Download Currie 9 (2002)

Constitutional Law I Outline
I.
History
a. 1776—Declare Independence. Send delegates to self-appointed
Continental Cong..
b. 1777—Proposed Articles of Confederation
i. Art 2: States retain their sovereignty and all powers not expressly
delegated to US.
1. 10th Am. is successor—providing that all powers not
delegated to US or prohibited in the states shall vest in the
states.
2. Imp. difference b/n Art 2 and 10th Amend – Word
“expressly” disappears in 10th Am. meaning that there are
implied powers under Const. that weren’t present under
AofC.
ii. Art 3: Several states shall come together to form a league of
sovereign states.
1. States create leagues.
2. People create a Const. (Preamble: “We the People of the
United States…”) so this is very different
iii. Art 4: Interstate comity –Direct ancestor of Art IV of Const. One
state isn’t a foreign country to another state. Include FFCC (respect
laws/judgments of another state), P&I (give citizens the same
privileges and immunities that you give to your own citizens) and
Extradition Clause (send criminals back to the state where they
committed the crime).
iv. Art 5: Delegates from the states are selected by the state
legislatures. Expressly subject to recall by the state legislatures and
not fed’l officials. They are representatives of state govts. Often
instructed by states to vote certain ways.
1. Part of this was preserved in the Sen. b/c Senators
originally chosen by state legis. and not the people until
the17th Am.
v. Cong.:
1. Every state has equal vote. Imp. decisions required 9/13
vote—a supermajority requirement that hobbles Congress
2. Powers:
a. Military and foreign affair powers
b. Federalization of money
c. Fed’l post office.
vi. Exec.: Didn’t really exist. (Art IX)
1. Prez was chosen by Cong. and was the presiding officer of
Cong. – No separation of exec. from legis. under A of C –
it was unitary system.
2. Some Secretaries existed. Operated expressly under the A
of C at Cong.’s direction.
vii. Judiciary: Didn’t really exist. (Art IX)
1. No Supreme Ct.
2. Three Types of Fed’l Judges/Three Minor Classes of Cases
w/ Minor Jud. Power:
a. Cong. could choose judges to resolve interstate
boundary disputes
i. Exists today but not subst. part of fed’l jud.
powers
b. Cong. established cts. to deal w/ crimes on the high
seas.
i. Exists today but not subst. part of fed’l jud.
powers.
c. Cong. had power to set up appellate cts. for prize
cases (i.e., captures on high seas).
i. State cts heard the prize cases in the first
instance and a fed’l ct. reviewed the
judgment of the state ct.
ii. Imp. precedent value b/c even under A of C
contemplated that sometimes fed’l ct. would
hear appeal from state ct.
viii. Problems under A of C Addressed in Const Convention –Some
powers notably missing under A of C:
1. Marriage of convenience to fight against England.
a. No fed’l power to tax.
i. Made requisitions on indiv. states. Rich
states paid more b/c not based on
population.
ii. Central gov’t dependent on states for
support of its operations. Fed’l gov’t always
short of funds b/c some of the states didn’t
pay their share.
2. No Bill of Rights
a. Some limitations on states designed to preclude
state interference w/ operation of Cong. States were
excluded from international functions b/c needed a
unified command in relations w/ foreign powers.
3. Lack of Fed’l authority to regulate foreign and interstate
commerce
a. No common market and states were erecting tariffs
on other states. No effective way of retaliating
against restricting foreign taxes and regulations and
no way to stop states hurting each other.
4. Wanted more foreign power vested in fed govt.
a. Principle of Subsidiarity: If states can’t do it
effectively, then power belongs to fed’l gov’t (e.g.,
foreign affairs, war, currency, post office, regulation
of interstate and foreign commerce). Worried that it
was too vague so went w/ enumeration that really
specified this principle.
5. Enumeration of Fed’l Powers under Art. 1 § 8—
bankruptcies, patents, copyrights, power to tax, regulate
commerce w/ foreign nations, indian tribes and among
several states and the necessary and proper clause.
6. Stronger Exec. that isn’t beholden to Cong..
7. Didn’t want Cong. to choose Prez b/c then there’s no
separation of powers. Didn’t want people to choose b/c not
smart enough. Created Electoral College. (silly system but
have an independent Prez)
8. Stronger Judiciary not beholden to Cong..
a. Wanted independent judiciary w/ much expanded
powers from A of C.
c. 1781—Last of 13 colonies ratify A of C when VA finally agrees to cede
rts. to Western lands to fed’l gov’t leading to the Northwest Ordinance.
d. 1786—Annapolis Convention—Results from lack of fed authority to
regulate commerce.
e. 1787—Philadelphia Const. Convention—All states but RI
i. Controversies at the Const Convention:
1. Controversy b/n large and small states over representation
in Cong.
a. A of C/Small States: Equal representation for the
states.
b. Large States: Representation based on population
c. Compromise: Equal representation in the Sen. and
Population representation in the House. Each State
has two electors (no. of senators) plus the number of
people in the House.
i. Carries over to default provision that if no
one gets the majority in a presidential
election, have a tie breaker in which House
votes but each state has only one vote. –
Small states more say that population would
dictate.
2. North/South Division On Slavery
a. Should slaves be counted under apportionment of
representatives in the House?
i. South: yes b/c they will increase our
representation.
ii. North: no b/c treat slaves like property.
b. Should slaves be counted for taxes?
i. South: no.
ii. North: if include them in representation,
then should include them for taxes.
c. Compromises:
i. 3/5 Clause: Both taxes and representation
based on population. Slaves for both
purposes were counted as 3/5 of a person—
somewhat advantageous for the North and
somewhat advantageous for the South.
ii. Came to head b/c direct taxes rarely done
and so South got extra representation w/o
paying the money (b/c of indirect taxes)
iii. Fugitive Slave Cl.: if slave escaped from one
state to another, slaves like fleeing criminals
must be returned. Fugitive Slave Act passed
based on this.
1. clause lifted from northwest
ordinance
iv. Cong. can not prohibit the importation of
slaves before 1808.
v. Ban on export taxes from states: Designed to
protect states from discr. measure against
the exportation of cotton/tobacco (products
primarily grown in the South).
ii. Objections to Const. Legitimacy and Legality:
1. States appointed these delegates for the express purpose of
amending the A of C. But never talked about. Instead they
wrote a new Const.
a. Maybe delegates didn’t have the authority but if we
wrote it and if you want it then you can ratify it so
that it has full force. If you don’t like it, then don’t
ratify.
b. Which portion couldn’t they amend?
2. A of C said that they would be perpetual unless they were
amended by ratification by all 13 states’ legislatures. New
Const. took effect in violation of A of C b/c only had to
have 9 conventions (not legislatures) ratify it. If going to
amend, should go through the A of C process or amend that
process.
3. Counter-Args.:
a. Policy arguments:
i. We can’t let RI frustrate this effort for a
stronger union—avoid hold-out problem
1. Cong. pressured NC. RI didn’t ratify
until 1790 when Sen. passes bill
saying that it prohibited all trade w/
RI until it ratified the Const.
ii. Conventions adds democratic legitimacy and
are more likely to ratify than the state legs
that are called upon to shed powers
iii. New constitution wouldn’t be a mere
compact/league among the states—but
rather the founding of a new nation that
won’t be subject to dissolution by one
state’s breaching the agreement (later
became an important argument against
secession)
b. Legal Arg:
i. Didn’t have to obey A of C’s amendment
provisions b/c it was K and once a state
broke it by not paying taxed then the whole
thing dissolved.
c. Natural law justification:
i. Theories about consent of the governed, the
ability of a people to decide their own form
of gov’t – the right to abolish bad forms of
gov’t.
1. These arguments contain w/in them
the seed of arguments in favor of
secession.
ii. Randolph: this isn’t legal but we must do
something b/c it’s a serious situation
iii. John Locke: rt. of people to abolish bad
govt. Have to be careful b/c if too whimsical
w/ it than abolish stability of new const.
iv. James Wilson: Revolution so let’s get
serious.
f. 1788—Const. Ratified
g. 1789—Const. in Effect
i. Art. IV: Direct successor of Art 4 of the A of C.
ii. Art. VI: Supremacy Clause
iii. Art. I, §8, cl. 9: Necessary and Proper Clause has no predecessor in
A of C.
h. 1791—Bill of Rts. Passed
i. Two Amendments prior to Civil War. Three Amendments result
from Civil War (13, 14, 15).
ii. 26 Amendments b/c 27th Am. isn’t really part of the Const.
although prez says so.
1. Arguably, the 27th amendment is not valid, b/c the 3/4ths
didn’t ratify the amendment until 200 yrs after it was
proposed: constitution imagines a consensus to ratify (thus
requiring 3/4ths of the states), so if it takes 200 yrs to
cobble together 3/4ths of the states, there’s no consensus.
II.
Judicial Review
a. Marbury v Madison, 1803. Midnight judges, Marbury sues for writ of
mandamus under Judiciary Act of 1801 in USSC. Held: Congress’s grant
of original jurisdiction over actions for mandamus violates Art III § 2;
USSC lacks subject matter jurisdiction.
i. Establishes judicial review of actions of Congress
1. Judiciary Act of 1801 confers original jurisdiction over
mandamus actions in USSC
a. Dicey reasoning: structurally bizarre reading (writs
of mandamus appears w/in and applies to sentence
spelling out USSC’s appellate jurisdiction), and
confuses the grant of a power to grant relief w/ the
grant of jurisdiction.
b. Why go out of way to construe statute to create
constitutional question?
i. Usual practice is to construe statute to avoid
constitutional question (see, e.g., Mossman
v Higginson, an 1800 case that turned on a
different provision of the judiciary act of
1789. Two citizens of different foreign
countries sued each other. The judiciary act
of 1789 gave alienage jurisdiction to cases
in which an alien is party. We wouldn’t
expect the court to uphold jurisdiction, b/c
art III § 2 only gives jurisdiction to cases
between the citizen of a state and an alien.
Assuming the court follows the approach of
Marshall in Marbury, we’d declare the
statute unconstitutional. But what actually
happened is that the USSC interpreted the
statute narrowly to avoid the constitutional
question)
ii. Why would the court adopt a narrowing
construction rather than declare the statute
unconstitutional?
1. b/c you assume other branches
wouldn’t consciously enact a statute
that’s unconstitutional (look to the
oath the other branches swear);
hence, they meant to adopt the
narrower version of the statute. This
is a courtesy to other branches (it
effectively declares a statute
unconstitutional w/out saying that
it’s unconstitutional).
iii. Difference between adopting a narrowing
construction to avoid unconstitutionality and
canon of statutory construction to avoid
constitutional questions:
1. In Mossman, the ct effectively
decided the constitutional question;
the canon of statutory construction is
to even avoid having to decide the
constitutional question. The effect is
to tell Congress, “well, if you want
to go up to the line of the
constitution, you’ll have to say it
very explicitly.” (a clear statement
rule)
2. In Mossman, they at least interpreted
the statute honestly, and then
narrowed it after deciding the
constitutional question. The canon
of statutory question just tries to
avoid deciding constitutional
questions and so avoids interpreting
congressional statutes honestly.
2. That grant of jurisdiction is unconstitutional b/c Congress
can’t enlarge jurisdiction of USSC beyond that in art III—
can’t make appellate where original and vice versa
a. Dicey reasoning: what about the exceptions clause?
Why are not the two cases mentioned in art III § 2
([1] cases affecting ambassadors and [2] cases
where a state is a party) as being original
jurisdiction a constitutional minimum (given their
importance) rather than a maximum to USSC’s
jurisdiction.
i. b/c the beginning of the sentence says that
the exceptions clause applies only to “all the
other cases” (and hence not to original
jurisdiction cases)—and b/c it’s in the 2nd
sentence and only applies to that sentence.
b. He has to take this back in Cohens v VA, where
USSC took appellate jurisdiction over a case where
a state was a party—this has to be so, b/c otherwise
you couldn’t step in to correct lower courts that
usurp USSC’s original jurisdiction.
c. In light of Cohens, the holding of Marbury is that
Congress cannot add to original jurisdiction
d. Arguments for judicial review:
i. Structural and policy and framers’ intent
arguments:
1. Supremacy of constitution
a. Who decides? But by passing
the statute, Congress has
decided that the statute is
constitutional; why should
courts second-guess the
legislature’s judgment?
2. Notion of limited gov’t requires
checks and balances
a. This is the rebuttal to
objection to supremacy
clause argument. you need
someone to check the
congress’s judgment; besides,
they’re biased in the process
b/c questions of
constitutionality have to do
w/ congress’s power—it’s the
rabbit guarding the cabbage.
Founders wouldn’t have
created prohibitions on
congress w/out any body to
enforce those limitations
b. But why can’t this be a role
fulfilled by federalism? That
is, the states could do this—
nullification. Or the prez—
refuse to execute
unconstitutional laws (the
“Take Care” clause). Or
public choice theory
(electoral check).
i. Judicial review has
several advantages,
though: much more
likely to be effective,
can be retroactive,
less lag time than to
election date
c. And if we go w/ judicial
review, what’s the check on
the court to make sure it
doesn’t eat up the powers of
Congress? Impeachment?
Amending the constitution
(11th am [Chisholm], 14th am
[Dred Scott], 16th am
[Pollock])? Abolishing the
court (conflict between Art
III congress makes inferior
cts and Art III judges have
life tenure)? Appointment?
That’s so nebulous—it’s the
fox guarding the rabbit. And
to the extent that we find
these checks, then the court is
so feeble, so much a paper
tiger, that it can’t perform the
function of judicial review.
i. Or are we to find that
these checks are “just
right”: the little bear’s
bowl of porridge…
3. Judicial power is to decide
controversies; duty of the court to
say what the law is (Deciding cases
means having to choose what of
many conflicting rules applies to
particular case)
a. Question begging: But what
if the law is that there is no
judicial review? Then the
judge must apply that rule
and refuse to look at
constitution; hence, we can
see that this argument of
Marshall assumes the
existence of judicial review
4. Notion of a written constitution
a. And can’t there be written
constitutions w/out judicial
review (e.g., France)?
b. Also, who decides?
ii. Textual arguments
1. Judicial oath (art VI)—judges have
to swear to uphold the constitution
a. But Congress had to take the
same oath, so why not defer
to their judgment? Why is it
the court then instead of the
congress that interprets the
constitution? But that’s not
what Marshall is saying—
Congress is free to decide
about what is and what isn’t
constitutional, but the courts
have an equal responsibility
to do the same
b. What is your duty to do your
duty? Circular reasoning….
2. Article III—arising under the
constitution jurisdiction. Cts decide
cases or controversies, and part of
that deciding involves choosing the
law that governs a case. And if it
decides cases arising under the
constitution, then they get to decide
what it means.
a. This suffers from same defect
as the judicial power
argument above: it’s circular
3. Supremacy clause: in the supremacy
clause, the constitution itself is first
mentioned, and not the “laws of the
united states generally.” Hence, not
all those laws that Congress passes
are Supreme; only those made in
pursuance of the constitution
a. The Supremacy clause refers
to “This Constitution,” not
“the Constitution”; the
Clause is merely a repeal of
the statutes made under the
articles of confederations, but
treaties made under the
articles of confederation are
not repealed. The purpose of
the clause (looking at it in
contrast w/ the treaties
provision) is chronological,
not hierarchical—it
distinguishes old laws from
new laws, not supreme laws
from bad laws.
i. Justice Black fixes
Marshall’s error in
Reid v Covent
iii. Tradition—not used by Marshall in Marbury
1. There’s lots of precedents for it:
from Britain, in the colonies, earlier
state courts, etc. A federal court
struck down a federal statute in
1792, even. Tradition supports
judicial review. Despite any
theoretical weaknesses in the
doctrine, it is solidly accepted and so
on and so forth.
2. Legislative history often looked to
for intended effect of words—
Framers intended judicial review.
Ratification conventions/Federalist
Papers/Convention docs indicates
that framers intended judicial review
so don’t have to speculate on what
they might have meant.
3. Precedent: USSC itself exercised
judicial review:
a. Ware v Hylton: USSC struck
down state statute
(confiscating debts owed
British subjects) in violation
of fed’l treaty
b. Hylton v U.S.: USSC upheld
carriage tax; no challenge to
their power to have struck the
tax down if unconstitutional
c. Hayburn’s Case: Advisory
opinions by USSC justices
riding circuit challenged
constitutionality of law
requiring judges to hear
pension benefits claims
(subject to veto by Sec’y of
Treasury). Cong. amended
the law to make it consistent
w/ USSC’s interpretation and
didn’t try to challenge the
power of judicial review.
Country accepted that Const
intended to provide for
judicial review.
ii. Establishes judicial review of executive/administrative actions
(dicta)
1. Marbury has right to commission—right is vested b/c “all
that had to be done was done.”
a. But what about delivery; e.g., for a deed to be
effective, it has to be signed, sealed, and delivered?
2. Sec’y of State can be directed by mandamus in an area that
is not depending on executive discretion, but rather on
particular acts of congress and the general principles of
law. The idea is that if act is in executive discretion, then
there’s no right that could be infringed.
a. Takes source from Blackstone; the c/l standard had
been codified in the judiciary act.
b. Origin of Political Question doctrine—If Sec’y had
discretion, this would have been “Questions in their
nature political,” and USSC wouldn’t have
interfered. If exec. or leg. acting w/in their political
discretion can’t be violation of law or Const.
iii. Two views of Marbury:
1. Strong Marbury—Judicial Guardian Idea: Strong view of
judicial review as crucial in checks and balances. USSC is
intended to enforce the Constitutional limitations on other
branches. Not a byproduct of the business of deciding
cases. It’s one of the crucial checks and balances intended
by the framers. USSC Must exercise judicial review as
important check on leg. (and exec.) action.
2. Weak Marbury—Clean Hands Notion: Judges must obey
the Constitution in the case before them; i.e., judges can’t
act unconstitutionally. They can’t enforce unconstitutional
laws so must decide if law is unconstitutional. USSC must
have power to decide case/controversy before it and must
follow Const/law of US when doing so.
iv. Early interpretive strategies
1. In Marbury:
a. Court looks to the text of the Constitution
i. Relies upon the negative implication of Art
III’s positive grant of original jurisdiction in
two kinds of cases. Expressio unius.
b. Court looks to the structure of the Constitution
i. Conclusions drawn from the fact that it’s a
written Constitution, that it imposes
limitations (and he infers someone to
enforce those limitations)
c. Consequentialist arguments
i. If one interpretation leads to absurd results,
then it could not have been intended.
(Rabbits and cabbages).
2. Other early cases
a. Chisholm v. Georgia: original action in USSC,
citizen of SC sues GA. Textual analysis fits like a
glove—Art III permits this. Text prevails.
i. Tradition would have found that the
sovereign wasn’t subject to suit, and the case
would’ve come out the other way.
b. Calder v. Bull: constitutionality of state practice in
which a state legislature set aside state court’s
decision in a will case by passing statute.
Argument: this is an ex post facto law. USSC: no it
isn’t; ex post facto only applies to criminal law,
according to tradition (citing Blackstone).
c. Hylton v. United States: is a carriage tax a direct
tax. USSC: upholds the carriage tax. Didn’t refer
to tradition of what a “direct tax” is. Went with the
consequential argument: “it would be foolish to
apportion the carriage tax among the states; some
people would have to pay huge taxes…”
v. Judicial review of state court judgments
1. Martin v Hunter’s Lessee, 1816. Judiciary Act of 1789, §
25, gave USSC jurisdiction over state-ct judgments denying
fed’l rights. Dispute over VA land owned by Brit and
seized by VA; VA ct. held for P, and USSC reversed,
finding that the VA statutes. On remand, the VA court
refused to obey the mandate, holding that § 25 of the
Judiciary Act of 1789 was unconstitutional. Held: USSC
can constitutionally exercise appellate jurisdiction over
state-ct judgments denying federal rights
a. Textual arg: b/c federal questions can come up as
defenses in state actions, the only way for federal
power to reach “all cases” arising under federal law
(as arguably required by Art III) was for federal
courts to assert appellate jurisdiction over state ct
cases
i. VA ct had anticipated this and argued that
this would mean giving USSC appellate
jurisdiction over French cts
b. Precedent arg: This is way Constitution always
understood; even done under Articles of
Confederation in prize cases
i. VA ct isn’t like French cts; this is appellate
review inside of federalism system
c. Consequentialist argument—need for uniformity of
decisions
i. It would be absurd to trust all fed’l
rights/treaties/etc to state courts: state
prejudices are presumed to sometimes
obstruct the regular administration of justice
ii. Historical support: Rutledge as a delegate at
the convention said that the reason we need
this power is so we have uniformity of fed’l
law and vindication of fed’l rts.
1. Arg. from purpose of provision –
interpret document in line w/ its
purpose if can ascertain the purpose,
and here, the purpose was to promote
uniformity/vindicate fed’l rights
iii. But this means that fed’l gov’t is arbiter of
own rights—fox guarding rabbits guarding
cabbages… (either result—state ct. or USSC
review—is absurd)
1. Historical evidence: Art III was a
compromise. Some thought
Constitution should mandate lower
fed’l cts, others thought
uniformity/etc could be served by
having appeals of state courts to
USSC. Compromise was to have
USSC and optional inferior courts.
2. Someone has to be final arbiter. Go
w/ USSC—checks and balances w/
other branches will keep it in line.
b. The Responsibility of Other Branches
i. Legislatures and executives also interpret the constitution, w/ much
debate over whether a proposed bill is constitutional and vetoes of
bills for being unconstitutional
ii. Separate spheres argument:
1. Examples:
a. Jefferson, upon attaining the presidency, pardoned
several convicted under the Sedition Act which he
believed to be unconstitutional. He wrote that it
wasn’t only judges who decide the validity of laws.
Each branch can decide the constitutionality of a
law within their own sphere of action
b. Jackson vetoed the charter of the 2nd bank of the u.s.
for being unconstitutional (despite USSC’s
upholding it in McCulloch v MD). Again, a
separate spheres argument—each branch makes its
own decisions of constitutionality within their own
spheres of action
2. Consistent w/ strong and weak marbury… and adds
additional check on Congress. Hence, prez can decide for
himself whether law is unconstitutional
a. But can’t really decide USSC is wrong in
pronouncing law unconstitutional—must at least
obey res judicata:
i. FDR urged New Deal Congress to pass laws
of questionable constitutionality (i.e., not to
let the constitutionality of these laws affect
their deliberations)—just let the courts sort it
out. He was prepared to argue that
formalistic constitutional decisions
shouldn’t bar him from doing what he’s
doing, for the constitution isn’t a suicide
pact
1. Violates Strong and Weak Marbury
2. If USSC has jurisdiction, must
decide case and follow Constitution.
If the prez disobeys the order, then
he denies the power of the USSC to
decide a case b/c it nullifies the
principle that the ct’s decisions are
binding. FDR threatening not to
follow decision of USSC b/c USSC
decision would bind gov’t
3. Checks and Balances - Disturbs
notion that USSC is a check on the
other branches.
b. Maybe can violate stare decisis, but not res
judicata?
i. In arguing against allowing slavery despite
the Dred Scot decision, Lincoln remarked
that the decision was only binding on a
narrow class of people—Dred Scot and
people situated just as he is. Lincoln argued
for other branches challenging the basis of
Dred Scot so that it can be overturned.
1. In the context of school
desegregation, this was repeated—
but how many times does it have to
be reaffirmed before it is the law of
the land?
2. Violates Strong Marbury but not
Weak Marbury (respects res judicata
but not stare decisis)
a. To the extent that Marbury is
about effective check on
other branches then Lincoln
arguably inconsistent b/c if
carried to the extreme may
impair Ct.’s ability to act as
guardian of Const in
protecting against other
branches’ abuse:
b. Don’t want to force USSC
have to tell everyone that the
ruling applies to them too.
When there’s a direct order
from the USSC, there must
be a way to enforce it
throughout the country w/o
spending jud. resources to
apply it to every party (e.g.,
having to tell Little Rock and
every other city to obey
school deseg announced in
Brown is impairing power of
jud. check.)
3. Presidential authority to decline to execute unconstitutional
statutes—additional (nonjudicial) check on congressional
action
a. Judicial approval: There is judicial approval of this
authority: Myers v US sustained prez’s view that
the statute at issue was unconstitutional w/out any
member of the Court suggesting that the prez had
acted improperly in refusing to abide by it. See also
Freytag v Commissioner (“prez “has the power to
veto encroaching laws … or even to disregard them
when they are unconstitutional”).
b. Textual authority: The Take Care clause and the
prez’s Oath of office are textual evidence that the
prez is required to enforce the constitution above all
other laws. Hence, the prez isn’t limited to
choosing between vetoing a bill and enforcing an
unconstitutional provision in it; the prez can sign
legislation containing desirable elements while
refusing to execute a constitutionally defective
provision.
4. Congress also has the right to say the USSC is wrong if it
isn’t doing something that USSC said specifically Congress
can’t do.
5. Limit on congressional interpretations: Congress can’t
pronounce on substance of Constitution inconsistent w/
USSC precedent:
a. City of Boerne v Flores, USSC, 1997
i. In Employment Div v Smith, USSC, 1990,
the USSC concluded that the Free Exercise
Clause didn’t entitle members of the Native
American Church to an exemption to
generally applicable criminal laws for
sacramental use of the drug peyote.
Disagreeing w/ USSC’s interpretation of
Clause, Congress passed the Religious
Freedom Restoration Act (RFRA), which
forbade any state/fed’l agency to
“substantially burden” the exercise of
religion even on the basis of a generally
applicable rule unless the gov’t could
demonstrate that the burden was “in
furtherance of a compelling governmental
interest” and “the least restrictive means of
furthering it.” This case arose out of a
dispute arising out of the denial of a permit
to modify a church on the basis of a
municipal ordinance declaring the church a
historical landmark.
ii. The USSC rejected the argument that
Congress had power to enact RFRA under
§5 of 14th am., which gives Congress the
authority “to enforce, by appropriate
legislation, the provisions of this article”
(b/c 14th am. incorporates 1st am to the
states—Cantwell v Connecticut (holding
that the “fundamental concept of liberty
embodied in” the 14th am’s due process
clause “embraces the liberties guaranteed by
the 1st am”)).
iii. But Congress only has power to “enforce”
the 14th am; that’s inconsistent w/ the notion
that congress has the power to decree the
substance of the 14th am’s restrictions on the
states. Legislation altering the meaning of
the Free Exercise Clause cannot be said to
be enforcing the clause.
iv. Each branch is controlling in its own
separate spheres of action, but USSC says
what the law is. RFRA usurps judicial role
in controlling cases/controversies.
b. Dickerson v US, USSC, 2000.
i. In Miranda, USSC held that warnings had to
be given before suspect’s custodial
interrogation statement could be admitted
into evidence. Congress enacted law that
laid down a rule that the admissibility of
such statements should turn only on whether
they were voluntarily made.
ii. USSC held that Miranda, being a
constitutional decision cannot in effect be
overruled by statute.
iii. No role for other branches?: USSC is ultimate arbiter
1. Cooper v. Aaron: In dictum, the Ct. said that the Brown
decision is the law of the land and binds people for all time.
Ct. is ultimate arbitrator.
a. How do you challenge this decision and try to have
USSC change its mind?
b. This dictum has been condemned. Distinction b/n
judicial review and stare decisis effects of USSC
d\ecisions.
c. Holding of Cooper is that even those not parties to
litigation are bound by USSC’s constitutional
pronouncements (but Congress/Prez retain their
separate spheres)
2. Should USSC reconsider its own interpretation in light of
Congress’s view and congressional decision contrary to
USSC, given usual deference to Congress? In close case in
which reasonable minds could disagree, should USSC defer
to Congress and Prez that signed the Act? BUT if USSC
going to defer in close cases doesn’t that weaken the
judicial check? (violates strong marbury)
a. This may be divide between judicial restrainters
(e.g., Frankfurter) and activists (e.g., Warren ct).
iv. State power?
1. 1832 nullification by SC of tariff. SC knuckles in when
Jackson threatens to march fed’l troops to Charleston
2. Outside normal checks and balances—inconsistent w/
strong/weak marbury
v. Checks on USSC’s exercise of judicial review
1. Impeachment
2. Removal—Art III § 1 says that judges (including USSC
justices) shall hold their offices “during good behavior”
a. Good behavior
i. John Pickering—first fed judge removed b/c
he’s a drunkard and insane.
ii. Samuel Chase also impeached in an attempt
to see if all the fed judges could be replaced.
Fear was that this was a witch hunt to get rid
of all the federalist judges b/c we didn’t like
their opinions.
iii. Possibly means misdemeanor w/ analogy to
Impeachment Cl. (Art II §4 “Impeachment
for, and conviction of, treason, bribery, or
other high crimes and misdemeanors.”) BUT
“good behavior” doesn’t imply crime like
“misdemeanor”.
iv. Doesn’t mean disagreement or not liking
their decisions – judges aren’t easily
removed.
1. If you can remove judges b/c you
don’t like their decisions, it may
impair a judge’s ability to fearlessly
and impartially decide a case – may
impair power of judicial check and
ability of ct. to decide individual
case or controversy so both
strong/weak Marbury violated
2. Federalist 78: Explains the good
behavior provision and the
salary/compensation to guarantee the
independence of the judges so they
can act w/o fear of reprisal.
3. Amending the constitution (11th am [Chisholm], 14th am
[Dred Scott], 16th am [Pollock])
4. Abolishing the court (conflict between Art III congress
makes inferior cts and Art III judges have life tenure)—see
exceptions power
5. Appointment
a. FDR’s court packing plan
i. If Congress has power under Necessary and
Proper Clause to establish USSC, how can
court packing plan be unconstitutional?
ii. This is like stripping the jurisdiction of
USSC. Seems to contradict Marbury. Arg.
from consequences – Ct. packing plan can’t
be const if Framers intended judicial review
b/c they wouldn’t have let it be this easy to
destroy the guardians of the Const. Congress
adding judges to dilute votes inconsistent w/
idea of judicial review
1. Probably consistent w/ weak
Marbury. If it’s only about keeping
clean hands, then there’s no cause
for alarm for packing the ct., writing
a statute that ct. just declared
unconst’l, or limiting the jurisdiction
of the USSC
iii. Pretext argument from McCulloch:
Congress is using its NP power as pretext to
determine results in cases. But if Congress
has a legitimate reason (expansion of
docket), then it would be OK.
c. Congressional Power to Limit the Jurisdiction of the USSC and Inferior
Fed’l Cts
i. “The judicial Power … shall be vested in one supreme Court, and
in such inferior Courts as the Congress may from time to time
ordain and establish.” Art III § 1. The appellate power of the
USSC is conferred by Art III, but “with such exceptions and under
such regulations as Congress shall make.” Art III § 2.
ii. Exceptions power
1. Congress can neither add to nor subtract from USSC’s
original jurisdiction. (Marbury)
a. Congress can confer appellate jurisdiction where
there is original jurisdiction. (Cohen v VA)
2. Historical practice
a. Judiciary Act of 1789 only gave USSC appellate
jurisdiction over cases decided by state courts in
which “arising under” claims were denied; i.e.,
Congress excepted from appellate jurisdiction
“arising under” cases from state courts where
constitutional claim upheld.
b. Diversity jurisdiction always had amount-incontroversy requirement, etc
c. Story’s view—Congress had to confer jurisdiction
over all “arising under” cases. This view never
embraced by USSC.
3. Ex parte McCardle, 1869. Congress, afraid courts would
invalidate Reconstruction, repealed portion of Judiciary Act
of 1867 extending appellate jurisdiction over habeas
petitions from Cir Cts to USSC, after McCardle denied in
Cir Ct but before got to USSC. Held: while this case is
dismissed for lack of jurisdiction, the whole appellate
power of the USSC in habeas cases was not denied b/c only
appeals from Cir. Cts. were abolished, and so Congress’s
repeal of portion of 1867 Judiciary Act was constitutional
exercise of Exceptions power.
a. Consistent w/ weak but not strong Marbury. Is
Exceptions power end run around judicial review?
i. Plenary view—Congress has unlimited
discretion to make exceptions to USSC’s
appellate jurisdiction
1. This is totally wrong—argument
from absurd consequences; framers
couldn’t have intended for judicial
review to be so easy to evade
ii. Mandatory view—i.e., that “shall extend to
all Cases” is mandatory, meaning that at
least some court must be available to hear
“arising under” cases (either USSC or
inferior ct)
1. Inconsistent w/ strong Marbury—
argument from absurd consequences;
Congress could abolish all but one
fed’l dist ct, which would be too
busy to hear all these cases.
2. Strong Marbury suggests that
Exceptions Power must be limited; at
the very least, judicial review is
implicit in the substantive rights
themselves, b/c a right w/out a
remedy (thru judicial review) isn’t a
right at all. Therefore, judicial
review over constitutional rights’
claims must flow to some extent out
of the substantive rights themselves.
b. Probably the holding depends at least in part on the
alternative vehicle for habeas petitions to be heard
by courts under Judiciary Act of 1789 (thru petition
for certiori or original writ in the USSC itself).
Indeed, the USSC heard just such a suit in Ex parte
Yerger.
iii. Separation of powers limit on Exceptions power
1. Separation of powers principle: no branch may
usurp/encroach on the constitutionally vested functions of
another branch.
2. U.S. v Klein, 1871. Suit to recover proceeds of cotton
taken during Civil War under a statute that permitted it if
owner could prove he hadn’t aided “rebellion”; USSC held
that prez’al pardon was proof. Klein got such a judgment
and gov’t appealed. Congress passed statute saying that
pardon was proof that he had aided rebellion, and also
denied the USSC jurisdiction over an case in which proof
of a pardon had been submitted (i.e., whenever the USSC
was going to rule against gov’t). USSC upheld award and
declared the provision unconstitutional. USSC held that
the purpose of the act was not to exercise Congress’s power
to make exceptions and prescribe regulations for appellate
power, but rather to affect the outcome of cases.
a. Contrast the statute in Klein w/ one where Congress
merely changes the relevant legal rules. Though this
affects the outcome in a pending case, this is fine—
Congress didn’t order a particular result but rather
exercised its lawmaking authority.
3. Doesn’t have to be one court over another that hears case:
a. Yakus v US, 1944. Congress passed Emergency
Price Control Act, which provided for attack on
price regs by filing protest w/ the administrator and
for review of his adverse decision in the Emergency
Ct of Appeals, which was given exclusive
jurisdiction to determine the validity of the
regulations. USSC upheld the statute; the statute
provides a means for testing the validity of
regulation by an independent administrative
proceeding. There’s no constitutional requirement
that the test be made in one court rather than
another, so long as there is an opportunity to be
heard and etc.
i. Two judges dissented b/c congress had
provided that while this emergency ct had
exclusive jurisdiction to decide regs validity,
it gave jurisdiction to all courts to enforce
the regs. This conferring and denying of
jurisdiction bothered the dissenters; courts
are essentially being forced to enforce
statutes w/out regard for their validity.
iv. Bill of Rights limit on Exceptions power
1. Congress can’t use exceptions power (or any power) in a
manner that violates specific limitations imposed by
Constitution; e.g., a law depriving courts of jurisdiction
over Establishment Clause cases would be unconstitutional.
d. Justiciability
i. Finality:
1. Advisory opinions; e.g., Washington’s request for advice in
1793, Hayburn’s Case (having courts make preliminary
judgments on Revolutionary War veterans’ pension claims)
2. What’s wrong w/ advisory opinions?
a. Courts can only do judicial business
i. Textual arg: Not a “case” or “controversy”
w/in Article III, § 2.
1. Not true: Art III says that the judicial
power shall extend to
cases/controversies… but that
doesn’t mean that the judicial power
is the only thing vested in the court
(it doesn’t say “shall extend only to
cases/controversies”).
a. Same use of expressio unius
in Marbury (whether original
jurisdiction was only to
diplomats-/states-as-parties
cases)
ii. Consequentialist arg: don’t squander judicial
resources (see below for policy reasons)
1. But Art II says that courts can
appoint inferior officers if so
provided by congress. So the framers
did intend for the courts to do
extrajudicial business sometimes.
a. The 10th am. also applies to
the judicial powers; hence,
this is where we can find the
“only” we wanted to read
into Article III (i.e., can
exercise “only” judicial
powers).
iii. History:
1. Council of revision was proposed in
Philadelphia Convention—judges
would sit on council that exercised
veto power for unconstitutional
statutes. They dropped it—the
judges would already be doing this;
plus, people thought it was a bad
idea to have judges involved before
the issue came before them in a
judicial capacity. So there was some
sentiment that judges ought not to be
involved in legal questions before
they were parts of
cases/controversies.
2. Madison also assured people that Art
III judicial power was constructively
limited to cases of a judicial nature
(i.e., no advisory opinions)
3. Complications:
a. Jay negotiated treaty, Warren
took leave of absence to
investigate JFK’s death,
Jackson was Nuremberg
prosecutor
b. Rule: Judges can do extrajudicial functions but cts.
can’t. (See Mistretta holding
that judges weren’t acting as
judges on the Sentencing
Commission). Can’t wear
both hats at the same time.
c. Art 1, §6 (Incompatibility
Clause): expresses disgust for
legis or exec officers to hold
other offices but it didn’t
express same concern for
judges holding exec offices.
d. But which problems of
advisory opinions are
reduced by this, exactly….
b. Advisory opinions aren’t judicial business
i. Judicial business is defined in Art III as
deciding cases/controversies. Advisory
opinions are not cases/controversies b/c
there are no adverse parties nor concrete
facts nor final judgments (b/c executive can
refuse to act on advice) and it’s all
hypothetical.
ii. What is a case/controversy? Well, when the
text won’t help you and consequential args
won’t help (b/c other sovereignties do
permit advisory opinions and hell didn’t
freeze over), then turn to tradition. What
kind of cases/controversies did
English/colonial judges decide
1. The problem here is that colonial
courts did issue advisory opinions.
So go w/ Frankfurter’s view: even
though English courts granted
advisory opinions, they vary in so
many vital ways that reflect upon the
ability of the courts to carry out their
core function of deciding real cases,
that it’s hard to believe that the
framer really intended to incorporate
the English practice.
iii. Policy (consequentialist arguments):
1. Only w/ concrete facts in actual
cases will correct decisions be most
likely reached; each side will have
advocates, the case won’t be
premature/abstract
a. USSC is court of last resort
b. It’s not that we think this
violates Marbury (b/c can’t
expand original jurisdiction),
but rather b/c USSC renders
final binding decisions (citing
Hayburn’s Case)
2. Lawmaking by appointed judges is
undemocratic; it squanders judges’
political capital by deciding
unnecessary constitutional questions
3. Accepance of nonjudicial duties
leaves less time for judges to do their
essential functions
4. May cause a weakening of
legislative and popular responsibility
if judges are relied on for advice
a. Prez has own advisors he
should rely on. Art II §2 cl.1
– “he may require the
Opinion . . . of the principal
Officer in each of the
executive Departments.”
Explicit Const’l ability to call
on the heads of the depts. by
negative implication excludes
the possibility of calling on
the other branches for advice.
Maybe the clause inserted so
that the heads of departments
realized it was their
responsibility to advise the
Prez and didn’t exclude Prez
from asking others.
5. The ability to accept nonjudicial
assignments might compromise
judicial independence by making
them expect rewards/get involved in
the case (the problem of prejudgment
is that you don’t want to have to go
back on your words), and so forth
a. May violate separation of
powers if two branches get
too chummy
6. Prejudgment—ability to accept
nonjudicial assignments might
compromise judicial independence
by making them get involved in the
case; you don’t want to have to go
back on your words
a. May violate checks and
balances
3. But how far can this finality requirement go? Congress can
always defeat any money judgment by failing to
appropriate money to pay it. Ditto w/ Prez enforcing
judgments.
a. Hypo: Congress amends statute in Hayburn’s Case
to make cts’ decision final. After, Congress decides
whether to appropriate money to pay claims.
i. Gordon v. US—it’s unconstitutional (even
though Congress could’ve asked its own
agent to do the same thing, it can’t ask an
Art III court to do the same).
ii. Would it matter if gov’t had a standing fund
to pay these cases?
b. Really, finality is all a matter of degree—easy
hurdle to overcome.
ii. Standing
1. Injury Requirement
a. Constitutional requirement: “case or controversy”
requirement from Art III § 2mandates injury in fact.
Without injury, we have some of problems of
advisory opinions.
i. See, e.g., Warth v Seldin, Lujan, Raines—
USSC struck down statutes purporting to
give standing to uninjured persons
b. Three part test (different ways of looking for
injury):
i. Concrete, particularized, actual/imminent
injury to P
1. Warth v Seldin, 1975. Pennfield
zoning bd sued b/c zoning regs
excluded poor people. Ps: ass’n of
Pennfield homebuilders. Held: no
standing. Can’t show specific
building projects they couldn’t build
b/c of zoning regs’ unfairness.
Hence, their injury is too abstract
and not immediate enough to confer
standing.
2. Mere interest in the problem
insufficient:
a. Sierra Club v Morton, 1972:
Sierra Club wanted to stop
construction of ski resort b/c
it would adversely affect the
scenery/etc of nat’l part;
asserted special interest in the
conservation of the nat’l
parks/etc of the country, and
therefore claimed to be
adversely affected under the
APA. Held: no standing.
Injury will only be felt by
those who use the park. Club
hasn’t alleged that it or its
members would be affected
in any of their activities by
the development. Club never
said that its members use the
park for any purpose. A
mere interest in a problem, no
matter how longstanding,
isn’t sufficient to render the
organization “adversely
affected”
3. An identifiable trifle is enough of an
injury—doesn’t have to be an
economic harm, but can’t be too
creative/bizarre a theory of harm
a. US v SCRAP, 1973. SCRAP
argued that the Nat’l
Environmental Policy Act
required the ICC to prepare
environmental impact
statements before allowing
RRs to increase their rates for
transporting scrap materials.
Increased rates would
discourage recycling,
resulting in increased refuse
in national parks. SCRAP
alleged that its members used
the forests, etc., surrounding
the Washington Area for
camping, etc. APA grants
standing only to parties who
are adversely
affected/aggrieved by
agency’s action. USSC
upheld standing, since
standing doesn’t require a
showing of an economic
harm. And there’s no limit to
standing just b/c the Ps are
only insignificantly affected
by agency action: an
identifiable trifle is enough
for standing.
b. Lujan v Defenders of
Wildlife, 1992. Ass’n sued
over aid to foreign gov’ts that
don’t protect endangered
species b/c ass’n’s members
saw endangered species
abroad and intended to return
later. Theory of harm: animal
nexus—the harm experienced
by person interested in
endangered species when
gov’t action threatened
species’ survival. Held: no
standing. Too
conjectural/bizarre, plus no
definite plans to go see
crocodiles (too
indefinite/speculative).
Standing isn’t an ingenious
academic exercise in the
conceivable, but a factual
showing of perceptible harm.
ii. Causation—complained of activity caused
P’s injury
1. Responsibility for injury must be
fairly traceable to complained of
activity rather than just the result of
3d parties.
a. Warth v Seldin, 1975.
Pennfield zoning bd sued b/c
zoning regs excluded poor
people. Ps: taxpayers of
Rochester that pay higher
taxes b/c have to house
excluded poor people. Held:
no standing. Lack of
causation—harm results from
voluntary decisions of
Rochester’s authorities (3d
party) to house these people,
resulting in higher taxes.
b. Allen v Wright, 1984. Suit
against state for giving tax
breaks to segregated schools,
making them less likely to
integrate. Claimed injury:
policy diminishes chances of
receiving integrated
education. Held: no standing.
Injury not fairly traceable to
the gov’t, b/c the policy of
segregation was product of
schools’ (3d parties)
independent action.
2. Causation can be very
attenuated/indirect
a. US v SCRAP, 1973. SCRAP
argued that the Nat’l
Environmental Policy Act
required the ICC to prepare
environmental impact
statements before allowing
RRs to increase their rates for
transporting scrap materials.
Increased rates would
discourage recycling,
resulting in increased refuse
in national parks. SCRAP
alleged that its members used
the forests, etc., surrounding
the Washington Area for
camping, etc. APA grants
standing only to parties who
are adversely
affected/aggrieved by
agency’s action. USSC
upheld standing, since
standing doesn’t require a
showing of an economic
harm. And while the line of
causation is very attenuated
here, that’s an issue for
summary judgment.
i. Later cases (e.g.,
Linda S v Richard D,
Allen v Wright) call
this into question.
May not be good law
any longer, b/c
complained of harm
might not happen (in
addition to it being
indirect causation).
iii. Redressability—relief sought must redress
harm
1. Warth v Seldin, 1975. Pennfield
zoning bd sued b/c zoning regs
excluded poor people. Ps: poor
people who say they wanted to live
in town but couldn’t. Held: no
standing, b/c haven’t alleged facts
from which it reasonably could be
inferred that, absent the restrictive
zoning practices, there is a
substantial probability that they
would have been able to purchase or
lease housing. Poor people aren’t
subject to zoning laws (e.g., haven’t
been denied variance, etc).
a. This is bizarre: USSC
requires fact pleading (if Ps
are ever to get around the
redressability problem) in a
notice pleading regime.
Maybe the better thing to do
would be to allow standing,
but then use summary
judgment to filter out bad
complaints unsupported by
evidence.
2. Can’t be potential—relief can’t
assume actions of 3d parties
a. Linda S. v Richard D., 1973:
Unwed mother sues D.A. to
get DA to prosecute deadbeat
dad for child support, rather
than suing husband herself.
DA had policy of prosecuting
fathers of legitimate children
but not fathers of illegitimate
children. Court says no
standing: it’s only conjectural
that deadbeat would pay even
if prosecuted
i. Result depends on
how injury
characterized. If
injury is absence of
legally required child
support, USSC is
correct. But if injury
is violation of E/P
rights arising from
failure to prosecute
father, adoption of a
policy under which all
nonsupporting fathers
are prosecuted would
alleviate the injury.
b. Allen v Wright, 1984. Suit
against state for giving tax
breaks to segregated schools,
making them less likely to be
integrated. Held: no
standing. Injury is too
conjectural; schools might
not integrate even if no tax
breaks to private schools that
discriminate
c. Political Rights
i. Limit on parties:
1. Massachusetts v Mellon, 1923.
Maternity Act—conditional spending
to state conditioning aid on
regulating pursuant to Maternity Act.
State sues, both on its own behalf
and as representative of its citizens.
Held: no standing.
a. Inasmuch as state is suing on
own behalf—political
question. no private rights are
being invaded. Court is
being asked to decide abstract
questions of political power.
If an attempt by Congress to
abolish an existing state gov’t
presents no justiciable issue,
as was ruled in Georgia v.
Stanton, then this doesn’t
either.
i. This isn’t a PQ;
rather, the rights
being claimed are too
abstract. Rule seems
to be that states have
standing to assert
proprietary but not
political rights.
ii. Negative inference
from Art III § 2: If RI
sues Mass over where
the boundary is, it’s
an original question in
USSC. This is not a
proprietary right; the
states aren’t fighting
over who owns the
land. They’re suing
over who has political
authority over the
state—of sovereignty.
So this falls over the
wrong side of the line
in Mellon. But USSC
upheld jurisdiction.
Maybe we could say
that the specific grant
of this kind of
jurisdiction gives rise
to a negative
inference as to that
power be granted
generally.
b. Inasmuch as state suing on its
citizens’ behalf—though state
may possibly intervene by
suit to protect its citizens
against any form of
enforcement of
unconstitutional
congressional statute, but not
here. Citizens of
Massachusetts are also
citizens of U.S.; state can’t
institute judicial proceedings
parens patriae to protect US
citizens from own gov’t. in
this field, it is the u.s. that
represents the citizens parens
patriae.
i. Better reasoning: state
is like ass’n that can
sue on behalf of its
members only if
members have a right.
But can’t sue when it
members (citizens)
can’t sue; and they
can’t here—
Frothingham.
ii. Injury requirement
1. If singled out, then legislator can
have standing. Powell v
McCormack—Congressman can sue
over his exclusion from House. This
was case/controversy b/c P was
singled out for specially unfavorable
treatment
2. Institutional injury requires enough
legislators to sign on to have had
their votes nullified.
a. Compare Raynes v Byrd,
1997 (6 congressmen
challenge constitutionality of
Line Item Veto. Held: no
standing); with Coleman v
Miller (20 of 40 senators
sued over lt gov’s
unconstitutionally casting
tiebreaking vote. Held:
standing, since the 20
senators’ votes were
nullified).
3. Oath of office theory:
a. Board of Education v. Allen,
USSC, 1968: allowed local
school board to attack
constitutionality of state
statute they were charged w/
enforcing. The idea was that
they had taken an oath to
support the u.s. constitution,
and if they acted in
conformity w/ oath they
would have to risk expulsion
from office. This is a
personal stake in the outcome
of the litigation—enough to
confer standing, according to
Court. Would this hold up
today? Probably not…
2. Generalized Grievance Limitation
a. Unless P can show that challenged gov’t action
caused him to suffer a particularized injury, not
standing: can’t premise standing on nothing more
than a generalized claim that gov’t must comply w/
law. Frothingham v Melton, 1923 (no taxpayer
standing to challenge fed’l spending measure
inconsistent w/ 10th am); Ex parte Levitt, 1937 (no
citizen standing to challenge Black’s appointment to
USSC in violation of Emoluments Clause); U.S. v
Richardson, 1974 (no citizen standing to challenge
secrecy of CIA budget).
b. Inconsistent w/ sometimes prudential, sometimes
constitutional limitation on standing
i. Warth: implies it’s prudential (if it’s
prudential, Congress can set it aside)
ii. Tax cases imply that it’s constitution—a part
of what it takes to show a (personal) injury.
iii. Rule seems to be: where the injury is
generalized and also abstract, then no injury
(thus, this becomes part of the nature of the
injury inquiry; hence, is a constitutional
limitation). SCRAP.
1. Schlesinger v Reservists Committee
to Stop War. Ass’n sues
Congressman for being reservist in
conflict with Incompatibility Clause.
Held: no standing—generalized
grievance. Injury to taxpayer is to
generalized, no one injured more
than another (see taxpayer cases). It
appears to be a non-addressable
violation of the const. but USSC
finds that isn’t a reason to relax the
const. reqs. of standing.
c. Just b/c widely shared doesn’t mean it’s a
generalized grievance. So long as grievance is
factually particular, there’s standing. (e.g., there
would be standing to challenge fed’l law banning
everyone from talking as a violation of each
person’s individual 1st am right to free speech).
d. Exception to rule against generalized grievances:
taxpayer standing
i. General grievance problem: no injury b/c
not remediable
1. Frothingham, 1923. Taxpayer
challenges constitutionality of
Maternity Act, which gives fed’l
money to states that comply w/ its
provisions to reduce infant/mother
mortality. Held: no standing.
Claimed injury is that tax burden will
be increased in future b/c of
unconstitutional act; But taxpayer’s
interest in moneys of U.S. treasury is
minute and indeterminable, and the
effect upon future taxation of any
payment out of the fund is too
remote—i.e., injury is too
conjectural (b/c Congress could just
spend the money on something else).
Hence, injury isn’t remediable; you
won’t get your taxes back, b/c it was
only the spending and not the tax
that was attacked.
ii. Double Nexus test
1. Flast v. Cohen, USSC, 1968, upheld
standing of fed’l taxpayers to enjoin
expenditures from general revenue
that they argued were being used in
violation of Establishment Clause.
a. Injury requirement: First,
taxpayer must establish a
logical link between that
status and the type of
legislative enactment
attacked. (i.e., can only attack
spending under the spending
power of Art I § 8).
i. Valley Forge
Christian College v.
Americans United for
Separation of Church
& State, USSC, 1982:
taxpayers challenged
the transfer of gov’t
property to religious
institution on
Establishment
grounds. Flast
distinguished and
standing denied: (1)
challenged action
wasn’t congressional
in origin but rather by
an executive agency;
(2) property transfer
wasn’t an exercise of
authority conferred by
taxing and spending
clause but rather
under Congress’s
Property Clause, Art
IV § 3, cl 2.
b. Personal right requirement:
Second, the taxpayer must
establish a nexus between
that status and the precise
nature of the constitutional
infringement alleged (i.e.,
must show that the
challenged enactment
exceeds specific
constitutional limitations and
not simply that the enactment
is generally beyond the
delegated powers).
i. Flast distinguished
taxpayer suit in
Mellon: there, the
taxpayer foundered on
the 2d part of test
(and was therefore
trying to assert the
states’ interest in their
legislative
prerogatives and not a
federal taxpayer’s
interest in being free
of taxing/spending in
contravention of
specific constitutional
limitations imposed
upon Congress’s
taxing and spending
power). You only
have standing to raise
your own personal
rights, and
Establishment Clause
confers on everyone
the right not to have
tax moneys spent to
establish a church.
ii. This is strange that
you can’t rely on
state’s right, b/c state
itself can’t sue—
Massachusetts v
Mellon.
3. Rights of Third Parties Limitation
a. Can’t rely on rights of 3d parties.
i. Warth v Seldin, 1975. Pennfield zoning bd
sued b/c zoning regs excluded poor people.
1. Ps: taxpayers of Rochester that pay
higher taxes b/c have to house
excluded poor people. Held: no
standing. In addition to causation
problem, supra, since Rochester Ps
lack personal const’l right to be free
from higher taxes as result of
Pennfield’s zoning, they have to rely
on rights of excluded poor people.
No 3d party standing.
2. Ps: ass’n of Pennfield people who
want diverse community. Held: no
standing. Haven’t asserted personal
right to diverse community, b/c Civil
Rights Act of 1968 doesn’t give
c/o/a. Hence, must rely on rights of
excluded poor people. No 3d party
standing
b. Associations—can only sue if a member can sue.
Warth v Seldin.
c. Exception to no jus tertii rule: where 3d party can’t
otherwise assert own rights, or person would
otherwise be required to take action adverse to 3d
party’s rights. Flows from strong Marbury view.
i. Barrows v Jackson, 1953, permitted a white
to get damages for prohibition against
selling home to blacks in racially restrictive
covenant by arguing the equal protection
rights of “unidentified but identifiable”
blacks. Why? b/c it would be impossible to
get these blacks before any court.
ii. NAACP v Alabama, 1958, in which
NAACP wanted to resist demand for its
membership lists by invoking rights of its
members to keep their affiliation secret: “to
require that it be claimed by the members
themselves would result in a nullification of
the right at the very moment of its
assertion.”
iii. Griswold v Connecticut, 1965. Sate law bas
use of contraceptives. Doctor prescribes
device to married couple, raised their right
to privacy. Held: doc has standing. State law
would’ve required doc to take action
undermining 3d party’s (patients’) rights.
iv. Craig v Boren, 1976. Bartender allowed to
assert E/P rights of male patrons when
challenging state law requiring bartender to
discriminate against them.
4. Cause of action
a. Must show that the constitutional or statutory
provision on which the claim rests can be
understood as granting persons in the plaintiff’s
position a right to judicial relief.
i. Warth v Seldin, 1975. Pennfield zoning bd
sued b/c zoning regs excluded poor people.
Ps: ass’n of Pennfield people who want
diverse community. Held: no standing.
Haven’t asserted personal right to diverse
community, b/c Civil Rights Act of 1968
doesn’t give c/o/a. Hence, must rely on
rights of excluded poor people. No 3d party
standing
ii. Allen v. Wright, 1984. Suit against state for
giving tax breaks to segregated schools,
making them less likely to be integrated.
Claimed injury: stigma of being part of
excluded race. Held: no standing.
“Stigmatic” harm insufficient to show injury
b/c neither Constitution, statute, or c/l
recognizes right to be free from stigmatic
harm.
b. Question of whether statute implies a c/o/a was
eventually linked w/ question of whether statute
confers standing: “The standing question is whether
the Constitutional or statutory provision on which
the claim rests properly can be understood as
granting persons in the P’s position a right to
judicial relief.” Warth v Seldin.
i. Zone of interests test: Where there’s a
statute that forbids you to do something and
there’s a violation of that duty, P has a c/o/a
for the tort provided (1) P is injured and (2)
in the class that was intended to be protected
by the provision that was violated.
ii. Hardin v Ky Utilities Co, 1968: allowed a
competing public utility to enforce a
geographic limitation on TVA operations
even though the substantive statutory
provisions were silent on the subject of
whether competing utilities had right to
relief. Case links the test of whether a
statute implicitly creates standing w/ the
question of whether the statute implicitly
creates a cause of action on behalf of those
injured by its violation.
iii. Implicit in statute: J.I. Case Co v Borak,
1964, upheld a private damage action by
shareholder for violation of SEC proxy rules
b/c one of chief purposes of statutory
provision was the protection of investors,
which certainly implies the availability of
judicial relief where necessary to achieve the
result.
iv. Implicit in constitution: Bivens v. 6
Unidentified FBI Agents: victim of
unconstitutional search has cause of action
against federal officer who violated his
rights. No statute provides source of this
action b/c 1983/etc only applies to state
actors or people acting under color of state
law. Where is the source of the c/o/a in
Bivens?
1. Strong Marbury—there’s got to be a
remedy for the violation of a
constitutional provision implicit in
the constitution itself. This is
another way that the remedy is
implicit in the law that gives the
right to begin with. This was a c/l
notion (see Restatemetn of Torts,
1st).
a. But the c/l doctrine of
reading into statutes silent on
the subject an implied cause
of action by private citizens
was cut back sharply by
Erie’s interpretation of the
Rules of Decision Act (no
federal c/l). But this isn’t a
problem—ct is construing
Const., not fed’l c/l.
2. This also decides whether there is
standing to challenge administrative
action under the APA (Data
Processing case). APA gives
standing to anyone adversely
affected or aggrieved w/in the
meaning of the relevant statute.
a. Prof. davis said that the APA
waives all prudential standing
limitations. But no court ever
follows this. Data
Processing, like other courts,
require that some statute
other than the APA itself
gives standing to the P
challenging the
administrative action, either
explicitly or implicitly. Data
Processing says, to determine
whether you’re aggrieved,
etc., first you look to see if
you’re injured, and then you
ask to see if you’re in the
zone of interests to be
protected by the statute (i.e.,
the same standard as used in
c/l).
i. Association of Data
Processing Service
Orgs v Camp, 1970,
abandoned it and
allowed challenge to
ruling of Comptroller
of Currency allowing
national banks to
provide services.
Article III injury was
clear: competition
created lost profits,
and two customers
would be lost. “The
‘legal interest’ test
goes to the merits.
The question of
standing is different.
It concerns, apart
from the ‘case’ or
‘controversy’ test, the
question whether the
interest sought to be
protected is arguably
w/in the zone of
interests to be
protected or regulated
by the statute or
constitutional
guarantee in question.
Thus, the APA grants
standing to a person
‘aggrieved by agency
action w/in the
meaning of the
relevant statute.” The
statute in question in
the case, which
limited bank serve
corps to the
“performance of bank
services”—and
therefore had the
purpose of protecting
competitors—brings a
competitor w/in the
zone of interests
protected by it.
b. So courts can do the same
inquiry on the question of
c/o/a (Bivens) or on the
question of standing (Data
Processing, Hardin). If you
want to know whether you
have a c/o/a and therefore
standing, etc., or whether you
want to know whether you
have standing (despite
prudential standing
problems), the court uses the
same exact inquiry—a test
borrowed from the c/l notion
of when you imply a c/o/a
into a statute—whether the P
is w/in the zone of interests
the statute is designed to
protect.
5. Qui Tam Actions
a. Constitutional only b/c actions by a common
informer, who himself has no interest in the
controversy other than that given by the statute,
have a long history. (Marcus v Hess). The fact that
relator has money stake in the issue isn’t enough
(that would allow anyone who places a wager on a
case to assert standing). An adequate basis of the
claim might be found in the doctrine that the
assignee of a claim has standing to assert he injury
in fact suffered by the assignor—as if the qui tam
statute is a partial assignment of the Gov’t’s
damages claim. (Vermont Agency of Natural
Resources v U.S.)
iii. Prematurity
1. Constitutional requirement: balance: (1) the probability that
the predicted harm will take place; (2) the hardship to the
parties if immediate review is denied; and (3) the fitness of
the record for resolving the legal issues presented.
2. Abbott Laboratories v Gardner, 1967. Agency interprets
amended statute to require drug companies to put generic
name whenever trade name used. Drug mfgs sue to enjoin
enforcement even though no one has yet been prosecuted
(though all ordered to comply immediately). Held: Case is
ripe; issue is legal, agency has taken final action, and great
hardship if wait for prosecution. USSC evaluates “fitness”
and “hardship.” Fitness: agency’s action was final,
pragmatically speaking—regs are published and direct AG
to prosecute. Hardship: Ps must either reprint everything at
great expense or proceed and risk prosecution; and drug
industry particularly susceptible to public opinion (i.e., a
prosecution would ruin mfg b/c of stigma).
3. Exhaustion doctrine
a. Myers v Bethlehem Shipbuilding Corp, 1938. P
sued to enjoin NLRB from entertaining an unfair
labor practice charge, arguing that its activities were
not interstate commerce. USSC dismissed b/c cts
don’t give judicial relief for a supposed or
threatened injury until prescribed administrative
remedy has been exhausted. Myers says that this
rule isn’t purely discretionary, but rather one of
“judicial administration.”
iv. Mootness
1. There must be a controversy at the stages of appellate
review and not simply at the date the action is initiated
2. Court stepped back from strict enforcement of mootness
doctrine when necessary to correct problem that is capable
of repetition yet evades review
a. Moore v Ogilvie, USSC, 1969: independent
candidates seeking places on 68 ballot challenged
law requiring petition signatures from each of 50
counties. USSC struck down statute, saying
controversy wasn’t moot b/c the burden of the
signature law “remains and controls future
elections…. The problem is therefore ‘capable of
repetition, yet evading review.’”
b. Roe v. Wade, USSC, 1973: challenge to abortion
law by woman who was pregnant at time suit filed.
“where pregnancy is a significant fact in the
litigation, the normal 266-day human gestation
period is so short that the pregnancy will come to
term before the usual appellate process is
complete.”
c. But see DeFunis v Odegaard, USSC, 1974: white
law school applicant’s argument that he had been
unconstitutionally excluded on racial grounds held
moot, b/c P had gone to different law school during
the interim, and was going to graduate: “just b/c this
particular case didn’t reach the court until the eve of
the P’s graduation from law school, it hardly
follows that the issue he raises will in the future
evade review.”
d. Exception more likely to be recognized if it’s a
class action:
i. Sosna v Iowa, USSC, 1975. Class action
challenge to Iowa’s law imposing a 1-yr
residency requirement as a condition for
getting a divorce. b/c it was a class action,
the suit was upheld.
3. Courts also less likely to enforce mootness doctrine strictly
when there are collateral consequences
a. E.g., convict finishes serving sentence during
pendency of appeal. Won’t be dismissed as moot
b/c of collateral consequences of conviction (can’t
vote, etc.).
v. Political and administrative questions—Marbury: court’s shouldn’t
meddle in “questions in their nature political”
1. Baker v Carr, 1962. TN never reapportioned legislature,
and so it got really out of whack w/ demographic changes.
Voters bring E/P challenge to apportionment. Held: not a
political question. Factors to consider: (1) Textual
commitment to another branch; (2) Lack of judicially
discovered and manageable standards for resolving
question; (3) Impossibility of deciding w/out an initial
policy determination of a kind clearly for nonjudicial
discretion; (4) Impossibility of court’s undertaking
independent resolution w/out expressing lack of respect for
other branches; (5) Unusual need for unquestioning
adherence to political decision already made; (6) Potential
embarrassment if there’s not one voice. Here, no other
branch here is going to decide the question, nor will gov’t
be embarrassed abroad or will everything be cast into
chaos. Plus, the E/P clause comes with well-developed
judicial standards—“one man, one vote.”
a. Frankfurter’s args for saying this is a PQ
i. Precedents: a bunch of cases held
apportionment cases to be nonjusticiable.
1. E.g., Colegrove v Green (But only 3
justices in Colegrove thought it was
a political question. 3 said it was
justiciable and unconstitutional. Tie
breaker said it was jsuticiable, but
equitable considerations forbid
intervention at this late date (suit
brought too late)).
ii. Prudential concerns—ct undermines own
authority by frittering away its political
capital.
1. Carolene Prods fn. 4: USSC will be
deferential in many cases, but not
where there are especially
heightened concerns justifying
heightened concern: (1) Protection of
discrete/insular minorities; (2)
Enforcing the specific guarantees of
the Bill of Rights—i.e., where the
Constitution commands judicial
review; (3) Cases that involve the
political system itself—b/c a wellfunctioning political system is the
precondition for deferring to the
judgment of the political system
generally.
iii. Functional concerns—what would be the
appropriate remedy?
1. but later courts are able to develop
remedy
iv. Guarantee Clause—this is GC case
masquerading as E/P case. Functionally,
they’re indistinguishable. GC is PQ; it is
committed to Prez/Cong.
1. Luther v Borden. Lawsuit over
which gov’t of RI was legitimate;
Prez Tyler had recognized old gov’t
as legitimate. Held: Guarantee
Clause not justificiable; committed
to prez. Lack of standards.
a. Distinguished from Baker: Ps
are asking for
reapportionment, not
invalidation of state gov’t.
2. Pacific Telephone & Telegraph.
Guarantee Clause challenge to direct
referendum. Held: not justiciable;
only prez/congress can protect
citizens from lack of republican form
of gov’t.
v. Ad terrorum—everything leg did is
unconstitutional… but de facto doctrine.
2. Nixon v US, 1993. Senate Rule XI, which allows a
committee of senators to hear evidence against an
impeached individual and to report that evidence to full
senate, is challenged by impeached judge. Art I, § 3, cl. 6
provides that the “Senate shall have the sole Power to try
all Impeachments.” Held: not justiciable—impeachments
reserved for senate.
a. Majority (Rehnquist):
i. A controversy is nonjusticiable where there
is “a textually demonstrable constitutional
commitment of the issue to a coordinate
political department; or a lack of judicially
discoverable and manageable standards for
resolving it.” The concept of a textual
commitment to other branch isn’t
completely separate from the concept of a
lack of judicially discoverable/manageable
standards for resolving it.
ii. Art I, § 3, cl 6 textually gives power to
senate. The word “try” is too broad in
meaning to suggest that it imposes a limit on
how the senate should conduct trials; indeed,
it is too broad to afford any judicially
manageable standard of review of senate’s
actions—a conclusion furthered by negative
inference from the list of specific
requirements in the clause (e.g., 2/3rd vote).
1. Framers thought senate had more
fortitude, and that USSC was too few
in number for this responsibility;
Framers wanted to prevent the risk of
bias that interjection into the
proceedings would entail; Judicial
review would frustrate
checks/balances: impeachment is
check on judiciary—don’t want to let
judiciary to be involved in
impeachments.
b. Concurrence (White):
i. Doesn’t think that question is nonjusticiable,
but rather think that senate fulfilled its
requirements to “try” P.
ii. Majority suggests that framers conferred
upon congress a potential tool of legislative
dominance yet at the same time rendered its
exercise free from judicial review. But in a
truly balanced system, impeachments tried
by the senate would serve as a means of
controlling judiciary, even as judicial review
would ensure that senate adhered to minimal
set of procedural standards in conducting
impeachment trials.
iii. “Try” doesn’t present great interpretive
difficulties. E.g., if senate automatically
convicted all the time, then it wouldn’t be
“trying” cases. Nevertheless, delegation of
fact finding is fine; it had historical
pedigree.
c. Concurrence (Souter):
i. This case is nonjusticiable b/c of unusual
need for unquestioning adherence to
political decision already made, and the
need to avoid embarrassing senate by
reversing it.
ii. But other cases might be justiciable (e.g.,
senate just flips a coin).
d. Rules:
i. Look for absence of standards; if so, no
judicial enforcement (this is Frankfurter’s
arg Baker v Carr opinion, and Rehnquist in
Nixon). So really, your view of PQ doctrine
depends on your view of the merits.
ii. Two kinds of commitment—discretion
(white in Nixon) and decision (majority in
Nixon).
1. Commitment of Decision to
Coordinate Branch - The word “try”
is subject to broad definition and
doesn’t limit the Senate on how to
try. So if power granted to Senate
and they decide, their decision IS
constitutional. This looks like
decision on the merits saying that
Senate has discretion and acted w/in
that discretion w/in meaning of
Const. The Constitution can commit
final interpretation w/ regard to
particular Const’l question to branch
other than USSC. Consistent w/
Marbury b/c when USSC decides
that this has happened they are
interpreting the Const consistent w/
power in Marbury.
a. Contrast this with Powell. Art
I § 5 cl 1 commits to each
house to be the judge of the
qualifications of its own
members (therefore, not to
USSC to review). Held: this
was only a commitment to
House to judge if the
qualifications laid forth in the
Constitution had been met—
doesn't give House right to
create qualifications not
present in Constitution, and
USSC can fully judge this.
Warren quotes Strong
Marbury-esque language in
support – Court cannot
“avoid its Constitutional
responsibilities.”
2. USSC Lacks Judicially Manageable
Standards - USSC “possess the
power to review either legis. or exec.
action that transgresses identifiable
textual limits, but we conclude that
the word “try” in the Impeachment
Clause doesn’t provide an
identifiable textual limit on the
authority which is committed to the
Senate”
III.
Federalism
a. McCulloch v Maryland, 1819. State levies tax (for not being licensed by
state) on notes issued by 2nd Bank of U.S. Held: Bank of U.S. is
constitutional exercise of Necessary and Proper power; therefore, state
can’t tax bank since it’s a fed’l institution. Necessary means convenient
(tax, borrow, conduct war, raise and support armies, and regulate
commerce). Since fed’l law is supreme, state laws must be in conformity
therewith. State can’t have power to destroy federal creature.
i. NP clause
1. Why isn’t “necessary” a least intrusive means test?
a. Textually: Const said “necessary,” not “absolutely
necessary” (art I § 10)
b. Arg from consequences: a least intrusive means test
would mean that whenever there are multiple
means, Congress couldn’t do anything.
2. Limit on how “necessary” means “convenient”:
a. “Let [1] the end be legitimate, let it be within the
scope of the constitution, and all means which are
[2] appropriate, which are [3] plainly adapted to that
end, which are [4] not prohibited, but consist with
the [5] letter and [6] spirit of the constitution, are
constitutional.”
b. Pretext argument
i. USSC will strike down a law if connection
to enumerated power is merely pretextual:
“Should Congress under the pretext of
executing its powers pass law from the
accomplishment of objects not entrusted to
the gov’t,” law will be declared unconst’l.
ii. USSC won’t inquire into degree of
necessity. If law not prohibited, USSC’s
inquiring into degree of necessity would be
“to pass the line which circumscribes the
judicial department and to tread on
legislative ground.” Question of how
vigorous Marshall sees USSC being in
enforcing limits on Congress but he says
“necessary” can’t mean indispensable b/c
would leave Cong w/out options.
3. Is superfluous: All of these things are really arguments that
the power to incorporate a bank is implicit in the
enumerated powers. Case would be same w/out NP clause.
He only talks about NP clause to rebut state’s argument that
NP clause is a limitation on Congress’s implied powers. So
the NP clause, like the 10th am, is superfluous—being
implied, as they are, by the enumeration of powers.
ii. State taxation of fed’l institution
1. Tax conflicts w/ statute creating bank, or maybe w/
congressional power to incorporate bank
2. Arg from consequences: Conflict between state law and
federal power to incorporate the bank (“the power to
destroy” vs. “the power to preserve/create”).
a. If state passes law destroying bank, does that really
defeat power to borrow? Well, fed’l gov’t can pass
law that says no state taxes on banks. SO there’s no
necessary need for a constitutional immunity
i. Institutional limit on Congress to pass these
retaliatory statutes
b. Moreover, state can’t destroy a corporation w/out
violating the Contracts Clause. Art I § 10, cl 1
(Dartmouth College). But that doesn’t mean that
state can’t tax banks. Provident Bank (state can tax
state corp if it makes reservation in charter). To tax
isn’t to destroy—note that the decision to dissolve
the bank would always be made by the corporate
officers.
i. O.W. Holmes: The power to tax isn’t the
power to destroy while this Court sits.
c. But this tax was only on foreign banks, designed to
make nat’l bank less competitive. This is a
discriminatory bank that places nat’l bank at
competitive disadvantage. Hence, a discriminatory
tax is likely to destroy a bank.
i. This is a rules/standards question—cts aren’t
in good position to evaluate the tax, so a
bright line rule disallowing taxes is easier to
apply.
ii. Yet Marshall says he’ll uphold taxes on
bank’s real estate and interest owned. These
are taxes of general applicability.
1. These aren’t taxes on the banks
operation that won’t hurt ‘em too
much b/c of the political check on
taxation. Virtual representation
theory (Jackson’s concurrence in
Railway Express—striking down
laws on E/P grounds only, protects
the rights of those who have no
direct political representation.)
iii. Values served by federalism
1. Subsidiary Principle – If local entity can handle function as
well as fed’l gov’t, let local handle it. It’s good to keep
power as local as possible/feasible and only things that
can’t be done well at local/state level should be delegated
to fed’l gov’t.
2. Self-Determination – Increase chances for democracy
3. Diversity of local situations – Local situations and
conditions can better be taken into account w/ power still
local in the states. Local people should make rules to solve
local problems using local knowledge and preferences.
4. Experimentation – States allow for experimentation w/ new
ideas w/ limited damage if it goes wrong so it increases the
likelihood that things will be tried in the first place. Can’t
afford national failures.
5. Freedom – Dispersal of power safeguards freedom b/c
gives people limited authority. There’s more freedom w/
variation in local laws (Ex: If fed gov’t all powerful could
have taken North OR South view and freed or oppressed
every slave).
b. Immunities
i. Federal regulation of state entity
1. Yes, so long as w/in enumerated power and no cooptation
problem (compare Garcia w/ Printz, New York)
2. Movement to Garcia:
a. CA v US: fed’l regulation on state RRs. Sure,
that’s fine, says Ct.
b. Maryland v Wirtz: FLSA applied to state
hospitals/schools. Fine, says the court.
c. National League of Cities v Usery: wait—we
should treat federal regulation like we treat other
governmental immunities cases. Adopts rule that
when fed’l gov’t regulates states as states, they
can’t intrude on “traditional” gov’tal functions.
i. Test didn’t work: Too much grey area.
ii. Static historical test: nature of gov’t changes
3. Garcia v San Antonio Metro Transit Authority, 1985.
FLSA applied to state employees. Held: doesn’t violate
10th am. Usery overruled. FLSA doesn’t do anything
destructive of state sovereignty or violative of any
constitutional provision; hence, no state immunity from
commerce clause regulation.
a. Political checks will prevent fed’l gov’t from
overreaching
i. Inconsistent w/ strong Marbury—now we
have fed’l officials instead of courts
deciding proper boundaries of federalism.
4. No cooptation of legislative or executive state officials
a. Legislatures
i. New York v US, 1992. In order to clean up
waste, fed’l gov’t provides carrots/sticks to
get state legislatures to regulate, including
ordering states to take title of polluted land
if state didn’t regulate—no opt out for states.
Held: unconstitutional; while Congress has
power to encourage states to clean up waste,
it can’t compel the states to do so.
1. Congress can’t commandeer the
legislative process of states by
compelling them to enact fed’l
regulatory program directly. Hodel v
VA Surface Mining and Reclamation
Ass’n (upholding regulatory scheme
in which states were free to opt out).
b. Executive officials
i. Printz v US, 1997. Brady Act required local
sheriffs to perform background checks on
gun buyers. Held: unconstitutional;
compelled enlistment of state executive
officers for actual administration of fed’l
programs violates the 10th am.
1. Using the states as instruments of
fed’l governance is ineffectual and
endangers states as independent
political entities.
c. We permit fed’l regulation of states but not
cooptation of states b/c if Garcia goes other way,
fed’l gov’t is helpless. If no cooptation, fed’l gov’t
can just get their own officials to administer
programs.
ii. State regulation of federal entity
1. State can’t do so, where employee directly carrying out
business of fed’l gov’t (i.e., where state reg would impede
accomplishment of fed’l gov’tal purpose)
a. Johnson v Maryland, 1920. State arrests fed’l postal
employee for driving w/out state license. Held:
conviction dismissed. State lacks the power to
require fed’l employee performing gov’t business to
interrupt such business to fulfill state requirement of
general applicability.
b. Osborn v. Bank of U.S.: contractor for supplying a
military post w/ provisions can’t be restrained from
making purchases/transporting them by state, or
taxed/fined for doing so.
c. Ohio v. Thomas: soldiers provided w/ margarine as
part of rations in violation of state law. State law
held inoperative “in regard to those very matters of
administration which are thus approved by Fed’l
authority.”
2. State can regulate fed’l employees when not carrying out
gov’t business, or where state has imposed general rules of
local law that only incidentally affect the mode of carrying
out the employment. Johnson v MD (postmaster runs stop
sign performing duties; citation upheld).
a. This is especially true where there is a clear
congressional mandate to authorize state reg.
iii. Federal taxation of state entity
1. Strong limit.
a. Collector v Day, 1871. Fed’l gov’t levies income
tax on salary of state judge. Held: tax
unconstitutional; b/c state judicial officer is
instrumentality employed for carrying into effect
legitimate powers of state gov’t, the judge can’t be
taxed b/c the taxation would interfere w/ exercise of
those powers
2. Equal Representation/Political Check theory
a. In Mcculloch, Marshall argues that you need a
constitutional limitation on the states b/c there is a
danger that the states will tax the fed’l oppressively,
and there’s no comparable danger that fed’l gov’t
will tax the state in the same way b/c of the political
representation by the states.
i. This is different from virtual representation
theory, which is when the person being
subject to tax might lack political power, but
nevertheless there is a political check b/c the
tax is of general applicability and so the
people w/ political power virtually represent
the powerlessness.
b. Framers rejected this notion—10th am limits
authority of fed’l gov’t; don’t rely on political check
c. But states are in much more need of protection than
fed’l gov’t. Fed’l gov’t can nullify state tax w/ law;
state gov’t can’t nullify fed’l tax b/c of Supremacy
Clause. This is backward—states should be able to
tax fed’l gov’t but not vice versa.
iv. State taxation of federal entity
1. Strong limit on state’s ability to tax fed’l institutions—the
power to tax is the power to destroy. McCulloch.
a. Includes even fed’l employees:
i. In Dobbins v Comm’rs of Erie County, it
was held that state can’t levy a tax on salary
or emoluments of an officer of U.S., mainly
b/c officer was an instrumentality employed
for carrying into effect some of the
legitimate powers of the gov’t which
couldn’t’ be interfered w/ by state taxation,
and that the salary of officer was inseparably
connected w/ the office.
b. But legal incidence of tax must fall on fed’l gov’t or
its instrumentality; it’s not enough that economic
burden of tax is passed on to fed’l gov’t. Thus,
state income tax on fed’l employees is permissible,
since legal incidence of tax falls on employee and
not on gov’t. Arizona Dept of Revenue v Blaze
Construction Co, 1999 (private contractor not
immune from state tax on gross receipts for work
done on fed’l project on Indian reservation)
2. no discriminatory taxes
3. if tax is so prohibitory as to constitute a regulation,
consider whether it is a permissible regulation
c. Commerce power
i. “Substantially affects” interstate commerce—from NP clause and
Commerce Clause
1. Gibbons v Ogden, 1824. State law grants steamship
monopoly to P; D operates steamship under fed’l license,
and sued by P for violating monopoly. Held: state
monopoly unconstitutional; the law violates the commerce
clause, b/c congress has already regulated the same thing,
and navigation comes under the commerce power.
“Commerce” is intercourse; “among the several States”
means that commerce may be introduced into the interior
(but not commerce that is solely intrastate that does not
extend to or affect other states). The power to regulate is to
prescribe the rule by which commerce is to be governed.
Since Congress has power to regulate, it occupies the field,
and so means that state can’t concurrently regulate.
a. Johnson’s concurrence: The purpose of Constitution
was to end the mishmash of state commercial
regulations that existed under the articles of
confederation (i.e., prevent parochial/protectionist
discriminatory economic regs). The fact that
congress given the power to regulate commerce
means that it must be an exclusive power;
otherwise, it lacks the power to determine what
remains unregulated.
2. Early distinctions:
a. Manufacturing/production precedes commerce and
isn’t part of commerce. E.C. Knight (Sherman Act
used to attack intrastate monopoly of all of nation’s
sugar production; held unconstitional).
b. Once articles reach final destination, they’re no
longer in interstate commerce and can’t be
regulated. Schechter Poultry Co v US (fed’l
regulation of slaughterhouses held unconstitutional,
since slaughterhouses are after the chickens have
finished moving in commerce)
i. Direct/indirect test:
1. if something’s commerce, Congress
can regulate
2. if something’s not commerce,
Congress only regulate if the effect
on interstate commerce is direct.
a. Direct: Southern Ry,
Shreveport Rate Cases
(prices affect IC)
b. Indirect: Schechter (wages
affect prices affect IC)
3. Problems with test:
a. Doesn’t explain cases, b/c
law in Shreveport is upheld
and only indirect effect on IC
(direct effect on local rates
only) and law in Southern
Railway upheld w/ only
indirect effects on IC (direct
effect was on intrastate/local
trains)
b. Shouldn’t commerce power
include the power to protect
interstate commerce from
indirect effects?
ii. Cardozo concurrence: this view of causation
would “obliterate the distinction between
what is national and what is local in the
activities of commerce. Motion at the outer
rim is communicated perceptibly, though
minutely, to recording instruments at the
center…. To find immediacy or directness
here is to find it almost everywhere. If
centripetal forces are to be isolated to the
exclusion of the forces that oppose or
counteract them, there will be an end to our
federal system.”
c. Can regulate the stream of commerce. Swift v US
(Sherman Act used to attack interstate conspiracy of
livestock dealers not to bid against each other in
local/intrastate markets; held constitutional b/c
prosecution regulated the stream of commerce—the
livestock were only temporarily intrastate).
d. Can regulate intrastate things that threaten interstate
commerce.
i. Physical interference
1. US v Coombs (fed’l crime to plunder
wrecked boat upheld; Congress must
have power to protect interstate
commerce/navigation).
2. Southern Ry v US (fed’l reg required
all trains on interstate tracks—even
stuff only moving intrastate—to have
safety equipment; held
constitutional, since can protect
interstate commerce from whatever
the source of danger, even intrastate
stuff).
ii. Economic interference
1. Shreveport Rate Cases (ICC
permitted to regulate intrastate RR
rates to prevent unreasonable
discrimination against out of state
traffic (really long trips in tx were
improperly cheaper than short trips
between tx and la; Congress has
power to regulate intrastate
commerce where necessary to
protect interstate commerce)
3. Commerce power broadens
a. Jones & Laughlin Steel, 1937. NLRB upheld;
regulation is constitutional. No need to refer to
stream of commerce cases. Congress can protect
interstate commerce no matter what the source of
the dangers which threaten it. If intrastate activities
have such a close and substantial relation to
interstate commerce that their control is essential or
appropriate to protect that commerce from burdens
and obstructions, Congress can regulate. If there’s a
work stoppage due to industrial strife, there would
be a most serious effect upon interstate commerce.
4. Can aggregate little things to add up to “substantially
affects”
a. Wickard v Filburn, 1942. AAA regulates allotments
of wheat crops; farmer prosecuted for growing extra
for home consumption. Held: b/c homegrown
wheat affects demand for wheat in commerce,
which Congress can regulate, congress can regulate
it too. “The commerce power is not confined in its
exercise to the regulation of commerce among the
states. It extends to those activities intrastate which
so affect interstate commerce, or the exertion of the
power of Congress over it, as to make regulation of
them appropriate means to the attainment of a
legitimate end, the effective execution of the
granted power to regulate interstate commerce.”
Even if person’s activity is local and may not be
regarded as commerce, it may still be regulated by
Congress if it, in the aggregate, exerts a substantial
economic effect on interstate commerce.
5. Is there any limit—after Wickard, no stopping point.
a. US v Lopez, 1995. Congress passes Gun Free
School Zones Act. Held: unconstitutional. Under
commerce power, Congress can regulate: (1) The
use of the channels of interstate commerce (e.g., can
keep the channels of interstate commerce free from
immoral/injurious uses; Darby); (2) The
instrumentalities of interstate commerce, or persons
or things in interstate commerce, even though the
threat may come only from intrastate activities
(citing Shreveport Rate Cases, Southern Ry); and
(3) Those activities having a substantial relation to
interstate commerce; i.e., those activities that
substantially affect interstate commerce. This is a
substantially affects case; but: (1) activity being
regulated is noneconomic; (2) no congressional
findings of effect on interstate commerce; (3) no
jurisdictional element in crime; and (4) the claimed
justifications for substantial effect on interstate
commerce (costs of crime/nat’l productivity) pile
inference upon inference in a way that don’t have a
stopping point. Inconsistent w/ federalist/10th am.
i. Kennedy/O’Connor Concurrence: don’t
question precedents, but don’t allow fed’l
gov’t to invade areas of traditional state
concern
b. US v Morrison, 2000. Congress passes Violence
Against Women Act, after making extensive
findings about effect of violence against women on
interstate commerce; no jurisdictional element.
Held: law unconstitutional. Congress lacks the
power to regulate non-economic activity, where the
only substantial effect is the cost of crime reasoning
rejected in Lopez.
c. Problems w/ Lopez/Morrison:
i. Economic/noneconomic distinction is hard
to apply—just like old limitations, it breaks
down
1. Why isn’t mugging an economic
activity? Everything is economic
activity.
2. Who do you look at: evildoer or
victim? If evildoer, relevant activity
in Lopez is gun possession; if victim,
relevant activity is running schools.
Court assumes that evildoer’s
activity is what is relevant
ii. Economic/noneconomic distinction
inconsistent w/ past caselaw
1. Coombs permitted fed’l crime of
stealing from wrecked vessel, based
on substantial effect on interstate
commerce. Falls on wrong side of
distinction, especially since it seems
we look at the activity of the
evildoer.
a. But we can uphold Coombs
as a regulation of the
instrumentalities of interstate
commerce. We don’t need
the substantial effects prong
at all.
2. Doesn’t overrule Wickard b/c it’s
economic activity
iii. Economic/noneconomic distinction not
based in constitutional doctrine
1. What should matter is the effect on
interstate commerce, not the source.
2. But maybe this distinction has to do
w/ the New Deal; Congress gets
greater power to regulate economic
life, but we don’t need to go beyond
that. We’re drawing heavily on the
Cardozo concurrence from
Schechter—it’s all a question of
degree. If claimed justification for
substantial effect can’t pass the
straight face test, then it shouldn’t be
upheld.
d. Case shows weakness of political checks—Gun
Free School Zone Act was completely useless, just
grandstanding by Congress. So if the political
checks don’t work in the context of the commerce
clause, why do we pretend that they’ll work to
check fed’l regulation of states (Garcia)?
ii. What is commerce—limits on regulation of interstate commerce
itself
1. Power to use commerce power to achieve noncommercial
ends
a. Lottery Case, 1901. Congress bans interstate
transport of lottery tickets. Held: law upheld; lottery
tickets are articles of commerce, and the power to
regulate them includes the power to prohibit their
movement in interstate commerce. Consistent w/
10th am b/c you can still deal in lottery tickets
intrastate
b. Hammer v Dagenhart, 1918. Congress bans
interstate transport of products manufactured by
child labor. Held: law unconstitutional; commerce
power doesn’t extend to standardizing the ages at
which kids can be employed. Previous cases
permitting prohibitions rested upon character of
goods dealt w/; here, nothing is wrong w/ the goods
produced by child labor.
i. Holmes dissent: a prohibition of interstate
commerce isn’t a ban; you can still do the
activity intrastate.
c. Arguments from Lottery Case dissent and Hammer
v Dagenhart
i. Purpose of Commerce Clause: The purpose
of Commerce Clause is to have Congress
secure the equality and freedom in
commercial intercourse (to promote free
trade), not to permit the creation of
impediments to such intercourse. You can
only ban stuff when the character of the
particular subjects dealt w/ meant that the
power to regulate was the power to prohibit
(i.e., need to prohibit to protect the channels
of interstate commerce); e.g., Marigold
(upholding ban on importation counterfeit
coins)
1. But consider Jefferson’s Embargo
(total ban on commerce; upheld as a
regulation of commerce). The power
to regulate is the power to prohibit.
Whether the thing is currently
thought evil is irrelevant; we don’t
want courts second guessing
congress in this way. Moreover, all
regulations are prohibitions; just
rewrite the prohibition as a
regulation or the converse
2. Commerce Clause also had purpose
of defusing the collective action
problem of the states in limiting
commerce of bad things. Purpose of
clause wasn’t just to promote free
trade.
ii. Pretext argument from McCulloch—this so
called regulation is a pretext for Congress’s
exercising the states’ police powers. Hence,
this is bad in two ways: (1) exceeds
Congress’s enumerated power; (2) intrudes
on state autonomy by trying to exercise
states’ police powers. Law on its face
shows that it’s an attempt to ban child labor.
We know that this is true b/c Congress then
switches and uses a tax to suppress child
labor when its commerce clause regulation
is struck down
1. Congress’s power is plenary; they
must be able to exercise their powers
notwithstanding any indirect effects
a. After all, we can find affects
of interstate spread of
lotteries/child labor (spread
of unfair labor practices thru
unfair competition;
misallocation of disposable
income) that Congress can
regulate. It’s only a lack of
imagination that calls this a
pretext
2. Dual federalism idea (the idea that
the fact that something is w/in state
power is a limit on fed’l power even
if it’s technically w/in enumerated
powers) is rejected. Darby
a. But nevertheless, we don’t
want Congress doing an endrun around 10th am by
accomplishing forbidden
ends by using their given
powers. If we let Congress do
this, then 10th am and
doctrine of enumerated
powers are meaningless.
b. Whether we accept this
depends on our view of
purpose of Commerce
Clause. Since we know
purpose wasn’t just free
trade, but removing
unreasonable restraints on
trade by having central
regulation of commerce, we
don’t think that CC imposes
limits on Congress’s motives
for regulating.
3. Besides, laws have many purposes…
empirical difficulties w/ determining
purpose of law and cross-purposes,
etc.
d. Spending power
i. US v Butler, 1935. AAA authorized agency to bribe farmers to
limit production. Held: unconstitutional exercise of spending
power. Spending power is independent of enumerated power,
limited only by General Welfare Clause. Nevertheless, the AAA
violates 10th am; this is an attempt to purchase compliance that
Congress can’t command; they conditional gifts aren’t really
voluntary
1. Butler tries to have its cake and eat it too: the power to
spend for the general welfare is an independent power, but
it cannot be used for an illegitimate purpose. These are
incompatible, as the power to spend means making offers
that cannot be refused, and it abolishes any barriers limiting
fed’l power.
2. What does General Welfare Clause mean?
a. It’s a limit rather than grant of power. If it was a
grant of power, then fed’l power would be limitless;
and why would you need enumeration if you could
tax/spend for general welfare?
b. Hamilton/Story view/Adopted by Butler Ct. of
Independent Spending Power (not limited to
supporting enumerated powers)—Use tax power
and tax $ to promote general welfare by subsidizing
industry and reducing dependence on foreign
nations.
i. Arg: textually supported; plus, if not an
independent power, then it would be
superfluous (it would be implied from NP
clause).
ii. South Dakota v Dole, 1987. Congress conditions highway funds on
raising min drinking age to 21. Held: constitutional. law is w/in
the spending power; the relevant limit on which is that the power
may not be used to induce the states to engage in activities that
themselves are unconstitutional. Suggests that whether spending is
w/in general welfare may be judicially unreviewable. Congress
must condition funds unambiguously, enabling states to exercise
knowing choice. Conditions on fed’l grants may be illegitimate if
they are unrelated to the fed’l interest in particular nat’l
projects/programs (here, concern for underage drunk driving
enough of a link to highway spending).
1. O’Connor dissent: Congress has the power to spend for the
general power. Inquiry is whether the spending
requirement is a condition on a grant or whether it is a
regulation. The difference turns on whether the regulation
specifies in some way how the money should be spent, so
that Congress’s intent in making the grant will be
effectuated. Congress has no power under the spending
clause to impose requirements on a grant that go beyond
specifying how the money should be spent. A requirement
that is such a specification isn’t a condition, but a
regulation, which is valid only if it falls w/in one of
Congress’s delegated powers.
2. Does Dole overrule Butler? No; distinguish based on how
coercive bribe to farmer vs bribe to state
e. Taxing power
i. Like the commerce power, taxing power given wide latitude and
lets Congress do anything. Kahringer.
1. Probably should be treated differently, however. We
wouldn’t want Lopez to be resurrected as a prohibitive tax
on guns in school zones.
ii. Is an independent power; don’t have to show tax is for other
enumerated power. US v Butler, 1936.
iii. A measure is a tax (and thus w/in taxing power) only if it’s really a
tax (otherwise, must be authorized by other granted authority)
1. Must raise some revenue, even if minimal.
2. Pretext argument—tax is really prohibitory reg:
a. Child Labor Tax Case, 1922. Congress imposed
10% tax on profits of child labor. Held: tax
unconstitutional. This tax is a pretext for a
regulation; tax has scienter requirement, looks like a
reg. Taxes sometimes have dual motives: revenue
production and shaping society’s behavior. But
when tax is so much a penalty that its claim for
revenue production is questionable, then it’s a
penalty. Case controlled by Hammer.
b. If conditions/etc under the tax could be justified by
enforcement of tax (e.g., a registration requirement),
then tax more likely to be upheld.
c. Pretext arg gutted
i. US v Kahriger, 1953. Congress imposes big
tax on interstate gambling, and legislative
history indicates purpose was to ban
gambling. Held: tax constitutional. Tax not
invalid simply b/c it deters or discourages
activity it targets.
iv. Other Limits:
1. Textual limitations:
a. Taxes must be uniform throughout US. Art I § 8 cl
1
b. Any direct tax must be proportional to population of
states. Art I § 9 cl 4
i. Income tax must be direct tax. Pollack.
Overruled by 16th am.
c. No tax/duty may be laid on exports. Art I § 9 cl 5.
i. Although congress can’t impose tax on
goods in transit to foreign country, they can
impose tax intended for export, so long as
tax is nondiscriminatory (i.e., the tax isn’t
imposed b/c the goods are intended for
export).
2. Can’t be used to violate specific limitations in bill of rights;
e.g., tax on people who don’t testify when they are Ds in
criminal trials
f. War Power
i. Lots of grants of power to Congress (power to declare war, art I §
8 cl 11, power to raise and support armies, art I § 8 cl 12, power to
provide/maintain a navy, art I § 8 cl 13, and the power to spend for
common defense, art I § 8 cl 1) and to Prez (CinC, art II § 2 cl 1).
Couple these w/ NP clause and inherent authority of US to conduct
foreign affairs.
ii. Woods v Cloyd W Miller Co, 1948. Fed’l rent freeze to
accommodate returning GIs. Held: reg constitutional. War Power
includes the power to remedy the evils which have arisen from its
rise and progress and continue for the duration of the emergency
(which isn’t necessarily coterminous w/ duration of hostilities)
1. Jackson concurrence: However, war power is as valid a
ground for federal rent control now as ever. Still technically
in a state of war. While war powers may not be indefinitely
prolonged merely by keeping legally alive a state of war
that had in fact ended, and nor can they persist for as long
as the effects and consequences of war do—i.e., are
permanent—they still exist now, when we still have armies
abroad and there’s been no peace terms.
iii. Arguably, war power also limited by Bill of Rights (see Reid v
Covert, but consider Korematsu)
g. Power over Foreign Affairs
i. Power over foreign affairs comprised of specific grants of power
(regulate foreign commerce, art I § 8 cl 3, and treaty power, art II §
2 cl 2), coupled w/ implied authority of US to exercise those
powers inherent in concept of nationhood/sovereignty.
ii. Treaty power not subject to limitations of enumerated powers.
1. Missouri v Holland, 1920. Migratory Bird Treaty w/
England. Held: even though Congress can’t regulate
migratory birds directly thru any enumerated power (e.g.,
commerce), it can under the treaty power. Art II, § 2
expressly delegates power to make treaties, and by Art VI,
treaties made under authority of US are supreme. If treaty
is valid, no disputing validity of Act under NP Clause.
iii. Treaties enacted under treaty power cannot contravene
constitutional limitations contained in Bill of Rights.
1. Reid v Covert, USSC, 1957: Held: civilian dependents of
members of armed services stationed abroad couldn’t be
court martialed for capital offenses during peacetime.
Gov’t had relied in part on executive agreements w/ other
countries that purported to provide for military jurisdiction.
Held: Nothing in supremacy clause says that treaties and
laws enacted under them don’t have to comply w/
constitution. History of debates show that reason treaties
were not limited to those made in “pursuance” of
Constitution was so agreements made under Articles of
Confederation would remain in effect, not b/c treaties
aren’t subject to constitutional limitation.
iv. Treaty power’s limit defined by what are proper subjects of
international negotiation
1. De Geofroy v Riggs, USSC, 1890: French citizens claimed
an inheritance from uncle of land in DC. MD law,
applicable in DC, denied nonresident aliens the right to
inherit property; however, a subsequent convention
between US and France provided that French citizens
should enjoy the right to inheritance wherever they could
own real estate, as they could in DC. Held: convention
provision valid. Treaty power extends to all proper
subjects of negotiation between nations, among which is
protection of citizens’ property, including inheritance.
Other than by other restraints found in constitution against
action of gov’t, treaty power is unlimited.
2. Problem of intermeddling.
a. Implicit limitations from tradition: there’s got to be
a real need for concerted international action, not
just a pretext to meddle in local affairs.
b. No Historical Stasis: Things that used to be thought
local are now increasingly deemed proper subjects
for international treaties; e.g., human rights treaties.
v. Power to regulate foreign affairs is exclusive to Congress
1. Zschernig v Miller: MA passed law prohibiting granting of
gov’t Ks to companies doing business w/ Burma. Held:
law struck down as impermissible state regulation of
foreign affairs.
2. Extent of preclusion unknown: states can assuredly apply
traffic laws/etc to foreigners, even though this has impact
on foreign affairs.
vi. Prez has broad power to regulate w/ respect to foreign affairs not
limited by 10th am. thru executive agreements
1. US v Curtiss-Wright Export Corp, 1936. Prez, thru
executive agreement bans export of machine guns to region
in Central America engulfed in war. Held: law is valid b/c
fed’l gov’t’s powers w/ respect to foreign affairs are
unlimited. That gov’t has only enumerated powers and NP
powers is true only in respect to internal affairs. Since the
states never possess international powers, they were
transmitted to the US w/out reserve from Crown via
colonies as a whole. Investment of fed’l gov’t w/ powers
of external sovereignty didn’t depend upon the affirmative
grants of constitution; the power to declare/wage
war/peace, to make treaties, etc., even if never mentioned
in Constitution, would have vested in fed’l gov’t as
necessary concomitants of nationality. Prez alone has the
power to speak/listen as representative of nation. He makes
treaties w/ advice/consent, but he alone negotiates
a. Generally speaking, consider whether the executive
agreement is w/in Prez’s power, either delegated
from Congress (its power to regulate foreign
commerce) or w/in Prez’s constitutionally delegated
power as CinC, or his inherent power of executive.
h. Dormant Commerce Clause
i. Commerce power isn’t exclusive to Congress. When framers
wanted to make a power exclusive, they said so (e.g., treaty power,
coin money, etc.).
1. But in some respects, it must be exclusive.
a. Purpose of Commerce Clause: avoid collective
action problem of states by making power
exclusive.
b. See also Federalist 32 (Hamilton): arguing for
implicit exclusivity wherever the Constitution
granted an authority to the Union to which similar
authority in the States would be absolutely and
totally contradictory and repugnant.
c. If we let states regulate freely, reasoning that
Congress can step in, we should remember
institutional limits: Congress can’t regulate
piecemeal and preempt all bad state regs
2. Congress can always overrule a preemption by enacting a
law permitting state regulation. Commerce Clause isn’t an
absolute ban on state regulation of interstate commerce.
a. In re Rahrer, USSC, 1891. In Leisy v Hardin,
USSC held that Commerce Clause prohibited state
from prohibiting sale of out-of-state alcoholic bevs;
Congress then passed law subjecting imported bevs
to state law. Held: there is a limit to Congress’s
ability to provide relief from positive restrictions on
states’ powers. Commerce clause protects states
from encroachments by confiding regulation of
commerce to congress. But Congress can then
conclude that common interests don’t require entire
freedom in traffic of alcoholic bevs. This isn’t a
(unconstitutional) delegation of legislative power,
but rather Congress’s own regulation, subjecting
alcoholic bevs to reg of states.
i. Limits court was referring to were things
like coining money, which Congress can’t
permit states to do. Art I § 10 cl 1. But
Congress can permit the state, e.g., to levy
export taxes. See art I § 10 cl 2-3.
ii. Early developments
1. Two competing theories:
a. From Gibbons: state laws based upon the police
power were permissible even if they impeded
interstate or foreign commerce.
b. From Cooley: state action precluded only where
uniformity was required.
i. Cooley v Board of Wardens, 1851. State law
required pilots on ships. Held: law is valid;
only where subjects of power are by nature
national and need uniformity, is it reserved
exclusively for Congress, and pilotage laws
aren’t “national”
2. Court develops modern test. Three kinds of laws run afoul
of dormant commerce clause:
a. Laws whose purpose is to regulate interstate
commerce, or whose effect is to control out-of state
transactions
i. Buck v Kuykendall, USSC, 1925. State law
prohibits common carriers for hire
(including those engaged exclusively in
interstate commerce) from using highways
by car using regular routes w/out having
gotten permission from state official
certifying that public convenience/necessity
require operation. P refused a permit b/c, as
according to state law, no permit granted
where route already being adequately served
by another permit holder. Held: state law
invalid. States can have safety regs, but this
statute just prohibits competition, and its test
for deciding is peculiarly fed’l (existence of
adequate facilities for conducting interstate
commerce). This is a reg of interstate
commerce, and a forbidden one—it
obstructs rather than merely burdens
interstate commerce.
ii. Contrast: Bradley v Public Utilities
Comm’n, USSC, 1933. P applied to state
comm’n for permit to operate by motor as
common carrier interstate. Comm’n said no,
b/c route was so congested that proposed
route would make road unsafe. Held: state
action upheld against dormant commerce
clause challenge. This isn’t Kuykendall, b/c
there the purpose was to prevent
competition, whereas here the purpose is
safety. Preventing accidents is a local
problem; police power to protect against
them. Evidence was adequate to show that
denying permit was necessary to promote
public safety.
b. Laws that discriminate against interstate commerce
c. Laws that don’t discriminate against, but
nonetheless burden interstate commerce
i. Judges are concerned about multiple
burdens problems
1. Wabash, St. L. & Pac Ry v Illinois,
USSC, 1886. Illinois passed statute
criminalizing unjust discrimination
in rates. D indicted, based on goods
shipped from IL to NY. Held: IL
statute unconstitutional. If every
state could fix its own rules for
prices/etc, then interstate
transportation would be harassed;
preventing this is purpose of
commerce clause, which would be
useless if it didn’t preempt this kind
of state action.
a. Three justices dissented,
saying that they don’t think
state loses power to regulate
the charges of its own RRs in
its own territory simply b/c
the goods have been brought
from or will leave the state.
This is like decisions
allowing states to have toll
roads. Local roads, bridges,
and RRs are local and can be
regulated by states, so long as
Congress hasn’t regulated
them (i.e., no dormant
commerce clause problem).
Only if states’ laws
discriminate adversely to
other states do the laws
violate commerce clause.
2. Bibb v Navajo Freight Lines, USSC,
1959. State law required use of
certain type of uncommon rear
fender mudguard on trucks operating
on state’s highways. Type of
mudflap required was banned in
another state. Held: this is one of
those cases where local safety
measure that are nondiscriminatory
place an unconstitutional burden on
interstate commerce (b/c of conflict
w/ other state’s safety law). A state
that insists on design out of step w/
other states can only do so when the
marginal gain of adding new
requirement is compelling; here, the
relative gains from using these kinds
of mudflaps are slight at best.
iii. The test: (1) assuming no conflict, (2) and state law is rationally
related to legitimate state purpose, (2) and if a discrimination
against interstate/foreign commerce, it is the least discriminatory
means, (4) the burdens placed on interstate commerce aren’t
clearly excessive in relation to the benefits the law affords the
state.
iv. First, if there’s a law, make sure that state and fed’l law are in
conflict.
1. Gibbons: fed’l license conflicted w/ state granted
monopoly. Chancellor Kent in lower court pointed out that
the license was really about the enforcement of the tax on
ships. It was a tax enforcement device, not an affirmative
authorization to engage in interstate commerce.
2. Village of Kake v Egan: fish traps used by native
Americans in Alaska. State bans them—conservation
measure. Indians have two licenses from fed’l gov’t: (1)
from Forest Service to anchor their traps in national forests;
(2) from Army corps of engineers that allows them to
obstruct navigable waters. Held: no conflict. These
licenses aren’t necessarily affirmative permission—really,
they were just exceptions to general prohibitions. The
Army Corps of Engineers, e.g., didn’t really want to
promote obstructions in the stream—they wanted them
limited. The national forests license was granted b/c it
reasoned that fish traps wouldn’t be that much a burden.
3. Things to look for: statute’s wording, purpose, and etc.
v. Legitimate state purpose
1. No regulation of interstate commerce: this is where Buck v
Kuykendall fits in. Though note that Bradley permitting an
almost identical regulation b/c the state purpose there
wasn’t to regulate interstate commerce but rather to protect
public safety.
2. No economic protectionism: this is another way of talking
about nondiscrimination principle
3. Make sure to look at whether the state purpose is rationally
related to the statute’s means
vi. Assuming no fed’l law, consider whether the state law/reg/tax is
discriminatory against interstate commerce. Such a law is
unconstitutional per se, unless the reg isn’t really about economic
protectionism, but the state is able to show that there are no less
discriminatory alternatives for attaining a legitimate local interest.
1. Facial discrimination: de jure discrimination
a. Heavy presumption of invalidity. But consider
whether there are similar burdens on intrastate
commerce from other statutes. Sporhase v
Nebraska, 1982 (NE law barred shipment of ground
water out of state if water needed locally; this de
jure discrimination upheld b/c another NE law
strictly limited the use and transfer of ground water
w/in the state: “a State that imposes severe
withdrawal and use restrictions on its own citizens
is not discriminating against interstate commerce
when it seeks to prevent the uncontrolled transfer of
water out of state”)
b. But see The Dean Milk case. WI has ordinance
requiring milk sold in city to be processed w/in 5
miles of the city. Is this discrimination against
interstate commerce? It means IL milk producers
can’t compete. But is also prevents most WI milk
producers from competing in Madison WI. Held:
struck down, even though we’d think the fact that
most of WI was also discriminated against would
mitigate the worry against discrimination against
out-of-staters.
2. Discriminatory impact: de facto discrimination
a. Hunt v Washington. State said that you couldn’t
put extra info on apples sold in stores other than
FDA grade. This discriminates in fact against
apples from all other states, which use extra grading
systems (but not this state). Reg struck down, b/c
out-of-staters bear burden while local competitors
could continue to do business as normal.
3.
4.
5.
6.
b. But just b/c industry/group that is burdened most is
concentrated out of state, that doesn’t make law
discriminatory, so long as law treats similarly
situated in-state and out-of-state members of same
industry
i. Comm Ed v Montana. Need low sulfur coal,
which Comm Ed buys from Montana.
Montana imposes a hefty severance tax.
About 90% of coal extracted in Montana is
shipped to Illinois and other Midwest states.
This is de facto discrimination. Held: law is
valid, b/c although out-of-staters bear 90%
of burden, the tax didn’t distinguish between
in and out of state consumers.
Discriminatory as applied
a. This is what Dean Milk case was about.
Complete ban of intra- and interstate commerce in an
article is fine. Nothing mandates that interstate commerce
get a comparative advantage. Woodruff v Parlam, 1868
(complete ban on widgets).
a. Dissenting opinion in Woodruff. What if subject of
tax was cotton, a good that is almost always
produced out-of-state. If you’re really interested in
protecting out of state interests, then you can’t
ignore de facto discrimination.
Make sure that in-staters and out-of-staters actually
compete; if they don’t, then no problem b/c eliminating
discriminatory state law won’t further Commerce Clause
purpose of preserving nat’l market for competition
undisturbed by preferential advantages conferred by state
upon own citizens
Even if law is discriminatory, if there’s no way of
accomplishing end but thru discriminatory means, then it’s
fine—but this is very strict scrutiny.
a. City of Philadelphia v New Jersey, USSC, 1978.
State law prohibits importation of solid/liquid waste
originated/collected from outside the state. Held:
Generally, laws of economic protectionism are
struck down, but laws of safety/health that merely
burden interstate commerce are upheld unless the
burden imposed on such commerce is clearly
excessive in relation to the putative local benefits.
But evils of protectionism can reside in legislature’s
choice of means as well as end. Here, end of law is
fine, but means are protectionist; law imposes on
out-of-state interests the full burden of conserving
the state’s remaining landfill space. Quarantine
cases distinguished: those laws didn’t discriminate
against interstate commerce as such, but simply
prevented traffic in noxious articles, whatever their
origin; mere traffic in waste doesn’t endanger
health—the harm arises after its disposal (at a point
when there is no basis to distinguish out-of-state
from domestic waste).
vii. If state law is nondiscriminatory, look for burdens on interstate
commerce and perform balancing test
1. South Pacific Co v Arizona, 1945. State law prohibits
operation of trains greater than a certain length (and almost
all trains are longer than that length). Held: law invalid, b/c
the state reg substantially burdens interstate commerce on a
subject that mandates uniform rule, and b/c balancing of
interests shows that local concern doesn’t outweigh
national interest, since value as safety reg is slight. Here,
long trains is standard practice, and length of trains is a
question demanding uniformity. Vast majority of trains in
Ariz are interstate, and would be greatly burdened by
complying w/ Ariz reg. Nor does balancing of interests
save the reg; the state law makes train operation more
dangerous and thus has dubious advantage over
unregulated train lengths. (number of accidents increased
due to increased traffic).
2. Easy cases are where state interest is weak and burden is
high, or where state interest is high and burden is low.
3. Hard case: strong burden and state interest (see if law can
be invalidated on other grounds to avoid this question, as in
the Dean Milk case)
a. Hypo: Can state ban sale of Yellow margarine?
Held: yes, b/c state has a substantial interest in
preventing fraud (might try to pass margarine off as
butter). This interest justifies complete ban.
Lesson: look to see if interstate commerce can still
be conducted somehow (e.g., by putting milk in
paper cartons, by leaving margarine white, etc.)
b. Cloverleaf case: milk cartons. State of MN decides
you can’t sell milk except in paper cartons, whether
in or out of state. All sorts of good reasons: they’re
safe, they don’t break, they’re easier to dispose of
than plastic. Substantial interest in protecting
environment. Burden wasn’t so great, b/c you could
sell out of state milk if you put it in paper carton
(though there was concern about whether this was
designed to further MN’s paper industry). Law was
upheld.
4. In evaluating burdens, make sure to consider other states’
statutes; e.g., Bibb v Navajo Freight Lines and the problem
of multiple burdens. Alternatively, consider whether state
statute is superfluous.
5. Whether state law is least burdensome means isn’t relevant.
a. South Carolina State Highway Dept v Barnwell
Bros, Inc, 1938: USSC reversed lower court, which
had struck down state’s 90-inch width limit for
trucks b/c a 96-inch limit would have been just as
effective and less burdensome. USSC remarked
that this is a legislative rather than a judicial choice.
b. Clover Leaf case: USSC didn’t care that using paper
cartons wasn’t least burdensome way for state to
accomplish environmental goals.
viii. Market participant exception
1. If state enters marketplace as a participant instead of as a
regulator/taxer, then inasmuch as its actions are like those
of a private party, then it’s exempted from dormant
commerce clause.
a. Justification: Framers didn’t intend to restrict states’
ability to operate freely in the market. Also,
concerns for state sovereignty. Finally, b/c market
forces will prevent state from acting economically
irrationally by favoring own citizens, there’s less of
a need for judicial involvement.
2. Reeves v Stake, USSC, 1980. State law in time of shortage
restricted sales of cement from state cement plant to state
residents. States are free to enter the marketplace
themselves (Alexandria Scrap: MD offered bounty for MDtitled junk cars; upheld even tho didn’t give same bounty
for other states’ cars.) Commerce Clause doesn’t limit
states’ ability themselves to operate freely in free market.
Moreover, states, when acting as proprietors, get freedom
to decide w/ whom to deal, just as nonstate actors
a. Objection: burden is the same whether state is
regulator or participant
b. Objection: states as market participants don’t act as
rational utility maximizers, they favor those who are
politically advantaged.
c. Objection: Maybe we should allow these things
broadly, b/c Congress can always step in and fix
things. But c’mon, if you punt like this, nothing
ever gets fixed.
3. Solution: define the market narrowly so as to keep doctrine
from swallowing up the rule that states may not impose
burdens on interstate commerce (and therefore be leery of
imposing downstream restrictions).
ix. Privileges and Immunities
1. Art IV: “The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several
States.” This is non-discrimination provision that overlaps
w/ dormant commerce clause
2. Difference: Discriminations under privileges and
immunities clause are on basis of where you live.
Discriminations under dormant commerce clause are on
basis of nature of economic transaction.
a. Some things offend both clauses but the application
of the two clauses not identical. Differences:
i. Dormant Commerce Clause: prohibits
discrimination against out-of-state goods.
Could have in-state citizen dealing in out-ofstate goods effected by state law.
ii. Privileges and Immunities: prohibits
discrimination against out-of-state persons.
Could have tax on property no matter where
located but only an out-of-state citizen has a
privileges and immunities claim where both
in and out of state may have dormant
commerce clause claim.
iii. Privileges and Immunities Clause prohibits
only discrimination and don’t have second
strand like there’s in dormant commerce
clause of no unreasonable nondiscriminatory
burdens
3. Test:
a. Does challenged law affect a fundamental
right/privilege/immunity that falls w/in purview of
Clause?
i. E.g., right to travel, to reside in a state, to do
business in a state (we’re talking private
sector—not a right to public employment),
to hold property, etc. Things basic to
livelihood.
b. Is law’s discrimination of a type prohibited by
Clause?
i. i.e., this isn’t a protection of fundamental
rights. There must be a discrimination
against out of staters
c. Does the state have a substantial reason that justifies
its discrimination against citizens of other states?
i. E.g., do noncitizens constitute a unique or
peculiar source of the evil at which law is
aimed? Is discrimination closely related to
state’s objectives, and are there no less
discriminatory/restrictive means of
accomplishing state’s goals?
IV.
Separation of Powers
a. Checks and balances
i. Purpose of SoP is not to protect the branch’s powers but rather to
safeguard individual rights. Hence, encroachments can’t be waived
by branch whose powers may have been impaired (New York v
US; Chadha (invalidating legislative veto provision on statute that
prez had signed); Myers v US (invaliding statute limiting prez’s
power to fire postmaster even though statute had been signed by
prez)).
ii. Vesting clauses:
1. Art I § 1: legislative
2. Art II § 1: executive
3. Art III § 1: judicial
iii. But powers are commingled to create overlapping responsibility.
“The greatest security against tyranny—the accumulation of
excessive authority in a single Branch—lies not in a hermetic
division among the Branches, but in a carefully crafted system of
checked and balanced power within each Branch.” Mistretta.
iv. Interbranch disputes rarely get into court. SoP issues often pose
problems of standing and ripeness, and may be nonjusticiable
under PQ doctrine. Or it just may take forever to get the courts
(e.g., legislative veto took 50 years before Chadha)
v. Things to look for in SoP problems:
1. Text: textual grant of power to one branch or another
2. Aggradizement: one branch aggrandizes itself by
encroaching upon or usurping functions that are more
appropriately performed by coordinate branch
3. Encroachment: one branch encroaching on another b/out
aggrandizing by trying to limit other branch’s powers.
b. Presidential exercise of lawmaking power
i. Youngstown and inherent executive powers
1. Art I § 1 vests legislative power in Congress; ergo, prez
cannot make laws—prez can’t, under vesting/take
care/CinC clauses or theory of unitary executive, assume
dual role of lawmaker and law enforcer.
2. Youngstown Sheet & Tube Co v Sawyer, 1952. Prez, to
avert wartime steel strike, ordered seizure of nation’s steel
mills. Statute permitted seizure in certain situations, but
not thru this mechanism. Held: prez lacks inherent power
to do so.
a. Black’s opinion:
i. Prez must have affirmative statutory or
constitutional authority
1. no affirmative statutory authority:
expressio unius.
2. no constitutional authority: no
inherent powers; this isn’t exercise
of war powers. Prez’s seizure order
looks like a statute, but the idea that
prez is executive refutes idea that he
is to be a lawmaker.
b. Jackson’s concurrence:
i. Framework of prez’al power:
1. When prez acts pursuant to
express/implied authorization of
Congress, his authority at max—all
of his own plus all that Congress can
delegate. Only unconst’l if fed’l
gov’t lacks power
2. When prez acts in absence of
grant/denial, he relies on
independent powers, but there is a
“zone of twilight” where
prez/congress share power.
Congressional inertia permits prez’s
action. Constitutionality turns on
“the imperatives of events and
contemporary imponderables rather
than abstract theories of law.”
3. When prez acts against congressional
authorization, he has lowest power:
only his own minus what congress
can strip. Presumption against
constitutionality.
ii. This is in third category: expressio unius.
1. no inherent powers to seize mills.
2. Framers rejected this model—too
much like George III.
3. Not in military powers
a. This looks more like
Congress’s
“raising/supporting” than
prez’s CinC
b. War powers less persuasive
justification in domestic
context
c. Frankfurter’s concurrence:
i. No statutory authority: expressio unius
ii. Constitutional authority: Look to tradition.
All past presidential exercises of claimed
“emergency” powers are a gloss on the
constitution; however, none are like this, a
seizure of steel mills to avert a strike in
peacetime.
d. Dissent:
i. Congress hasn’t directly spoken
ii. In cases of silence from congress, prez can
act in emergency: Washington’s calling out
militia to stave off tax rebellion,
Washington’s issuing Proclamation of
Neutrality, Adams’s arrest warrant to
execute extradition provisions of treaty,
Jefferson’s Louisiana Purchase, Monroe
Doctrine, Jackson’s removal of deposits
from Bank of US, Lincoln’s raising army
and paying them w/out appropriation,
Lincoln’s blockade of south, Lincoln’s
emancipation proclamation,
1. Best precedent: Lincoln’s seizure of
RR/telegraph lines to DC. Congress
didn’t ratify for many mths, but
sponsors said that they were only
confirming power prez already
possessed—this shows that Congress
rejected view that prez’s acts were
illegal until ratified.
3. Arg for broad inherent powers from vesting clause:
a. Textual Arg. – Art I §1 gives legis. powers “herein
granted” limiting legis powers to enumeration in
Art I §8 and Art III §2 gives jud. power only in
specified types of cases. There’s no similar limiting
lang. in Art II §1 so change in lang must mean that
broad grant of exec power was intended. Vesting of
exec. power w/out limitations was deliberate.
Enumeration isn’t useless b/c it either limits exec
auth. or gives something not clearly exec (treaty,
CinC b/c we had been running army by committee)
b. History – Executive often acts in emergency w/out
authority of law (see Youngstown dissent for
examples)
c. Consequentialist arg: framers must have intended
broad emergency powers.
4. Arg for limited executive powers from vesting clause
a. Textual arg: if vesting clause so powerful, why
bother enumerating at all? (similar to arg for narrow
construction of “general welfare” clause)
b. Consequentialist arg: CinC power is only power to
act until congress can convene and deliberate.
Purpose of vesting clause is to reject executive by
committee.
c. History
i. Whiskey rebellion, Lincoln’s calling out
militia, blockade of south: statutory
authorization (just using military to enforce
laws)
ii. LA purchase: treaty authorization
iii. Neutrality Proclamation, Monroe Doctrine:
prez has broader powers over foreign affairs
iv. Emancipation proclamation: w/in CinC
powers to get slaves to defeat confederacy
v. Bank holiday: congressional silence, not
congressional disapproval
vi. Calling out troops to stop Pullman strike:
though no specific authorization, helped
execute all interstate commerce regs (iffy)
vii. Neagle: Upholding Presidential appointment
of a bodyguard for a Supreme Court Justice
saying that the Prez was acting to enforce
ALL laws (because you can’t enforce laws
without justices).
ii. Nondelegation doctrine
1. Congress can delegate lawmaking authority to prez so long
as delegation sets forth “an intelligible principle” to guide
agency’s discretion. J.W. Hampton. Similarly, interstitial
and contingent legislation is fine (Field v Clark).
2. Goals advanced by nondelegation doctrine:
a. Political accountability/deliberativeness – more
particularly, the kind of accountability coming from
requiring specific decisions from a transparent and
deliberative body like Congress (which has an
outlet for the voice of vocal minorities, and thus
tends to craft compromises). Hence, the goal isn’t
accountability so much as promoting deliberative
democracy.
b. Rule of law: This deliberative democracy is a
safeguard of individual liberties, and promotes rule
of law values (since it cabins discretion and
provides for judicial review).
3. Schechter Poultry Corp v US, 1935. Prez authorized to
approve trade association-drafted codes to regulate
industries. Held: delegation is unconstitutional b/c it
doesn’t provide standards guiding the enactment process of
trade associations’ codes defining what is meant by an
“unfair method of competition”
a. Problems w/ delegation in Schechter:
i. No limits on discretion: this was a roving
commission to act for public good (Cardozo
concurrence)
ii. Delegation to private parties—
unconstitutional (Carter v Carter Coal,
Schechter)
iii. Sheer breadth of authority—some
delegations are just too broad (Schechter)
b. Not enough for Cong to retain right to legislate to
undo Prez action – Inertia is powerful in lawmaking
and shifting burden to Congress to act affirmatively
makes it much harder for it to undo action or
withdraw authority than for it to have passed law in
first place. Plus Prez could veto Congress’s
repealing its decision and then need 2/3 majority to
undo Prez’s action or w/draw authority
c. Not analogous to Cong/State relationship under
dormant commerce clause – There Congress isn’t
delegating law making to the states. Congress is
exercising its function under Commerce Clause to
say that state action is OK consistent w/ Art I §8
and 10th Amend.
d. Not enough to have established procedures and
judicial review – Attempt to distinguish FTC by
existence of procedures and JR – BUT this isn’t
responsive to delegation probs b/c Cong still needs
to make basic policy decisions that cts. will enforce.
Also – the procedures may be good BUT the
decisions from them are still made by the wrong
person.
e. Distinction making FTC Const. – In FTC Act
Congress made basic policy decision to forbid
deceptive behavior and laid down a primary
standard. In Schechter, there’s no primary standard
for how or when Prez should establish codes of fair
competition and Prez is given free reign to decide
what’s in best interest of country and this is
unconst’l b/c of non-delegation doctrine.
4. Yakus v US, USSC, 1944. Emergency Price Control Act
gives Administrator the power to control prices “in the
interest of the national defense and security and necessary
to the effective prosecution of the present war.” Standard:
as administrator thinks “generally fair and equitable and
will effectuate the purposes of this Act.” Suggests
benchmark of prices during 10/1/41-10/15/41. Held:
delegation is constitutional b/c there is sufficient guidance
to control discretion.
iii. Line item veto
1. Clinton v NY, 1998. Line Item Veto Act gave prez
authority to cancel spending/tax break provisions. In
identifying items for cancellation, Prez must consider leg
history/purposes/etc; he must find that each cancellation
will (1) reduce budget deficit; (2) not impair any essential
gov’t function; (3) not harm nat’l interest. Must inform
Congress so that Congress can, if it wants, override
cancellation by passing a disapproval bill. Held: Line Item
Veto Act violates the Presentment Clause (art I § 7), which
requires that before a law may be
enacted/amended/repealed, it must be passed by both
houses and signed by Prez or repassed over his veto. Effect
is to permit Prez to change text of enacted statutes and thus
create a different law than that passed/signed.
a. Kennedy concurrence: also violates SoP b/c it
enhances Prez’s powers beyond what framers would
have endorsed.
b. Dissent:
i. This is a nondelegation case—but
nondelegation principle not violated b/c
adequate guidance on prez’s discretion.
ii. The only real difference between this case
and Field v Clark is that in Field v Clark,
prez didn’t have discretion not to trigger
increased tariffs when he found unequality.
W/ Line Item veto, Prez has unlimited
discretion not to cancel stuff.
c. Congressional exercise of executive/judicial power
i. Appointment
1. classifying positions
a. Art II § 2 cl 2: Principal officers must be appointed
by the Prez w/ the advice/consent of Senate. Inferior
officers can be appointed same way, or congress
may elect to vest their appointment in the Prez
alone, in the courts of law, or in the heads of depts..
b. An “officer” includes any appointee exercising
significant authority pursuant to the laws of the US.
An “employee” is a “lesser functionary” who is
“subordinate to officers of the US.” Buckley.
c. Factors to consider:
i. Nature and extent of official’s duties, and
whether or not they include policymaking
functions
ii. Amount of independence and source of
supervision; e.g., whether official answers
directly to prez, to a principal officer, or to
someone lower in hierarchy
iii. Position’s tenure: continuing, temporary, or
intermittent
iv. How official may be removed.
d. Morrison v Olson: Independent counsel appt, if AG
decides one is necessary, by DC Cir. W/ respect to
all matters in jurisdiction of his investigation,
counsel has full power to exercise all
investigative/prosecutorial functions. Can be
removed from office only by AG and only for good
cause. Held: independent counsel is inferior officer.
Factors: (1) independent counsel could be removed
(for specified reasons) by higher executive branch
official; (2) independent counsels had only certain,
limited duties of investigation/prosecution; (3)
independent counsel’s office limited in jurisdiction;
(4) independent counsel’s office limited in tenure—
only one investigation.
2. interbranch appointments
a. Textually, no limit on interbranch appointments of
inferior officers. Appointments Clause says “as they
think proper”
b. SoP limit: If appointment had the potential to impair
the constitutional functions assigned to one of the
branches, that would be an unconstitutional
interbranch appointment.
i. Ex: no SoP problems w/ judicial
appointment of election supervisors (Ex
parte Siebold) or prosecutors (Morrison).
Maybe you can’t have judges appoint FERC
commissioners, since these are areas w/
which judges lack expertise.
3. congressional appointments
a. Appointments clause doesn’t permit congressional
appointment of officers.
b. Officials appt by Congress can only exercise
legislative powers.
i. Buckley v Valeo, 1976. FEC officials appt
by, inter alia, Speaker and prez protempore
of senate. Held: b/c of the violation of the
Appointments Clause, the FEC
commissioners can only be legislative
officers, and therefore can only exercise
powers that Congress can delegate:
investigative powers, but not enforcement
powers.
1. Can’t get around appointments
clause thru NP Clause: NP Clause
doesn’t give power to violate limits
on other substantive powers.
c. Members of either house can’t be officers of US:
Incompatibility Clause (Art I § 6 cl 2).
i. The Metropolitan Airport case: members of
Congress cannot administer the law
ii. Removal
1. congressional participation in removal:
a. Congress cannot remove an executive officer except
by impeachment
i. Bowsher v Synar, 1986. ComptrollerGeneral, head of GAO, given the
responsibility to review estimates of likely
budget deficits, determine whether the
estimated deficit will exceed a specified
amount, and if so, to determine program by
program, according to statutorily specified
rules, how much appropriated money the
prez must sequester (not spend). Appt by
prez. Could be removed at any time by joint
resolution (which permits presidential veto,
etc.) on a “for cause” standard. Held:
Comptroller General’s role in exercising
executive functions under Balanced Budget
Act’s deficit reduction process violates
doctrine of separation of powers b/c the
Comptroller General is removable only by
congressional joint resolution or by
impeachment, and Congress may not retain
the power of removal over an officer
exercising executive powers.
1. Comptroller-General is creature of
Congress: Though nominated by
Prez and confirmed by Senate,
Comp-Gen is removable only at
Congress’s initiative. Under the “for
cause” standard, Congress could
effectively remove Comp-Gen for
any number of actual/perceived
transgressions. Plus, political
realities mean that Comp-Gen isn’t
free from congressional influence.
2. Comptroller-General has executive
powers: Act contemplates that
Comp-Gen will exercise his
independent judgment w/ respect to
estimates and will make decisions
normally made by officers charged
w/ executing a statute. The Act
gives Comp-Gen rather than Prez the
ultimate authority in determining
what budget cuts are to be made.
2. other interbranch removals
a. Mistretta v US: SoP not violated where statute
permitted Prez to remove members of US
Sentencing Commission (including judges) for
cause. The commission itself didn’t perform
judicial duties.
3. assigning removal authority to executive official other than
prez
a. Morrison v Olsen: SoP not violated where removal
of independent counsel vested in AG, not Prez.
i. Perform functional analysis: will limit on
prez’s removal power frustrate ability to
Take Care…
4. limiting executive’s grounds for removal
a. Prez can remove “pure” executive officers (Myers),
but Congress can restrict removal power for “quasijudicial/legislative” officials (Humphrey’s
Executor)
b. Real question is function: do the restrictions on
removal impede the prez’s ability to perform
constitutional duty? If so, then impediment to
prez’s removal power is unconstitutional; if not,
then impediment is fine. (Morrison)
i. Important factors: principal vs. inferior
officer; scope of jurisdiction; length of
tenure; amount of
policymaking/administrative authority.
ii. Limiting removal to “good cause” standard
doesn’t impede prez’s power to Take Care.
Morrison.
1. Scalia dissent in Morrison: “The idea
that the power to remove for good
cause provides means of control over
independent counsel is like referring
to shackles as an effective means of
locomotion.”
a. Thinks that any limit on
prez’s removal power
intrudes into ability to Take
Care—prez can’t do this if he
can’t exercise control over
those who execute the laws.
5. prohibiting removal except by impeachment
a. a little unclear
b. Weiner was a statute w/out removal provision at all.
Held: prez lacked authority to remove member of
War Claims Commission for no other reason than
that Prez wanted his own people on the
Commission.
i. However, USSC carefully noted that this
wasn’t a case where Prez had sought to
remove commissioner for cause.
ii. Again, in Morrison, USSC suggested that if
there was no way an executive official could
be removed for cause, it might violate SoP.
In Morrison, AG could remove for cause.
6. appointment, removal, and the unitary executive
a. SoP violated if Congress vests duty of executing
fed’l laws in persons not subject to
appointment/removal of Prez.
i. Printz: Brady Act unconstitutionally
assigned execution to state law enforcement
officials; not only violated commandeering,
but also impaired Prez’s art II obligation to
Take Care.
ii. Myers: strong unitary executive view
iii. Legislative veto
1. Has three elements: (1) statutory delegation of power to
executive; (2) exercise of that power by executive; (3)
reserved power in Congress to nullify that exercise of
power.
2. INS v Chadha, 1983. Congress used legislative veto in INS
Act to veto AG’s decision not to deport Chadha. Held:
legislative veto violates Bicameralism/Presentment.
a. Majority opinion is premised on the notion that the
exercise of the legislative veto is the making of a
law.
i. But the INS Act, which sets up the
legislative veto scheme, did satisfy the
bicameralism/presentment requirements.
Hence, the exercise of the veto isn’t a bill;
textually, neither the
presentment/bicameralism clauses are
implicated.
1. Presentment: Art I § 7 states that
every bill that has passed HR and
Sen must be presented to Prez.
a. But this bill didn’t pass both
houses – so no presentment
2. Bicameralism: Art I § 7 states that
every order/etc to which the
concurrence of both HR and Sen
may be necessary must be presented
to Prez
a. But this bill didn’t require
concurrence of both houses
ii. Nevertheless, Burger states that the oneHouse veto was essentially legislative in
purpose and effect, and therefore is subject
to presentment/bicameralism (despite the
fact that neither are textually applicable).
1. Burger’s rationale: w/out the veto
provision, the result in the case
couldn’t have occurred w/out a
statute requiring deportation.
2. But that’s true of AG’s position too.
Absent the delegation giving the AG
the authority to waive deportation,
the waiver of deportation can only
take place by legislation too.
a. So the problem is that
Burger’s rationale for
deciding the case is that he is
unable to distinguish between
permissible delegations of
legislative rulemaking
authority and an
“impermissible” exercise of
what is “legislative in
character/effect” that is
subject to
presentment/bicameralism
clauses. Hence, Burger’s
rationale requires throwing
out all delegations.
b. Ways to save Burger’s result but jettison his
rationale:
i. A functional argument would be that in
practice, the legislative veto increased the
power of self-interested private groups over
regulatory law—which is bad, given the
purpose/structural understanding of the
constitution.
ii. A formalist argument might be that the
legislature is actually horning in on the
executive branch; that is, the legislative veto
is an act of “executing” rather than
“legislating.”
1. This is Powell’s concurrence:
legislature is usurping adjudicatory
functions performed by agencies or
courts.
2. Art I § 6—the “incompatibility”
clause: no one holding office of the
U.S. shall be a member of either
House during their continuance in
office (the clause that bars a
parliamentary form of gov’t—i.e., no
prime minister). Founders wanted to
prevent legislators from being
cabinet members, and thus the
legislature dominates the executive.
Maybe we can say that the legislative
veto sets itself up as giving all the
legislature delegated authority to
veto as an executive officer of the
U.S., which is somehow bad
iv. Administrative exercise of judicial powers
1. Does it violate Art III to have agencies adjudicate?
a. Judicial power is vested in the courts. Art III judges
have life tenure during good behavior and
compensation can’t be reduced during office.
b. Purpose was to ensure judicial independence.
Federalist 78: need judicial independence as SoP
concern, not just to ensure adequate checks and
balances (but largely to make sure that that
happens)—want to ensure that judges perform their
functions fearlessly.
c. Precedent:
i. Ex parte Milligan (civil war case where civil
cts are open but civilian Ds are tried for
ordinary crimes in military cts.
Unconstitutional).
ii. O’Donoghue v US (Depression-era case.
Judges of fed’l cts being overpayed due to
deflation, so their salary reduced.
Unconstitutional).
iii. Marathon (art I bkrptcy judges can’t decide
state law contract claims)
2. Exceptions
a. Territorial courts
i. Art IV, which governs territories, is free
from Art III constraints.
1. Note that other provisions of
Constitution do apply in territories.
Dred Scot (5th am applies in
territories).
ii. Arg from Consequences: If you have to give
life tenure to territorial judges, what do you
do when the territory becomes a state—you
can’t fire them, but you don’t need them
(because they’re replaced by state judges.
b. Courts martial
i. Textual power in Art I § 8 of Congress to
regulate armed forces, supplemented by
Prez’s CinC power
ii. Tradition: we’ve always had courts martial,
and Framers wouldn’t have gotten rid of
them sub silentio.
c. Public rights cases
i. Public right—person suing gov’t; Private
rights—involve liability between one person
and another.
ii. Not only must (1) the gov’t be a party, but
also (2) the action/decision in question must
be one that another branch could make
w/out using a tribunal at all. If you could do
it by legislation, then a fortiori, you don’t
need a court.
1. Bakelite case: in upholding
constitutionality of court of customs
appeals, USSC extended principle of
public rights to say that b/c in some
cases you don’t need a court to do X,
therefore, when you do set up a
court, it doesn’t have to be a real
court.
2. This is the theory upon which Court
of Claims was sustained in Williams
v US. Court of Claims was an Art I
court w/out life tenure judges. It
decided claims in which US waived
sovereign immunity. Arg is that
since they waived sovereign
immunity (and thus greater power to
avoid liability), they have the lesser
power to determine how claim is
adjudicated.
d. Adjunct theory: assistant can do things not essential
for art III courts
i. Raddatz: magistrate judge can make
evidentiary rulings in criminal case. OK b/c
what the magistrate judge does is subject to
de novo review by USDC judge, which
retains all the powers of decision that an art
III court judge needs.
ii. Crowell v Benson: don’t need de novo
review unless the facts are of constitutional
or jurisdictional significance
1. determined whether employment
relation existed—necessary to trigger
statute’s applicability (jurisdictional)
2. navigable waters—necessary to
trigger art III (constitutional)
3. This doctrine completely ignored
today.
3. Northern Pipeline Construction v Marathon Pipe Line Co,
1982. Art I Bankruptcy Ct judge authorized by statute to
hear compulsory counterclaims in bankruptcy suit, even
those from state law. Held: Act impermissibly removed
most, if not all, of the essential attributes of the judicial
power from U.S. Const. Art. III district courts, and had
vested those attributes in a non-Art. III adjunct. Such a
grant of jurisdiction could not be sustained as an exercise of
Congress's power to create adjuncts to Art. III courts.
a. Crowell distinguished: there are different kinds of
private rights: those that Congress created and c/l
rights. When Congress creates a substantive federal
right (as in Crowell), it can prescribe how that right
is administered. Crowell itself required closer ct
supervision than would occur in bankruptcy
context. First, agency in Crowell only made
specialized narrow fact determinations (bankruptcy
does all relevant findings of fact in many areas of
law). Second, agency in Crowell had to seek ct
enforcement of its orders (bankruptcy could enforce
own orders). Third, agency orders in Crowell could
be set aside if unsupported by evidence (bankruptcy
only subject to clearly erroneous standard).
i. i.e., Crowell involves (1) a private right that
Congress had created (as opposed to c/l
right) and (2) greater art III court
participation/supervision
d. Judiciary and SoP
i. Assigning nonjudicial duties to federal judges
1. Hayburns Case and problem of advisory opinions in
Finality section
a. Making court’s decision subject to review of
executive officials impairs integrity of judiciary as
an independent branch
2. But see Mistretta: can delegate tasks that are w/in the ken
of judges to judiciary
e. War and Foreign Affairs
i. Military tribunals
1. Ex parte Quirin, 1942. Ps, eight German born U.S.
residents, were captured by the US, as they tried to enter
the country during war time, for the purpose of sabotage,
espionage, hostile or warlike acts, or violations under the
law of war; they landed then disposed of uniforms. Prez
tried Ps before a military tribunal under the Articles of
War. Held: Ps were alleged to be unlawful belligerents (ex
parte Milligan distinguished), and so under the Articles of
War, they were not entitled to be tried in a civil proceeding,
nor by jury. Trying petitioners before a military court was
not illegal, and did not violate the Art III or 5th/6th ams.
Prez has authority to try petitioners before a military
tribunal without a jury.
ii. Declaring war and initiating hostilities
1. Congress has power to Declare War. Art I § 8. No
appropriation for armies for longer than 2-yr term. Art I §
8.
a. Purpose was to avoid british precedent, where the
crown got country into war w/out consent of
parliament. Designed to keep prez’s war chest
small.
b. Federalist 69: Prez as CinC is weaker than King
George: just “supreme command and direction” of
armies, whereas King could declare and
raise/regulate armies.
2. Nevertheless, intended prez, as part of CinC power, has
power for emergencies
a. Framers changed “Make War” to “Declare War” in
congress’s power to leave room for prez’s repelling
attacks
b. Fillmore precedent: consul promises Hawaii that US
would defend them from French invasion. Sec of
State Dan’l Webster writes to consul: “you moron,
only Congress can make that promise (and conduct
a police action like this), not you, not me, not the
prez.”
c. Fulbright report—power of Prez started off this
way: suppress piracy/slave trade/criminals/protect
Americans abroad. Anything short of initiation of
hostilities. Then expanded during 10th century
d. Claims to greater executive powers:
i. Legitimacy
1. Based on misreading of const and
history. Except for repelling sudden
attacks, Congress makes decision to
initiate either general or limited
hostilities against foreign nations.
Most of history shows respect for
this. Exceptions include suppressing
piracy and slave trade, pursuit of
fugitives, response to attacks. Later
expansion of prez’s war power is
unsound; moreover, SoP violations
cannot be waived even if the branch
whose authority was encroached
upon acquiesced in the intrusion.
2. Inherent powers arg is spurious. 10th
am: powers not delegated are
reserved, leaving no residue of
inherent powers. Doctrine rejected
in Youngstown.
ii. Necessity
1. There should have been brief delays
for deliberation. Congress can act as
speedily as prez. If it’s really
emergency, Prez can respond to
sudden attack. If it’s really a
problem, just respond and worry
about the consequences later: a
single unconstitutional act, later
explained or pronounced
unconstitutional, is preferable to an
act dressed up in some spurious,
precedent setting claim of
legitimacy.
3. War Powers Act
a. Purpose: fulfill intent of framers and ensure that
collective judgment of Congress/Prez will apply to
intro of army to hostilities.
i. Congress has authority under NP clause
ii. Prez has power as CinC, but this power is
limited to exercise pursuant to (1)
declaration of war; (2) specific statutory
authorization; (3) national emergency.
iii. Notes:
1. Congressional explanation of how it
interprets the prez’s warmaking
powers. This won’t bind the courts
or prez (Boerne/Dickerson). But all
of these questions are nonjusticiable
anyway—PQ.
b. Reports
i. Prez should consult w/ congress before and
during hostilities
ii. Must give written report w/in 48 hrs of
hostilities/likely hostilities, setting forth
circumstances and authority for taken action.
iii. Must give updated reports no less often than
once every six months.
iv. Notes:
1. Basis for these requirements?
a. If acting under statutory
authorization, then congress
can condition its grant of
authority to prez
b. If acting w/out statutory
authorization, then these
requirements stem from view
that Prez’s warmaking power
is only an emergency power.
Once the emergency is
dissipated, Congress can
convene and tell prez what to
do.
i. Barbary pirates
example: Jefferson
asked for permission
to retaliate
ii. Treaty power shows
that Congress must
retain power to
legislate w/ respect to
conflict, and so they
need info to know
whether to
continue/expand/stop
war.
c. Congressional action
i. After turning in report, Prez must cease use
of force after 60 days unless he gets
authorization or he can’t b/c of armed attack
on US. Can be extended by 30 days if
there’s an emergency preventing prompt
removal of forces.
ii. Upon concurrent resolution of congress at
any time, prez must remove forces
iii. Notes:
1. Nixon vetoed bill on this ground,
arguing that it violated Presentment
2. But Presentment doesn’t need to
apply. Prez only acts during
emergency; once Congress convenes
and passes joint resolution to that
effect, they’ve proven that they can
legislate w/ respect to conflict, and
Prez’s emergency is over, having
expired of itself.
d. Interpretation of joint resolution
i. Presumption against drawing US into
hostilities when interpreting treaties or laws
iii. Treaties and Executive Agreements
1. Prez can make treaty/executive agreement even if it seems
a statute seems more appropriate. Edwards v Carter (treaty
transferring property to Panama was valid even though Art
IV § 3 expressly gives Congress the power to dispose of
property belonging to US)
2. Unclear if Congress (or just Senate) gets to participate in
abrogating treaty. Goldwater v Carter (nonjusticiable: 4
said PQ, 1 said not ripe, 1 didn’t say why dismiss).
3. Executive agreements are valid even if senate didn’t
participate (as they would if it was a treaty)
a. US v Belmont, 1937. Prez negotiated executive
agreement w/ USSR at same time that Prez
recognized USSR. Agreement was that USSR
would assign all claims to US, who would settle
them, then give sum to USSR. Held: executive
agreement is valid even though senate didn’t
participate, b/c agreement made in conjunction w/
Prez’s formal recognition of USSR (which is Prez’s
power under Art II § 3).
i. Sez court: “Scholarly opinion” has rejected
the position that some international
agreements are so important that they can
only be implemented by treaty. ??? In other
words, they’re just not going to enforce the
2/3rd senate approval requirement.
b. Dames & Moore v Regan: International agreement
w/ Iran: if they release the hostages, we’ll block
their tort claims and have it go into arbitration.
USSC upheld this executive agreement b/c congress
has authorized it (like nafta) and because it has been
done so much as to provide a gloss on the
constitution. i.e., if you violate the constitution so
much, you get a prescriptive easement. (frankfurter
in Youngstown)
i. Court noted, however, that “crucial to our
decision” that Congress had expressly or
impliedly approved in the agreement.
4. Restatement 3d of Foreign Relations:
a. Prez, w/ advice consent of Sen, may make any
international agreement in the form of a treaty
b. Prez, w/ authorization/approval of Congress, may
make an international agreement dealing w/ any
matter falls w/in powers of Congress and Prez
i. E.g., Postmaster executive agreements from
Postal act of 1792, NAFTA
c. Prez may make an international agreement as
authorized by treaty
d. Prez, by himself, may make international agreement
falling w/in his own powers
i. Comment e: everything under this category
could also be done by treaty.
5. Executive Agreements made w/out congressional
authorization that don’t exercise presidential power.
a. Hence, not Belmont (agreement linked w/ prez’s
recognition power), and not Dames & Moore
(congress had impliedly approved).
b. Probably not constitutional—see Dames & Moore
note.
6. Constitutionality of executive agreements w/ congressional
authorization
a. No textual support:
i. Only treaties mentioned in Supremacy
Clause, only treaty power is express
ii. Framers knew about executive agreements:
Art I § 10 bars states from entering into any
“treaty/alliance/confederation” but permits
entry into “agreement/compact” w/
congressional approval.
1. the way of arguing against the
expressio unius here is stupid. If we
think, ah, b/c the state can’t do X and
the Constitution is silent about
whether Fed’l Gov’t can do X,
therefore Fed’l Gov’t can do X,
would let the Fed’l gov’t deny E/P—
only the states are expressly
prohibited, and it’s silent as to
whether fed’l gov’t is allowed.
b. Disturbs federalism
i. Would allow Congress to evade all limits on
commerce power, cooptation of state
officials, etc.
c. Practice: provides limits, demarking when you use
executive agreements and when you use treaties
i. Treaties:
1. political/military agreements (e.g.,
entering UN, peace treaties, NATO,
mutual defense pacts)
2. arms control: only exception to
treaty is SALT I—but that was only
to be an interim agreement until
treaty: SALT II
3. important human rights agreements
(e.g., Hague conventions, etc.)
4. extradition agreements (everything
from Jay Treaty until
Yugoslavia/Rwanda agreements in
mid-90s broke pattern)
5. important environmental agreements
(e.g., Montreal Protocol, UN
Convention on Climate Change)
d.
f. Executive Immunity and Executive Privilege
i. Executive immunity from suit
1. no immunity from criminal actions
a. Art I § 3 states that an impeached officer may still
be subject to criminal prosecution. Narrower
protection than Speech and Debate Clause, which
shields members of Congress even against criminal
prosecution based on the performance of legislative
acts
b. Prez can even be prosecuted while in office. A
criminal prosecution would not be much greater
interference than civil action in Jones, and so no
immunity. Plus, the public interest in prosecution
would be much greater than for civil action in
Jones.
i. Besides, he can get lots of work done w/out
the phone ringing from jail cell.
2. qualified immunity from civil damages actions
a. Executive’s function would be severely impaired if
any action later determined unlawful exposed them
to personal damages liability.
i. Burden of defending would jeopardize job
performance.
b. However, D must have had objectively reasonable
grounds to believe that conduct was lawful for
immunity.
3. absolute civil damages immunity for prez
a. Prez is absolutely immune from damages liability
for acts w/in the “outer perimeter” of his official
responsibility. Nixon v Fitzgerald.
b. However, sitting Prez can be sued for conduct that
occurred before Prez took office.
i. Clinton v Jones, 1997. Before ascending to
prez, Clinton sexually harassed Jones. She
sued while he was sitting as prez. Held: suit
can go forward. Since suit didn’t involve
any of Prez’s official duties, the primary
rationale for immunity doctrine, to avoid
rendering prez unduly cautious in discharge
of duties, didn’t apply.
ii. Executive privilege for presidential communications
1. Implicit in idea of executive: w/out privilege, those who
advise prez would feel need to temper candor w/ concern
for appearances and their own interest to the detriment of
decisionmaking process. US v Nixon.
a. Part of SoP: seeks to protect independence of
Executive Branch w/in its own sphere.
b. Compare Speech and Debate Clause: Art I § 6,
which is textual in origin.
2. Executive privilege is qualified: presumption of privilege
may be overcome by need for disclosure.
a. US v Nixon, 1974. USDC subpoenaed Prez Nixon
for Watergate tapes for use by Ds seeking to
exonerate themselves. Held: presumption in favor
of executive privilege overcome: Prez’s interest—
mere generalized interest in confidentiality—
overcome by fundamental demands of due process
in the fair administration of criminal justice.
b. US v Burr. Subpoena of prez relevant to Burr’s
treason trial. Jefferson says I cannot answer
subpoena to appear before the courts b/c that would
mean I would have no time for duties. Marshall
said: Prove It. Jefferson eventually caved by having
subordinate deliver the letter.
3. Things to consider when balancing:
a. Whether viewing docs in camera only will be
sufficient to protect privacy interest
b. Whether prez relying solely on generalized interest
in confidentiality, or also need to protect military or
diplomatic secrets
c. Whether disclosure sought in connection w/
pending criminal trial rather than civil action
i. Senate Select Committee v Nixon. Another
subpoena for Watergate tapes. This time,
only need is committee’s desire to see what
laws they can pass to prevent a reoccurrence
of this type of behavior. Held: USDC judge
said no, saying that need for disclosure less
than in criminal action.
1. Others disagree, saying it’s more
important to prevent future
wrongdoing than even to punish past
transgressions.
g. Impeachment
i. Art II § 4: “The Prez, VP and all civil Officers of the US, shall be
removed from Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors.”
ii. Art I § 2: House shall have “sole Power of Impeachment”; Art I §
3 cl 6: Senate shall have “sole Power to try all Impeachments”;
2/3rd vote.
iii. Definition of high Crimes and Misdemeanors
1. Indictable offenses?
a. Necessary?
i. Yes:
1. Nixon’s brief: Noscitur a sociis.
Also, other terms: try, convicted,
conviction, etc., are all terms limited
in context to criminal matters
2. Impeachment of judges precedents
distinguished—they hold office
during good behavior
ii. No:
1. Doar Report: High crimes and
misdemeanors refers to offenses that
subvert system of gov’t.
Impeachable offenses need not be
criminal. Impeachment’s not a
personal punishment (b/c confining
impeachment to criminal offenses
sets standard too restrictive to reach
dangerous conduct). To limit
impeachable conduct to criminal
offenses would be incompatible w/
evidence concerning meaning of
“high crimes and misdemeanors” and
would frustrate purposes of
impeachment.
2. Story’s Commentary: Impeachment
applied to offenses of a political
character, more than just crimes of a
strictly legal character. Personal
misconduct, gross neglect, habitual
disregard of public interest in
discharge of office
3. Examples of impeachment of Nixon
(he violated statutes, but articles of
impeachment didn’t describe them as
such), Johnson
b. Sufficient?
i. Some private offenses that don’t implicate
abuse of office might not be impeachable;
e.g., Sentator blount. But see Clinton.
2. Serious Crimes
3. Abuse of Office
a. Framers conceived of high crimes/misdemeanors as
political offenses that subvert the republic and are
an abuse of public trust: Federalist 65, Story’s
Commentary, Doar Report
b. Compare Nixon’s obstruction of justice w/
Clinton’s obstruction of justice: Nixon used federal
officers and selective prosecution; Clinton, in
private capacity, tried to talk people into lying for
him.
c. Don’t impeach people for disagreeing w/
Congress’s interpretation of Constitution: Lesson of
impeachment of Judge Chase, Prez Johnson (scope
of prez’s removal power), Prez Nixon’s 3d charge
of disobeying subpoena (scope of executive
privilege)
i. Chase may be distinguishable since Judges
serve during good behavior.
d. Exception:
i. Could impeach a presidential child molester
ii. Ex: Senator Blount: waged private war on
Spain for FL. Expelled from Senate (under
art I power similar to impeachment, except
doesn’t disqualify from office).
4. Of an officer
a. Though Isenbergh argues that impeachment clause
just a mandatory sentencing provision that doesn’t
define what offenses are impeachable, this has to be
wrong.
i. Constitutional Convention: Defined “treason
and bribery” as impeachable offenses.
Proposed addition—“maladministration”—
rejected. That’s what elections are for.
Final draft: “other high crimes &
misdemeanors”
ii. Framers intended to reject model of
Parliamentary supremacy, where all officers
serve at parliament’s pleasure
iii. It would mean you could impeach nonofficers, e.g., ME.