Con Law OUTLINE Short - virginiasba.com

Con Law Outline: Short

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Table of Contents I. Role of The Supreme Court 3 A. Themes 3 B. Judicial Review 3 C. The Supreme Court’s Jurisdiction 3 E. Standing 5 F. Political Questions 8

II. Federalism 8 A. Establishment of Federal/State Power Divide 8 B. Necessary and Proper Clause 9

III. Commerce Power 11 A. The Early Commerce Clause Cases 11 B. The Early New Deal Commerce Clause Cases 14 B. Post Court-‐Packing New Deal Commerce Clause Cases 16 D. Post WWIII to Modern Resistance 17 E. Congressional War and Treaty Powers, and the Implied Power Over Foreign Affairs 20 F. The Tenth Amendment’s Constraints on Federal Power 21 G. Anti-‐Commandeering 24 H. State Sovereign Immunity and the Eleventh Amendment 26

IV. Tax and Spend Power 28 A. The Taxing Power as a Regulatory Power 28 B. The Spending Power as a Regulatory Device 28

V. Interstate Commerce and Preemption 31 A. Dormant Commerce Clause 31 1. Nascent Dormant Commerce Clause 31 2. Facial Discrimination Against Out-‐of-‐State Commerce 31 3. Home Processing Requirements 33 4. Market Participant Exception 34 5. Facially Neutral Laws with Protectionist Purpose or Effect 35 6. Facially Neutral Laws with a Disproportionate Adverse Effect on Commerce 37

B. Privileges and Immunities Clause 38 C. Preemption 40 D. State Taxation of Interstate Business 42

VI. Separation of Executive and Legislative Powers 43 A. Executive Assertions of Power 43 B. Executive Discretion in Times of War 45 C. Congressional Attempts to Restrain and Enable the Executive 49 1. “Vetoes” 49 3. Appointments Clause 50 4. Removal Power 51

D. Congressional War and Treaty Powers, and the Implied Power Over Foreign Affairs 55 E. Executive Privileges, Immunities and Congress’s Power of Impeachment 56

VII. Incorporation 57 A. Individual Rights Before the Civil War 57 B. The Post-‐Civil War Amendments 58 C. The Incorporation of the Bill of Rights Through the Due Process Clause 59


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I. Role of The Supreme Court A. THEMES

• focus: assigning competence to different organs of government (rather than what they do once they have the competency)

• broader constitutional jurisprudence issue o what is the constitutional issue? o are Art. III judges the people to decide

this question? B. JUDICIAL REVIEW

TOPIC AREA CASE NAME KEY FACTS TAKE HOME judicial review Marbury v.

Madison (1803)

Adams had selected Marbury to be a Justice of the Peace in DC. His commission was all signed and ready to go, but had not been delivered yet. Jefferson ignored these commissions. Marbury and some others sought a write of mandamus against James Madison (Secretary of State) to compel him to deliver their commissions.

Case established USSC’s power of judicial review: establishes the power of judiciary to review the constitutionality of executive actions when the executive has a legal duty to act or refrain from acting and the federal judiciary can provide a remedy. Reasoning based on first principles.

HOLDING Yes, Marbury has a right to the commission. Yes, the laws of the country afford him a remedy. No, a writ of mandamus issued by the USSC is not allowed.

C. THE SUPREME COURT’S JURISDICTION

• structural constitutionalism and the USSC’s protection from swamping à idea that if system works, individual rights will follow

• appellate jurisdiction over state court decisions of federal questions • states and state courts bound by Constitution even though they are not parties to it • is the power of judicial review exclusive?

o Cooper v. Aaron says yes o creates a quasi-legislative role for USSC o implicit assumption that the Constitution needs interpretation and exposition and

not just application o power of the USSC to interpret words increases as time between framing and

present increases (one theory) • application vs. exposition

Key Constitution Underlying Values Cases Terms of Art Stephan’s Opinion/Exam Hint Review Cherminsky Textbook


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o one limitation: USSC can only speak on cases that come before the court o outside of the courts, there can be disputes over interpretation and USSC’s views

are persuasive, but not binding • judicial review needs to be defended because it is not always benign • political safeguards (and limits on theses safeguards)

o USSC has the ability to circumscribe its own limits (competence on competence) à self-restraint

o opposition to USSC decisions and judicial supremacy outside of the courtroom • USSC’s self-restraint

o USSC imposes limits on itself through interpreting Article III o USSC is limited to cases and controversies (if you assume the assignment list is

exclusive à what Marbury said) o limited to judicial power (what are the bounds of these?)

TOPIC AREA CASE NAME KEY FACTS TAKE HOME

USSC’s jurisdiction

Martin v. Hunter’s Lessee (1816)

VA had seized the properties of Lord Fairfax prior to 1783. It then granted a parcel of land to Hunter. Martin claimed he had received title to the same parcel from Fairfax in 1781. 1810: The VA Court of Appeals found for Hunter. 1813: The USSC reversed and found for Martin. 1815: The VA court issued a decision declining to obey and claiming the USSC did not have the power of final adjudication.

Article III gives the USSC power to hear all cases arising under federal law, no matter which courts (federal or state) they originated in.

HOLDING The USSC has the authority to have final review over state court decisions.


Cohens v. Virginia (1821)

Defendants convicted for selling DC lottery tickets (created through federal law) in Virginia.

The USSC upheld its authority to review interpretations of federal law in state cases. Criminal defendants can seek USSC review if they claim their conviction violated their federal constitutional rights.

HOLDING After finding that it had jurisdiction to hear the case, the USSC upheld the conviction.


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Cooper v. Aaron (1958)

In order to comply with Brown v. BoE, Little Rock's school board sought to desegregate the schools. The Governor blocked these efforts and called out the National Guard. A district court enjoined the governor, and the desegregation program began. The school board sought a postponement of the program due to the chaos. The district court issued the relief. The appeals court reversed.

When the USSC issues a constitutional decision, it is expounding on the Constitution and is thus acting like a legislature. In other words, everybody has to pay attention and not just the parties to the suit. Federal courts also have the authority to review the constitutionality of state laws and the actions of state officials.

HOLDING Affirmed.


Dickerson v.US (2000)

Defendant was charged with conspiracy to commit bank robbery and other offenses. Following grant of defendant's motion to suppress confession on ground that it was obtained in violation of Miranda, government moved for reconsideration. The District Court denied motion, and government appealed. The Appeals Court reversed and remanded. Certiorari was granted. (West)

The USSC’s interpretation of the Constitution cannot be overruled by a legislative act.

HOLDING Held that Miranda's warning-based approach to determining admissibility of statement made by accused during custodial interrogation was constitutionally based, and could not be in effect overruled by legislative act. (West)

E. STANDING

• no advisory opinions • there are two criteria in order for a case to be justiciable and not be an advisory

opinion: 1. there must be an actual dispute between adverse litigants


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2. there must be a substantial likelihood that a federal court decision in favour of a claimant will bring about some change or have some effect

• a case also has to have standing in order to be justiciable o Constitutional standing requirements

1. injury in fact (actual or imminent) 2. causal connection between defendant and injury 3. effective legal redress (if reverse occurs, injury will go away)

o prudential standing requirements 1. a party generally may assert only her rights and cannot raise the claims

of third parties not before the court 2. a plaintiff may not sue as a taxpayer who shares a grievance in

common with all other taxpayers • except: if suing about a direct expenditure that might violate the

Establishment Clause, do have standing 3. a party must raise a claim within the zone of interest protected by the

statute in question

TOPIC AREA CASE NAME KEY FACTS TAKE HOME standing Lujan v. Defenders

of Wildlife (1992)

The Endangered Species Act of 1973 instructed the Secretary of the Interior to promulgate a list of species which were endangered or threatened and to define the critical habitat of these sections. Then §7(a)(2) stated that federal agencies had to consult with the Secretary of the Interior before it took actions that might affect these creatures. 1978: The Fish and Wildfire Service and the National Marine Fisheries Services promulgated joint regulation stating that the obligations extended to actions taken in foreign nations. In 1986, the agencies revised their position and said it only required consultation for actions taken in the US or on the high sees.

Three constitutional elements of standing: 1. injury

a. actual or imminent

b. concrete and particularized

2. causation 3. redressibility

HOLDING Reversed. The plaintiffs lack standing to bring the action.


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standing Massachusetts v. EPA (2007)

The plaintiffs sued the EPA claiming it had abdicated its responsibility for regulating the emissions of four greenhouse gases under the Clean Air Act.

The elements of standard are fairly flexible.

HOLDING The petitioners have standing.

standing Clapper v. Amnesty International (2013)

In 2008, Congress passed an amendment to the Foreign Intelligence Surveillance Act (FISA) relaxing some of the procedures intelligence agencies needed to go through to obtain authorization to conduct surveillance on foreign nationals outside of the US suspected of being associated with terrorism. On the day of the adoption of the Act, the plaintiffs filed suit seeking a declaration that §1881a was unconstitutional and an injunction against any surveillance authorized under the act. The District Court dismissed the case through summary judgment on the grounds that the respondents did not have sanding. On appeal, the Second Circuit reversed.

Dispute over the specificity and directness of the injury.

HOLDING Respondents lack standing.

standing Hollingsworth v. Perry (2013)

Prop 8 Majority said no adversity meant no standing.

HOLDING Respondents lack standing.


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standing US v. Windsor (2013)

DOMA Majority said that the fact the IRS hadn’t paid Ms. Windsor created the elements of standing. HOLDING

US had standing. F. POLITICAL QUESTIONS

• key 19th century case: Luther v. Borden (declaring nonjusticiable a suit brought under the republican form of government clause even though the effect was to leave people in jail who contested the constitutionality of their conviction) à USSC said it was not up to them to decide which was the valid government of Rhode Island

• the underlying question is whether the decisions saying a case is not justiciable because it is a political question are demonstrating proper deference to another branch or if they are unjustified judicial abdication


political questions

Baker v. Carr (1962)

Plaintiffs sought an injunction under the present system of voter proportioning in TN because it was based on the 1900 census. The lower courts had denied relief.

If a claim involves a point of legal interpretation or application it is a legal rather than political question. (But the court gets to decide when the issue is covered by law and when it is not)

HOLDING The claim was not a political question.

II. Federalism

A. ESTABLISHMENT OF FEDERAL/STATE POWER DIVIDE

TOPIC AREA CASE NAME KEY FACTS TAKE HOME federalism McCulloch v.

Maryland (1819)

1816: Congress chartered the Second Bank of the US. The Baltimore branch quickly became one of the most active branches. April 1818: Maryland passed a law taxing the bank. The Baltimore branch ignored the new taxes. Maryland sued. McCulloch admitted that the Bank was ignoring the law. On that basis, the lower court decided

Congress has implied powers, created through the Necessary and Proper Clause, to implement its express powers. States cannot interfere with these expressions of power. HOLDING

Reversed. The incorporation of a national bank is constitutional. It is unconstitutional for Maryland to


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impose a tax on that bank. Reversed.

against McCulloch and the Maryland Court of Appeals affirmed. The case was taken to the USSC on a writ of error.

federalism U.S. Term Limits v. Thornton (1995)

Arkansas passed an amendment that prohibited an otherwise eligible candidate for Congress from appearing on the ballot if that candidate had already served three terms in the House or two terms in the Senate. The Arkansas Supreme Court held that this amendment violated the US Constitution.

The majority and concurrence said that the bright line rule is that neither states nor Congress can mess with the qualifications for members of Congress. In his dissent, Thomas argues that we should have a standard that evaluates constitutional risk before banning state experimentation.

HOLDING Affirmed. The measure was unconstitutional.

B. NECESSARY AND PROPER CLAUSE

TOPIC AREA CASE NAME KEY FACTS TAKE HOME federalism US v. Comstock

(2010)

Congress passed 18 USC §4248 that allowed federal district courts t order the civil commitment of mentally ill, sexually dangerous federal prisoners beyond the dates that they would otherwise be released.

Means2. The majority said this was constitutional because it was a means (civil commitment) to a means (criminalization) to an end (regulation of interstate commerce). Comstock laid out two tests:

• rationale basis: a federal statute must be “rationally related to the implementation of a constitutionally enumerated power” to be within the Necessary and Proper Clause

• five factor: “We take these five considerations

HOLDING Yes, the statute was constitutional.


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together. They include: (1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute's enactment in light of the Government's custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute's accommodation of state interests, and (5) the statute's narrow scope.”

Necessary and Proper Clause

National Federation of Independent Business v. Sebelius (2012)

NFIB was challenging the constitutionality of the individual mandate.

1. Roberts (in his opinion that received one vote, but was tie-breaker) said that the individual mandate was necessary, but not proper. Roberts accepts that the government can create prohibitions, but says compulsion is not allowed under enumerated powers and not

HOLDING


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allowed under necessary and proper.

III. Commerce Power

A. THE EARLY COMMERCE CLAUSE CASES

• during this period: o the Court narrowly defined “commerce” and restricted it to transactions and not

production § conceptual severance

• thinking about economic activity in separate categories • ex. E.C. Knight: product vs. carrier • utilizes direct vs. indirect test

o it limited “among the states” to mean that there was a substantial effect on interstate commerce

§ relatedness • looking at economic relationships • ex. Swift and Shreveport railway case • stream of commerce/substantial effects

o it held that there was a core zone of activities that the Tenth Amendment reserved for the states

§ form vs. pretext • ex. lotteries, adulterated food, and prostitution • earlier cases said form was enough • Hammer v. Dagenhart:

o Congress’ motive/pretext does matter o majority says Congress can’t do indirectly what it can’t do

directly • progression of different tests used by the Court:

o The "direct vs. indirect" effects test. (pp112-113) § Congress did not frequently affirmatively assert its national commerce

power before 1887 § Large scale commercial regulation by Congress began with the Interstate

Commerce of 1887 and the Sherman Antitrust Act of 1890 § a variety of judicial approaches to this kind of regulatory legislation

emerged • "direct vs. indirect" effects test • ["substantial economic effects" test • "stream of commerce" test]

§ direct vs. indirect effects test: whether something was subject to federal regulation depended on whether the regulated activity had a direct or indirect effect on interstate commerce

§ United States v. E.C. Knight Co. (1895)


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• the Majority said that just because an article is manufactured for export to another State does not make it an object of interstate commerce and the intent of the manufacturer is irrelevant

• the dissent said that this opinion eviscerated the power of the Sherman Antitrust Act

o The "substantial economic effects" test. (pp113-114) § substantial economic effects test: under this approach, the court

examined the practical physical or economic effects of the regulated intrastate commerce on interstate commerce

§ Houston E. & W.T. Ry. co. v. United States (1914) • the Majority said that carriers that worked within states and across

states could still be regulated by the Feds • since Congress would not be able to exercise its regulatory powers

if it could not control the carrier then it would have to cover intrastate transactions of interstate carriers

o The "stream of commerce" test. (p114) § stream of commerce test: some local activities could be regulated by

Commerce if these activities where an integral part of the "current of commerce"

§ Swift & Co. v. United States (1905): commerce was defined by a practical rather than a legal conception of the practice


Commerce Clause

Gibbons v. Ogden (1824)

The New York legislature granted Livingston and Fulton the exclusive right to operate steamboat ferries in New York waters. Livingston and Fulton licensed Ogdon to operate a ferry between NYC and Elizabethtown, NJ. Gibbons began operating a competing service under a federal statute. Ogdon obtained an injunction from the NY courts against Gibbons.

The USSC defined commerce as including all phases of business, including the acts leading up to a commercial exchange. This understanding clearly covered carriers, but did not necessarily include, producer, intermediaries, and/or retailers. It also said that “among” states meant that it involved more than one state.

HOLDING The federal law preempted the state law and thus Gibbons was authorized to operate his ferry.

Commerce Clause

US v. E.C. Knight (1895)

“The Congress passed the Sherman Anti-Trust Act in 1890 as a response to the public concern in the growth of giant combinations controlling

The Court distinguished between production and transactional commerce. As a whole, the court agreed that direct effects were impermissible, but HOLDING


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“The trust did not lead to control of interstate commerce and so ‘affects it only incidentally and indirectly.’” (Oyez)

transportation, industry, and commerce. The Act aimed to stop the concentration of wealth and economic power in the hands of the few. It outlawed "every contract, combination...or conspiracy, in restraint of trade" or interstate commerce, and it declared every attempt to monopolize any part of trade or commerce to be illegal. The E.C. Knight Company was such a combination controlling over 98 percent of the sugar-refining business in the United States.” (Oyez)

indirect effects were acceptable. The majority said the effects were indirect and the dissent said they were direct (disagree on outcome, not test to be used). Direct vs. indirect effects test

Commerce Clause

Swift & Co. v. Untied States (1904)

“A ‘meat trust’ developed in Chicago, in which major dealers of meat agreed not to bid against one another in order to control prices. The trust also pressured the railroads into charging them lower-than-normal rates. The U.S. government attacked the trust as an unlawful economic monopoly.” (Oyez)

The Court said that the meat trust had direct effects on interstate commerce as it was part of the stream of commerce. Stream of commerce test

HOLDING “In a unanimous decision, the Court held that congressional power under the Commerce Clause justified regulations of the meat trust.” (Oyez)

Commerce Clause

Houston, East and West Texas Railway Co. v. United States (1914) [Shreveport Rate Cases]

“The Houston, East and West Texas Railroad and the Texas and Pacific Railway were railroad companies operating rail lines between Shreveport, Louisiana and points in Texas. The Texas Railroad

The Court said that the discriminatory tariffs could be regulated because they had substantial effects on interstate commerce. substantial economic effects test HOLDING


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“In a 7-2 decision, the Court affirmed the Commerce Court and upheld the ICC order. Congress was granted the power to regulate interstate commerce, which it chose to do through the ICC.” (Oyez)

Commission mandated that they charge higher rates on freight travelling between Louisiana and Texas than on freight travelling solely within Texas. The Interstate Commerce Commission (ICC) found that the interstate rates were unreasonable and illegally discriminated against freight traffic originating in Shreveport.” (Oyez)

Commerce Clause

Hammer v. Dagenhart (1918)

Congress enacted a law in 1916 that excluded the products of child labor from interstate commerce if they were produced in factories employing children under the age of fourteen or employing those between the ages of fourteen and sixteen or more than eight hours a day or six days a week or at night. A father of two children working in a North Carolina cotton mill obtain an injunction against the enforcement of the law.

The commerce power permits Congress to control the means by which the commerce is carried on and does not allow it to forbid commerce from moving particular commodities (such as those produced through child labour). Overturned by US v. Darby (1941).

HOLDING The act was unconstitutional because it exceeded the scope of the Commerce Clause.

B. THE EARLY NEW DEAL COMMERCE CLAUSE CASES

• 1930s inherited two threats of understanding of economy o direct-indirect test: conceptual severance o stream of commerce test: economic relatedness

• is connection to commerce conclusive or should USSC look at pretextual reasons behind legislation?



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Commerce Clause

Railroad Retirement Board v. Alton Railroad Co. (1935)

“Respondent railroads sued the Retirement Railroad Board asserting the unconstitutionality of the Railroad Retirement Act, 48 Stat. 1283.” (Lexis)

The USSC said that the selling of labour was not commerce and therefore beyond Congress’ authority under the Commerce Clause.

HOLDING The Railroad Retirement Act of 1934 was unconstitutional.

Commerce Clause

Schechter Poultry Corp. v. United States (1935)

“Section 3 of the National Industrial Recovery Act empowered the President to implement industrial codes to regulate weekly employment hours, wages, and minimum ages of employees. The codes had standing as penal statutes.” (Oyez)

The Court held that Congress did not have the legislative power to regulate the wages and hours of employees who worked at a slaughterhouse who only sold to local poultry retailers. The Majority held that just because wages and hours affected the broader, national market, did not mean it was within the "stream of commerce" under Swift or "affecting commerce" under Shreveport. Not interstate.

HOLDING “The Court held that Section 3 was "without precedent" and violated the Constitution.” (Oyez)

Commerce Clause

Carter v. Carter Coal Co. (1936)

“In 1935, Congress enacted the Bituminous Coal Conservation Act. The Act regulated prices, minimum wages, maximum hours, and "fair practices" of the coal industry. Although compliance was voluntary, tax refunds were established as incentives to abide by the regulations.” (Oyez)

The Act regulated production and not commerce and therefore was not authorized under the Commerce Clause. Not commerce. HOLDING

“In a 5 to 4 decision, the Court held that the 1935 Act overstepped the bounds of congressional


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power. The Court ruled that "commerce" is plainly distinct from "production." (Oyez)

B. POST COURT-PACKING NEW DEAL COMMERCE CLAUSE CASES

• turn around between ’35 USSC decisions and ’37 USSC decisions o specific political context à informative but not incredibly helpful o reaction of FDR and Congress to 1935 decisions was one of resistance

§ just kept passing New Deal legislation § akin to Cooper v. Arkansas and the issues in Alabama over the last few

weeks o is Constitutional debate closed once USSC has spoken? o checks and balances working independently of litigation


Commerce Clause

NLRB v. Jones & Laughlin Steel Corp. (1937)

Jones & Laughlin was a major steel company with factories across the Midwest and Eastern Seaboard. The NRLB found that it had engaged in unfair labor practices by terminating employees who had engaged in union activity. The NLRB ordered the company to end such practices. The company failed to comply and the NLRB sought judicial enforcement.

The USSC says that unfair labor practices do impact interstate commerce substantially and are thus subject to Congressional regulation. “substantial affecting” rationale The Court said that the fact this involved manufacture was not determinative.

HOLDING The Act is within the scope of the Commerce Clause.

Commerce Clause

US v. Darby (1941)

Darby was indicted for violating the Fair Labor Standards Act of 1938. He challenged the indictment and the District Court held that the Act was unconstitutional.

The USSC adopts a “substantial effects” test for measuring whether an action can be regulated by Congress under the Commerce Clause. Overturns Hammer v. Dagenhart. “substantial affecting” rationale

HOLDING Congress does have power to prohibit the shipment of goods not produced in


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accordance with the prescribed wages and hours. Congress also has the power to prohibit the employment of workmen in the production of goods for interstate commerce not in accordance with the prescribed wages and hours.

The Court rejected its conceptual severance of production and sale. Furthermore, it said that the Tenth Amendment could not limit laws that are within Congress’s scope of power.

Commerce Clause

Wickard v. Filburn (1942)

The Agricultural Adjustment Act of 1938 imposed quotas on every farm for how much wheat they could grow. Filburn grew more than his quota and used the excess for personal use. He faced a $117 fine for his actions and sued challenging the constitutionality of the Act.

Wickard expanded the “substantially affects” interstate commerce test by saying individual actions could be aggregated to measure their impact on interstate commerce. “substantial affecting” rationale

HOLDING The Act was constitutional.

D. POST WWIII TO MODERN RESISTANCE

TOPIC AREA CASE NAME KEY FACTS TAKE HOME Commerce Clause

Heart of Atlanta Motel v. United States (1964)

“Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public accommodation if their operations affected commerce. The Heart of Atlanta Motel in Atlanta, Georgia, refused to accept Black Americans and was charged with violating Title II.” (Oyez)

Congress has the power to regulate local activities if they find that they affect interstate commerce.

HOLDING The USSC upheld a challenge to the Civil Rights Act of 1964, saying it was authorized by the Commerce Clause.


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Commerce Clause

Perez v. United States (1971)

“For his extortionate credit transactions whereby he used the threat of violence as a method of collection, petitioner was convicted for "loan sharking" pursuant to Title II of the Consumer Credit Protection Act (Act). Petitioner sought review of his conviction, contending that the Act as construed and applied to him was an unconstitutional exercise by Congress of its powers under the Commerce Clause.” (Lexis)

The USSC accepted Congress’ findings that intrastate loansharking substantially effected interstate commerce.

HOLDING The Court said that the criminalization of loansharking was authorized under the Commerce Clause because extortion had a national impact.

Commerce Clause

United States v. Lopez (1995)

In the Gun-Free School Zones Act of 1990, Congress made it a federal offense for someone to possess a gun in a school zone. Lopez was convicted under this statute.

With no Congressional findings about the impact of guns in schools on interstate commerce, the absence of a commercial transaction, and an entrenched state interest, the majority found that the Act was beyond the authority of Congress. The majority identified three types of activities that Congress can regulate under the Commerce Clause

1. Congress can “regulate the use of the channels of interstate commerce” (cited Heart of Atlanta Motel as an example of this)

2. Congress can regulate to protect “the instrumentalities of interstate

HOLDING The statute is unconstitutional.


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commerce,” including people and things (ex. Shreveport Rate Cases)

3. Congress may regulate activities having a substantial relation to interstate commerce (and this relationship has to be a substantial effect, rather than a mere effect)

Commerce Clause

United States v. Morrison (2000)

Brzonkala filed rape charges against two Virginia Tech students. She also sued the students and Virginia Tech under VAWA. The defendants challenged the constitutionality of the act.

Congressional findings alone do not create a constitutionally adequate connection to interstate commerce. Noneconomic activities cannot be aggregated to find a link to interstate commerce either.

HOLDING The statute is unconstitutional.

Commerce Clause

Gonzales v. Raich (2005)

In 1996, California passed Proposition 215 allowing medical marijuana. Respondents are medical marijuana users who brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act that prohibited them from possessing medical marijuana.

Congress can regulate home growth of a crop for home consumption under Wickard, including illegal crops such as marijuana. The Court still maintained Lopez and Morrison’s limits: said that, in this case, the intrastate production of a commodity sold in interstate commerce is economic activity and thus falls into the substantial effect (based on aggregation) box.

HOLDING The statute is constitutional.


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Commerce Clause



2. The individual mandate is not constitutionally authorized under the Commerce Clause. Congress cannot use regulation to create commerce (by mandating people buy health insurance) so it can regulate them because they are engaged in commerce.

HOLDING

E. CONGRESSIONAL WAR AND TREATY POWERS, AND THE IMPLIED POWER OVER FOREIGN AFFAIRS

• the Treaty Power does not allow Congress to violate the Constitution (Reid v. Covert) • The Tenth Amendment does not limit the scope of the treaty power, however (Missouri

v. Holland)

TOPIC AREA CASE NAME KEY FACTS TAKE HOME Separation of Powers

Woods v. Cloyd W. Miller Co. (1948)

The District Court held unconstitutional Title II of the Housing and Rent Act of 1947 because it was not supported by he war power once the president had terminated hostilities officially in 1946. It came to the USSC on direct appeal.

The War Power does not end once combat has ended but continues (not clear until when).

HOLDING The war power supports this legislation.

Separation of Powers

Missouri v. Holland (2014)

In 1916, the US and UK had signed a treaty protecting migratory birds in the US and Canada and banned two seasons of hunting. The 1918 Migratory Bird Treaty Act translated this treaty into domestic law. Missouri said that the statute violated the Tenth Amendment. The District Court held the Act

If something is a valid treaty then its statutes enacted under the Necessary and Proper Clause are also valid. The 10th Amendment does not limit the scope of the treaty power.

HOLDING Affirmed.


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constitutional.


Bond v. United States (2014)

The US signed the international Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction in 1997. Congress then passed the Chemical Weapons Convention Implementation Act in 1998 to give the treaty domestic effect. The defendant smeared chemicals on Myrlinda Haynes' car door handles and mailbox because Haynes had slept with Bond's husband and got pregnant. Bond was charged with two counts of mail theft and with two counts of using a chemical weapon.

The majority resolved this issue through statutory interpretation and thus avoided the constitutional issues. The concurrences argued that there was a constitutional problem with a treaty that so encroached on the limits of federalism.

HOLDING There needs to be a clear indication of congressional intent before the Court will read a statute to claim that federal law intrudes on state police power. This statute does not apply to Bond. Reversed.

F. THE TENTH AMENDMENT’S CONSTRAINTS ON FEDERAL POWER

• there are two approaches to the Tenth Amendment and the USSC has utilized both over history:

1. the Tenth Amendment is not a separate constraint on the federal government, but simply a reminder that Congress cannot exceed the scope of its powers under Art. I

2. the Tenth Amendment is a key protection of states’ rights and reserves a zone of activity to the states for their exclusive control • the Court has shifted between these two positions

o 19th C: approach 1 o early 20th C -1937: approach 2 o 1937-19901: approach 1 o 1990s-present: approach 2



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Commerce Clause

Coyle v. Oklahoma (1911)

“In 1910, Oklahoma enacted a law moving its state capital from Guthrie to Oklahoma City. In admitting Oklahoma to the Union, the Congress declared the temporary capital to be Briscoe and that a change to some other location would not occur until 1913.” (Oyez)

There are some actions that are completely within states’ purview and cannot be regulated by the federal government.

HOLDING Congress did not have the authority to tell Oklahoma where to put its capital

Commerce Clause

United States v. California (1936)

“The United States alleged that California was subject to the Safety Appliance Act as a transportation agency that acted as a common carrier. California argued that it was not subject to the Safety Appliance Act because it was engaged in performing a public function in its sovereign capacity.” (Lexis)

Congress can regulate a state when it is acting as a private transactional actor.

HOLDING Congress had the authority to regulate California.

Commerce Clause

New York v. United States (1946)

“The United States brought suit pursuant to [against New York to] recover taxes assessed against the State for the sale of mineral waters. The State claimed immunity, arguing that it was engaging in a traditional and essential governmental function.” (Lexis)

Congress can tax a state when it is acting as a private transactional actor.

HOLDING Congress had the authority to tax New York.

Commerce Clause

National League of Cities v. Usery (1976)

“In 1974, Congress passed amendments to the Fair Labor Standards Act of 1938. The purpose of the amendments was to regulate minimum wage and overtime pay for state

The Court said that there is a core of state activity that is solely within the purview of the state and this core activity cannot be regulated by Congress. HOLDING


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The Fair Labor Standards Act amendments were within the Commerce Clause, but still unconstitutional because they interfered with the states too much.

and local government employees. The National League of Cities, as well as several states and cities, challenged the constitutionality of the amendments.” (Oyez)

Overturned by Garcia. The majority said that this was an intrusion into the “traditional” functions of the state government, but did not define what these traditional functions were

Commerce Clause

Garcia v. San Antonio Metropolitan Transit Authority (1985)

“The San Antonio Metropolitan Transit Authority (SAMTA) claimed it was exempt from the minimum-wage and overtime requirements of the Fair Labor Standards Act. SAMTA argued that it was providing a "traditional" governmental function, which exempted it from federal controls according to the doctrine of federalism established in National League of Cities v. Usery (1976). Joe G. Garcia, an employee of SAMTA, brought suit for overtime pay under Fair Labor Standards Act.” (Oyez)

The "traditional" or "integral" distinction from National League of Cities was unworkable. Instead, the States' interests are represented in the political process and thus these political safeguards protect the lines of federalism. Overturned National League of Cities. Majority also said that the National League test was unworkable and required judicial appraisal of whether a government function was traditional and this appraisal could veer into the court deciding which state policies it simply preferred as good policy.

HOLDING

Commerce Clause

South Carolina v. Becker (1988)

“In 1982, Congress passed the Tax Equity and Fiscal Responsibility Act (TEFRA). The statute removed the federal income tax exemption for interest earned on publicly

There is no state immunity from a nondiscriminatory tax.

HOLDING


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“The Court found that its subsequent decisions overruled Pollock so that state bond interest is not immune from a nondiscriminatory federal tax. Therefore, the owners of state bonds have no constitutional authority to exempt taxes on the earned income.” (Oyez)

offered long-term bonds issued by state and local governments unless they were issued in registered form. South Carolina declared that both bearer and registered bonds issued by states and municipalities had been free from taxation since Pollock. The federal government claimed that the Act did not eliminate the state's power to issue bonds free from taxation; rather it regulated the types of bonds to be exempt.” (Oyez)

G. ANTI-COMMANDEERING

TOPIC AREA CASE NAME KEY FACTS TAKE HOME Commandeering New York v.

United States (1992)

The Low-Level Radioactive Waste Policy Amendments Acts of 1985 required states to provide for disposal of such waste generated within their borders. It provided three incentives to do so: (1) states could charge other states who used their facilities; (2) states could increase the cost of access or deny access altogether to states who didn't build facilities; (3) "take title" sanctions such that a state either had to follow these provisions or it was liable for all damages suffered by the waste's generator or owner. NY and two of its countries sought a declaratory judgment that all three provisions were

Congress cannot compel states to take certain actions through threatening a harsh penalty because this erodes political accountability and thus federalism. Congress may, however, set standards that state and local governments must meet and thereby preempt state and local actions. Congress can also attach conditions to spending to incentivize state and local governments to follow these standards.

HOLDING The Court upheld the first two incentives, but found the "take title" provision unconstitutional.


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unconstitutional.

Commandeering Printz v. United States (1997)

“The Brady Handgun Violence Prevention Act (Brady Bill) required "local chief law enforcement officers" (CLEOs) to perform background-checks on prospective handgun purchasers, until such time as the Attorney General establishes a federal system for this purpose. County sheriffs Jay Printz and Richard Mack, separately challenged the constitutionality of this interim provision of the Brady Bill on behalf of CLEOs in Montana and Arizona respectively.” (Oyez)

Congress can regulate interstate commerce directly, but it cannot commandeer states to help it regulate interstate commerce. Dissent: This will lead to the expansion of federal government.

HOLDING The majority held invalid a provision of the Brady Handgun Violence Prevention Act that required state and local law enforcement officers to conduct background checks on prospective handgun purchasers.

Commandeering Reno v. Codon (2000)

“Congress enacted the Driver's Privacy Protection Act of 1994 (DPPA), which establishes a regulatory scheme that restricts the States' ability to disclose a driver's personal information without the driver's consent, after finding that many States sell such information. The Attorney General of South Carolina filed suit, alleging the DPPA violated the Tenth and Eleventh Amendments.” (Oyez)

The Court said that this was a proper exercise of Congress’ Commerce Clause, as it was nondiscriminatory (it just happened that all DMVs are run by states). The Court also distinguished this prohibition from an affirmative mandate as in New York v. United States and Printz (although the boundaries between these two aren’t clear cut).

HOLDING The unanimous court rejected South Carolina's claims of improper commandeering.


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H. STATE SOVEREIGN IMMUNITY AND THE ELEVENTH AMENDMENT

TOPIC AREA CASE NAME KEY FACTS TAKE HOME State Sovereign Immunity

Chisholm v. Georgia (1793)

“In 1777, the Executive Council of Georgia authorized the purchase of needed supplies from a South Carolina businessman. After receiving the supplies, Georgia did not deliver payments as promised. After the merchant's death, the executor of his estate, Alexander Chisholm, took the case to court in an attempt to collect from the state. Georgia maintained that it was a sovereign state not subject to the authority of the federal courts.” (Oyez)

The 11th Amendment was enacted to overturn Chisholm. The Eleventh Amendment says that the USSC does not have jurisdiction over suits commenced against a state by a person of another state (or foreign national).

HOLDING The Court said it had original jurisdiction of a suit against Georgia by a South Carolina creditor.

State Sovereign Immunity

Hans v. Louisiana (1890)

“This was an action brought in the Circuit Court of the United States, in December, 1884, against the State of Louisiana by Hans, a citizen of that State, to recover the amount of certain coupons annexed to bonds of the State, issued under the provisions of an act of the legislature approved January 24, 1874.” (Lexis)

USSC said that the Eleventh Amendment applied not only to federal diversity jurisdiction but also federal question jurisdiction. In other words, the 11th Amendment prohibits (implicitly) suits against a state by its own citizens in federal court.

HOLDING “Plaintiff could not sue Louisiana based on its failure to pay interest on bonds because Louisiana had sovereign immunity from such actions under the Eleventh Amendment of the United States Constitution.” (Lexis)


Ex parte Young (1908)

“Petitioner, a state's attorney general, sought a writ of habeas corpus and a writ of certiorari after he

Federal courts can issue injunctions against state officials who sought to enforce an HOLDING


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“The injunction did not violate the Eleventh Amendment because the court enjoined petitioner and not the state.” (Lexis)

was punished for contempt in the Circuit Court of the United States for the District of Minnesota for violation of that court's injunction, which prohibited him from enforcing unconstitutional railroad acts in a suit brought by complainants stockholders against defendant railroad.” (Lexis)

unconstitutional state law because the defendant is not the state, but the state official.


Fitzpatrick v. Bitzer (1976)

“Petitioners, male state employees, appealed a judgment holding that, although respondent state's retirement plan violated the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e, by discriminating against male employees, the court could not award retroactive retirement benefits under 42 U.S.C.S. § 2000e-5, because such an award was barred by the sovereign immunity afforded the state under the Eleventh Amendment.” (Lexis)

Congress can allow citizens to sue states for retrospective damages under §5 of the Fourteenth Amendment as long as their intention to do so was made clear in the language of the statute.

HOLDING “The Court reversed, holding that Congress enacted the Civil Rights Act of 1964 pursuant to the authority granted to it by § 5 of the Fourteenth Amendment…[and] the Court reasoned that a state's sovereignty was necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment…” (Lexis)


Seminole Tribe of Florida v. Florida (1996)

“The Seminole Tribe brought suit against the State of Florida for violating the good faith negotiations requirement

The USSC overruled Pennsylvania v. Union Gas Co. (holding that citizens could sue states for monetary damages HOLDING


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“The Court held that Congress did intend to abrogate states' sovereign immunity under the IGRA but that the Indian Commerce Clause (and by implication the Commerce Clause) did not give Congress that power.” (Oyez)

of the Indian Gaming Regulatory Act (IGRA).” (Oyez)

against states in federal courts, although the majority could not agree on a rationale why) and held that Congress, when acting under the Commerce power, may not abrogate a state's sovereign immunity without the state's consent.

IV. Tax and Spend Power

A. THE TAXING POWER AS A REGULATORY POWER

TOPIC AREA CASE NAME KEY FACTS TAKE HOME Tax and Spend Power

Child Labor Tax Case [Bailey v. Drexel Furniture Co.] (1922)

After Hammer v. Dagenhart came down, Congress enacted the Child Labor Tax Law of 1919. The law imposed a federal tax of 10% of an employer's annual profits if he employed children in the same categories as the Hammer decision. After paying the tax, the plaintiff sued for a refund.

Taxes’ main purpose is to raise revenue and have the incidental effect of regulating behavior. Penalties are consequences for violations or unlawful behavior. Congress can implement taxes under the limitations of its Tax and Spend Power, but cannot implement penalties beyond the scope of its Commerce Power.

HOLDING Affirmed. The tax is unconstitutional.

Tax and Spend Clause



3. Roberts (in his opinion that received one vote, but was tie-breaker) said that the individual mandate was constitutional under the Tax and Spend Clause. HOLDING

B. THE SPENDING POWER AS A REGULATORY DEVICE

• Charles C. Steward Machine Co. v. Davis (1937): the Court upheld the unemployment compensation provisions of the Social Security Act.


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o court focuses on state consent o if state had own program, then wouldn’t be able to tax o voluntary opt-in program o In his majority opinion, Cardozo said that the tax did not violate the Tenth

Amendment. o Social security didn't exist before the act and the states had no created a state-

level equivalent. o This national problem forced national resources to be brought to bear. o This case isn't the outer limits of Congress' tax power. o Butler is distinguishable.

• Helvering v. Davis (1937): the Court upheld the old age benefits provisions in the Social Security Act.

o race to bottom argument as basis for saying this is a national concern o this argument suffices for Court in this case although it hasn’t done so in other

cases o Writing for the majority, Cardozo said that Congress could decide where the line

was between general and local welfare. o Unless Congress was clearly wrong and acting with arbitrary power, the Court

shouldn’t intervene. o In this case, it was clear that a national welfare interest was at stake.

TOPIC AREA CASE NAME KEY FACTS TAKE HOME Tax and Spend Clause

United States v. Butler (1936)

“As part of the 1933 Agricultural Adjustment Act, Congress implemented a processing tax on agricultural commodities, from which funds would be redistributed to farmers who promised to reduce their acreage. The Act intended to solve the crisis in agricultural commodity prices which was causing many farmers to go under.” (Oyez)

Congress can't invade state regulatory power by compelling people to do things. Also, the tax and spend power is not limited to carrying out the other Art. I powers, but instead gives Congress broad authority to tax and spend for the general welfare (chose the Hamiltonian position over the Madisonian proposition that the tax & spend power was limited to the other enumerated powers).

HOLDING “The Court found the Act unconstitutional because it attempted to regulate and control agricultural production, an arena reserved to the states. Even though Congress does have the power to tax and appropriate funds,


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in this case those activities were "but means to an unconstitutional end," and violated the Tenth Amendment.” (Oyez)

Tax and Spend Power

South Dakota v. Dole (1987)

The National Minimum Age Drinking Act, 28 USC §158, tied 5% of a state's federal highway funds to a state making its drinking age 21. South Dakota sued for a declaratory judgment arguing that §158 violated constitutional limitations on the congressional spending power because the Twenty-First Amendment gave states exclusive power to regulate, the manufacture, transportation, and consumption of alcohol. The lower federal courts found for the federal government.

The majority said this condition was sufficiently linked to highway safety and was a small enough “stick” that it was a permissible condition. Dole's four part test (litigation generally about #s 3 and 4): (p207) 1. Congress has a

purpose to serve the general welfare

2. Congress has made a clear statement of the funding condition

3. The federal grants are "related" to the spending program

4. There are no other constitutional provisions that provide an independent bar to the conditional grant of federal funds.

HOLDING Affirmed. The Act was within the federal government's spending power.

Tax and Spend Power


Twenty-six states, led by Florida, argued that the ACA's condition that if the states complied with the expansion of Medicaid they would receive more funding, but if they did not comply they might lose all of their federal Medicaid funds.

4. Seven justices said that the Medicaid expansion had a unconstitutional condition because states faced losing all their funds: this counted as coercion. Five justices said this part of the law was severable.

HOLDING


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V. Interstate Commerce and Preemption A. DORMANT COMMERCE CLAUSE 1. Nascent Dormant Commerce Clause

TOPIC AREA CASE NAME KEY FACTS TAKE HOME Dormant Commerce Clause

Gibbons v. Ogden (1824)

The New York legislature granted Livingston and Fulton the exclusive right to operate steamboat ferries in New York waters. Livingston and Fulton licensed Ogdon to operate a ferry between NYC and Elizabethtown, NJ. Gibbons began operating a competing service under a federal statute. Ogdon obtained an injunction from the NY courts against Gibbons.

In dicta, Marshall suggested that the Commerce Clause included a negative pregnant that meant the states could not regulate interstate commerce and Congress could not delegate this power to the states either.

HOLDING The federal law preempted the state law and thus Gibbons was authorized to operate his ferry.

Dormant Commerce Clause

Cooley v. Board of Wardens (1851)

An 1803 Pennsylvania law required that ships entering or leaving the port of Philadelphia hire a local pilot. If a ship owner did not do so, then he was required to pay a fund to the Board of Wardens. The state courts held Cooley liable for the penalty. The case also involved a 1789 congressional statute providing that all pilots in the US should be regulated in conformity with the laws of the states unless Congress passed regulation to the contrary.

When the nature of the power is national, then it should be within the exclusive purview of Congress. In this case, Congress made it clear that this is a local issue that should be regulated locally because the best solution is a localized one, rather than a national one.

HOLDING The Pennsylvania law was valid.

2. Facial Discrimination Against Out-of-State Commerce



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Philadelphia v. New Jersey (1978)

A 1973 NJ law prohibited the importation of most waste which originated or was collected outside the state. Several private landfill operators in NJ and neighboring cities who had agreements with these operators sued claiming that the law was unconstitutional. The trial court said that the statute was unconstitutional because it discriminated against interstate commerce. The NJ Supreme Court reversed.

This was clearly a protectionist scheme and was unconstitutional because it discriminated against interstate commerce. The majority said that solid waste did not qualify for the exception under Quarantine Laws.

HOLDING Reversed. The law unconstitutionally discriminated against interstate commerce.


Granholm v. Heald (2005)

Michigan and NY imposed regulatory burdens on out-of-state wineries and their ability to sell directly to customers in those states, but didn't impose these same burdens on in-state wineries. The plaintiffs argued that this was facial discrimination. The states argued that the Twenty-First Amendment permitted this kind of state regulation.

The Dormant Commerce Clause is structurally located within the Constitution as well as textual located in Article I. Thus, the USSC has held that it trumps the Twenty-First Amendment.

HOLDING The laws were impermissible. The dormant commerce clause trumped the Twenty-First Amendment.


New Energy Co. of Indiana v. Limbach (1998)

“An Indiana law gave a tax credit against the Ohio motor vehicle fuel sales tax for each gallon of ethanol sold by fuel dealers, provided that the ethanol was produced in Ohio or in a state that grants similar tax advantages as the Ohio scheme.” (Oyez)

The Court has created a carve-out from the Dormant Commerce Clause for subsidies, but not taxes. The rationale is that subsidies are more subject to political accountability than tax credits.

HOLDING The Court invalidated a discriminatory tax credit for sales of ethanol that was produced in Ohio, but distinguished an Indiana subsidy for in-state ethanol


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production.

3. Home Processing Requirements


Deans Milk Co. v. Madison (1951)

Madison had a city ordinance barring the sale of milk that had not been pasteurized within five miles of central Madison. Deans Milk pasteurized its milk outside of this zone and challenged the ordinance.

Municipal discrimination counts as state discrimination.

HOLDING The ordinance discriminated against interstate commerce and therefore was unconstitutional.


C&A Carbone, Inc. v. Clarkstown (1994)

Clarkstown closed its landfill and built a new transfer station. A local private contractor built the facility and agreed to operate it for five years, after which the town would buy it for $1. The town guaranteed a certain minimum waste flow with a fixed fee per ton. In order to insure this inflow, the town required all waste within the town to be deposited at the station. The plaintiff wanted to ship its nonrecyclable waste to a cheaper processing operation in another state.

If a state or local government has an alternative means of financing a project, then it cannot rely on a discriminatory method. A facially neutral law can be found discriminatory if there is proof of a discriminatory impact.

HOLDING "State and local governments may not use their regulatory power to favor local enterprise by prohibiting patronage of out-of-state competitors or their facilities."


United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management Authority (2007)

The two towns had a "flow control" ordinance that required trash haulers to deliver solid waste to a processing facility owned by the municipalities.

The Court said that the local government could discriminate because waste disposal was a traditional government function. This appears to


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be in tension with the decision in Garcia. This decision is also somewhat contradictory to the discriminatory impact finding in Carbone, but the court distinguished it because the processing facility was owned by the municipality.

HOLDING Because the waste facility was municipally owned, this ordinance did not violate the dormant commerce clause.


Department of Revenue of Kentucky v. Davis (2008)

“Kentucky law requires that interest income earned on bonds issued by other states be taxed as part of an individual's adjusted gross income. George and Catherine Davis filed a class action complaint arguing that Kentucky's policy of taxing out-of-state bonds was in violation of the dormant Commerce Clause - the doctrine that the Commerce Clause forbids states from interfering with interstate commerce.” (Oyez)

There was no majority opinion. A plurality said that this was like United Haulers because this was a key government function. There was also a market participant doctrine thread.

HOLDING The Court said that the law was impermissible

4. Market Participant Exception

• a state or municipality can discriminate in favor of its residents when it acts as a market participant

• the government is considered a market participant when it is acting as a buyer or seller of goods or services or it is engaging in a program of subsidies or other economic incentives to aid in-state businesses

• the market participation doctrine allows a government to favor its own residents in the course of its own dealings, but it does not allow that government to regulate other private entities in their dealings with the state-owned entity

• Alexandria Scrap o Maryland program that favoured in-state scrap merchants rather than out-of-state

scrap processors was valid because it said the state had the right to participate in the market and favour its own residents over out-of-state residents

o but this is also a subsidy issue, which is allowed anyways o also not really a market issue, as more of a government function


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• Reeves o a South Dakota policy of restricting the sale of cement from a state-owned plant

to state residents was constitutional because the state was acting as a private seller who had the discretion to deal with whomever it wanted

• White o an executive order issued by the Mayor of Boston that required all city-funded

construction projects to use at least 50% city residents for its workforce was valid because the city was acting as a market participant

o Boston not in privity of contract with laborers: workers paid by private parties, but city pays ultimate bills

o court says the city is effectively a market participant o like a subsidy: handing out jobs rather than cost o also Supremacy Clause issues


South-Central Timber Development, Inc. v. Wunnicke (1984)

Alaska proposed to sell state-owned timber subject to the condition that the purchaser process the timber in Alaska before it was shipped out of the state. The plaintiff wanted to buy timber and then have it processed in Japan.

The market participant doctrine is limited to the transaction at hand and the market in which the transaction takes place. In other words, a state can’t require certain things to take place “downstream” if it is acting as an upstream market participant.

HOLDING Reversed and remanded. The state is not a market participant and this protectionist regulation falls within the rule of virtual per se invalidity of facially discriminatory laws.

5. Facially Neutral Laws with Protectionist Purpose or Effect


Baldwin v. G.A.F. Seelig, Inc. (1935)

The New York Milk Control Act of 1933 set minimum prices to be paid to dairy farmers. If a buyer bought the milk at

Although the act was facially neutral, it had a discriminatory purpose and therefore violated the dormant commerce HOLDING


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This Act was discriminatory as applied to out-of-state milk producers and thus violated the dormant Commerce Clause.

lower prices out of state, they couldn't sell that milk in New York.

clause.


H.P. Hood & Sons v. Du Mond (1949)

Hood operated three depots in NY and requested a license to establish a fourth depot. He was denied on the grounds this would create destructive competition.

A facially neutral statute, with a discriminatory purpose, is a violation of the dormant commerce clause.

HOLDING Reversed and remanded. The statute as applied violates the Commerce Clause.


Hunt v. Washington State Apple Advertising Comm'n (1977)

NC enacted a law that forbid the sale of apples with grading regulations other than that of the USDA. This disproportionately affected apples from Washington which had a superior grading scheme.

A facially neutral statute, with a protectionist purpose, is a violation of the dormant commerce clause. The Court found that the protection effect sufficed as discrimination violating the Dormant Commerce Clause.

HOLDING The Court struck down the law because it said that it was so clearly discriminatory.


Bacchus Imports, Ltd v. Dias (1984)

“The Hawaii Liquor Tax, enacted in 1939, imposed a twenty percent excise tax on wholesale liquor sales. Certain locally produced alcohol products, such as okolehao brandy and fruit wine, were exempt from the tax. Bacchus Imports, a liquor wholesaler, challenged the law's validity and sought a refund of $45 million

A facially neutral statute, with a protectionist purpose, is a violation of the dormant commerce clause. Also, the Dormant Commerce Clause is structurally located within the Constitution as well as textual located in Article I. Thus, the USSC has held that it trumps the Twenty-First Amendment.

HOLDING The Court said the exemption was both discriminatory in purpose and effect.


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from the state of Hawaii.” (Oyez)


Exxon Corp. v. Governor of Maryland (1978)

“Maryland observed oil producer-operated stations receiving favorable rates from producers and refiners. In response, Maryland passed a statute prohibiting oil producers or refiners from operating gasoline stations within the state and requiring producers and refiners extend temporary price cuts to the stations they supplied.” (Oyez)

The Court said that the legitimate policies outweighed the potential protectionism and this was not a sham. HOLDING

The Court upheld the law.


Minnesota v. Clover Leaf Creamery Co. (1981)

“Minnesota enacted a statute prohibiting the sale of milk and milk products in non-refillable, non-returnable plastic containers and requiring that they be sold in pulpwood containers.” (Oyez)

The Court said that the legitimate policies outweighed the potential protectionism and this was not a sham. HOLDING

The Court upheld the law.

6. Facially Neutral Laws with a Disproportionate Adverse Effect on Commerce

• Barnwell Bros o no interstate highway system and not much interstate trucking o minimal impact on interstate commerce o upheld restrictive lorry law under a balancing test

• Southern Pacific o limit train length: blocks streets for longer o trains are hugely important to interstate commerce whereas the wait is solely a

local problem o Court strikes down law under a balancing test

• Bibb v. Navajo Freight Lines o Illinois requires contoured mud flaps whereas every other state requires straight

mud flaps o huge burden on interstate commerce through Illinois o struck down


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Pike v. Bruce Church, Inc. (1970)

“An Arizona statute required that Arizona-grown cantaloupes advertise their state of origin on each package. Church was an Arizona grower of high quality cantaloupes. Instead of packing them in Arizona, it transported them to nearby California facilities, where they were not labeled as grown in Arizona. Arizona issued an order prohibiting Church from shipping uncrated cantaloupes from the Arizona ranch, and requiring that the cantaloupes be packed in Arizona and identified as coming from an Arizona packer.”

The Pike test: "Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. [If] a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities."

HOLDING The Court struck down this law using a balancing test.


Kassel v. Consolidated Freightways Corp. (1981)

Iowa forbid 65-foot "double" trucks, which was the common standard. They allowed exceptions for border-cities and for moving oversized lorries within the state. The plaintiff couldn't use its standard trucks within Iowa and had to choose to switch its cargo to smaller lorries or divert around the state.

The majority used the Pike test to say that this was a violation of the dormant commerce clause. The concurrence pointed out this was sham legislation.

HOLDING Affirmed. Iowa has interfered with interstate commerce with no significant countervailing safety issue, so its statute violates the Commerce Clause.

B. PRIVILEGES AND IMMUNITIES CLAUSE

• the protections individuals have under this Clause applies to both states and Congress • Congress cannot authorize discrimination under this clause (unlike dormant commerce

clause)


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• clause only applies to fundamental rights à in Piper and United Building, vocation counted as fundamental right

• privileges and immunities only applies to physical persons • the market participant exception does not count in this context • two questions to ask

o has the state discriminated against out-of-staters with regard to privileges and immunities that it accords its own citizens?

o if there is such discrimination, is there a sufficient justification for the discrimination?

• standard of review in PI cases: o The tests in Untied Building and Piper employ intermediate rather than strict

scrutiny. o This is a less demanding standard of review than the dormant commerce clause,

which permits facial discrimination only if the government has a compelling interest for which the law is the least restrictive means.

o In Privileges and Immunities Clause claims, the government need only show a substantial interest to which the regulation is closely related.


Privileges and Immunities Clause

United Building & Construction Trades Council v. Mayor and Council of Camden (1984)

The City of Camden required that all city construction projects hire 40% of their workforce fro Camden. The plaintiff challenged the ordinance as a violation of both the Privileges and Immunities Clause and the dormant commerce clause. After the case was filed, the USSC rejected the dormant commerce clause claim in White v. Mass Construction Council, which was a nearly identical case. The plaintiff then focused solely on its Privileges and Immunities Clause challenge. The Supreme Court of New Jersey said there was no Privileges and Immunities Clause issue because the municipal ordinance discriminated against all

The majority said that the law hindered the national economy with no substantial reason for the discrimination

HOLDING Reversed and remanded to the NJ Supreme Court for the necessary fact-finding.


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non-Camden residents, including residents of NJ who didn't live in Camden.

Privileges and Immunities Clause

Supreme Court of New Hampshire v. Piper (1985)

“Piper, a nonresident of New Hampshire, desired to practice law in New Hampshire. However, Piper could not because the Supreme Court of New Hampshire said only the New Hampshire lawyers were allowed to practice there. Piper claimed the decision violated her rights under the Privileges and Immunities Clause.”

The majority said that the law hindered the national economy with no substantial reason for the discrimination.

HOLDING The Court struck down a state rule limiting bar admission to NH residents as a violation of the Privileges and Immunities Clause.

C. PREEMPTION

• once there is inconsistency between fed and state law found, fed trumps • all the work, therefore, is done by finding inconsistency à important to find

Congressional intent to preempt, whether express or implied • three ways to find inconsistency:

(1) express: statute expressly says there is preemption à courts still have to determine the scope of the preemption

(2) conflict (implied) § direct: feds prohibit and state allows (or vice-versa) § indirect: states prohibit and feds tacitly allow (or vice-versa) § physical impossibility to comply with both schemes

(3) field (implied): fed regulation occupies the field § the federal legislative scheme “is so pervasive as to make reasonable the

inference that Congress left no room for the States to supplement it” § in field preemption, there does no need to be a conflict between state and

federal for their to be preemption § the Court has often found field preemption in the areas of foreign policy

and immigration § factors the Court considers in field preemption

• is it an area where the federal government has traditionally played a unique role?

• has Congress expressed an intent in text of the law or in the legislative history to have federal law be exclusive in this area?

• would allowing state and local regulations in the area risk interfering with comprehensive federal regulatory efforts?


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• is there an important traditional state or local interest served by the law?

• reverse preemption: o Congress can write into law that it can be overturned by states o ex. competition laws in insurance market (McCaren-Feruson Act)


Preemption Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Development Comm'n (1983)

A 1976 California law imposed a moratorium on the certification of nuclear energy plants until the defendant determined there was an appropriate means for disposal of nuclear waste. PG&E sought declaratory relief that this provision was preempted by the federal Atomic Energy Act of 1954.

The federal legislation preempted California from entering the field of nuclear safety regulation, but did not prevent them from economically regulating the energy market. This may not be good policy, but it is not unconstitutional.

HOLDING Affirmed. The California law is not preempted by the federal regulation.

Preemption Wyeth v. Levine (2009)

“Diana Levine filed this personal injury action against Wyeth, the drug manufacturer, in state court in Vermont. Ms. Levine had intravenously injected Phenergan, a drug made by Wyeth and used to prevent allergies and motion sickness, into her arm, and complications arising from the injection eventually led to the amputation of her arm. Ms. Levine brought this claim asserting that Wyeth had failed to include a warning label describing the possible arterial injuries that could occur from negligent injection of the drug. Wyeth argued that because their warning label had been deemed

Since the federal and state regimes could be additive and there was no indication that the federal regime was meant to be exclusive, there was no preemption in this case.

HOLDING The Court declined to find a valid preemption claim when a state tort-law claim found that a drug had a failure-to-warn even though it had been approved by the FDA for such a usage.


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acceptable by the FDA, a federal agency, any Vermont state regulations making the label insufficient were preempted by the federal approval.” (Oyez)

Preemption Crosby v. National Foreign Trade Council (2000)

“In 1996, the Massachusetts Burma Law, which restricted state entities from buying goods or services from companies doing business with Burma, was passed. Afterwards, Congress also imposed mandatory and conditional sanctions on Burma.”(Oyez)

Since the MA law interfered with the structure of the federal sanctions, it was preempted. (Conflict rather than field preemption)

HOLDING “The MA law created an obstacle to the President's discretion to control economic sanctions against Burma, interfered with Congress's intention to limit economic pressure against the Burmese Government, and was at odds with the President's authority to speak for the United States among the world's nations to develop a comprehensive, multilateral Burma strategy.” (Oyez)

D. STATE TAXATION OF INTERSTATE BUSINESS

• Complete Auto Transit, Inc. v. Brady (USSC 1977): o The Court set forth the four-part test for these kind of taxes. o A state tax may be sustained against a Commerce Clause challenge when:

§ The tax is applied to an activity with a substantial nexus to the taxing state § Is fairly apportioned § Does not discriminated against interstate commerce § Is fairly related to the services provided by the state


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• Quill Corp. v. North Dakota (USSC 1992): The Court said that a substantial nexus is greater than the minimum contacts test of the Due Process Clause

• all of this jurisprudence happened before the internet and the rise of online shopping • recently, talk about revisiting limits on states’ authority to tax interstate business

VI. Separation of Executive and Legislative Powers

A. EXECUTIVE ASSERTIONS OF POWER


Youngstown Sheet & Tube Co. v. Sawyer (1952)

During the Korean War, a dispute arose between the steel companies and their workers. The workers gave notice of a nation-wide strike. The need for steel for the war led the President to order the government seizure of the steel mills to ensure that steel kept being produced. Truman issued an Executive Order directing the Secretary of Commerce to seize the mills and keep them running. Truman informed Congress of his order, but they took no action. The steel companies brought an action against the Secretary of Commerce. The District Court issued a preliminary injunction restraining Sawyer from seizing the mills. The same day, the Court of Appeals issued a stay on the injunction. The USSC granted cert four days later because of the need to promptly decide the matter.

Jackson’s concurrence is the part of this decision everyone cites. There are three categories of power between Congress and the President: § Congressional

authority (explicit or implied) + presidential power

§ Presidential power + “twilight” of congressional authority

§ Presidential powers – congressional powers

HOLDING Affirmed. The seizure of the mills was unconstitutional.


United States v. Belmont (1937)

The US diplomatically recognized the USSR in 1933. President Roosevelt,

The Court held that the establishment of diplomatic relations and


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in an exchange of diplomatic correspondence, with the USSR, agreed to an assignment to the US of all Soviet claims against Americans who held funds of Russian companies seized after the United States. The Belmont suit was brought by the US in reliance upon that assignment in order to recover funds deposited by a Russian corporation with a private New York bank. Lower courts dismissed on the ground that implementing the USSR's confiscation would violate the public policy of NY.

the assignment were part of the same legitimate transaction authorized by the Recognition Power. Thus, the assignment trumped state law because of the Supremacy Clause.

HOLDING The USSC said that the establishment of diplomatic relations and the assignment were both parts of the same legitimate transaction. This executive agreement trumped state polices under the Supremacy Clause.


Dames & Moore v. Regan (1981)

During the Iran Hostage Crisis, the US froze all Iranian assets in the US. In 1979, the petitioner filed suit in the district court against the Government of Iran and other Iranian entities for breach of contract. The court issued orders of attachment directed against the property of the defendants. In 1981, the American hostages were released pursuant to an Executive Agreement. In the Agreement, the US agreed to terminate all legal proceedings in US Courts involving claims of US persons and Iranian institutions. The agreement set up an Iran-United States claims

Category 2: Congressional acquiescence to a executive practice put this case into a mix of presidential power + a “twilight” of congressional power. The Court recognized that a “systematic, unbroken, executive practice” that had never been questioned by Congress acted as a gloss on executive power.

HOLDING The agreement was valid and the President had the power to issue orders to enact it.


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Tribunal to arbitrate any claims that were not settled.


Medellin v. Texas (2008)

In order to comply with its treaty obligations, President Bush issued a statement that the US would respect the ICJ's judgment to re-review death sentences given to several Mexican nationals who had not been afforded the right to speaker for the Mexican consulate in violation of the Vienna Convention.

Category 3: No Congressional statute and no longstanding practice or acquiescence. Thus, without independent presidential power, this wasn’t valid. Also, unaddressed, there was a potential commandeering issue here.

HOLDING “The Court held that the signed Protocol of the Vienna Convention did not make the treaty self- executing and, therefore, the treaty is not binding upon state courts until it is enacted into law by Congress. Furthermore, Chief Justice Roberts characterized the presidential memorandum as an attempt by the executive branch to enforce a non-self executing treaty without the necessary Congressional action, giving it no binding authority on state courts.” (Oyez)

B. EXECUTIVE DISCRETION IN TIMES OF WAR


Ex Parte Milligan (1866)

“Lambden P. Milligan was sentenced to death by a military commission in Indiana during the Civil

The Court said that Milligan was not subject to military jurisdiction because he was: not in a HOLDING


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The Court “held that trials of civilians by presidentially created military commissions are unconstitutional. Martial law cannot exist where the civil courts are operating.” (Oyez)

War; he had engaged in acts of disloyalty. Milligan sought release through habeas corpus from a federal court.” (Oyez)

warzone, a US citizen on US soil, and the civilian courts were operating.


Ex Parte Quirin (1942)

A group of German nationals, one of whom was a naturalized American citizen, travelled from Germany to the US in a submarine. They intended to blow up factories, but were arrested by the FBI. The President authorized a military commission to try the petitioners for offenses against the law of war and the Articles of War.

Military law can apply to US citizens on US soil if enemy combatants.

HOLDING The trial by military commission did not violate the constitution.


Johnson v. Eisentrager (1942)

“After V.E. day, German nationals stationed in Nanking allegedly passed on Wehrmacht intelligence to the Japanese Empire. They were tried, and twenty-one of them convicted, by a military commission for breach of the terms of the German surrender. They returned to Germany to serve prison terms, in the meantime petitioning the D.C. District Court for habeas corpus hearings. The District Court denied its own jurisdiction on the grounds that the petition was without cause for relief. The Appeals Court

Habeas is not available to foreign enemy combatants tried and imprisoned by the US military outside of US territory. HOLDING

The Court said that it had no jurisdiction over the men because they were tried, convicted, and imprisoned outside the territorial jurisdiction of any US court.


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reversed, remanding the case back to the District Court to adjudge the petition's merits.”


Rasul v. Bush (2004)

“Four British and Australian citizens were captured by the American military in Pakistan or Afghanistan during the United States' War on Terror. The four men were transported to the American military base in Guantanamo Bay, Cuba. When their families learned of the arrests, they filed suit in federal district court seeking a writ of habeas corpus that would declare the detention unconstitutional. They claimed that the government's decision to deny the men access to attorneys and to hold them indefinitely without access to a court violated the Fifth Amendment's Due Process clause. The government countered that the federal courts had no jurisdiction to hear the case because the prisoners were not American citizens and were being held in territory over which the United States did not have sovereignty (the Guantanamo Bay base was leased from Cuba indefinitely in 1903, and Cuba retains "ultimate sovereignty").” (Oyez)

Habeas is available to those kept in Guantanamo. The Court did not address what type of hearing must be accorded to Guantanamo detainees, but just that they had a right to have their habeas petition heard. The Court distinguished this case from Johnson v. Eisentragger.

HOLDING “The Court found that the degree of control exercised by the United States over the Guantanamo Bay base was sufficient to trigger the application of habeas corpus rights.” (Oyez)


Hamdi v. Rumsfeld (2004)

Hamdi, a US and Saudi Citizen, was detained as

Although Congress authorized Hamdi’s


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an "enemy combatant" after being captured in Afghanistan. Hamdi sued for habeas relief. The Court of Appeals denied relief, in deference to the military's argument.

detention, a US national detained on US soil is entitled to a fair hearing to determine whether he is an enemy combatant.

HOLDING The AUMF authorizes Hamdi's detention. amdi is entitled to a fair hearing in front of a neutral decision maker to determine whether he is an "enemy combatant." This decision maker may be a military tribunal, if it follows proper procedure, but it may be a court.


Hamdan v. Rumsfeld (2007)

Hamdan, a Yemeni national, was captured in Afghanistan. He was detained at Guantanamo and deemed eligible for trial by military commission. Hamdan petitioned for a write of habeas corpus.

The majority inferred a prohibition on the type of military commission Hamdan was subject to from the UCMJ. This put this case in Youngstown Category 3.

HOLDING The military commission convened to try Hamdan lacks the power to proceed because its structure and procedures violate the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions.


Boumediene v. Bush (2008)

The petitioners were designated as enemy combatants and held at Guantanamo.

Even though the petitioners were not US nationals and were not on US soil, because they were detained at HOLDING


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The petitioners do have the habeas corpus privilege. Since the DTA's procedures are not an adequate and effective substitute for habeas corpus, the MCA is an unconstitutional suspension of the writ.

Guantanamo, which is basically the US, they have the right to a habeas hearing. The CSRT was not a valid substitute and was therefore an unconstitutional suspension of the writ.

C. CONGRESSIONAL ATTEMPTS TO RESTRAIN AND ENABLE THE EXECUTIVE

• executive is acting as an agent of Congress o bonding

§ giving instructions (from principal to agent) to constrain agent § since you can’t predict the future, instructions often overly or underly

inclusive o monitoring

§ principle observers agent § if unhappy, apply sanctions

• non-delegation rule o bonding rule o Congress can’t give too much legislative authority to executive o the USSC has struck down delegations twice since the rise of administrative state

(and in both cases, these were delegations to private parties) o current doctrine: as long as statute contains an “intelligible principle” then its

constitutional à Thomas and Scalia want to change this o this doctrine has never applied to foreign affairs (Curtiss-Wright) even at height

of doctrine in 1930s 1. “Vetoes”


INS v. Chadha (1983)

§244(c)(2) of the Immigration and Nationality Act authorized the House to invalidate the decision of the Executive Branch to suspend deportation of a deportable alien If the alien met specified conditions and would suffer extreme hardship if

One-house vetoes (legislative vetoes) violate the bicameralism created by the Constitution and the Presentment Clause and are thus unconstitutional.

HOLDING The one-house veto provision is unconstitutional (but severable from the rest of the act).


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deported. The AG was required to report to Congress on each suspension. Chadha had his deportation suspended, and the AG notified Congress of this action. The House passed a resolution vetoing this decision. Chadha challenged the constitutionality of the one-House veto provision.


Clinton v. New York (1983)

After the Court in Raines v. Byrd (1996) said that legislators lacked standing to challenge the Line Item Veto Act of 1966, President Clinton exercised his authority under the Act by cancelling a provision of the Balanced Budge Act of 1997 allowing New York to keep certain funds. New York challenge the constitutionality of the Act.

The line item veto is akin to amending legislature and is thus not a function of the executive and thus this mechanism is unconstitutional.

HOLDING The Line Item Veto Act is unconstitutional.

3. Appointments Clause

• principle officers vs. inferior officers o principle officers: presidential nomination and majority of senate o inferior officers: Congress can create three mechanisms by law

§ president alone § courts § heads of department

• neither of these mechanisms allow Congress to appoint people


Buckey v. Valeo (1976)

“In the wake of the Watergate affair, Congress attempted to ferret out corruption in political

Congress cannot appoint executive officials that are solely answerable to Congress. HOLDING


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The make-up of the FEC was unconstitutional.

campaigns by restricting financial contributions to candidates. Among other things, the law set limits on the amount of money an individual could contribute to a single campaign and it required reporting of contributions above a certain threshold amount. The Federal Election Commission was created to enforce the statute.” (Oyez)

This is because Congress does not have the appointment power.


Boswer v. Synar (1986)

Congress passed a statute, the Gramm-Rudman-Hollings Act, that relied on the Comptroller General to help balance the budget. The Comptroller General office was created by the Budget and Accounting Act of 1921, and was subject to removal either by impeachment or by a Joint Resolution of Congress.

Congress can only remove an executive official through impeachment and cannot create another process through statute. Congress cannot delegate executive power to the legislature: once Congress enacts legislation, only the executive is responsible for executing it.

HOLDING It is unconstitutional for Congress to reserve for itself the power of removal of an official recharged with the execution of the laws except by impeachment.

4. Removal Power

• in general the president has the power to remove executive officials, but Congress may limit the removal power if it is an office where independence from the president would be desirable

• Congress cannot completely prohibit removal or give the removal power to itself (outside of impeachment)

• Congress also can’t create double lawyers of protection from presidential removal


Myers v. United States (1926)

“An 1876 law provided that postmasters of the first, second, and third classes shall be appointed and may be removed by

The president has immutable powers to remove purely executive officers.

HOLDING


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The limitation on the president’s power to remove was unconstitutional.

the President with the advice and consent of the Senate. President Woodrow Wilson removed Myers, a postmaster first class, without seeking Senate approval.” (Oyez)


Humphrey’s Executor v. United States (1935)

“President Hoover appointed, and the Senate confirmed, Humphrey as a commissioner of the Federal Trade Commission (FTC). In 1933, President Roosevelt asked for Humphrey's resignation since the latter was a conservative and had jurisdiction over many of Roosevelt's New Deal policies. When Humphrey refused to resign, Roosevelt fired him because of his policy positions. However, the FTC Act only allowed a president to remove a commissioner for "inefficiency, neglect of duty, or malfeasance in office."” (Oyez)

Congress can limit the president’s power to terminate to for-cause if the official is not a purely executive official but also has quasi-legislative or judicial functions.

HOLDING The limitation on the president’s power to remove was constitutional.


Wiener v. United States (1958)

“By the War Claims Act of 1948, Congress established the War Claims Commission for the purpose of adjudicating claims for compensating internees, prisoners of war, and religious organizations. Wiener was confirmed as a member of the Commission by President Truman in 1950. In 1953, when President Eisenhower requested

Congress can limit the president’s power to terminate if the official is not a purely executive official but also has quasi- judicial functions.

HOLDING


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Wiener's resignation, Wiener refused. Eisenhower subsequently appointed a substitute to Wiener's post. The Commission was abolished in 1954, and Wiener brought a claim to recover his salary from the time of his removal to the last day of the Commission's existence.” (Oyez)


Free Enterprise Fund v. Public Accounting Oversight Board (2010)

“The Free Enterprise Fund, a non-profit organization, brought suit challenging the constitutionality of Title I of the Sarbanes-Oxley Act. It alleged that the creation of the Public Company Oversight Board (the Board) by the Act violated the Appointments Clause because it deprived the President from exercising adequate control over the Board. However, the Board itself was under the direct supervision of the SEC, all of whose commissioners are appointed by and can be removed by the President.” (Oyez)

The majority thought that the two levels of tenure separating the board officials and an elected official were too attenuated.

HOLDING The limitation on the president’s power to remove was unconstitutional.


Morrison v. Olson (1988)

The Ethics in Government Act of 1978 required the AG to conduct preliminary investigations of possible official violations of federal criminal law. If the AG found reasonable grounds to believe that further investigation was

The for-cause limitation on terminating the special prosecutor was constitutional even though this was a limit on an official performing a core executive function. The judicial appointment of the special prosecutor

HOLDING The limitation on the executive's removal power was constitutionally permissive.


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warranted she would report to a Special Division of the U.S. Court of Appeals for DC for the appointment of an independent counsel. The Court would appoint the counsel and define his or her jurisdiction. The counsel was removable for "good cause." The independent counsel Morrison subpoenaed Ted Olson who moved to quash the subpoenas on the grounds the act was unconstitutional.

was also constitutional, because the AG maintained control of the prosecutor.


Misretta v. United States (1989)

“Congress created the United States Sentencing Commission under the Sentencing Reform Act of 1984. This Commission was to attack the wide discrepancies in sentencing by federal court judges by creating sentencing guidelines for all federal offenses. It was to be part of the judicial branch, with members appointed by the President and approved by the Senate. John Mistretta (convicted of three counts of selling cocaine) claimed that the Act violated the delegation-of-powers principle by giving the Commission "excessive legislative powers."” (Oyez)

The majority rejected the antidelegation claim because it said that Congress had to delegate in order to function. The majority also said there was not separation of powers issue because the constitution is flexible in the interweaving of powers at the borders.

HOLDING The composition of the commission was constitutional.


NLRB v. Noel Canning (2014)

Noel Canning appealed against a NLRB order to execute a collective-bargaining agreement on the grounds that three of

There are different methodologies for interpreting novel constitutional issues.

• Breyer uses HOLDING


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Affirmed. The President did not have the authority to make the appointments at issue.

the five Board members had been invalidly appointed so the NLRB did not have quorum. The three members had been appointed by the President under the Recess Appointments Clause.

historical practice to interpret the Constitution: living constitutionalism.

• Scalia uses history to illuminate the practices at the time of the Framers and thus to adhere to the original meaning of the Constitution.


Dot v. Ass’n Am. R.R. (2014)

Amtrak is a corporation established and authorized by a Congressional statute. Under the Passenger Rail Investment and Improvement Act (PRIIA) of 2008, Congress tasked Amtrak with setting the various metrics and standards for use in a variety of purposes. The respondent alleged that these metrics and standards would force them to modify their rail operations and was unconstitutional under the Due Process Clause and separation of powers doctrine. The District Court granted summary judgment to petitioners on both claims. The Court of Appeals found that Amtrak is a private corporation and thus couldn't have delegated power from Congress.

There is a consensus that Congress cannot delegate legislative power to private entities. What is or is not a private entities is a judicial determination and cannot rely on congressional labeling.

HOLDING Amtrak is a government entity. The case was remanded back to the Court of Appeals for DC for a separation of powers analysis.

D. CONGRESSIONAL WAR AND TREATY POWERS, AND THE IMPLIED POWER OVER FOREIGN AFFAIRS


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see above Woods v. Cloyd W. Miller Co. Missouri v. Holland Bond v. US E. EXECUTIVE PRIVILEGES, IMMUNITIES AND CONGRESS’S POWER OF IMPEACHMENT


United States v. Nixon (1974)

The Special Prosecutor investigating Watergate issued a subpoena to the President requiring him to produce certain tape recordings and documents. Nixon refused to hand them over and move to quash the subpoena based on presidential privilege. The District Court denied the motion.

The president has a privilege in general. In criminal cases, unless the president can assert a national security concern, this privilege is not absolute and is instead managed by the judge.

HOLDING Affirmed. The subpoena is upheld.


Nixon v. Fitzgerald (1982)

“In 1968, Fitzgerald, then a civilian analyst with the United States Air Force, testified before a congressional committee about inefficiencies and cost overruns in the production of the C-5A transport plane. Roughly one year later he was fired, an action for which President Nixon took responsibility. Fitzgerald then sued Nixon for damages after the Civil Service Commission concluded that his dismissal was unjust.” (Oyez)

The president, like judges and prosecutors, has absolute civil immunity for his official actions. HOLDING

The president has absolute immunity in suits for his official actions.


Clinton v. Jones (1997)

Jones brought a sexual harassment suit against Clinton from his time as governor when he was a

The president does not have immunity from civil damages liability for unofficial actions, even HOLDING


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Affirmed. The president does not have immunity from civil damages liability for unofficial actions, even temporarily.

sitting president. Clinton filed a motion to dismiss on the grounds of presidential immunity. The District Court denied the motion and ruled that discovery could go forward, but any trial would be stayed until the end of Clinton's presidency. Both parties appealed. The Court of appeals affirmed the denial of the motion to dismiss, but reversed the order to postpone the trial because it said it served as the functional equivalent of a grant of temporary immunity.

temporarily.

VII. Incorporation

A. INDIVIDUAL RIGHTS BEFORE THE CIVIL WAR

TOPIC AREA CASE NAME KEY FACTS TAKE HOME Incorporation Barron v. Mayor

and City Council of Baltimore (1833)

Barron sued after the City deposited soil in his wharf and made it too shallow for vessels. He claimed that this was a violation of the Fifth Amendment's Takings Clause.

The Court said that the Fifth Amendment did not apply to the states (pre Civil War).

HOLDING Dismissed. There is no issue here involving the US Constitution and therefore the USSC had no jurisdiction.

Incorporation Dred Scott v. Sanford (1857)

Dred Scott and his wife were owned by Dr. Emerson, a US army surgeon. He brought them on his postings to Illinois,

Scott was not a citizen and therefore had no standing to sue in federal court under diversity jurisdiction. HOLDING


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Scott is not a citizen and therefore has no right to sue in federal court.

a free state, and Wisconsin, a free territory. Scott and his wife returned to Missouri and, after Emerson's death, asked his widow to let them purchase their freedom. The widow, Eliza Sanford, refused and so Sue sued for a declaratory judgment arguing that his two year residence in Wisconsin, where Congress had prohibited slavery by law, had rendered him free. The Circuit Court granted a directed verdict for Sanford and Scott appealed.

In dicta, the majority said that the Missouri Compromise would be an impermissible takings under the Fifth Amendment.

B. THE POST-CIVIL WAR AMENDMENTS

• 13th Amendment: abolishes slavery everywhere • 14th Amendment: provides constitutional basis for statutes protecting civil rights

o second PI clause o talks about national citizenship rather than state citizenship

• 15th Amendment: voting rights

TOPIC AREA CASE NAME KEY FACTS TAKE HOME Incorporation Slaughter-House

Cases (1873)

"Louisiana had created a partial monopoly of the slaughtering business and gave it to one company. Competitors argued that this created "involuntary servitude," abridged "privileges and immunities," denied "equal protection of the laws," and deprived them of "liberty and property without due process of law." (Oyez)

The Privileges and Immunities Clause in the 14th Amendment applies only to rights gained by national citizenship does not work against state governments taking away rights implicit in state citizenship.

HOLDING The Privileges and Immunities Clause in the 14th Amendment applies only to rights gained by national citizenship does not work against state governments taking away rights implicit in state citizenship.


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Incorporation Saenz v. Roe (1999)

CA passed a statute limiting the maximum welfare benefits available to newly arrived residents. Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act expressly authorizing such state limitations. Roe moved to CA and was denied full welfare benefits under this law. She challenged the provisions under the Privileges and Immunities Clause.

The Privileges and Immunities Clause in the 14th Amendment recognizes the right to travel as a national citizenship right. Congress can’t authorize states to violate this right because it can’t authorize the violation of the Constitution.

HOLDING Affirmed. These statutes violate the Privileges and Immunities Clause.

C. THE INCORPORATION OF THE BILL OF RIGHTS THROUGH THE DUE PROCESS CLAUSE

TOPIC AREA CASE NAME KEY FACTS TAKE HOME Incorporation Duncan v.

Louisiana (1968)

Duncan was convicted of battery, a misdemeanor punishable by a maximum of two years in prison and a $300 fine. He sought a jury trial, but the LA Constitution granted jury trials only in which capital punishment or imprisonment at hard labor might be imposed. He was sentenced to 60 days in jail and a fine of $150. On appeal, he argued that the Fourteenth Amendment's Due Process Clause incorporates the right to a jury trial in this kind of case.

The right to a jury trial for non-petty crimes is fundamental and so the Sixth Amendment is incorporated by the Fourteenth Amendment. This also means the expression of this right in the rule of the Sixth Amendment is applied to the states as well.

HOLDING Reversed. The Sixth Amendment is incorporated by the Fourteenth Amendment and thus this provision of the LA Constitution is unconstitutional.

Incorporation McDonald v. City of Chicago (2010)

Faced with some of the highest crime rates in the country, Chicago effectively banned the

The right to bear arms is a fundamental right that is deeply rooted and therefore the Second


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HOLDING possession of handguns for all private citizens in the city. A group of residents argued that this violated the Second Amendment, incorporated against the state government by the Fourteenth Amendment.

Amendment is incorporated.

The Second Amendment is incorporated into the Fourteenth Amendment and thus applies to the states.

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