal for individ rights.

Proclamation of Neutrality[edit]

• 1793, by Washington• WAR: Austria, Prussia, Sardinia, Great Britain, and Netherlands v. France• Staying neutral in order to “pursue a conduct friendly and impartial” to hostile countries• If any US citizen gets involved, US will not protect them and in fact prosecute

Pacificus-Helvidius Debate[edit]

Pacificus No. 1 o 1793, by Hamiltono Alleges that the acrimonious opposition to Proclamation of Neutrality was done in bad faith to weaken “the confidence of the People” in the presidento Objections to Proclamation▪ 1. It was without authority▪ 2. It was contrary to treaties with France▪ 3. Contrary to gratitutde owed by US to France for support during Revolution▪ 4. It was “out of time & unnecessary” o 1. Authority Issue▪ Authority first depends on the purpose of the proclamation• It’s a usual and proper measure.• Purpose is to communicate to warring nations that US is under no obligations of treaty to get involved• Insurance for US – nation isn’t responsible for acts of lone citizens that get involved▪ Executive has clear authority to declare it• Not Legislative o No power to make or interpret treaties, much less execute them• Not Judiciary o Can interpret treaties, but only in specific cases of litigation• Executive authority o It is “organ of intercourse” with foreign nations o Interprets treaties (outside litigation) and how power of“Public Force” for application o Constitutional basis▪ Executive power vested in President▪ Commander in Chief, power to make treaties (with senatorial advice), receive foreign ambassadors, execute lawso Subject only to exceptions explicitly given in Constitution▪ 1. Senatorial participation in officer appointment ▪ 2. Senatorial participation in making treaties▪ 3. Legislative right “to declare war and grant letters of marque and reprisal” – warrants issued allowing someone to commit acts otherwise considered piracy (capture enemy vessels)▪ So Proclamation of Neutrality was simple Executive Act▪ Inferred powers• Legislative power to declare war implies their right to determine whether country is under obligation to war• Executive has similar judgment implied to interpret the peacetime obligations imposed by treaties on nation▪ President wasn’t imposing anything new, but proclaiming a “fact” about the “existing state of the Nation”• Helvidius Nos. 1 & 2 o 1793, by James Madisono Executive powers exists only to execute law, and presupposes the existence of lawo Concern over Pacificus’ interpretation of treaties▪ Treaties are not executions of law, but laws themselves• Thus, president is both making law and enforcing it• Concern of theoretical absurdity and practical tyranny▪ Treaties don’t only impact external affairs, but also the “internal code” of a country, which being domestic falls squarely within legislative authorityo On war declaration power▪ Declaring war is only a legislative action, not executive▪ When war declared by legislative → all laws “operating in a state of peace” with enemy nation are repealed → enacts a new code for execution by the executiveo Admits that executive may be a “convenient organ of preliminary communications with foreign government,” but not decider of treaty or waro Constitutional basis▪ Power to declare war is only in Legislature▪ Consittution allows for only one legislative power▪ Power to treaty jointly shared between Legis and Exec• Gives “more affinity” to Legis than Exec because it requires twothirds consent of congress, whereas most laws require simple majority▪ Treaties have force of law, which is legislative duty▪ Being Commander in Chief does not grant war declaration duty• Those who conduct wars should not be safe judges of when of if a war should start/stopo Dangerous to have two different ”concurrent authorities,” as they might contradict each other

The Neutrality Act of 1794[edit]

• Act of Congress• US citizens fighting in foreign wars are guilty of high misdemeanor = moderate fine and jailtime• If anyone is found on US waters arming a vessel to attack an allied country or fight in a foreign war, then they are guilty of high misdemeanor = fine/imprisonment by court President can raise army/navy/militia to force away foreign ships according to treaties/laws

Summary of Arguments For/Against Presidential Proclamation of Neutrality[edit]

1. Textual o 2. Structural o For: Power to make treaties is given to President. With advice/consent of Senate.▪ Counter: That power is weighed more heavily toward Legis, given the 2/3 consent (a higher bar than typical simple majority).3. Historical/original intent4. Purposive o Against: If Exec judges its peacetime and Judiciary judges it wartime, it is very bad to have concurrent opposing judgments from two branches. There can only be one legislative authority (ie judging authority)▪ Counter: Exec is simply stating a fact. We are in a state of peace/neutrality until its judged otherwise.• Counter: Treaty is not a fact. It’s a law, which is Legis.o Counter: State was neutral before war broke out and continues to be neutral after. President not passing any law that changes conditions of country.5. Precedent or practice (binding, original, persuasive): Original6. Policy o For: State was neutral before

Constitutional Supremacy[edit]

Alien and Sedition Acts[edit]

• The Alien Enemies Act (1798) o When US is in war or threatened by foreign nation▪ President can call for imprisonment or deportation of people from that foreign nationality (citizen/native) older than 14▪ President can “establish any other regulations” deemed necessary for“public safety”o If non-citizen isn’t overtly hostile, they can take their property within terms of treaty or “reasonable time”• The Alien Friends Act (1798)o Grants vast Presidential Power▪ At any time, President can deport non-citizens that he judges “dangerous to the peace and safety” or has reasonable suspicions of treason▪ President can expedite deportation when he judges “speedy removal” good o Impact and punishments on aliens▪ Caught in US after deportation order = 3 yrs jailtime and ban from US▪ Can only stay if they prove to executive officials that they are no danger▪ If they return to US w/o permission = indefinite jailtime by President• The Sedition Act (1798) o High misdemeanor crimes (large fine, jailtime, probation)▪ Oppose measures of government▪ Impede the operation of US law▪ Intimidate or prevent officials from performing▪ Promote insurrection, riot, unlawful assembly (intentional or not) o Other crimes (moderate fine, jailtime)▪ Intentionally writing, printing, speaking, or publishing “false, scandalous and malicious writings” against the US or any official (including Pres)▪ Defaming govt or officials▪ Exciting “hatred of the good people”▪ Stirring up sedition against any govt law or Presidential act▪ Resist, oppose, or defeat any govt law or Presidential act▪ Aid, encourage, or abet hostile foreign nations or people o Recourse available for accused?▪ If prosecuted, defendant in trial can only use truth as defense in trial

Lyon’s Case (1798)[edit]

• Matthew Lyon was disreputable guy o Court martialed for cowardice during Revolutionary War o Won House seat in 1797. House moved twice to expel him over his career.• Lyon was indicted for three counts o 1. Stirring up sedition by libel – Wrote that if he ever saw them, he’d oppose overpowered executive, religious tests, corruption, nepotismo 2. Malicious publication of letter from French diplomat – Expressing French public disappointment in Adams saying French undependable and US needs ot be armed against them in peacetime + US Legislative complicity▪ Letter said Adams needs to be in a mad house o 3. Helping publish the letter• Lyon gave defense on the three points:o 1. Sedition Act is unconstitutional and void (at least for writings before passage) o 2. Publication was not harmful o 3. Contents of letter were trueCircuit court held that constitutionality of acts are not determined by courts, but by tribunal. Courts only apply acts to cases.• Jury convicted.• Court ruled Lyon guilty. 4 months jailtime, prosecution costs, fine of $1k.

States’ Response to the Alien and Sedition Acts[edit]

• Background on Virginia and Kentucky Resolutions o Quick response by opposition, arguing that the acts were unconstitutional. o Virginia Resolutions = Madison Kentucky Resolutions = Jefferson o Legislatures from some Northern states defended the acts, argued that constitutionality is left up to courts▪ Madison responded with Report of 1800• Kentucky Resolutions (1798) o Drafted by Jefferson, reduced afterward by Kentucky legis o Resl. #1 – “Unlimited submission” to Fed is not agreed to by states▪ “General government” was given “certain definite powers”▪ States reserve most powers to themselves for self-government▪ When General govt assumes undelegated powers to pass acts, they have no authority▪ General govt cant be sole judge of extent of its delegated powers; states have equal sayo Resl #2 – Fed has limits to punish only certain crimes▪ Fed can only punish treason, counterfeiting, piracy, offence against law of Nations▪ According to 10th Amendment and general principle, all other power to punish crime is reserved for states in their territoryo Resl #3 – Fed limited by First Amendment▪ Constit gives no explicit power to Fed over religion, speech, press and does not explicitly prohibit states ➔ states have power here▪ First Amendment and general principle to guard these rights▪ Sedition Act automatically void, and not for fed tribunals to decide o Resl #4 – Alien friends are under protection of state, Fed has no power over them▪ Constitution does not distinguish citizens from alien friends, so they’re due the same rightso Resl #6 – President can’t deport people b/c it violates due process and right to jury trial (Fifth + Sixth Amendment)o Resl #5 – Art I.9 – Impeding immigration violates the 1808 clause prohibiting fed actiono Resl #8 – States have the only say in what powers go to general government and what happens in their state▪ Congress is not a party to the discussion, just a mechanism and derives its powers by people• Response to Virginia Resolutions (1799) o By Rhode Island legislatureo Fed courts, especially SCOTUS, have ultimate authority on deciding constitutionality of Congressional laws – per Art III, Sec 2 “Judicial power shall extend to all cases”o For state legis to assume constitutional evaluations would be:▪ Blending legislative and judicial powers▪ Dangerous, lead to armed conflict if there’s disagreement btw states• Hold house of cards could tumble down▪ Leaving important legal matters in hands of less competent judges▪ Violation of Constitution o Admits it can’t decide constitutionality of laws (per above), but thinks they’re ok• Minority Report to the Virginia Resolutions (1799) o Contested attribution, maybe Henry Lee or John Marshallo Argues that govt can restrict libelous or anti-govt speech for “general happiness and safety” of public.▪ History shows that “continued course of defamation will at length sully the fairest reputation.”o Constitutional on textual basis▪ Congress has Necessary and Proper Clause to help carry out execution of laws. You can limit anti-govt speech because it encourages opposition to execution of law.• Historical: Evidenced by Whiskey Rebellion▪ First Amendment only prohibits Congress from “abridging” freedom of speech/press. Not the case here for two reasons:• 1. Liberty of the press does not include false slanders.• Precedent: 2. Libel was already considered punishable via common law. Common law continues to be law of the land. Even if it abridged liberty, Act does not punish worse than common law.o Constitutionality is left up to US judges▪ They are independent, uninfluenced by party zeal▪ VA judges have shot down unconstitutional state acts. Same deal for Fed• Report of 1800 o By James Madisono Authority to determine constitutionality▪ Left up to parties in question to judge if there’s no superior authority. Parties to Constitutional ratification were states, themselves. No higher judge.▪ Can’t be left up to judiciary:
• Fed govt (any branch) might assume powers beyond those enumerated. Dangerous to assume Judiciary will control all cases.Judiciary can’t supersede other departments in all cases.• Plus Judiciary might assume great powers itself.• If Fed Judiciary > sovereign states, then so must Fed Legis andExec. States can’t grant power beyond themselves.o On Alien act▪ Combines legislative, judicial, and exec powers for President• Judiciary: President can evict just on suspicion.• Legis: President given power in very vague, broad terms.Tantamount to his make law based just on his declaration.o Laws that would violate liberty, property, and lifeo On Sedition Act▪ Violates first amendment• Response to VA Minority’s two points: (1) “press” defined by common law not to include libel, and (2) Congress has general power over press except abridgment.• (1) – Abridgment by this act recognized under common law. Parliament (the sovereign) has wildly free speech/press in operating, including libel. In US, people are sovereign.o First, if libel was already illegal and not protected by Press, why make an act saying libel is now punishable?o In England, people do not limit Parliament, because the danger they want to check there is royal authority.o In US, it is legislature that needs to be restrained not royalty.• (2) – Off the table. Denies Congress “all power over the press” o Historical: Intention was to limit Congress in response to necessary and proper clause. “All powers not given to [govt], were reserved.” Limit govt to enumerated rights and those ‘incident’ to them, which doesn’t include Pres. ▪ While sometimes incites violence, press has done more harm than good in spreading information and helping build US. Revolution might not have happened without press inciting rebellion.▪ US and common law not 1-for-1 comparison. Common law on press doesn’t mention religion/conscience, which are on equal terms with press in US.▪ People can’t advocate for change in representatives during elections. Not a truly free lection.▪ “Facts” or truth alone as defense can’t abide, not always sufficient for a full defense against prosecution.

Legality of Alien and Sedition Acts[edit]

1. Textual o Against: Constitution does not make textual claim that states cant apply protection over citizens to alien friends. 10th Amendment backs this up. (Jefferson). o Against: Fed can only punish treason, counterfeiting, piracy, offence against law of Nations. All other punishment is left up the states per 10th Amendment.▪ Counter: Necessary and proper to punish.o For: Congress has Necessary and Proper Clause to help carry out execution of laws. This applies here. (VA minority)o For: First Amendment only prohibits Congress from “abridging” freedom of speech/press. This does not constitute abridgment because “liberty of the press” does not include slander under common law. (VA minority)▪ Counter: Since First Amendment couples press, religion, and speech, infringing on one infringes on them all.o For: First Amendment supposes to give Congress power over Press, besides abridgment.▪ Counter: Original intent of BoR was to restrict the federal government from infringing on stated rights. Not to grant Fed more power.2. Structural o Against: Alien Friends Act violates Amendments guaranteeing due process (Fifth) and jury trial in criminal cases (Six) (Jefferson).o Against: Gives Executive the power of judiciary (to judge and sentence) and legislative (to make new actions for security)3. Historical/original intent o For: Concern over press inciting rebellions, like the Whiskey Rebellion (VA minority). o Against: Intention was to limit Congress in response to necessary and proper clause. This act limits the people – not the right audience to limit. “All powers not given to [govt], were reserved.” Limit govt to enumerated rights and those‘incident’ to them, which doesn’t include Press.4. Purposive o For: Goal is to protect peace and security. People have “indispensable” right to limit slander against govt. (VA minority).5. Precedent or practice (binding, original, persuasive) o For: Binding, common law of England is still in place and punishes libel. So libel is already illegal (VA minority)▪ Counter: Common law actually guarantees free speech and libel. Parliament (the sovereign) in UK has wildly free speech/press in operating, including libel. In US, people are sovereign, so this right passes to them.▪ Counter: If libel was already illegal and not protected by Press, why make an act saying libel is now punishable?▪ Counter: Common law isn’t 1-for-1 comparison. Common law in Eng doesn’t mention religion/conscience, which are on equal terms with press in US.6. Policy o For: Since some speech will incite violence, and violence is illegal, you need to make the speech illegal too.▪ Counter: While sometimes incites violence, press has done more harm than good in spreading information and helping build US. Revolution might not have happened without press inciting rebellion.o Against: People can’t advocate for change during elections with this Act. Limits ability for free elections.Who decides constitutionality?1. Fed courtsa. Supported by VA minority and RI.b. Support:i. Textual – Fed courts, especially SCOTUS, have ultimate authority on deciding constitutionality of Congressional laws – per Art III, Sec 2“Judicial power shall extend to all cases” ii. Precedent (persuasive): VA states judiciary rules on state legis acts’ constitutionality. Should be same for fed.c. Counterpoints:i. Court in Lyon’s Case refused to hear constitutionality argument, said it should be handled by appropriate “tribunal”2. Statesa. Supported by Jefferson, Madisonb. Support: States were parties to new govt, not Congress. Thus States have right to resolve disputes on the original contract. If we give total power to Judiciary, we put them (and implicitly, Exec and Legis) above states and also give them power that might be abused without checks.c. Counterpoints:i. Blending legislative and judicial powersii. Bad, lead to armed conflict if there’s disagreement btw statesiii. Leaving important legal matters in hands of less competent judgesiv. Violation of Constitution


Federalist No. 47[edit]

• Overview o Written by Madison, 1788o Response to critics of Constit who claim it does not uphold separation of 3 powers o Treats separation of three powers of foundational to liberty• Analysis of Montesquieu’s work on Constitution of England o British Constitution does not entirely separate 3 powers▪ Executive• Creates treaties that carry force of legislative acts• Appoints members of judiciary, can remove them (on “address” of Parl houses) and form a constitutional council for advice▪ Legislative• Can form constitutional council to executive o Has sole judicial power in impeachment o Supreme appellate jurisdiction in all other cases▪ Judiciary• Judges may argue in Parliament, but not voteo Free constitution allows for some overlap or partial control over other branches▪ Big rule: No individ or group can have “whole power” of two branches o British Constitution doesn’t violate that core principle▪ Exec can’t pass law (but can veto) or judiciate (though appoints judges)▪ Judges have no exec power, no legis power (but can be advised)▪ Legis has no judicial power (but can remove judges+last resort+impeach)• Analysis of state constitutions showing “not a single instance” of absolute deparation o NH – language says to keep powers as separate “as the nature of free govt will admit”o MA – Language seems to limit full control of two powers▪ Appointing of exec officers is an exec function, but NH/MA give to legis o RH/CT – Left out b/c written before Revolution• Main Point: Critics saying Constit violates free govt are wrong because:o (1) The meaning of separation of powers is misunderstood by them (perMontesquieu’s point) o (2) No state constitution has shown true separation of powers.

Legis impeaches Exec X X X X
Legis appoints Judges X X X X X X
Legis impeaches Jud X X X
Legis elects Exec President X X X X X X X X
Legis appoints Exec council/officers X X X X X X X X X
Legis has appeals duties X X
Exec votes in Legis X X
Exec as tiebreaker for Legis X
Exec impeaches Jud X X
Exec appoints Jud X X X X X
Exec veto power over Legis X
Exec has appeals duties X X
Jud can pardon X X
Jud composes Exec council X Leg

Federalist No. 48[edit]

• Overview o Written by Madison, 1788• Argument that some degree of blended duties is important, but must be limited o Big takeaway: Mere writing in constitution of power limits by departments is not enough to actually stop overreach• Legislative as a primary concern o Founders were overly focused on (hereditary) executive injustice▪ Exec is most dangerous in monarchy or in democracy (where legis is overburdened)o Legis is a concern in republic▪ Ambitious people on small forum with a limited Exec (by term/power) o Legis also has more broad powers/less precise limits in the constitution o In many systems, legis appoints exec and judiciary, creating dependence on legis• State examples of dangerous legislature o Virginia▪ State constitution calls for separation, but provides no barrier.▪ Per Jefferson: Doesn’t matter the number of people in the branch if it assumes powers of other branches. “Elective despotism” is bad!▪ Exec and judiciary are dependent on legislative for their subsistence, and leg law overrules the others, so no one can stop legis expansion of power o Pennsylvania▪ Formed a Council of Censors to review constitutional adherence of legis and exec in 1783 and 1784.▪ Council found violations by Legis.• No publication of some bills• Trial by jury violated• Usurped executive powers• Varied salaries of judges (supposed to be fixed)• Pulled in some judicial cases for legislative decision▪ Exec wasn’t perfect either, but excusable for three reasons• 1. Done under war• 2. Conformed to legislative wishes• 3. Penn unique for large exec body, thus more confident in breaking duties

Federalist No. 51[edit]

• Overview o Written by Hamilton or Madison, 1788• Key Point o The structure of government is key to limiting overreach by any one branch• Potential solutions to limit power overreach o 1. Limit departments from choosing members of other departments▪ Rationale: Each department has “a will of its own”▪ Leave the choosing of head exec, legis, and judiciary up to the People▪ Drawbacks• Expensive• Inexpedient▪ Not practical especially for judiciary:• 1. Qualifications of good judges not recognized easily by public• 2. Life tenure of judges means they won’t stay beholden to voteo 2. Limit exposure of financial dependence of one branch on another▪ Rationale: Further independence of branches▪ Drawback: If you give a branch power to repel wage changes, this can be abused▪ Instead, recognize that legislature is strongest in republican government.

•Split legislature into difference branches[edit]

• Guards specifically against encroachments of strongest brancho 4. Absolute veto of executive on legislative▪ But it must be limited, or else abused• Unique aspects of American federal system o (1) There are two levels of govt to protect rights of people and balance each other(state and fed) o (2) Govt must protect rights of minority against majority ▪ Ways to do this:• A. Create a “will in the community” independent of majority• B. Make sure an “unjust” majority is improbableo Better solution for the US, because its such a large and diverse body

Federalist No. 49[edit]

• Overview o Written by Hamilton or Madison, 1788• Jefferson proposed creation of new constitution to deal with overreach by brnahces o Process: If two branches of govt agree, by 2/3 vote, to alter constitution, call a new convention to do soo Reasoning: People are only “legitimate fountain of power,” so let them vest new or renewed authorities when constit proves a bad limitation on govt powers▪ None of the powers are inherently above the others, only people o Drawbacks▪ 1. If Legis can wield interest on any of the other two branches, it fails.Then there is no recourse for the branch opposing legis.▪ 2. Frequent appeals for constitutional change would diminish stability.This would have to be reserve for “great and extraordinary occasions”▪ 3. Danger to national safety by entertaining “public passions”▪ 4. Still wouldn’t resolve issue. The public would side with Legis if there were a dispute and constitutional change.• Legis is large number, close to and elected by people. Gives them a public trust and influence among people. Seen as good guy.• Exec is a small number. People often suspicious or envious of it.• Judiciary is small and removed from people (due to tenure & appointment).

'Judicial Debate' [edit]

Brutus, No. 11[edit]

• Overview o Written by Melancton Smith, NY Anti-Federalist, 1788 o Expressing concern over the judiciary’s power• Judges are totally independent (from ppl and legis) o Life tenure o Fixed salary o Errors can’t be corrected b/c no power above them• Attempt to define judicial power via text of Art III.2 o Cases law and equity arising under the Constitution▪ Why would they say “law and equity under constitution” and “laws of the US” if they were the same thing? It would be redundant.▪ Means cases that would involve interpretation of Constitution o Supreme Court can thus interpret meaning of Constitution▪ According to “ordinary and popular use,” or otherwise using “context”▪ Not confined to established rules, instead will try to understand “reason and spirit” of the document▪ Whatever they decide, no one can appeal• Expanded control over states o Constitution was intended to subvert state power in favor of fedo So judiciary will always act in such a way that limits state jurisdiction. And states can’t go against their interpretation by passing acts that violate consitution• Fed govt will use judiciary to further its own interests and increase powers

Federalist No. 78[edit]

• Written by Hamilton, 1788• Judiciary is least dangerous and weakest branch o Holds neither sword (Exec) nor purse (Legis) o Since it “has neither force nor will, but merely judgment,” it must depend on Exec for “the efficacy of its judgments”o As long as it remains distinct from the other two branches• Judiciary is important o Limits on authority of other two branches can only be maintained by court• Judiciary does not have an interest in interpreting things unconstitutional o If a law of legis is unconstitutional, its void automatically o Judiciary rules on constitutionality of laws to protect the people▪ Constitution is assumed to be declared intentions of the people▪ Therefore, any law that contradicts it is in opposition to people▪ People are the ultimate authority, not legis agents, so must rule for them o Judges can only exercise judgment, not a will• If there are two contradicting statutes (not against constitution), that’s where they get involved with laws of the US o Judges are bound a number of reasonable constructions they’ve created to adjudicate these disputes

Federalist No. 81[edit]

• Overview o Written by Hamilton• Responding to critics concern that SCOTUS o 1. Power of construing laws according to “spirit of the Constitution” too great o 2. Court of last resort should be judiciary, like in England• Response by Hamilton o 1. No explicit language in Constit directly empowering SCOTUS to interpret the“spirit of the Constit” o 2. No better to put last resort in the hands of Legis. People who:▪ A. Often pass bad laws▪ B. Can be biased due to limited tenure. People would punish legis who ruled against their desire by voting them out. Not the case for judges.▪ C. Don’t have the legal knowledge or character of judges• Defense of federal lower courts o District courts needed over state courts for 3 reasons:▪ 1. State courts might be too influenced by “local spirit”▪ 2. State courts don’t necessarily have life tenure, making them “too little independent.” Fed will have life tenure.▪ 3. Facilitate appeals to have case start and end in fed court.• SCOTUSo Original jurisdiction on in cases of ambassadors/consuls or where a state is a party▪ Ambassadors important b/c they represent foreign sovereigns• Consuls don’t have the diplomatic weight, but still reps of the nation and need to treat them with importance▪ State as party is important▪ Thus SCOTUS will usually be court of appeals o Addressing concern by critics that it will eliminate jury trial▪ SCOTUS has jurisdiction for law and fact▪ Assumes jury trial in lower court, or can remand for jury trial if it has original jurisdiction


'Judicial Review' [edit]

oClass prep:▪ (1) Isolate the holding and Marshall’s arguments for judicial review in Marburyv. Madison; consider gaps in his arguments.• Gap: His contention that the courts has natural ability for judgment is just asserted without clear reasoning. “Very essence of judicial duty.”• Gap: He does not address states’ authority.▪ (2) Consider the arguments for and against departmentalism.▪ (3) How should the courts enforce their decisions?

Marbury v. Madison[edit]

• Facts: Marbury was a Federalist circuit judge appointed by Adams in two days before he left office and Jefferson took over presidency. His commission was sealed, but failed to be delivered and Jefferson told Madison not to do so. Marbury brought suit against Madison (Sec of State) on grounds that the appointment must go through.• Issue: Should Marbury’s appointment be enforced?• Decision: Marbury has a right to the commission, a right to justice by the courts, but not a right of mandamus (injunction requiring the action) of delivery. The Supreme Court can only have original jurisdiction in issues regarding states or otherwise appellate. This issue was brought as an original issue, which SCOTUS can’t decide on.• Holding: The Supreme Court of the United States (Supreme Court) has constitutional authority to review executive actions and legislative acts. The Supreme Court has limited jurisdiction, the bounds of which are set by the United States Constitution (Constitution), which may not be enlarged by the Congress.• Reasoning:o The Court found that Madison’s refusal to deliver the commission was illegal, but did not order Madison to hand over Marbury’s commission via writ of mandamus. Instead, the Court held that the provision of the Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court’s original jurisdiction beyond that which ArticleIII, Section 2, established. Legis can’t extend Judicial power without anAmendment. – Sub point about interpretive independence of Court o Marshall expanded that a writ of mandamus was the proper way to seek a remedy, but concluded the Court could not issue it. Marshall reasoned that the Judiciary Act of 1789 conflicted with the Constitution. Congress did not have power to modify the Constitution through regular legislation because Supremacy Clause places the Constitution before the laws.

Disagreement with Judicial Review[edit]

• Ex Parte Merrymen o Taney declared Lincoln’s suspension of habeas corpus unconstitutional and detention of a suspected rebel was illegal.▪ Taney’s argument:• Textual: Calls out the fifth amendment for due process and protection from seizure.• Structural: Suspension Clause being located in Art I.9 signals it as a limit on Congress’s legislative power, thus power to suspend habeas corpus is a legislative power. o Counter: It’s an emergency qualified clause, and President has most power in emergencies. President needs it to carry out laws. Besides, it should have been clear if it was a legis power.• Historical: Writ of habeas corpus has traditionally been used to limit executive powero President refused, and Taney laments that he has not the power to enforce▪ Counter: Federalist No. 78, Hamilton is very explicit about judiciary reliance on executive, implying that Exec refusal is a check on Jud• Edward Bates, “Opinions on the Suspension of Habeas Corpus” o Two questions▪ 1. Can President arrest a suspected/known insurgent during wartime?▪ 2. Is president justified in refusing to obey writ of habeas corpus ordered by judge / to produce the insurgent to the court?o President can arrest insurgent▪ President has an oath to see the laws are execute, and to defend the Constit▪ Civil magistrates (exec and judicial) can employ powers to enforce law• Judicial power = Call the country to enforce their judgments• Presidential power = use force to perform legal duties▪ Per Congressional Acts of 1795 and 1807, he can wage war against rebelliono President can refuse to obey court order in these circumstances▪ Founders were most concerned with unity of power in King → each branch should be co-equal and not sovereign▪ Sovereignty = decisions of one branch can’t be binding on the other two• Judiciary isn’t even binding on itself, can overrule precedent▪ Luther v. Borden (1849): Argues that court must defer to President in wartime emergency, and that Court here is encouraging anarchy ▪ President is not bound by any court, except impeachment

Judiciary Act of 1789[edit]

• Establishes o SCOTUS composition: chief justice + five otherso Three Circuit courts (Eastern, Middle, and Southern) – composed of SCOTUS and district judgeso Each state gets a federal District court• Timing of courts o These are not standing courts. They operate for a few days each week in a set timeframe per yearo Special courts can be held at discretion of court for criminal cases• SCOTUS can appoint clerks o Clerks take oath to “faithfully enter and record” court orders• SCOTUS oath to “administer justice without respect to person… do equal right to the poor and to the rich… perform all duties”• Court can be adjourned if there’s no quorum

Twelfth Amendment (Sanford Levinson)[edit]


Separation of Powers[edit]

• Legislature checks… o Executive by…▪ 1. “Power of the purse” – Refusing to fund operations▪ 2. Refusing to confirm nominees▪ 3. Refuse to ratify treaties▪ 4. Impeaching o Judiciary by…▪ 1. Altering court’s size/jurisdiction▪ 2. Refusing funding▪ 3. Constitutional amendment to overturn their interpretations▪ 4. Impeachment• Executive checks… o Legilsautre by…▪ 1. Vetoing bills▪ 2. Setting enforcement policies different from Congress▪ 3. Conduct foreign affairs contrary to Congress o Judiciary by…▪ 1. Appointment of judges▪ 2. Control over the issues they can hear / can resolve issues before judiciary can resolve them• Judiciary checks… o Legislature and Executive by…▪ 1. Ruling their actions unconstitutional• Notes on Youngstown Sheet & Tube Co. v. Sawyer o Aka The Steel Seizure Caseo Background▪ At height of Korean War, amidst threatened strike by steel workers, Truman issued exec order for Sec. of Commerce to seize nation’s steel mills and regulate their employmento ISSUE: Whether president has either inherent legislative power or power to act in emergencieso HOLDING: Court ruled that President doesn’t have authority to do so. Split between many concurrences and dissents.

9.19.18Enumeration & Supremacy

McCulloch v. Maryland[edit]

• Ruleo The Constitution specifically delegates to Congress the power to tax and spend for the general welfare, and to make such other laws as it deems necessary and proper to carry out this enumerated power. Additionally, federal laws are supreme and states may not make laws that interfere with the federal government’s exercise of its constitutional powers.• Sovereignty argument?

Case Brief: McCulloch v. Maryland[edit]

NAME: McCulloch v. Maryland (SCOTUS, 1819) FACTS:• In 1816, Congress passed an act that incorporated the Bank of the United States.• In 1817, the Bank opened up a branch in the state of Maryland (P)• In 1818, the MD state legislature passed an act to impose a tax on all out-of-state banks operating in state. Although the act was general in nature, the Bank of the United States was the only such bank in Maryland at that time and was thus the only establishment affected by it.• McCulloch (D), head of the Maryland branch of US Bank, refused to pay the tax.PROCEDURAL HISTORY: Maryland courts held for P, on basis that Constit was silent about Fed power to form a bank so its left to states. D appealed to SCOTUS.ISSUE/HOLDING:

(1) Whether the Constitutions gives a right to Fed Govt to establish a bank in a state? (1) Yes. Bank is implied power, and choice of means. Since Fed is supreme, has power to establish a branch wherever deems necessary.
(2) Whether an individual state may tax a federal bank? (2) No. Unconstitutional to inhibit a Fed means of executing law.

DECISION: Overruled lower court. Ruled that Fed Bank is constitutional and MD tax on fed bank is unconstitutional and void.REASONING:(1) Right of Fed to establish bank• Fed has implied powers o Historical: Original banking act was already passed by founders. o Textual: Introduced limitations in Art I.9, implying that there are unstated powerso Textual: No explicit refusal of implied powers.▪ Counter: 10th Amendment would give those to states• Counter: Even 10th Amend omits the word “expresslyo Historical: Founders were embarrassed by AoC – Wanted to leave out limit on implied powers.o Purposive: To spell out every implied power would be too much, “never be understood by the public.” Founders intended that “minor ingredients… be deduced”▪ Counter: These aren’t “minor ingredients.” Quite major.o Textual: Necessary and Proper Clause▪ Textual: “Necessary” does not mean singular or restrictive to “most direct and simple” mean. There are degrees of necessary actions, as seen in Art I.10 “absolutely necessary”▪ Structural: It’s in the powers of Legis (Art I.8), not limitations (Art I.9) o Purposive: Founders wanted Fed powers to be flexible/dynamic and “adapted to the various crises of human affairs”• Fed has power to create bank, specifically o Structural: Legis gets financial powers in Art I, so surely bank must fall under that. o Purposive: Founders wanted Fed to execute well. Bank needed for that.o Precedent: Fed has conceded right to punish for crime on post roads it maintains, so why not establish bank for commerce regulationo Policy: If Fed can’t establish bank, it must rely on state or foreign govt, which brings uncertainty, dependence of other govt, and obligations that might be contrary to Constit(2) No right of state to tax Fed bank• Fed is supreme o Textual: In Pursuance Clause (Art VI) – Interprets Fed decisions to be supreme law when in pursuance of Constit, any State law “contrary notwithstanding”▪ Counter: Referring to treaties o Structural: State officials of all branches give oath of fidelity to Constit▪ Counter: Not to supremacy of Fed o Structural: Fed has authority vested by people of all states, so a single state can’t impose itself over the sovereignty of all other states combinedo Historical: States bound themselves to Constit at the Convention o Policy: If we allow state to tax bank, “they may tax any and every other instrument”

Nondelegation Doctrine[edit]

Overview of Nondelegation Doctrine[edit]

• Whether Art. I assignment of enumerated legislative powers can be delegated for exercise to someone else?

• Post Roads Debate o Key Positions[edit]

▪ 1. Congress determines principle of how business be conducted, then delegates executive power to others (Sedgwick)▪ 2. Constitution explicitly vests power in Congress, and ought not to delegate it elsewhere. – This position wins the voteo Background: Congress has the power in Art I.8 to “establish post offices and roads.” In 1791, HoR of the Second Congress must create a bill to enact this power, and a debate arises about whether to add a clause that should give the authority to President to establish routes.o Arguments for Presidential controlA. Not unconstitutional, rather natural.• Key idea: Congress determines principle of how business be conducted, then delegates executive power to others (Sedgwick) • Precedence: As with power to coin money, Congress won’t actually work in Mint themselves. (Sedgwick)B. More capable than Legis• HoR does not have requisite information to establish roads(Sedgwick) o Counter: Legis represents every corner of US. Has best idea of property/geography matters. (Hartley/Page)• Single Exec can act more swiftly than multitude of Legis o History: Congress tried to manage execution before, but highly elaborate bills get defeated easily. (Benson)o Counter: Precedence: Legislature managed to enact good bills on impost and tonnage (Madison)▪ Counter: Precedence: Legis also tried already to demark post roads. That failed. (Sedgwick)C. Unbiased power• HoR is “biased by local interests” (Sedgwick/Barnwell) o Counter:• Counter: Exec is not unbiased. Can use power to fix elections -- withhold post offices unless locality chooses Rep he likes.D. Easier to enact specific• History: Congress tried to manage execution before, but highly elaborate bills get defeated.o Arguments for Legislative controlA. Constitution vests power in Legislature• Key idea: Constitution explicitly vests power in Congress, and ought not to delegate it elsewhere. o Counter: Constitution “speaks in general terms.” See the Mint argument.B. More transparency• Information might be harder to reach public when controlled by one Exec. “People kept entirely in the dark.” (Livermore)C. Less burdensome• In order to satisfy information barrier, Exec will create so many branches of post office (Livermore)D. More representative of people• Republican (White)• Counter: Biased. As “subject to like passions and imperfections as their fellow-citizens” (Sedgwick)E. Would give too much power to Exec• Revenue – Power over post offices gives revenues from it, which may someday be great. (Hartley)• Privacy – Danger of intercepting letters and controlling information flow (White)• History: Too similar to the English system, such that Exec“advances toward Monarchy.” (White)• Mistretta v. United States (1989) o Rule of Law: Congress may delegate authority to others, provided that it gives an “intelligible principle” to guide the authorized party in conforming to.

Case Brief: Mistretta v. United States[edit]

NAME: Mistretta v. United Stated (SCOTUS, 1989) FACTS:• Legis created US Sentencing Commission as part of Sentencing Reform Act of 1984• Commish consists of 7 voting members (judges, AG, more) – Appoint by Pres w/ A/C• Mistretta (P) sentenced to 18 months prison by Commission, sues US (D)• P claims Congress violated Constit-based nondelegation doctrine by giving Commish excessive legislative discretion via power to create sentencing guidelines of fed crimesPROCEDURAL HISTORY: N/AISSUE: Whether creation of commission by Congress to set mandatory sentencing guidelines for federal criminal convictions constitutional?DECISION: Court rules for D.HOLDING: It is constitutional. Congress may delegate authority to others, provided that it gives an “intelligible principle” to guide the authorized party in conforming to. Congress’ delegation of authority to Commission was “sufficiently specific and detailed to meet constitutional requirements” laid out in “intelligible principle test.”REASONING:▪ Nondelegation doctrine rooted in principle of separation of powers.▪ Congress can get assistance of other branches. Assistance to Congress must be “fixed according to common sense and inherent necessities” of cooperation, J.W. Hampton, Jr & Co v. United States (1928)▪ Precedent for upholding delegation. In this case, Congress specified to Commission three goals, four purposes, specific tool (guideline system), guidance on sentencing ranges, 11 factors for establishing criminal categories, and more → “intelligible principle” met▪ On complex matters, Legis needs ability to delegate authority – this is perfect case of thatDISSENT: Scalia. Yes, the standards set out were intelligible. But the “guidelines” established by Commish have “the force and effect of laws.” Constitution does not allow anyone but Congress to make law, except in conjunction with lawful exercise of executive or judicial power.Lawmaking that’s “ancillary” to exercise of judicial/exec powers is okay, but this was not a judicial or exec committee. Congress can’t give policy/law making power to anyone else, per nondelegation doctrine (cites John Locke, Field v. Clark, and Framers’ intent in limited commingling expressed in Fed 47).


Bicameralism and Presentment[edit]

Overview• “Legislative veto” o Instrument to control delegations to executiveo Allows one or both legis houses to veto any actions that executive take pursuant to delegation by legiso Debate whether they are constitutional or not▪ In INS v. Chadha, SCOTUS held legislative vetoes unconstitutional b/c they are form of lawmaking not set out in Art I.7 specified process of bills to become law• Art I.7 – How bill becomes law o Bicameralism – Must pass House and Senateo Presentment – Must be presented to president for signature or vetoNotes on INS v. Chadha• Rule of Law o Legislation providing Congress with a one-house veto over an action of the executive branch does not meet the constitutional requirements of presentment and bicameralism.• Fed. 51 – Split legislature into two housesCase Brief: INS v. ChadhaNAME: INS v. Chadha (SCOTUS, 1983)FACTS:• § 244(c)(2) of the Immigration and Nationality Act (INA) authorizes one house of Congress, by resolution, to invalidate an executive determination that allowed Chadha (P) to remain in US.• Chadha is East Indian, UK citizen. Lawfully came to US on student visa in 1966.Stayed after expiration. At a deportation hearing, Chadha conceded he was deportable. Chadha filed application for deportation suspension under the INA. • Judge granted suspension, subject to veto by one house of Congress.• House of Reps passed resolution pursuant to §244(c)(2) to override granting of permanent residence to aliens, including Chadha. Resolution not submitted to Senate or President.• House vetoed Attorney General’s suspension of Chadha’s deportation. Deportation order was issued, and Chadha appealed to 9th Circuit on grounds that 244(c)(2) is unconstitutional. • INS agreed with Chadha and joined his argument.• 9th Circuit ruled for Chadha and ruled that Congress could not overturn the decision of the Attorney General. The INS appealed to SCOTUS.• Congress argues that even if Chadha is right that its unconstitutional, the whole act must be negated, and then Chadha would have to be deported.ISSUE: (1) Is the provision severable? *** (2) May the House of Representatives enact a provision that permits one house of Congress to unilaterally override an executive action? ***DECISION: §244(c)(2) of the INA is unconstitutional. The decision of the court of appeals is affirmed.HOLDING: (1) Yes. (2) No. Art I of the Constitution requires that all legislation be bicameral and presented to the President before becoming law. This was an exercise of legislation.REASONING:▪ This particular provision is severable from whole act, so can be thrown out while keeping the rest of the act. Per the statutory language and reference to 8 USC 1101.▪ Founders wanted legislation passed based on careful, deliberate thought.o They grew up with govt run by unchecked govt acts.o James Madison expressed concern that laws would be made expedient and avoid checks if called “resolution” or “vote” rather than bill. Led to Art I.7▪ Bicameral requirements (Art I.1, Art 1.7.2) and Presentment Clauses (Art I.7.2-3) → Lawmaking is power to be shared by both Houses and President. Ensures deliberation.o Pres veto role is to protect Exec and protect Ppl from renegade Legis.o Legis separation is to ensure exhaustiveness + considered by all elected officials ▪ House resolution under 244(c)(2) is legislation subject to Art I.7 standards.o Generally, given Constit structure, act by any branch is “presumptively exercising” its delegated powerso Action is legislation if it is legislative in its (A) Character and (B) Effect▪ Effect – Yes. Art I.8.4 specifies legislative power to “establish an uniform Rule of Naturalization.” This resolution “[altered] the legal rights, duties, and relations of persons,” including the alien Chadha and others.▪ Character – Yes. Without veto provision, House and Senate can only (if at all) require AG to deport an alien by legislation.o This is not an exception. Founders use “explicit, unambiguous terms” to specify four cases where one house can act w/o bicameralism and presidential presenting▪ 1. HoR can initiate impeachments (Art I.2.5)▪ 2. Senate conducts trials and convicts following impeachment (Art I.3.6)▪ 3. Senate approves/disapproves Pres appointments (Art II.2.2)▪ 4. Senate ratifies treaties negotiated by Pres (Art II.2.2)▪ Precedent in Youngstown is that we opt for deliberation of laws, not speedinessCONCURANCE: Powell. Congress has used veto lots since 1930s and views it as essential to controlling delegation of power. We should be more narrow. Say that in evaluating residency status of one person, it assumed judicial function in violation of separation of powers.DISSENT 1: White. Court shouldn’t eliminate all legislative vetoes, but consider constitutionality of each varied one (war powers, agency rulemaking, etc).• Policy: Legis veto important for accountability of exec and independent agencies. Without it, legis must either not delegate authority or abdicate law-making function to Exec. “Fundamental policy decisions in our society” will be made by “appointed official,” not elected people.• History: legis veto “has not been a sword” to assert legis dominance, but a “means of defense.”• Precedent: FTC v. Ruberoid Co. (1952) shows Art I doesn’t require all acts w/ legis effect be law• Textual: Necessary and Proper Clause• Purposive: Concern of presentment and bicameralism requirements is to ensure widespread approval during departure of “legal status quo.” Senate/House didn’t act, and AG tacit approvedDISSENT 2: Rehnquist (+White). Congress would not have passed §244(c)(1-3) without §244(a)(1). The INA must be considered as a whole. Legis history shows not intended to be severable.Notes on Clinton v. City of New York• Rule of Law o There is no provision in the United States Constitution that authorizes the President to enact, amend, or repeal statutes.Case Brief: Clinton v. City of New YorkNAME: Clinton v. City of New York (SCOTUS, 1998)FACTS:• The Line Item Veto Act gave Pres the power to “cancel in whole” three types of provisions signed into law.o (1) any dollar amount of discretionary budget authority; o (2) any item of new direct spending; or o (3) any limited tax benefit.• Effect of the cancellation was the prevention of the item “from having legal force or effect”• President Clinton (D) invoked the Act to cancel a provision in the Balanced Budget Act of 1997 and two provisions of Taxpayer Relief Act of 1997.• Clinton meticulously followed procedures to cancel the provisions.• Individuals claimed injury resulting from cancellations (plaintiffs). Sued in District Court.PROCEDURAL HISTORY: The district court found that the Line Veto Act was unconstitutional.ISSUE: Is the Line Veto Act constitutional?DECISION: Affirms district court. Cancellation procedures of Act violate Presentment Clause, Art I.7.2HOLDING: No. There is no provision in the United States Constitution that authorizes the President to enact, amend, or repeal statutes.REASONING:▪ Line item cancellation authority is different from constitutional “return” (aka veto) power o Return = (1) Occurs before bill becomes law, (2) Must return entire bill, (3) Only authorizes role in enacting of statuteso Cancellation = (1) Occurs after bill becomes law, (2) Can target specific parts of bill, (3) Allows role in repeal or amendment of enacted statutes▪ The Act authorizes the President to effect the repeal of laws, for his own policy reasons, without regard for the procedures set forth in Article I, § 7 of the Constitution.▪ “Unilateral power to change the text of duly enacted statutes” is unconstitutional. It is unprecedented, and if any text of a duly enacted statute is changed, it must be reapproved by Congress and President. Otherwise, this fails the goal of “finely wrought” law making.▪ If Congress seeks to create a new procedure for creating laws, it must amend the Constitution.CONCURANCE: Kennedy. Separation of powers is central to ensuring that each branch of government is able to vigorously assert its proper authority. “Congress cannot yield up its own powers.” The Act increases the power of the President beyond what the Framers envisioned, thereby compromising the political liberty of American citizens. Policy-wise, could help or hurt particular citizens all on his own. Cites Madison in Federalist 47 on “accumulation of all powers” akin to tyranny.DISSENT: Breyer (plus O’Connor and Scalia). The Act does not violate any specific textual constitutional command, not violate any implicit separations of powers principle. The Constitution authorizes Congress and the President to experiment with novel methods to improve government, such as the one contained in the Act… Founding Congress could have put individual appropriations in separate bills for Pres veto. But we’re too large now for that, so this Act suffices… Plus, (1) Act essentially gives Pres an exec power, (2) Congress power not encroached b/c they can pass new appropriation bills, (3) Act limited to budget, so not OP Exec.CONCURRANCE/DISSENT: Scalia (plus O’Connor and Breyer): This case presents an issue under “unconstitutional delegation of legislative authority”, not the Presentment Clause. The issue is whether the Act transferred to the President a degree of “political, lawmaking power” that is traditionally retained by Legis. But it didn’t. No difference btw Congress authorizing the Pres to cancel a spending item and appropriating money to be spent on a particular item at President’s discretion. Congress has long history of latter behavior since founding of US… plus didn’t authorize actual line-item veto.


'Federalism, Commerce, Necessary & Proper' [edit]

Federalist No. 10[edit]

• Overview o Written by James Madison, 1787o Addressing ideas of faction tensions, Republic>democracy, large Repub>small repub, and Union>States• Main takeaway o Republicanism, embodied in Constitution, a “happy medium,” good for controlling the nefarious self-interests of people in government by limiting power of a majority and raising national interest.• Human nature causes natural state of factioned society o People are driven by their “self-love.”o Diversity in their faculties → different ideas of how to optimize their interest ➔ no uniformity of interests / “Division of the society into different interests and parties”o Property at the core of factions – “Most common and durable source of factions has been the various and unequal distribution of property”▪ Ex: These two groups have very diff ideas on whether domestic manufacturing is good, and if to restrict foreign manufacturers.o Regulation of parties of conflicting interests is inherent in Govt operationso “No man is allowed to be a judge in his own cause”▪ People will put their bias over “justice” and “public good”• Political thinkers who assert otherwise are naïve (e.g. Rousseau) ▪ Lockean idea• Since causes of factions can’t be removed, trying to control their effects• Republic > Democracy for controlling factions o If faction is a minority, relief is automatic in republic o If faction is majority, Democracy has no solution o Republic is distinguished as better because▪ 1) Govt run by small number of elected citizens• Elections offer filter to choose most selfless representatives▪ 2) Can adapt better to larger numbers of citizenry• Happy medium needed o In number of reps – must be large enough to “guard against cabals of a few,” but small enough to avoid “confusion of a multitude”o In locality – Shouldn’t be too unfamiliar with locality to understand its interests, but not too familiar that the rep loses sight of “great and national objects” • Larger republic > smaller republic o The larger the number and variety of parties and interest, less likely a majority becomeso Even if majority does form, it will be difficult for interested people to feel connected with each other and “act in unison”• Union of States presents happy medium o National interest “superior to local prejudices” o Increased security of multitude o Controls against unjust majority

Gibbons v. Ogden[edit]

• Rule of Law o If a state and Congress both pass conflicting laws regulating interstate commerce, the federal law governs pursuant to Congress’s constitutional grant of power to regulate interstate commerce.Case Brief: Gibbons v. OgdenNAME: Gibbons v. Ogden (SCOTUS 1824)FACTS:
Ogden (plaintiff) received a license under New York state law to operate commercial steamboats on New York waters.• Gibbons (defendant) was also given permission from the United States Congress to operate steamboats in those same waters in an effort to help regulate coastal trade.• Ogden filed suit in the New York Court of Chancery to enjoin Gibbons from operating his boats in New York waters.• Gibbons argued that he was operating his boats pursuant to an order of Congress, and that Congress has exclusive power under Article I, Section 8 of the Constitution to regulate interstate commerce.PROCEDURAL HISTORY: The New York Court of Chancery found in favor of Ogden and issued an injunction to restrict Gibbons from operating his boats. Gibbons appealed the case to the Court of Errors of New York, which affirmed the decision. Gibbons appealed to the United States Supreme Court.ISSUE: May a state regulate interstate commerce within its borders when Congress also chooses to regulate interstate commerce in the same area?DECISION: Reversed NY Errors Court decision prohibiting Gibbons from operating steamboats in NY.HOLDING: No. Congress is granted the power to regulate interstate commerce in Article I, Section 8 of the Constitution. The word “commerce” includes traffic, intercourse and navigation, as well as commodities associated with interstate commerce.REASONING:• With the exception of completely internal commerce, Congress may regulate all commercial activities occurring between states but not activities occurring solely within one state’s borders.• Thus, Congress has the power to regulate the interstate commercial activity of steamboats on navigable waters within the state of New York. • Since Congress has the power to regulate this activity and New York passed conflicting regulations of the same activity, federal supremacy principles dictate that the federal regulation trump the state regulation. • Thus, the New York regulatory law is deemed unconstitutional.


'Commerce Clause History' [edit]

Case Brief: Wickard v. FilburnNAME: Wickard v. Filburn (SCOTUS 1942)FACTS:Agricultural Adjustment Act of 1938 limited the area that farmers could devote to wheat production in an effort to stabilize the national price of wheat, control surplus/shortages• Filburn (P) owns a small farm in Ohio. He sowed 239 bushels more than allowed by fed Act• Under the act, these were considered “farm marketing excess” and subject to $117 penalty. He did not pay or submit excess wheat to Agro deprt.• Agro Committee refused him a marketing card (to sell wheat), so he sued Secretary of Agriculture Wickard (D) and others seeking enjoining.• P argued that his farming was beyond reach of Commerce Clause since (1) local in character, and(2) impact on interstate commerce are “indirect” at best• D argued that (1) not regulating production, but just the marketing (sale), and (2) Even if it does regulate sale, it’s covered by the N&P clause for interstate commercePROCEDURAL HISTORY: District Court and Circuit ruled for P. D appealed to SCOTUS.ISSUE: Whether the Act extends federal regulation to wheat intended for personal use, not commerce?DECISION: Yes it does, and this home-grown production competes with interstate commerce.HOLDING: Even if the production is home-grown and not intended for commerce, it still is subject to Congressional regulation if it “exerts a substantial economic effect on interstate commerce,” whether direct or indirect.REASONING:• The intent of the legislature was to reach all production of wheat. “Consumption” or “production” or “marketing” is semantics.• Interstate: States with low production of wheat depend on surplus of other states.• Foreign: Surplus wheat also greatly impacts our foreign trade.• Government intends to have regulated price of wheat, by limiting supply or increasing demand. The over-production of wheat impacts price since there is more on the market.• Even if for personal consumption, if farmer didn’t have that wheat he would’ve purchased on the open market. Since he didn’t, that has impact on price of wheat.• Sure, maybe trivial effect on his own, but when combined with others “similarly situated” it becomes a big impact on market of wheat.

Case Brief: United States v. LopezNAME: United States v. Lopez (SCOTUS 1995)FACTS:• In 1990, Congress passed the Gun-Free School Zones Act (GFSZA), making it a federal offense "for any individual knowingly to possess a firearm in a place that the individual knows, or has reasonable cause to believe, is a school zone."Lopez (D), a student who brought a gun to his high school, was confronted by school authorities. Arrested and charged under state law. Then released and charged by fed agents with violating the GFSZA. Lopez was tried and convicted.• In his appeal, he brought suit against the United States government (plaintiff), challenging the constitutionality of the GFSZA as a regulation based on Congress’s Commerce Clause power.• Fed argued that possession of gun in school zone affects commerce in three ways o 1. May promote substantial violence → higher insurance costs o 2. May discourage individual travel to areas of country considered unsafe o 3. Affects education → less productive citizenry → hurts Nation’s economic well-being PROCEDURAL HISTORY: Fifth Circuit agreed with Lopez and reversed his conviction. Appeal to SCOTUSISSUE: Can Fed Act regulate the possession of a handgun in a school zone pursuant to Comm Clause?DECISION: No. Affirms Circuit court.HOLDING (Rehnquist): Possession of a gun in school zone is not economic activity and has no substantial affect on interstate commerce. Cannot be regulated by the Fed on basis of commerce clause.REASONING:• Precedent recognizes strict limits on Commerce clause• Congress may regulate only three broad categories of activities: (1) the channels of interstate commerce; (2) the instrumentalities of, or persons or things in, interstate commerce; and (3) activities that substantially affect or substantially relate to interstate commerce.• Here, the GFSZA does not regulate the channels or instrumentalities of interstate commerce. Therefore the analysis must focus on the third category: substantial affect.• Carrying doesn’t affect commerce, either substantially or otherwise. The GFSZA is a criminal statute having nothing to do with “commerce” or any economic enterprise. No relevant commercial or jurisdictional elements.• Response to Govt’s arguments o 1/2. If you regulate this, you’d have to regulate ALL actions that might lead to crime o 3. Everything affects citizenry productivity (like home life). Slippery slope…• The limits and power we give to Commerce Clause will always engender “legal uncertainty” Per Jones & Laughlin Steel, commerce clause power “is necessarily one of degree”CONCCURANCE 1: Kennedy (plus O’Connor). The GFSZA upsets the balance of power between the federal and state governments. Education is a traditional concern of the states. It is for states to determine whether harsh criminal sanctions are necessary to deter students from carrying guns on school premises.CONCCURANCE 2: Thomas.• (1) Congress does not “police power” under CC, so case law has always recognized limits of it. • (2) At time of ratification, “commerce” was conserved selling/buying/bartering and transport for those purposes.• (3) Constit does not say “regulate matters that substantially affect commerce.” Founders could have included that if they wanted.(4) Art V. clearly limits commerce power of Congress by prohibiting changes to slave trade.• (5) Art I.8 recognizes some commercial powers, so why assume others implied by N&P clause?• (6) Fed No. 17 shows Hamilton thought Fed shouldn’t regulate agriculture. Up to state.DISSENT: Breyer (plus Stevens Souter, Ginsburg). Firstly, Congress’s power to regulate commerce among the several states encompasses the power to regulate local activities insofar as they significantly affect interstate commerce. Secondly, the Court must consider not the effect of an individual act, but rather the cumulative effect of all similar instances when determining whether an activity affects interstate commerce. Thirdly, the Constitution requires the judiciary to give a very deferential review of Congress’s determination that a regulation relates to its requirement of furthering and protecting interstate commerce. Based on these principles, the proper inquiry should have been whether Congress rationally could have found that violent crime in school zones, through its effect on the quality of education, substantially affects interstate commerce. When all practical realities surrounding the problems of guns near schools are considered, the answer could not be anything other than in the affirmative. A significant logical connection exists between gun regulations and promoting interstate commerce.• Counter by Rehnquist: Doesn’t give example of where State>Fed for regulation. Also the proposed limit on Cong to family law is discounted by the expansive Fed power. Lacks limits.• Counter by Thomas: “Cumulative effect” test is a slippery slope.Case Brief: Hammer v. DagenhartNAME: Hammer v. Dagenhart (SCOTUS 1918)FACTS:• In 1916, in response to increasing concerns over child labor conditions in mills and factories, Congress passed Act which prohibited goods made by children under a certain age from being sold in interstate commerce.• Dagenhart (plaintiff) brought suit on behalf of himself and his two sons, who were minor children employed in a cotton mill in North Carolina, against Hammer (defendant), a UnitedStates attorney, alleging that the Act was an unconstitutional exercise of Comm Clause Power.PROCEDURAL HISTORY: The District Court of NC held that Congress acted unconstitutionally in attempting to regulate a purely local matter. Both Hammer and the United States appealed to the United States Supreme Court.ISSUE: Is Congress regulation of interstate commerce of goods produced in factories with child labor fair by Comm Clause, 10th Amend and 5th Amend?DECISION: No. Affirms district court.HOLDING: No. Congress’s actions in passing the Keating-Owen Act violated the Constitution in two ways.REASONING:Firstly, Congress inappropriately attempted to regulate interstate commerce for the underlying purpose of seeking to standardize child labor regulations among the states. The regulations bear no relationship to the goal of promoting interstate commerce as required by the Constitution.• Secondly, child labor is a purely local issue that should be regulated by individual states. Hence, even if Congress did have an appropriate purpose for passing child labor regulations, doing so would violate its Commerce Clause powers under the Constitution. Child labor relates to the production and manufacture of goods, and bears no relationship to the entry of those goods into the streams of interstate commerce. Once the goods have entered the stream of commerce, all issues relating to their production are moot.• Thus, because child labor in the production of goods is a purely local matter, Congress may not regulate it under its Commerce Clause powers.DISSENT: Holmes. Policy Q. The majority should not have disavowed the regulations passed by Congress as being an inappropriate attempt to influence states’ internal policies. The immediate effect of the Keating-Owen Act is strictly to regulate the shipment of certain goods in interstate commerce. Regulating all aspects of interstate commerce is the exclusive right of Congress. It is improper for the judiciary to make a value judgment as to the propriety of Congress’s reasons for issuing these particular regulations of interstate commerce. Congress was making no specific ruling as to how states had to govern their internal commerce or craft their child labor policies.

Case Brief: US v. MorrisonNAME: United States v. Morrison (SCOTUS 19)FACTS:ISSUE: (1) May Congress, pursuant to its Commerce Clause powers, create civil remedies for victims of gender-based violence to sue their attackers in civil court? (2) May Congress regulate the discriminatory conduct of private actors under §5 of the Fourteenth Amendment?DECISION: No. Affirms district court.HOLDING: Takeaways: (1) proper inquiry, and (2) criminal activities are not economic.(1) No. In United States v. Lopez (1995), the Court held that Congress may regulate only three broad categories of activities: the channels of interstate commerce; the instrumentalities of, or persons or things in, interstate commerce; and activities that substantially affect or substantially relate to interstate commerce. The United States argues that Congress may regulate gender-based violence because it is an activity substantially affecting interstate commerce. However, a key consideration in Lopez was the criminal, non-economic nature of the conduct at issue. Similarly, gender-based violence is a noneconomic activity. No legislative history or other findings indicate that gender-based violence has an effect on interstate commerce. Any link between the two is attenuated. The United States argues violence against women affects the travelling, engaging of business, and employment in interstate commerce of women as a group. This argument is rejected as Congress cannot regulate non-economic,
violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. The decision of the district court is affirmed.(2) No. The Fourteenth Amendment places limitations on the manner in which Congress may attack discriminatory conduct. For example, it is a well-settled principle from the precedent decisions in UnitedStates v. Harris, 106 U.S. 629 (1883), and The Civil Rights Cases, 109 U.S. 3 (1883), that the Fourteenth Amendment only prohibits discriminatory state action, not private action. The United States government argues that this principle should be overturned and applied to private action of the type prohibited in the VAWA. However, this argument is dismissed on the grounds that the principle of stare decisis does not justify overturning those decisions and thereby greatly expanding the scope of the Fourteenth Amendment. The VAWA attempts to provide a remedy against private individuals accused of gender-based violence and not state officials. Thus it is an unconstitutional exercise of both Congress’s Fourteenth Amendment and Commerce Clause powers.CONCURRANCE: Thomas. The majority correctly applied its reasoning in Lopez to the present case. Any kind of “substantial effects” test that would allow non-economic activity to be regulated by Congress under the Commerce Clause is inconsistent with early Commerce Clause jurisprudence and thus should not be permitted.DISSENT: Breyer. The majority’s opinion is flawed in that it does nothing to help create a workable standard for Commerce Clause jurisprudence. Firstly, the distinction between economic and noneconomic activity is very difficult to define. The majority does nothing to clarify this distinction. Secondly, the majority disregards principles of federalism in overruling Congress’s determination, supported by legislative history, that violence against women has a substantial impact on interstate commerce. Finally, the majority’s holding fails to set a standard for determining the constitutional limits of Congress’s regulatory activity.DISSENT: Souter. The majority’s decision departs from settled Commerce Clause jurisprudence. Congresshas the power to regulate activity that, in the aggregate, has a substantial effect on interstate commerce. The right to determine what has a “substantial effect” on interstate commerce belongs to Congress and not the courts. The present case differs from Lopez because in this case, Congress passed the VAWA after hearing substantial testimony about the negative effects of gender-based violence on women’s ability to maintain employment and be productive members of society engaged in interstate commerce. Thus, Congress made a well-informed decision in deciding to regulate an activity that it believed had a substantial effect on interstate commerce. The majority should have honored that decision.


'Commerce Clause Evolution (2)' [edit]

• Gonazles v. Raich (SCOTUS 2005) o FACTS: Raich and Monson use medical marijuana in California under the CACompassionate Use Act of 1996. Fed DEA agents raid their house and sieze/destroy theirpot under the federal Controlled Substances Acts. Raich sues the US Attorney General and DEA head for injunctive and declaratory relief. Claim that CSA extends Commerce Clause too far + violates Due Process + violates 9th/10th Amend + violates doctrine of medical necessity.o ISSUE: Does prohibition against privately-grown, personal-use medical marijuana in CA by the federal CSA pose an unconstitutional extension of fed power under the Commerce Clause?o HOLDING (Stevens): 6-3. No. Congress can regulate privately-grown, personal-use marijuana as long as (1) Congress has a rational basis for concluding that it will affect national price and market conditions, and (2) it is an economic activity. Both conditions satisfied here. o REASONING:▪ (1) Congress, like in Wickard, can rationally conclude that home-consumed marijuana will impact interstate supply-demand market.• Rational basis established based on similarity to Wickard. Both are “cultivating, for home consumption, a fungible commodity,” with established interstate market (even if illicit).o Counter from Thomas: Shouldn’t look at the aggregate of all weed, just the “class” of private, homegrown, medical weed: wouldn’t otherwise enter stream of commerce and not sizeable in aggregate for substantial impact like Wickard wheat.▪ Counter from Scalia: Doesn’t matter. Noneconomic, but you still need to regulate for the scheme (like employment records (Darby))• Congress is not required to make particular findings that show economic impact in order to legislate (see Lopez), just that “rational basis” exists.▪ (2) Unlike Lopez and Morrison, drug activities regulated by CSA are“quintessentially economic.”• The personal-use, privately-grown medical marijuana makes up essential part of larger regulatory scheme.▪ Expansion of Commerce Clause not exceeded• Congress found that marijuana has no “acceptable medical uses”• CSA designates marijuana as contraband for any purpose▪ POLICY: Slippery slope: If you said this didn’t impact national market → then private use of any drug doesn’t either + recreational use doesn’t either → entire drug enforcement regime• Counter from O’Connor – But all activities have some privately produced analogue that we allow (like homecare v. daycare)▪ State law can’t stop National law • Supremacy clause• CA can’t “hermetically [seal] off” its weed market from national market.▪ Congress has right to limit home-regulation by legislation under the N&P clause. o CONCCURANCE (Scalia): Decision should be based on Lopez test. Channels, instrumentalities, and substantial affect. N&P is key, not Comm Clause. As long as “reasonably adapted.”Channels and instrumentalities are inherently part of the interstate commerce, but substantial affect is not and must be decided by something besides Comm Clause. Instead, it comes from N&P.▪ Where necessary to make regulation of interstate commerce effective, Congress can regulate intrastate activities that don’t themselves substantially affect interstate commerce. • Limited. Can’t apply to noneconomic activities (Morrison/Lopez)▪ Only question is if the means are “reasonably adapted” to achieve goal▪ Plus, the nature of weed (fungible commodity) makes it economic o DISSENT (O’Connor): This would infringe on federalism and state sovereignty.▪ States’ core police powers includes defining criminal law and protecting health, safety, and welfare of citizens▪ This decision allows Congress unchecked rule on intrastate activity as long as it can imply regulation is essential to interstate regulation. Makes Lopez “nothing more than a drafting guide.”▪ Congress reach should be limited by medical v. nonmedical use, and not cross into criminal law/social policy (where States rule)▪ Where do we draw the line in what is economic activity?o DISSENT (Thomas): (1) Personal medical weed is not interstate or commerce. (2) Limiting it is not N&P for federal regulatory scheme.▪ (1) Original meaning of “commerce” is “trade or exchange.”▪ (2) Medical marijuana is not economic, and would have no substantial impact on market or govt’s regulation of it.Delhi Sands Flower-Loving Fly• NAHB v. Babbett – Holding was that flies couldn’t be taken, but the underlying reasoning was unclear.• Three DC Circuit judges offer 3 competing explanations of whether Endangered Species Act can constitutionally require protection of Fly’s habitat o 1) J. Wald▪ ESA’s takings provision fits with first Lopez category – use of channels. Congress can controls transportation of endangered species + keep commerce free from immoral uses.▪ ESA’s takings provision also fits third category – substantial effect on interstate commerce. Statute protects biodiversity and avoids interstate commerce that is destructive to endangered species.o 2) J. Henderson▪ Meets the third category, but for different reasons that Wald says. o 3) J. Sentelle▪ ESA can’t be applied to the Fly’s habitat because it falls outside all three categories of Lopez• Each judge focused on a different questiono 1) J. Wald – Was there sufficient relationship btw endangered species and interstate commerce? Found that yes.o 2) J. Henderson – Was there relationship btw hospital and interstate commerce? Yes. o 3) J. Sentelle – Was there relationship btw Fly and interstate commerce? No.• General issue: Whether a statue based on a broader aggregation can constitutionally be applied to a narrow category that lack the required substantial relationship to interstate commerce? o The idea is that flies have no economic impact, but there is value in preserving them o So, can you work around that lack of relationship by aggregating to all endangered species?Rancho Viejo LLC, v. Norton (D.C. Cir 2003)• FACTS: Rancho Viejo (P) is a real estate development company wanting to build housing development in San Diego.US Fish and Wildlife Service says P’s construction would jeopardize habitat of arroyo southwestern toad, an endangered species. P filed suit challenging application of Endangered Species Act as unconstitutional exercise of federal authority under Comm Clause. District court dismissed suit. P appealed.• ISSUE: Is the US Fish and Wildlife Service’s prohibition on Rancho Viejo’s building into endangered species’ habitat an unconstitutional exercise of fed power under Comm Clause?• HOLDING (Garland): Unanimous. No, it is totally constitutional. W/r/t animals that doesn’t affect interstate comm itself, a take can be regulated if and only if the take itself substantially affects interstate commerce.• REASONING:o Mirrors NAHB case, so using its reasoning of application of Lopez. Taking provision ofESA falls under third Lopez category (substantial affect on interstate comm). 2 reasons:▪ A) Loss of biodiversity itself has substantial effect on ecosystem and interstate comm (ex: lost potential future commerce of the animal, study of it, and/or analysis of its genetic material)▪ B) Protection of the species substantially affects commercial development, which impacts interstate comm in turn.o Rests its cases primarily on explanation B.o P doesn’t object that the building project will have substantial interstate comm effect. ▪ It’s being built on interstate highway, will require construction materials from outside state, and will likely employ in-state and out-of-state laborerso ESA regulates takings (of toad habitat), but not toads themselves → takings and the resulting commercial construction will have comm affect → valid exercise of Fed powero POLICY: P argues that this encroaches on state authority. But ESA represents a national response to specific problem of “truly national” concern. ▪ Backed by 4th circuit Judge Wilkinson in Gibbs case. If fed doesn’t protect habitats, “states may… forgo or limit conservation efforts” in order to lower development costs and compete with other states ➔ race to the bottom.• SCOTUS affirmed this is an interstate commerce issue that would result in damaged quality of national environment.Backed by EPA legislative history.• CONCURRANCE (Ginsburg): Emphasis on holding and that there is “logical stopping point” of this ruling.


Commerce Clause Summary/Review & Move to Tax and Spend[edit]

United States v. Kahriger (SCOTUS 1953)• FACTS: The Revenue Act of 1951 taxes people in the business of accepting wagers and requires them to register with the government to pay the tax. Kahriger (D) was involved in illegal wagering activities, failed to register and pay the tax. Kahriger challenges the Act on two grounds: (1) It violates 10th Amend by attempting to regulate instrate gambling, and (2) that it violates 5th Amend by forcing people to self-incriminate.• PROCEDURAL HISTORY: Sued in District Court of PA. District Court dismissed on grounds of tax being unconstitutional.• ISSUE: Is the tax set out on gambling institutions in the 1951 Revenue Act unconstitutional?• HOLDING (Reed): 6-3. No, it’s not unconstitutional. Overturns lower courts. (1) Unless there is non-tax related stuff in the Act, it must be considered a valid tax. (2) The registration requirements are fine.• REASONING: o PRECEDENCE: Lots of similar taxes that have been upheld. Like License Tax Cases.▪ Doesn’t matter that Congress had “intent to curtail and hinder, as well as tax.” Can see again from prior taxes upheld.▪ Unclear why power to tax should raise more doubt from indirect effects than that of N&P and CC powers, which have generally been sustained.o Instant tax has a regulatory effect, but nevertheless, it produces revenue. Thus valid tax.o TEXTUAL: Very few constitutional restraints on taxing.o POLICY: Leave remedy for excessive taxation to Congress, not the Courts.▪ Supported by McCulloch. Don’t “tread on legislative ground.” o The registration doesn’t violate 5th Amendment▪ It’s all very straightforward information generally required in tax returns, and it serves “in aid of a revenue purpose.”▪ Right not to self-incriminate only applies to past acts, not to future acts that might be committed. In this case, D is not required to confess to acts already committed. But if he continues to do illegal stuff, that’s on him.• Counter from Jackson: 5th Amendment is broadly construed to cover self-incrimination by info that “might be useful later to convict.”• CONCURRANCE (Jackson): Although Congress may use its taxing power to discourage certain behavior, this law falls within the outer limits of constitutionality.o The 5th Amend is “broadly construed” to cover self-incrimination by info that “might be useful later to convict,” but shouldn’t be construed to limit the tax power too much. o All taxes have some “economic and social consequences,” but this one seems not to be “rational or good-faith revenue measure,” rather just a way to prohibit gambling where prosecution has failed.• DISSENT (Frankfurter): Congress should not be allowed to regulate through the use of the taxing power what it is not empowered to regulate by the Constitution. This is a Federal overreach into State powers – upsets balance of powers.o TEXTUAL: Constitution gives Cong the power to tax only in relation to other powers (like interstate commerce).o PRECEDENCE: If Homes’ dissent in Hammer had been the majority, child labor would have been prohibited. But it wasn’t.o This is clearly attempt to control behavior that is Constitutionally left to States o 1) The “scheme of administration” applied here goes well beyond fiscal needs o 2) Enforcement of this Act is designed to elicit “systematic confession of crimes”• DISSENT (Black): Plus Douglas. This creates a “squeezing device” that puts someone either in federal prison if he refuses or state prison if he consents. Bill of Rights condemns coerced confessions.

Bailey v. Drexel Furniture Co. (SCOTUS 1922)• FACTS: Drexel Furniture Co (P) manufactures furniture in NC. Bailey (D) is US IRS collector for NC. Sec 1200 of the Child Labor Tax Law prohibits factories from employing kids under 14 and limits hours of kids 14-16. P was caught employing a boy under 14, and was taxed at 10% of annual profit (per the Act). P paid tax under protest and sued. Alleges the Law violates 10th Amend. D alleges that it is not a regulation of State behavior, but an excise tax under Art I.8.• PROCEDURAL HISTORY: Sued in District Court. Judgment given to P. D appealed.• ISSUE: Does the Child Labor Tax Law violate the 10th amendment?• HOLDING (Taft): 8-1. Yes.• REASONING:o This is a tax clearly meant for “prohibitory and regulatory effect and purpose.” A good sought in unconstitutional legislation is unacceptable. o This tax is too blatant assumption of powers that states never parted with. Violates 10thAmend, would leave Congress unlimited constitutionally, and hurt State sovereignty o Scienter is associated with penalties, not with taxes. Difference btw penalty and tax is blurry, but this is a penalty b/c its focus is regulation and punishment. ▪ Congress has no power to regulate/punish here. This does not fall underCommerce Clause (or Tax) authority, as its indistinguishable from Hammer • Source: McCulloch v. Maryland – Overextended Cong power is not “law of the land” o Three cases distinguished from present one Vezie Bank v Fenmo, b/c that was about excessive tax but had no regulatory purpose. Excessive tax on its own isn’t unconstitutional. Rationale is that if it so excessive, leave the remedy to voters to oust the bad Congressmen. ▪ McCray v. US – Same as Vezie. “oppressive, or even destructive” tax is fine if it is on properly taxable subject. ▪ Flint v. Stone Tracy Co. – Tax on business. Same thing o US v Doremus – Special tax on manufacture of coca leaves. Tax on sale and distribution of drugs had “reasonable relation to the enforcement of the tax.” Valid. DISSENT (Clarke)South Dakota v. Dole (SCOTUS 1987)• FACTS: A South Dakota law permitted persons over nineteen to buy beer containing up to 3.2% alcohol. In 1984, Congress passed 23 U.S.C. §158, which directed the Secretary ofTransportation, Dole (defendant), to withhold federal highway funds for states that allow beer sale to people under 21. SD (plaintiff) sued Dole and US govt in seeking a declaratory judgment that Section 158 violated constitutional limits on Congress’s spending power and the TwentyFirst Amendment.• PROCEDURAL HISTORY: District Court rules for US. Court of appeals affirmed. P appealed.• ISSUE: Does Congress have constitutional power to withhold federal funds from states that don’t meet federal conditions?• HOLDING (Rehnquist): 7-2. Yes, its constitutional indirect action pursuant to Spending Clause, even if Congress can’t regulate drinking age directly. 25th Amendment not necessary to address.• REASONING:o Congress has “incident” power to attach conditions on the receipt of federal funds, pursuant to Art I.8.1 Spending Clause powers. Congress not limited to enumerated powers. ▪ Precedent: United States v. Butler (1936) – “power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” o Four potential restrictions on spending power ▪ 1. Per language of Constitution, action must be in pursuit of “the general welfare.” This is up to judgment of Congress. ▪ 2. Condition must be communicated “unambiguously,” so states can decide to follow or not. ▪ 3. Must have some “federal interest in particular national projects or programs” ▪ 4. Not barred by other constitutional provisions o First three restrictions don’t apply here ▪ 1-3. Different drinking ages creates incentive for kids to drink and drive. This create “interstate problem [requiring] a national solution.” '• One of the points of highway system was “safe interstate travel.” • Presidential commission showed lack of uniformity in drinking ages leads to drunk driving
• Congress conditioned federal funds in a “reasonably calculated” way ▪ 4. Does 21st Amend pose an “independent constitutional bar?” No. US v. Butler shows Constit limits on spend power is less than limits on direct regulation. • The key rule is simply that Congress may not force States to engage in unconstitutional acts themselves. o Spending power conditions may be unlawfully coercive, but not the caseh ere. This is relatively small percentage of certain fed highway funds.
DISSENT (Brennan): Regulation of minimum age for buying liquor is pure state power under 21st Amend. Fed can’t impose condition that would “abridge this right.” Upsets balance of power.• DISSENT (O’Connor): This condition is not “reasonably related” to expenditure of fed funds. It’s attempt to regulate sale of liquor, which is not in Congress’ power to regulate commerce. o Agrees that Congress can impose condition of funds, and with the four limitations o Agrees it meets “general welfare” and no independent bar limits. Not the other two.o 3. Not sufficiently related to interstate highway construction to justify conditioned funds▪ Counters Rehnquist. If the purpose of the funds is to stop drunk driving, then it’s too over and under-inclusive. (A) Over-inclusive = stops teenagers drinking even when not about to drive. (B) Under-inclusive = teenagers only fraction of drunk driving problem…. This is too attenuated!▪ Slippery slope. It needs this limitation, otherwise Congress can regulate “almost any area of a State’s social, political or economic life”o Butler has an error. “Crabbed view” of Congress’ regulatory power extent under Comm Clause.o McCulloch v. Maryland – We are to be a Govt of enumerated powers. Don’t go too far.

Four conditions of Federal spending grant to States per South Dakota v. DoleFederal grants to States must:1. Promote “general welfare”2. “Unambiguously” inform states what is demanded of them3. Be germane “to the federal interest in particular national projects or programs”4. Not “induce the states to engage in activities that would themselves be unconstitutional”

Net Neutrality DebateFCC Position o Apply to Rehnquist test – This is a commerce activity ▪ 1) Channel• It’s the means of commerce, so its commerce (per river analogy of Wickard)o Counter: By SCOTUS hasn’t said so explicitly.▪ 2) Instrumentality▪ 3) Substantial affect• Yes, very much tied to economics. Both parties agree that ppls’ business relies on commerce• Yeso Stevens: It’s an economic activity. There is a market for internet, so govt can have regulatory scheme that this would undermine.Per Raich.▪ Counter: But are we regulating the access of internet, or the delivery of service? The access itself is not economic. No production or consumption.• Counter: But it’s a part of regulatory scheme. Even if its noneconomic, goods can be regulated as part of national regulatory scheme. See Raich, Scalia concurrence that this falls under N&P. Dormant commerce clause.o Counter: But the regulation is not commercial, because access isn’t economic.▪ Counter: But there is a potential economic market. Access is going to become economic once the ISP plans go into affecto Not attenuated – very much tied to economics. Both parties agree that ppls’ business relies on commerce• No (see Thomas argument – Original intent is manufacturing, agriculture, etc.)o This is Supremacy Clause▪ Counter: the 2018 FCC is simply interpreting the Congressional Communications Act. They are pushing their own policy → violation of nondelegation doctrine.• Counter: (1) If the 2018 FCC policy is violation, then so was the 2015 FCC policy. (2) This is closer in line to Congress’s intent in “computer services, unfettered by Federal or State regulation.” There is intelligible principle.o Counter: Doesn’t matter if 2015 FCC one was unconstitutional.It’s still up to states to legislate.CA Position o Sen. Weiner: You are letting FCC or Court regulate as unelected agencies – nondelegated doctrine▪ Echoes the dissent of White in INS v. Chadha▪ Counter: It’s not a violation because it follows intelligible principles sufficiently laid out in the 1996 Telecommunications Act. Supported by the long-standing nature of the act. Also, Fed 81 – judiciary is in best too Runs up on police power o Under 10th Amend, you can’t regulate a public utility. Doesn’t fall under 10th Amend. ▪ Fed 51 supports – You need balance of sovereigns


10'th' Amendment Constraints[edit]

Printz v. United States (SCOTUS 1997)[edit]

FACTS: Gun Control Act of 1968 enacted detailed fed scheme over distribution of firearms. Congress passed Brady Act in ’93 to amend GCA, requires national instant background-check system. Brady Act also has interim provisions until full system in place, requiring gun dealers to submit buyer info to police. State CLEOs (chief law enforcement officers) then must take 5 days to make “reasonable effort” to determine if the particular sale would be lawful. Violation of Brady Act results in fine/jailtime.• Printz and Mack (Plaintiffs) are CLEOs in MO/AZ. Suing US govt on basis that Brady Act’s interim provisions are unconstitutional. Congress can’t compel state officers to execute fed law.PROCEDURAL HISTORY:'ISSUE: Is it constitutional for the federal government, via the Brady Act, compel state officers to conduct background searches on the purchase of firearms?HOLDING (Scalia): 5 – 4. No. Congress may not compel state officers to administer federal programs. It violates constitutional practice in history, structure of Federalism, and holding of New York v. USDECISION:'REASONING:• There is no constitutional text on this topic. Instead analyze history, Constit structure, precedent• History o At no point in US history has Congress imposed fed duties on state executives “w/o the consent of the States”o Constitution originally understood to permit fed imposition only on State judges o Without explicit grant of power to impose on state exec, assumed absence of powerStructure o Upsets balance of power on two fronts: (1) State-Fed and (2) Three Fed Branches o (1) It would give too much power to Fed to control state police. Balance important▪ Textual args for State sovereignty: Art IV.3 (state territorial protection), JudicialPower Clause (Art III.2), Priveledges and Immunities Clause (Art IV.2), Art V
(Amendments), Guarantee Clause (Art IV.4), states rights implicitly protected for those not enumerated in Art I.8 (10th Amendment)o (2) This is a Federal Executive duty, specifically Pres. Would “shatter” unity of his role▪ Historical: Cites Fed. 70 arg on “unity in Fed Exec” for execution of law▪ Textual: Art II.3 (Take Care Clause) o Can’t be a N&P act, because any act that violates state sovereignty to execute an Art I.8 power is inherently not “proper”• Jurisprudence: Rests primarily on New York v. United States (1992) o Because Congress can’t compel state legislatures to enforce federal regulatory program, Congress can’t circumvent this by compelling state officers to enforce a fed regulation.DISSENT (Stevens): Plus Souter, Ginsburg, and Breyer.• In a time of national emergency, there’s no written rule that Fed can’t compel state agents o Legis history shows that Congress felt there was emergency “epidemic of gun violence.” As this is a matter of policy, it should be left up to Congress• Textual support for Congressional power here o Art I.8 gives Cong power to regulate commerce. Brady Act is covered here, via Lopez. o N&P backs up Commerce power. Sufficient for a “temporary enlistment” of state troops o 10th Amend doesn’t limit exercise of enumerated powers.o Art VI.3 – Fed law can impose duty on state officers, because they take same oath as Fed officers, to “support this Constitution”• Historical o AoC allowed Fed Govt to command the States. This authority was only gotten rid of because it was “cumbersome and inefficient,” not b/c it “demeaned” state sovereigntyo Federalist No. 15, Hamilton wanted to extend Fed control over all US citizens. Federalist No. 27 – The best way to do this is to compel local officials to implement Fed policies.▪ Counter: Put too much weight on one person’s position. He was the most proFed founder, and his views were beat out by Madison at Constit Convention.• Counter: Just b/c scope of fed power wasn’t expressly addressed, doesn’t mean it wasn’t in existence.o This would undo lots of post-New Deal Commerce Clause jurisprudence ▪ Counter: This is too recent history.o That Fed relied on state judges is indication of power to compel state officers• Structural o State sovereignty not violated – Congress is composed of State reps. Reasonable to assume they feel Fed policy’s benefit to citizens > “modest burdens” imposed on Stateo “Unfunded mandates” not an issue due to Congressional acto Court actually encourages Fed overreach by incentivizing “vast national bureaucracies”• Jurisprudence o New York – The “take title” provision was ruled unconstitutional b/c it was Fed act that encroached on States b/c it compelled them to enact a subsidy. The Majority unnecessarily concludes that Fed can’t compel States to administer laws simply because it can’t compel them to enact new laws.o Minimal requirement on CLEO’s is not a “substantial policymaking” exerciseo Testa v. Katt – Majority misconstrues and devalues that precedent. It required state courts to adjudicate fed claims regardless of their docket constraints, implying Fed Supremacy over any state branches.

New York v. United States (SCOTUS 1992)[edit]

FACTS: In 1985, Congress enacted the Low-Level Radioactive Waste Policy Amendments Act to help get all states to manage their own radioactive waste disposal (rather than just NV, WA, and SC). The Act gave states three incentives to manage their own waste: (1) Monetary incentive for opening waste sites, (2) Access incentive so states w/o sites can be denied access to other states’ sites, and (3) Take-title provision which required a state, upon request of a waste-generator within its borders, to take title to the waste and pay damages to the generator for any harm caused by the state’s failure to take title fast enough.• NY state (P) sued US govt (D), alleging that the Act was unconstitutional under the Tenth Amend and the Guarantee Clause (Art IV). Particularly, Cong violated Constit by requiring States to regulate in the field of waste management.PROCEDURAL HISTORY: Fed district court dismissed complaint. Court of Appeals affirmed. P appealed.ISSUE: Is it constitutional for Congress to compel states to take-tile of waste or otherwise pay damages to state generators, per a federal regulatory regime?HOLDING (O’Connor): No. Congress may not pass regulations that have the effect of “commandeering” states’ legislative processes.REASONING:• Constit gives Congress power to regulate individuals, not states o Historical: In AOC, Fed had no legis power to directly regulate ppl. So Constitution was intended to correct that (see Federalist No. 15).• Congress can still “encourage” State to regulate and “hold out incentives” to States. States still have ultimate decision whether to comply or not.o 1. Spending Power can be used for conditional Fed funds – S. Dakota v. Dole o 2. Comm. Clause. State law can regulate private activity according to Fed standards or else be pre-empted by Fed regulation.• But Fed can’t compel states to regulate o Precedence: Hodel v. Virginia Surface Mining says Congress can’t compel state legis to enforce fed regulatory program.o Policy: Lowers accountability. Fed sets regulation, but State officials must bear brunt of public disapproval cus they’re carrying it out. So State acts against citizens’ wishes.• (1) Monetary incentives are fine under Congress’ authority to burden interstate comm, federal tax authority, and Spending Clause holding out.• (2) Access incentives fine per Commerce Clause. State’s have choice to follow or be pre-empted• (3) Take-title provision not constitutional. Compels state govts to do fed regulation.o Forced transfer of title or payment for failure is either unconstitutional compelled action or “no different than a congressionally compelled subsidy from state governments.”o Gives states false “choice” btw two things which are both unconstit Cong overreach• Just b/c State governors consented to this doesn’t negate unconstitutional infringement of state sovereignty. State sovereignty is for benefit of the people, not state governments. Fed. No. 51 o States (like Exec in INS) can’t consent to abdication of their Constitutional powersCONCURRENCE/DISSENT (White): Plus Blackmun and Stevens. The Act does not violate the Tenth Amendment because it represents a compromise where everyone consented to this “compact” btw states. Congress merely doing its Art I.10.3 duty to referee.The Act is a constitutional exercise of Congress’s Commerce Clause powers. It is simply trying to incentivize regulatory scheme by giving incentives and state choice. Argument that the states’ choice btw two options is a straw man.CONCURRENCE/DISSENT (Stevens): The Act is a constitutional exercise of Congress’s Commerce Clause powers. The federal government already regulates state actions in the administration of various environmental programs, public services, military drafts, and a host of other state functions. These are valid under Art I. No distinction exists between Congress’s ability to regulate these programs according to federal standards and its ability to enforce federal standards for the disposition of low-level radioactive waste… Plus, AOC allowed Fed command of States. No indication this was lost in Constit.


'Health Care' [edit]

National Federation of Independent Business v. Sebelius (SCOTUS 2012)[edit]

FACTS: The NFIB, 26 states, and a number of individs and businesses (Plaintiffs) filed suit in several different federal district courts against Sebelius, Sec. of Dept. of HHS and others (defendants). Plaintiffs challenge constitutionality of Patient Protection and Affordable Care Act of 2010 (Obamacare) enacted by Congress. Specifically, two provisions of the act. (1) Individual mandate, requiring U.S. citizens to pay a penalty if they don’t purchase health insurance policy. (2) Medicaid expansion provision, requiring the states to greatly expand the pool or risk losing their existing federal funds• (1) Individual Mandate – Govt argues this is covered by Comm Clause and N&P. Govt can regulate national health insurance market. If healthy people don’t buy into insurance, there is “cost-shifting,” where companies raise premiums super high or out-right exclude ppl with preexeisting conditions. Thus, its N&P, b/c failure to purchase has “substantial” bad effects on interstate commerce.• (2) Medicaid Expansion – Govt arg that its valid under Spending Clause.PROCEDURAL HISTORY: The several district courts reached different conclusions. District court of FL held in favor of the plaintiffs and struck down the Act in its entirety. 11th Circuit affirmed in part and reversed in part, concluding that the individual mandate was unconstitutional but severable from the rest of the Act.ISSUE: Does Congress have the constitutional authority to pass (1) individual mandate and (2) the Medicaid expansion provision of the ACA?HOLDING (Roberts): 5-4. The ACA is constitutional in part and unconstitutional in other. (1) Individual mandate is constitutional under Tax Power, not the Commerce Clause. (2) Medicaid expansion not constitutional as Spending CLause; it violates Federalism (10th Amend) by compelling state performance to enact a Fed policy. Medicaid expansion provision is severable, and entire rest of ACA is valid.REASONING:• (1) Individual Mandate not valid under Comm Clause.o There is no existing commercial “activity” to regulate, so regulation not warranted. o Instead mandate compels individuals to become active in commerce by purchasing a product on the ground that their failure to do so affects interstate commerce.o Possibility (or even assurance) that individuals will act commercially at some point in the future is not sufficient justification for Comm Clause regulation… ▪ If not presently performing commercial act, not actually “active in the market”▪ All precedent cases show some “preexisting economic activity”▪ Distinguished from Wickard – farmer was engaged in wheat production! o Validating the individual mandate on this ground would open the door to all sorts of regulation. Congress would have unlimited power to compel individuals’ actions.▪ Relevant ex: Fed could just as well compel obese ppl to buy vegetables.▪ Counter (Ginsburg): Congress still limited (1) Can’t regulate nonecon activity w/ only “attenuated effect” on interstate comm and traditionally left to states (2) Can’t violate other Constit provisions (3) Democratic process checks onCongress (4) To assume the worst would be “piling inference upon inference”o Not what Founders would want: Madison had no apprehension in Comm Clause (#45)• (1) N&P is insufficient to justify Individual Mandate o Precedence upholds authorities “derivative of, and in service to, a granted power” o Already shown that this provision is not valid under Comm Clauseo Given that it’s not “narrow in scope” or “incidental” to a valid Comm Clause power, it would be outside Congressional authority• (1) Individual Mandate valid under Tax Power (Art I.8.1) o Penalty for violation shares core features of a tax (see p 639) – raises $ for govt o Bailey v. Drexel was a penalty, not tax, per a 3-factor test.o Applying the Bailey test here, Individual Mandate constitutes a tax.▪ A) Not a “prohibitory” fine. Amount due for violation is less than insurance. ▪ B) Contains no “scienter” requirement (ie knowledge of wrongdoing)▪ C) Collected solely by IRS via normal means of taxation. Not the Labor dept. o It’s fine that it is a policy-inducing tax. That’s nothing new.o Counter to dissent: Doesn’t matter that Congress used lang of “penalty” instead of “tax” o Counter to P: Individ Mandate doesn’t fall under category of direct tax.o It is acceptable to tax an individual for not doing something▪ A) Constitution doesn’t guarantee individuals can avoid taxes by inactivity ▪ B) Tax power is limited. Eventually becomes penalty. See precedent cases.▪ C) Although the tax power has more applicability than commerce regulatory power, it poses less control over individuals. Under tax, no power to compel or punish individuals. Once you pay or refuse, nothing else happens. • (2) Medicaid expansion provision is not constitutional, per limits on Spending Clause o Congress can discretionarily withhold funds from States to encourage policy, but it is limited. Test:o A) States must have a genuine choice whether to accept the offer. Funds withheld can’t be too severe. New York, Printz, South Dakota v. Dole▪ The states are given no such choice here. The financial offer here is “a gun to the head.” They must either accept a basic change in the nature of Medicaid or risk losing all Medicaid funding.o B) Funds being conditionally withheld must directly relate to the program at hand. ▪ Response to Ginsburg: Medicaid expansion is essentially a new program.CONCURRANCE/dissent (Ginsburg): Plus Sotomayor, and Breyer and Kagan (for Individ Mandate). Concurs in judgment, but dissents in reasoning around Comm Clause and Spending Clause.• Comm Clause is valid justification for Individual Mandate o POLICY: Should treat health insurance like Social Security. There is a collective action holdout problem when left just to states.o ORIGINAL INTENT: Framers wanted Comm Clause to act as cure to when individual states didn’t act in the interest of the US as a whole.▪ Counter: This opinion based on a concurring 1983 opinion, not orig docs. o PRECEDENT: Two principles: substantial affects and deference to Congress. Both of those are met here. Congress had “rational basis” for concluding an aggregate affect on interstate comm. Decision to forgo insurance is inherently economic b/c impacts marketo Roberts’ constant about not compelling individuals to become active in market is novel. No supporting precedent. Plus, not applicable, since everyone will eventually consume health care products/services.▪ Roberts’ Counter: Can’t compel currently activity in market b/c will be in future • Counter: (1) Most uninsured still visit physician each year. (2) Defer to Congress on boundary determination. (3) Precedent says otherwise(Wickard + Raich) plus this is most rational b/c eventual use is certain • N&P is valid justification for Individ Mandate o Hodel v. Indiana and Raich show that complex regulatory scheme can call for regulation of some acts not independently covered by Comm Clause if its essential for congressional goal. Individual mandate is essential for coverage of ppl with preexisting conditions, b/c otherwise there would be a death-spiral of insurer opt-outso It is a proper provision: doesn’t infringe on States, just individuals ➔ constitutional• Medicaid Expansion provision is valid under discretionary Spending Power o Medicaid expansion and existing Medicaid are same program with constant aim o States have no entitle to receive any Medicaid funds ➔ not loss of “existing” fundso SD v. Dole decided not to restrict federal conditional grants on basis that they’re not coercive to States…. So why did Roberts assume this condition?DISSENT (Scalia). Plus Kennedy, Thomas, Alito.• Comm Clause interpretation of Ginsburg goes too far. Nonparticipation in market is noneconomic, you can’t say it has substantial affect on market. Comm Clause can only allow regulation of “activity” affecting commerce. “If all inactivity affecting commerce is commerce, commerce is everything.”• Majority is wrong to consider this is a Tax Power.o The Act continually referred to it as a penalty. Court wrong to consider it a tax. o Plus it might be a Direct Tax – this deserves more consideration by court!• Policy: (1) This constitutes “vast judicial overreaching.” (2) States have to waste money on requirements that might be struck down upon congressional revision after this decision.o Structure: This is dangerous overreach by Fed into States.


Executive Power: Direct, Supervise, Control[edit]

Contours• Federalist No. 67 o Hamiltono Critics of the executive have falsely analogized the President with a monarch o Unfair – in some ways, President has even less power than a governor• Federalist No. 68 o Hamiltono Appointment of President best achieved by Elector system of Art II.1.2-4 o Danger▪ Foreign powers will want to undermine US by getting a puppet pres elected▪ If electors were “preexisting body,” they could be tampered with before election and “prostitute their votes”o Elements of Elector system as solution▪ Composed of reps of people – preserve the peoples’ voice for important choice▪ Temporary▪ Sole purpose of choosing president• Federalist No. 69 o Hamiltono Big differences btw President from King

President King
Singular Magistrate Same, but so is khan, governor, etc.
Four year term, reelection subject to People Hereditary monarch
Liable for impeachment, removal, prosecution, and punishment under law “Sacred and inviolable,” can’t be subject to punishment w/o national revolution
Qualified veto power Absolute veto power
Commander in chief Same, but also can declare war and raise and regulate fleets/armies on his own authority
Pardon, except in impeachment Same
Advise Congress on certain matters Same
Convene Congress in emergency Same
Take care that laws be executed Same
Appoint officers, judges, ambassadors Same, but also creates new offices
Limited treaty power, w/ senate approval Absolute treaty power, on any matter
Receivers foreign ministers Same, but really a dignity than authority
No power to give privileges/titles Can confer titles of nobility + create corporations
No religious powers Head of church
No commerce rulemaking power All commerce powers of Art I.8 (embargoes, coinage, create markets, weights/measures)

• Federalist No. 70 o Hamiltono Topic: Importance of “Energy in the Executive” o Benefits of a strong Executive:▪ Protection from foreign attacks▪ Efficient administration of law▪ Protection of property▪ Barrier to control by ambition, factions, and anarchy o History▪ Strong executive is rooted in Roman history - Dictator represented “absolute power of a single man”o Ingredients of Energy in the Executive▪ 1. Unity▪ 2. Duration▪ 3. Adequate provision for its support▪ 4. Competent power o Ingredients of republican safety▪ Due dependence on the people▪ Due responsibility o Unity▪ Essential to energy. One man can operate more decisively, quicker, and discreetly than a large group.▪ Can be destroyed in two ways:• A. Vest executive power in two or more coequal magistrates o Ex: dual Consuls of Rome o Danger of difference of opinion▪ Can “impede or frustrate” government operation▪ Can promote factionalism, where each magistrate gets his own followerso Concern based on human nature▪ When someone is consulted about a decision and loses out, they feel “bound in honor” to try to inhibit the measure from success▪ When not consulted, they just get upset but no worse• B. Vest power ostensibly one on man, but limited to control of others(e.g. counsellors) o Ex: State govts – only NY/NJ have singular executive o Danger of difference of opinion▪ Could promote formation of cabals▪ Even if no cabals, diversity of opinions bogs down operation▪ Responsibility to (1) censure and (2) punish Exec if there is wrongdoing▪ Danger of anything but unity (singular) Executive• 1. Cannot censure b/c accountability lowered with multiple execs (they’ll pass blame)• 2. Can’t punish b/c may be too hard to even discover evidence of wrongdoing• Federalist No. 71 o Hamiltono Topic: Exec duration of service o Two objectives of executive term▪ 1. “Personal firmness” of exec wrt to use of constitutional powers▪ 2. Stability of administrative system under his leadership o Must enable “public happiness” but not allow for “sudden breeze of passion”▪ i.e. balance btw mob rule and monarchy o Need executive b/c legis reps sometimes “fancy that they are the people themselves” → promote their own interests over constituents’o Is 4 years the right term length? Not positive• Federalist No. 72 o Hamilton o Topic: Exec term limitso Three negative ramifications of imposing a Presidential term limit▪ 1) Lose out on leadership that has great benefit of previous experience as President▪ 2) In cases of emergency, public interest/safety might demand the president’s continued service▪ 3) Would operate as a “constitutional interdiction of stability in the administration”• Federalist No. 73 o Hamilton o Topic: Qualified vetoo Advantages of the Presidential veto▪ 1) Pres can “defend himself” from legislature that would strip his powers or try to bring it under his will▪ 2) Additional check on legislature enacting bad laws + protection against legis factionso Defense of Presidential veto▪ 1) Might get rid of some good law, but will get rid of more bad law. Veto will mostly be used to protect status quo, which is for good▪ 2) Will be used sparingly. Pres won’t want to upset Legis which is most powerful branch• Federalist No. 77 o Hamiltono Topic: Consent of Senate to Pres Appointments and Removals + Discussion of Safety o Presidential appointments/removals better subject to Senate approval▪ Stability of administration + check on President o Presidential powers acceptable by Safety concern▪ Due to 4-year term, method of election (temp, specialized reps of people), and liability to impeachment and prosecution▪ Will keep President honest and subordinate to people’s safety • In re NeagleIn re Neagle (SCOTUS 1890)FACTS:• In prior case, SCOTUS Justice Field was riding circuit. Ruled on CA case w/ Mr. and Mrs. Terry. As he was giving opinion, violence broke out. Both Terrys were removed from court-room by officers, threatening violence to Field. Mr. Terry even pulled a bowie-knife, but it was wrested from him by Neagle, a Deputy US Marshal. They were sentenced to imprisonment for contempt.• After trial, Terrys made death threats about Field. Got a lot of media attention, and US Attorney General made special instruction to Neagle to bodyguard Field when he returned to CA.• Field rode circuit in CA again. Field and Neagle were on train that stopped in Fresno, and Terrys boarded. Mr. Terry repeatedly punched Field while Mrs. Terry went to get a gun. Neagle ordered Mr. Terry to stop, and shot him dead “at [the] instant” when he saw Terry drawing a knife from his waist.• State police arrested him and imprisoned him pending trial in state court. Neagle petitioned for habeas corpus in fed court. Claims that homicide was done in defense of judge and part of his duty as US officer, thus done in pursuance of laws of US. So arresting him is constit violation.PROCEDURAL HISTORY: Circuit Court granted Neagle’s petition. Discharged him from custody of CA sheriff Cunningham. Cunningham appealed.ISSUE: Did Neagle have a constitutional duty to kill Terry, such that he can’t be imprisoned by state?HOLDING (Miller): 6-2. Yes, Neagle was acting in pursuance of laws of US. President has implied and express constitutional power under Take Care Clause (Art II.3), apart from Congressional approval, to enact rules for meeting duties. Protection of judge is one such duty.REASONING:• Clear that Terrys plotted to murder Field.• Field was clearly within the discharge of his duties as US judge.• Language about habeas corpus writ being authorized for action done “in pursuance of a law,” should be construed broadly. Any “fairly and properly” inferable duties from marshal’s core duties is considered a “law” of US.• If judges could only rely on future prosecution for violence against them, they wouldn’t feel sufficiently safe. Future prosecution not much good if judge is dead. Constitution must allow other protection option. *Po*• Added protection must come from Exec. *S* o Not Judiciary – weakest branch for “self-protection” and enforcement of decrees o Not Legis – Can only protect judges by law, and no such law has been passed o Executive is proper b/c Marshals are Exec officers (similar to DAs)▪ Appointed/removable by Pres (w/ A&C), subordinate to Senate and controlled by DOJ, under a presidential cabinet officer, compensated subject to Congress• Exec has implied Constit power to protect judges o Exec has Art II.3 – Pres Take Care Clause *T*o There are some express powers granted to Pres to fulfill duty of Take Care = appoint officers, CiC, assign cabineto Q: Are there also implied powers to meet duty?▪ Hypothetically, Pres could safeguard performance of mail duty by assigning guards to mailmen. So why not judges too?▪ Wells v. Nickles – SCOTUS held that Exec could protect public federal forests from “timber thieves” despite no Cong law to do so. So why not judges too? *Pr*• The order from AG constituted Pres rule enacted to meet duty of Take Care Clause• States can’t imprison fed officers for acting in pursuance of US Constit or law, per Revised Statutes of USDISSENT (Lamar): Plus Fuller. If the protection of Justice Field here was necessary, it should have been afforded by Congress, not the president.• Congress has the power through Art I.8 of make all laws N&P for carrying into execution its enumerated powers. In contrast, the president has the power to make sure that all laws be faithfully executed. Therefore, the president has the power to execute the laws, not make them. *T*• Pres duties and powers are fixed in Art II.2-3. Power should from enumerated ones. *T*• Congress was perfectly capable of passing laws requiring protection of judges by marshals, but chose not to do so.• Lawmaking authority can’t come from Judiciary or Exec. *S* Can’t claim that marshal was acting off a law, because Congress passed no such law. Can’t create law out of thin air. ABSTENTION (Field)Direction and Controls

Roger Taney, Opinion on the Jewels of the Princess of Orange[edit]

FACTS: Valuable jewels were stolen from Princess of Orange (Netherlands) while ago. Found their way to NY via a guy named Polari. By his own admission, he was either involved in the theft or obtained them knowing they were stolen. He committed revenue law violation, so DA is suing him to have the jewels condemned as forfeited to US. News broke to public, and for several months only Princess of Orange has emerged as a claimant to the jewels.ISSUE: Can President lawfully direct DA to discontinue the lawsuit in district court?HOLDING: Yes. President has that power via the Take Care Clause. If a lawsuit fails purpose of (1) national interest and (2) justice, it would not be a “faithful execution of the law.” Duty to stop it.REASONING:• The jewels are not liable to condemnation under the laws of the US. Princess is True Owner, and jewels were taken from her fraudulently, w/o her consent, and against her will.o No national interest in the case• Lawsuit would be troublesome and expensive for Princess to litigate. o Failure of justice to litigate this.• President can save an innocent party from litigation via the President’s Take Care duty. *T* o Fails purpose of national interest and justice → not a faithful execution of law → President has duty to stop prosecution.• Supporting rationale o Power to grant a nolle prosequi implicit in President’s pardon power (which can halt prosecution pending in court)o DA already has power to stop prosecution. President not granting new authority to DA o President must be involved in this dismissal -- since this is a matter that concernsPresident (foreign affairs), it would be “indiscreet” of DA to dismiss the suit withoutPresidential approval o DA is under the control and direction of the President

United States v. Cox (5th Cir., 1965)[edit]

'FACTS: A federal grand jury requested that Hauberg, the United States Attorney for the SouthernDistrict of Mississippi, prepare indictments against certain individuals. Acting on the advice of the Acting Attorney General of the United States, Katzenbach, Hauberg refused. Judge Cox, a District Court judge, ordered Hauberg to comply with the grand jury request. Hauberg again refused, at the direction of Katzenbach. Judge Cox then entered an order finding Hauberg guilty of civil contempt and ordering Katzenbach to appear and show cause why he should not also be found guilty of contempt for advising Hauberg not to prepare the ordered indictments. Hauberg and Katzenbach appealed.ISSUE: Does a prosecutor have the discretionary power to decide whether to commence prosecution in a particular case?HOLDING (Jones): 4-3. Yes. As an attorney for the government, a prosecutor has the discretionary power to decide whether to commence prosecution in a particular case.REASONING:• The president of the United States has the constitutional power to faithfully execute the laws.• U.S. attorneys are executive officials who carry out this power by prosecuting offenses and participating in legal proceedings on the federal government’s behalf. • The grand jury’s role in such proceedings is limited to a determination of whether there is probable cause to believe that a crime has been committed.• A U.S. attorney’s discretionary power to decide whether prosecution is appropriate depends on matters of policy, not probable cause.• A court may not review, coerce, or interfere with the executive branch’s discretionary power over criminal proceedings under the separation of powers.• If a U.S. attorney refuses to sign an indictment, the indictment is invalid.• It follows that a U.S. attorney should not be made to prepare a form of indictment that the U.S. attorney is not required to and is unwilling to sign. H• Here, Hauberg and Katzenbach had the discretion to decide whether to bring the indictment. It was error for the judge to force Hauberg to prepare and sign the documents. Accordingly, the contempt order is reversed.CONCURRENCE/DISSENT: Rives, Gewin, and Bell. Would affirm the contempt charge.• Exec Attorney must take care to execute most important law, the Fifth Amendment – indictment by grand jury• In interest of justice, court may require showing of good faith or rational basis for dismissalCONCURRENCE (Brown): 'CONCURRENCE (Wisdom): National interest at stake. Trial for perjury would inhibit many African Americans in Mississippi from registering to vote.


'Removal Power' [edit]

Myers v. United States (SCOTUS 1926)[edit]

FACTS: Under an 1876 Cong Act, the President had to get the Senate’s permission to remove postmasters. Myers, the Postmaster of Portland, OR, had been appointed by President with the Senate’s advice and consent. President ordered Myers’ resignation via Postmaster General without getting consent of Senate first. Senate refused the President permission to do so. Myers brought suit in Court of Claims for his salary. Govt argues that the 1876 statute is unconstitutional b/c Art II gives exclusive removal power to Pres.ISSUE: Does President have exclusive power over removal of executive officers (i.e. doesn’t need Senate’s advice and consent) per Article II?HOLDING (Taft): 6-3. Yes. 1876 provision restricting President’s exclusive removal of postmaster is in violation of Constitution.REASONING:• Power to remove officers (high or low) is incidental to power to appoint them → Exec power• Importance of deference to First Congress. They wanted exclusive removal power to Fed, per the Decision of 1789.• Importance of historical context behind exception to exclusive Pres removal. 1876 Act came about during reconstruction• Take Care Clause plays in some how.DISSENT (Holmes): Agrees with Brandeis – Congress can limit removal. Postmaster office is controlled by Congress, b/c Cong sets its pay and sets laws that govern its actions. Pres duty to Faithfully Execute laws is limited to Congress’s laws… Congress alone granted power to Pres for appointment of lower officer, and Congress can withdraw that power and transfer elsewhere.DISSENT (Brandeis): This is appropriate.

Point Counterpoint Response
Historical Taft: In the Decision of 1789, First Congress intended to give exclusive power to Pres.-Wasn’t read otherwise until1868 Johnson impeachment trial.-We should defer to First Cong. So soon after Constit and many Founders were there. Postmaster is an inferior officer. Not covered by 1789 act, which only applied to superior officers.' '''''''Brandeis: In 1833, Justice Story said that discharge of inferior officers abusing post is left to Congress. This includes postmasters. Taft: Jackson admin used the 1789 act to justify removal of lower officers w/o Senate approval.
Brandeis: In none of the original 13 states did Chief Exec have this power.+in all 48 current states (but one), this is a Legis power. '
Brandeis: Fed 77 – Hamilton intended Senate consent to apply to noms AND removals. Ed: Yeah, but First Cong decided otherwise. Didn’t follow Ham, mostly Mad.

Do we put greater weight on older or more recent history?

Taft:(1) 1789 Decision was enforced for 74 years.

(2) Context matters. Tenure of Office Act (1867) only limited removals to Senate approval b/c Johnson was obstructing enforcement of reconstruction.TOA was repealed in 1887 and Presidents since Grant have been for Exec removal. So this is a long-standing principle.

(3) Many Presidents have openly supported Exec removal power: Cleveland, Jackson,Wilson, Coolidge, Grant,Madison, Adams'

'Brandeis:(1) In first 40 years, there was no reason to curb removals. Did so in 1863.(2) This 1876 provision has been enforced for 50 years…Presidents have thus acquiesced to this legislation (and others) which limited their removal andnomination powers…For example, restricted Exec nom to conditions: only citizens, ppl of certain profession, test of examinations, age, sex, race, temperance from alcohol, must be done in nonpartisan wayEven though the TOA was repealed by Cleveland in 87, he didn’t make a point to repeal the removal provision of the Currency Act… In fact, only two acts controlling Exec removal power have been met with veto.'(3) Even they consent toLegis that restricted their removal power. Taft:

(2/3) Congress might have thought that they had this power, but Pres didn’t. Pres didn’t agree w/ limiting Pres removal. They passed that legislation only b/c there was other good stuff in the legis. For example, the 1876 Act was an appropriation act with a “rider” about limiting Exec removal.See Precedent argument by Taft. Conditions for nom/removal are fine, but can’t restrict removal to Senate consent..

TextualTaft reading as affirmative grant, dissent reading as implicitly withheld power fromPres Taft:(1) Art II Vesting Clause gives President inherent Exec powers. Pres has inherent power to appoint w/o consentof Congress (except in expressly specified cases).

Holmes:(1) Removal is not an inherent power of Exec. Congress has Constit powers to create offices and prescribe tenure of them… There may be inherent suspend and remove powerfor higher officers due to natl democratic interest, but not lower ones.Brandeis:
(2) Art II says nothing about Cong power over removal. So they have no authority.(3) Art II.2 Take Care clause allows for incidental Exec powers. Removal is incidental to appointment power. (2) Constit doesn’t expressly deny Cong power to control removals, either.(3) No such grant of incidental Exec powers like there is to Cong in Art I.8 N&P…. And this doesn’t fall within express terms of “Commission officers”
Precedent Taft: Perkins recognized thatCong can put conditions on Exec removal of inferior officers. But no precedent denying Exec exclusive power.Shurtleff v. US (1903) construed removal provisions of Interstate Commerce Commish not to exclude Pres removal powers. Brandeis:But history shows that Congress can put restraints on Pres nom/removal powers. Per US v. Midwest Oil Co, (1915), if there’s longstanding legis practice separating Exec and Legis powers, it should “be deemed tantamount to judicialconstruction.”
Structure Taft: Executive/admin powers are in Art II, left to President. To limit this to Senate control would be against separation of powers. Brandeis: This is an unnecessary limit on the Legis branch.
Historical/ Policy Brandeis:In 1863, Cong and Pres limited removal of Pres due to spoils system. See Lincoln’s approval of Currency Act. Taft:The anti-spoils system Civil Service Law wasn’t meant to extend to positions requiring Senate approval. It targets inferior officers → inferior officers can’t be Senateapproved under this arg.

Humphrey’s Executor v. United States (SCOTUS 1935)[edit]

'FACTS: Humphrey was a commissioner of the Federal Trade Commission (FTC). He had 7 year term, appointed w/ A&C under Hoover. President Roosevelt removed him after Humphrey refused to resign. Roosevelt violated statute that said that a commissioner could only be removed for “inefficiency, neglect of duty or malfeasance in office.” Humphrey then died. The executor of Humphrey’s estate (plaintiff) sued the United States (defendant) for back pay. The government responded that back pay was not merited because the removal restriction was unconstitutional.ISSUE: Can the President remove a Federal Trade Commissioner for a reason (personal confidence) not enumerated in a Congressional Act limiting his removal power?HOLDING (Sutherland): 8+1. No. President exclusive removal power limited to “purely executive officers,” and the FTC commish is not purely exec, so Pres must follow the statute.REASONING:• The dissenting opinions of Myers are “disapproved.”• Holding of Myers is not controlling here b/c Postmaster “is so essentially unlike” FTC commish o Myers was mostly dicta, the core holding was just on Postmaster – can’t base on Myers aloneo Myers on Pres exclusive removal applies only to “purely executive officers,” no others• FTC Commish is not “purely executive officer” o Created by Congresso Carries out legis policies – acts as a legis or judicial aido Not under Executive control in how it actso Acts “in part quasi legislatively and in part quasi judicially”▪ Does have some Exec function (not in constitutional sense), in execution of its legis/jud roles• Pres can’t have exclusive removal power for non-purely exec officers o Otherwise would give Pres “all-inclusive” power, including rem of Art I courts o For quasi-leg or quasi-jud officers, Cong discharges some of its powers. Per sep of powers and nondelegation doctrine, the President can’t control these officers.• HISTORY: When Treasury officer was considered, Madison thought it was partially jud position so not subject to exclusive Pres removal. Unlike Foreign Affairs Officers (in Dec of 1789).• PRECEDENT: Marbury v. Madison – Pres can’t exclusively remove a justice of peace of DC.'''''''

Morrison v. Olson (SCOTUS 1988)[edit]

FACTS: Congress passed the Ethics in Government Act of 1978 (the Act). Title VI of the Act permitted a court called the Special Division to appoint an independent counsel to investigate and prosecute certain high-ranking government officials for violations of federal criminal laws upon request by the Attorney General. The independent counsel could terminate the position when the investigation and/or prosecution was complete. Additionally, the Act gave the Attorney General sole removal power of an independent counsel “for cause.”ISSUE: Does a law vesting the Att. Gen. with the power to appoint an independent counsel and prohibiting Pres removal without cause violate(1) Appointments Clause or(2) separation of powers principle by (2a) Interfering with Pres exercise of constit appointed functions? (2b) Reducing Pres ability to control prosecutorial powers of independent counsel?HOLDING (Rehnquist): 7-1 (Scalia)-1 (Kennedy no vote). No. The act is fine.REASONING:(1) Does it violate Appointments Clause?

Point Counterpoint Response
PrecedenceIs it an inferior or principal officer? RehnquistBuckley v. Valeo (1976) allows Cong to give appointment power to Jud or Pres for inferior officers. Independent council is an “inferior officer.”Why?A) Subject to removal by higher Exec officials. Implied inferiority.B) Limited tenure, jurisdiction,and duties. (US v. Germaine) ScaliaBut good cause restricts AG power.A) Not inferior. Not subordinate to AG or Pres. Truly independent. More difficult to remove her than principal exec officer.B) Disagree w/ reasons:-Limited duties just to AG policy, but only so long as possible. So essentially freedom.-Limited juris.-Limited tenure, but only when she decides her job is done.

TextualInterbranch appoints limited? 'RehnquistOn its face, the Excepting Clause does not prohibit interbranch appointment. Gives Cong a lot of freedom to determine what “they thinkproper” for vesting appointment power.'

But unlimited power here would violate separation of powers.

RehnquistThis is limited. Can’t impair constit function of another branch. Doesn’t occur here.
Policy RehnquistIf Exec could exclusively appoint and removal counsel, there would be conflicts of interest when counsel needed to investigate Exec higher-ups. ScaliaNot true. Two natural checks against abuse of exclusive powers by any branch. A) Retaliation by other branches. Ex: Cong can impeach Pres.B) Political pressure by public and threat of voting out. Ex: Public pressured special prosec in both Teapot Dome and Watergate.And sometimes branch just has power over itself. Like how Cong can pass law to protect itself(like Civil Rights Act) '

(2a) Does it violate Sep of Powers by limiting Pres exercise of constitutional functions?

Point Counterpoint Response
Precedence RehnquistThis is distinguished fromMyers and Bowsher. Act is fine. No attempt by Cong here to gain role in removal. -No requirement of Cong approval of AG’s removal, only subject to “good cause” reason and judicial review.This is analogous to Humphrey’s Executor and Wiener.Key point of precedent was to ensure that Cong didn’t impede Pres’ functions. Pres functions don’t depend on removal at will.Practically, this is fine. “Good cause” standard doesn’t completely strip Pres of removal power. And Legis history says “misconduct” would allow removal.

Wrong. Myers is controlling when involving “purely executive” official. Humphrey’s did not involve purely exec official. This is a purely exec position.

RehnquistDoesn’t matter. Rulings weren’t made to assign rigid categories of who can be exclusively removed by Pres, but just to ensure Cong didn’t interfere w/ Pres Constit duties of Take Care and“Executive Power.”
TextualArt II vesting clause ScaliaThis interferes with Art II vesting clause. Pres has absolute right to remove purely Exec officers at will. RehnquistThis rigid demarcation around purely Exec that extrapolates “general constit language” too much to bear. ScaliaIf we’re not giving Pres absolute power of some exec powers, then what’s alternative? Maj essentially suggests a case-by-case standard on what Exec powers are to be limited.
TextualNo Jud usurpation RehnquistJudicial Review is not an usurpation. Power to appoint inferior officers like indep counsel is not in itself an executive function. Constit gives Cong power to vest such appoint to Exec OR Jud. ScaliaThe inferiority question not important, its just sep of powers that’s important. Plus, this position is not inferior anyway.And you’ve stripped away power from Pres (power to prosecute/investigate), and now giving to someone else.

No Cong usurpation

RehnquistNot like Bowsher. This case doesn’t pose danger of Cong usurpation of Exec Branch functions. AG doesn’t need to comply w/ Cong request for '
appointment, just has to respond.
Purposive RehnquistTo give absolute power to Exec over inferior officers per Vesting clause would affect tens of thousands of officers that Framers never foresaw being under Pres control. '

(2b) Does it violate Sep of Powers by reducing Pres control of prosecutorial powers of indep counsel?

Point Counterpoint Response
Textual / Practical response Scalia:This is a purely executive function, even majority agrees. You can’t limit Pres Exec functions.How can Cong start applying a balancing test for Exec power? RehnquistLimits to a degree. AG can’t appoint individual of choice, doesn’t determine jurisdiction, limited removal power.But it’s fine. It does give AG several means of controlling prosec powers.A) “Good cause” removal. Most important.

B) Counsel can’t be appointed w/o AG request. AG not required to confirm request, just respond.

C) Act requires counsel to abide by DoJ policies unless impossible to do so.

Scalia (Textual)Art I vesting clause gives all executive powers to Pres. Not just some.Even if you could give just some, Court is “greatly exaggerate[ing] extent of that some.”A) Humphrey’s identified limiting removal as impediment to Pres control, not affirmative grant of power.Legis his also showed this to be protection grant to Counsel and limit on Pres.B) But mandatory request unless “no reasonable grounds” for further investigation. Such minor exception that AG always forced.C) Empty promise shown by exception of “not possible.” Plus most policies not absolute., including whether to prosecute.

What’s right?• Practical – For inferior/principal officers: President should be able to fire higher up officials (see Hamilton Fed Paper on stability of admin, reflected in Roosevelt’s position in Humphrey’s Executor). But lower civil officers should be protected.Whats the ultimate removal power?• Pres can independently remove principal officers (members of cabinet and principal officers, per Morrison) if they are purely executive officers (Humphrey’s Executive), but for inferior officers the executive removal can be limited to conditions.Class prep:• (1) Where does the constitution place removal authorities?o Appointment Clause▪ Affirmative grant: Since doesn’t expressly mention removal, should it go to Pres via Vesting Clause (expression nemo iudex)▪ Negative: He does not have since no implied Exec power like Art I.8.18 N&P implied powers for Congo Exception Clause o Vesting Clause▪ Affirmative grant: All powers▪ Negative: Just restricted to Art II powers• Power to set tenure implies power to remove – Fed 77 and common law, but this isn’t in constitution ▪ o Take Care▪ Affirmative for Exec: If official acting on behalf of Pres, its Pres responsibility to judge if he’s doing good job and must remove to Take Care.• FTC not acting on behalf of Pres▪ Negative: It’s about employees, not laws themselves. So Cong can set laws conditioning removal.• (2) List arguments that support and militate against giving the President removal powers.o


'Foreign Affairs and War Powers' [edit]

Foreign Affairs[edit]

US v. Curtiss (SCOTUS 1936)• FACTS: People were selling machine guns within the US to Bolivian militants. Violation of both a Congressional act and a Presidential proclamation made in pursuance of the Act.• ISSUE: Does Congressional delegation of power to President to make a proclamation forbidding arms dealing to foreign militants within the US violate the nondelegation doctrine?• HOLDING: (1) Delegation is fine. (2) President has inherent foreign affairs powers. Presidential resolution forbidding arms sales to foreign militants within the US is a foreign affairs issue, so within Presidents’ powers.• REASONINGo Two different classes of regulatory powers: Internal vs. foreign affairs ▪ Different in Origin and character• Internal o Limit of govt to enumarted powers and N&P is specifically for internal affairs. Carved out from states rights in Constit.• External o States never had foreign affair powers, weren’t intended or able to divest in Congress. Had to come from different source. o Declaration of Independence grants Fed foreign affairs powers → intl power given to united states collectively, not individual stateso Was true even before Decl. Continental Cong managed foreign affairs for states collectively.o Practically applied in 1783 treaty of peace btw Brit and “UnitedStates of America” o Textualist – Union existed before Constit, because it says “more perfect union”o Didn’t even need to be an affirmative grant in the Constitution. Fed govt foreign affairs powers are “inherently inseparable from the conception of nationality”o Exercise of foreign power is strictly Exec ▪ Senate advises and consents to treaty, but Pres is sole negotiatorDames & Moore v. Regan (SCOTUS 1981)• FACTS:o Backdrop of the Iran hostage crisis. 1981 agreement from President Carter btw Iran and America led to release of hostages in return that the government of each country would seek to end all litigation between itself and nationals of the other country by reaching binding settlement agreements. A new Iran-United States claims tribunal was established to facilitate settlements.o Dames & Moore (plaintiff) bank filed this action in district court against US Govt and Treasury Sec (defendant) seeking declaratory and injunctive relief to prevent enforcement of executive orders and Treasury Department regulations implementing the new agreement with Iran. Claimed that its subsidiary was owed $3m by Iran, the Atomic Energy Organization of Iran, and Iranian banks.o Dames & Moore argued that the executive branch exceeded its constitutional powers in making such an agreement, and that the agreement was unconstitutional because it interfered with enforcement of Dames & Moore’s final judgment from trial court to get its money back.• ISSUE:o Does the President have authority to suspend claims against a foreign govt through an executive order?• HOLDING (Rehnquist): o Yes. It’s not authorized by Congress, but as a long-continued Exec practice on foreign affairs, it is acceptable. Pres was authorized to suspend pending claims pursuant to Exec order.• REASONING: o IEEPA authorizes nullification of attachments.o Congress does not specifically authorize suspension of claims, but is neutral on the matter. ➔ Implicit acceptance by Cong. ▪ Two specific acts relating to this give broad Pres power• IEEPA and Hostage Act don’t specifically authorize. IEEPA b/c claims are not in themselves transactions involving Iranian property.• However, they indicate Cong acceptance of broad scope of Pres foreign affairs powers.o IEEPA recognizes broad Pres power during national emergency wrt to foreign property. Hostage Act gives broad Pres discretion for determining what is a hostile act by foreign country. ▪ History of Cong acquiescence• Cong can’t legislate for every possible foreign affair crisis. So no specific legislation =/= congressional disapproval.o So this actually implies Congressional acquiescence → falls within Youngstown first bucket.• History: Congress has implicitly approved this practice of claim settlement by executive agreement through its history of acquiescence and its enactment of the International Claims Settlement Act of 1949 (ICSA). The ICSA provides for a tribunal to handle settlements between United States citizens and the government of Yugoslavia. Congress has frequently amended the ICSA to address particular problems stemming from settlement agreements with other nations, evidencing Congress’s continued approval of the President’s claim settlement authority.▪ Precedent that Pres can enter into agreements w/o Senate A&C. US v. Pink o This is a long-continued Exec practice that has never really been challenged, so falls toArt II.1 Exec powers (per Youngstown and US v. Midwest Oil) o Narrow rule: President doesn’t have plenary power to settle all claims. Only to settle claims involving major foreign policy dispute btw countries and where Congress has acquiesced to Presidential authority.

War Powers[edit]

Prize Cases (SCOTUS 1863)• FACTS: While Congress was not in session at the beginning of the Civil War, President Lincoln issued an executive order commanding a blockade of Confederate state ports, based on law of nations authority. The order allowed those vessel to be captured as a prize if it came to blockaded port. No war had been declared by Congress yet. Later, in 1861, Congress enacted a statute authorizing a naval blockade of Confederate state ports. Owners of vessels that were captured as prizes during the blockade (plaintiffs) brought an action challenging the executive order’s legality.• ISSUE: (1) Did President Lincoln have the authority to institute a blockade of southern ports?(2) Is the property of southerners subject to capture on the sea as “enemy property?”• HOLDING (Grier): 5-4. (1) Yes. That is a power of the President during wartime. It is the Congressional prerogative “to declare war” under Art I.8.11. However, the President has the ability to take action when attacked; can establish blockade in Civil War w/o Congressional authorization.(2) Yes. Anything produced in hostile territory or being used in commerce for hostile power is always considered legitimate prize.• REASONING:o Civil War = legitimate war time for US▪ War exists even if both parties aren’t both as independent nations.▪ Civil wars never solemnly declared. → evidenced by actions of aggressor• War exists when one party: rebels and occupies other property in hostile manner, declares independence, renounces allegiance, organizes army, becomes acknowledges as belligerent, and hostilities amount to war.o 1) Pres has ability to blockade ports, in this instance.▪ A) Constit gives Pres CiC duties over army/navy/militias + whole Exec power + Take Care duty.• Whether nation is in Civil War is decision left to the President.• He does not have power to initiate war, but once attack is commenced the President is bound to resist force by force.• ED: Call back to Neutrality Procl. defense by Pacificus (Hamilton). Civil War already exists. Pres is just judging status, not changing it.▪ B) 1795 Act of Congress gave Pres military/naval power to repel foreign invasion and put down insurrection.• President bound whether it’s a foreign invasion or domestic▪ President has power to determine what type of measures used o 2) Once war exists, people who are citizens of that enemy sovereign become liable to arrest of property b/c their property can be employed to aid the enemy sovereign. Doesn’t matter what their personal allegiance is.• DISSENT (Nelson). Plus Taney, Catron, and Clifford.o On comparison to Cong Act of 1776 declaring rebellion, no war was declared until Cong Act of July 1861.▪ No difference between civil war and normal war → must be declared by Cong o No blockades or property confiscation allowed until Cong decides (per Art I.8.11).o Any change of status in war of US must be declared by Cong, because it acts as a notice to the whole world. Entering civil war is a change, even to neutral allies.

Point Counterpoint
Historical Battles of Palo Alto and Resaca de la Palma were fought before 1846 Cong recognition of war status.

Declaration of War Against Japan & Gulf of Tonkin Resolution• Declaration of War Against Japan, 1941 o Japan▪ Congress declares war exists, based on unprovoked acts of Japan ▪ Cong authorizes Pres to “carry on war” and use military/navy.o Germany/Italy▪ FDR requests Congress to “recognize state of war” btw US and Germany/Italy ▪ Congress complies. Authorizes Pres• Gulf of Tonkin, 1964 o Focus on Vietnam, but language of resolution refers more generally to “area” of SE Asia o No declaration of war on North Vietnam; simply says that North Vietnam is waging “campaign of aggression” against neighbors and allied forces ▪ So how can this be legal? o Cong gives “determination of the Pres” to take any actions to stop the aggression▪ “Necessary measures” o Cong retains authority to repeal grant of powerWar Powers Resolution of 1973 & Nixon Statement• War Powers Resolution, 1973 o *Original Intent* Framers wanted “collective judgment” of Cong and Pres on military involvemento *Textualist* Art I.8.18 gives Cong N&P power to execute both Cong powers and all other powers vested by Constit → including President Commander-in-Chief powers to introduce US forces into hostilities or where “imminent involvement in hostilities is clearly indicated”▪ Ed. Counter: As specific as they’re trying to make this, there is no language in Art II about Pres C-i-C powers to introduce US forces into hostilities.o Pres power to introduce US forces into conflict limited, pursuant only to▪ 1) Declaration of war▪ 2) Specific statutory authorization, or▪ 3) National emergency created by attack on US o Pres must consult w/ Congress before introducing US troops to conflict when possible o If no decl of war, w/in 48 hours of engagement Pres must give Cong a report saying ▪ A) Why he engaged forces▪ B) Constit/legis authority for engaging▪ C) Estimated scope and duration of conflict o 60-day limit on Pres use of troops once report submitted, unless▪ A) Cong declares war or specific authorization of use of troops▪ B) Cong extends 60 day period▪ C) Cong unable to meet▪ d) Potential for 30 day extension if necessary for troop safety o Cong retains authority to direct Pres to remove troopso Sec 8(d): This isn’t meant to alter Constit powers of Cong or Pres, and not granting Pres any power he didn’t already haveo Survived Nixon’s Veto• Nixon Veto of War Powers Resolution, 1973 o HOLDING: Restrictions put on President by Cong are unconstitutional and danger to National interest.o Orig Intent: Founders knew they couldn’t foresee everything. Wanted foreign policy decisions to be flexible, based on close coop btw Exec and Cong, not rigid codes. o Unconstitutional▪ 1) Auto cut off of Pres troop powers after 60 days. President has had these powers for nearly 200 years.▪ 2) Power to stop Pres troop action via concurrent resolution, but concurrent resolutions don’t normally have force of law.▪ If you want to alter Constit powers of Pres, amend the Constit. o Bad for national interest▪ 1) Undermines US ability to quickly respond to international crises• Unclear when the 60 day rule applies, could lead to delayed engagements• Consequenceo Lowers confidence of allieso Lowers US deterrent power against enemies ▪ 2) Lead other countries to see US as more unpredictable• May not be able maintain long-form military obligations (like NATO)• Consequenceo Increase chance of enemies’ miscalculating US and starting wars ▪ 3) Undercut US ability to foster international peace• Enemies could just postpone negotiations 60 days, hoping US troops withdraw• Pres and allies would feel pressured to try and meet military objectives w/in 60 days – could jeopardize whole missions• Can’t exercise “quiet diplomacy” via constant subtle shifts in military deployments• Pres may not be able to engage in certain military-backed humanitarian relief missionso STRUCTURE: Cong funding / restricting funding of war power should be on case-by-case basis, but here Cong is automatically taking it away after 60 days. Pres should always have veto power, but wouldn’t if this goes through.▪ If Cong wants foreign policy power, it should do so via positive action. This act gives them power w/o action by automatically cutting off Pres power after 60 days▪ Pres not allowed to take part in decision about 60 day cut-off.o Proposal: Establish a non-partisan commission to determine constitutional roles of Cong and Exec in foreign affairs powers▪ Including: war powers, international agreement powers, question of Exec privilege▪ Commission then submits recommendations to Cong and Pres• Ed. Counter: Ok, but what happens when it submits recs? If it says troop power is totally up to Cong, how does that become authoritative?2001 Authorization of Use of Military Force• Pres can use “necessary and appropriate” force against enemies related to 9/11• Pres has authority per Constit to take action “to deter and prevent” intl terrorism against US o Ed. Counter: Where is that language?• Justification o War Powers Resolution 8(a)(1) – This is a statutory authorization for Pres power o US right to self-defense + big threat to national security and foreign policy

10.222015 Draft → 2001 AUMF → War Powers Act (N&P supports CiC power) → Prize Cases (self defense from immediate attack is CiC power)Q: Does President have Consitutional Authority to order strikes on Syria?

Point Counterpoint Response
Textualist For:Art 2.2 – Strike is an inherent CiC power because there is immediate threat to US

Not expressly explained anywhere in Constit.

No express language prohibiting it.

Art I.8.18 – Cong has N&P to authorize Pres to exercise CiC war powerw/o formal decl of war

N&P should only be used for enumerated power. This is not a CiC enumerated power.

But it’s a CiC implicit power.

Structural For:Foreign affairs powers are inherent to Exec. Make treaties, ambassadors, etc.(Curtiss)

Included in foreign affairs are the four grounds from Deeks.

-They aren’t enumerated though.-We’ve enumerated some.Why do that if they’re all inherent? assume some are implicit?

Deeks:• Talking about 2001• Three ways to get approval for air strikes o 1. Security Council Resolution – not happening b/c Russia and China o 2. Consent of Syria – Unlikely o 3. Self-defense ▪ Basic self-defense – ISIS threatened Embassy in Baghdad and killed US nationals(James Foley, Sotloff, Kassig, Mueller)• But unlikely. Not like Libya that bombed US troops at club and killed/injured many of them.• Design of Iraq is not to specifically attack US ▪ Anticipatory self-defense – ISIS controls so much territory • But needs to be specific evidence that they’ll attack US. Don’t have any ▪ Collective self-defense –• But requires Iraq’s consent and limited in scope to activities that support Iraq securityo 4. Ongoing armed conflict – For security of region, if state is unwilling or unable to exercise self-defense US will step in• US is likely opting for collective self-defense or ongoing armed conflcitLederman• Talking about 2001• If not a continuous aggression from Al Qaeda to ISIL against US, can’t use 2001 AUMF as congressional authorization o Can’t be a new group claiming to be related to 2001 Al Qaedao Can’t be a group continuing out of Al Qaeda but stopped aggression (in practice and design) toward the US• Pres should ideally pose this to Congress o But the public and govt supports this attack bipartisanly o Only house leadership is holding this up for political reasons• Obama ends up basing this on fact that o Some ISIL leadership claim true inheritance form Osama Bin Laden o History of attacks against US peoples and interestsPosner• If we wait for facts to come out, it will be too late anyway o Like WMD lack of evidence came out later on• Pres taking same action whether statutory approval or Art II power• Public encourages air strikes, policy arg not legal (can use anytime in future) → abuse • This prevented Pres from overstepping Constitutional boundaries2015 Draft Resolution• Cites Individual and collective self-defense• No mention of UN resolution o Counter: Just b/c of Russia interest. NATO has agreed it’s a threat.• No mention of Al Qaeda• Shot down by Republicans o Republicans worried that it was too limiting on Pres and would disrupt ground operationso Democrats worried that it would be too broad for Pres power


'Prisoners of War and Civilian Detentions' [edit]

Ex Parte Quirin (SCOTUS 1944)• FACTS: not US citizen, German natives, trained in espionage in Germany before war, came over to US in uniform but took off the uniforms on arrival. Came with explosives to sabotage US outposts and supply centers (no guns). Arrested by FBI.• ISSUE: (A) Is it constitutional for Congress and the President to place unlawful combatants on trial before a military commission for offenses against the law of war?(B) Are these Germans unlawful enemy combatants?(C) Is it constitutional to try enemy unlawful combatants w/o a peer jury?• HOLDING (Stone): Unanimous. Trying to make it narrow. People who enter the US with intent to destroy US supplies during wartime and don’t wear uniforms are unlawful combatants and can be detained and tried w/o peer jury by Pres, with Cong authorization,• Constitutional reasoning: (A) The military tribunal is valid. o Constitution recognizes Fed power to “provide for common defense”o Court recognizes law of war and its law of nations bit about managing enemy’s rights▪ Includes authority to seize and discipline enemies who violate law of war▪ Articles of War is Constitutional b/c it sufficiently adopts Law of Nations o Cong Authority = Articles of War authorizes military commission as a tribunal to try offenses to law of war w/in constit limits▪ Source: N&P in service of its war powers (regulate army and punish offenses against Law of Nations – Art I.8.10)o Pres Authority = Pres has both CiC authority and Congressional authority to manage performance of war functions including tribunal ▪ Source: CiC, Take Care, (Vesting Clause, and Appoint/Commission Officers)• (B) Germans are unlawful combatants o (1) Article of War saying combatants who don’t wear uniform are unlawful and subject to military tribunal and punishment is valid.▪ Universally, Law of War says unlawful combatants subject to capture and detention (normal), but ALSO trial and punishment by military tribunal ▪ Spies and covert agents universally included here.▪ History: This was practice before Constit adoption + Mexican and Civil War o (2) These Germans were clearly covert sabotage agents w/o uniform. Entered US boundaries for belligerent purposes (destroy war supplies and outposts).▪ Treason (Art III.3) requires uniform. This is distinct.o (3) Citizenship doesn’t matter. Once you plan hostile acts to aid enemy, you become enemy belligerent.• (C) Not all cases get jury trial, including military tribunal hearings for spies o Purposive: Jury trials of Art III.2 were never meant to apply to military tribunals o Text: 5th/6th Amends apply for criminal prosecution. Not army/navy/spy cases. And ArtIII.2 is for civil cases only.▪ Intent of these clauses was to protect established rights, not expand to cases where they didn’t previously apply. This would be a new application. Slippery slopeo History: Spies have always been subject to military tribunal w/o jury.• Only addressing Pres CiC power to create military commission w/ clear Congress support Korematsu v. US (SCOTUS 1944)• FACTS: American citizen, Japanese descent. Arrested for knowingly remaining in “Military Area,” per order 34. Exec Order No. 9066 allowed for “future orders” to protect against espionage and sabotage. No question about Korematsu’s loyalty to US, but worried about Japanese popl as a whole. One under deliberation is the one telling him to going to camp.• ISSUE: (1) Is this constitutional as a Cong war power or Pres CiC power? (2) Does it amount to unconstitutional discrimination against Japanese on sole basis of race?• HOLDING (Black): 6-3. (1) Yes, CiC order approved by valid Act of Congress. (2) No. It’s a military imperative to target people disloyal to US, but must cover all Japanese by necessity. It was constitutional at the time.• REASONING:o PRECEDENT: Upheld wartime curfew on Japanese as constitutional in Kiyoshi Hirabayahi v. US (1943)o 5000 Japanese refused to pledge loyalty to US. Worried and can’t practically separate out whole population.o Hardships are part of war.o It was of great military urgency. Constitutional at the time. Can’t apply our calm now in retrospect.• CONCURRENCE (Frankfurter): Validity of an action must be judged w/in context of war.Different standards for war and peace. Founders wanted a expedient military in wartime. Constit doesn’t forbid Congress from enforcing such a military order.• DISSENT (Roberts): This is violation of unconstitutional rights.o Convicting citizen for not submitting to imprisonment in concentration camp based solely on ancestry w/o supporting evidence for any disloyalty.▪ Counter (Black): Don’t call it concentration camp. We knew some were disloyal, so had to be safe.o He was subject to two conflicting orders, one forbidding his leave and one requiring his staying. This was a “cleverly devised trap,” and can’t convict someone for violating one of two conflicting orders.▪ Counter (Black): One was a clear “future order.” They weren’t conflicting at same time.• DISSENT (Murphy): This was just racist. Reasonable Relation test = can only deprive constitutional rights when reasonably related to public danger that is so “immediate, imminent, and impending” that no delay allowed.o Either marshal law during war or follow constitution.o Order 34 fails the test. Japanese deprived of constit rights to free life/work, 5th Amend, and due process.o Can’t make sweeping generalization about all Japanese ▪ Counter: Protecting Japanese from non-Japanese citzens.• Counter: Conjecture.o But the link drawn between Japanese race and dangers is based on racist quackery and misinformation.o Plus govt didn’t seem too rushed after Pearl Harbor. Took months to issue exec orders. During that time, no Japanese were found to be traitors. US didn’t make an attempt to maintain their rights and hold loyalty trials.• DISSENT (Jackson): No evidence of disloyalty except race. Why Japanese and not US citizens of German or Italian descent.o Text: Art III.3 says “no attainder of treason shall work corruption of blood.” o Can’t necessarily expect reason from military during wartime. But must limit to Constit.o If Court authorizes unconstitutional action during emergency, it becomes doctrine and allows unconstitutional discrimination in criminal procedure “for all time” ▪ While this may have met military objection, it isn’t lawful.o This is a much harsher measure than the curfew + indeterminate limit, not temporaryHamdi v. Rumsfeld (SCOTUS 2004)• FACTS: LA man who maybe fought with Taliban. FBI picked him up and determined him enemy combatant.• ISSUE: (1) Does Pres classification and detainment of “enemy combatant” w/o allowing him to challenge the classification violate his 5th Amend due process rights?(2) Can Courts interfere with Exec determination?• HOLDING (O’Connor): 4+2 - 3. Remand. Give him hearing to challenge enemy combatant status.(1) Yes, it violates due process. (A) Does pres have authority? Yes. (B) Due process apply? Yes, but limited.(2) Yes, Courts can interfere.• REASONING (O’Connor plurality) o (A) Individs can be legally detained by Exec for duration of conflict if Cong authorizes. ▪ Fundamental and universally accepted incident of war. Ex Parte Quirin. ▪ Limits:• i. Detention goes no longer than active hostilities.• ii. Cong authority to detain under AUMF only when sufficiently clear that individual is enemy combatant. → Must meet due process.o (B) Three-part min due process test comes from balancing test of Mathews v. Eldridge.Balance private interest--govt interest to decide due process procedures.Minimum due process owed: 1) Notice of factual basis, 2) Fair opportunity to rebut, 3) Neutral decision-maker.▪ Govt: Would not majorly harm “central function” of govt military operations ▪ Private: Core citizen right to challenge govt case and have impartial adjudicator.▪ So private > govt▪ Limit: Only applies when govt decides to continue to hold them after battle/war o Hearing allowed for detained person to challenge status, but must be restricted.▪ Hearsay allowed▪ No standard of “beyond a reasonable doubt”▪ Possibly CSRT meets this o State of war isn’t “blank check” for Pres when it comes to citizens’ rights. Youngstown.• CONCURRANCE/dissent (Souter): Plus Ginsburg. Dissents in reasoning for A and B, Hamdi’s detention illegal and due process analysis. Only joined for remand of hearing on practical grounds.o Would have found NO authority under the AUMF to detain.• DISSENT (Scalia): Plus Stevens. Unless AUMF authorizes Suspension Clause, can’t restrict habeas corpus or else you violate due process. Remand is no good, b/c it has restrictions. Permits hearsay as testimony, puts burden of proof on citizen, and lets military be “neutral” judge (not jury).o Holding: Absent legis act pursuant to Suspension Clause (Art I.9.2), Pres cannot assert military exigency that allows detention without charge (ie violating habeas corpus). AUMF doesn’t amount to implementation of Suspension Clause, so not fair to hold Hamdi.o Writ of habeas corpus protects due process, which forces Govt to follow common-law procedures (including crim prosecution). Habeas corpus very important (see Fed 84 and fact that its only common-law writ explicitly mentioned in Constitution).o To suspend writ of habeas corpus temporarily, need Cong act to assert Suspension Clause. See Ex parte Merryman.o Either suspend or go through regular crim process.o Older precedent (Youngstown) and Founders docs say Susp Clause only for emergency o Ex parte Quirin = Bad case, was rushed and clearly secretly political. Distinguished, the Germans were “undisputed” enemies whereas Hamdi disputes it.o Legis deference. If Cong hasn’t authorized, don’t suspend. They’re the people’s reps.o Mathews shouldn’t apply here – that was a disability benefits (property) case.o Hamilton, Fed 8 = External threats make it tempting to give away rights, but be careful.• DISSENT (Thomas): President powers are super broad during war w/ Cong approval. Just need good faith determination of threat for it to comport w/ Due Process. This is a pure Exec war power: no need for balancing test or suspension.o Founders wanted super broad Exec war powers. Structural advantages of Pres (Unity of Exec (Fed 70)) suggest its good for national security and war powers. And Hamilton wanted wartime powers to be exercised by “single hand” (Fed 74).o Pres wartime discretion is broader than Plurality suggests. Includes detention and making “virtually conclusive fact findings”o All required (given war and Cong authorization of war) is good-faith due process determination. Court has upheld due process of Exec action deemed necessary for public safety even when mistaken Prof notes on Hamdi• O’Connor is basically giving a test specifically for this case. Trying not to let this apply more broadly to other cases.• Call back to the question you asko O’Connor = what is the construct of due process o Scalia = What are the teeth of due process?• Scalia = you can only do this when habeas suspended.o Sueter and Ginsburg dissenting on logic of their being AUMF authority, but being practical. Not necessarily agreeing with Scalia/Stevens about suspension.• Thomas = If President authorizes detention w/o hearing, its valid. Dissents b/c doesn’t think Hamdi should get hearing.• Lingering Q o Didn’t catch this….


'Judicial Power' [edit]

Lecture• Recall o Brutus v. Hamilton – Is Judicial too strong?▪ Independence of Judiciary protected by life tenure and o Not explicitly in Art III▪ Advisory opinion – Judicial opinion given on legislation as requested by other branch• Madison’s original notes had this as valid.• Hamilton and Washington asked John Jay for opinion. Jay refused.• Seeds of political question avoidance – Court’s constantly want to avoid policy making (hence why it makes a weak argument)• Absence of advisory power keeps court in one realm and gives them more power in that real (Marbury, judicial review).▪ Council of Revisions – Joint veto power of Supreme Court and Pres▪ Judicial review• US is totally unique in not having this in constitution• Established by Marburyo Art III just says to exercise judicial power and protect law of land▪ Arising Under clause – Tabula rossa, wasn’t established language common law▪ 9 categories of cases/controversies▪ Cases in law and equity – This was established in common law language• Legal remedy = imprisonment/fines• Equity remedy = Everything else• Most states have merged law/equity remedies and courts, but some states (like VA) still have equity remedies limited • 3 Justiciability Doctrines o Standing doctrine = Is the person suitable to be heard? ▪ P must show:• Injury in fact = actual injury• D responsible• Redress possible by affirmative o Cong can change redressability by passing legislation that makes suit easier. But Cong cannot change the other two.o Mootness doctrine = Change in facts that gave rise to case that makes it no longer valid ▪ 4 Exceptions• Secondary injuries exist• Repetitive injury to P o Ie Roe v. Wade – You may be pregnant in future so can bring claim even if not pregnant not• Repetitive behavior from D• Class action lawsuito Ripeness doctrine = If case is premature (speculative injury), no way court can hear ▪ Exception:• Hardship to parties – The harm is going to be so severe• Fitness of issues/record of judicial review – If Court has heard in past, can againMassachusetts v. Mellon; Frothingham v. Mellon (SCOTUS 1923)• Facts: Two cases heard together. Maternity Act imposes tax and conditional grants tax funds to states that comply with program to reduce maternal and infant mortality. Withholds funds if they don’t report compliance. (1) MA challenges that (a) Cong overreach violates 10th Amend, (b) unequally burdens industrial states like MA, (c) gives states false choice btw losing sovereignty or accepting unlawful deal. (2) Frothingham challenges that tax acts as property taking w/o due process and thus violates 5th Amend.• ISSUE: Is the Maternity Act constitutional?• HOLDING (Sutherland): Unanimous. No decision on act. Court doesn’t have jurisdiction b/c no case or controversy is presented.• REASONING: o Art III.2 gives Fed Court juris over states only where case exists.o (1) MA shows no grounds for case, either for itself or for its citizens. ▪ MA can’t bring suit for itself• (a) State has standing for suit when there’s infringement of concrete states’ rights. Not “political” or “abstract” rights, plus no actual invasion/threat.o Ex of state rights: Over person or property, dominion of physical domain (air/space), intrastate hunting, boundaries • (b) Tax is on the people, not the state. So can’t say its burdensome. • (c) States can just refuse the money. ▪ MA can’t bring suit for people. Narrow holding.
• Under some circumstances, state is parens patriae and can sue to protect its citizens. But when it’s a Fed-Citizen relation, as is case here, US acts as parens patriae.o (2) Frothingham shows no grounds for case. No interest or injury.▪ Court can only rule where there is a case. Otherwise would infringe on Cong (Sep of Power), expand beyond Art III.2 and scope of judicial review.▪ Case exists only where party can show direct injury that is not “indefinite” (must be real, not cumulative affect).▪ Individual can show interest/injury for local tax, but not Fed tax• Interests is too comparatively small when weighed against other millions of taxpayers in Fed tax. (No aggregation arg.)• Effect of future tax on individual is too uncertain• If one person can legally contest this Fed tax, every other person can do so for any other Fed tax. --> Bad slippery slope policy consequence.o Fed tax is public matter, not individual concern. ▪ Court has never outright ruled that taxpayer can enjoin fed tax for illegality.Summers v. Earth Island Institute (2009)• FACTS: 1992 Cong Act exempted US Forest Service from notice/filing requirements for projects under certain acreage. They did a salvage timber sale on a small plot in 2003 w/o notice. Org of environmentalists (P) sued Fed govt (D) in CA district court. Parties settled, and Fed then argued that P lacked standing b/c no concrete dispute. District Court adjudicated anyway, invalidating some parts of the Act and issuing nationwide injunction on them.• ISSUE: Does Earth Island have standing to challenge the regulations absent a live dispute over concrete application of them?• HOLDING (Scalia): 5-4. Lower court injunction reversed wrt challenged regulation (b/c P does not have standing), but no ruling on other decisions about regulations not challenged.• REASONING: o Art III.2 – “Cases” and “controversies” is fundamental limit on judicial branch.▪ Court’s scope: redress or prevent, actual or imminently threatened, injury to persons, caused by private or official violation of law.▪ Except for above, no other authority to review and revise Legis of Exec action o Doctrine of standing helps enforce this limit.▪ Requires P to have “such a personal stake” in outcome to warrant Fed juris ▪ P bears burden of showing standing for each type of relief sought.▪ For injunctive, must show:• 1. Threat of suffering “injury in fact” that is concrete and particularized• 2. Threat is actual and imminent• 3. Threat is fairly traceable to challenged action (ie direct cause)• 4. Favorable court ruling is likely to prevent or redress injuryWhen P is not direct object of govt action/inaction, standing is harder to argue▪ Applies here. Act regulates Forest Service actions, not Po Org can assert standing based on their members.o First member had sufficient standing. Interest to view flora/fauna of one forest, but that was settled. Court can confer standing b/c injury is now remedied.o Second member’s grounds for standing are insufficient.▪ 1. No concrete and particularized harm. Doesn’t state specific regulation or site.• Precedent: This arg is less concrete than Lyons case, which failed.▪ 2. Not imminent. Only gives “vague desire to return.” o Claim of procedural injury (inability to make public comments on forest actions) ▪ Concrete interest not impacted by procedural right → insufficient.▪ Cong grant of procedural right can make “redressability” (4th arg) easier• But doesn’t matter for 1st. Injury in fact requirement is a “hard floor.”o Counters to dissent▪ Proposal of “statistical probability” is a novel test. Precedence is that at least one identified member give specific allegation of harm.▪ Can’t accept org’s self-description of membership outright. Court has independent obligation to assure standing. Can’t do that w/o specific affidavits of members who use CA forests.▪ Replacing “imminent” harm prong with “realistic threat” of harm in “reasonably near future” is based on prior opinion that did not have majority holding• CONCURRENCE (Kennedy): Agrees with majority. Counter to dissent: nothing in Act indicates that Congress intended to confer a concrete interest separate from the procedural right.• DISSENT (Breyer): Plus Stevens, Souter, Ginsburg.o Hypo that Cong statute grants org power to sue. Group’s members have used salvagetimber parcels and likely to do so in future. If Forest Service didn’t sell salvage timber per new regulations, group’s members would likely use them. Thus, harm is likely.

Political Question Doctrine[edit]

Political question doctrine = Even if Art III.2 Case/Controversy requirements met (see 431), is the legal issue presented appropriate for judicial resolution or is it better left to political branches of govt?Luther v. Borden (1849)• FACTS: Background of Dorr Rebellion. Charter govt of RI was primary govt. Disgruntled citizens wrote new state constitution and had popular vote approval. Charter govt refused to recognize it, starting rebellion (including Luther). Borden (D) was military officer of charter govt ordered to break and enter Luther’s (P) home to arrest him b/c suspected rebels were there. D claims state was under martial law and had authority. P claims its trespass b/c charter govt had been voted out by popular new constit.New constitution only went into effect in 1843. Action here occurred in 1842. Circuit Courtrefused P’s evidence of ballots showing popular vote in 1842, and told jury to consider the charter govt laws to have been in effect in 1842.• ISSUE: Do federal courts have the power to determine the legality of a state government?• HOLDING (Taney): 5 – 1 (3 abstain). No, federal courts don’t have power to determine legality of state govt contrary to state courts’ decision.• REASONING:o Important issue. If you declare a govt invalid, you invalidate all of its acts.o State courts of RI uniformly held that state govt validity should be determined by political powers, not judicial.▪ Their reasoning: Courts get their power from govt. If state court invalidates state govt, it invalidate itself. State court was authorized by 1843 Constit.o General rule: Fed court should follow State Court decision on issue of state law/constit o No constitutional basis or state law for Fed Court to exercise this power. When Constit does recognize Fed power to interfere w/ State domestic, it treats it as political power. o Evaluation of state affairs is a Congressional/Presidential political power▪ Art IV.4 – Congress must judge state govts to ensure they have republican govt. True as well for new states admitted to Union.▪ Art IV.4 – Fed must give protection to states for domestic violence. Up to Cong to determine N&P means to grant such protection.▪ Act of Feb 28 1795 – Cong gives Pres authority to call up militia in case of state insurrection. Necessarily implies Pres power to judge which party is rebel and which is valid state govt.(Walter) Nixon v. United States (1993)• Rule of Law: The constitutionality of Senate impeachment proceedings is a non-justiciable political question incapable of judicial adjudication.• Facts: Walter Nixon (plaintiff) was a former federal district court judge who was convicted of perjury and sentenced to prison. He refused to resign his commission even after incarceration, and the United States House of Representatives began impeachment proceedings against him. The matter was referred to the United States Senate to vote on Nixon’s removal. The Senate appointed a special committee to receive evidence and hear testimony in the case and then to report their findings to the full Senate. Nixon instituted this suit arguing that the Senate’s creation of a special committee to hear the case violated the Article I, Section 3, Clause 6 constitutional requirement that all impeached persons be “tried by the Senate.” Nixon sought a declaratory judgment that his impeachment conviction was void and that his judicial salary and privileges should be reinstated.• Issue: Is the scope of the Senate’s constitutional authority to conduct impeachment proceedings a non-justiciable political question incapable of resolution by the courts?• Holding (Rehnquist): Yes. Case dismissed.• Reasoning:Article I, Section 3, Clause 6 of the Constitution gives sole power to the Senate to try all impeachments. The framers’ use of the word “sole” is significant in that it is a textuallydemonstrable commitment of complete discretion to the Senate to conduct impeachment proceedings and to determine the rules by which those proceedings are conducted. Under this premise, the Senate has authority to create a special committee as part of its overall impeachment trial proceedings.o Additionally, in reality, impeachments involve two separate trials: an impeachment trial by the Legislature and a criminal trial by the Supreme Court. It is important that there be no judiciary role in deciding impeachment proceedings issues to ensure the judiciary remains unbiased in future criminal proceedings.o Finally the framers intended impeachment proceedings to be the only check on the judicial branch by the legislature. Allowing participation of the judicial branch in legislative proceedings would upset the necessary system of checks and balances. The constitutionality of Senate impeachment proceedings is a non-justiciable political question incapable of judicial adjudication.• Concurrence (Stevens): Regardless of the relative weights assigned to the words “sole” and “try” in the Constitution, the framers’ decision to give complete impeachment power to the legislative branch justifies prohibiting judicial interference into that function.• Concurrence (White): The Constitution does not prohibit judicial review of the constitutionality of Senate impeachment proceedings. On the merits, the Senate’s committee structure had fulfilled its constitutional obligation to “try” Nixon.• Concurrence (Souter): The majority is wrong to rule that questions of Senate impeachment proceedings are never justiciable. The Senate might act in the future so far beyond its scope of appropriate constitutional powers that judicial intervention would be necessary to ensure a just result.


Freedom of the Press[edit]

''''New York Times Co. v. Sullivan (1964) – p. 838• FACTS: NYTimes published paid ad that alleged many actions against civil rights activists in Montgomery, Alabama. NYT didn’t try to verify allegations in ad, many are outright incorrect.Sullivan (P) is elected Commish of Montgomery AL. He’s not named in the ad, but asserts NYTimes was referring to him. Per AL law, he demands public retraction. NYTimes refuses and denies referring to him. Sullivan sues NYT and 4 black clergymen…Trial judge instructs jury to take ad as “libelous per se” (if statements made “of and concerning” P, and then false, it is libel).• ISSUE:(1) Are NYTimes 1st Amend rights (speech, press) forfeited b/c statements paid for?(2) Does AL libel law violate 1st/14th Amend rights?(3) Are the statements made by NYTimes subject to libel damages?• HOLDING (Brennan): 6+2+1.(1) No. 1st Amend protections not forfeited merely b/c statement made in paid ad.(2) Yes. To recover damages for libel, statements about public official must be shown not just untruthful and defamatory, but made with “actual malice”. Actual malice = knowingly making false, reckless statements. Per 1st/14th Amend protections.(3) No. Facts do not show recklessness sufficient to find malice (and thus libel).• REASONING:o (1) 1st Amend protections not forfeited merely b/c statement made in paid ad ▪ Differentiated from Valentine v. Chrestensen (dealing w/ commercial ad) ▪ This was not a “commercial” ad (which is exempt from 1st Amend protections). Ad provides info about “matters of the highest public interest and concern.”▪ Doesn’t matter that ad was paid for. Newspapers are a powerful outlet for dissemination of ideas/info. “Editorial ads” of this type are important.o(2) First Amend is safeguard of the people. See Learned Hand▪ Lie/defamation insufficient to show libel against official – See Madison and Cantwell v. Connecticut.▪ Defense of truth insufficient protection. See repudiation of Sedition Act ▪ Madison = “Censorial power is in the people over Govt, not Govt over people” ▪ This would dissuade critics.o Also, not supported that the statements were made “of and concerning” P.• CONCCURENCE (Black): Plus Douglas. Take it further. 1st/14th Amend don’t just limit State power to award damages to public officials against critics when there’s malice, but are an absolute prohibition on such state power. “Malice” is too abstract and hard to prove. Right to criticize in matters of public affairs is essential to society.New York Times Co. v. United States [Pentagon Papers Case] (1971) – p. 847• FACTS: Agent leaks top-secret docs to NYT and WaPo (D) showing that Pres Admins had lied to public about success of Vietnam War. NYTimes starts to release docs to public. Nixon admin (P) sues to enjoin publishing. Lower courts denied justification, but gave temporary injunction. For 15 days until SCOTUS could hear.• ISSUE: Did the Nixon admin’s efforts to prevent the publication violate the 1st Amend?• HOLDING (per curiam): 6-3. Yes. Govt hasn’t met “heavy burden” to justify restraint on publish.• CONCURRENCE (Black): Plus Douglas. SCOTUS should have been immediately vacated the temporary injunction w/o oral argument. Purpose/History/Textual of 1st Amend + structural.o Govts arg: Pres must censor for Natl Sec. Pres power from CiC and Foreign Affairs.▪ History: Madison introduced BoR to protect freedoms. BoR limits govt power (Constitution), thus Constitutional powers can’t exceed BoR.▪ Policy: On the contrary, Govt deception is actually harming nat security.o Textual: 1st Amend says “no law” abridging freedom of press. Meaning that press can publish news from any source w/o threat of injunction.Purposive: Founders wanted free press to protect democracy. Press meant to expose govt deception.o Policy: Govt deception here is leading to citizens’ deaths. Govt is actually harming their security (in real sense).o Structural – Cong hasn’t passed law to approve this, and Courts can’t make law.▪ Stewart Counter: Actually, Cong has passed similar laws from criminal prosecution to protect govt secrets.• CONCURRENCE (Brennan): The decision to grant temporary injunction here should not be applied in future. Injunctions on press (even temp) can only be granted when govt can prove that publication “inevitably, directly, and immediately” will imperil a transport already at sea. o Purpose: 1st Amend is ban on any judicial restraint on press (temp or perm).o Precedent: Schenk v. United States (1919) – Only exception to 1st Amend ban on judicial restraint for press is when Nation’s at war and press will cause definite, actual harm to recruiting service, publication of sailing dates or number/location of troops…. ▪ Govt cannot show definite harm, and conjecture insufficient. ▪ Ed. Counter: Won’t these papers harm recruiting serve?• CONCURRENCE (Stewart): Plus White. Structural arg – Sep of Powers. Court cannot impose injunction on press for nat sec/intl relations reasons, only President can.o Structural: Pres has broad powers over nat sec/intl relations is in President. Mostly unchecked by Legis/Jud. Power to impose injunction on the press for reasons to protect confidentiality and secrecy lies in President (not Court, as being asked for here).o Structural: Check on President’s nat sec/intl relations power is not Sep of Powers. It’s an informed citizenry. And Free Press necessary for informed citizenry.o Pres probably has right to criminal prosecution of papers, but not injunction.• CONCURRENCE (White): Plus Stewart. Pres probably has right to criminal prosecution of papers (as authorized by Congress), but not injunction on press (w/o express Cong authorization).o Precedent: See Espionage Act of 1917. Cong agreed that papers can be criminally prosecuted for publishing secrets, but Pres can’t impose ban.o Current Cong also allows this via modern Criminal Code.• CONCURRANCE (Marshall): Structural arg – Sep of Powers. Court cannot use power of contempt to prevent behavior that Congress has specifically declined to prohibit.• DISSENT (Burger): o 1st Amendment is not absolute in all circumstances.o Court should not be hasty. Let’s take time to deliberate facts to decide case. In mean time, give US Govt its injunction.o NYTimes has months to prepare its docs, but Govt only has a few weeks in court. Unfair!o NYTimes is threatening to enjoin other publishers from using info via copyright. This is similar to judicial restraint, and we’re allowing it, so we should allow judicial restraint on NYTimes.o The duty of press, like any citizen, is to report stolen govt property to a govt officer.• DISSENT (Harlan): Plus Burger, Blackmun. Court has ruled too hastily here. Should leave the injunction in place while we debate further.o Case was decided in rushed timeline. Briefs came in 2 hours before oral arguments.o Many important issues have not been considered or answered.o Pres has large authority
▪ Structural: Jud has very limited power in restricting Pes foreign affairs powers. Really just to determine that an action lies in foreign affairs power. But Court incompetent to make evaluation about impact of publication on nat sec.▪ History: John Marshall said that Pres is “sole organ” of foreign affairs• Ed.: Recall Pacificus argument (Hamilton). But Madison said that this is limited. Exec as sole organ of foreign affairs not true – Cong declares war.▪ History: Washington declines to give HoR papers in lead up to negotiation of Jay Treaty.▪ Precedent: Curtiss-Wright?• DISSENT (Blackmun): Remand for further, timely debate.o Structural: 1st Amend is only one part of Constit. Can’t make it unlimited and diminishArt II.o Newspapers have duty to US. If the publican leads to death of soldiers, harmed alliances, difficult negotiations with enemies, prolonged war, or delay in freeing US POWs, then that duty is failed.

Point Counterpoint Response


Content-Based and Content-Neutral Restrictions on Speech[edit]

'United States v. O’Brien (1968) – p. 888• FACTS: O’Brien burned his Selective Service card in public to influence others to protest war. He knew it violated federal law and FBI arrested him. District court ruled he violated UniversalMilitary Training and Service Act (1948, amended in 1965). He argues its invalid as applied b/c(A) symbolic speech protects all modes of communication of ideas by conduct(B) purpose of Congress was to suppress free speech(C) Appeals court held 1965 Amendment unconstitutional for infringing free speech of people trying to protest. Simply as enacted, via language.• ISSUE: Does the 1965 Amendment violate the First Amendment?• HOLDING (Warren): 8-1. No. The 1965 Amendment is constitutional both as enacted and as applied. • REASONING: o (C) Constitutional on its face (as enacted) ▪ Does not prohibit conduct necessarily expressive (destruction of card) ▪ Does not distinguish public and private destruction → not targeting protestors ▪ Does not punish only destruction engaged in for purpose of expressing views. o (A) Constitution doesn’t give blanket protection to “symbolic speech.” When speech and nonspeech mix, government regulation applies if 4 elements met ▪ 1. Within constitutional powers • Yes. Valid under “raise and support armies” (Art I.8.12) and N&P. ▪ 2. Furthers important or substantial govt interest • Yes. Gives proof of his registration in draft. Makes it quick and easy process to determine if he’s registered. ▪ 3. Interest is unrelated to suppression of free expression • Yes. Helps system to raise army with maximum efficiency to be prepared for case of national crisis. o Douglas counter: What about in peace time? ▪ Counter: Constantly changing circumstances in world.Need to always be ready. ▪ 4. Incidental restriction is no greater than essential to further interest. • Yes. There’s no specific alternative to this. Limited only to noncommunicative aspect of O’Briens conduct. o (B) Court will not strike down otherwise constitutional law on basis of alleged illicit Cong motive. ▪ See McCray v United States or State of AZ v. State of CA. Precedent says there’s more harm in possibly misreading Congress’s motive than assuming correct. CONCCURANCE (Harlan): 4 part test is good. Note that people are free to communicate same message in otherwise legal means. DISSENT (Douglas): 4 part test is totally fine in times of war. But what about in peace? This wasn’t addressed, but deserves to be. 'Texas v. Johnson (1989) --- p. 984• FACTS: Johnson burned flag in Texas to protest Reagan admin. He was convicted of criminal offense in violation of Texas law for desecration of venerated object. Sentenced to 1 year prison and fined $2k. Appeals cour reversed, holding inconsistent with 1st Amend.• ISSUE: Does conviction violate 1st Amend?• HOLDING (Brennan): 5-4. Yes.o Test: (1) Does amount to expressive conduct? Spence) → (2) If yes, does the state regulation relate to suppression of free expression? (US v. O’Brien) → If no, follow O’Brien test; (3) If yes, novel Q: does govt interest justify conviction?o (1) Flag burning here is expressive conduct. Overtly political, intentional, overwhelmingly apparent message.▪ Expressive conduct = intent to convey particularized message + message likely to be understood by audience.o (2) State interest relates to suppression of free expression. For suppression of expression to be valid, must be incidental. But no govt interest here unconnected to expression (so O’Brien doesn’t apply).▪ Govt didn’t demonstrate a “breach of peace” interest. For breach of peace, must show either:• Actual threat = directed to incite violence + likely to do so(Brandenburg), or o No. Potential threat doesn’t comport to precedent. Stare decisis. Also, slippery slope.• “Fighting words” = likely to provoke average person to retaliation.(Chapinsky) o No. Court applies reasonable test. No reasonable onlooker would take a generalized expression as direct personal insult worthy of fisticuffs.▪ Govt demonstrated interest related to expression in concern over flag as symbol. Directly relates to speech.o (3) Interest there, not sufficiently compelling for method curtail expression.▪ Govt trying to embed some single meaning or symbol to flag. Does not have this power. Slippery slope. Court can’t compel respect for flag. ▪ Govt can’t prohibit expression b/c idea itself offensive or disagreeable.▪ Marketplace of ideas important▪ Best way to stop bad ideas is convince people they’re wrong▪ Tolerance of criticism is sign and source of strength▪ Constitution gives freedom to disagree. Right to differ as to things that touch the heart.• DISSENT (Rehnquist): Plus White, O’Connor.o Flag isn’t in market place of ideas. Everyone agrees respect for it.o Chaplinsky applies if there’s injury or breach of peace from words. Fighting words are“no essential part of any exposition of ideas.”▪ Such is the case here. Burning not intended to express any particular idea, just to antagonize others.▪ So social interest of stopping expression is big.o Actions speak louder than words.o Johnson free to speak in public and free to burn in private, but not burn in public.• DISSENT (Stevens):o Rules that protect expression for other symbols shouldn’t be controlling on flags.▪ Counter: But there’s a whole bunch of cases dealing with flags and protecting disrespect. See Spence (can put peace symbol on it), or not saluting flag, or putting it on the butt of your pants to sit down on.o Prohibition valid b/c preserves quality of important national asset.
Counter: Slippery slope. Who is to determine what’s a national asset and what’s not?

'Reasonable Time, Place, and Manner' [edit]



'Offensive and Degrading Speech' [edit]

Cohen v. California (1971) – p. 935• Facts: Man arrested for publicly wearing jacket that says “Fuck the Draft.” Totally nonverbal speech; he didn’t say anything. Lower court says “offensive conduct” means behavior likely to provoke others to violence, and it was “reasonably foreseeable” that jacket would antagonize others.• ISSUE: Does the CA statute criminalizing offensive conduct comport with 1st/14th Amends?• HOLDING (Harlan): 5-4. No. Absent a more particularized and compelling reason than disturbing the peace, state cannot criminalize public display of expletives. Reverses lower court.• Reasoningo General rule = state cannot prescribe form or content of individual expression. None of the recognized exceptions exist here:▪ No independent policy requiring O’Brien incidental restriction on speech. The “conduct” here is a form of communication, ie speech.▪ Not obscenity case b/c not erotic expression▪ No fighting word b/c not personally directed insult▪ No captive audience case b/c neither (a) substantial privacy interest invaded in intolerable manner nor (b) captive audience objecting and specific statute on cap-audo The rationale to ban offensive conduct is untenable. No evidence that many citizens would get violent for this type of expression.o The principle for banning offensive conduct is “inherently boundless.” Slippery slope. o Free conduct is important▪ Liberty right – This is the biggest one. Speech is core to individual dignity and choice. We have freedom to speak foolishly. Speech is important both to communicate concrete ideas and inexpressible emotions.▪ Marketplace of ideas – Offensive speech is “necessary side effect” of freedom.Democratic system – If we ban words, could also ban ideas… Govt censorship.• DISSENT (Blackmun): Plus Burger, Black (and White in part). This was mostly conduct, not speech, so free to ban. Also falls w/in “fighting words.” Likely to provoke violence.Hustler Magazine v. Falwell (1988) – p. 940• Facts: Hustler Magazine and Larry Flynt (D) published parody of Campari ad w/ political pastor Jerry Falwell (P) suggesting he’s a drunk, immoral, incestuous hypocrite. Ad has disclaimer of parody. Court/jury rules for D on claims of libel and invasion of privacy, but rules for P on intentional infliction of emotional distress. D appeals.• ISSUE: Can a public figure recover damages for emotional harm due to publication of a parody or satire without showing that the publication was made with actual malice?• HOLDING (Rehnquist): Unanimous. No. Public figures and public officials can only recover damages for emotional distress due to publication of satire if the publication makes false statements with actual malice (ie know statement is false and reckless disregard).o False statement must be “reasonably” understood as satire.o Even speech coming from hatred or bad will is protected for public figure/official.• Reasoning:o Marketplace of Ideas/Discovery of Truth – principle of First Amend. Important for matters of public interest and concern.o Public figures are like public officials in NYT v. Sullivan, going to be subject to “caustic” attackso Must allow false statements (so long as no malice) to ensure “breathing space” for free speech. That is, give protection to all speech (even one that isn’t so valuable) so that there’s not a “chilling effect” on truly valuable speech.o Satire has always been important for public/political debate. See history (Wash as ass). o Such speech can’t be subject to “outrageousness” standard – too vague. o Falwell is public figure, so subject to holding.American Booksellers v. Hudnut (7th Cir. 1985, affirmed) – p. 947• Facts: The American Booksellers Association and other individual individuals who read and distribute pornographic books and films (Plaintiffs) challenge an Indianapolis ordinance that holds the maker or seller of pornography liable to anyone injured by someone who has seen or read pornography. Plaintiffs claim that this ordinance is an unconstitutional limitation of their First Amendment rights to free speech and expression.• ISSUE: Is the Indianapolis ordinance an unconstitutional restraint on free speech such that it violates the First Amendment?• HOLDING (Easterbrook): Yes. The ordinance discriminates on the ground of the content of speech• Reasoning:o “Obscenity” (Miller v. California)▪ Publication taken as a wholeRequirements• Appeal to prurient interest o Something other than “normal, healthy sexual desires” (Brockett)• Contains patently offensive descript/depict of specified sexual conduct o Offensiveness judged by standards of community • No serious literary, artistic, political, or scientific valueo Ordinance does not classify porno as “obscenity” – no exception for artistic value, offensiveness determined by govto Porno is speech → Govt determining which speech is lawful (sex w/ equality) and which is unlawful (sex w/ female submission) → Govt violating 1st Amendo Govt cannot restrict speech it finds wrong or hateful ▪ Racism, bigotry, etc. is all valid.o Free marketplace/dominance of truth is not necessary condition of free speech, but outcomeo Porno is not low value speech. Impacts social relations and politics on grand scale.


'Harmful Speech' [edit]

Brandenburg v. Ohio (1969) + note 1 – p. 921• KKK person advocated possible “revengeance” at armed rally. Filmed. Prosecuted by Ohio Act.• HOLDING (per curiam): The Ohio Criminal Syndicalism Act violate the 1st and 14th Amends.• Condemnation speech is protected.• Whitney v. California (1927) overturned.• Test: No prohibition on advocacy for use of force or law violation unless (a) directed to inciting or producing imminent lawless action and (b) likely to incite such lawlessness.o Note on the elements▪ Directed to = intent of speaker?▪ Inciting or producing = words as triggers to action; not pure advocacy ▪ Imminent = no time for “answering speech”?▪ Lawless action = of any kind? No matter degree of harm?▪ Likely to produce = probability of harmRAV v. St. Paul (1992) – p. 927• Facts: Teenagers burn homemade cross on black person’s backyard. Prosecuted under Minn. crime ordinance which forbids such acts that will arouse anger from others on the basis of race.

  • Holding (Scalia): 9-0. Ordinance is facially unconstitutional. Prohibits speech otherwise permitted solely on the basis of the subjects the speech addresses.
    • o Content discrim – First Amend doesn’t allow prohibitions on views disfavoring some subjects and not others.
    • o Viewpoint discrim – First Amend doesn’t allow laws that disfavor one side of an argument. Ex: No Catholic hate speech, but speech against Catholic haters allows (not religious hate)
    • o No need to address whether the statute is overbroad
    • o A statute that regulates the content of speech on its face will only survive a constitutional challenge if it is necessary to serve a compelling state interest. No such compelling interest here, b/c state could stop this w/o 1st Amend prohibition.
  • CONCURRANCE (White): Plus Blackmun, O’Connor, and Stevens. Case should be decided simply b/c it is overbroad by criminalizing expression protected by First Amend.

Rice v. Paladin Enterprises (4th Cir. 1997)

  • FACTS: Guy was contracted to murder a woman, her quadriplegic son, and caretaker. He used instructions of a book on how to be a Hit Man. Relatives/reps of victims (P) sue Paladin (D) for aiding and abetting the murderer by publishing Hit Man. D stipulated to a bunch of stuff, including intent to help murderers, and posited only First Amend as protection.
  • ISSUE: Does First Amendment protect a publisher of murder instructions from being held civilly liable for aiding and abetting a murder?
  • HOLDING (Luttig): No.
    • o Speech which is, in its effect, tantamount to legitimately proscribable nonexpressive conduct may be proscribed
    • o First Amend may require heightened intent for speech-act exception (aiding and abetting) to apply. It’s met here, b/c D stipulated to intent.
    • o Brandenburg applies only to abstract advocacy of violence. It is facially untenable to argue that Hit Man is abstract. It has “detailed, concrete instructions” on how to commit murder.