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CONSTITUTIONAL LAW OUTLINEWEAVER - 2014

I. INTRODUCTION TO CONSTITUTIONAL LAW

AMENDING A CONSTITUTION: PROCESS & PURPOSE

Intro

Theme of Nation Building

ARTICLE V The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments of this Constitution, or, on

the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.

AMENDMENT XVIII (18TH AMENDMENT) Section 1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

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Section 3: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the State by the Congress.

How many methods are there to amend the United States Constitution? [Albert: 4]

1. Both houses of Congress, by 2/3rds vote, propose an amendment that becomes effective when ratified by 3/4 of state legislatures.

2. Both houses of Congress, by 2/3rds vote, propose an amendment, and then ratified in special conventions in 3/4 of states. 3. Amendment is proposed at a National Convention when requested by 2/3 of state legislatures, and then ratified by 3/4 of

states. 4. Amendment is proposed at a National Convention when requested by 2/3 of state legislatures, and then ratified by special

conventions held in 3/4 of the states.

Is anything in the United States Constitution unamendable? Here are some (international) examples:

1. The republican form of government shall not be the object of any amendment. Constitution of France, Title XVI, Article 89 (1958).

2. The republican form of the state may not be changed by way of constitutional amendment. Constitution of Italy, Title VI, Section II, Article 139 (1948).

3. Amendments to this Basic Law affecting the division of the Federation into Lnder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible. German Basic Law, pt. IV, art. 79(3) (1949).

So what about in America?

1. Until 1808: Two provisions regarding a census based taxation (related to slave trade). 2. Equal Suffrage Clause: Its impossible to imagine it being ever being amended, even though the Constitution

permits a state to change its representation in the senate. Why would a state ever agree to give up one of its senators? De-Facto Unamendable!

a. Article V: no State, without its consent, shall be deprived of its equal suffrage in the Senate.

Dillon v. Gloss (handout, 1921) Facts: Dillon had been arrested pursuant to the Natl Prohibition Act & was in custody under 26. He was denied his petition for a writ of habeas corpus, and appealed the denial. Dillon claimed that the 18

th Amend was inoperative since it had not been ratified

within the time frame set by the congressional resolution proposing the amendment. He also claimed that the law was not in effect at the time the crime was committed, nor at the time of his arrest. Issue: Resolution proposing 18

th Amendment imposes expiration date for ratification. Is this constitutional?

Holding [Van Devanter]: Yes. We conclude that the fair inference or implication from Article V is that the ratification must be within some reasonable time after the proposal [. . .] Whether a definite period for ratification shall be fixed so that all may now what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification.

In Dillon v. Gloss (1921), how does the National Prohibition Act relate to the 18th Amendment?

Petitioner argues that the 18th Amend pursuant to which the Natl Prohibition Amend declared that it would inoperative unless ratified within seven years.

Argus that this Natl Prohibition Amend is unconstitutional because it was passed to enforce the 18th Amend. o Petitioner argues that Congress has NO POWER to limit the deliberation of the ratification process.

What does the Court hold in Dillon?

Holds that Congress has the power to designate a reasonable time and its up to their discretion. o Albert thinks its a bit narrower: Congress has the right to set an expiration date, BUT the period of time

has to be reasonable.

Coleman v. Miller (handout, 1939) Issue: KA rejected the Child Labor Amend. In 1925, then ratifies it in 1937, 13 years after it is first proposed. Is this too long a time to ratify an amendment? Holding [Hughes]: No. A proposed amendment to the Federal Constitution is considered pending before the states indefinitely unless Congress establishes a deadline by which the states must act. Further, Congressnot the courtsis responsible for deciding

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whether an amendment has been validly ratified. Congress shall determine what is a reasonable amount of time. - Period of deference to Congress (see Commerce Clause

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How does Coleman v. Miller (1939) refine the holding in Dillon?

The Court holds that ONLY Congress may determine a reasonable period of time to ratify an Amend & Congress choice is NOT reviewable by the courts. It is a political question and outside the purview of the judicial branch.

Why do constitutional designers include amendment provisions in constitutions? What are the purposes of constitutional amendment?

The Constitutional is malleable. The US Constitution is flexible, written in broad strokes, & outlines a basic structure of government, collective purpose, & citizens rights & responsibilities, with the preponderance of the details left to be added later by legislative, executive, judicial, & civic actors.

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II. JUDICIAL REVIEW

JUDICIAL AUTHORITY

ARTICLE III, SECTION II, CLAUSE 2 In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have Original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have Appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Never expressly grants federal courts the power to review the constitutionalist of federal or states laws or executive actions. But Marshall in Marbury establishes the doctrine of Judicial Review in the most important case in American history.

How does the Constitution confer upon courts the power of judicial review?

The Supreme Court has the power, implied from Article III, 2 of the Constitution to review acts of Congress, and if they are found repugnant to the Constitution, to declare them void.

Article III 2 Clause 1: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

Should the United States judiciary have the power of judicial review?

Yes. If Congress is allowed to distribute original and appellate jurisdiction of the Supreme Court then the Constitutional grant of Article III is form without substance.

o Would make the Separation of Powers irrelevant. Congress would have unlimited power SCOTUS may (& should) engage in Judicial Review to make sure POTUS is carrying out his constitutionally or

congressionally mandated duties (and to make sure those duties are constitutional in the first place) because rights are created for others.

o Without Judicial Review, decisions that come out of the discretion of the Executive Branch could only be checked by the political process (people and Congress).

o Without Judicial Review, there would be no Institution to mediate conflicts between Congress and POTUS, resulting in political CHAOS

Marbury v. Madison (p. 3, 1803) Facts: William Marbury, an end-of-term appointee of President John Adams to a justice of the peace position in the District of Columbia, brought suit against President Thomas Jeffersons Secretary of State, James Madison, seeking delivery of his commission. Issue: Marbury seeks a writ of mandamus to order his judicial commission delivered. Is Marbury entitled to the writ of mandamus compelling the Secretary of State to deliver the commission? Holding [Marshall]: Narrowly, yes Marbury is entitled to the writ of mandamus, BUT his case was brought to SCOTUS under the Judiciary Act of 1789 which is unconstitutional because it legislatively adds to the courts original jurisdiction.

- Adding to SCOTUS Original Jurisdiction via legislation violates Article III, Section 2, and Clause 2. Original Jurisdiction can only be altered through constitutional amendment.

- Marburys case was improperly before SCOTUS because of unconstitutional law. - Article III is the Ceiling of SCOTUS Original Jurisdiction - Congress can add to Appellate Jurisdiction

Marshall strikes down Judiciary Act of 1789 as unconstitutional. Federal courts are of limited jurisdiction. Article III is ceiling and Congress may not expand. (1) Significance of this case lies in Marshalls creation of Judicial Review, asserting that SCOTUS can exercise

judicial review over the other branches of government. o Judicial Review: The Constitution is regulatory, not merely aspirationalit controls statutes; and it is

emphatically the province and duty of the judicial department to say what the law is. (To interpret the Constitution, review Legislation, and Executive Acts.)

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o Allowing the Judiciary Act of 1789 to increase SCOTUS original jurisdiction would make the Constitutions enumerations irrelevant

(2) Article III is the ceiling of Supreme Courts jurisdiction. o Congress cannot EXPAND the jurisdiction of the federal courts.

Albert: Can they redress? Perhaps, answer is probably yes. o This decision helped establish the principle that Federal Courts are courts of limited jurisdiction

NOTE: Statecraft by Marshallruled for opponent and ostensibly against judicial expansion, while increasing power of judiciary.

NOTE: First time SCOTUS invalidated a law passed by Congress Which approach is preferable: The United States model of judicial review or the British model of parliamentary supremacy? - The British model (parliamentary model) is much more flexible because the Executive and Legislative powers are collapsed into one institution.

Pro: Parliament is nice in the sense that things can move swiftly because it reduces the inherent inefficiency of the separation of powers. Con: But, the US Constitution was built specifically to create this inefficiency so power could never be concentrated and political decisions are given appropriate deliberation and everyone generally agrees they are a good idea.

- Parliament has the final work on Constitutionality. Checks on government are internalized in the political process

ARTICLE VI, SECTION 2 (THE SUPREMACY CLAUSE) This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. Is the United States Constitution the supreme law of the land?

Yes because of Article VI, Section 2: The Supremacy Clause makes the U.S. Constitution supreme over all laws. o SCOTUS enforces this by interpreting state court decisions. o SCOTUS has appellate jurisdiction over state courts.

State court judges are bound by the Constitutionand therefore the judgments of SCOTUS. NOTE: Federal Government sets the floor (the Constitution sets the floor on citizen rights).

BUT a state court could provide individual rights GREATER than those in the Constitution.

o SCOTUS has appellate jurisdiction over causes concerning the federal constitution.

Martin v. Hunters Lessee (p. 9, 1816) Facts: A brit owned land that was taken after independence and wants it back but cant because of VA state law. VA SC says he cant have it & argues that in regards to Federalism, the courts are co-equal and that they are not inferior to SCOTUS and the Federal Government. Issue: A Virginia court refused to comply with a ruling issued by SCOTUS. Does SCOTUS have appellate jurisdiction over state court asking federal questions? Holding [Story]: Yes.

(1) Article III gives SCOTUS jurisdiction over all cases arising under federal law. Fed is superior to state. (2) Supremacy Clause: US Constitution binds states judges and Constitutional interpretations should be subject to corrections by SCOTUS. States judges were thought to be more politically accountable and federal judges could make more independent decisions. (3) Uniformity: Constitution cannot be applied differently in every stateneed a body to make sure that it is applied the same way everywhere.

What would have happened if Martin was decided the other way?

Chaos would ensue There would be a lack of uniform application of the Constitution among the several states.

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What should be the relevance of public opinion when a judge rules in a case?

Justice Stephen Breyer, in the Big Think video: Only vary rarely would that actually matter. And it cant really influence your judgment in terms of consequences directly on the court what will the press say? Will they say youre good or bad? Will they see this is terrible or wonderful you just cannot let it because that is the road to perdition? Were not there to be popular. Were not there to decide according to the majority. Were not there to decide according to what the press is going to write. The point of this job is to do your best as a judge. It is a judicial job. It is a job where youre trying to apply as best you can to apply the law in different circumstances.

John Marshall said, Well the people made the Constitution, and they can unmake it. So ultimately were floating on a sea of public opinion. And that public opinion does not have to agree with our decisions, but they do have to follow them.

Today people do tend to follow the opinions. They understand, at some level, that 300 million people of every possible race, religion & point of view to live together, they have to have a way of resolving their problems, and they turn to the law. Now theres no guarantee that will continue. The court is working at it, but it is an incredible asset, a treasure to the country.

I understand that the court has to maintain standing in public opinion; but the way to do that is not for me to base my decisions on public opinion.

o Personal Thought: The court has neither force nor will, merely judgment Hamilton, Federalist 78 o The court cannot move too quickly and get ahead of public opinion, or else it risks losing public respect.

Where does the Constitution declare that SCOTUS interpretation of the Constitution is supreme? It is obvious? It comes from Marshalls opinion in Madison where he entrenched Judicial Review and this review, connected

with Article VI: The Supremacy Clause, create SCOTUS position as supreme interpreter of the Constitution. NOTE: SCOTUS can only review state court decisions that are related to a Constitutional right or a Federal

question/issue/law. SCOTUS will NOT review a wholly state issue. NOTE: Once SCOTUS interprets the Constitution, that interpretation becomes part of the Constitutions body of

law. (via stare decisis). Precedent is up to the judiciarys discretion, but it is a foundational principle of common law systems.

Cooper v. Aaron (p. 11, 1958) Facts: In response to Brown v. Board of Education (1954), the school board is suing here, and they ask to postpone the coming of the segregation orderthey say they are preparing for it, and are on the side of desegregation, but they wish to postpone is by 2 years. Why? Because they felt the conditions were unsafe as they currently stand, moreover, this situation would adversely affect the quality of education Issue: The governor & legislature of the state of Arkansas defy the holding in Brown. Must state officials obey federal court orders resting on SCOTUS interpretation of the Constitution? Holding [Black]: Yes. SCOTUS has last word on constitutional interpretation and when they decide something, you cannot go against it. The Federal Courts have the authority to review state laws and state officials actions.

Article VI: The Supremacy Clause is the grounding of the courts decision. o It is emphatically the province and duty of the judicial department to say what the law is. Quoting Madison. o It follows that the interpretation of the 14th Amendment enunciated by this Court in the Brown case is the

supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States o No state legislature or executive or judicial officer can war against the Constitution without violating his

undertaking to support it. o If the legislatures of the several states may, at will, annul the judgments of the courts of the United States,

and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery. Quoting Marshall in US v. Peters.

How does SCOTUS enforce its decisions?

Public Acceptance: The court doesnt have an army; as a result, in desegregation cases like Cooper, the Court frequently rests on the support of the legislature and representatives.

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o Support is found in elected officials. So if public support is so far away from a ruling, how will the Court uphold its ruling?

And in the end, the state officials themselves must enforce the rulings as well. In this situation, Eisenhower uses the National Guard to aid the Arkansas Nine. So here, the court gains it powers through the president using federal agents to enforce its decision.

While the court may not conduct a public poll before it rules, it seems that it, must, at least somewhat, consider public opinion before it renders a decision.

Should state officials have an obligation to obey SCOTUS when the Courts decisions cause unrest in the state?

- SCOTUS decisions become part of the body of law of the Constitution - To defy SCOTUS ruling is to defy the Constitution

Is the Repeal Amendment a good idea? [I say no]

Authorize 2/3 of states to express their desire to repeal federal law. We disagree with this law. [28th Amendment] And then when 2/3 or more of the states agree with this, the law would be repealed.

o Lou Dobbs clip: Would return power to the local and state level and diminish the federal government. o Rep. Rob Bishop (R) Utah: Wants the states to have a better balance in government.

Would this be constitutional under Cooper v. Aaron? o RA: Not sure if its unconstitutional under Cooper. o Imagine the existing congress is opposed to the Citizens United decision. That congress could

collaborate with the states to overturn this decision under appeal amendment.

RESTRAINTS ON JUDICIAL AUTHORITY

Introduction Practical Limitations

o The court has a finite docket, and can only hear a relatively small amount of cases a year. It has discretion to decide which case to hear.

NO mandatory cases they have to hear. o Supreme Court Rule 10: Even if the court thinks that the lower court made a mistake, the court can

decline to review that case. Focuses its attention on important federal questions (basically, does it have significance enough

to even hear?) o Cases come by appeal, or by writ of certiorari

Traditionally: Writ of Certiorari: discretionary, the court does not have to? Only 4 judges need to allow the case to be heard. When SCOTUS denies a position for cert it has no legal affect: denial of cert doesnt deny or

affirm the lower courts decision, it just stands. (However the previous court rules, it governs but its NOT an affirmation. No precedent is created in this.)

Why does the court hear so few cases today compared historically?

The landscape of constitutional law in the US is already developed. At the beginning our history, the court had to decide how to structure much of our law.

Significance of the issue. There are REALLY, REALLY, significant issues. Because the court recognizes it as limited political capital, so they punt issues for various reasons (consider gay marriage, they could have decided this 15 years ago, they havent even issued a firm ruling on it yet)

Administrative reasons: researching is more available, more in-depth that a century ago.

Congressional Control in Jurisdiction What power(s) does Congress have over SCOTUS?

Under the Exceptions Clause [Art. III, II] (with such Exceptions, and under such Regulations as the Congress shall make) Congress has the power to limit appellate jurisdiction, we just dont know how far/much.

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Because most cases come to SCOTUS on appeal, Congress has a lot of power because they can regulate SCOTUS appellate jurisdiction.

SCOTUS can also be circumvented: o Congress has the power of funding. They could suck away the funds from the judicial branch. o Confirmation hearings control who seats on the bench. o Article V: state could propose to amend the Constitution.

Ex Parte McCardle (p. 15, 1868) Background: About Reconstruction Actsthe way that the Federal Government was running the south after military victory. Federal Government was desperate not to have SCOTUS declare the Reconstruction Acts unconstitutional. sues because seditious libel in Reconstruction Acts are unconstitutional, gets jurisdiction from habeas corpus act. Congress knew theyd lose the Reconstruction Acts, so repealed habeas corpus act while case was pending in SCOTUS. Totally transparent in their attempt to get his case kicked out of court. Facts: McCardle appeals to SCOTUS from a denial of habeas corpus. While it is pending, Congress repeals law granting SCOTUS appellate jurisdiction over writs of habeas corpus. Issue: May Congress limit the appellate jurisdiction of SCOTUS? Holding [Chase]: Yes. Although SCOTUS derives its appellate jurisdiction from the Constitution, also gives Congress the express power to make exceptions to that appellate jurisdiction. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.

Congress can strip a case from SCOTUS, even while it is pending, even though its obvious they stripped case because they thought they would lose. Congress has power to cut holes in SCOTUS appellate jurisdiction under Article III.

Motive: Congress motive here is transparent, yet the Court finds that, we are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.

United States v. Klein (p. 17, 1871) Facts: Klein, the executor of Wilsons estate, sought to recover Wilsons assets after a presidential pardon authorized him to do so. The matter was appealed to SCOTUS. While it was pending, Congress passed a law limited the Courts appellate jurisdiction to hear this case. Statute: upon proof of such pardon the jurisdiction of the court shall cease, and the court shall forthwith dismiss the suit of such claimant Issue: Can Congress limit the Courts appellate jurisdiction in this way? Holding [Chase]: No. By requiring the courts to make a specific finding of fact in a case over which the court has jurisdiction & then removing its jurisdiction after the finding, Congress isnt limiting jurisdiction, theyre prescribing a rule of decision for the courts.

- Congress impaired POTUS pardons by requiring that they be inadmissible as evidence in these cases. POTUS has the constitutional authority to pardon offenses. By disallowing the full effect of the pardons, Congress attempted to reduce POTUS authority.

Reasoning: Impairs the (1) Jurisdiction of the Judicial Branch; (2) usurps pardon Power of the Executive Branch. The Court here grounds its ruling under an argument for the Separation of Powers.

o Act directs the court HOW to decide a case. o Allows the legislature to dictate to the Judiciary rules of decision. o Although Congress has power to take away jurisdiction from the court in specific circumstances,

Congress CANNOT tell the Court how to decide. What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without

jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.

Should Congress have the power to limit the appellate jurisdiction of SCOTUS?

- No. - Courts are not subject to political pressures - Court provides a check against the excesses of the majority - The majority shouldnt have unlimited power to limit jurisdiction in order to further their own policy goals.

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Does Congress have the authority to strip SCOTUS of its jurisdiction? Yes, under the Exceptions Clause within Article III, II. Appellate ONLY

Does McCardle give congress primary (absolute, unqualified) authority over SCOTUS Appellate Jurisdiction? No clear answer. The constitution clearly gives constitutional power to congress, and does not place restrictions on

congresses ability to limit (strip) the judiciarys appellate jurisdiction. o What about Klein? Well you can basically ignore?

Why must it BE the supreme court? The check is from the judiciary. Even if SCOTUS were stripped of these rights, the precedent of the past rulings would still

bind the lower courts. SO, if even in congress stripped certain appellate jurisdiction, the lower courts would have to adhere to previous SCOTUS decisions. Although, over time, they would probably create exceptions but there would still be residual power.

o Probably a good idea to give SCOTUS the power to limit congresses power and passed legislation. The court should be able to challenge when congress wants to infringe rights, and require that the legislature provide compelling reasons in order to do so.

o Back in the 1960s SCOTUS ruled in Engle v. Vitaly, the state of NY could not require its students to recite school prayer.

In the immediate aftermath of the decision, then President Kennedy addressed the decision in a press conference.

Imagine he and the entire congressional delegation disagrees with the decision. And they propose a bill that would limit the courts appellate jurisdiction over school prayer?

o Would that be Constitutional? o Would that be a good idea?

Can Congress take away SCOTUS Original Jurisdiction?

Congress cannot take away original jurisdiction, but could perhaps alter the definitions of a state counsel, or ambassador, or anything defined under original jurisdictions.

o But then again, the court would most likely overturn this and prevent congress from trying to limit the courts original jurisdiction on an alternate (somewhat subversive) path.

o TEST HINT: Read the text, and then think of a way to maybe get around it, and then issue a stance on whether or not that would actually work.

o Correct argument: under Marbury, the courts original jurisdiction is not up for interpretation/limitation/appropriation, however But

Does SCOTUS have an untouchable essential role in law? Should it?

Congress cannot destroy the essential role of SCOTUS in the constitutional plan. Henry Hart. It is not reasonable to conclude that the Constitution gave Congress the power to destroy that role. Reasonably

interpreted the clause means With such exceptions and under such regulations as Congress may make, not inconsistent with the essential functions of SCOTUS under the Constitution. Leonard Ratner.

o As a counter, The courts do not pass on constitutional questions because there is a special function vested in them to enforce the Constitution or police the other agencies of government. They do so rather for the reason that they must decide a litigated case that is otherwise within their jurisdiction and in doing so must give effect to the supreme law of the land. Herbert Wechsler.

If the Court has an Essential Role, what is that role?

The supremacy clause of Article VI mandates one supreme federal law throughout the land, and Article III established the Supreme Court as the constitutional instrument for implementing that clause. Its essential functions under the Constitution are: 1) ultimately to resolve inconsistent or conflicting interpretations of federal law, and particularly of the Constitution, by state and federal courts; 2) to maintain the supremacy of federal law, and particularly the Constitution, when it conflicts with state law or is challenged by state authority. Leonard Ratner.

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Must Some Federal Court be Available to Hear all Federal Questions? To remove or permit the removal from the entire federal judiciary, including the Supreme Court, of the

constitutional review of state conduct would be to alter the balance of federal authority fundamentally and dangerously. Lawrence Gene Sager

The constitution does not prohibit this sort of comprehensive stripping of jurisdiction. The Framers considered the state courts to have played a crucial role in the protection of federal constitutional rights, and thus should not be viewed as having required federal court jurisdiction over all federal question cases.

Not only that some federal court has to be available to hear every federal question case, but also that some federal question cases should be heard only by the federal court. Joseph Story, SCOTUS Justice in the early 19th century.

EXAM: Takeaway: (3 Questions you should have an opinion on): (Chemerinsky p. 167-) 1. Should congress have the power to shrink SCOTUS appellate jurisdiction? 2. Does SCOTUS have an untouchable essential constitutional role? 3. Why do we feel different about original jurisdiction than its appellate jurisdiction?

Political Questions Doctrine

What is a political question?

SCOTUS may have the authority, but they may actually decline. o Out of respect for other branches? o Out of respects for other states? o Respect for the political process?

This is an exercise in self-restraint by the court of its own authority, and by no means an obligation. Its not a hard and fast rule that limits courts all the time, its a standard that they sometimes follow and

sometimes do not. o Often changes because of the court make-up amongst other things.

When a Court deems a case a Political Question its saying that they believe it is inappropriate for judicial review and that the subject should be decided by legislature, the executive, or both.

When does this issue come up? Malapportionment. Congressional self-governance. Foreign policy. Impeachment. Removal. Courts generally will not intervene in the following types of cases:

(1) A case where the issue has been textually committed to another branch of government. (Like Congress sole power to try all impeachments).

o The Chief Justice presides over cases of impeachment. So do they have the power? Art. I, 3: Senate shall have the sole power to try impeachments when its POTUS, the Chief Justice shall preside.

(2) Cases that have a lack of judicially discoverable and manageable standards for resolving the issue. (No judicial standard by which to make the decision.)

o Example: Foreign Relation Disputes. (3) Cases where there is impossibility without an initial policy determination of a kind that is clearly for a kind of

non-judicial discretion. (Initial policy determination made by one of other branches.) o Ex: When US should go to war.

(4) Case where its impossible for the court to get involved without in doing so expressing a lack of respect to a co-equal branch of government.

(5) Cases where there is a need for to adhere to a decision, a political decision, which has already been made. (6) Cases where there is a potential of embarrassment of multiple pronouncements of various institutions on

one question. o Disorder: Legislature says X, the President says Y, were not going to get in the middle of it and say O.

ARTICLE III, SECTION 2: The judicial power shall extend to all cases, in law and equity, arising under this Constitution.

ARTICLE IV, SECTION 2 THE GUARANTY CLAUSE:

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The United States shall guarantee to every State in this Union a Republican Form of Government.

Baker v. Carr (p. 22, 1962) Facts: Apportionment cases had often been brought under the Guaranty Clause of Article IV, Section: 4 of the United States Constitution, in which the United States guarantees to the individual states a republican form of government. SCOTUS has long held that such challenges present a political question, not addressable by the courts. In the current case, Appellants challenged the state apportionment of legislatures under the Equal Protection Clause of the Fourteenth Amendment. Issue: The TN legislature refused to change its malapportioned districts. s filed suit but the district court refused to hear the case, claiming that the matter raised a nonjusticiable political question.

Question: Do federal courts have the authority to hear constitutional challenges to legislative apportionment? Holding [Brennan]: Yes, reverse and remanded. In the past, apportionment challengers have generally based their challenge on the Guaranty Clause of Art. IV, Section: 4 of the Constitution. These claims are nonjusticiable as they address issues solely directed to the political branches of the government by the Constitution. This is a separation of powers issue.

Here, the claim is that the Appellants are being denied equal protection of the laws by being underrepresented in the state legislature. SCOTUS rules that the equal protection challenge in this case is separable from the political questions.

What standards does the Court use to determine when a suit raised a political question?

RA: Generally time, money, political capitol, resources, information. Other branches domains (textuallike Art. 1 5or traditional); previous decisions; lack of standards;

controversy/embarrassment that could arise. SCOTUS is more likely to examine a state political issue than one that concerns the Federal Separation of Powers (1) Is there a textually demonstrable constitutional commitment of the issue to a coordinate political

department (i.e. foreign affairs or executive war powers)? o See Powell v. McCormack (p. 25, 1969), where the court rejected the argument that only the House of

Representatives could decide whether to seat Adam Powell, After Powell was duly elected to the US House of Representatives, the House refused to seat him because he had engaged in misconduct.

(2) Is there a lack of judicially discoverable and manageable standards for resolving the issue? (p. 23) (3) The impossibility of deciding the issue without an initial policy determination of a kind clearly for nonjudicial

discretion. (4) The impossibility of a courts undertaking independent resolution without expressing lack of the respect due

coordinate branches of government. (p. 24) (5) Is there an unusual need for unquestioning adherence to a political decision already made? (p.24) (6) Would attempting to resolve the matter create the possibility of embarrassment from multifarious

pronouncements by various departments on one question? (p. 24) When will federal courts hear malapportionment cases?

In Baker, the court deemed justiciable claims that malapportionment violates the equal protection clause. Justice Brennan distinguished cases brought under the equal protection clause from those pursued under the republican form of government clause (a way to get around the ruling in Luther v. Borden). (See p. 24.)

o Brennan explains, the Guaranty clause is not a repository of judicially manageable standards judicial standards under the Equal Protections Clause are well-developed and familiar.

RA: Will hear cases on apportionment when they are under constitutional rights argument, but they will not re-draw without giving the state the opportunity to do this itself.

Practical Problems: o Even if the Court finds that TN violated the EP Clause, what can they do?

Order new elections? Redistrict themselves?

o General View: Court should declare districts to be unconstitutional and command the legislature to redistrict.

SCOTUS can appoint a Federal Judge to oversee See Swann v. Charlotte-Mecklenberg, desegregation and school bussing cases

Should federal courts hear political questions?

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YES: (i) limits the courts role in a democratic society; (ii) defers to expertise of political branches; (iii) self-interest in federal courts disqualifies them in certain areas; (iv) separation of powersminimizing intrusion on other branches.

o The political question doctrine accords the federal judiciary the ability to avoid controversial constitutional questions and limits the courts role in a democratic society. (p. 133 Sup).

Bickel: the court sense of lack of capacity, compounded in unequal part of: the strangeness of the issue and its intractability to principled resolution

the sheet momentousness of it, which tends to unbalance judicial judgment

the anxiety, not so much that the judicial judgment will be ignored, as that perhaps it should but will not be

finally in a mature democracy the inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from.

Better for the federal courts to avoid deciding certain cases, especially so as to preserve what he perceived as the judiciarys fragile political legitimacy

Perhaps another argument would be that, particularly on issues regarding foreign policy, they must be political questions because of the greater information and expertise of the other branches of government.

What if the court was presented with an issue involved in reviewing the process for ratifying constitutional amendments because amendments are the only way to overturn SCOTUS constitutional interpretations this would allow the court to oversee the very constitutional process used to reverse its decisions.

Finally, an argument of separation of powers is heavily present. The argument is that in certain cases an effective remedy would require judicial oversight of day-to-day executive or legislative conduct.

o For example, a lawsuit contending that there were constitutional deficiencies in training the Ohio National Guard was deemed to be a political question because remedy would involve judicial control and supervision over the Guards activities. (See Gilligan v. Morgan; 1973).

NO: (i) judicial role is to enforce the Constitution; political bodies should not be entrusted with enforcement of a document mean to restrain them; (ii) judiciary is actually quite robust, not fragile; (iii) confuses deference with abdication

o The judicial role is to enforce the Constitutionthat it is inappropriate to leave constitutional questions to the political branches of government.

Politically accountable bodies should not be entrusted to enforce any part of a document that is meant to restrain them.

The federal courts credibility is quite robust, and there is no evidence that particular rulings have any effect on the judiciarys legitimacy, and in any event, the courts mission should be to uphold the Constitution and not worry about political capital.

o In fact, punting issues is just a way for the court to avoid taking responsibility and ownership of their position. IT IS THEIR JOB TO RULE ON THESE TOUGH ISSUES.

Also the court may lack specific knowledge over foreign policy, which does not mean they are incapable of finding out the necessary information to issue a proper ruling. Moreover, a blatant disregard of the constitutions requirementsfor example, an amendment deemed by congress to have been ratified even though not approved by the requisite number of statesshould not be tolerated by the federal courts.

Advisory Opinions

What is the case or controversy requirement?

Rule on Advisory Opinions federal courts cannot make recommendations or issue ex parte opinions: o (1) There must be an actual dispute between adverse litigants, and o (2) There must be a substantial likelihood that a federal court decision in favor of a claimant will have

some effect (or at least a declaratory judgment) So an Advisory Opinion does not involve EITHER of these.

According to Muskrat, cases and controversies refers to the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or

TEST [

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treaties of the US takes such a form that the judicial power is capable of acting upon it, then it has been a case. The term implies the existence of present or possible adverse parties, whose contention are submitted to the court for adjudication.

ARTICLE III, SECTION 2, CLAUSE 1: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and Treaties made, or which shall be made, under their Authority . . .

RA: The most important limiting power in the Constitution.

Should SCOTUS be able to issue Advisory Opinions?

Class discussion: Separation of powers; the respectability of the court; impeding on other branches. The prohibition against advisory opinions is of long standing. In 1793, Secretary of State Thomas Jefferson

solicited input from SCOTUS regarding whether it would be available in the solution of important questions of the construction of treaties, laws of nations and laws of the land, which the Secretary said were often presented under circumstances which do not give a cognizance of them to the tribunals of the country. See Muskrat v. US, (p. 27, 1911).

o Chief Justice Jay responded, the lines of separation drawn by the Constitution between the three departments of government [afford] strong arguments against the propriety of extrajudicially deciding the question alluded to, and expressing the view that the power given by the Constitution to the President, of calling on heads of departments for opinions, seems to have been purposely, as well as expressly, untied to the executive departments.

The justices also noted that [b]y the express terms of the Constitution, the exercise of the judicial power is limited to cases and controversies. Beyond this it does not extend, and unless it is asserted in a case or controversy within the meaning of the Constitution, the power to exercise is nowhere to be found.

What is the difference between a Declaratory Judgment and an Advisory Opinion?

Declaratory Judgment: A ruling by the court on a specific issue of legal interpretation for litigants. Declaratory Judgment actually solves a dispute between two parties, and Advisory Opinion is one where no

injury is alleged or possible. Declaratory Judgment: A ruling by the court on a specific issue of legal interpretation for litigants. A declaratory

judgment is appropriate when it will terminate the controversy giving rise to the proceeding. Inasmuch as it often involves only an issue of law on undisputed or relatively undisputed facts, it operates frequently as a summary proceeding, justifying docketing the case for early hearing as on a motion.

Do you prefer the Canadian approach to Advisory Opinions? Whether your answer is yes, or no, why?

Canadian Supreme Court has issued a BUNCH of advisory opinions. o Gun rights, marriage equality (same-sex marriage), Japanese internment, sale tax, the powers of the

senate, and also whether a justice of the Canadian SC has been properly appointed. Biggest problem: same-sex marriage, and Quebec secession of the country.

Ripeness

When is a suit ripe?

Ripeness seeks to separate matters that are premature for review because injury is speculative and may never occur. (Threshold issue).

OLD RULE (has not been repudiated though):

United Public Workers of America (C.I.O) v. Mitchell (p. 29, 1947) Facts: The Hatch Act prohibits federal employees from engaging in political campaigns or political management. Plaintiffs allege that this violates their constitutional rights but they have not yet suffered an injurybecause they havent violated the Hatch Act. Of all the people suing, only one person has violated the Hatch Act, the other people are concerned and want to know what will happen IF they violate the act. So if they violate the law, they run in the risk of being fired [sanction]; if they comply with the law, they are forced to give up their 1

st amendment rights. (No good choice in the ripeness cases).

Issue: Is the suit ripe? Holding [Reed]: No.

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Reasoning: These appellants seem to clearly to seek advisory opinions upon broad claims of rights protected by the 1st

, 5th

, 9th

and 10

th Amendments to the Constitution, but the facts of their personal interest in their civil rights, of the general threat of possible

interference with those rights by the Civil Service Commission under its rules, if specific things are done by appellants, does not make a justiciable case of controversy.

[Parties suit] is really an attack on the political expediency of the Hatch Act, not the presentation of legal issues. A hypothetical threat is not enough. Separation of powers at issue here. We can only speculate as to the kinds of political activity the appellants desire to engage in or as to the contents of their

proposed public statements or the circumstances of their publication. It would not accord with judicial responsibility to adjudge, in a matter involving constitutionality, between the freedom of the individual and the requirements of public order except when the definite rights appear upon the one side and definite prejudicial interference upon the other.

MODERN RULE:

Abbott Laboratories v. Gardner (p. 31, 1967) Facts: The Commissioner of Food and Drugs published a regulation requiring drug companies to adopt new labeling. The drug companies contest the Commissioners interpretation of the law pursuant to which the regulation was adopted. Issue: Is the drug companies claim ripe?

Whether the statute was properly construed by the Commissioner to require the established name of the drug to be used every time the proprietary name is employed.

Direct and immediate question: This is also a case in which the impact of the regulations upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage.

Holding [Harlan]: Yes. Reasoning: The ripeness doctrines basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.

The problem is best seen in a twofold aspect requiring us to evaluate both (TEST): [1] The fitness of the issues for judicial decision AND

The greater the possibility that consideration of the issues would be enhanced by a specific set of facts (rather than the abstract legal issue on its own), the greater the possibility that pre-enforcement review will be denied.

[2] The hardship to the parties of withholding court consideration. Addresses unfairness of requiring a person to violate stature before challenging its legality. Unripe if there appears to be minimal harm is denying review

Are Mitchell and Abbot Laboratories reconcilable?

RA: Probably not. EXAM: So if you are asked about ripeness on an exam, you dont want to say the we apply the Abbott rule and

we used to apply the Mitchell rule... Be attentive to both rules, know that we use this, but Mitchell is still there, it has not been repudiated, its still good law, but the courts today use this Abbot ruling instead.

A good answer would recognize this. And then youd say which one you agree with. Discuss it. The merits of both. Theoretically, the court could go back to Mitchell, why or why do not?

Which approach is better: Mitchell or Abbott Laboratories [Possible Exam Question]?

Apply the Abbot Approach, but not ignore the Mitchell approach. Contrast the two, and explore both. The court is likely to apply the Abbot approach, but ______. You may think Mitchell is better in the situation.

o Hatch Act is ripe because of the Direct and immediate impact on . When may a party seek pre-enforcement review of a statute or regulation?

o Policy: Desire to conserve resources and safeguard the credibility of the court.

Mootness

When is a case moot?

Question of timing, the difference between ripeness, the claim is too late. The case is dismissed because it is too lateeven if it was ripe at one time. (Threshold issues).

TEST: must present a live controversy at all stages of litigation (both trial and appeal). If anything happens to end the injury (death of criminal , civil settlement by parties), the case is to be dismissed as moot.

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o Policy: Derives from prohibition against Advisory Opinions.

DeFunis v. Odegaard (p. 35, 1974) Facts: DeFunis was denied law school admission, sought an injunction to grant him admission, but by the time the case reached the Supreme Court he had entered his third year of law school. Issue: Is this case justiciable? Holding [per curiam]: No. Article III doesnt allow the court to hear a case that is moot. There needs be a case and controversy between two adverse parties. There is neither a case or controversy here, and no injury. DeFunis will graduate there is nothing to resolve. The court has no role here anymore. Dissent [Brennan]: His studies could be interrupted by MANY different factors, so this is not necessarily the case. We do not know this case is moot.

Which side is more convincing to you in Defunis: the majority or the dissent? What are the exceptions to the mootness doctrine?

(1) Voluntary Cessation. o Narrow exceptionburden on to show no reasonable chance of resuming behavior. o Ex. Because Washington Law School said they would not remove DeFunis and would let him finish his

studies, the effectively told the court the ruling would have no meaning on the present factual situation. (2) Capable of Repetition yet Evading Review.

o (i) Injury must be of a type likely to happen to the again. o (ii) Injury must be of an inherently limited duration so that it is likely to always evade review.

[Did not discuss] (3) Collateral Consequences. o A secondary injury survives after s primary injury has been resolved.

Ex. Challenge to criminal conviction after sentence is served, if there are still adverse consequences. Innocence Project

[Did not discuss] (4) Class Actions: o Unnamed s retain legal rights; as long as there is a live controversy, case may continue.

How does Roe v. Wade, (p. 37, 1973) help us understand the mootness doctrine?

Its a prime example of a Wrong Capable of Repetition but Evading Review: o When pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so

short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be capable of repetition, yet evading review. See Southern Pacific Terminal Co. v. ICC(1911).

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III. NATIONAL LEGISLATIVE POWER Ask: (1) Did Congress have the power to act? (2) Was the act itself permitted?

Two Big Themes of this Section:

1. Congress Authority is controlled by Article I, Section 8. 2. The Federal Government (specifically Congress) is of limited, enumerated powers.

Residual Powers

Residual Powers not delegated to any institution (not expressly) are left to someone else. In America, we leave those residual powers to the states.

This was the founding design. Things have changed a bit from this; its not ALWAYS the case that residual powers stay with the states.

NECESSARY & PROPER CLAUSE

ARTICLE I, SECTION 8, CLAUSE 18: The Congress shall have Power ... [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

What does the Necessary & Proper Clause authorize Congress to do?

N&PC expands the power of the congress, to carry into effect its enumerated powers. How should we read the clause? Only those things absolutely necessary? Or whatever is helpful and convenient?

o Know your stance for the exam. RA Parasitic Power: its contingent on the existence of other powers.

o So the N&PC authorizes congress to do things N&P contingent on the existence of other enumerated powers.

EX: Article 1, 8, cl. 7: Create Post Offices N&PC allows congress to related things: establish, maintain and police.

o Make it a crime to steal mail. loch: Did the court interpret the clause as absolutely necessary, or did the court interpret it to mean as helpful

and convenient? o Marshall adopts the convenience approach. Let the end be legitimate. (p. 120)

McCulloch v. Maryland (p. 117, 1819)

Facts: Maryland imposed a tax on all banks not operated by the state. The Bank of the United States argued that it did not have to pay the tax because a state cannot tax the federal government. Maryland (P) enacted a statute imposing a tax on all banks operating in Maryland not chartered by the state. The statute provided that all such banks were prohibited from issuing bank notes except upon stamped paper issued by the state. The statute set forth the fees to be paid for the paper and established penalties for violations. The Second Bank of the United States was established pursuant to an 1816 act of Congress. McCulloch (D), the cashier of the Baltimore branch of the Bank of the United States, issued bank notes without complying with the Maryland law. Maryland sued McCulloch for failing to pay the taxes due under the Maryland statute and McCulloch contested the constitutionality of that act. The state court found for Maryland and McCulloch appealed Issue: RA: Can Maryland tax the bank? (1) Does Congress have the power under the Constitution to incorporate a bank, even though that power is not specifically enumerated within the Constitution? (2) Does the State of Maryland have the power to tax an institution created by Congress pursuant to its powers under the Constitution Holding [Marshall]: RA: No.

(1) Yes. Congress has power under the Constitution to incorporate a bank pursuant to the Necessary and Proper clause.

Enumerated Powers: Power to tax, power to print money, power to regulate commerce. These powers require an appropriate infrastructure (RA).

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The National Bank helps Congress further these powers

Marshall cites historical practice cites First National Bank

N&PC is included in Article 1 8, which expands Congress power, not Article 1 9, which limits Congress power

Necessary (Marshall)= helpful, useful, or desirable (RA: convienent) (2) No. The State of Maryland does not have the power to tax an institution created by Congress pursuant to its powers under the Constitution

- The power to tax is the power to destroy - State taxes could impede its operation or even tax it out of existence. - The power of the Federal Govt comes from the people, not from the States

TEST: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional

Marshall: We must never forget that it is a constitution we are expounding. o RA/Frankfurther: The most important line of the case, and arguably, one of the most important phrases

in western constitutional theory/study. The Constitution is NOT a statute. How do they differ?

o Statutes are much more rigid they are directed to some agency or body to do or not do something. They are specific. This specificity is something you do not generally see in Constitutions.

Brings up East African Countries that have statutory constitutions and Latin America. But this is not the norm.

Constitutions tend to be written more broadly. o Accessibility in length.

But, some people mistake the interpretation and what is, or is not, in the constitution. o The KEY: Marshall concedes that congress does not have the explicit power to create a bank, but still

should have it implicitly because the constitution does not tell us everything, and every power; rather, we have to deduce (expound) where the Constitution provides an outline and gives Congress power to enact policy.

P. 118, A Government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the national so vitally depends, must also be entrusted with ample means for their execution.

o Thats why the N&PC is so important; because it expands congresses enumerated powers. To connect the means and the ends, there needs to be the N&PC.

o To have prescribed the means that government should (p. 118) We have to IMPLY, we have to read implicit powers into the constitution. This is not a legal

code. o P. 120 Let the end be legitimate, let it be within the scope of the constitution, and all means which

are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional

His interpretation of the N&PC Clause. THIS IS THE TEST.

How should we interpret the N&PC: broadly or narrowly?

Marshall, in this case, views it broadly. (See the test on p. 120) Language Argument: Marshall states that the the word necessary is considered as controlling the whole

sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory [] This word, then, like others, used used in various senses; and, it its construction, the subject, the context, the intention of the person using them, are all to be taken into view.

N&PC is included in the 8 powers of Congress, not the 9 limitations on Congress

What does it mean to say that it is a constitution we are expounding?

That the constitution, and the powers it grants, is not exhaustive, but rather, an outline to which guide usbut in Marshalls view, the constitution is an instrument to be deduced upon and just because things are not laid out explicitly, does not preclude them from being constitutionally grounded/possible.

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How would you have ruled in McCulloch?

[From Supp., p. 247]: McCulloch establishes: 1. By rejecting compact federalism, McCulloch emphatically declares that the federal government is supreme

over the states and that the states have no authority to negative federal actions. 2. The court expansively defines the scope of Congress powers. 3. The Court limits the ability of states to interfere with federal activities, such as by imposing taxes or regulations

on the federal government.

AMENDMENT X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

How broad is the Necessary and Proper Clause?

United States v. Comstock (p. 122, 2010) Facts: Federal civil commitment statute authorizes the federal government to hold a sexually dangerous or mentally ill prisoner beyond the date of release. A group of convicted sex offenders (5) sought to dismiss petitions that attempted to indefinitely commit them under the Adam Walsh Child Protection and Safety Act. At trial, the federal district court dismissed the petitions. On appeal, the U.S. Court of Appeals affirmed the dismissal, holding that the Protection and Safety Act exceeded the scope of Congressional authority by enacting a law that imprisons/confines a person solely because of sexual dangerousness, where the prosecution does never even need to allege that the dangerousness violates a federal law. Issue: Does the Necessary and Proper Clause authorize the federal government to enact this civil-commitment program? Holding [Breyer]: Yes. Reversed and remanded. The necessary and proper clause is broad in its scope. Citing McCulloch v. Maryland, the Court argued that Congress may enact laws that are convenient, or useful or conducive to

the enumerated powers beneficial exercise. There must be a means/ends rationality. The court must determine if the means used are rationally and actually calculated to achieve the Constitutionally desired end.

o Congress has long passed laws affecting mental health prisoners and crimes involving mental health deficiencies, despite there being no expressly authorized power to do so.

o Many of the prisoners were already committed under a similar statute. o The additions proposed by the new statute at issue are modest and affect only a few prisoners. o The Federal Government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and

other) communities from the danger such prisoners may pose. Thus, far from a general police power, 4248 is a reasonably adapted and narrowly tailored means of pursuing the

Governments legitimate interest as a federal custodian in the responsible administration of its prison system. Chem: Under N&PC, Congress has the power to prescribe the sanctions for crimes that it creates. Continued commitment of the

sexually dangerous fits within the scope of N&PC as defined by McCulloch. Reasoning: Congress does not have an enumerated power to pass this law, but under the N&PC it does.

(Dissents/Concurrences): o Kennedy Concurrence: Caution with rational basis. Lets be sure were using the right word in this

context, maybe a different word, and not muddle our jurisprudence. o Alito Concurrence: No doubt there is a link. o Thomas Dissent: There is no enumerated power here, so we have to turn to the N&PC.

Thomas does not think they used the test in the McCullough. (p. 120) Let the end be legitimate (p. 120)

o THIS IS THE TEST HE IS REFERRING TO! 1. Directed toward a legitimate end. 2. Must be a necessary and proper fit between the means and the ends.

Thomas is PISSED because he thinks the majority is creating a new 5 part test here in DIRECT conflict with the McCulloch test

What are the five considerations for majority references in Comstock?

1. The Test and the Meaning of the Necessary and Proper Clause.

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a. The N&PC makes clear that the Constitutions grants of specific federal legislative authority are accompanied by broad power to enact laws that are convenient, or useful or conducive to the authoritys beneficial exercise. exercise. (p. 123-24).

b. The word necessary does not mean absolutely necessary. (p. 124) i. RA: Takes a broad reading of the N&PC.

1. In determining whether the N&PC grants Congress the legislative authority to enact particular federal statute, we look to see whether the statute constitute a means that is rationally related to the implementation of a constitutionally enumerated power. (p. 124)

a. RA: There just has to be a rational connection between the N&PC and the power being used.

b. RA: This is VERY permissive. c. Its not asking whether the choice congress made is good or bad, the court is

just asking whether its reasonable. d. Could a reasonable person have made this connection?

i. RA: This is a very low-bar. THIS IS PRETTY PERMISSIVE. 2. History.

a. RA says the Court Concedes: history is NOT definitive. i. Just because congress has a history of involvement in mental health is prisoners, does not make

it a foregone conclusion. 1. BUT, it can be helpful, in looking at WHY congress passed this law and whether or not

this is reasonable. a. CT: this statute is similar to previous ones, and its just a modest changeits

not such a great departure of past congressional actions. i. It is a modest addition to a longstanding federal statutory framework,

which has been in place since 1855. (p. 125). 3. Reasonableness.

a. Custodianship: Descriptor is relevant for this PARTICULAR case. But RA does not think that the 3rd consideration is about custodianship in a broad sense.

b. Congress acted reasonably. i. It reasons by analogy.

1. It would be N&P for Congress to treat a prisoner (as custodian) SO, why shouldnt it be N&P for Congress to treat mental illness for a prisoner that would go out and enter the world and possibly cause bodily harm to the public.

a. The connection here is reasonable. ii. Here Congress desire to address the specific challenges, taken together with its responsibilities

as a federal custodian, supports the conclusion that 4248 satisfies review for means-end rationality i.e., that is satisfies the Constitutions insistence that a federal statute represent a rational means for implementing a constitutional grant of legislative authority. (p. 126).

4. Federalism. a. This is not a 10th amendment issue. b. Congress powers are MORE than those that are enumerated but also the powers it needs to exercise

in order to use their enumerated powers. 5. Relevance of the Law to the Enumerated Power.

a. The link between the law and the enumerated power under Article I cannot too attenuated; we may not pile inference, upon inference, to sustain congressional action to sustain the N&PC.

b. The Constitution allows for the making of an area of regulation and the N&PC gives the power to carry out specific provisions of that regulation. (p. 127).

i. Setting the ceiling for the N&PC.

What is the McCulloch test to which Justice Thomas refers?

Let the end be legitimate (p. 120) o THIS IS THE TEST HE IS REFERRING TO!

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1. Directed toward a legitimate end. 2. Must be a necessary and proper fit between the means and the ends.

Are the McCulloch test and the five considerations from Comstock consistent?

- Yes, the Comstock Test is more of a framework to evaluate whether the particular law fits within the McCulloch Test

So What? 1. When evaluating Congress N&PC power, the court will make 5 inquiries. 2. Debate whether the majority created a new test and disregarded the old test or is it merely supplemental? PREPARE AN ANSWER FOR THIS FOR THE EXAM!

COMMERCE CLAUSE

Four (4) Eras of the Commerce Clause:

1824: EXPANSIVE 1890S 1937: NARROW 1937 1995: EXPANSIVE 1995: NARROW (Gibbons).

Theme of Nation Building. Court invalidating many

federal laws. Court invalidating many federal laws. Chem: During this era, conservative Justices deeply committed to laissez-faire economics & strongly opposed to government economic regulations, controlled the Court. The court espoused a philosophy known as dual federalism which held that federal and state governments were separate sovereigns, that each had separate zones of authority, and this was the judicial role to protect the states by interpreting and enforcing the Constitution to protect the zone of activities reserved to the states. 1. The Courts narrowly defined the meaning of commerce so as to leave a zone of power to the states. 2. The Courts restrictively defined among the states as allowing Congress to regulate only when there was a substantial effect on interstate commerce. 3. The Courts held that the 10th Amendment reserved a zone of activities to the states and that even federal laws within the scope of the CC were unconstitutional if they invaded that zone.

Not one federal law declared unconstitutional as exceeding Commerce Clause scope.

Congress could do no wrong under the Commerce Clause.

As a consequence, the 10th Amendment protection for the states was small, or some would argue, non-existent.

Consider the composition of the court: in Wickard, the SC was controlled by Democratic Appointees [FDR had appointed 7 out of 9].

Guns in school zones federal law deemed unconstitutional expansion of Commerce Clause power (Lopez).

By 1995, the composition of the court had changed. Of the 9 justices on the SC, Republican Presidents had appointed 7. Many of these justices are 10

th Amendment

advocates and believe strongly in states rights.

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Introduction Be able to answer the following questions after this unit:

1. How much power does Congress have under the Commerce Clause? 2. Does congress have the exclusive power over commerce, or are the states allowed to exercise a certain amount

of control? 3. If the states can exercise some power, where does federal power end and the state control begin? 4. Can congress exercise control over purely intrastate commerce?

a. So the text of the commerce clause says that congress has the power to regulate commerce among the several states

b. So interstate 2 more of states. i. So, can congress do this purely INTRASTATE? Just in ONE state.

5. What is the role of the 10th Amendment? a. Does Federal Regulation (of commerce) infringe upon a states 10th amendment right?

ARTICLE I, SECTION 8, CLAUSE 3:

The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes....

AMENDMENT X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

What does the Commerce Clause authorize Congress to do?

The Commerce Clause is a big source of authority; it authorizes Congress to regulate anything related to commerce, even things that happen internally within a state. (RA)

Gibbons v. Ogden (p. 11, 1824)

Facts: NY granted Robert R. Livingston & Robert Fulton the exclusive right of steamboat navigation on NY state waters. Livingston assigned to Ogden () the right to navigate the waters between NY City and certain ports in NJ. Ogden brought this lawsuit seeking an injunction to restrain Gibbons () from operating steam ships on NY waters in violation of

his exclusive privilege. Ogden was granted the injunction & Gibbons appealed, asserting that his steamships were licensed under the Act of Congress

entitled An act for enrolling and licensing ships and vessels to be employed in the coasting trade and fisheries, and for regulating the same.

Gibbons asserted that the Act of Congress superseded the exclusive privilege granted by the state of NY. o Ogden: Wants to define commerce in a narrow way. Commerce is really about commercial activitybuying and selling. The

interchange of commodities. It does not include navigation (p. 132). o Navigation is not under federal powers of regulation.

The Chancellor affirmed the injunction, holding that the NY law granting the exclusive privilege was not repugnant to the Constitution and laws of the United States, and that the grants were valid.

Gibbons appealed, and the decision was affirmed by the Court for the Trial of Impeachments and Correction of Errors, the highest Court of law and equity in the state of New York. SCOTUS granted certiorari.

Issue: May a state enact legislation that regulates a purely internal affair regarding trade or the police power, or is pursuant to a power to regulate interstate commerce concurrent with that of Congress, which confers a privilege inconsistent with federal law? Do states have the power to regulate those phases of interstate commerce which, because of the need of national uniformity,

demand that their regulation, be prescribed by a single authority? Does a state have the power to grant an exclusive right to the use of state waterways inconsistent with federal law? RA: Whether congress has the power under the commerce clause to issue a federal license under state waters? o RA: Yes they do, but why?

Holding [Marshall]: No. A state may not pass legislation inconsistent with federal law which regulates a purely internal affair regarding trade or the police power, or is pursuant to a power to regulate interstate commerce concurrent with that of Congress. No. States do not have the power to regulate those phases of interstate commerce which, because of the need of national

uniformity, demand that their regulation, be prescribed by a single authority.

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No. A state does not have the power to grant an exclusive right to the use of state navigable waters inconsistent with federal law. Marshall, Commerce includes navigation.

Reference has been made to the political situation of these States, anterior to its formation. It has been said, that they were sovereign, were completely independent, and were connected with each other only be a league. This is true. But, when these allied sovereigns converted their league into a government, empowered to enact laws, the whole character in which the States appear, underwent a chance, the extent of which must be determined by a fair consideration of the instrument by which that change was effected.

o The Articles of Confederation was really a federation but now we have the Constitution. o The US Constitution changed this, the power resides with the federal government and the states are

secondary (inferior) to the federal government. How?

The Supremacy Clause. The subject to which the power is next applied, is to commerce among the several States. The word among

means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior it is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other State. Such a power would be inconvenient, and is certainly unnecessary.

o How does Congress interpret this phrase? Among means intermingled with Distinguished between purely internal commerce and

commerce that involves more than one state.

The court prefers a much broader reading of the clause.

Marshall, Congress cannot regulate purely intrastate commerce. So he makes a concession.

Congress can regulate commerce that is intermingled amongst states even if that commercial activity occurs within a state.

Is anything every really purely internal to state? RA: Something COULD be purely internal.

But he points out that most would argue, there is ALWAYS a chain that connects to the federal government. Whether through taxes, wages, etc.

o Court suggests there is no such thing as something purely internal. There is always some chain that connects a transaction to the federal commerce.

How is the supremacy clause implicated in this case? When federal and state licenses are in the conflict, the state license is ineffective insofar

as it conflicts with the federal one.

What does Commerce Mean?

- Intercourse between states in trade (Marshall)

Is there a tension between the 10th Amendment and the Commerce Clause power? RA: Yes. When congress does something not enumerated, and people often argue that it should be a state power under

the 10th Amendment. o If you have a broad reading of congress power, the 10th amendment doesnt cover much. If you have a

narrow reading of congressional power, the 10th amendment covers more ground. 10th Amendment, 2 interpretations/basic schools of thought:

o (1) A reminder that congress can act ONLY IF it has the [textual] authority to do so; whereas the states can act unless they are prohibited.

Remember, this is a government of limited/enumerated powers. Federal govt can act only if its expressly allowed, states cant act only if its expressly

prohibited.

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o (2) 10th Amendment reserves a sphere of activities that falls in exclusive control of states cant be touched by federal regulation

o The court has vacillated over these two interpretations throughout history.

What is the connection among Marbury, McCulloch, and Gibbons?

What is Marshall doing here? (Early founding periodroughly). o Theme is NATION BUILDING.

It became a nation in large part because of judicial power.

How broadly should we interpret the Commerce Clause? Should it depend on the era in which we are interpreting it?

The Commerce Clause has been interpreted narrowly and broadly. It has changed with time and different judges. Its made possible by the broad terms in which it was written.

o The Lottery Case v. The Child Labor Case. Perhaps it comes down to what you view as commerce.

o Is it JUST commerce as the Court defines it in The Child Labor Case? (p. 134. intercourse) But does Commerce include other things? Like production and manufacturing?

Narrowing Begins! (Era 2)

Champion v. Ames (p. 138, 1903) [Lottery Case]

Facts: Federal Lottery Act banned the interstate shipment of lottery tickets. Champion was charged for conspiring to transfer lottery tickets across state lines. He claimed it was unconstitutional because the CC authorizes the REGULATION of commerce, not the PROHIBITION of commerce. Issue: May Congress prohibit the interstate transfer of lottery tickets? Holding [Harlan]: Yes. Ban on interstate shipment of lottery tickets upheld despite intrastate effects.

- SCOTUS rejects the distinction between regulation and prohibition - Prohibition is a form of regulation - Deference to Congress: Constitution doesnt tell us what is a legitimate regulation. Legitimacy and Constitutionality are

different things. POLICY: Court much more willing to defer to moral laws than to economic regulations. Dissent [Fuller]: Banning lotteries is not commercial, it is a police power. Police powers are the province of the state. Therefore, this law violates the 10

th Amendment.

What is the connection between the text of the constitution and the courts reasoning? o Prohibition is a form of regulation. o Court is giving deference to congress. o The Constitution does not tell us what a legitimate regulation is.

It tells us that Congress has the power to regulate, but not what is or is not legit. Its CONSTITUTIONAL for congress to regulate so the court gives wide latitude to congress to

regulate interstate congress. o As long as the end is legitimate and the means appropriate, congress can regulate.

10th Amendment: states have police power over local trade and manufacture (separate spheres idea); but there is morality exception.

o Is it possible that one can regulate so much the effect is that the regulation becomes a prohibition?

Chem: The Court makes it clear that the power to regulate interstate commerce includes the ability to prohibit items from being in interstate commerce. The Court concluded that it was within Congress CC power to stop lottery tickets from being a part of interstate commerce.

o O If a state, when considering legislation for the suppression of lotteries, within its own limits, may properly take into view the evils that inhere in the raising of money, in that mode, why cant Congress, invested with the power to regulate commerce among the several States, provide that such commerce shall not be polluted by the carrying of lottery tickets from one State to another.

o O The Court explicitly rejected the argument that the federal law violated the 10th Amendment and

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intruded on state government prerogatives. o O Also, the Court rejected the argument that according Congress such power would give Congress

seemingly limitless authority and would endanger the constitutional structure. The Court simply said: The possible abuse of a power is not an argument against its existence.

o O Thus, the Court did not consistently define the zone of activities reserved to the states. Yet the Court during this era clearly believes in dual sovereignty and used it to limit federal power.

Compare to The Child Labor Case. Chem: The Court makes it clear that the power to regulate interstate commerce includes the ability to prohibit items from being in interstate commerce. The Court concluded that it was within Congress CC power to stop lottery tickets from being a part of interstate commerce.

- If a state, when considering legislation for the suppression of lotteries, within its own limits, may properly take into view the evils that inhere in the raising of money, in that mode, why may not Congress, invested with the power to regulate commerce among the several States, provide that such commerce shall not be polluted by the carrying of lottery tickets from one State to another. - The Court explicitly rejected the argument that the federal law violated the 10th Amendment and intruded on state government prerogatives. - Also, the Court rejected the argument that according Congress such power would give Congress seemingly limitless authority and would endanger the constitutional structure. The Court simply said: The possible abuse of a power is not an argument against its existence. - Thus, the Court did not consistently define the zone of activities reserve to the states. Yet the Court during this era clearly believes in dual sovereignty and used it to limit federal power.

Compare to The Child Labor Case. As an outlier (Chem): Perhaps the principled distinction between this case, and the Child Labor Case is simply a product of the Courts particular brand of conservatism: economically conservative and thus aggressive in striking down economic regulations; morally conservative and thus deferential to laws directed at what was perceived as sin.

Houston, East & West Texas Railway Co. v. United States (p. 141, 1914) [Shreveport Rate Case]

Facts: Railway companies are charging significantly higher rates from Shreveport (La) to points in Texas than from cities within Texas to those same points. The Interstate Commerce Commission found rates were unreasonable, forced them to lower the rates from Shreveport. Railway sued, violates CC clause. Issue: May Congress regulate intrastate rates where they affect interstate commerce? Holding [Hughes]: Yes. Congress can regulate purely intrastate commerce when it has a close and substantial relationship to interstate commerce.

- The lower rates for intrastate shipment have an effect on interstate shipment

- The agents of commerce (here, the railroads) cannot be used to cripple, retard, or destroy interstate commerce - Congress can prevent the instrumentalities of interstate and intrastate commercial intercourse from being used to the

injury of interstate commerce. - Congress has the right to keep the highways of interstate communication open to interstate traffic on FAIR AND EQUAL

terms. Regulating purely INTRASTATE railroad rates. Operating ENTIRELY within Texas.

o Why? Because they were overselling the interstate, so they could charge the intrastate rate less. o Congress has a legit interest in the survival of the interstate railroad.

Close and Substantial Relationship TEST: o Congress, in the exercise of its paramount power, may prevent the common instrumentalities of

interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce.

. . .the right to control their operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance.

Hammer v. Dagenhart (p. 143, 1918) [Child Labor Case]

Facts: To combat child labor, Congress passed a law that banned all products that were made from child labor from entering

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interstate commerce. Dagenhart owned a cotton mill and sued, claiming the law was unconstitutional. Issue: May Congress regulate the production of these goods on the theory that they travel in interstate commerce? Holding [Day]: NO. There is a distinction between commerce, which Congress