Con Law Outline- *SHORTish

1) Judicial Power

a) Judicial Review & Judicial Supremacy

i) Marbury v. Madison - Creates SC’s judic. review power; SC can strike down statute that undermines Con.(1) Dead Hand Problem- We’re only bound to Const. to extent that we agree to be

bound to its provisions, see it as legitimate, reflecting our enduring, shared values

(2) Broad of Marbury – what’s accepted today (Cooper – see below)(a) SC decisions set precedent for all future, similarly situated parties under

similar facts; not just binding on particular parties of given case under those partic. circumsts.

(b) SC decision becomes “law of the land” in same way text of Const. is “supreme law of the land.”

(c) Rationales:(i) We want SC decisions to bind all of us b/c if Con. reflects fundamental

nat’l principals, then SC interpretations of Con. should also reflect govt. principles.

(ii) Institutional - SC more well-suited than political branches to interpret constitution:1. Expertise in interpreting law2. (Theoretically) insulated from politics/dem. process; so SC well-

suited to make broad pronouncements to protect minorities against majoritarian, dem. political branches

ii) Martin v. Hunter’s Lessee (1816)- (1) Issue: Does SC have power to review state ct. decisions? (2) Ruless

(a) Art. III- delineates SC power – ““judic. power shall [reads as MUST] extend to all cases arising under fed. law”

(b) Jud. Act of 1789 §25- conferred on SC power to review decisions of highest state cts., if within limits (i) and (ii): (i) SC only has app. jd. over highest state ct. decisions; AND(ii) Party relying on fed. law will have had to lose in highest state ct.;

(3) App (i) Martin claimed title to Fairfax’s land pursuant to Treaty of Paris; even

though state law at issue (VA property law), Martin’s claim still had embedded fed. issue (Treaty)

(ii) Martin lost in highest VA ct; (4) Concl: Yes. SC J.R. power includes appellate review of state ct.

decisions/enactments.

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iii) Cooper v. Aaron(1) Facts - AR. School board tried to implement desegregation policy post-Brown.

School Board thwarted b/c other AR State officials flouted Brown decision. Those anti-Brown officials argued AR Schools not bound by Brown holding b/c they were not parties to that partic. suit (narrow Marbury reading)

(2) Concl : Upholds BROAD, rejects narrow Marbury reading(a) Brown is binding on everyone pursuant to our supreme interp. of 14th

Amendment, regardless of whether they were parties to the initial case(b) Broad view = predominate view today, even by political branches that do

not like an SC decision. Challenges to SC decisions by political branches still happen within bounds of judicial system, not by attempting to invalidate or ignore SC decision

(c) HOWEVER, Cooper didn’t completely settle issue of who has final say on Con. meaning.

(3) Judicial Review abortion funding statute hypos-narrow/broad reading of Marbury implications(a) Premise: SC strikes down anti-abortion funding statute; pres. doesn’t like

decision, wants statute; (Bush v. Ohio Clinic) (b) In response, spectrum from pres. public criticism of SC decision to pres.

ordering Sec. of Health to ignore decision & uphold statute that SC struck down

(c) Whether or not pres. action const. depend on narrow vs. broad reading of Marbury

b) Threshold Qs: Can SC even decide the case? (Self-imposed) Doctrines Limiting SC’s Own J.R. Power

i) Political Q Doctrine (1) Potentially applicable for SoP Issues – when SC runs risk of encroaching upon

Cong. or Exec.(2) Marbury - SC can’t review “claims arising from the pres.’s legal or const.

discretion to act” b/c those claims are just politically examinable – reviewed not by judiciary, but by political processes of election, etc.

(3) Baker v. Carr (1962)(a) Issue-

(i) How to tell if issue is just “politically examinable” but NOT judicially examinable by j.r., such that SC can’t hear case?

(ii) Is issue of whether state’s apportionment/Cong. districting scheme violates E.P. f citizens in densely populated areas by diluting their votes a non-justiciable political Q. (as TN leg. argues)?

(b) Concl: No. This issue is a NOT a political Q. Thus SC CAN review it.

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(c) Baker, TN voter arg. :TN leg. had not redistricted since his Cong. district had become much more populous. This failure to redistrict to account for pop. changes diluted his vote, in violation of his 14th Amd. E.P. rights.

o Baker Political Q. Factors : If answer is “yes” to these factors, then probably a non-justiciable political Q – SC can’t review

1. Is there [express/implied] textual commitment in Con. of this issue to another fed. branch other than judiciary? [* imp.]

Problems w/ this factoro Least determinant b/c Con. text often commits

authority over an area to more than 1 branch, i.e. War power split between Cong. & Pres.

o Even if there’s textual commitment in Con. to another branch to take a certain action, SC would still review that branch’s action if it reflected power abuse (See Nixon below).

2. Is there need to avoid disrespect to another branch of govt.? 3. Is there need for unquestioning adherence to preexisting decision by

one of the political branches (Congress or pres.)? 4. Is there some need for govt. to speak w/ one voice to avoid

embarrassment? 5. Would resolution of the Q. call for policy decisions inappropriate for

judicial resolution? Frankfurter Dissent: Yes. This issue requires SC to determine

what a vote should be worth. Resolving this issue of “competing theories of political philosophy” calls for policy decision, which SC not well-suited to make

6. Are there no obvious “judicially manageable standards” (meaning, clear Con. standards for SC to apply & make legal decision) . [* imp.] –

Maj: Here, E.P. cl. of 14th Amd. DOES have familiar judicially manageable standards for apportionment …but Brennan doesn’t define these standards

Prob. w/ this factor- Many important Con. provisions written in broad lang. that don’t incl. “judicially manageable standards” (ex. here, “equal protection”; “Due process”)

(i) [* Baker factors indeterminate….cut both ways]

(4) Powell –Applies “Textual Commit.” Baker factor(a) Issue – Is issue of whether House could refuse to seat Judge Powell for

reason other than not meeting age, citizenship, residency requirements of Art. I, § 2 (for ethics violation) a non-justiciable political Q?

(b) Concl: No. This question IS NOT a political Q. Thus, SC can review.

(c) Powell: Since Art. I § 5 = textual commit. of House to judge its own members’ qualifications, incl. those beyond Art. I § 2 residency/age/citizenship requirements (ethical qualifications), this issue a non-justiciable political Q.

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(d) Analysis: Rejects Powell’s Textual commitment to another branch arg.(i) Con. says House of Congress “shall be judge of qualifics. of its own

members pursuant to Art. I §5”) (ii) This section is NOT a textual commitment to the House of the power

to decide whether a House member was ethically qualified to sit. Art. I § 5 “judge” section only refers to Art. I, § 2 residency, citizenship, age requirements for House members, which Powell had plainly satisfied.

(iii) Thus, Art. I, §5 “judge” section at most a “textually demonstrable commit. to Cong. to judge only the qualifications expressly set forth in Art. I § 2 (age, residency, citizenship)

(5) Nixon – “textual commit.” and “judic. manageable standards” Baker factorso Issue: Is issue of whether Senate must “try” fed. judge for impeachment

as full body, NOT just as committee, a non-justic. political Q?o Concl: Yes. This is a non-justiciable political Q; ( SC won’t determine

what constitutes “trial” – it’s up to Senate )o Facts- fed. dist. Judge Nixon impeached by House; Senate committee (not

full Senate) tried himo Art. I: “Senate shall have sole power to try impeachments”o Analysis - Applying Baker factors-

textual commitment to another branch? Yes. Art. I: says Senate shall have sole power to try

impeachments (as opp. to fed judiciary.) - Senate has discretion

Souter concurrence stresses indeterminacy of “textual commitment” factor –

o Despite majority’s concl. that there IS textual commitment to Senate for this issue (thus, no J.R.)….If Senate egregiously abuses its power over post-impeach. “trials” (ex. by flipping coin and then basing conviction on that), then despite textual commitment to Senate over impeach. “trials,” SC still would review Senate’s actions for abuse.

o Souter saying that there should be max. deference to Cong. for determining what constitutes “trial”

lack of judicially manageable standards - no standard for how SC would review this issue b/c….

The word “try” in Art. I lacks suffic. precision to afford….such standards of SC J.R. of Senate’s post-impeachment trial procedures.

Rejects Nixon’s arg. - that Art. I use of “try” limited to federal dist. cts.; thus, SC review of Senate “trial” procedures is valid, b/c it’s like appeal of his “trial” in Senate

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Textual commitment & judic manag. Standards factors related - Lack of judic. mang. Standards reinforces idea of textual commitment to the legislature (Senate) to handle this issue

ii) ***Political Q. Doctrine, Principles*** : o Arises in context of SoP issues – When would one of the political branches be

better suited than SC to resolve issue?o On spectrum from complete deference to other branches to no deference, P.Q.

doctrine falls closer to complete def. side: [Complete def-.---PQ--------------- No def. ]

CLEAR ex. of non-justiciable P.Q. = pres. veto; SC won’t review, that’s clear P.Q.

CLEAR ex. of justiciable, non-P.Q. SC will review = Congress passes statute discriminating based on race in all fed. buildings

**Most P.Q. issues fall in the middle. S.C. usually leans towards deference

o binary proposition: issue either…. justiciable / non-PQ; OR non-justiciable PQ, so issue in province of Congress or Exec.

If Yes, PQ, then to what extent should SC defer to other branch?o Baker FACTORS CUT BOTH WAYS - indeterminate;

Nixon & Powell -different outcomes reflects indeterminacy of “textual commitment” factor-

both involve Con. provisions purportedly committing power to house of Congress, but w/o specifying extent of that house’s power to interpret limits of that power

Nixon: There WAS textual commitment to Congress (Senate) so Political Q, thus SC CANNOT review.

Powell : no textual commitment to Congress (House) So political Q, thus SC cannot review.

Con. never confers power exclusively on 1 branch, & then specifically says that that branch also has exclusive scope to interpret (limits) of that power

Hard to know if there’s Con. “textual commitment” when Con. splits power between 2 branches- ex. war power bet. Cong & Pres.

“lacks judicially manageable standards” factor Many vague, but key Con. provisions – difficult to apply, that do

arguably “lack judicially manageable standards” (“equal protection,” “due process,” “cruel & unusual punish.”) – but SC will still interpret.

“policy decision” factor- fact that case implicates policy decision doesn’t stop SC from making such decisions in cases all the time.

“disrespecting another branch” factor -- All SC exercises of J.R. by definition “disrespect” another branch’s action

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o Benefit to SC of fuzzy P.Q. test - Allows SC to dodge judicial review on P.Q. grounds, if J.R. would yield a very unpopular decision in very politically contentious context. Thus, enables SC to preserve public legitimacy in context of contentious issues

iii) Standing Doctrine – When is party eligible to bring suit to SC? Elements in Art. III - Con. minimum to est. standing, that must be satisfied

for SC to consider case on the merits.

o (1) Injury in fact, that’s…. A. Concrete* & particularized**; AND

o *NOT merely speculativeo **NOT merely generalized, “stigmatic” injury (Allen)

B. Actual or imminent (not conjecture)

o (2) Causal relationship…. A. …that’s traceable to challenged alleged conduct by D B. injury must be redressible (fixable) by remedy sought

[ (3) SoP - Would granting this P standing make SC have to continually monitor soundness of Exec. policy in violation of SoP principles? (Allen) ]

Rationales for limitations on “harm” for standing – Separation of powers –( PRIMARY concern, Allen ): must be

limits for when SC should redress concerns for party who doesn’t like other branches’ “bad job” - SC can’t be continuing monitor of other branches’ decisions

Judicial efficiency - Allowing intangible injuries would expand class of potential Ps

SC must limit potential Ps to those w/ true stake in the outcome– such parties have incentive to litig. effectively; otherwise issues & facts won’t be fully fleshed out enough for SC to make solid judgment on the issue

Institutional logic- Generalized grievances (affecting large # of people) best left to the political branches – can be voiced /redressed more effectively

Allen – applies Standing Elements o Claim 1 –Do Ps have standing to vindicate claim that IRS had duty to

revoke tax exempt status of “white flight” schools, which it breached, and seek requested relief: making IRS discharge its duty to revoke schools’ tax-exempt status ?

Concl: No. Analysis: this fails Injury-in-fact. prong b/c…

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o It’s not enough that claimed injury is govt.’s “not doing its job”

o “Stigmatic/[generalized] injury” not enough- i.e. Allen Ps: “Although I’m not personally injured b/c I’m not trying to send my kids to white flight schools/my kids aren’t getting discriminated against, that people like me are getting discriminated against stigmatizes people like me”

o Claim 2 –Do Ps have standing to vindicate their kids’ right to have a racially integrated pub. school edu. (which IRS is undermining by not revoking tax-exempt status of “white flight” schools?)

Concl: No. Analysis:

o (1) While this IS leg. cog. injury…o (2) Fails causation / traceability sub-prong – causal

connection between IRS contd. subsidies to white flight schools & this injury attenuated at best

o Stresses SoP standing concerns* - Ps insisting that fed. cts. should continually monitors soundness of Exec. policy (Here, IRS)….such a role is more appropriate for Congress

Dissent: Yes.o Econ. analysis – Causation prong IS satisfied. o SC forcing IRS to remove white flight school tax-exempt

status tuition at those schools goes up some private school parents will withdraw kids & put them into pub. Schools integration of pub. schools

o Hypo- Had SC ruled on the merits in Allan & revoked white flight schools’ tax exempt status, & then had white flight schools sued govt. claiming IRS applying tax code too strictly….

1. Injury-in-fact? –Yes. lost $ from enrollment decline from tuition incr.

2. Causal relationship?o A. That’s fairly traceable to D’s (here, govt.’s) actions? o Yes; IRS revoking tax-exempt status directly causally

traceable to schools’ lost $ from enrollment decline due to necc. tuition increases

3. SoP Allen rationale against SC intervention? (Would giving these Ps standing require SC to be“monitor of wisdom of govt policy?”_

o Yes.

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o However, SC willing to monitor exec. action all the time when it doesn’t think exec. agencies should regulate in certain area.

Concl – Unlike Allen Ps, private school would have easier time est. standing necc. to get judic. review of govt. actions. – Easier for big, regulated institutions to show harm AND causal link between govt. action and harm

Allen Implications o Shows how SC is more willing to entertain suits

challenging over-reg. (by large institutions) than it is to entertain suits challenging under-reg. (ex. by Allen Ps)

o Shows SC’s default, libertarian view that govt. should minimize regulation of private parties by making it harder for Ps seeking relief of more regulation to est. standing, and conversely, making it easier for large institutions requesting less regulation to est. standing

(1) Bakke – app. of Allen test o Principle : ** Shows how “harm” Allen standing element can be

manipulated to satisfy Causation prong **o (Alleged)Harm?

Smith framing - Denial of admission & Implied financial conseq. SC: “lost opportunity [chance, %- as opp. to guaranteed admiss.] to

compete fairly for all 100 slots”

o Causation – Is challenged govt. conduct traceable to P’s injury? Under Smith harm: No - Even w/ no affirm. action policy, Bakke

wouldn’t have been admitted anyway b/c he was not more qualified than the “many …other white applicants who had been denied w/ better credentials than Bakke”

SC: Yes; govt. affirm. action policy traceable to P’s injury of lost chance, % , as opp. to guaranteed admission

iv) No advisory opinions (1) Con. does not allow SC to answer abstract legal Qs, even if asked to by pres.

or his advisors(2) Muskrat v. United States (1911):

(a) Statute at issue – conferred jd. on fed. cts. to determine whether statutes that diminished persons’ claims to property were constitutional

(b) Concl – Statute invalid. Cong. can’t confer jurisdiction on fed. ct.s to decide abstract legal Qs in suits that lack litigants w/ the requisite adversity of interests. Art. III cts. only have jd. over “cases” or “controversises”

(3) Why not? Textual – SC can only hear “cases or controversies” (Art. III)

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Notice - SC’s answers to Legal Qs not helpful if they’re abstract – laws meaningless until applied to set of facts. SC decisions ltd. to actual “cases or controversies” gives public notice about what law concretely means in context

Adversarial presentation of legal Qs to SC means litigants have stake in the outcome of the case; Since they have stake, they have incentive to bring to the court all of the relevant facts & best legal args. on controversy at hand so SC can make best decision on the merits it can

Advisory opinions would undermine SC legitimacy as neutral entity, b/c if it opines for Congress or pres. on const. of given law, will make public perceive SC as endorsing/helping which ever branch it’s advising

Sep. of powers – need to limit profound power of (inherently undemocratic ) J.R.; no broad pronouncements

v) Timing Doctrines- When can SC hear case ? (1) Ripeness Doctrine - Sets limit for bringing case too early (“green banana”)

Text: Art. III cts. only have jd. over “actual cases or controversies” SC won’t consider claims “not yet ripe” – that haven’t developed into

actual controversies in which party has stake yet Ex.

Congress introduces statute regulating investment banking industry; Congress just considering it, but hasn’t yet enacted law…

Banks can’t sue yet challenging statute at this point, for fear of anticipated, not-yet-enacted legislation, just b/c they’re worried people won’t invest in their shares if the law does pass.

(2) Mootness Doctrine – Sets limit for bringing case too late (“brown banana”) Art. III cts. only have jd. over “actual cases or controversies” SC won’t hear claim in which party no longer has any concrete stake. Ex.

o Govt detains me unlawfully; if I file writ of hab. corp. for relief of release. Later, govt. releases me.

o SC then must dismiss writ of habeus corpus as moot.o Doesn’t matter if I just want to know whether what govt. did was

unlawful or not. If outcome of case has no actual effect in real world – not enough for SC to hear the case.

Exceptions Powerc) Can Cong. prevent just SC from exercising jd over certain types of cases?

Ex Parte McCardle Concl: Although Cong. has some authority under Exceptions Cl. of Art. III to

deprive SC of appellate jd., did not answer more controversial Q. of whether Cong. can completely deprive SC of jd. over a particular fed. Q.

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Backgroundo McCardle sought writ of hab. corp. in fed. ct.. o Action relied on Hab. Corp. Act of 1867, which gave SC appellate jd. over

hab. corp. petitions o Repealer Act purported to divest SC of power to review hab. corp.

petitions (by repealing Hab. Corp. Act)o Fed Cir. Ct. denied the writ, and McCardle appealed to SC.

Exceptions Cl.: Supreme Court “shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (Art. III, §2, cl. 2)

Statute at issue –Repealer Act of 1868 - repealed portion of the Hab. Corp. Act of 1867, which conferred on SC app. jd. over cases involving petitions for hab. Corp.

Analysiso On its face, SC seems to take broad reading of Exceptions Cl. –

Exceptions cl. confers on Cong. plenary* [*not subj. to any limitations, except those explicit in Constitution ] authority to deprive SC of app. jd., over either some class of cases or all cases otherwise within the fed. judic. power

Here, Cong. stripped SC’s appellate jd. in writ of hab. corp. cases, b/c Repealer Act expressly divests SC of power to review hab. corp. petitions

o On the other hand, narrow reading, qualification of Exceptions Power- (dicta at the end):

“The [Repealer Act] does not except from [SC] jurisdiction any cases by appeals from Cir. Courts under [the Hab. Corp. Act of 1867]. It does not affect the jurisdiction which was previously exercised.”

Commentators: Repealer Act only divested SC of app. review of cases relying on the spec. jurisdictional statute on which McCardle relied, Hab. Corp. Act of 1867, but NOT of all hab. corp. cases

1 yr. post McCardle, in Ex Parte Yerger (1869), SC held it had jd. to entertain “original” habeas petitions under Judiciary Act of 1789, which Repealer Act of 1868 did not purport to disturb-

Meaning this statute provided alternative basis for SC jurisdiction over hab. corp. petitions

Seems to support narrow McCardle reading of Exceptions Cl.

(1) Cong. power to divest SC of lower to hear spec. class of cases-Principles:o Cong. CAN prevent SC from exercising appellate jd. over certain types of

cases…but not completely McCardle last line/dicta qualification) – read to mean that SC didn’t

actually answer this Q. Hasn’t been resolved b/c Cong. hasn’t tried to do it

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Cong. has never followed thru in completely stripping SC of jurisdiction of spec. classes of cases b/c it knows SC would just strike down such statutes – equilibrium

Exam: “Here’s what we do know” about Cong’s power to divest SC of power to hear spec. class of cases –-

McCardle narrow reading (qualifying dicta at the end – see above)

“ Broad reading (see above) Plain lang. of exceptions cl. - Cong. has some power to limit

SC’s appellate review

d) Can Congress Divest Just Lower Art. III Courts of all Power to Hear A Certain Type of Case? Yes.i) Yes - Art. III Textual Args.

(1) Diversity Jd. - Congress has imposed amount-in-controvery limit by statute (not in Con.) – meaning Cong. does not confer on lower fed. cts. full Con. extent of diversity jd. by limiting it to cases meeting this added statutory requirement

(2) Fed. Q. Jd.– “well-pleaded complaint rule” – P’s claim must “arise under” fed. law, so P can’t get fed. Q jd. just b/c he anticipates D will raise defense “arising under” fed. law - Cong. does not confer on fed. cts. full extent of Con. power to hear cases “arising under” fed. law

(3) Congress didn’t even have to create lower fed. cts. under Art. III; thus, if it’s entitled to create them, it’s also entitled to deprive them of full extent of Art. III- permitted jurisdiction

e) Can Congress can strip ALL fed. cts-- both lower fed. cts. AND SC – of jurisdiction over a specific area? Unresolved. Cong. never has completely stripped SC OR lower fed. cts. of jurisdiction of spec.

classes of cases b/c it knows SC would just strike down such statutes However, to maintain its public legitimacy/ capital, SC still needs to use its J.R.

power carefully

2) Federalism a) Timeline for Progression of SC views of Fed. Power:

i) Marshall: broad relative to state powerii) Marshall - Pre-New Neal: dip down to narrow relative to state poweriii) Pre-ND – 1937: narrow consistentlyiv) 1937 – Rehnquist Ct.- Sharply increasingly broad view – virtually no limit on SC’s

interp of fed. power v) Renquist Ct. – present - narrowing

b) Scope of Fed. Power

i) Necessary and Proper Cl. - McCulloch v. MD (1819)

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Facts: o MD tried to tax nat’l banko MD, suing in debt, trying to recovery penalities owed to MD by bank,

b/c nat’l bank issued notes w/o paying requisite MD state tax on notes;

o bank refused to pay state taxo James, rep. of MD sued McCulloch= exec. of nat’l bank’s MD branch, in

debt, to recover MD state penalties nat’l bank owed for issuing notes w/o paying required MD tax

o MD Ct. App. held MD state tax was constitutional. Issue: Was Nat. Bank’s creation by Congress constitutional? MD’s position:

o Congress ltd. to enumerated powers; no explicit power anywhere in Const. anywhere to create nat’l bank (textual)

o While Fed. Congress needs explicitly enumerated power to Act, states’ power to act is anything remaining/ not specifically delegated to nat’l govt. pursuant to 10th Amd.

o States created fed. govt. by delegating some powers to it; “compact theory of Con:” Con = compact among sovereign states retaining ultimate

authority, while fed. govt. only has ltd. powero Analysis: Marshall rejects MD’s narrow reading of N&P Cl.–

o “We the people” [preamble]– created fed. govt., not the “sovereign states” ; ( textual arg. )

o Con. ratified by the people acting in conventions, as opp. to the states (hist arg.) -

o Most Con. Convention participants were federalists- sought to eradicate Articles’ weakness, which included too much decentralization, state power; thus N&P Cl. should be read broadly to empower Congress to act (hist arg.) -

o U.S. govt. “ordained and est.’ed” in the name of the people,” as opp. to the states (Political Theory)

o U.S. = govt of enumerated and limited powers Although power to create nat’l bank not listed among Cong’s

Art. I enumerated powers, “…there is no phrase in the instrument which, like the articles….excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described” (Contextual )

Framers intentionally avoided Articles approach of “expressly” limiting Congress powers ;

Refers to Art. 9 list of things Congress NOT allowed to do….thus, if Congress were ONLY narrowly allowed to act pursuant to Art. I enumerated powers, then why would this list be necessary? ( Intratextual )

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What did framers mean by excluding the word “expressly” in enumerated powers? They intended to not limit Congress b/c they were avoiding impotent fed. govt. under Articles (historical)

o “…It is a constitution we are expounding…” Con. supposed to be general outline of govt., to adapt to

contemporary times - not too specific; otherwise Con. would become irrelevant over time.

Thus, Con. logic permits Congress to do things not specifically enumerated

o We must read Con. in way that enables govt. to function – If enumerated powers of Cong. incl. power to collect taxes, borrow money, regulate i.c.c., Con. must imply means of actually executing these enumerated powers; (Functional)

o Concl – Yes. Necc. & Proper Cl. authorizes govt. to act pursuant to implied

powers of Art. I enumerated powers.. . .as long as Congress enacts law plainly adapted to effectuate legitimate end of one of Congress’ enumerated Art. I powers [ex. comm.. cl or spending or taxing power]

Although Marshall never names the enumerated power from which Congress’ authority to create a bank is implied.)

Broad N & P Cl. reading explicitly rejects MD arg. - *Marshall favors more deference to Congress

Cong. WAS empowered by N &P Cl. to create Nat’l Bank

o Issue 2- Was MD empowered to tax Nat’l Bank?o Concl. 2: No. States cannot tax instrumentalities of the fed. govt.o Analysis

Implicit in Con. structure, even though there’s nothing in Con. text expressly banning states taxing fed. govt. entities

Political theory – States can only tax their constituencies. By trying to tax. Nat’l

Bank, it’s taxing by proxy the whole American people tyranny by 1 state over all the people

Although part (state) cannot tax the whole (fed.), the converse is not true; fed. govt. can tax state entities b/c Congress represents the people of all the states. Unlike, states, Congress can tax anyone in U.S. b/c “the people,” their constituency, authorize them to

Comstock –o Issue : to what extent do Congress’ powers go beyond those explicitly

enumerated in Art I, pursuant to N&P clause? [Refines McColloch]

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o Statute at issue – allows dist. ct. to order civil commitment of an individual who is currently in custody of fed. prison if he is/was

(1) previously engaged/attempted to engage in sexually violent conduct or child molestation,

(2) currently suffers from serious mental illness, and (3) as a result of that illness, is sexually dangerous to others”

o Respondents’ challenge: MTD claiming Congress lacked power under N&P Cl. to enact civil commitment statute

o Test : Does statute create means that is rationally related to Constitutionally enumerated powers in Art I, §8, Cl. 1-17 “and all othe r powers vested by this Con.” (Art I, § 8, cl. 18)?

Liberal, very DEFERENTIAL to CONG. – As long as there’s some conceivable relationship between law

effectuating means and some legitimate, enumerated power end, test fulfilled.

o Analysis: Although Con. text doesn’t explicitly allow Cong. creation of federal

crimes, except a few, Con. still implicitly grants Congress “broad authority to create such crimes”;

The civil commit. statute = a “modest addition to a set of fed-prison-related mental-health statutes that have existed for many decades”

Since fed. govt. = custodian of its prisoners, it has Con. power to act to protect nearby communities from danger from fed. prisoners

Maj. does not refer to a specific Const. enumerated power for which this statute purports to provide an implied means b/c…

Civil Commit. statute applies to all fed. criminals. If you’re in prison already under another fed. crim. statute, then that crim. statute must have been properly enacted under an enumerated fed. power. This enumerated power is also the enumerated power “hook” justifying this civil commit. statute.

“The same enumerated power that justifies the creation of a fed. crim. statute, and that justifies the additional implied fed. powers that the dissent considers legitimate, justices civil commitment [under this statute].

Thus, there are many enumerated power “hooks” to justify this statute pursuant to N & P Cl.

o Concl. – Yes. “Civil Commit statute is a ‘necc. and proper ’ means of exercising the fed. authority [enumerated power “hooks”] that permits Congress to :

[1] create fed. criminal laws, [2] to punish their violation, [3] to imprison violators, to provide appropriately for those

imprisoned, and

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[4] to maintain the security of those who are not imprisoned but who may be affected by the fed. imprisonment of others.”

o Implications: If Cong. can use the N&P Cl. to enact a law just b/c it is incidental to other fed. laws, then the N&P Cl. effectively allows Congress to do anything.

o Comstock Thomas Dissent – Concl –Civil commitment statute = unconst. under N&P cl. b/c

“the enumerated powers that justify a crim. D’s arrest or conviction cannot justify his subseq. civil detention under [the civil commit. statute ]”

Civil Commit. statute too remote from Congress’ enumerated powers to arrest and convict crim Ds.

Analysis- Textual—

N&P cl. says Congress can create statutes executing enumerated power;

However, once it does so, Congress can’t unlimitedly build upon those implied powers. Cong. can’t enact laws based upon implied powers based upon implied powers ad infinitum, until link between implied power & enumerated power it effects gets too remote

Govt. did not name any enumerated power as Con. predicate for commitment statute [neither did maj. – see above]

There’s no broad Congress. Police power – Con. must explicitly authorize it.

Distinguishes civil commit. statute from statutes that “est. prisons” and “set rules for care and treatment of prisoners”-

These statutes satisfy Thomas N&P Cl. test, b/c each helps “carry into execution” the enumerated power that justifies a crim. D’s arrest or conviction;

In contrast, civil commit. statute at bar fails this test b/c it “lacks any such connection to an enumerated power”

Probs. w/ this arg- How do you draw line between statutes that do have rational basis for effectuating enumerated powers (OK by Thomas) and those merely carry into execution laws that themselves carry into execution enumerated powers (which Thomas rejects)?

c) Commerce Power: Early Yrs. i) Background

(1) Congress’s i.c. reg. power under Articles very weak – constant feuding among states imposing protectionist tariffs on each other

(2) Commerce cl. = response to this weakness at Const. Convention

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ii) Gibbons v. Ogden (1824) Issues

o Who has better claim to operate ferry? State or fed. law claim?o Is fed. law giving Gibbons right to ship even valid? (Is Congress acting

within scope of its enumerated i.c.c. reg. power - Art. I, § 8, Cl. 3?) Facts

o Ogden Gibbons o Ogden: I have monopoly under NY state law to operate ferry between

NYC and NJo Gibbons defense: I have license to op. ferries as “vessels to be

employed in the coasting trade” pursuant to fed. statute Analysis

o 1. Defining “commerce?””- Broad def. Ogden: narrow def. - only means “intercourse” (commercial

buying and selling/interchanging) Marshall rejected in favor of broader def.

Historical-textual. - Word “commerce” was broad enough to incl. “navigation” at time of ratification

Textual - There’d be no reason in Art. I § 9 to limit Congress’s power to prefer 1 state’s port over the other if it couldn’t regulate navigation

o 2. Defining “among the several states?” – Broad Def Ogden: narrow def. – Cong. can only regulate trade between the

states- directly from outer border of one state to outer border of another; so Cong. can only reg. Cong. between > 1 state

Ct. rejects: broader def.- Among = “intermingled with” (131); While Congress lacks power to reg. comm.. that’s both

a) solely within interior of 1 state AND b) not affecting other states….

Congress CAN reg. comm.. that affects or concerns >1 state, even if it’s within 1 state

Marshall “splits difference” between broadest poss. & narrowest poss. reading of “among”

Broadest- would enable Cong. to regulate intrastate comm., even that which does not affect comm.. of other states

Narrowest -, as Ogden argued, would only allow Cong. to regulate comm.. between >1 state, but not intra state comm.. (even if it affects comm.. of other states)

Why doesn’t he afford as broad a reading to “among” as he does “commerce” (see above) “regulate” (see below)? Subtext-

o hist. & structure – under Articles, Congress was very weak – couldn’t reg. i.c.

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o Balance of powers – Hesitant to read i.c.c. power to give Congress blank check to limitlessly regulate comm.. that (a) doesn’t affect other states and (b) that’s entirely within 1 state

o Political theory – Congress should, as matter of policy, be central authority to regulate activity within a single state if it affects multiple states (ex. pollution that begins within OH moves out of state/ harms others in PA)

o 3. Def. of “regulate?” - Broad Reading Congress’s power to regulate i.c.c. is plenary- not subj. to any

limitations, except those explicit in Constitution [ Broad reading]

*Concl: o BROAD READING of i.c. power.o Fed. statute permitting Gibbons to obtain license valid pursuant to

Congress’s i.c. reg. power; thus, Gibbon’s (valid) fed. statute trumps Ogden’s NY state law license

d) Commerce Power: Middle Years – Late 19 th c. - late 1930s i) Legal Landscape

Late 19th/early 20th c. – After post-Gibbons lull in i.c.c. SC cases, became more relevant upon industrialization, Congress’ conseq. efforts to address problems of national-scale commerce

Vacillating Approaches: o E.C. Knight Co./Hammer/Carter Coal approach– narrow, formalistic

reading of i.c.c power – if it’s intrastate activity, Cong. can’t regulate it, even if it affects interstate comm..

o Shreveport Rate Case approach- broad reading of i.cc. power- effects test

Institutional tension between Congress & Ct.o Congress-

As U.S. industrialized, econ. became more nationwide, Congress more aggressively sought to reg. i.c.

Congress saw Comm. Power as tool to achieve both econ. & social-reforming ends (labor issues, vices – gambling etc.)

o SC Conservative early 20th c. justices upheld Congress’s Comm.

power when it agreed w/ the underlying policy and did the opposite when they disagreed “ “ “

Laissez faire-oriented SC – efficiency, free market must trump Congress’s Progressive Era/New Deal regs.

ii) Shreveport Rate Case (1914) (“Lopez cat. 2”)

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Issue : Is Cong. authorized under Comm. Cl. to regulate r.r. shipping rates by TX r.r. cos discriminating against out-of-state traffic?

Facts o Congress delegated to Interstate Comm. Commission (Commission)

role of set rates for transporting goods by R.R. from Shreveport, LA to TX

o TX R.R. cos. set their own rates for shipping within TX that were must lower than shipping rates between LA and TX (even though distance between points within TX were longer than from TX to LA)

o Commission told these TX r.r. cos to stop setting rates that discriminated in favor of intra- TX r.r. traffic

Concl : Yes. Even though TX discriminatory rates are an intrastate issue, Cong. can regulate it, pursuant to i.c.c. power, via Commission

Reasoning- Establishes Effects Test - o Does regulated intrastate activity affect interstate activity?o If so, even though regulated activity directly is intrastate (here,

discriminatory ship. rates for intra-TX r.r. traffic), Cong. can regulate it “[w]herever the interstate and intrastate transactions of carriers are so related that the govt. of the one involves the control of the other””

o [Implications – ICC created to prevent TX r.r. shipping co. monopoly This would hurt competition, fair pricing in interstate , SW

regional r.r. shipping industry. Thus, Congress regulated intrastate activity - TX co.’s intra-

state discrim. rates – affected interstate activity of the SW regional r.r. ship. industry

This allows Cong. to regulate the intrastate activity pursuant to Comm. power.

iii) E.C. Knight Co. (1895) - OVERRULED

Facts - Am. Sugar Refining Co. acquired nearly complete control of refined sugar manufacturing industry

Disputed Cong. action - Congress sought to intervene under Sherman Antitrust Act

Concl: Congress can’t intervene under i.c.c power Reasoning :

o Narrow reading of i.c.c. power (direct contrast w/ Shreveport Rate Case from same period)

o If you read i.c.c. power any more broadly, there won’t be any other powers left just to “state control”

o Formalistic disting. between “commerce” & “manufac.”; Congress can only regulate “commerce” – everything before

literal interstate commerce stage of the industrial process [ (1)

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and (2) below ] commerce IS NOT COMMERCE but rather precedes “commerce” stage;

only (3) and (4) are “commerce”(1) raw material (2) Manufac. (E.C. Knight) (3) shipping (Gibbons) (4)

sale

iv) Carter v. Carter Coal Co. (1936) - OVERRULED

Disputed statute - Bituminous Coal Conserv. Act regulated labor practices in coal industry

Issue – permissible exercise of Cong.’s i.c.c. power? Concl – No. Only states can regulate mining industry, regardless of its effect on

i.c.c Reasoning-

o Same manufacturing/commerce dichotomy, applies narrow reading of “commerce” of E.C. Knight.-

o I.C.C. power only lets Congress reg. “commerce,” as opp. to “manufacturing”

Commerce = selling and shipping or contracting to sell and ship a something to customers in another state Cong. can regulate under i.c.c power; whereas

Manufacturing = producing a thing locally Cong CAN’T regulate under i.c.c. power

o Mining within a state, like manufacturing (E.C. Knight), does not count as “commerce”-b/c at (1) raw materials” stage above – thus precedes “commerce”

o Mining = inherently local activity- digging hole within 1 state Principle: Marked conservative, laissez-faire SC’s willingness to strike down

central New Deal econ. reg. statutes

v) Champion v. Ames (1903 – Progressive Era)o Statute at issue : Congress tried to ban transporting lotto tickets across state

lines Leg. intent: social reform within states w/ lotteries (as opp. to

interstate econ. reg. ) – gambling perceived as viceo Issue : Permiss. exercise of Comm. Power?o Concl – Yes. If regulated activity falls squarely within Congress’s Comm..

power, like carriage of lotto. tickets across state lines, doesn’t matter if true leg. intent is social reform.

o Reasoning: “lottery tickets are subjects of traffic, and therefore are subjects of

commerce;” “…so reg. of carriage of such tickets from state to state….is a reg. of

commerce among the several states”

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vi) Hammer v. Dagenhart (1918) - OVERRULED

Statute at issue – prohibited interstate commerce of child labor products o primary object = to achieve moral rather than econ ends, like in

Championo Prohibited interstate trafficking of certain activities, like in Champion,

to achieve this social reform goalo Aimed to reg. early stages of production by child labor (intrastate act.)

by prohibiting interstate trafficking of goods (interstate activity) that were produced by child labor

Issue : Permissible exercise of Comm. Power? Concl : No. Reasoning

o A. Statute “transcends Congress’ authority over commerce” b/c Production & labor practices don’t count as commerce

o Distinguished Champion – In Champion & progeny, we prohibited statutory ban

on transportation of products that were inherently harmful (i.e. lottery tickets)

However, statute here prohibits interstate trafficking in non- harmful products; the evil of their production (by child labor) is incidental to the harmlessness of the products themselves

B. Statute ”exerts a power as to a purely local matter to which fed. authority doesn’t extend…” [i.e. violates 10th Amd.]

Hammer Principle – “reverse effects test”o 1. Cong. cannot reg. intrastate activity, even if it indirectly affects

interstate commerce; o 2. Cong. cannot reg. clearly interstate activities if leg. intent is to really

to regulate intrastate production or labor practices. That’s the states’ job.

o [Even more restrictive def. of i.c.c. power than E.C. Knight Co.] Criticism - Leaving such bad activities like child labor to state reg.

incentivizes “race to the bottom” – o citizens in state A that doesn’t allow child labor will have incentive to

send their kids to state B that allows child labor;o then other states will jump on band wagon & allow child labor to keep

their child workers in-state

Hammer Dissent (Holmes)o Statute inherently prohibits interstate commerce - so it falls squarely

within Congress’s Comm. power

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o Cong.’s i.c. power is plenary (complete) except when expressly limited by Const.

e) Commerce Power: New Deal and Beyond: An Expansive View i) Legal landscape – 1937-1995- Heavily FDR- appointed SC never struck down

statutes as beyond scope of Congress’s Comm. power – Huge deference to Cong. in upholding Cong. regs.

ii) NLRB v. Jones & Laughlin Steel Corp. (1937)–o Principle: Marked turning point away from Conservative, laissez faire/SC

towards new SC highly deferential to Cong.’s Comm. Powero Statute at issue [New Deal] :

Nat. Labor Relations Act (NLRA) provision authorizing Nat’l Labor Relations Board (NLRB to “prevent any person from engaging in any unfair labor practice. . .affecting commerce”

NLRA: Regulated unfair labor practices , penalized employers who tried to inhibit collective bargaining thru firing

o Facts : NLRB pursuant to NLRA, found that Jones & Laughlin violated NLRA, and ordered corp. to comply w/ the NLRA

o Issue : Permiss. exercise of Comm. Cl.? o Concl: Yes . NLRA statute squarely satisfies effects test.o Jones & Laughlin : Regulated activity, manufacturing, is not commerce.

(Hammer / Carter Coal formalist arg.) SC rejects.o Rule- VALIDATES EFFECTS TEST

Ct. resolves tension between E.C. Knight/ Carter/Hammer narrow “commerce” approach and Champion/ Shreveport broad approach/ effects test in favor of the latter.

“Although activities may be intrastate….if they have such a close & substantial relation to the interstate commerce that their control is essential or appropriate to protect that commerce from burdens & obstructions,” then Congress can regulate.”

o App: NLRA aims to regulate collective bargaining in large-scale businesses,

incl. steel industry Steel industry operates all over the country, at all levels of

production , and affects many other industries

iii) U.S. v. Darby (1941) Statute at issue - Fair Labor Standards Acts of 1938 (FLSA)

o Regulated Min. wage; Max # hrs. & overtime (main goal: social / labor reform)

o Congress sought to effect this by prohibiting producers to ship goods interstate if those goods were made in violation of FLSA (interstate activity)

Issue : Permiss. exercise of Comm. Power?

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Concl. – Yes under effects test….[regardless of main leg. intent, or stage of regulated activity (here, production) in the business cycle]

Applies Champion / effects test – o (a) Validity of Prohibition on producers’ interstate shipments of

goods produced in violation of these provisions? This statute is a straight-forward regulation of interstate

commerce As long as Congress is regulating actual interstate commerce,

then Congress’ power = plenary (unltd. aside from limits explicit in Con.- Reaffirms Gibbons )

Concl - Explicitly overrules narrow Hammer test. Regardless of Congress’ true leg. intent (ex. soc./labor reform, not i.c. reg.), as long as Congress clearly regulating i.c., statute valid.

(b)Validity of wage & hr. requirement? A. Congress CAN reg. even intrastate activities that clearly

affect interstate commerce B. …. even if these activities occur intrastate / earlier

within the business cycle that Hammer’s narrow commerce def.

10th Amd. Issue. – “Are certain activities beyond reach of Congress’ Comm. power?

“The amd. States but a truism” . .. As long as you accept premise that Congress’ power

enumerated & limited, then 10th Am. doesn’t add anything new to Const; merely confirms enumerated powers. Thus, under literal reading of Comm.power, FLSA is const, regardless of 10th

Am.

iv) Wickard v. Filburn o Statute at issue: Agricultural Adjudstment Act of 1938 - To avoid wheat

surpluses and shortages & conseq. abnormally low or high wheat prices, penalized farmers who surpassed quota

o Issue - Permiss. exercise of Comm. Power?o Concl. – Yes, under rational-basis/effects test.o Facts –

Filburn exceeded wheat quota by growing wheat on his farm for personal, home consumption

(Growing wheat for home use clearly not commerce [home use], let alone inter-state [grew at home – intrastate activity])

o Rule: Paradigm, Liberal App. of “Rational-Basis Test”

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“Did cong. have a rational basis for concluding that the regulated conduct, when viewed in the aggregate, has a substantial effect on i.c. (even if individual’s activity is intrastate?)?

If yes – falls within i.c.c. power VERY deferential Congress. i.c.c. reg.

o Analysis – “[Filburn’s] own contrib.. to the demand for wheat may be trivial by

itself…..[but] his contribution, taken together with that of many other similarly situated, is far from trivial.”

Growing excess wheat at home limits/subs. for that farmer’s demand for wheat on open market drives wheat industry prices down undermines purpose of nat’l wheat quota reg.

Civil Rights Act of 1964 comm. cl. cases – Heart of Atlanta Motel & Katzenbach Background-Title II of CRA

o Prohibited discrim. on basis of “race, color, religion, or nat’l origin” in places of “public accommodation”

o “ Public accommodation- Inns, h/motels, restaurants, theaters, concert halls, sports arenas

(Heart of Atlanta Motel, Inc.) Places whose “operations affect commerce,” incl. places that

“offer[] to serve interstate travelers” or places where “a substantial portion of the food [served] has moved in commerce.” (Katzenbach)

o Applied to many private (non-state) o Principles –

both cases applied Rational Basis Test to uphold Title II as within Congress’s i-c. reg. power

Extremely expansive view of Congress’s i-c. reg. power

v) Heart of Atlanta Motel, Inc. o Facts - Motel did not rent rooms to blacks o Statute at issue : Title II provision, prohib. racial discrim in “public

accommodations,” incl. motels o Issue : Permiss. exercise of Comm. Power? o Applies Rational-Basis Test LIBERALLY

Motel owners’ discrimination causes blacks uncertainty in finding lodging while traveling.

This uncertainty “discourag[es] travel on the part of a substantial portion of the Negro community.”

Thus, discrimination by motels “impedes interstate travel.” Thus, even though discrimination by motel owners is a local

activity, it still has “a substantial and harmful effect upon commerce.”

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o Concl : Yes. This Title II provision falls under Comm. Power under rat’l basis test.

vi) Katzenbacho Statute at issue – Title II provision, prohib. racial discrim. in places that

“offer[] to serve interstate travelers” or places where “a substantial portion of the food [served] has moved in commerce.”

o Issue : Permiss. exercise of Comm. Power?o Concl – Yes. Since, like in Wickard, Ollie’s discrim. activities “taken together

with that of many others similarly situated” affects interstate commerce, this Title II provision falls within i.c. reg. power.

o Facts Ollie’s BBQ = Birmingham, AL restaurant located off of state highway/

near interstate highway Restaurant had seating for white customers and take-out service for

blacks; did not allow blacks to dine-in **Restaurant served substantial portion of food that “had moved in

interstate commerce” (although no evidence that Ollie’s had ever served people from out-of-state)

o Applies Rational Basis Test LIBERALLY “The fewer customers a restaurant enjoys the less food it sells and

consequently the less it buys” “….discriminatory situations caus[e] wide unrest and hav[e] a

depressant effect on general business conditions in the respective communities.”

“…[D]iscrimination in restaurants had a direct and highly restrictive effect upon i.c. travel by Negroes, [, for] one can hardly travel w/o eating.”

“….[D]iscrimination deterred professional, as well as skilled, people form moving into areas where such practices occurred and thereby caused industry to be reluctant to establish there.”

f) Commerce Power: Recent Cases - Still Broad, but W/ Some New Limits

i) United States v. Lopez (1995)- **current state of Comm. Power Doctrine**o Statute at issue : Gun-Free School Zones Act of 1990, made it a fed. offense

“for any individual knowingly to possess a firearm at any place that the individual knows, or has reasonable cause to believe, is a school zone.”

o Issue : Permissible exercise of Comm. Power?o Concl. : No. Cong. cannot reg. local activity, that in the aggreg. substantially

affects i.c. if it is non-economic. Means – A statute that regulates local activity that substantially affects

i.c. in the aggreg. is still valid under the still-broad effects/rational-basis doctrine, but only if that activity is “economic”

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Conversely, statute that regulates local, but NON-econ. activity, even if that activity substantially affects i.c. in the aggreg., INVALID.

Lopez Ct. did not define “econ. activity”o Facts : D-respondent carried gun and 5 bullets in a high schoolo Lopez’s defense : Congress doesn’t have authority under federalism doctrine

to enact this statute b/c it lacks jurisdictional element (-i.e. it doesn’t say “It’s unlawful for anyone to possess a firearm that has moved in or that otherwise affects interstate…commerce” in a school zone)

o Govt. argues - Rational-Basis Test: this statute does affect i-c. b/c bringing guns to school guns, when viewed in the aggregate, interferes w/ & disrupts education, which in turn affects i.c.

o Rule - 3 categories of activity Congress may regulate under i-c power o 1. Use and Channels of i.c.-

A. cites Darby: upheld statute regulating interstate shipment of goods made in poor labor conditions –clearly i.c.

B. cites Heart of Atl. Motel: motel discrim. affects interstate travel

Means: Direct reg. of i-c transactions of things o A. mechanisms by which i-c takes place o B. AND “i-c transport. of a commodity through the

channels of comm..”;

o 2. Instrumentalities of interstate commerce cites Shreveport Rate Case-upheld statute regulating

discriminatory railroad shipping rates within TX by TX shipping cos. that still affected other states.

o 3. Activities substantially related to i-c—[Rational Basis/ Effects Test]

Means: conduct that, even if intrastate, substantially affects i-c.

Lopez test for “Cat. 3” Statutes – intra-state activity-yet-substantial effects-on-ic. [cites Jones & Laughlin, Wickard]

o A. Is Congress. regulating econ. activity? - Most imp.

prong [Liberal - As long as activity remotely economic, it counts - cites Wickard]

i. If yes , then statute valid.– DON’T proceed to 2-5

ii. If not, then proceed to 2-5.o B. Does statute incl. jurisdictional element?

Ex. “It’s prohibited to possess. gun on school grounds…if gun itself traveled via i-c”

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o C. Are there Congressional findings that there is connection between regulated activity and i-c?

Incl. leg. history of hearings, testimonies of studies, other evidence to substantiate this Cong. policy judgment, esp when it’s not obvious

o D. Extent of causal connection between reg.’ed activity and i-c.?

The more attenuated the relationship, the less likely ct. is to uphold the statute

o E. Is regulated area traditionally under state responsibility [federalism]?

o App – Which, if any, valid i.c.c. reg. category does Gun-Free School Zone Act fall under?

o Govt. argues statute valid under Category 3, Effects Test Guns at schools violent crime violent crime hurts

functioning of nat’l econ., by raising ins. costs guns at schools disrupts students disrupts education

process kids will become less productive workers later in life affects nat’l economy

o SC Analysis - Rejects govt.’s Effects Test arg.- 1. Ct. defines limit to Congress’ i-c power: “The possession

of a gun in a local school zone is in no sense an econ. activity that might, through repetition elsewhere, substantially affect any sort of i-c” o Here, even under VERY broad Wickard def. of interstate

comm.., guns at schools not even remotely economic activity (disting. home-grown wheat)

o Justifications for “econ. activity” limit- Fd. govt. = govt. of ltd. powers Under pre-Loez doctrine of past 60 yrs, Congress’

i-c power was unlimited b/c under lrational basis/effects test , everything is “i..c.”

Thus, limit on Cong.’s Comm. power necc.o 2. Federalism- Allowing Cong. to regulate guns near

schools & other non-econ. activity would disturb federalism by leaving nothing for states to exclusively regulate in areas where they historically have.

o 3. Statute lacks jurisdictional element to ensure that the regulated activity affects i.c.

o 4. No Congressional findings linking guns at schools and effect on i.c.

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o 5. Govt.’s theory linking guns at schools & effects on i.c. is too tenuous

Thomas Lopez concurrence: Originalism : Comm. Cl. should be frozen in terms of what it

meant when Const. ratified, regardless of how econ. has since changed;

Suggested Hist Test : Thus, Congress ltd. to regulating activities that would have been defined as “commerce” at time of ratification Much narrower than current Comm. Cl. doctrine

-Breyer Lopez dissent – Objects to maj.’s “econ. act.” limit Rational-basis test, same test SC had been applying for 60 yrs.

pre-Lopez is the only limit on Congress’ Comm. Power Maj’s approach to drawing lines for what is and isn’t “econ

activity” is arbitrary, impracticable [implicit- maj. doesn’t define “econ. activity]

In modern economy, when no activity is purely local, Congress’ i-c power must be accordingly broad (…even if that means basically unltd.)

ii) United States v. Morrison (2000)o Statute at issue : Violence Against Women Act (VAWA) provided fed. civil

remedy for the victims of gender-motivated violenceo Challenge: Morrison & Crawford, alleged VA Tech rapists, MTD-ed alleging

the Act’s civil remedy is unconstitutionalo U.S. arg.: Statute is valid exercise of Comm. power under Lopez category 3-

substantial effects theoryo Concl: Statute invalid under Lopez factors b/c Cong. CANNOT reg. local

activity, even if in the aggreg. it subst. affects i-c., if that activity is non-economic

o Applies Lopez Test : analogizes to Lopez 1. Gender-motivated violent crimes are not econ. activity [**most

imp.**] 2. VAWA lacks jurisdictional element 3. Unlike guns/schools statute in Lopez, VAWA is supported by Cong.

findings about serious econ. effects of gender-motivated violence on victims & their families….Findings showed such violence:

Deters potential victims from traveling in interstate “ “ “ from engaging in employment in interstate business; “ “ “ from transacting w/ business in places involved in i.c. Diminishes nat’l productivity Increases med. & other costs Decreases supply & demand for interstate products

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4. Causal chain too attenuated between regulated activity (violence against women) & commerce

Rejects Cong. findings above as irrelevant b/c of slippery slope: if Cong. can regulate violence against women b/c of these remote effects on i.c., then Cong. could also reg. all violent crimes more broadly

5. Federalism - Allowing Cong. to regulate violence against women would encroach upon areas of traditional state regulation, like police power over violent crimes, & fam. law, b/c under govt.’s reasoning, “the aggreg. effect of marriage, divorce, and childrearing on the nat’l economy is…significant”

iii) Gonzales v. Raich (2005) Statute at issue - Controlled Substances Act (CSA) provision that criminalized

possession & cultivation of marijuana for local, personal, medical use Ps, CA residents suffering from serious med. conditions: As-Applied

Challengeo Congress can reg. drug trade more broadly (other CSA provisions),…

but it CANNOT reg. intrastate manufacture & possession for med. purposes, as authorized by CA Compassionate Use Act

o [as opp. to facial challenge, which challenge all apps. of statute as const, & request SC to invalidate statute in its entirety– Lopez and Morrison]

o Issue : Is CSA med. marijuana use/possess. prohibition, as it applies to these particular Ps, valid exercise of Comm. Power?

Concl: Yes, b/c even though marijuana home growing/use is intra-state activity, in the aggreg. it affects i.c., AND it IS an “economic activity, ” AND it’s part of larger reg. scheme that would unravel if ct. were to invalidate this provision.

Analysis : Applies Lopez “category 3” testo 1. Is home-cultivation & use of marijuana econ. activity? Yes. (no

need to consider other Lopez factors) Analogy validates Wickard ct.’s expansive def. of “interstate

commerce” in terms of what the intra-state conduct was substituting for

Wickard – A. Farmer cultivated, for home consumption, fungible

commodity for which there’s an interstate market B. Agric. Adjustment Act designed to control “volume of

wheat moving in interstate….commerce”/ avoid surpluses

C. Held: Statute valid. Cong. had rational basis for believing that, in the aggreg, home wheat consumption had a substantial effect on interstate price & martet conditions for wheat.

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Similarly, here, A. Ps cultiviating, for home consumption, fungible

commodity for which there’s interstate market (albeit illegal)

B. CSA provision aims to control supply & demand of controlled substances in lawful & unlawful interstate drug markets

C. Thus, Cong. “had rational basis for concluding that leaving home-consumed marijuana outside fed. control would…affect price and market conditions.”

o 2. Regulated activity, home weed use, part of broader class of larger regulatory scheme of CSA;

If SC were to invalidate this spec. home-use provision, [even though that provision only deals w/ local, non-econ. activity], it would undercut whole CSA scheme [which more broadly does directly regulate interstate, economic, commercial activity].

Slippery slope: would invite abuse if SC created CSA loophole allowing marijuana possession / growth / use for “ med. reasons”

Ct. frames regulated activity very broadly – “intrastate manufacture and possession of marijuana” ** which enables maj. to classify the activity as “economic”

*Contrast w/ O’Connor dissent- shows how ct. can satisfy/undermine “econ. activity” limit by framing framing regulated activity differently

O’Connor dissento ** Frames regulated activity, “as applied,” more narrowly as medical

use of marijuana “to relieve pain and suffering,” as authorized by CA state law**

o Criticizes Majority’s broad framing of the regulated activity for failing to distinguish between medical and recreational/non-medical use of marjuana

o **Concl: Since regulated activity, home-use of med. marijuana to relieve pain, is NOT “economic activity” , Cong. can’t regulate it under Lopez Doctrine.

o Scalia concurrence Agrees w/ maj. concl., but under N&P cl. analysis, NOT comm. cl./”part

of larger reg. scheme” reasoning Congress’s authority to enact statutes that reg. “even those

intrastate activities that do not themselves substantially effect commerce” depends on whether “the means chose are

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‘reasonably adapted’ to the attainment of a legit. end under the commerce power”

Analysis Here, CSA aims to “extinguish the interstate market in…

controlled substances, incl. marijuana To achieve this, Cong. has prohibited even intrastate activities

related to [marijuana] –both econ. activities (manufacture, distrib,…) and nonecon. activities (simple possession).

Concl : Thus, “….Congress’s authority to enact these prohibitions of intrastate [marijuana] activities depends only upon whether they are appropriate means of achieving the legit. end of eradicating [those] substances from interstate commerce..”

iv) Modern Commerce Cl. Law Flow Chart

1. Does statute reg. “channels of i-c.?” (Lopez category 1) –“Channels” means *Direct reg. of clearly interstate commercial transactions.*

(a) actual routes thru which trans. take place (highways, railroads etc) OR (b) i-c. transactions themselves (ex. sales across state lines – Darby, Champion)

o If yes , then SC will (likely) uphold.

o If no – 2. Does statute reg. “instrumentalities” of i-c. , OR “things in i-c.”

(Lopez category 2) Means :

Does statute reg. instruments/carriers that have traveled thru i-c. […even if carriers are instruments of both intra- and inter-state commerce]?

Shreveport Rate Case- Even though regulated act. is intra-state- discrim. shipping rates within TX-, this activity was so related to interstate shipping [by encouraging TX r.r. monopolies] to warrant upholding reg. under Comm. Power

A) If yes, (likely) upheld.

B) If no – [meaning it’s local, intrastate activity] o 3. Is statute regulating economic activity?

[**Sometimes depends on how narrowly/broadly challenger frames “econ. activity –

Ex. Broad: Is activity for which the regulated conduct substitutes “economic?” (Wickard); “intrastate possess. & manufac. Of marijuana” (Raich)

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Ex. Narrow: “med. marijuana for home use to relieve pain and suffering” (Raich O’Connor dissent)

But sometimes ct. applies more rigid def. of “econ. activity”

Lopez – guns near schools not econ. act., even under broad Wickard def.

Morrison- violent crimes against women are not econ activity; ]

A) If yes – Did Congress have “rational basis” for concl. that regulated conduct, in aggreg., would have substantial effect on i-c.? (Lopez cat. 3) - very deferential to Cong.

i. If yes, uphold (Raich, Wickard, Civil Rights Act Cases)

ii. If no – strike down (no precedent)

B) If no- Is statute part of larger comprehensive interstate commerce reg. scheme., which would be undercut if SC were to invalidate particular challenged provision? [focus on which spec. provision challenged, in as-applied case - Raich]

i. If yes - uphold o Raich- home use provision within

broader CSA scheme; o Wickard- prohib. on home-use in

context of larger wheat price reg. scheme

ii. If no –-*Congress CAN’T reg. local, intrastate just b/c in aggreg. it affects i-c., if it’s non-economic. So despite 1-4 analysis, STATUTE LIKELY INVALID once you reach this Q. (Morrison & Lopez)

o 1. Is there jurisdictional element in statute?

A. “It’s illegal to purchase gun from person in another state for purpose of bringing gun to a school.” –Trans. itself must span state lines Makes reg. a straightforward

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“channels of i.c./Type 1” case, VALID.

B. It’s illeg. to bring guns near schools if act of doing so would affect i.c.” Such a jd. element would not be enough to be valid reg. of i.c. (Jones & Laughlin, Lopez)

o 2. Are there Cong. findings supporting connection between regulated activity and i-c.?

o 3. Federalism- Is statute in category of trad. state responsibility?

o 4. Attenuated causal connection between activity & effect on i-c.?

Cts. WILL NOT consider in Comm. Cl. analysis:o 1. whether actual purpose of the legislation is to reg. i.c., as long as it clearly

actually does. (Darby – Lopez cat. 1/clearly interstate commerce)o 2. The wisdom, workability, or fairness of the legislation (Wickard)

g) Taxing and Spending Powers

i. Taxing Power - Art. I, Sec. 8, Cl. 1 – “ The Cong. Shall have Power to lay and collect Taxes, Duties, Imports, and Excises. . .but all Duties, Imposts, and Excises shall be uniform throughout the United States.

1. Child Labor Tax Case [Still technically good law*] Statute at issue: Tax on co. for employing child laborer Test:

o A. If primary leg. intent of tax is to raise revenue w/ incidental regulatory effect, that’s OK…

B. But if primary leg. intent is to use tax as penalty/regulation of behavior, then that’s NOT OK.

o Problems w/ this Test: Elusive dichotomy - b/c all taxes, even cat. A taxes, affect and thus reg.

citizens’ behavioro Not conclusive inquiry b/c it’s hard to judge uniform “intent” among

many members of Congress, which incl. many members who may have either revenue-raising and/or regulatory intent for enacting any tax.

o Thus, Child Labor Tax Case “leg. Intent” inquiry only conclusive when Congress can clearly regulate the taxed behavior under another power, i.e. commerce power.

2. United States v. Kahriger – **current state of tax power law**

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Statute at issue: tax on intrastate gambling Holding/MODERN TEST: As long as tax actually raises some revenue,

doesn’t matter whether tax also has regulatory leg. intent. *Disting. Child Labor Tax Case - If reg. has nothing to do w/ raising revenue,

then Child Labor Tax case applies [effectively this kills CLTC, b/c all taxes raise revenue, but CLTC still technically good law]

Since Kahriger, SC has not invalidated a fed. tax on the ground that it exceeds Congress’ power to tax.

ii. Spending Power- Art. I, Sec. 8, cl. 1 – Authorizes Cong. “to pay the Debts and provide for the common Defense and general Welfare of the United States.”

1. United States v. Butler (1936) Context: In line of early-mid 1930s cases striking down New Deal statutes Statute at issue: Agric. Adjudgment Act – aims to stabilize prices for agric.

commodities by empowering Sec. of Agric. to pay farmers to reduce # of acres for production;

Issue : Permissible exercise of spending power? Concl – No. Spending program to pay farmers to reduce acreage & production

impermissibly “invade[s] state jurisdiction to compel individual action” 3 poss. readings of general welfare cl.

o 1. Cong. can literally provide for general welfare; so it can regulate in any area it chooses, so long as in doing so it’s legitimately providing for gen. welfare; “gen. welfare” cl. is separate power from tax power cl. in this section’s list of things Congress can do –“(1) tax, (2) pay debts, and (3) provide for gen. welfare”

SC has never accepted this interpretation.o 2.– Madison: Congress can act in general welfare only if it’s acting

pursuant to Congress’ enumerated powers listed in subseq. clauses of this section

Most narrow reading Means Cong. has no authority to spend beyond which it is already

authorized to do pursuant to enumerated powers in conjunction w/ the N&P clause.; all the gen. welfare cl. does is confirm that spending power = 1 plausible means by which Cong. can achieve enumerated-power ends under N & P cl.

o 3. Hamilton –Cong. can act in gen. welfare even if it’s not acting under one of it’s other enumerated powers (like Commerce Power)

Somewhere in between 1 and 2 Implications: Cong.’s spending power broader than its power to

reg. pursuant to its other enumerated powers achieve (ex. Comm.. cl.), as long as it’s acting to promote gen. welfare

Rule- Broad Interp. of General Welfare Cl.

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o Butler Ct. says it’s applying Hamilton view of Gen. Welfare Cl./Spending Power (“power of Cong. to authorize expenditure of public moneys…is not ltd. by the direct grants of leg. power found in the Con.”)….

o Analysis ….. but Ct. is really applying narrow Madison view: 1. Powers not granted to fed. govt. in Con. reserved to the states under 10th

Amd.; 2. Here, Con. does not grant power to reg. agriculture production to

Congress.; 3. Thus, power to reg. agric. production is reserved to states, Congress

can’t reg. this area.

Stone Dissent -o Maj. can’t have it both ways - either Madisonian OR Hamiltonian view

applies –“It is a contradiction in terms to say that there is a power to spend for the nat’l welfare, while rejecting any power to impose conditions reasonably adapted to the attainment of the end which alone would justify the expenditure.”

o Favors Hamilton view – General Welfare Cl. plain meaning means, “the power to….spend includes the power to relieve a nationwide economic maladjustment by conditional gifts of money” Congress CAN enact spending power thru conditions on states influencing their behavior as long as it doesn’t amount to coercion.

o 2. Steward Machine Co. (1937) – Broad View of Spending Power Upheld Stone dissent (Butler) /Hamiltonian, broad view of spending

power. – Congress can achieve regulatory ends thru spending power, even if it couldn’t otherwise achieve such ends through Congress’s other enumerated powers.

Upheld unemployment compenation provisions of Social Security Act (New Deal fed. spending program) -

1. Imposed payroll tax on employers; and 2. Provided rebate to employers who contributed to state

unemployment comp. fund

3. South Dakota v. Dole (1987) - Continues Broad View of Fed. Spending Power Legal Landscape contetx

o Current state of spending power law- Part of modern trend since late-1930s of very deferential view of Cong.’s spending power / gen. welfare cl.

o Continues Butler broad/Hamiltonian reading of Gen Welfare Cl., but adds limitations

Issue - Can Congress give $ to states ( as opp. to private parties -Butler - farmers), w/ conditions attached to make states to act in particular way?

Concl: Yes. Condition on highway funds grant merely “encouragement” of states to enact min. drinking age valid exercise of spending power.

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Statute at issue – SD challenged fed. spending program that gave the state fed. highway funds on condition that it raised min. drinking age to 21 ( SD wanted to keep 19-yr. drink. age for purchasing “near beer”)

Test for Spending Statute Validity & Application - o Hamiltonian reading of Gen. Welfare cl. correct - Affirms Butlero However, spending power subject to some restrictions [that are generally

easy to satisfy…] 1. Statute must be providing for general welfare –

SC defers to Congress here - a policy judgment Statute always valid under this limit – if Congress itself

enacted it, obviously Cong. thought statute provided for “gen. welfare”

2. Conditions on states’ receipt of fed. funds must be unambiguous, so states can choose whether to take fed. funds, after fully considering consequences of not following conditions

3. Germaneness – Fed. conditions on grant to states only OK if its relevant to purposes for which Cong. approved the grant

Even remote connection between condition & the purpose of the spending statute OK – easy to satisfy.

App - o Here, condition for fed. highway funds-- raising

drinking age to 21--is “directly related to 1 of the main purposes for which highway funds are expended- safe interstate travel;”

o Condition of states raising drinking ages to 21 uniformity across states in drinking age discourages teens from bordering states driving to SD to buy beer discourages teenage drinking & driving

4. Other Con. provisions may independently bar conditional grant of fed. funds (Ex. Cong. can’t give states grants on condition that they violate 1st Amd. by implementing censorship)

5. Fed. condition for grant to states can’t amt. to “compulsion” App: Condition here IS NOT coercive b/c Cong. has only

made it so a state that has a below-21 drinking age “lose a relatively small % of certain fed. high funds”; so SD would still have other ways to obtain fed. highway grants

Unclear how to disting. between conditions that are coercive and those that are merely strong inducement to states. But SC has never had to draw this line b/c it has never struck down statutes exercising Congress. spending power.

O’Connor Dole Dissent – o Conc l: Statute invalid exercise of Cong.’s spending power

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Cong.’s spending power should be limited by more than Cong’s own notion of gen. welfare so that fed. govt. doesn’t invade states’ jurisdiction / have no spending limits

Criticizes maj.’s concl. that state min. drinking age condition is sufficiently related to grants for interstate highway construction & highway safety

Upheld statute here “both over- and under-conclusive” o Over –inclusive:

Stops (SD) teenagers from drinking (near bear in SD) even when they are not about to drive on an interstate highway;

This broad reading of spending power means Cong. could effectively reg. almost any state activity

o Under – inclusive If statute’s purpose, is to deter drunk driving generally (as maj.

suggests), then it’s under-inclusive b/c teens are only small segment of part of nat’l drunk driving population

Statue interferes w/ states’ regulatory jurisdiction for sake of ineffective means of achieving statute’s ostensible goal of highway safety

h) State Autonomy and Cong. Power to Regulate States

i. National League of Cities v. Usery (1976) - OVERRULED Fed. Reg. at Issue: Fair Labor Standards Act – 1974 extension of min.

wage and max. hr. provisions for most state public employees Issue: Permissible Cong. regulation of States? Concl - No. Congress lacks power to force states to pay pub. employees

min. wage Reasoning

o Provision directly displaces states’ freedom to structure integral operations, employer-employee relationships in areas of trad. state govt. functions like fire prevention, police protection, sanitation, public health, parks & rec.

o Trad. state functions fall within area in which fed. govt. can’t interfere, even though Congress might otherwise have authority. to reg. this area

o If states have to pay their pub. employees min. wage, then states will have to make hard choices

fire some employees, or reallocate state funds for increased wages from other areas

of state govt, or raise taxes

o Interferes’ w/ states’ free choice to, for ex. Pay sanitation workers less so they can pay teachers more Hiring persons w/ little or no training or those who wish to

work on casual basis or someone who doesn’t have min.

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employment requirements, & pay those workers less than fed-prescribed min. wage

ii. Garcia v. San Antonia Metropolitan Transit Authority (1985)

Fed. reg. at Issue : Fair Labor Standards Act (FLSA) requires certain employers to pay min. wage and overtime

Facts: San Antono Metro. Transit. Authority refused to pay overtime wages to bus drivers pursuant to FLSA; bus driver & other employees sued.

Issue: Can Congress (thru FLSA) force states to comply w/ fed. min. wage (which had applied to private employers)?

Concl : Yes. Congress CAN force states to comply w/ fed. min. wage

pursuant to its Art. I powers (here, Commerce Power), =b/c it can reg. the states in same way that it can regulate private actors (here, private employers)

*Overruled Nat’l League of Cities Reasoning - “Political Safeguards of Federalism” / Structural arg. –

“[S]tate sovereign interests…are more properly protected by procedural safeguards inherent in the structure of the fed. system than by judicially created limitations on fed. [commerce] power” Political safeguards inherent in Con. Structure:

Giving states role in selection of exec. and leg. branches of fed. govt.

Giving states indirect infl. over House and Presidency thru control of electoral qualifications; – Art. I, § 2

Giving states role in pres. elections –Art II, §1 Giving states direct infl. In Senate – each has equal rep.;

each Senator was selected by legislature of his State (underscored by prohib. of any Con. amendment divesting a state of equal rep. w/o state’s consent, Art. V.)

Thus, states have electoral remedy to Cong. overreaching – can vote out fed. Congress reps or pres. No need for SC to strike down fed. statute regulating states.

o Implicit: Rejects Nat’l League of Cities “trad. state functions” test as

impracticable , arbitrary non-democratically elected SC justices should not make

policy choices by striking down Cong. policies it doesn’t like

Problems w/ this arg . : “Political safeguards of federalism” may be only (albeit very limited) restriction on Congress’s power to regulate the states – …even though many of these political safeguards in Con. no longer even exist

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iii. New York v. United States (1992)

Fed. reg. at issue : carrots & sticks to induce states to create their own low-level radioactive waste disposal repositories, in resp. to nat’l shortage of state disposal sites

o A. “monetary incentives” – permitted states w/ disposal sites to levy a surcharge on the disposal of waste received from other states; (1) incentivizes states w/ existing disposal sites to keep them open and (2) incentivizes states w/o dumping sites to open their own

o B. “access incentives” –(1) permitted states w/ disposal sites to increase cost of access to their sites, and (2) permitted those states to deny access to waste generated in states that failed to meet fed. deadline for making their own disposal sites

o C. “take title provision”– (1) required states that failed by partic. date to dispose of all waste generated within their borders to take title to waste AND, (2) if they failed to do so, they’d face liability for all damages incurred by parties generating the waste as a result of that failure

o Issue : Which, if any, of these provisions valid fed. regulation of the states? Holding:

While Monetary (A) and Access (B) incentives are valid, take title provision (C) is not.

Take title provision invalid b/c Cong. can’t use COERCIVE means to get states to regulate pursuant to fed. directives, even if it’s trying to achieve otherwise Constitutional end (ex. reg. i.c.), AND even if fed. regulation addresses issue of obvious nat’l importance.

New York dichotomy of state encouragement (OK) vs. statea coercion (not OK) fuzzy. Printz refines (see below)

o Challenge: Residents of 2 NY counties opposed NY’s choice of waste disposal site near them, and state of NY challenged the statute

Analysis o 1. Monetary (A) and access (B) incentives – Valid.

They merely “encourage” states to comply w/ Congress’s regulation thru financial rewards of compliance. But states don’t have to; they can choose to forego those benefits and not create their own in-state disposal sites, and instead let fed. govt. bear expense of the reg. program by fed. reg. preempting state law. This choice by states to comply or not keeps them accountable to local constituents.

Cong. can attach conditions on states’ receipt of fund funds to encourage state compliance w/ fed. directives (Dole- valid exercise of spending power)

Concl : VALID - Incentives for states to comply w/ fed. directives ARE consistent w/ federalism / Cong.’s power to reg. states b/c they are mere encouragement, NOT coercion of states

o 2. Title provision (C) - Invalid.

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Coerces, “commandeers” states to either accept ownership of waste OR comply w/ Congress’s instructions by fed. deadline

Blurs lines of accountability – local constituents will blame state govts. for complying w/ the fed. directives/fed. officials will be politically insulated from the directive, even though it was fed. govt. that coerced state govts. to comply.

[Issue w/ this arg. – why can’t state officials just blame fed. officials, eliminating this prob.? -> they can deflect political blame for having to implement the program, but maybe not for ultimate choice of where to place the repositories)

Concl : INVALID exercise of Congress’ reg. power / Inconsistent w/ federalism for coercing states to comply w/ fed. directives.

Con. arguments Textual – 10th Amd

o 10th Amd. merely confirms the enumerated powers ( if power granted to fed. govt. in Art. 1, then 10th amd. no bar; if not, 10th amd. says fed. can’t exercise that power b/c it’s reserved to states) [Affirms Darby ]

o Even if Congress has authority to regulate this particular activity (pursuant to i-c. power), it DOESN’T have authority to do so in this coercive manner

o [Issue w/ this arg: 10th Amd. doesn’t explicitly set out these limits / say specifically which powers state retain.]

Framers sought to expand fed. reg. power, in reaction AGAINST weak Articles govt. New fed. govt. designed to regulate the people directly, and NOT the states [Orig. meaning (hist) / structure- ]

Doesn’t matter that the law was compromise among the sited and un-sited states via Congress b/c**

o “the Con. does not protect the sovereignty of States for the benefit of the states or state govts. as abstract political entities, or even for the benefit of the public officials governing the States.”

o Instead, purpose of federalism is to protect individuals .

White concurrence/partial dissent Criticizes maj.’s “formalistically rigid obeisance to federalism” -Disagrees

w/ maj.’s rejection of fact that statute = product of unsited & sited state compromise in Cong.

Statute = product of state compromise in Congress, reflecting states’ explicit recog. that states were incapable of implementing this regulatory

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scheme w/o fed. intervention. Thus, we need nat’l solution to this nat’l problem.

Residents of 1 State (NY) and two counties in NY challenging this statute shouldn’t be able to thwart Congress’s power to carry out this necessarily nat’l reg. scheme

iv. Printz v. United States (1997)

Refines New York – How far does encouragement / coercion dichotomy extend?

Fed. Reg. at Issue – Brady Act o Requires AG to est. nat’l instant background-check systemo Firearms dealer must obtain info. from buyer, provide that info.to the

“chief law enforcement officer” (CLEO) of that area – newly created local office

o CLEO duties Must research whether sale to this buyer would be unlawful;

then he can notify firearms dealer, but doesn’t have to; But if CLEO DOES notify dealer that prospective buyer is

ineligible to buy gun, CLEO must provide prospective buyer , on request, w/ statement of reasons for this determination

If CLEO doesn’t find any grounds for objecting to the sale, he must destroy records relating to the transfer

Issue: Permissible fed. regulation of states? Concl : No. Statute impermissibly compels states to implement fed. regulation. Analysis

o Contention 1- CLEOs from counties in Montana & AZ: statute impermissibly compels state officials to administer fed. reg. program

Govt .: Hist. understanding & practice – Early post-ratific., past Congresses enacted statutes

requiring participation of state officials in implementation of fed. laws

Ex. Early statutes required state cts. to record applications for citizenship, to transmit abstracts of citizenship applications to Sec. of State, to register aliens seeking naturalization

Scalia maj Analysis - rejects govt. arg ., sides w/ CLEOs These early, post-rat. Cong. statutes show that Con. was

originally understood to permit imposing fed. obligations on state judges, not state exec. officials. B/c the statutes did NOT impose fed. obligation on state exec. officials, such statutes are unconst.

o “Early Congresses didn’t do x. Therefore x unconstitutional.”

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o Problems w/ this arg. – Doesn’t necc. follow that since early Congresses didn’t do x that Congress considered x unconst.; maybe it just never had occasion to do x or did x in another non-statutory way

Federalist Papers: “states will be incorporated in the operations of the nat’l govt. as far as its just and const. authority extends” - Scalia interp.:Absent explicit Con. provision granting Cong. authority to reg. states, Congress lacks this power

Con. structure contemplates system of “dual sovereignty” – both state & fed. govt. would act directly on the people , & fed. govt. wouldn’t act on state govt. as intermediaries

Sep. of powers Art. II – Pres. “shall take care that the laws be faithfully

executed,” personally and through officers he appoints Framers envisioned “unity in the Fed. Executive…to

ensure both vigor and accountability” If Cong. can ask state officials to implement fed. law,

weakens pres. power to execute fed. law, b/c pres. can’t fire state official the way he can fire fed. exec. official

o Grappling w/ New York Maj. – Affirms New York

Govt.: Invalidated take title provision in New York distinguishable from Brady Act background check provision b/c the latter “does not require state legislatures or exec. officials to make policy, but instead issues a final directive to state CLEOs.”

Scalia rejects govt. arg. , equates this case w/ New York – It’s just as problematic to make state officials enforce fed. law (here, Brady provision) as it is to compel state legislatures to regulate pursuant to fed. instructions (New York invalidated take title provision)

Souter Dissent - Rejects Scalia maj.’s equation of fed. govt. making

state exec. officials enforce fed. law (this case - OK) with fed. govt. compelling state legislatures to regulate pursuant to fed. instructions (New York correctly held, NOT OK)

New York – State legislatures are elected to make policy choices reflecting will of the people. When fed.

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compels regulatory legislation, it’s encroaching upon state legislature’s policy discretion (NOT OK)

Here, in contrast, federal directives to states exec. officials to implement fed. legislation ARE OK these officials are not policymakers, but rather implementers of policy (already made by state leg.) Thus, fed. directives do not encroach b/c state officials have no policymaking authority.

Concl: New York correct; here, Printz majority wrong Breyer Dissent –

Foreign systems that use states to implement central govt.’s directives promote individual liberty by avoiding fed. bureaucracies Result Scalia maj. purports to promote.

Paradox of Scalia maj.’s structural arg. – Fed. must rely on state officials to carry out regulations , b/c alternative is huge nat’l bureaucracy to administer fed. regs. – exactly what Scalia seems to want to avoid here, but his decision undermines that.

State Autonomy and Cong. Power to Regulate States - overview o Congress cannot compel state legislature [1] to enact, New York, OR [2] state

exec. officials to administer, Printz, a fed. regulatory program…. …Even if regulated conduct in area of obvious nat’l importance (New

York- irrelevant that invalidated take title provision was product of state compromise in Congress, showing clear need for nat’l reg.)

Compelling states to comply w/ fed. regulation (NOT OK- New York) distinct from merely (a) encouraging state compliance, or (b) giving states choice as to compliance . (OK- New York)

Both encouragement of/giving states choice are valid means of effecting legit ends of regulating area of Congress regulating area nat’l importance.

o Fed. laws requiring states official to implement fed law (invalid- Printz) distinct from fed. laws that make state officials comply w/ fed. law (valid – Garcia)…….How to reconcile Printz and Garcia?

When Cong. directs state officials to implement fed law, it’s effectively requiring state officials to enforce fed. law against private 3d parties (Printz - NOT OK)

In contrast, when Cong. requires states to comply w/ law mandating state govts. to pay employees fed.-mandated min. wage, that’s valid b/c Cong. is regulating states directly, in same way that it regulates similarly situated private parties (Garcia –OK)

o Hypos- 1. Can fed. govt. force states to create terrorism action plans?

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No. Congress can’t compel states to enact fed. reg. program, even if it addresses issue of obvious nat’l importance (New York)

However, there are valid means of Congress carrying out such valid ends of regulating areas of nat’l importance, that don’t involve coercion, as long as fed. govt is: (New York)

o .(a) incentivizing, encouraging states to form such plans/giving , OR

o (b) giving states choice (“if we don’t comply, then fed. govt. will create program for us” )

2. Can Congress enact statute that requires each state to create min. wage for their jds., that must comply w/ some fed. standards, but otherwise can reflect local costs of living?

o (a) Fed. govt. CANNOT make states legislatures pass min. wage law; (NY, Printz)

o (b) However, fed govt. CAN require states to pay state employees federally-determined min. wage --to comply w/ fed. law (Garcia)-

This doesn’t violate Printz b/c under Garcia, Cong. can subject states to fed. regs. that apply w/ equal force to private parties (ex. Garcia –Just as Cong. can make private employers pay workers min. wage, so too can Cong. make state pay public workers min. wage)

g. Fed. Limits on State Power

1. State Power to Reg. House & Senate

United States Term Limits, Inc. v. Thornton Background - AR Voters amended state con. to limit # terms AR fed.

senators & reps. could serve to 3 (for reps.) and 2 (for senators) Issue: Does Powell limit also apply to states’ inability to impose

qualification limits on House & Senate reps.? Analysis

Cites Powell v. McCormack (1969)- Cong. houses can’t impose on members of Cong. qualification not enumerated in Art. I § 3- age, U.S. time-as-U.S. citizen requirement, residency in that state

Cites McColloch - Marshall maj. rejected MD’s arg. that Con’s silence on whether states can tax the nat’l bank implies that states have “reserved” power under 10th Amd. to tax such fed. “Instrumentalities” (entities)

Concl : States have no power under 10th Amd. to add to Cong. member qualifications enumerated in Con., absent Con. delegation to the States of this power

Thomas Dissent

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State may exercise all powers which Con. does not specifically foreclose; so if Con. silent about fed. power, Congress lacks it & states enjoy it

“the people” ultimate source of Con. authority; so ratification = act of state sovereignty

Big Picture significance: Even post-McCulloch, SC still torn over federalism Qs. it raised & Marshall answered

McCulloch : power of fed. govt. proceeds directly from the people of the nation, not from the individ. states; very nationalist POV; expressly rejected MD’s arg. that Con = act of state sovereignty by people in individ. states

Here, U.S. Term Limits Inc. majority aligns w/ McCulloch majority, while Thomas dissent adopts MD’s view McCulloch ct. rejected

2. Preemption Doctrine

Background o YOU NEED FED. STATUTE FOR THERE TO BE PREEMPTION

ISSUE.o Gibbons – when state & fed law conflict, state law must yield.o Supremacy Cl., Art. VI, cl. 2 – fed. laws (treaties, Constitution,

statutes) trump (preempt) state law in the same area o Preemption doctrine applies when 1 party wants to rely on 1 interp. of

state law and other party objects/argues that opponent’s state law interp. preempted under fed. law

o Usually raised as defense by big businesses to avoid complying w/ state regulations

Silkwood - Shows various theories on which fed. law can preempt state law 1. Express Preemption: (most common)

fed statute explicitly says it preempts state law in the area Ex. “no requirement or prohibition based on smoking and

health shall be imposed under State law with respect to the advertising or promotion of any cigarette packages of which are [lawfully] labeled.” (Fed. Cig. Labeling & Advertising Act)

Even w/ express preemption, scope of preemption as to what state activities are barred may be unclear statutory interp.

2. Implied Preemption: o A. Conflict Preemption –

1. When compliance w/ both federal and state regulations is physically impossible; OR

o Ex.1- fed. law requires cig. cartons to have labels warning consumers of tobacco’s dangers; even though there’s no express statutory

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provision preempting state law, this fed. law would preempt a state law prohibiting cig. cartons from having a warning label

2. When state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

o Ex. 2 - Fed. law in ex. 1 also would preempt a state law requiring cig. cartons to have label saying “Fed. label is wrong; smoking is good for you” b/c state law would undermine purpose of fed. law, to discourage smoking/pubic health

**Determining whether there’s state-fed. law conflict is very statutory-interp.–intensive -

o B. Field Preemption (relatively rare) When Cong. chooses to regulate an entire area

exclusively by fed. law; when “scheme of fed. regulation [is] so pervasive as to make reasonable the inference that Cong. has left no room for the States to supplement it”

Means no state laws may apply to the subject, even if the state laws do not directly conflict w/ the spec. requirements of the fed. law

***Hints***o A. Statute part of comprehensive fed. reg.

scheme; statute manifests clear Cong. intent to regulate entire field; AND/OR

o B. Congress is regulating in area of particular nat’l interest, where there’s obvious need for uniform nat’l rule…Ex:

Foreign affairs Immigration Regulation of all signals carried by cable

TV systems Navigable Airspace

h. Fed. Limits on State Power: Dormant/Negative Comm. Cl. Doctrine

o Step 1: When does D.C.C. Doctrine apply? 1. State statute regulates a particular area of i.c. 2. Congress clearly has i-c. power to reg. this partic. area (under

Commerce Power analysis). 3. However, Congress has not actually regulated this area w/ legislation

that would preempt this state reg.

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o Principle: Congress’s Commerce Power, Art. I, §8, cl. 3 imposes implicit restrictions on state regulations of commerce.

Inquiry: How to define limits on states to reg. commerce in area where Congress CAN reg., but has NOT ACTUALLY regulated?

Modern Test: State can’t treat interstate comm. differently from intrastate comm., when there’s a reasonable, nondiscriminatory alt. means of furthering the state’s legit. interest*

*Stats’e legit interests: incl. protecting health & safety, conserving natural resources;

*“ “ “ DOES NOT incl. protecting local businesses from competition or imposing burden on i.c. that’s excessive relative to legit. local interests

o Doctrinal justifications : Addressed problem under Articles govt. of states enacting protectionist tariffs & regs. that inhibited i.c.

o Doctrinal criticism : Cong. must actually exercise its i.c. power over particular area before

Cong. i.c. reg.. can preempt state reg. Congress’s i-c. power both (a) exclusive AND (b) broad [Congress can

even regulate intrastate, local activities affecting i-c. substantially in aggreg.]…Doesn’t leave many areas of comm. left for states to reg.o Wilson- responded to this concern

Held : states do have power to dam waterway; Test for validity of state i.c. reg. : States CAN reg. matters

that happen to affect i-c. when they’re exercising their “police powers,” even if by doing so, states are regulating area within Congress’s i-c. power

[Hard to know when state exercising police power to regulate local matter (OK), as opp. to local matter that falls exclusively within Congress’s i-c. reg. power (NOT OK) ‘

….So this test turns on legitimacy of end goal of the regulation (ex. if end goal of state reg. is to exercise state police power, like protecting public health, that’s OK)

Cooley v. Board of Wardens: states may not reg. areas of commerce for which a which a uniform nat’l standard is necessary

*Paradigms modern cases* o Type 1 – Protectionist state regs. that discriminate against interstate

commerce (out-of-state interests) **per se invalid.** - Both 1(A) and (B) A. state regs. that discrim. against i-c. on their face (by explicit

terms/intent of state statute treating in-state interests more favorably than out-of-state interests) ; OR

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Type 1(A) Test – STRICT SCRUITNY: To be upheld, statute can only discriminate no more than is (a) absolutely necessary, in the service of a (b) legitimate state interest.

(b) “legit state interests”o Incl.:

Protecting health and safety Conserving natural resources

o DOES NOT incl.: Protecting local producers from competition at

expense of out-of-state producers, Dean Milk Co. (invalided reg. prohibited importing certain milk into state to protect in-state producers at expense of out-of-state producers )

Isolating state from problem common to many states, like trash disposal, City of Philadelphia

B. state regs. that have [1] purpose OR [2] effect of discriminating against i.c./out-of-state interests (even if they’re not facially discriminatory)

[1] “Purpose:” If effect of law has so palpable an effect on out of state interests that it must have been motivated by discrim. purpose

o ( Kassel Brennan Concurrence ) [2] “Effect:” Since some state regs. will be based on legit state

interests (ex. conserving environ., public health) and still have some inevitable discrim. effect on out of state interests/i.c. , SC hesitant to invalidate state regs. w/o obvious discrim. intent (ex. plastic bag statute hypo;)

o Type 2- Neutral/Non-Protectionist state regs. that are non-discrim, both [1] facially and [2] in terms of purpose AND effect, BUT still place undue burden on free flow of goods in i-c.

Pike Balancing Test: VALID, UNLESS burden state statute places on i.c. substantially outweighs legitimate state interest (Southern Pacific Co. )

Between “completely deferential” (rational basis test- Wickard) and “strict scrutiny (Type 1 D.C.C. cases)

Ex. Southern Pacific Co.- train length. Reg. applying to both in-and

out-of-state cos. invalid b/c despite legit. state interest, Kassel plurality – truck length reg. applying to both in- and out-

of-state cos. invalid b/c despite legit. state interest (highway safety), burden on i.c. (out-of-state trucks have to drive around Iowa at great expense) greatly outweighs countervailing state interest in highway safety

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Justifications for Invalidating: Type 2 statutes: Federalism - out-of-staters affected by 1 state’s reg. are not

represented by that 1 state’s political process, even though they shoulder burden of reg. have no political recourse, esp. since Congress may not have time to strike down every local state policy affecting i-c. of neighbors

Promotes econ. efficiency in the nat’l market by getting rid of burdens one state places on i-c. thru discrim. policy

Criticisms of Invalidation of Type 2 Statutes: SoP:

o If substantial burden on i-c. truly greater than local benefit of the law, then Congress would

o have affirmatively exercised its power to preempt the law w/ legislation

o Balancing local benefit against i.c. burden requires SC to make policy judgments SC ill-suited to make (Thomas dissent, Camp Newfoundland/Owatonna, Inc.)

Textual - No basis in text (Thomas dissent, Camp Newfoundland/Owatonna, Inc.)

Dean Milk o Statute at issue : Madison, WI ordinance - Type 1(A)

1. Makes in unlawful to sell any milk as pasteurized in less it has been processed & bottled in Madison pasteurization plant

2. Prohibits sale of milk, or importation/receipt/storage of milk for sale, in Madison unless it’s from supplier that had a permit issued by Madison officials

o City of Madison : only permitting milk processed locally advances legit. local interest in health & safety

o Analysis Reg. excludes from distirb. In Madison milk produced & pasteurized in

neighboring states Reg. protects local milk industry against out-of-state competition Reg. implicitly, but clearly discriminates against non-Madison

commerce, which it can’t do if reasonable non-discrim. alternatives exist to conserve legit. local interests [1(b) ]

o Held : Statute invalid protectionist measure

City of Philadelphia v. New Jerseyo State statute at issue :

NJ statute prohibited flow of waste into NJ from other states Type 1-A – facially discriminatory – explicitly discriminates against

out-of-state trasho Could Cong. have regulated flow of waste pursuant to i-c. power?

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Yes – statute literally regulated flow of something from 1 state to another- falls squarely within Congress’s i-c. power

There’s i-c. market for the trash (by private landfills) Compare to New York nuclear waste disposal case

o Held : Statute per se unconstitutional (as Type 1 statute) o NJ contended: statute’s goal is to protect public safety, not to discriminate

against out-of-state trasho Analysis

Statute is protectionist measure that discriminates facially, explicitly in text of statute, against out-of-state trash – goal of the statute doesn’t matter;

Even if state has legit. interest in discriminating (here, public health), doesn’t matter if statute facially discriminatory

o Rehnquist Dissent: Rule that states can’t have statute that protects local industries producing a good/desirable item at expense of out of state industries shouldn’t apply to bad things like garbage

Kassel State statute at issue:

o Type 2- Iowa statute restricts length of vehicles that may use its highways, for all, not just out-of-state trucks – not facially discrim. (1(a)) nor in terms of effect or purpose (1(b))

o Exceptions for Iowans living on state borders; leg. intent showing true discrim. purpose

Iowa : statute’s motive: highway safety Plurality Concl: Statute invalid. Plurality Analysis

o Rule- Although ct. hesitant to invalidate state statutes addressing safety

(legit state interest), “[r]egulations designed for that…purpose nevertheless may further the purpose so marginally, and interfere w/ commerce so substantially” calling for invalidation.

Type 2- Even if statute doesn’t discrim. facially OR in terms of purpose/effect, ct. must balance state’s countervailing [legit.] interest (highway safety, ) against burden on i.c./out-of-state businesses

o App Burdens statute places on i.c.:

Reg. makes it more inefficient, expensive for non-Iowa trucking cos. to send trucks thru Iowa

o Makes trucking cos. that want to use trucks that exceed length limit take longer routes to bypass Iowa, or

o detach trailers and ship them through separately; oro use smaller trucks – o Encourages truck cos. to send more small trucks on the

road to carry same quantity of goods thru Iowa, OR

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same # of larger trucks must driver longer distances to bypass Iowas accidents proportional to distance traveled statute will increase risk of accidents, and risk those accidents will be shifted to other states

Law’s exceptions benefit Iowan truck drivers at expense of out-of-state truck drivers – ex. Iowa cities on state line can adopt length limits of neighboring state

Benefits of statute for state Although Iowa argues highway safety/lowered costs of

highway maintenance, trial ct. found that longer trucks had equal braking, turning, and maneuvering abilities as shorter trucks

Thus, statute advances no sig. countervailing safety interest Brennan concurrence

o Real purpose of statute: to force out-of-state trucks to ride around Iowa at expense of inefficiency, shifting increased risk of accident to other state

o Since statute = impermissible protectionist measure, benefits of truck lengths irrelevant

o [Kassel Ct. disagrees on whether to take into account actual purpose of statute OR just possible legit. state benefits]

Southern Pacific Co. v. State of Arizona (1984) State staute at issue -

o AZ train length regulation –limited # of carso Type 2 - Burden falls on both in-state and out-of-state train cos.,- made

transporting goods within AND outside AZ more expensive higher consumer prices; thus neither facially discrim. nor discrim. in terms of purpose or effect.

Con cl: Statute invalid, b/c burden statute places on i-c. greatly outweighs local (AZ) benefit substantially.

AZ arg : reg. promotes legit. state interest of public safety; shorter trains are safer Step 1: Knowing when to apply D.C.C. doctrine

o Congress clearly has i-c. power to reg. railroads – “instrumentalities of i-c.” – compare Shreveport Rate Case

o … But Congress had not regulated this particular area, train lengths, so no preemption of the state law

Step 2: Which D.C.C. Analysis? o No evidence of protectionism, either facially or in terms of purpose or effect –

not a Type 1 reg. Reg. applies to both AZ and non-AZ train cos.

o However, reg. still affects i.c. /places burden: - Type 2: For cos. running trains from CA to TX (via AZ), the AZ reg. means

inefficienciesmore expensive . to send traffic through AZ

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Before you get to AZ, have to break apart longer train ; or you can start out w/ shorter trains in 1st place; or you can reroute trains around AZ

This reg. means AZ effectively gets to set standard of train lengths not just in AZ, but also regionally, interstate. Unfairly binds non-AZ citizens to AZ policy, even though they have no political recourse if they are harmed by AZ reg..

Camp Newfound/Owatonna, Inc. v. Town of Harrison (1997) Significance : different opinions shows disagreement over justifications for D.C.C.

doctrine State statute at issue :

o Maj: Type 1(A)o ME exempted from real estate & property taxes charitable organizations

incorporated in the state of ME; but if charity mostly operates for benefit of people who are non-ME residents, then tax benefit more limited

Concl : Statute, invalid. Petitioner (P) = camp, most campers came from out-of-state, & b/c of tuition, did not

qualify for any charitable tax exemption D.C.C. applies b/c

o Congress could reg. this summer camp under i.c. power… Camp = purchaser of goods that travel in i.c., like restaurant in

Katzenbach Camp = like a hotel that offers guests good & services that are

consumed locally, but still substantially affect i.c. – Heart of Atlanta Motel, Inc.

o But Cong. has not regulated this area. Analysis

o Statute facially discriminates (Type 1(A) ) against charitable entities serving mostly out-of-state clients and those that mostly serve ME market

o Burden statute places on i.c.: penalizes entities like this camp by encouraging them to limit their out-of-state clientele

Thomas Dissent – rejects D.C.C. doctrine, esp. for Type 2 caseso Not basis in text - rejects fed. preemption of state law by silence reasoning ; if

there’s no conflicting leg. by Cong, then states can regulate matters of local concern which still affect i.c.

o Sep. of powers arg- Review of Type 2 cases requires SC to make policy judgments better suited for legislature–

1. Whether statute serves legit. local public interest 2. Whether effects of statute on i.c. outweigh those local interests

D.C.C. Doctrine Exceptions:

1. Market Participation Exception

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o South-Central Timber Development, Inc. v. Wunnicke (1984) State law at issue:

Alaska requirement that timber taken from state land must also be processed within the state prior to export

Only applies to Alaska state-owned timber, not private actors Plurality Concl: M.P.E. exception does NOT apply; statute invalid per

se under D.C.C. Doctrine (Type 1-A analysis) Rule : “Market participant exception:” to D.C.C.: When a state acts as

market participant( buyer or seller of goods or services), as opp. to market regulator, then D.C.C. invalidation of state statute doesn’t apply….even if state measure is “protectionist”

Ex. state can’t require all private businesses in state to buy paperclips from in-state producers; but CAN require state govt. entities to buy all paper clips from in-state producers

Justifications for M.P.E.: o When state acting in market participant rather market

regulator, it should be allowed to do the same thing as any private co.

o Protectionist measures OK here, b/c state govt. should be able to employ autonomy in only buying in-state goods

Criticisms for M.P.E.:o Whole purpose of D.C.C. to prevent protectionist state

measures; this exception swallows the rule**o Hard to disting. between state’s market particip. role &

regulatory role – state could use market particip. role to indirectly regulate: “Ex. State offices will only buy paperclips from this in-state industry if they don’t discriminate in hiring”

Technically state = mkt. particip. Net effect: anti-discrim. reg.

o Textualism: Unwritten exception to unwritten rule of D.C.C. doctrine

Plurality Analysis Disting. cases where MPE applied to validate state reg., though

protectionist o Hughes (1976) –

MD program to reduce # junked cars in the state; more stringent documentation requirements for out-of-state scrap processors than for in-state ones; bounty for MD-licensed junk cars

Held: MD program valid under MPE, b/c MD was participant in junk car market as scrap purchaser…so protectionist reg. for MD junk cars industry OK

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Here, in contrast, AK participates in market for timber selling, but regulates timber processing, in which it is NOT participant

o Reeves (1980) SD policy restricted sale of cement from a state-

owned plant to state residents; Held: SD statute valid under MPE, b/c States can

refuse to sell to particular parties (even for protectionist reasons) when it is participating in the i.c. market for those goods

Unlike here, in Reeves, SD policy did not bar resale of SD cement to out-of-state purchasers

o White (1983) Mayor of Boston required all construc. projects

funded even partly by city funds to be performed by work force of at least 50% Boston residents

Held: statute valid under MPE

***Ct. frames MPE very narrowly to avoid exception swallowing whole anti-protectionist purpose of D.C.C. rule

o AK participating in market for sale of timber, but NOT in market for processing of timber.

o Usually, seller of raw goods has no say in what happens to goods down the stream of commerce; AK, as timber seller, can’t use MPE to avoid D.C.C. invalidation of this protectionist state reg. of timber processing

o Thus, under D.C.C. Doctrine, AK CANNOT discrim. against out-of-state buyers of AK state timber by forcing them to also process timber in AK

Since MPE doesn’t apply, D.C.C. analysiso Type 1(A) statute – per se invalido Processing requirement = facially protectionist measure

that blocks flow of i.c. at a State’s borders, like City of Philadelphia

o Rehnquist Dissent: Maj.’s narrow interp. of MPE, distinction between “market participant

vs. regulator” too formalistic; There are many other legit. ways AK could achieve same ends

(requiring in-state processing of state-owned timber) w/o violating D.C.C. doctrine-

Sell its timber only to companies that have active log-processing plants in AK

Directly subsidize AK’s log processing industry

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Pay to have the logs processed, and then enter the market only to sell processed logs

2. Congressional Consent Exception - UNUSUALo Congressional authorization of state actions that would otherwise violate

D.C.C. Doctrine validates those state actions o Prudential Ins. Co (1946)

State statute at issue: South Carolina tax on foreign ins. co’s as condition of getting certified to do business in the state

Concl: state statue valid under Cong. Consent exception to D.C.C. (even if it’s protectionist/burdens i.c.)

McCarran Act : “”…Silence on the part of the Congress shall not be construed to impose any barrier to the regulation of [ins. co.’s] by the several States….The business of insurance….shall be subject to the laws of the several States which relate to the reg. or taxation of such businesses”

Prudential : State tax invalid under D.C.C. Doctrine b/c it discriminates against i.c. by favoring local businesses, since it only taxes foreign ins. co.’s

Analysis Congress’ i.c. reg. power is plenary and supreme (meaning not

subj. to any limitations, except those explicit in Constitution) – only limited by def. of “commerce”

Here, cong. declared that uniformity of regulation and state taxation of insurance business are NOT necc. by authorizing states to reg. this area

o Arguable upsets usual Congress-SC balance since Marbury SC can invalidate the state reg as violating D.C.C. doctrine;. but then, Congress can pass law superseding SC decision, allowing state to reg. that area that would otherwise be prohibited under D.C.C.

Federalism Flowchart : Is state statute valid?

1.) Is there fed. law on point that purports to reg. this area? Preemptiono If yes –

A. Does fed. law expressly preempt state law? i. If yes- then state law invalid. (ex. cig. label hypo) ii. If no – Does fed. law impliedly preempt state law?

o a. Field preemptiono b. Conflict preemptiono If either a. or b. state law invalid.

2.) If no preemption under 1), is there implied limit on state authority?(RARE)o A. Is state law taxing fed. govt.? – McCulloch

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o B. Does state law pertain to fed. elections? -United States Term Limits, Inc. (states cannot reg. House and Senate by adding additional qualifications beyond those set forth Art. I)

o If yes to either A. or B., state law invalid

3.) If neither 1) nor 2)…D.C.C. Analysis:o A. Does state law discrim. facially against out-of-state interests? (Type 1

A) i. If yes, strict commerce cl. scrutiny. Invalid per se.

UNLESS state acting as market participant. Then state law valid. (MPE)

UNLESS Congress authorizes this otherwise impermissible state law. Then state law valid.

o B. Does state law discrim. against out-of-state interests, NOT facially, but in terms of (a) purpose or (b) effect? (Type 1-B)

i. If yes, strict scrutiny. Invalid per se. UNLESS state acting as market participant. Then state law

valid. (MPE) UNLESS Congress authorizes this otherwise impermissible

state law. Then state law valid.

o C. Neither A. nor B., but state law addressing legit. state interest still places substantial burden on i.c. that outweighs local benefit of the law – (Type 2)

i. If yes- then strict scrutiny (while NOT invalid per se, state law prob. will be invalid.)

UNLESS state acting as market participant. Then state law valid. (MPE)

UNLESS Congress authorizes this otherwise impermissible state law. Then state law valid.

o D. If not A-C, OR if MPE or Cong. Consent exceptions applies, then state law valid.

2) Separation of Powers – Pres./Cong. focus Principles

o Though “SoP” not explicit in text, clearly from structure – Art. I allocates exec. power to Pres, Art. II - leg. power to Congress, Art III - judic. power to SC

o Horiz. allocation of power among branches of fed. govt. Diffuses power across branches to prevent tyranny Nexus w/ federalism: SoP’s horiz. diffusion of power across branches

harder for fed. govt. to act to encroach upon state power Exec. Power Issues - Signs: Private party affected by pres. action in domestic or

int’l affairs. That party will challenge that exec. action it in ct.

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A. Executive Power: Domestic Affairs Textual Grants of Exec. Power of Domestic Affairs

o Art II, § 1- “The exec. Power shall be vested in a President of the United States of America.”

o Doesn’t confer powers “herein granted,” as opp. to Art. I § 1 for Congresso Art. II. “Take Care” Cl. - “Take care that the law be faithfully executed”o Art. II, § 3 §2 & 3 – specifically delineates some of pres. powers- treaties, etc.

Pres CANNOT. take action in domestic affairs beyond explicit or implicit statutory authorization, or Art. II? (Youngstown)

Youngstown Sheet & Tube Co. (1952)o Exec. Action at issue:

Pres. Truman issued exec. order for Sec. of Commerce to nationalize steel industry when unresolved collective bargaining process was on brink of workers’ strike during Korean War

Congress took no actiono Issue : Was exec. order valid?o Concl : No. Seizure unconstitutional b/c there’s no explicit OR implicit

authorization either by statute OR in Con. Art. II. (as required for pres. to ct in domestic affairs)

(Issue - assumes clear distinction between lawmaking & execution of the laws)

o Steel Cos. : Pres. acting alone, unilaterally, can’t seize private property –even though fed. govt. can under 5th Amd.,

o Rule: “Pres.’s power…to issue the order must stem either from an act of Congress or from the Con….”

o Analysis Statutory Authority?

Taft-Hartley Act – While it gives remedies for govt. in context of paralyzing nat’l strike, those remedies DID NOT incl. govt. seizure of private property, which Cong. explicitly debated . & ultimately rejected in statute’s leg. hist.

There are statutes that pres. can seize private property, but only under narrow conditions - none met here

Con. Authority in Art. II? Govt: pres. had authority to seize meals b/c it’s implied “from the aggregate of his powers under [Art. II]” – SC rejects.: o “the exec. Power shall be vested in a Pres.”o “he shall take care that the laws be faithfully executed”

Con. reserves lawmaking to Congress Pres.’s limited role in lawmaking process:

(1) recommending laws and (2) pres. veto

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Here, exec. order to nationalize steel mills = impermissible executive lawmaking.

o “he shall be Commander in Chief…” Despite broadness of pres. power to exercise this power in

“theater of war,” (i.e. battlefield decisions), this power doesn’t incl. pres. seizing private property at home to keep labor disputes from stopping production in wartime. This is Congress’s job

Thus, this is insuffic. basis for pres. power here absent Congress. authorization

o Frankfurter concurrence : functionalist arg. Sometimes pres. CAN act in domestic affairs absent Cong.

authorization or express Con. authorization, but only if history and practice have suggested need to do so .

But if Congress has explicitly said Pres. can’t act in given situation, then Pres. can’t.

o **Jackson concurrence- READ AS BINDING PRECEDENT Concl – Exec. action invalid b/c there’s implicit Cong. prohibition, and

it’s unjustified under C-in-C Art. II power. [ His scheme leaves some room for pres. to act absent

authorization from Congress, cat. 2 “yellow”/silence, unlike maj. ]

A. When does Cong. Authorize Pres. to Act? 1. “green ”- Pres auth. to act at its apex when Cong. has (a)

expressly OR (b) impliedly authorized pres.’s actiono In either case, Pres. CAN act

2. “yellow” / “twilight zone” – Cong. silent as to whether pres. can act in situation; Cong. silence on the matter

o pres. authority to act depends on imperative of circumsts.

3. “red” – (a) implied OR (b) express Cong. prohib. of this kind of action (assuming the Cong. prohib. is constitutional- ex. Congress can’t prevent Pres. from exercising his exclusive Con. power to grant pardons)

o Pres. authority to act at its lowest ebb

App: Pres. nationalization of domestic steel mills in red zone o A. Statuary Authoriz.? Congress has implicitly

prohibited this pres. action (Despite Cong. silence on this, Jackson puts this action in “red zone”)

Statutes of similar subject matter (govt. private property seizures) imply prohib. of this exec.

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action (red zone), even though Cong. silence as to these spec. circumsts/pres. action

Show how anytime case falls into “twilight” zone, also poss. to argue that Cong. silence means implied prohibition (category 3 “red” )

B. Con. Authoriz.? Govt: “Commander & Chief” power permits pres. to act in war & nat’l security matters, even if Cong. has purported to prohib. Pres. from acting

Jackson rejects . In red zone, pres. can only act on matter in narrow circumsts; none of them apply here;

Narrow reading of C.in.C Power: Military subservient to pres.’s civilian

control Thus Pres.’s power to effect war

abroad DOES NOT authorize him to act under Com.-in-chief power at home [ even though safety of Am. troops in Korea related to this dispute (strike poss. of steel shortage)]

Under govt. arg. Pres.’s war power would be limitless. Pres. subject to the rule of law created by Congress.

Pres.’s Con. “Commander in Chief” power not enough to justify pres. seizure of steel industry at home.

B. Executive Power: Foreign Affairs

Dames & Moore v. Regan Art. II : Pres. has exclusive power to negotiate treaties; Exec. Action at Issue:

o Iran seized hostages in Am. embassy in Tehran (1979)o After failed rescue attempt, Carter negotiated executive agreement

(as opp. to treaty) w/ Iran for release of hostages; became effective day Regan became pres.

o Agreement terms: 1. terminated all litig. between U.S. citizens & Iranian govt;

& created Claims Tribunal to arbitrate unsettled claims** 2. suspended all attachments of Iranian property in U.S.

Issue : Did Pres. have power to suspend Americans’ claims against Iran?

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Concl: Yes. Pres. authority to act in foreign affairs valid even if Con. or Cong. has not expressly authorized this particular action. Cong. authorization is implicit if it has authorized similar pres. actions in the past.

o Subtext: uniqueness of pres. action in foreign affairs – importance of pres. representing the country w/ 1 voice on int’l stage

o [Contrast w/ Youngstown maj.- more limits on pres. actions in domestic affairs, as pres. has no implied/inherent authority to act absent express or implied Cong. or Con. authorization]

Ps/Dames & Moore arg .: Pres. did not have authority to unilaterally suspend their claims against Iran

Rule- Jackson concurrence - but reframed as “spectrum running from

explicit Cong. authorization to explicit congress. prohib.”

Clear Cong. authoriz. of pres. authority of precise pres. action at issue -Clear Cong. prohib of precise pres. action at issue

Cong. disapproval/approval of pres. action at issue can be implicit in Cong. disapproval/approval of similar pres. actions. Middle of the spectrum

Analysis o 1. Cong. had enacted statutes expressly authorizing Pres. to nullify

attachments of Iranian property in U.S. & order transfer of Iranian assets [cat. 1/clear Cong. authorization ]

o 2. Claims Suspension - Although no statutes authorized precise issue of pres.’s suspension of Am. claims against Iran, it is valid pres. action b/c

There are (1) closely related statutes , and (2) there’s no contrary indication of leg. intent

Claims settlement agreements w/o claimants’ consent are part of “established int’l practice,” which U.S. has regularly applied in foreign affairs

This part of agreement in middle of spectrum, but closer to “clear Cong. authorization” [Jackson cat. 1/green]

C. Executive Power: War on Terror

Limits on Exec. Power to Detain Alleged Enemy Combatants-Background

Ex Parte Milligan (1866) Proced:

Despite Grand Jury’s failure to indict Milligan, govt. convicted him & sentenced him to death pursuant to judgment by military tribunal during Civil War

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SC granted writ of habeas corpus* to Milligan, citizen of IN who had NOT served in armed forces during civil war

*Writ of habeas corpus: entitles person detained by govt to petition ct. to force govt. to justify why it’s legally entitled to hold him

SC held: Military commission could not try Am. citizen who’s not in military, & who’s only alleged to have aided the enemy. Govt. must charge him w/ crime and prosecute him in fed. ct. under regular crim. procedures. Military law can’t substitute for rule of law

Ex Parte Quirin (1942) Facts : 8 Nazi saboteurs, incl. 1 U.S. Citizen, used German sub. to

sneak into U.S. during WWII w/ orders to attack U.S. (captured before they succeeded)

Proced: FDR ordered men to be tried by military commission for

violations of laws of war Dist. ct. denied writ of hab. corp. - refused to free them; SC

affirmed Men tried before military commission, sentenced to death

Congress had passed statute authorizing FDR to convene military tribunals to try people accused of violating laws of war

Held: It is within govt.’s power to try men, incl. U.S. citizen, by military commission; didn’t violate Con. rights of accused U.S. citizens (distinguished Ex Parte Milligan – here, laws of war violated, not domestic law like in Milligan)

Modern Cases

Hamdi v. Rumsfeld (2004) Issue - Did Congress, thru AUMF, authorize Pres. to detain indefinitely

citizens deemed “enemy combatants” captured abroad? Background - Hamdi, U.S. citizen, captured in Afghanistan, by anti-Taliban

group, & turned over to U.S. military Executive Action at Issue : U.S. govt. declared Hamdi enemy combatant, &

maintained it was thus entitled to detain him indefinitely w/o judicial recourse or atty.

Challenge: Hamdi’s relatives filed writs of habeus corp. to challenge their detention & lack of recourse thru judicial process

Bush govt. arg.: o Pres. can detain U.S. citizens deemed “enemy combatant,” even if

Congress says he can’t (red /Jackson cat. 3), b/c Con. gives Pres.. Plenary authority to detain pursuant to Art. II powers- “faithfully execute laws,” “Comm.-in-chief,”

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o Implies: Youngstown categories irrelevant (even cat. 3 red ) in determining whether or not pres. has authority to act.

Rule: Youngstown Jackson Categories:o Express or implied authorization by Congress (cat. 1)– apex of pres.

authority to acto Express or implied prohib. by Congress (cat. 3) – low point of Pres.

authority to act

O’Connor Plurality (4) and Thomas dissent (4) Concl.: Yes. Congress DID [implicitly] authorize pres. to detain alleged “enemy combatants” captured abroad under Authorization for Use of Military Force (AUMF) b/c “force” includes detention w/o access to normal judicial system safeguards, incl. lawyer [Jackson cat. 1- “green”- pres. authority apex]

o O’Connor Plurality Qualification: 1. AUMF “not a blank check for the Pres.” to detain citizen at

expense of detainee’s due process rights: (a) to receive notice of factual basis for his classification as “enemy combatant,” and (b) fair opp. to rebut govt.’s assertions against him in court

2. Pres. can only detain alleged enemy combatant for duration of the conflict

(What does this even mean in amorphous, never-ending War on Terror?)

*O’Connor Plurality Reasoningo Statute authorizes use of “force,” which includes detention w/o

normal judicial system safeguards Broad reading of “force” in AUMF

o Detention is so fundamental an incident of war as to be an exercise of the “necc. and appropriate” force Cong. authorized pres. to take under AUMF

o Souter Concurrence w/ judgment/ dissent-in-part Can Pres. indefinitely detain U.S. citizen captured abroad/deemed

“E.C.” in these situations: Cat. 3. /Cong. Prohib? .- No.

o Non-Detention Act, § 4001 (a) (1948) requires “clear statement of [Cong.] authorization” to detain citizens prohibits indefinite detention of U.S. citizens [Jackson cat. 3]

o Here, AUMF does not explicitly authorize pres. to detain U.S. citizens indefinitely –it only authorizes “force” (read narrowly- use of armies and weapons, doesn’t incl. indefinite detention)

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o Thus pres. cannot indefinitely detain U.S. citizens captured abroad pursuant to NDA prohib. absent Cong. clear authorization

Cat. 2/Cong. Silence- No, EXCEPT during emerg., temporarily:

o : Pres can detain citizens indefinitely when Congress is silent, but ONLY when there’s “genuine emergency”

o Emerg. qualification does NOT apply here b/c Hamdi has been detained for > 2 yrs. - shows there’s no “actual and present” necessity, like a “genuine invasion that closes civilian courts” (Ex parte Milligan)

Cat 1/ Clear Cong. authorization – Yeso Only circumsts. when Pres. would be authorized to

detain U.S. citizen indefinitely o Does not apply here b/c AUMF “force” authoriz. does

not override NDA to authorize pres. to indefinitely detain U.S. citizens

Institutional logic arg. – o Doesn’t make sense to make exec., which is charged

w/ protecting security, to determine liberty/security balance

o Otherwise exec. will “amplify the claim that security” is always at stake & will strike balance too far towards security (“chicken guarding hen coop” arg.)

Souter Concl - Since NDA requires clear Cong. authorization of pres. detention of U.S. Citizens, which AUMF does not provide, once it’s determined that accused = U.S. Citizen, pres. has no authority to detain him indefinitely.

o Thomas Dissent- Concl: Like O’Connor plurality, concl. AUMF authorizes pres. to

detain U.S. citizen captured abroad indefinitely w/o access to cts. or atty.

Detention taken by govt. falls squarely within fed. govt.’s war powers [cat 1./Jackson “green”]

If govt. wants to detain enemy of U.S., even if he’s citizen,b/c it’s necc. to defend nation from terrorism, then pres. can do it. Pursuant to inherent pres. power….. regardless of level of Cong. authorization/Jackson cat….even w/ express Cong. prohib.

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DISAGREES w/ PLURALITY’s concl. that Pres.’s determination of who is an enemy combatant subject to judicial interference

o Scalia dissent Am. citizens fighting against U.S. have traditionally been “treated as

traitors subject to the criminal process” – not thru exec. military commissions

Pres’s Art. II power as Commander-in-chief- does not give pres. indefinite wartime detention authority over

U.S. citizens, as govt. argued Except for actual command over military forces, military command

belongs to Congress When can pres. indefinitely detain U.S. citizen deemed enemy combatant

& captured abroad? For Cat. 3, when Cong. has prohibited Pres. from detaining U.S.

citizen pres. can’t do it. For Cat. 2 ( Cong. silence)- pres. can’t act For cat. 1/express Cong. authorization – Pres. can act, but only if

Congress explicitly suspends writ of hab. Corpus (which it hasn’t here through AUMF, which doesn’t satsify NDA’s clear authorization requirement)

Hamdi summary : Justices’ views on when pres. detain U.S. citizen deemed “enemy combatant”/fighting against U.S./captured abroad:

Pres. Cong. Thomas (broadest)

Souter Scalia (narrowest)

Apex Auth. Y Y N, unless Cong. suspends writ of hab. Corp.

? “Twilight Zone”/silence

Y Only as long as emerg. circumsts., last, temporarily

N

Nadir Prohib. Y N N

Hamdi Aftermatho Bush admin. argued that every time Cong. authorizes pres. explicitly, but

generically, to use military force, means that Pres. also has power to do a lot of other things, even in cat. 3/Cong. prohib. cases) SC has rejected this arg.

o Principles: If statute (like AUMF) authorizes pres. to use “force,” but does not

specify the details, Pres. has only powers granted by (1) Con, (2) other

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statutes, and (3) laws of war. Under these powers, Pres. can detain enemy combatants, but only if they are accorded certain Due Process rights (Hamdi).

Absent Cong. authorization, pres. can’t detain citizen deemed enemy of the state, and arrested abroad (Hamdi) or in U.S. (Padilla). Person must be charged w/ crime and have lawyer access.

Can Pres. indefinitely detain citizen alleged “enemy combatants” arrested in U.S. pursuant to AUMF? – Padilla and Hamdan

o Rumsfeld v. Padilla (2004) Issue : Can Pres. indefinitely detain citizen/ alleged “enemy combatant”

arrested in U.S. pursuant to AUMF? Conc l: No.

SC didn’t decide issue b/c case dismissed on procedural grounds

Dissent (liberal justices – Souter, Ginburg, Breyer) + 1 other justice [majority ]: Cong. had NOT in AUMF authorized pres. to indefinitely detain (1) Am. citizen (2) who was arrested in the U.S. Citizen must be charged w/ crime, have atty. access.

Facts -Padilla was arrested at Chicago’s O’Hare Airport / accused of planning to detonate a bomb

Govt arg. – AUMF Cong. grant of military force also authorizes pres. to detain U.S. citizen if he is captured in U.S., indefinitely, w/o counsel or ct. access [contrast w/ Hamdi, where alleged “enemy combatant” was captured abroad]

o Hamdan v. Rumsfeld (2006) Exec. action at issue: Bush issued ’01 order authorizing trials by

military commissions for non-citizens whom Pres. determines “there is reason to believe” (1) “is or was” an al Qaeda member, or (2) has engaged or participated in terrorist activities aimed at or harmful to the U.S.

Held : Exec. action unconstitutional. 1. Pres.’s order to try non-citizen suspected terrorists by

military commission invalid b/c procedures inconsistent w/ statutory requirement of UCMJ, and also violated 3d Geneva Convention Treatment of Prisoners of War (1949)

2  Neither AUMF authorization of pres. to use “force” nor DTA authorized military commission that had been convened to try Hamdan

Background: Yemini Hamdan was charged w/ conspiring w/ bin Landen to

engage in acts of terrorism Hamdan deemed eligible for trial by military commission;

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Hamdan sought writs of hab. corp. and mandamus to challenge exec. branch’s prosecution of him by military commission pursuant to Bush’s ’01 order

Govt. arg.: If Cong. authorizes War, then (1) under AUMF and DTA, exec. branch can try non-citizen enemy combatants in military tribunals, AND (2) exec. doesn’t need to follow normal procedures under Uniform Code for Military Justice (UCMJ)

D. Executive Privilege and Immunity

1. United States v. Nixon – Executive Privilege (E.P.)

Executive privilege: allows pres. to keep secret communications w/ advisors; usually asserted in context of Cong. investigation or judicial proceedings…but qualified, only in certain circumsts…..

o Background: June ’72 – Nixon campaign members broke into Dem HQ in Watergate. No

evidence Nixon knew about break in, but he and his aids plotted to cover it up.

As a result of Nixon’s refusal to hand over tapes to Spec. Prosecutor, Nixon named as unindicted co-conspirator in indictment of WH aids for conspiring to obstruct justice into WG investigation [crim. proceeding ongoing during this case]

o Executive action at issue: Nixon claimed exec. privilege as excuse for refusing to hand over tapes recording cover-up discussions w/ aids to Special Pros. needed for his investigation of indicted aids

o Issue: Could Nixon validly assert exec. privilege to avoid giving up the tapes of his conversations w/ aids?

o Concl: No. Pres. has no absolute, Executive Privilege that makes pres. immune from cooperating w/ judicial process.

Needs of pending crim. investigation > public interest in absolute exec. privilege.

Pres. CAN assert qualified Exec. privilege w/ “….claim of need to protect military, diplomatic, or sensitive nat’l security secrets.”

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o President argues: Claims of executive privilege are immune from judicial scrutiny, absolute; presumption of exec. privilege

1. Sep. of powers arg.: precludes judicial review of Pres’s claim of E.P. b/c j.r. would interfere w/ “independence of the Exec. Branch within its own sphere [which] insulates a Pres. from a judicial subpoena in an ongoing crim. pros.” [formalism: there are 3 separate branches. Thus, pres. can’t be compelled by another branch to disclose info..]

2. E.P. needed to foster candor in communications between pres. & his closest advisors in context of difficult pres. decision-making

o Special Pros: Wanted the tapes for evidence in ongoing prosecution of Nixon’s

aides. Nixon’s successful assertion of E.P. would impair courts’ ability to

properly function in crim. case pending against Nixon aidso Analysis – Why Pres. does NOT have absolute privilege as Nixon argues.

1. Rejection of SoP arg. - Absolute E.P. would impair Art. III courts’ function. SoP, as framers designed, “not intended to operate w/ absolute independence”

2. Response to candor arg. – Although ct. acknowledges public interest in candor in pres. decision-making w/ advisers, weighs this against needs of adversarial crim. justice process, which depends on “develop[ment] of all relevant facts”

Unqualified E.P. in context of spec. prosecutor’s need for evidence in crim. proceeding, would undermine crim. justice process [of crim. prosecution pending against Nixon aids], and erode public confidence in the system

Infrequent need for pres. to disclose discussions w/ top aids will not seriously encourage advisors to temper the candor of their remarks to the pres.

Allowing E.P. to withhold evidence that’s relevant in crim. trial would undermine due process, fair admin. of crim. justice

Interest in preserving functionality of adversarial crim. justice system outweighs public interest in E.P.

2. Nixon v. Fitzgerald – Executive Immunity from Civil Liability for Official Actions While in Office

o Facts Fitzgerald Nixon (damages for retaliatory termination) Fitzgerald, Air Force analyst, embarrassed his superiors in DoD

when testified before Cong. that cost-overruns on C-5A transport plane were $2 billion; revealed unexpected tech. difficulties during plane R&D

o Executive Action at Issue: Fitzgerald claimed he’d suffered retaliation by DoD for his testimony; sued

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o Nixon: claimed absolute immunity from civil liability for any action he may have taken w/ respect to Fitzgerald while he was pres.

o Concl -[BRIGHT-LINE] Pres. DOES have absolute immunity from civil liability for

[1] official actions [2] taken while in office.

o Types of Immunity: Absolute immunity – Certain govt. officials* can’t be sued,

regardless of claim asserted against him, regardless of D’s wrongdoing; thus ct.. shouldn’t consider merits of suited at all (*judges and prosecutors)

Qualified immunity – scope of defense varies in proportion to nature of official functions; applies to most fed. employees when they’re sued for violating individual’s Con. rights

o Analysis Nothing about Pres. Immunity in Art. II text-although there is Con.

provision on Cong. immunity from civil suits while Cong in session (Art I, § 6)

Functional reasons why pres. needs to enjoy immunity 1. W/o pres. immunity, might “chill pres.’s discretion to act,”

- If Pres. must face civil lawsuit, then he’s likely to be unduly cautious in perf. of his duties at expense of public interest; every action pres. takes is likely to aggrieve someone

2. Suits filed while pres. in office (not the case here) would distract pres. from fully performing his pres. duties

o White Dissent: criticizes maj. decision as putting pres. above the law

3. Clinton v. Jones (1997)- Executive Immunity from Civil Liability for Pre-Office, Unofficial Actions [when suit is during presidency]

o Issue: Does pres. have immunity from civil suit for pre-office actions?o Concl: No. Pres. does NOT have immunity from, AND does not have right

to delay civil lawsuits for, private/unofficial acts, even while he’s still serving as Pres.

o Facts: Jones, AR state employee, accused Clinton for propositioning her for sex while he was AR governor. Claimed she was treated w/ hostility by superiors when she turned pres. down

o Proced Clinton MTD, asserting pres. immunity. Argued he could not be

sued for unofficial acts pre-office as pres. while he is in office as pres.; asked for immunity for as long as he was in office (as opp. to arguing he never has to defend civil suit for unofficial, pre-presidency acts)

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Dist. ct. denied MTD on immunity grounds, ruled that disc. could go forward, but ordered any trial stayed until end of Clinton’s presidency;

Both sides appealed Jones wanted trial to progress now; Pres. wanted immunity from suit, incl. discovery

Ct. of App. Concl: Affirmed in part- denial of MTD on immunity grounds Reversed in part - Trial ct. shouldn’t have stayed

proceedings until post-presidencyo Rule: :

”…[A]n official’s absolute immunity should extend only to acts in performance of particular functions of his office. “

“With respect to acts taken in his ‘public character’—that is, official acts—the Pres. may be disciplined principally by impeachment, not private lawsuits for damages. But he is otherwise subject to the laws for his purely private acts.”

o Analysis 1. Disting. Fitzgerald “chill pres. discretion” to perform official

actions arg. While Nixon concerned pres. official actions while he was in office, this case concerns unofficial pres. actions before he was in office. Thus Fitzgerald inapplicable.

2.Fitzgerald distraction arg. reasoning doesn’t apply to pres’s unofficial acts

3. Hist. arg.- Ct. acknowledges hist. record of Con. Convention cuts both ways here, for and against pres. immunity in this situation

4. Functionalist/hist. arg. - Allowing civil suits against pres. in these circumsts. won’t unduly inhibit pres. discharging his duties b/c civil suits against sitting presidents have been historically rare, so they’ll prob. continue to be rare

Controversial prediction-based reasoning – is SC well-suited to make such predictions?

This analysis hinges on SC’s ability to make predictions a/b inter-branch dynamics too soon to tell if this was a good prediction.

Maj. rejects Breyer’s functionalist arg. w/ formalistic arg. based on branches’ categorical roles

Jones not acting fed. judiciary to perform “executive” function, but “merely asking the courts to exercise their core Art. II jurisdiction to decide cases and controversies”

SC wouldn’t be interfering w/ exec. branch by allowing civil suits against pres. b/c presiding over civil litig. = quintessential function of the cts.

o Breyer Concurrence - Functionalist arg. - Relationships among branches-

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There’s just 1 pres; all Exec. power vested in him, Art. II If pres. were forced to defend lawsuits while in office, it would

impede him from performing this uniquely difficult, influential govt. role

F. Congressional Control: The Leg. Process

When does it apply? N.D.D. challenges argue that 1 branch is impermissibly giving power away to another branch (Unlike classic sep. of powers challenge- that 1 branch trying to aggrandize itself at expense of another branch)

Textual args. for why Con. anticipates NDD, function of modern admin. state N&P cl. – speaks of power vested by this Con. “in the govt. of the U.S. or in any

dept. or officer thereof,” even though Con. doesn’t create any officers of depts.. Opinion cl, Art. II, § 2, cl. 1- contemplates “exec. departments” with “principal

officer[s]” who will have legal “duties” Appointments Cl.- Anticipates “officers & depts.” “Take Care” Cl. – passive voice- “Pres shall take care that the law is faithfully executed” –

framers may have anticipated that law would be enforced by actors other than pres.

Commentators: thus, grant of leg. power in Art. I should be read the same way, to permit Cong. to delegate its authority to other govt. actors

SC has disagreed- Cong cannot delegate its leg. power. Accountability Counter-arg: when pres. delegates power to exec. officials,

pres is ultimately accountable; whereas if Cong. can delegate important policy decision to unelected exec. agency, then Cong. can take credit for exec. agency’s regulation if public likes it / blame agency when public doesn’t like it

Justifications for NDD:o Cong. can’t anticipate every circumst. that will arise; not feasible to

amend statutes every time circumsts. changeo Agencies – staffed by policy experts, scientists- better suited than

congress to fill in the nitty-gritty details of generally drafted legislation

1. Whitman v. American Trucking Associations –The Non-Delegation Doctrine (2001) Statute at Issue: Clean Air Act provision

o Challenged Text: Instructs EPA to set air quality standards “the attainment and maintenance of which…(1) are requisite to protect the public of health” (2) with “an adequate margin of safety”

o Provision summary:

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Requires EPA Administrator to set nat’l ambient air quality standards (NAAQS) for various pollutants

Then EPA administrator must set limits for how much of given pollutant allowed to enter air based on what public health can tolerate

Statute does not require costs of achieving EPA-set air quality standards to be part of calculation

Issue: Does provision impermissibly delegate legislative power to exec. agency (EPA) in violation of N.D.D.?

Concl : No . Statute validly gives exec. branch discretion to promulgate regs. pursuant to statutory intelligible principal.

Rule: The Non-Delegation Doctrine- o Art. I, § 1

Vests “[a]ll legislative powers herein granted. . .in a Congress of the United States.”

This Con. § prohibits Congress to deleg. Its legislative powers to exec. branch– Loving.

Thus, Congress must “lay down…an intelligible principle” to guide exec. agency/official’s implementation of the statute

W/o such an intelligibile principle, Cong would be impermissibly punting its legislative power, policymaking responsibilities to exec. branch

o VERY DEFERENTIAL TO CONGRESS – “…[W]e have ‘almost never felt qualified to second-guess

Congress regarding the permissible degree of policy judgment that can be left to [exec. agencies / officials].”

SC has only struck down 2 statutes on NDD grounds. Respondents: If Cong. wants to regulate this area, must do it itself, rather than

delegating legislative auth. to EPA Analysis

o Provision at issue DOES HAVE intelligible principle to guide EPA in implementation: it “at a minimum requires that ‘[f]or a discrete set of pollutants and based on published air quality criteria that reflects the latest sci. knowledge, [the] EPA must est. uniform nat’l standards at a level that is requisite to protect pub. health from the adverse effects of the pollutant in the ambient air.”

o Compares to other statutes that Ct. has upheld as NOT violating N.D.D. for providing adequate “intelligible principle” – VERY DEFERENTIAL to Congress:

OSHA provision requiring agency to “set the standard which [1] most adequately assures, [2] to the extent feasible, [3] on the basis of the best available evidence, that no employee will suffer any [4] impairment of health. . .” (Industrial Union Dept., AFL-CIO 1980)

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[Smith – Although all of these elements arguably call for agency to make difficult policy/”legislative” decisions in statutory interp., SC still upheld. Shows extent of this doctrine’s liberality.]

Wartime conferral of agency power to fix commodity prices at a level that “will be generally fair and equitable an will effectuate the . . . purposes of th[e] Act.” (Yakus, 1944)

Statutes authorizes regulation in the “public interest” (National Broadcasting Co., 1943)

o Ultimately Congress made hard policy choices for this statute, in setting pollution standards, and balancing costs vs. public health, while leaving EPA to just fill in details.

NDD Principles Whitman “Intelligible principle” test VERY liberal, deferential to Cong.; even

if statutory “principle” very general, SC will still uphold statute as not violating NDD.

If SC has upheld so many ambig. statutory terms as not violating NDD, even when they arguable require exec. agency to make important policy judgments, then unclear what’s an important enough policy decision to mean NDD violated/ Cong. can’t delegate it .

Distinction between “lawmaking-making power” (only Congress can exercise) & “executive” power that’s premise for NDD is fuzzy

o Even if there is “intelligible principle,” which SC interprets very broadly, often agencies have to interp. statute, which calls for hard policy choices that are arguably “legislative”

o Thus SC’s approach to NDD leaves much room to exec. branch making important policy decisions.

That SC has hardly ever struck down statute on NDD grounds reflects its acknowledgement of these issues

Legislative Veto Immigration and Naturalization Service v. Chadha – Leg. Veto

Unconstitutional Background- Legislative veto provisions

Provisions in statutes delegating authority to admin. agencies saying that Congress (or just 1 house) could rescind certain agency actions, just by passing resolution

Made agency actions conditional: Agency could act, but action would be invalid if 1 or both houses disapproved

Issue: Executive action that Congress delegated, but wants to check:

Immigration statutory scheme

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Cong. gave AG authority to suspend deportation, if person of “good moral character” and deportation would impose “extreme hardship”

Holding: Leg. veto [unicam. or bicam.] unconst. b/c it Since it was legislative action, it had to comply w/ formalities of:

(1) bicameralism AND (2) presentment to president for sig. or veto

Since leg. veto of AG’s deportation suspension, didn’t fulfill these 2 formal requirements for leg. action, it’s unconst.

Facts Congress tried to exercise its reservation of legislative veto,

authorized by statute, over AG’s suspension of Chadha’s deportation -

Purpose: check on AG’s exercise of deportation suspension – to prevent him from suspending deport. of wrong people, undermining deportation statutory scheme

House unilaterally passed resolution disapproving of AG”s suspension of Chadha’s immigration Not treated as Art. I leg. act Not submitted to Senate for approval Not presented to pres.

Chadha arg.: legislative veto in the deportation statute unconst. Rule – What constitutes “legislative action?” (requiring formalities of

bicameralism & presentment)”[FORMALISM] If it “ha[s] the purpose and effect of altering the legal

rights, duties and relations of persons all outside the leg. branch. [incl. Chadha]

Analysis [FORMALISM] A. Leg. veto unconst. b/c violated 2 const. requirements for such

a “leg. action” 1. Bicameralism – requirement of Art. I, §§ 1, 7

a. This is a very cumbersome proced. – makes it hard for Cong. to enact laws

b. Purpose: deliberate effort by framers to prevent concentration of power in 1 house

2. Presentment to pres. for signature or vetoa. Arg. hole. – Cong. doesn’t have to get pres. approval

for every action (ex. when Cong. passes resolution “supporting our troops;”). Ct. gets around this issue by stressing that Cong. must comply w/ these 2 requirements when its action is legislative action*

B. *Leg. veto = “legislative action” (requiring these 2 formalities).

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When House decided whether to override AG’s suspension of deportation, that was leg. action b/c

a. When House did it , it changed Chadha’s legal rights b. Its status as “leg. action” is “confirmed by the

character of the Cong. action it supplants” (???)

In contrast, when AG, exec. official , decides whether to suspend deportation, this is NOT leg. action, but exec. action to implement the law. This is b/c NDD prohibits Cong. from delegating its leg. power away to an agency.

Powell concurrence: When decision of whether to deport alien made by a quasi-adjudicatory body of of an exec. agency (as opp. to Art. III ct.) – = judicial action

Issues w/ Chadha maj. & Powell concurrence reasoninga. Many non-leg. act (things exec. or Art. III cts. do)

satisfy Chadha test for what constitutes “leg. action”- “altering the legal rights, duties and relations of persons all outside the leg. branch”

b. Power to decide whether alien can be deported can be leg., judicial, or exec. action, just based on which entity of govt. is doing it – even though it’s exactly the same decision

White dissent – functionalist arg. Concl: Leg. veto should be upheld as const. If Cong. can delegate

power to exec. agency, then it also can preserve some of that power for itself thru leg. veto, to check agency’s decisions.

Analysis Con. doesn’t explicitly forbid it. Thus we should interpret

Con. flexibly to allow it. [Textual; Con. logic] Constitutionality of leg. veto should turn on whether it’s

consistent w/ broader purposes of SoP…not on formalistic categories of what constitutes “legislative action” [Functionalism]

Distinguishes this SoP issue from when 1 branch tries to aggrandize itself at expense of another branch;

a. In contrast, leg. veto = attempt by Cong. to preserve its own legit. legislative power, not to take power away from exec. branch

b. Thus, thru leg. veto, Cong. has delegated to AG what is really its own legislative power in the 1st place. This is OK.

Practically, Cong. can’t make every policy decision for every circumst; thus leg. veto serves as Cong. check on exec. branch when Cong. does delegate to it leg. power

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Post -Chadha , sans leg. veto, how can Congress check power it delegates to exec. branch?

1. Oversight hearings Cong. calls exec. . officials to testify before Cong. committees

when agency doesn’t make policy decision Cong. approves of. Committee members canberate officials publically, ask for change of policy;

Exec. officials will often comply, knowing Cong. has ultimate power to pass legislation overruling their decisions, or to retaliate by limiting agency’s future funding

Con: When policy dispute very fundamental, sometimes oversight hearings not enough to change agency policy

2. Reverse agency’s policy decision by statute Cons:

a long, difficult process Even if Cong. can successfully pass law, it will only operate

prospectively, so it may not undo unpopular agency decision NOW…. and Pres. still can veto

3. Power of appointments Senate could stop confirming exec. appointments who are likely

to interp. statutes contrary to Cong. intent Con – prospective; not effective to curb undesirable exec. action

NOW 4. Enact more specific statutes to lessen agencies’ discretion to

interpret statutes Con: Prospective; can’t necc. undo policy decision agency has

already made

Chadha Implications : Since Chadha invalided the leg. veto, Congress’s checks on delegated power to exec. branch very limited. Most of these alt. checks shared w/ another branch, are prospective, and/or are burdensome to do.

Clinton v. New York – Line-Item Veto Issue:

Can Congress authorize pres. to exercise line-item veto, (allowing pres. to sign bills into law, then later selectively disapprove of some of their provisions)?

[ how far does Chadha insistence on formalities for “leg. action” extend?]

Statute at Issue: Line Item Veto Acto (1) Cong. would bass budget bill; o (2) then pres would sign it;

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o (3) within 5 days post-signing bill into law, pres. had unilateral power to cancel out budget & spending provisions in the bill

o Addressed politically unpopular “pork”/earmarks - check on Congress’ power to get them into budget bill

Concl: No. Since Line-item Veto Act allows pres. to repeal law that Cong. already has enacted, which is leg. power, it must comply w/ Art. I § 7 formalities. Since it doesn’t here, unconst.

Analysiso Line-item veto power is like allowing pres. to repeal portion of

already enacted law, b/c it authorizes pres. to cancel items in spending bill only AFTER he’s signed bill into law.

Repeal of enacted law = “legislative action” (Chadha formalism)

“leg. action” requires Art. I, § 7 formalities – (1) presentment & (2) bicameralism

Product of leg. veto = “truncated versions of 2 bills that passed both Houses of Congress. [NOT OK] They are NOT the product of the ‘finely wrought’ procedure the Framers designed [VALID “LEG. ACTION”].

Since these 2 formalities not fulfilled here when pres. invalidates provisions of budget bill, after it’s already law, leg. veto unconst.

o Distinguishes line-item veto, (effectively pres. repealing a law -invalid), to Pres. “returning” bill under Art I § 7 (valid);

returning bill is w/ respect to entire bill, & takes place before bill becomes law

….whereas line-item veto is only for specific provisions of a bill, and occurs after bill becomes law,

o Disting. line-item veto (INVALID) to Cong. authorizing Pres. to “decline to implement” tax measures (VALID.)

Declining to spend under Tariff Act was pres. “executing the policy” that Cong. made in the statute (VALID)

In contrast, line-item veto is pres. “rejecting the policy judgment made by Congress and relying on his own policy judgment” (INVALID)

Even if Congress intended for pres. to make such a policy decision in passing Line-Item Veto Act, it doesn’t matter b/c “Congress cannot alter the procedures set out in Art. I, § 7 [for legislative action] w/o amending the Con.”

o Disting. line-item veto (INVALID) from Cong. authorizing Pres. to “decline to spend” (VALID – Scalia analogizes the two)

Unlike statutes authorizing Pres. to “decline to spend,” line-item veto act gives Pres. “unilateral power to change the text of duly enacted statutes”

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Scalia Part-Concurrence, Part-Dissent - Clinton v. New York o Concl: B/c line-item veto is an executive action, like declining to

spend, no Art. I § 7 violation (formalities required for leg. action), thus should be upheld. [formalism]

1. Cong. authorizing pres. line-item veto is effectively the same as Cong. authorizing pres. to “decline to spend” ( const.)

2. If there’s any SoP defect w/ Line-Item Veto Act, it’s under N.D.D., NOT under Presentment Cl.

o Analysis 1. Analogy between “line-item veto” and statutes that authorize

pres. to “decline to spend” / use his discretion to spend $ on a particular item (VALID)

For line-item veto, Pres. must sign whole law that Cong. presents , and that law will have complied w/ Art. I § 7 bicameralism & presentment;

Then pres’s line-item veto of any provisions after he signs bill (really his decision to “decline to spend” an item of the Balanced Budget Act”), = pres. validly exercising decline-to-spend authority Cong. has delegated to him by statute

2. NDD issue NDD: Cong. can delegate policymaking auth. to exec.

branch. as long as there’s “intelligible principle” to guide exec. discretion

Under Line Item Veto Act, before Pres. could cancel spending item, he had to first determine whether the cancelation will:

o I. “ reduce the budget deficit”? Not really an intelligible principle b/c

there’s no cancellation pres. could make that would not reduce the budget deficit

o II. “not impair any essential govt. functions?;” AND

What constitutes “essential govt. function?” Not an I.P.

o III. “ Not harm the nat’l interest” This = subjective policy decision; NOT an

“I.P.”

Breyer dissent- [ functionalism] o Concl – Line-item veto should be upheld as Const.o Analysis –

It’s Const. (albeit impractical) for Congress pass each individ. appropriation/earmark in sep. bill, subject to a separate pres.

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veto. If it’s const. for Congress to achieve same result as line-item veto this way, then line-item veto is const.

Problem w/ this arg. – false analogy between passing each appropriation separately , then pres. vetoing each individually, & line-item veto.

Only way for earmarks to exist is as product of intricate quid pro quo compromises; allows them to be buried in big omnibus Budget Bills

In contrast, earmarks would never survive as individual bills b/c too visible to the public politically unpopular as waste;

G. Congressional Control: Executive Officers (Appointment & Removal Powers)

1. Appointment Power o Text: Art. I § 2 Cl. 2 –

Pres. role - “[Pres.] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. . .all other Officers of the United States.. . . .”

Senate can reject pres. appointee nominees for “officer” positions through “advice & consent” power

Cong. role - “ . . .but the Cong. may by Law vest the Appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.“

Cong. may (but need not) vest in the Pres. the power to appoint “inferior officers”

Limits on Congress’ Power to Control Appts.:o When can Congress limit Pres.’s authority to control his subordinates

by vesting appt. power in someone other than the pres.? Depends on whether official whose appt. is at issue is “officer” or inferior officer”

Morrison v. Olson – Appts. Cl. allows Cong: A. to vest in the courts the power of appointing inferior

officers (ex. independent counsel/prosecutor), and B. to give the cts. some discretion in defining the nature

and scope of the appointed officer’s jurisdiction

o Cong. CANNOT assign to itself, or its members, power to appoint “exec. officers” (Buckley v. Valeo –)

2. Removal Power – Can Congress by statute limit Pres.’s control over exec. branch through firing?

Not in Con. text. [Unlike Congress’ role in appts., see above]

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However, Con. not completely silent- gives House impeachment power for civil officers

Paradigm cases- 1. When Cong. seeks to assign to itself removal power of exec.

officials by means other than impeachment; 2. When Cong. tries to limit permissible grounds for pres. to

remove exec. official (ex. very restrictive “for cause” provision) Exec. vs. non-exec. officials? –Hard to reconcile. Myers & Humphrey

Myers applies to restrictions on Cong.’s removal role for some purely exec. officials

Humphrey applies to restrictions on Cong.’s removal role for non-exec. officials (quasi-judicial or quasi-leg. officials, like FTC commissioner)

*Together, the 2 cases don’t answer Q. whether Cong. can limit Pres. authority to remove exec. officers, even if it does not preserve a role for itself in the removal process.

Current state of doctrine on Congress’s role in removal of exec officials

1. Myers, Bowsher Rule: Cong. may not reserve to itself power to remove an “executive” official.

o A . What is “exec. official?” Depends on how important that exec. official’s duties are to pres.’s ultimate responsibility to execute the laws

o Ex. Comptroller Gen. is executive official (Bowsher)

o B. Morrison qualification: ….But Cong. can limit the President’s pres.’s power to remove an official by limiting Pres.’s power to remove to “good cause,” so long as limit. doesn’t practically .”trammel on executive authority”

Ex. Cong. can limit AG’s & by extension Pres’s ability to remove independent counsel (thru for-cause-removal statutory provision, which did not practically trammel on exec. authority) (Morrison)

[Unclear how far this limit actually goes]

2. Congress may not restrict Pres.’s ability to remove a principal officer if that officer, in turn, is restricted in his ability to remove an inferior officer who is responsible for determining policy and enforcing laws.

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o (Free Enterprise Fund – impermissible that there were 2 statutory layers of barriers to exec. removal, both “for cause” in extreme circumsts.)

Myers v. United States (1926) Issue: Can Congress reserve to itself power to remove an exec.

official? (Here, Postmaster of Portland, Or. ) Concl . NO. Statute invalid b/c Pres’s power to remove

executive officers is incident to the power to appoint.o *Marks peak of exec. power to control exec. officials

- Statute at issue- “Postmasters of the 1st, 2nd, and 3d classes…may be removed by the Pres. by and with the advice and consent of the Senate….”

- Facts: Senate did not consent to President’s removal of Portland OR Postmaster during his term.

Rule-o Framers envisioned strong executive. Art. II vests all exec.

power in pres to “take care that law be faithfully execute,” then pres. must have sole removal power – for both inferior and superior exec. officers (425)

o Absent any express limitation in Con. for pres. removals, just as his appt. of exec. officers is essential to pres.’s execution of the laws, so is removal power.

o However, Cong. CAN limit pres.’s power to fire inferior officers

o [Subtext: Theory of the Unitary Executive- arg. for unfettered pres. removal power:] Pres. electorally accountable to voters; whereas actions

of his subordinates, agency officials, only indirectly accountable by electorate voting for pres. If pres. can’t fire exec. officials for doing bad things, no electoral control over their decisions

B/c Con. vests exec. power in the pres., he must have control over anyone charged w/ executing the law; thus, Cong. CAN’T limit pres.’s power to control (incl. to remove) exec. officials.

Analysis Postmaster of Portland, OR exercises exec. power . “w/ advice and consent of Senate” limitation” on

Pres.’s Postmaster removal authority = direct Cong. role in removal, Cong.’s effort to reserve to itself power to remove postmasters

Humphrey’s Executor v. United States

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o Issue- Can Cong. limit Pres.’s power to remove FTC commissioner? (Are FTC commissioners “principal” or “inferior” officers pursuant to Appointments Cl. precedent)?

o Concl: Yes. Whether or not Cong. can limit Pres. removal of official depends on “character of the office.” While Cong. cannot restrict pres.’s power to fire exec. officers (Myers), it CAN limit Pres.’s power to remove non-exec. (here, quasi-legislative or quasi- judicial) officers

o Statute at Issue – limited Pres. power to remove commissioner except in limited, specifically listed circumsts.

[Contrast w/ Myers statute]- Whereas Myers statute said Pres. could remove postmaster w/ “advice and consent of the Senate “(direct Cong. role in removal); Humphrey statute did NOT provide for direct Cong. role in removal

Why is Cong. trying to limit circumsts. when pres. can fire? FTC designed as independent agency to promote fair competition in trade; Cong. trying to insulate FTC officials from New Deal/politically-motivated pres. removal

o Analysis – [FORMALISM} Rejected Myers unitary exec. theory; but didn’t completely

overrule- distinguished it Myers about purely exec. officials (postmaster of OR stands

for narrow principal that pres. has unfettered removal power over executive officials only

Here, in contrast, FTC commissioners, are NOT exec. officers, but rather quasi-legislative or quasi-judicial officers

Thus, for these kinds of non-exec. officials, pres. does NOT have unfettered removal power under Myers. Cong. CAN limit pres.’s removal power for FTC commissioners

Implications: Humphrey’s Executor Ct.’s formalistic distinction

between quasi-leg, quasi-judic (non-exec.), and purely exec. officials is impracticable.

This superficial, formalistic reasoning = obstructionist effort to undermine FDR’s New Deal…(same Ct. that struck down only 2 Cong. statutes ever invalided under NDD doctrine )

Bowsher v. Synar (1986) – compare Myerso Issue: Can Congress limit pres.’s role in removal of Comptroller

General? (Depends on whether he’s exercising legislative or exec. power)

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o Concl: Cong. CANNOT, as it does in this statute, reserve for itself power of removal of an officer charged w/ execution of the laws, except by impeachment under SoP principles. (Affirms Myers)

o Statute at Issue: Aimed to balance the budget. Required Comptroller General

(CG) to exercise discretion in reconciling budget projections from Cong.’s & pres.’s respective budget offices

Then Comptroller Gen. was to determine which budget cuts necc.; then pres. had to follow that decision

**Cong.’s removal role: Cong. could remove CG ((1) by 2/3 supermaj.), but only (2) for cause and (3) by joint resolution passed by both houses [direct Cong. removal role]; then removal subject to pres. veto

o Analysis [formalism ] 1. Cong. cannot supervise (remove) executive officers. 2. CG is executive officer

CG must prepare report containing detailed estimates of projected fed. revenues & expenditures; report also must specify program-by-program reductions necc. to reduce deficit for given yr.

This process requires CG to exercise independent judgment to evaluate estimates from Pres.’s and Congress’s respective budget offices, & to determine precisely what budgetary calcs. Are required

3. Statute reserves to Cong. power to remove CG

o White Dissent-functionalist Suggested test: Would statute allowing Cong. to remove CG for

cause so alter allocation of authority among the branches as to actually threaten pres. authority?

App: No. These features of the CG removal provision vitiate concerns that Cong. removal will disturb exec.-leg. power balance in practice:

Statute limits Cong. removal only for cause- in ltd. circumsts. –

Statute provides for substantial Pres. role in CG removal - presentment, veto

2/3 supermaj.Cong.- more than that required to impeach & convict any other exec. official- required to remove CG

Morrison v. Olson (1988) o Statute at issue - independent counsel removal & appointment

provisions AG to investigate alleged exec. misconduct;

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*Appt. Provision- issue1 *: If that investigation gave him suspicion that exec.

official violated law, newly created “Special Division” of D.C. Cir. (3-judge panel) would appoint independent counsel (prosecutor)

AG would then define independent counsel’s prosecutorial jurisdiction over the case

*Removal provision- issue 2: AG gen. could only fire independent counsel for cause, in VERY limited circumsts

(Response to Watergate – Nixon removed 2 AGs to effect firing of special prosecutors via new Nixon-appointed AG)

o Olson’s challenge: defects in statute: 1. Appointment provision Violated Appointments Cl. 2. Removal provisions encroached on pres. authority; 3. Statute as a whole violated SoP principles

o Issue 1: Is independent counsel inferior or principal officer for purposes of determining validity of appointment provision?

A. If she’s principal, statute’s appt. provision is unconst. b/c pres. didn’t get to appoint her.

B. If she’s inferior officer, can Cong. vest in 3-judge Special Division power to appoint the indep. Counsel?

o Appts. Cl. 1. “Officers” (principal officers) must be appointed by pres,

subject to advice & consent of Senate; 2. Cong. can vest power to appoint inferior officers in exec.

depts.. OR cts. of law o Analysis 1 - Test to disting. between inferior or principal officer

for appt. power purposes: 1. Is officer subordinate to any other officer? [Most imp. Q.]

Here, yes; her removal subject to higher Exec. branch official – AG

2. Is scope of her duties narrow or broad? Here, narrow- Duties restrict to investigation and poss.

prosecution of certain fed. crimes; No power to formulate policy for exec. branch; No admin. duties outside of “those necc. to operate her

office” 3. Is office ltd. in jurisdiction?

Here, jd. restricted in inapplicability to certain fed. officials suspected of certain serious fed. crimes ;

Jd. limited by Special Division pursuant to AG request 4. Office limited in tenure

Here, indep. counsel position temporary

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Problem w/ Morrison Test: Yields absurd result that relatively high officials are still “ inferior officers”– not so helpful

o Concl. 1: Indep. Counsel is inferior officer [so Congress can vest appt. power in either Pres. alone, heads of depts.., or Judiciary]

Issue 2: Even if appellant is inferior officer, does Appts. Cl. allow Cong. to vest the appt. power in another branch (newly created Special Division 3-judge panel)?

Analysis Text- Appt. Cl. does not limit interbranch appts. Hist- no debate at Con. Convention whether Appt. Cl.

allows Congress to make interbranch appts. Analogy between Special Division’s appt. of Ind. Counsel

and Fed. Cts.’ appt. of private attys. to act as prosecutors for judicial contempt judgments

Concl 2- Yes. Such interbranch appts. by Congress are permitted by Appts. Cl, , as long as there’s no incongruity between the functions normally performed by the courts and the performance of their duty to appoint,

o Issue 3– Is removal provision (Cong. limiting AG to remove I.C. only for “good cause”) valid?

o Concl 3- Yes. Here, Congress’s “good cause” limitation on AG’s (and by extention, Pres.’s) power to fire I.C. does not actually impede pres’s executive Con. authority.

o Rule- Qualifies Myers and Humphrey –[functionalist] Sometimes Cong. CAN limit pres.’s removal authority (Myers)… Whether such a Cong. removal limitation is valid turns on

whether the removal restriction actually impedes pres.’s ability to perform his con. duty./exec. functions….NOT whether official is “executive” or “quasi-leg./judic.,” (rejects formalist Humphrey’s Executor, Myers dichotomy).

o Analysis 3- Even though I.C.’s prosecutorial powers of enforcing law are clearly “executive,” as a practical matter, she has ltd. jurisdiction & tenure, and has no policymaking & admin authority. Thus, she practically DOES NOT impede pres.’s con. executive duties.

Scalia Dissent - Focuses on removal provision-[Formalistic Arg.]o Concl – Maj. should not have validated statute’s restrictions on Pres.’s

(via AG’s) power to remove the I.C. o 1. Appt. Cl.

Ind. Counsel = principal officer b/c she’s not subordinate to any other exec. officer.

Principal officers can only be appointed by Pres. w/ advice and consent of the Senate

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Here, statutes makes I.C. appointed by Special Division. This Con. defect alone makes appt. provision invalid

o 2. Unitary Executive Theory* - Art II, Sec. 1, cl. 1- “The exec. power shall be vested in the Pres.” This means ALL, not just some, of the exec. power

Thus, statute must be invalidated if: 1. Independent cousnel’s duty of crim. prosecution =

purely exec. power 2. Statute deprives Pres. of the U.S. of exclusive control

over the exercise of his exec. power Here,

1. Pros. of crime = exec. function 2. Statute reduces pres. control over executive activity

of fed. crim. prosecution Thus, pres. has exclusive authority over I.C., incl..

removalo 3. Maj. gives no guidance for how to balance pres.’s need for control

over laws’ execution (through appt./removal) and Congress’ interest in preserving independence of the I.C. by limiting Pres’s removal power (via the AG)

o 4. Even absent Cong. ability to limit pres.’s removal power, in practice, there are still other checks on pres’s removal power: [functionalist]

Political Check- Pres. still accountable to voters Impeachment- Cong. can impeach executive who willfully fails

to enforce the laws o 5. Concerned about Special Division being politically partisan, and

appointing I.C. accordingly, who has it out for exec. official under investigation (predicted I.C. Kenneth Starr’s investigation of Clinton)

Free Enterprise Fund v. Public Co. Accounting Oversight Board (2010)o Statute at issue:

Congress created oversight board to supervise accounting industry.

SEC can only remove Board members “for good cause,” only for narrow class of egregious official conduct

SEC commissioners have similar protections for their positions – strict limits on Pres’s power to remove them, except in acses of egregious official conduct

In summary: Pres SEC Board, [each is a removal limit layer- for good cause only)

o Concl- multilevel removal limits (“for cause”) invalid, undermine Art. II’s vesting of exec. power in the pres.

o Analysis - 2 or more layers of removal limits dilute pres. control over exec. officials too much.

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