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Constitutional Law Outline

TABLE OF CONTENTS

Constitutional Law Outline

I. Judicial Review A. Methodologies: 1. Originalism The court is bound by how the founders intended the Constitution to be applied. 2. Text The court is bound by the actual reading of the text, not by the founders intention. 3. Structure The structure created in the Constitution requires the result. 4. Natural Law The Constitution is a living, breathing, flexible document. 5. Representative Reinforcement The goal is to reinforce the spirit of when the Constitution was created (when people came together and made decisions above their self-interests). B. Marbury v. Madison The judicial branch has the power to declare an act by a coequal branch of the government unconstitutional. It is the province and duty of the judicial department to say what the law is. (pp. 9) 1. Facts - The Jefferson administration chose to ignore commissions that had not been delivered by the end of Adams term. Jefferson ignored an order by the Court to show cause, putting the court in the hard position of maintaining power. 2. Issues / Ct. Holdings o Marbury has a right to the commission he demands because it is a vested legal right. o The laws of this country afford Marbury a remedy because whenever an individual is injured he is entitled to a legal remedy except where it is a mere political act. This is not a mere political act because it was purely ministerial (functionary, not discretionary) to deliver the commission. A Mere Political Act is something that is within the discretion of the president under the constitution. While only the people can control the president, the court decides what is discretionary. Note: Injury does not necessarily equal legal remedy (ex. workplace harassment) o The Court does not have the power to issue a mandamus because the Constitution does grant the court original jurisdiction over mandamus and the Judiciary Act granting such jurisdiction is unconstitutional. The Judiciary Act granted original jurisdiction over mandamus. Art. III, 2, para. 2 of the Constitution - Madison reads Article III 2 to state that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which the state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.

3 The actual section has an exception The Supreme Court shall have appellate jurisdiction, with such Exceptions and under such regulations as the congress shall make. Therefore, Congress had the power to create the Judiciary Act creating original jurisdiction to issue mandamus. The Judiciary Act is unconstitutional. If the Constitution intended to grant the legislature the power to allocate jurisdiction then this Art. III 2 would be mere surplusage. As such, the legislature does not have power to allocate jurisdiction, and Acts doing so are unconstitutional.

3. Cooper v. Aaron (pp. 26) When the Supreme Court settles an issue the decision applies to every state and instance, not simply that specific state or instance. It is the supreme law of the land. C. Political Question Doctrine If a matter falls within the political question doctrine then it is not justiciable. The issue with the political question doctrine is where the line should be drawn to maintain the balance of powers between the government branches. Tip: The first thing to decide when faced with a hypothetical that may invoke the political question doctrine is whether it involves a federal separation of powers issue. If it is subject to the political question doctrine it has to have another impediment that is beyond the courts power. First decide whether the issue is textually committed to another area of the government. If not, decide whether the court is able to use judicially manageable standards to decide the issue. (Primary questions) If not, look at black law below. 1. Sources of Limitation o Constitutional Limitation The text of the constitution gives this power to another branch of the government. The court cannot ignore this type of limitation. o Prudential Limitation Prudence indicates that the court should not take this case (e.g., foreign policy because it may cause embarrassment to the President). The court may ignore this type of limitation. 2. Black Letter (pp. 35) Prominent on the surface of any case held to involve a political question is found: o a textually demonstratable constitutional commitment of the issue to a coordinate political department; or o the lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or o the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or o an unusual need for unquestioning adherence to a political government; or

4 o the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 3. Luther v. Borden It is the responsibility of the President and Congress to enforce the Guaranty Clause (Art. IV 4). o Facts - Plaintiffs right to recover depended upon which of two political groups was entitled to recognition as lawful government. Plaintiff argued that protested government was not a republican government, which violated the Guarantee Clause to a republican government. The President had recognized the power of the governor under the charger government. o Analysis - The commitment to the other branches of the decision as to which is the lawful state government, the unambiguous action by the President in recognizing the charter government as the lawful authority; the need for finality in the executives decision; and the lack of criteria by which a court could determine which form of government was republican made this a political question. 4. Baker v. Carr The political question doctrine does not apply to questions of state power, such as the Equal Protection Clause (no person shall be denied the equal protection of the laws). o Facts - Voters in Tennessee claimed that the apportionment of Tennessee General Assembly violated their equal protection rights by debasing their votes because the Assembly had not been reapportioned since 1901. o Analysis Here, there is no conflict between the co-equal branches of the government, no risk of embarrassment of our government abroad or grave disturbance at home, no need to enter upon policy determinations for which judicially manageable standards are lacking. (pp. 37) o Dissent FRANKFURTER argues that the political question doctrine is only invoked when there is a case that the judicial branch does not know how to handle. It is the nature of the controversies arising under, nothing else, which has made it judicially enforceable. Where judicial competence is wanting, it cannot be created by invoking one clause of the constitution rather than anther. (pp. 38) 5. Nixon v. United States The Senate has the sole power to try impeachments. o Facts Nixon argued that the Senate as a whole should have taken the evidence, not a Senate committee. o Analysis Clause 6 reads that the Senate has the sole Power to try all impeachments. The common sense meaning of the word sole is that the Senate alone shall have authority to determine whether an individual should be acquitted or convicted. D. Case or Controversy Requirements: Advisory Opinions 1. Generally the constitution is silent on advisory opinions. The court rejected issuing advisory opinions because it felt it would be taking on too much power. 4

5 E. Case or Controversy Requirements: Standing 1. Principles o Judicial Restraint The court created a doctrine to control the application of the enormous power Marbury created for the court. o Serve Judicial Efficiency Prevent opening a floodgate of lawsuits filed by people who really dont have a stake in the outcome. o Improve Judicial Decision Making Make sure there is a specific controversy and an advocate who truly cares about the outcome. 2. Constitutional Standing In order to have Constitutional Standing, plaintiff must (1) have suffered some actual or threatened injury (The injury has to be concrete and particularized and actual or imminent Scalia in Lujan. It is still unclear how much injury is required for standing.); (2) that is fairly traceable to the challenged action (Causation); and (3) that is likely to be redressed by a favorable decision. o If the litigant fails to meet all three requirements, that litigants case will be thrown out, but may be brought by other litigants who have standing. o Causation and Redressability often overlap but are distinct. 3. Prudential Bans A litigant may fulfill the requirements for Constitutional Standing but have the case thrown out due to a prudential ban (Discretionary Limitations). Those are: (1) plaintiff asserts a generalized grievance, (2) plaintiff asserts injury to third parties, or (3) the claim is not within the zone of interest of the statute under which the suit is brought. o Generalized Grievance In Frothingham v. Mellon (pp. 64) the court held that tax payer lawsuits are generally not allowed. o Third Party Standing More likely to be allowed the closer the relationship and the greater the identity of interest with the right holder, and the greater the unavoidable hindrance on the right holders own assertion of rights. In Craig v. Boren a seller was able to challenge as sex discrimination a state law imposing a higher age threshold on male than female beer buyers. o Zone of Interest 4. Warth v. Seldin (pp. 51) Indirect harm does not preclude standing, but it may make it more difficult to meet minimum requirements. If there is insufficient causal requirements there is no standing. It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the courts remedial powers. o Facts Various organizations and residents claimed that the towns zoning ordinance effectively excluded persons of low income from living in the town, in contravention of petitioners constitutional and statutory rights. o Specific Claim / Analysis by Group o Persons of low or moderate income - prevented from living in the town. Petitioners did not have constitutional standing because they hadn't personally been injured and didnt show causation - no proof that without 5

6 the zoning rules they would have been able to build the homes or moved in. o Taxpayers - alleged harm because they had to pay more taxes for essential public services because Penfield would not be providing any services. The Court said taxpayers should look to Rochester if they are upset about how their tax dollars are being allocated. Therefore, there is no direct causation - the harm is too attenuated. o Petitioner Associations RULE: An association must be asserting its own right or the rights of its members: Associations may have standing in its own right to seek judicial relief. In attempting to secure relief from injury to itself the association may assert the rights of its members, at least so long as the challenged infractions adversely affect its members associational ties. (pp. 54) Metro-Act argued its Penfield resident members are denied an ethnically integrated community, and they are harmed indirectly by the exclusion of others. Their claim does not have standing because it raises punitive rights of third parties. Home Builders argued that its member firms were deprived of substantial business opportunities and profits. The court finds nothing in the record to show that the dispute is live. o Dissent (BRENNAN 3) It is too early in litigation to dismiss the case. Litigants should be given the opportunity to do discovery. o Analysis The court appears to be agenda driven (judicial activism) because too many people will be upset about redistricting to allow the poor in their community. 5. Lujan v. Defenders of Wildlife (pp. 56) A plaintiff raising only a generally available grievance about the government does not state an Article III case or controversy. Vindicating public interest is a function of Congress and Executive and Congress cannot pass a statute saying case or controversy is not required for standing, even for citizen suits. o Facts Organizations dedicated to wildlife conservation sought an injunction to restore the interpretation of a statute that extended its environmental protections to actions taken in foreign nations. Ct of Appeals found standing under the Citizens Suit Provision, which creates a procedural right to consultation in all persons so anyone can file suit in federal court to challenge Secretarys failure to follow an assertedly correct consultation procedure. o Analysis (Plurality Opinion) The majority holds that there is no redressable injury because even if the Secretary was ordered to consult, the order only applies to the parties before this case, not other agencies. The Citizens Suit Provision is not valid because Congress cannot pass a statute saying that a case or controversy is not required for standing (Article III), even for citizen suits. Congress is enlisting citizens in the court to try and rein in executive power.

7 o Kennedys Test (later used by the court) Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring the suit. o Dissent Responses On redressablity, we must presume that if the court holds consultation is required, all affected agencies would abide by that interpretation and engage in the requisite consultations. (STEVENS) There is a philosophical split as to how much protection the executive branch should get. Dissents dont believe protection is necessary. o Compare to Friends of the Earth v. Laidlaw Environmental Services The injury in fact was satisfied by attesting that the pollutant discharges had deterred them from fishing, camping, swimming, hiking, picnicking, and bird watching near the river. There is a lot of fluidity with the courts opinion on standing. F. Case or Controversy Requirements: Mootness and Non-Ripeness 1. Mootness Doctrine requires that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. Thus, where litigants clearly had standing to sue at the outset of the litigation but changes in facts or in the law after the lawsuit has gotten underway allegedly deprive the litigants of the necessary stake in the outcome then the case may be thrown out for mootness. o Exceptions: (1) a continuing harm to the plaintiff; (2) the likelihood of future recurrence of past harm, either to the plaintiff personally or to the group he represents; and (3) the probability that some of the cases arising in the future will evade judicial review (e.g., Roe v. Wade pregnancy litigation seldom will survive much beyond the trial stage). 2. Ripeness Where the dispute is insufficiently developed and the case is brought too soon. The ripeness doctrine seeks to prevent premature adjudication. G. Supreme Court Review of State Court Judgments 1. Martin v. Hunters Lessee (pp. 71) The US Supreme Court is the ultimate interpreter of the Constitution, and it can overturn a state court decision. This ensures uniformity. o Facts The Virginia Court of Appeals refused to obey the Supreme Court mandate in Fairfaxs Devisee v. Hunters Lessee. o Analysis It is the case, and not the court that gives the jurisdiction. If the judicial power extends to the case, it will be in vain to search in the letter of the constitution for any qualification as to the tribunal where it depends. The Constitution applies equally to the states as to the federal.

8 H. Congressional Curbs on Court Jurisdiction 1. Ex Parte McCardle (pp. 77) The appellate jurisdiction of the Supreme Court is conferred with such exceptions and under such regulations as Congress shall make. Thus, Congress can withdraw statutes granting appellate jurisdiction. o Facts Petitioners appeal to the Supreme Court was based on a Congressional statute authorizing the grant of habeas corpus by federal courts and authorizing appeal to Supreme Court. After arguments but before the decision Congress repealed the part of the act allowing appeal. o Analysis While Congress may withdraw Supreme Court appellate jurisdiction, it may not curtail jurisdiction in a matter that impairs a litigants rights of due process and equal protection. Congress was withdrawing the right to habeas corpus relief only where the case was on appeal to the Supreme Court; original petition could be commenced within the Supreme Court. Furthermore, even if only the lower court had jurisdiction then the litigant would still have federal relief the lower court decision would simply be final. II. Federalism A. Federal Power The powers granted to the national government are limited to those specifically listed in the constitution (essentially in Art. 1, 8), implied powers from the specific grant of power in 8, and the means necessary and proper to accomplish its purposes. 1. McCulloch v. Maryland - The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This includes the necessary and proper powers. o Facts - Maryland imposed a tax on all banks not chartered by the state and demanded payment by the branches of the 2nd Bank of the US. The bank refused to pay the taxes and Maryland brought suit against James McCulloch, the cashier of the Baltimore branch of the bank. o Issue: Whether Congress has the power to charter a bank. Whether states may tax US banks. o Necessary and Proper - The national government was formed by the people, not the states, and in forming the government, the people gave it important powers for the general welfare and from these important powers comes the reasoning that the government must have the necessary powers to accomplish its purposes. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. o Analysis The constitution should be interpreted liberally and flexibly. Congress had the power to create a corporation if it was incidental to the carrying out of the constitutionally enumerated powers, such as the power to

9 raise revenue. However, the Court would strike down a law beyond the power of Congress only where it is quite clear that no constitutionally specified object is being pursued. State laws cannot be used to render ineffective federal laws where the constitution declares them supreme. 2. U.S. Term Limits, Inc. v. Thornton (pp. 111) States do not have the power to add qualifications for membership imposed by Congress. o Facts - Arkansas amended its state constitution to prohibit the name of an otherwise eligible candidate for Congress from appearing on the general election ballot if that candidate already served three terms in the House of Representatives or two terms in the Senate. o Analysis - The power to add qualifications is not within the original powers of the states, and thus is not reserved by states by the tenth amendment. Moreover, even if states possessed some original power in this area, we conclude that the Framers intended the constitution to be the exclusive source of qualifications for members of Congress, and that the Framers there by divested states of any powers to add qualifications. o Dissent (THOMAS) The government was formed by states, not by the power undifferentiated. Thus, if the constitution is silent, then the default is that the states have the power. B. Commerce Power SEE HANDOUT Tip: If there is a commerce clause question: 1. Look at whether it involves congress regulating a commercial activity. Discuss why it may be deemed commercial/non-commercial. a. If it is commercial, then the chances that it is beyond congress' power is very small. (Unlikely it will be so clear). Use the rational basis test, and Congress will be able to regulate in that area. b. If it is non-commercial, then do a Lopez/Morrison analysis - substantial effect analysis. There cannot be inference upon inference to determine effect. 2. A really sophisticated answer would also talk about whether whatever is being regulated by congress seems to give Congress too much power and therefore may be destructive of our structure of sharing power between state and federal power and may tempt some justices (Kennedy in Lopez) to think that the particular regulation may be declared unconstitutional because it violates our structure. 1. Types of Commerce Clause Power o Dormant Commerce Clause Power - Congress was given power to make sure that we would have free economic trade and prevent states from placing barriers, such as the placement of additional taxes for goods from other states. Only Congress can place barriers to trade. o Proactive Commerce Clause Power Congress may pass legislation to protect the general welfare (almost always) for economic growth.

10 2. NLB v. Jones & Laughlin Steel Corp. (pp. 142) SUBSTANTIAL RELATION "Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control." o Facts - The NLRB found that Jones had engaged in unfair labor practices by discriminatory discharges of employees for union activity. The board ordered compliance, but the company refused. o Analysis - Experience has abundantly demonstrated that the recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace. 3. United States v. Darby (pp. 144) RATIONAL BASIS: If Congress passed legislation that had rational means, reasonably related to achieving its ends, the legislation passed judicial scrutiny. (Rubber stamp) o Rational Basis Test - the specific question is not whether the regulated activity affected interstate commerce, but rather Congress could have had a rational basis for concluding that the regulated activity affected interstate commerce. 4. Wickard v. Filburn (pp. 147) EFFECT AGGREGATION Appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial. o Facts A single farmer violated the limitations on the wheat he grew as required by the Agricultural Adjustment Act of 1938. o Perez v. United States (pp. 153) - Legislation was passed by the federal government against loan sharking. The court upheld this legislation because all the little steps show that loan sharking can lead to national economic consequences. 5. Heart of Atlanta Motel v. United States (150) & Katzenbach v. McClung (pp. 151) The determinative test of the exercise of power by the Congress under the Commerce Clause is simply whether the activity sought to be regulated is commerce which concerns more States than one and has a real and substantial relation to the national interest. o Analysis - The inability of people of different races and national origins to find a hotel room or to be fed affects commerce - it has an effect on the flow of people in our system. 6. United States v. Lopez (pp. 153) - When the item regulated is NOT commercial in nature, Congress has more of a burden to establish it has the power to regulate that item under the commerce clause, and the Court will closely examine the act. o Facts Lopez objected to the Gun Free School Zones Act, which made it a federal offense for any individual to knowingly possess a firearm at a school zone. 10

11 o Commercial/Non-Commercial There is no bright line test. While this does create legal uncertainty, legal uncertainty is always present because Congress has limited power and because the court must decide when Congress exerted more power than it has been given. 7. United States v. Morrison (pp. 173) For a statute to be related to the commerce clause, it must: (1) be related to "commerce" or any sort of economic enterprise, however broadly one might define those terms; (2) contain an express jurisdictional element which might limit its reach to some discrete item/items that have an explicit connection with or effect on interstate commerce; and (3) have formal findings as to the substantial burdens that an activity has on interstate commerce. This appears to be a balancing test. o Facts - Brzonkala sued two football players in federal district court under the challenged statute. 42 USC 13981 provides a federal civil remedy for victims of gender-motivated violence. o Analysis - Gender violence is not an economic enterprise. The existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of the Commerce Clause. We reject the argument that Congress may regulate non-economic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. 8. Gonzales v. Raich (pp. s1) - Congress can regulate purely intrastate activity that is not itself "commercial," in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. (Federal Preemption issue) o Facts Respondents possessed marijuana under the California statute. The DEA found respondents use lawful under the CUA but seized it anyways. o Analysis - Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the Controlled Substances Act. o Dissent (SCALIA) The Necessary and Proper Clause empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to act in isolation. That simply possession is a non-economic power is immaterial to whether it can be prohibited as a necessary part of a larger regulation. III. State Autonomy A. State Autonomy Barrier (10th Amendment) The 10th Amendment provides that the powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the People. This places a small but possibly significant limit on Congress ability to use its Commerce Power to regulate the States.

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Tip: States must follow general federal law (Garcia). However, they cannot commandeer state resources to enforce federal law because this violates the state autonomy barrier. OConnors Printz dissent provides possible exceptions that could be brought in the future to allow the federal government use of state resources. 1. Garcia v. San Antonio Metropolitan Transit Authority (pp. 182) State sovereign interests are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power. o Facts: A state municipal transit authority objected to minimum-wage and overtime requirements of the Fair Labor Standards Act. o Analysis: There is too much power being afforded to an unelected judiciary with the flexibility of the term "traditional governmental function." The federal government legislative branch is elected from the states, and no law gets passed by the federal government without the approval of the state's representatives. As such, the limitation that if your state representatives are doing things you don't like, you'll vote them out. This controls excessive federal power. o Dissent: (POWELL) The structural argument may have worked some time ago, but it is no longer valid today. Federal constituents who have no connection to the state are in charge of drafting legislation and the people no longer have much control over the political process - VERY STRONG ARGUMENT. 2. New York v. United States (pp. 187) While the Federal Government may erect barriers to trade and may offer incentives for compliance, it cannot compel the states to enact or administer a federal regulatory program; there must be a choice. o Facts: The states came together to bargain and create a uniform regulation to dispose of radioactive waste. The three provisions are on pp. 187. o Analysis: Congress may regulate under its dormant commerce clause to erect barriers to interstate commerce and not allow private companies to send their waste outside of the state. Congress can also entice states with federal money to comply with the federal statute. However, Congress cannot commandeer the state legislative government - if you don't pass these laws you're going to have to be doing something that is the equivalent as if you had passed those laws. There is no out for the state, and that is not permissible. The argument a bit forced (no indication in history/text) because OConner sees that the world is not as it once was. o Dissent: (WHITE) The states constructed this statute. If states are not permitted to create such statutes, the federal government will just declare where to dump waste and there is no lead way. White makes a strong argument, but the threat to liberty is not addressed. 3. Printz v. United States - The Federal Government may neither issue directives requiring States to address particular problems, nor command the States' officers,

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13 or those of their political subdivisions, to administer or enforce a federal regulatory program. o Facts: Certain provisions of the Brady Handgun Violence Prevention Act commanded state and local law enforcement officers to conduct background checks and related tasks on prospective handgun purchasers. o Analysis: If the federal government is given the power to command state officers then all of the countries resources would be available to the federal government, throwing out of balance state and federal power. This goes against the idea of dual sovereignty. Additionally, there are very few examples in history where state officials were used, indicating our founders didnt think this would happen. o Concurrence EXCEPTION: (OCONNOR) The court refrains from deciding whether other purely ministerial reporting requirements are similarly invalid (e.g., reporting missing children). This may allow federal government more conscription. o Dissent: (STEVENS 4) The federal government could accomplish the same effect by increasing taxes and hiring officers to enforce the legislation. State judges and state court clerks performed a variety of executive functions, demonstrating that state officials were not immune from federal service. Additionally, in the Federalist papers, the founders argued that state officials would be used to implement federal law, avoiding an oversized federal bureaucracy. B. State Sovereign Immunity (Eleventh Amendment) The government has immunity from suit by a private citizen in federal court with diversity jurisdiction and may only be sued if it consents to waive immunity, such as by statute. Applies to all federal court cases (Hans) for money damages (Alden). 1. Hans v. Louisiana (pp. 204) The Eleventh Amendment applies not only to cases with diversity jurisdiction but also to cases with federal question jurisdiction. EXCEPTIONS: o A state can be sued by the federal government because the federal is considered to be a superior sovereign. o One state can sue another state without consent because theyre equal sovereigns. o State officials may be sued if the allegation is that they acted outside their legal authority (Ex Parte Young). o State congressional abrogation of sovereign immunity - if state says they abrogate state sovereign immunity. o Fourteenth Amendment Exception (see below). 2. Seminole Tribe of Florida v. Florida (pp. 205) A state cannot be sued under federal law, even if that law was validly passed by congress, because states have sovereign immunity.

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14 3. Alden v. Maine (pp. 207) Congress may not abrogate state sovereign immunity by authorizing PRIVATE suits for MONEY damages against nonconsenting states in their own courts. o Analysis: This is not because of the Eleventh Amendment, but because it upsets the balance between state and federal government it gives the federal government too much power over states. o Dissent: (SOUTER) Sovereign immunity does not comply well with a republican government. Nothing in the history/structure belies that the founders intended sovereign immunity. 4. Alden Application o Florida Prepaid Postage v. College Savings Bank Florida USPS stole trademarked technology and used the sovereign immunity defense. Plaintiff did not to recover money damages. BREYER dissented that the court is ignoring the modern reality that private citizens need to be able to bring suits to ensure the government does not violate the law. o Board of Trustees v. Garrett When a state acts as an employer, a state can assert a defense of sovereign immunity if its a case for money damages. 5. Federal Maritime v. South Carolina State In ADMINISTRATION HEARINGS, the same issues of state sovereign immunity apply. 6. Fourteenth Amendment Exception The 14th Amendment (along with the 13th and 15th) have a stipulation that Congress has the authority to enforce the Amendment. Thus, Federal Congress has authority to abrogate sovereign immunity under these amendments. o Nevada Department v. Hibbs & Lane Regulations under 5 of the 14th Amendment are proper and states cannot claim sovereign immunity as a defense. C. Federal Preemption Whose law applies state or federal? 1. Express Preemption Where Congress has made it clear whether it intends to regulate states its intentions will prevail (If it intends to preempt, it will). 2. Conflict Preemption o When it is impossible to comply with both state and federal law then federal law governs (e.g., Gonzales v. Raich above) o When state law is an obstacle for the purpose of the federal law then state law is struck and federal law prevails. You must find the purpose of the federal law and whether state law is actually an obstacle. Example: ERISA regulates federal benefits, requiring any law affecting federal benefits must be brought in federal court under ERISA (encourage employers to provide benefits). Texas created a malpractice law against HMOs which was struck down because it created an issue under ERISA. 14

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3. Field Preemption Where federal law so completely fills the field it preempts state law in the field. This may done expressly (Airline regulation) or implicitly through bountiful legislation. 4. Dormant Commerce Clause The negative inference from the Commerce Clause that a state cannot interfere with intrastate or foreign commerce. Even when there is no existing legislation, states cannot erect barriers to commerce. However, states may erect barriers for non-economic protectionism (ex Maine passed a law forbidding import of live bait for environmental reasons). The five dormant commerce clause questions are: o Is state law rationally related to a legitimate state purpose? Economic protection is not valid, but others may be valid. o Are transactions regulated wholly out of state? (ex Connecticut law requiring liquor distributors to show they were charging other states a higher price wholly out of state is not permitted.) o Does regulation represent the least discriminatory means to achieve its purpose? (ex. In the Maine example if there was a way to protect the environment without forbidding imports then it would have to adopt it). o Are the burdens on interstate commerce clearly excessive compared to the benefits? (ex. Law regulating the length of trains within state was found to be overly burdensome because the benefit was not effective more accidents occurred in state). o Does the regulation represent the least burdensome means? (Differs from third requirement because you can have an increased interstate burden while still being least discriminatory.) 5. Congress War Powers Under the Constitution When it comes to war matters, the federal government is in charge and state has minimal powers almost nonexistent. Congress can ratify treaties, declare war, and power of the purse (must be reviewed every two years). IV. Separation of Powers Protects against autocracy by any branch of the government or any person within the government (e.g., the President). However, the separation is not strict because there needs to be a lot of flexibility between joints in order to have a workable government. Analyze under the political question doctrine. Tip: When there is a separation of powers issue: 1. Does the issue fall under the political question doctrine? 2. What is the power given in the constitution to that particular branch? 3. Whether the branch that is encroaching is taking too much power to itself so that the balance is being severely affected in such a way as to jeopardize our liberty. A formalist court will say that when a branch goes beyond its given role it is unconstitutional. However, a functional court will look to the degree that a branch encroaches into another, disrupting the balance, to determine constitutionality.

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16 A. Limits on Executive Power The President has implied (stems from a grant of power within the constitution - gloss) and inherent power to enforce the laws Congress creates because its impossible to specify everything in a constitution. This is shown because while Article I says Congress has the powers herein granted, Article II does not limit the President with such language and is much more open. 1. Youngstown v. Sawyer (pp. 344) On the whole, the court takes a functional approach to deciding whether the President has violated separation of powers. Some overlap between the branches is permitted, and the president can act in areas that are within the powers of Congress depending on the circumstances. Also, there are limits on the presidents inherent power, which can be imposed even when the present claims there is a crisis. JACKSON categories: a. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. It wouldn't be unconstitutional unless the whole act is unconstitutional. b. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and congress may have concurrent authority, or in which its distribution is uncertain. The court will look at the fact that Congress has done nothing and then decide whether that permits the president to do something. This requires balancing and examination of the facts. c. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. This is the least likely that the president is acting under the authority of the constitution. It is much harder to prove. o Facts: Truman issued an Executive Order directing the Secretary of Commerce to take possession of most the steel mills and keep them running. He could have stopped the strike under the Taft-Hartley Act but did not to avoid an unfavorable result with the labor unions. o Concurrence: (JACKSON) The president is in the third category and has gone too far. He is Commander and Chief of the Army and Navy, not of the entire country. While the president does have emergency powers for crisis, there are limits that the court sets. However, if Congress doesnt have the power to stand up to the President this court cannot substitute itself for the will of Congress. o Small Majority: (BLACK) There is no statute giving the president the right to take property and there is no act of congress from which this act can be implied (formalistic approach). There is no law for the president to enforce so he exceeded his authority. o Concurrence: (FRANKFURTER) Because we cant define the presidential powers definitely (functional approach) then we need to look at the given facts. We look at what history has shown and what Congress has done that gives the president implied powers. The Taft-Hartley Act is legislation on point Congress declined to give the President the power to seize assets.

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17 o Dissent: VINSON says that this falls under the Presidents power to respond to an emergency. Statutory authority is unnecessary because Congress has endorsed the Korean War and not speaking against it. 2. Dames & Moore v. Regan (pp. 355) - We do not decide that the President possesses plenary power to settle claims, even as against foreign governmental entities. But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President's action, and we are not prepared to say that the President lacks the power to settle such claims. o Facts: The President issued the Iran Executive Agreement was entered, which obligated the US to terminate all legal proceedings in the US courts involving claims of US persons and institutions against Iran and its state enterprises. Congress had issued 203 of the IEEPA, which allowed the President a lot of power to nullify property that has a foreign interest. o Analysis: The President is acting within the second Jackson category. While the President wasnt expressly given the power, it was implicitly approved by Congresss past acquiesces (gloss) B. Executive Discretion in times of War or Terror Tip: On the whole, the court takes a very functional approach in every important case dealing with encroachments by the executive. It evaluates the degree of encroachment, looks at the degree of aggrandizement, and looks to whether that is a sufficient attack on the core function of the particular branch of government that it violates separation of power. Very fact driven analysis that deals with balancing between balance of power and a workable power. 1. Discussion on Debate (pp. 360) Takeaway in notes in Class 19. 2. Ex Parte Milligan (pp. 364) - If you arrest a citizen while the US courts are open, even if you claim that citizen was an unlawful enemy combatant, then you take the citizen before the regular court. If the courts aren't working, then Milligan says military commissions may be used, but when you have a fully functioning civilian court then you use civilian court unless there is marshal law. 3. Ex Parte Quirin (pp. 367) A citizen may be characterized as an unlawful combatant. o Facts: German nationals landed by German submarines on American shores attempting acts of sabotage. The President made their acts subject to the jurisdiction of military tribunals and denied petitioners access to the courts. 4. Hamdi v. Rumsfeld (pp. 373) - While the President has the power to invoke military commissions when he deems necessary he must comply with the Uniform Code of Military Justice and the Geneva Code. Due process requires that

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18 a citizen-detainee seeking to challenge his classification as an enemy combatant receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decision maker. o Facts: Hamdi, a Louisiana born Saudi-American was detained by the US military as an enemy combatant in navel brigs in Virginia. He was captured in Afghanistan while fighting against American forces. Non-Detention Act - "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." o Analysis: Follow the plurality decision. If a lower court decides that a prisoner should be detained after the procedure, then they are most likely to get five votes for the detention because the key decision makers are swing votes. If the lower court decides the procedure is not sufficient then youll get Scalia and Souters votes. If you find it is sufficient, you get Thomas vote. o Plurality (4): While Congress has preserved the Presidents power to invoke military commissions when he deems necessary under the Constitution and the common law of war (AMUF), the President and those under his command must comply with the law of war. Remand and continue DETENTION while Hamdi is given better procedure (Functionalist). o Dissent: (SOUTER - 2) AUMF does not specifically permit detention and his action violates the Non-Detention Act. Remand and RELEASE unless there is another procedure making the action valid. o Dissent: (SCALIA 2) The only way you can detain an American citizen is indictment or some other law allowing detention (formalist). The writ must be suspended. RELEASE o Dissent: (THOMAS - 1) The president has plenary power to detain and does not have to give Hamdi procedure (tends to be formalist). DETAIN. o Political Question Doctrine: It is a close call whether this is a political question issue (textually demonstratable constitutional commitment of the issue to a coordinate political department). However, this is not a political question doctrine because the underlying claim is that the president has violated the writ of habeas corpus and not given proper procedure. However, the court lacks the expertise to question whether Hamdi is an enemy combatant. 5. Hamden v. Rumsfeld (s17) Where a detainee does not violate the law of war a military commission cannot be used against him. If a military commission is to be used, the detainee must be able to see the evidence against him under the US Code of Military Justice and the Geneva Convention. o Facts: Hamden was captured in 2001 by militia forces during hostilities between the US and the Taliban and charged with conspiracy. He petitioned for a writ of habeas corpus. o Analysis: Functionalist approach. While president has inherent power and can use it substantially in foreign policy matters, the court will not allow him to make a blanket argument that supports his actions just because it is a national security matter. There must be a balancing to determine what type of power is

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19 necessary to lead the country, and the court will draw the line to protect separation of powers. o Concurrence: KENNEDY does not sign on to portions of the majority opinion because he sees no need to go further than determining that the military commission is unauthorized. There is no need to tell Congress to change the law. However, he strongly believes the president exceeded his powers. The trial by military commission raises separation-of-powers concerns because the executive is interfering on the judicial and legislative branches. Also, Congress has spoken, which puts the President at odds with Youngstown. C. Congressional Encroachment on Executive Power 1. Non-Delegation Doctrine While Congress cannot delegate its power to the executive branch, there are no modern cases that have struck down its discretion to delegate. The court rubber stamps Congress in giving to executive or agencies enormous power partially because this is how our modern world has to work. Congress cannot pass legislation that covers everything. 2. INS v. Chadha (pp. 387) Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked. o Facts: Chadha was allowed to avoid deportation by grant of the attorney general. The House of Congress invalidated the grant of stay under a provision in 244(c)(2) of the Immigration and Nationality Act authorizing one House of Congress, by resolution, to invalidate the decision of the Executive branch, pursuant to authority delegated by congress to the attorney general, to allow a particular deportable alien to remain in the US. o Analysis: This violates the bicameral provisions. Allowing one house to allow the executive's authority to implement the law violated the structure imposed by the founders in the structure and the bicameral clause. Limiting Congress' ability to legislate was important to controlling Congress' power and to ensure legislation was not improvidently made. It should take time to think about the laws that are being passed. Formalistic approach - this violates the structure given us, that structure is important to ensure that laws are passed with checks and balances in place. o Dissent: (WHITE) Congress is giving itself a ridiculously small amount of power. This should be allowed in order to have a workable government. We want Congress to delegate and this innovation ensures that the executive does not stray too far from Congress legislation. 3. Bowser v. Synar (pp. 404) Congress cannot reserve for itself the power of removal of an officer charged with the execution of laws except by impeachment. o Facts: The Office of Comptroller was created by the Budget and Accounting Act of 1921. The Comptroller General is removable only by impeachment or by a Joint Resolution of Congress (which is subject to presidential veto) on the basis of reasons specified in the 1921 Act.

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20 o Analysis: Formalistic Approach: The controller general was given power under the statute to interpret and execute a law (executive branch law). Once he's doing an executive act, he cannot be removable by Congress because it gives Congress too much power. While this statute is a bit trivial, the majority is drawing a clear line that a legislative branch cannot make executive decisions. o Dissent: (WHITE) Wants to take a more functionalist approach. Finds a contradiction that this statute is struck down because the President does not have removal power (Congress does), but independent agencies that have Commissioners not removable by the President remain valid. 4. Chadha & Bowsher Analysis While these matters seem rather small, the statutes in question give what was deemed to be essential branches of the executive (core functions) to Congress. Congress does not have inherent power, so the court is more likely to notice when Congress is doing something that is not legislative (formalist) than when the President oversteps his power (functionalist). 5. Morrison v. Olson (pp. 410) Where Congress places restrictions on removal but does not take power for itself, there is no violation of separation of powers. Where there is no aggrandizement of one branch by another or an invasion of the core powers then there is no separation of powers issue (functional approach). o Facts: A challenge was made to the independent counsel provisions of the Ethics in Government Act of 1978 as violating the Presidents core functions of determining who gets investigated and how they get investigated. The statute was created to keep the president from firing special prosecutors when there are high level executives being investigated due to Watergate (excessive executive power) It first raised issues of the Appointment Clause and the court exceeding its Article III powers (Class 23 notes). The primary issue was whether the provision of the Act restricting the Attorney Generals power to remove the independent counsel to only those instances in which he can show good cause interferes with the Presidents exercise of power. o Analysis: Functional approach: This does not involve Congress attempt to gain power in the removal of executive officials other than by established powers of impeachment and conviction. Because Congress was not involved in the removal then Congress is not taking power to itself, violating separation of powers. Make a case-by-case analysis of whether the statute hampers the executives removal power. o Dissent: (SCALIA) This statute takes away some of the executives constitutional power under Article II, which says that the President has ALL executive power. He does not believe that the court can distinguish as to whether the statute goes towards a core function. If the President abuses his power, he will be voted out of office. 6. Clinton v. New York (pp. 396) The President may not unilaterally change the text of duly enacted statutes.

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21 o Facts: Clinton had the power to line-item veto provisions. After a veto he had to notify congress , which could then pass a disapproval bill. o Analysis: Textual approach: The line item veto violates the constitution because the president gets to change a congressional statute without both houses voting on it (2/3 majority) and the president signing on it, (normal procedure). The Constitution is silent on any other procedure and that silence equals prohibition. Where the President cancels a line of direct spending he is rejecting the policy judgment made by Congress. Separation of powers issues are not reached, probably because the majority did not want to rule all impoundment statutes unconstitutional because there is a need for them. This appears to be a functionalist approach in disguise. o Dissent: Is the line item veto any different than the statutes giving the president authority to suspend certain matters (e.g., impoundment statutes where the President may decide whether all the money needs to be spent)? E. Executive Privilege 1. United States v. Nixon (pp. 420) The president has presumptive executive privilege, and once he invokes it the burden falls on the prosecutor to rebut the presumption. However, the privilege is not absolute and the President can be subpoenaed and must comply with the subpoena. o Facts: The District Court issued a subpoena duces tecum to the President requiring him to produce certain tapes and documents related to meetings between the President and others. The President released edited conversations and moved to quash the subpoena claiming executive privilege. o Analysis: Functionalist approach to separation of powers. In this case, the balance between his need for confidentiality and the need for the criminal justice system weigh in favor of the need for criminal justice system. "When the ground for asserting privilege as to subpoenaed materials sought for use in the criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice." 2. Clinton v. Jones (pp. 427) The president cannot have temporary immunity during his presidency for a suit regarding private behavior where the president only makes a generalized claim that he is being distracted from his presidential duties. o Facts: Clinton was being sued by Jones for sexual harassment prior to his presidency. Clinton claimed he should not have to defend himself in a law suit for unofficial behavior because it would distract him from the presidency. o Analysis: Clinton did not give any facts demonstrating that he could not be president and defend the law suit. More evidence was needed than the assertion that the suit would case a distraction.

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