LAW CONSTITUTIONAL I
Prof. Coenen Fall 2000 I. General Principles cn1-2 A. Focus of the course structure of government 1. Federalism (vertical division of power) 2. Separation of powers (horizontal division of power) B. Purposes for division of power 1. Fear of tyranny 2. Fear of factions 3. Fear of oppression of minority by majority C. Federal v. state powers 1. Federal powers enumerated by const; state powers reserved by 10th amendment 2. Most significant limit to states is that const supercedes all state laws D. System of checks and balances II. Nature and Sources of Supreme Court Authority A. Judicial Review cb3-16, 18-22, 24-26; cn2-11; sn1 1. Marbury v. Madison a. Marbury concerns the executive appointment of Marbury by outgoing Pres Adams/ Jeffersons sec of state refuses to seat him, so Marbury sues in S Ct for Writ of Mandamus b. What is being compared in Marbury 1. Art III of Const grants original juris in cases affecting ministers, consuls or cases where state is a party/ in all other cases the court has appellate juris 2. The Judicial Act of 1789 is interpreted as giving original juris to this mandamus action/ this is deemed unconst 3. The counterargument to this is that Art III states that Congress may make exceptions and regulations to this c. Justifications for Judicial Review 1. Constitution is expression of the peoples will a. it is a formal written document that contains authority in its own right b. it sets limits on Congress and S Ct makes sure they are observed c. counterargument is that document does not explicitly grant the power (there is some evidence framers did intend it) and why is Congress not the overseer of the court? 2. Practical reasons Court is the one who reviews laws in cases a. there is a concern that court will do what it wants to b. counterargument is that const is not just another law c. other countries do not have a judicial review 3. Constitution is the supreme law of land but question is who decides a. but const is quite novel b. not all const questions involve constitutionality problems 4. Parade of horrible
5. Oath argument but Congress takes oath as well 2. Court as ultimate interpreter a. Role of other authorities to interpret const 1. Jefferson, Jackson, Lincoln felt that court had power of JR, but that they were not the ultimate interpreters 2. Court may declare a law const, but cannot affect presidents power to pardon under that law b. Cooper v. Aaron (1958)-- Court unanimously held that AR had to accept the Brown decision and further, that they were the ultimate interpreters of const B. Constitutional and Prudential Limits on Constitutional Adjudication cb45-46, 53-54; sn3 1. Political Question Doctrine a. acknowledged in Marbury and well-accepted, but bases for it are fuzzy b. it may just be a practical and administrative consideration 2. Powell v.McCormack a. limit to this exception b. Court granted review of HR decision not to seat a rep with ethical problems and held this to be const and not a political question c. for future reference held that Congress could not add to const reqments for congressional members C. Supreme Court Authority to Review State Court Decisions cb60-65; cn12; sn1 1. Martin v. Hunters Lessee a. court rejects state sovereignty argument and relies on practical consideration that they are in best position to ensure uniformity b. Uniformity becomes a major const consideration c. also hold that the case and not the court give jurisdiction D. Political Restraints: Congress and Supreme Court cb74-85; cn12-16; sn3-5 1. Ex Parte McCardle a. background: McCardle brings HC suit under specific law passed during Reconstruction/ after oral argument but before court issues decision, Congress passes law that says Court may not hear HC appeals under this law b. Court acknowledges their loss of juris and holds that Congress may negate some of juris, and the scope of Congress act is limited to this act c. Yonger case was on docket with same sort of complaint, only used const HC as basis Court implies that Congress could not take away a broad power as that 2. US v. Klein (1872) within Reconstruction context, Congress passes law trying to take away Courts ability to hear a taking case court held that such an action violated Separation of Powers clause tension with McCardle holding 3. Const. Limits on Congressional power
a. Internal v. External constraints 1. Internal constraints are those found within Art III -eg: Congress cannot take away juris explicitly granted within const 2. External constraints are those found outside Art III -eg: if Congress said Court could not hear cases regarding Freedom of Speech, it could be argued that wording of 1st amendment (Congress shall pass no law) would prohibit this b. Commentators analysis 1. Gunther: Congress cannot exclude a specific group from access to the Court -eg: cannot make law that says Native Americans cannot have recourse -prob is distinguishing between type of case and type of person 2. Hart: Congress cannot interfere with core functions of court a. this may be a type of internal constraint though this is not stated in Art III b. Free speech hypothetical law may violate this notion 3. Seger: consideration is whether there is a judicial form to hear these cases 4. Amar: emphasizes word all in Art III such that all cases involving const questions can be heard by court 5. Wechsler: does not believe a hostile motivation behind such an action should invalidate it such conflict is healthy 4. Helms Amendment a. 1979 Senator Helms introd amendment to strip Court of juris to hear cases involving school prayer b. Considerations: 1. Is it a violation of separation of powers? But no case is yet before the court 2. Is establishment clause a core function? 3. Does it eliminate a class of people? But losing party, no matter side, have access to federal courts 4. Kennedy: it violates Hunters Lessee in that it would allow disparate, nonuniform results that occur if there is no Court oversight 5. Practical limits a. It seems like there is not much to this specific check of Congress b. Perhaps it is not used much because Congress is afraid it is unconst c. But, potential power for backlash overhangs work of court III. Federalism Themes: National Powers and Local Activities A. McCulloch v. MD setting boundaries on vertical division of power cb88-98, 107110; cn17-20 1. Necessary and Proper clause court is interpretting the meaning of the elastic clause of what necessary and proper things can Congress do a. rejects idea that clause means that Congress can only use powers if it is indispensible or absolutely necessary
b. accepts idea that necessary means what is appropriate and helpful 2. Types of arguments made a. Textual arguments: looks at text of the clause what does necessary really mean/ also look at text of 10th amendment took word expressly out of it b. Const as a whole 1. Necessary and proper is a grant of power 2. Const is broad outline of power cant enumerate everything, so we can fill in some of the blanks (prolixity problem) 3. One way to do that is by looking at the ends vs the means if the end is a power of Congress, it can use the means necessary to accomplish the end c. Historical argument look at Articles of Confederation and writings of Madison evident that power to make bank is OK d. Structure and relationship 1. Congress must be allowed to exercise power in a practical way 2. Const should be flexible to govern a large nation 3. Also, needs to change for the ages 3. Limit if Congress does something out of bounds under pretext of power, court will strike it down 4. Representative reinforcement theory why state cannot tax the bank a. Fear of one state being able to have an influence that affects everyone else b. Tax on bank has power to destroy it and this could have a nationwide effect c. There is also an Equal Protection argument in that US bank is the only non-MD bank B. U.S. Term Limits v. Thornton what is the meaning of the 10th amendment? cb113140; cn20-24 1. Vertical power issue can state impose extra qualifications on who can serve in Congress a. Different than McCormack in that this is the state, not another branch of government imposing limits b. Theoretical differences: 1) majority says people give power to Feds; 2)dissent says that people in states gave power 2. Types of arguments made a. Text argument what is the meaning of the reserve power of the 10th amendment 1. Majority powers reserved are those that existed at time of ratification 2. Dissent powers reserved simply means that these powers need not be implicated by Const b. Structures and relations argument Representatives represent everyone, not just people of state (dissent says the opposit afterall, I cannot vote in
Massachusetts (but then again, neither can I vote in Athens)) 1. Democracy people should be able to vote for who they want 2. Representative reinforcement problem special advantage or disadvantage to AR? 3. Issue of role of state sovereignty in federal system 3. Implications of Justice Thomas view a. Some fear a return to Articles of Confederation setup b. Does this mean states have the right to succeed? (See discussio cn21-22) c. Thomas agrees with McCulloch, but feels states also have a means/ends dimension to their power as well 4. Ballot access issue not work b/c court says this was just a pretext for what state was trying to do which is add to the Congressional qualifications 5. Application to information on ballot issue a. Use the same violates the spirit idea what this would do b. Violate free speech? c. Unconst b/c state is trying in roundabout way to amend Constitution in a role that was not envisioned for them their role is to ratify amendments or hold conventions C. Structure of Federal System cn24-25 1. Purpose of states a. Efficiency some things are easier to manage on state level b. Flexibility and diversity to counter national need for uniformity c. Enhances vertical division of power check on national power d. Encourages participatory democracy e. Optimize happiness many different ways to accomplish things f. States are testing ground for new ideas 2. Drawbacks lead to Commerce Clause a. Inefficiency duplication of bureaucracies b. Lack of uniformity and equality Civil Rights v. state autonomy c. Leads to use of Commerce Clause to reign in the power of the states IV. The Commerce Power A. Development of Commerce Power 1824-1936 cb159-162,164-185; cn25-29; sn6-11 1. Gibbons v. Ogden definition a. Marshall gives rather expansive definition includes any formof commerce including (in this case) navigation b. The limit is that whatever is being regulated is among the several states> cant touch intrastate commerce 2. US v. EC Knight production exclusion a. This case looks at antitrust regulation b. Imposes limit that it must be commerce that is being regulated, not something like production
3. Shreveport Rate case and substantial economic effect a. Proposed doctrine of affecting commerce as a rationale to regulate what is otherwise an intrastate activity b. Held that Congress could regulate intrastate activity if it had an effect interstate commerce c. In this case, intrastate RR rate prices affected interstate commerce d. Stream of Commerce theory Congress is allowed to regulate intrastate activities if it is at some point in the stream of commerce e. Example: cows from KS being slaughtered in Chicago for sale in IN can regulate Chicago slaughterhouse 4. Champion v. Ames articles crossing state lines (lottery ticket case) a. Upheld Congress power to prohibit commerce in this case the transportation of lottery tickets across state lines b. The transportation is essence of interstate commerce c. The item itself is inherently bad and thus can be regulated d. This theory also upheld in bad food cases e. These cases represent the use of the Commerce Clause as a police power 5. Hammer v. Degenhart limit on police power a. This case involves child labor laws Congress prohibited interstate commerce of anything made with child labor b. Court held that this was not legitimate b/c it was a pretext for social regulation (see Marshalls limit) c. Distinguished Champion in that the articles prohibited here are not inherently bad like bad eggs or lottery tickets d. However, policy is similar> both seek to regulate evils and this is a much more national problem, and an economic problem e. Race to the bottom argument if leave this to states, this gives states that allow child labor an advantage (cheaper labor) over those states that do not 6. Early New Deal cases a. Alton RR Co struck down mandatory RR pension laws as a pretext of police power b. Schechter case limit to affecting commerce theory 1. Distinguish between direct/indirect effect on commerce 2. Need to show a direct relation to interstate commerce c. Carter Coal case Act imposed wage and hour restrictions, and price controls 1. Went back to holding of EC Knight production is not commerce 2. Court is attempting to cordon off an area of commerce as a local activity that cannot be regulated 7. FDRs Court Packing Plan a. Illustrates democratic influences that can be brought to bear on court they changed their tune soon after this (and some justices retired) b. Illustrates high esteem of court popular president could not get this
past a friendly Congress c. Separation of Powers example of one branch trying to mess with another 8. In sum there are three theories of power developed here a. Affecting commerce b. Stream of commerce c. Commerce prohibiting technique B. Rise of Commerce Power 1936-1995 cb185-206; cn29-32 1. Jones and Laughlin Steel a. This was a case concerning the firing of union organizers b. Court does away with division of production and commerce and focuses on the stream of commerce theory c. Court reasons with the integration of industry idea production is not an isolated local activity, but part of the stream of commerce 2. Wickard v. Filburn a. Case involved regulations on farmer who produced more than his quota of wheat for home use b. Court does away with nomenclature of direct and indirect effect on commerce and replaces with substantial effect on commerce-- home use has this because it means the farmer does not buy wheat from the market c. This old phrase is given new meaning through aggregation principle> if this farmer is allowed to do this, aggregation of all farmers who do this has a big effect (Perez: member of class meant to be regulated) 3. US v. Darby and the super bootstrap a. Court overruled Hammer and held that goods produced in violation of Labor Act could be prohibited from interstate commerce b. Further, Court also allowed Congress the right to prohibit the manufacture the goods in general 1. Has substantial effect on commerce means of prohibition in general to prohibit interstate commerce (end) is OK per McCulloch 2. Race to bottom argument violates Clayton Act b/c such production gives huge advantage to those who do not have to abide by such dictates c. The super bootstrap > has to do with the first argument if regulation is to accomplish end of prohibiting interstate commerce, then there is no need to show an effect on interstate commerce -this gives Congress a tremendous power that did not see a defeat for six decades 4. Perez v. United States a. This case extended the CC expansion into police power activities b. This case upheld law outlawing loanshark activities c. Aggregates loanshark activities as part of interstate activities because it bankrolls organized crime
5. The Civil Rights Act a. Politicians in 60's wanted to pass this and were unsure how to validate it -chose between commerce clause and 14th amendment -went with cc attenuated argument that discrimination affects interstate travel, doesnt allow people to work, and the items are a part of interstate commerce so superbootstrap can be used -desire for uniformity and response to a national problem b. Courts response 1. Upheld use of commerce clause and stated that Congressional findings that the activities substantially affect interstate commerce are not what is necessary to validate this power 2. Instead, the test is whether there is a rational basis between commerce and what Congress is trying to regulate C. Federalism and Limits on the Commerce Power cb206-225; cn34-44; sn14-16,18-20 1. Stirrings of Federalism (Coyle and Bass) a. Even during pro CC era, there was some evidence of a counter movement b. Coyle: despite aggregation arguments that location of state capital affects interstate commerce (see dialog cn34), Court held that location of state capital is really up to the state and should not be regulated c. US v. Bass: Court was concerned with Congress attempts to regulate areas normally reserved to states (in this case crime felons in possession of firearm) -court overturned conviction because statute was ambiguously worded with too broad of a reach -US v. Scarborough gov just has to show gun traveled through interstate commerce 2. Maryland v. Wirtz upheld application of Fair Labor Standards Act to state schools and hospitals regulating states as employers 3. National League of Cities and Hodel a. overruled MD v. Wirtz b. NLC: Congress could not regulate states as employers if employees perform traditional government functions c. Hodel 3 part test that a challenger of the federal act had to meet 1. Must show the act regulates states as states 2. The act regulates attributes of state sovereignty 3. States compliance with the law interferes with their ability to structure integral operations of in areas of traditional government functionsz d. These cases can be distinguished from Wickard and Darby on the basis that they regulate states instead of private individual and employers 4. Garcia new standard a. overruled NLC and Hodel b. Determined test was unworkable what counts as a traditional government function?
c. Holds that political process itself will protect states from overreach (ie: state would have to show that somehow it was not represented in the political process) 5. New limits: New York v. US and US v. Printz a. NY v. US: Congress tried to get states to legislate fines to supplement federal law regulating radioactive waste/ Court held that Congress could not commandeer state legislatures and tell them what to legislate > What would not be affected: Congress can attach conditions to federal money, or it can regulate individuals directly these methods are both allowed by NY v US b. US v. Printz: Case had to do with Brady bill provision that impressed state employees to research felons background/ Court held that Congress cannot commandeer state officials to administer federal law -had to overcome precedent and history that state courts have been used in past to uphold federal law (but they are not administering it) 6. What is not limited: Reno v. Condon-- held that Congress could forbid SC from selling drivers license info because it is not an intrastate activity, but an item that is in interstate commerce and the law regulates states as owners of databases, not as states -distinguish from NY and Printz in that the law does not require states to do anything 7. The Commerce Clause and the 11th Amendment a. Background ways Congress can abrogate 11th amendment (ie: when Congress can give authority to a cause of action to sue a state) 1. ex Parte Young can get an injunction against a state official 2. Fitzpatrick v. Bitzer: can allow people to sue pursuant to enforcement power of 14th amendment b. Use of Commerce Clause 1. PA v. Union Gas Co held that federal environmental law allowed people to sue states for monetary damages 2. Seminole Tribe v. Florida a. overruled PA v. Union Gas b. held that law that required states to negotiate in good faith with tribes for gambling facilities was unconstitutional c. held that Congress could not use Commerce Clause to abrogate the 11th amendment, even if they said that was their intent in the statute (plain language) 3. ME v. Alden furthered Seminole Tribe ruling and said that states could not be sued in state court using a federal law 4. Limit: The 11th amendment does not apply to the United States who may sue the state -qui tam actions: court has yet to rule on whether these suits fall in this limit 8. Noneconomic activities: Lopez and Morrison
a. Lopez concerns federal law using CC to criminalize possession of a gun in a school zone 1. IDs three prongs of CC: 1)channels of interstate commerce; 2) instrumentalities of interstate commerce, or persons or things in interstate commerce even if intrastate activity (Shreveport rate); and 3) activities having a substantial effect on commerce 2. This case only concerns #3 3. Holds that in order to regulate, there has to be a sufficient nexus with commerce a jurisdictional hook 4. This involves a noneconomic activity, and the connection to interstate commerce is too attenuated 5. Majority still embraces aggregation principle, but not for noneconomic activities (but see Morrison: no perse ban on regulation of noneconomic activities) b. Morrison involves federal law that allows victims of gender violence to sue their attackers 1. Ps in this case tried to distinguish Lopez by showing the bulk of Congressional findings regarding the connection between this crime and commerce 2. Court held that that was not important the substance of what is being regulated and whether there is a jurisdictional hook is important 3. OConnors view: another factor is whether the law involves something that fed government has traditionally regulated (eg: Fed gov has regulated possession of heroin for a long time)-- not laying hands on something states have traditionally done 4. Need an economic activity to regulate 9. What is outside of Lopez limits a. Robertson v. US: RICO applied to drug profits invested in AK goldmine -court held that Lopez not apply because this case involves things already in interstate commerce b. Jones v. US: Federal Arson Statute not apply to private homes V. Other Powers in Constitution A. Tax Power cb228-234; cn44-45; sn17 1. Range of power a. Tax power is a separate power from CC b. Broad power Court it will not look at the motive of the statute only judge Cality from face of law (Child Labor tax case) c. Congress can regulate with taxing power not just to raise revenue d. No intrastate limit like with commerce clause 2. Limits a. Must be a tax and not a fine, as judged from face of law b. How to determine 1. Is it an activity that is usually taxed anyway 2. Element of scienter is tax imposed only if a bad state of mind is
shown c. Examples 1. Child Labor tax case tax on employers who use child labor was held invalid because it was clear on the face of the law that it was a pretext for a fine and is imposed only if this factor is present 2. Kahriger (allowed registration and taxation of bookies)-- is OK even if the motive was punitive because registration and licensing of certain occupations is common and it does not impose the tax for certain actions (scienter element) 3. What about taxing those who have a gun within a school zone?-- likely fail because it is closer to Child Labor case than Kahriger on both factors B. Spending Power cb235-249; cn46-48; sn21 1. Mechanics a. Another power independent of other two b. Congress granted power to spend in the Const, and they are therefore given a broad power to impose conditions on the money 2. Limits on power a. General welfare 1. The problem Congress is trying to solve must be national in nature 2. Fear of a race to the bottom by states states will be reluctant to impose regulation because it may put them at a disadvantage if other states do not 3. Example: Charles Steward Machine upheld SSA unemployment spending program (unsure of mechanics of law) that required businesses to pay taxes for unemployment program/ unemployment is a national problem, but states would be reluctant to impose such a program because it would attract the unemployed and repel businesses b. Unambiguous 1. Protect states with a rule of statutory interpretation 2. Require that Congress focus on what it is to regulate c. Germaneness 1. The condition imposed must be related to the purpose of the spending program 2. It is important to analyze here what is related to what 3. The test is the old CC rational relation test can a rational relationship be shown also has the same limit problems (Can you make states have a dogcatcher in every county because dogs can run out in the road and cause accidents?) 4. The definition of the purpose is important 5. Example Kassell: Congress threatened to withold 5% of highway money to states whose drinking age was under 21/ Court held that drinking age was rationally related to highway safety but what if the purpose was defined as building roads? 6. Note: the condition does not need to be a condition on how the money is spent
d. No independent bar 1. The condition must not require something that is otherwise unconst 2. Example: cant make states hire only female highway patrol officers 3. Limit on the limit: must be significant some things in Const are not significant enough a. In SD v. Dole: the 21st amendment which designated alcohol policy decisions to the state is deemed not siginificant enough b. A law requiring states to waive immunity for spending program likely would be OK 11th amendment probably not enough of a bar c. Court has already said that 10th amendment is not e. Cant be too coercive 1. This limit is not specifically delineated in SD v. Dole, but is found in text of opinion 2. Basically, the consequence cannot be too onerous or it may be deemed too coercive 3. Example: if Congress would threaten to take away all funds unless 21 drinking age adopted, this may be too coercive C. War and Foreign Affairs cb249-254; cn48 1. Rationale a. In enforcing any other federal power (including an executive one like making treaties), Congress may use its power to enforce it b. Like Necessary and Proper clause ends justify means to get there 2. Not much litigation a. Woods case War Power deemed sufficient to allow Congress to impose rent controls after WW2 ended b. MO v. Holland: Congress can transgress on state rights to enforce Migratory Bird Treaty Act VI. Federal Limits on State Power to Regulate the Economy A. Dormant Commerce Clause 1. General principles cb259-261; cn49; sn22 a. Dormant CC is a limit on state power to affect interstate commerce even if Congress has not acted on that affair b. The purpose is to disallow interstate trade barriers and ensure a common market c. The origin is the major difficulty with the Articles of Confederation that led to the calling of the Constitutional Convention in the first place 2. Development cb260-263; cn49-50 a. Gibbons v. Ogden: Marshall says that such a limit on state power probably exists, but this case decided on fact that Congress had made a regulation b. Cooley: held 1) there is a dormant CC; 2) it was not violated by Phil. Law that said a local pilot must navigate the harbor because it was a local subject whose purpose was safety
3. Facially neutral laws for safety purposes cb299-314; cn50-52; sn23 a. Test: balance burden with benefits 1. Must analyze both: what is the burden? Is benefit illusory? 2. So. Pac v. AZ: AZ had law that trains could only be of a certain length/ Court held that burden was substantial and benefit was illusory because shorter trains meant more trains or more miles traveled b. Degree of state control may be a factor -Court upheld law SC banning certain truck weights because state maintains the roads almost exclusively and state traffic is affected as well c. Search for a less restrictive alternative d. Instate surrogate analysis (start filling in here) e. State as factfinder f. This balancing test is very deferential to state interests 4. Facially discriminatory laws cb271-285; cn53-55; sn23-24 a. Rationale for Courts involvement 1. Congress can pass laws to police situations like this should court get involved? 2. Court can also be police officer, and Congress cannot anticipate everything b. Virtual per se rule 1. Rule and mechanics a. Facially discriminatory laws are virtually per se invalid b. Court looks to see if there is any less restrictive reasonable alternative it does not have to be as good as the law c. Purpose of the law is not important d. Court may not give as much weight to the surrogacy argument either e. Example: Madison passes law that milk must be from a nearby plant/ Court says this is facially discriminatory and is invalid because Madison can send their inspectors to other milk plants (though not as good of an alternative)/ Court rejects surrogacy argument that other instate producers can represent the out of state ones or that the state can force the city to change its law f. Ohter case: Philadelphia v. NJ: NJ restricts landfill trash to NJ trash only 2. Exceptions a. ME v. Taylor: Court upheld a law that did not allow importation of non-Maine bait because there was not reasonable alternative/ ME was trying to protect their ecosystems b. Quarantine cases 1. Must show the very mvmt of goods presents a problem and justifies exclusion 2. The item must cause an immediate problem 3. Non large burden on commerce c. Limits on surrogacy arguments 1. Sometimes there may be too many surrogates, such that the harm is
too spread out for any one person to take action -Example: consumers in Dean Milk 2. Political dynamics like strong lobbies can prevent a change in the law 5.Protectionist Laws cb286-298; cn56-60,62; sn25-28 a. General principles 1. The virtual per se test that is used for facially discriminatory laws can also be triggered for laws that are facially neutral but have a protectionist effect 2. As before, you must justify such a law with an overwhelming state interest for which there are no other less restrictive alternatives (note: even though these laws are almost always struck down if there is discrimination, always analyze the states interest and discuss less restrictive alternatives-characterization of state interest is critical) 3. The policy is to keep states from erecting trade barriers 4. The analysis is not clear-cut but very fact specific b. State tax laws 1. In general, a state tax offends DCC if 1) tax lacks reasonable nexus to taxing state; 2) the tax is not fairly apportioned (eg: flat tax on all trucks traveling through GA tax on miles driven is fair); 3) tax bears fair relation to services of taxing state; 4) tax cannot discriminate against interstate commerce taxes of this sort may be an ad hoc tariff 2. States are allowed to subsidize instate businesses, but tax credits or rebates are not allowed a. ME camp case: Ct struck down law giving tax breaks to charities that helped ME residents over those that did not/ no charity exception to this rule b. West Lynn Creamery: MA law that gave $$ to instate dairy producer struck down because it was a tax rebate and not a subsidy 3. States may not use a compensatory tax on out of state goods to replace instate business taxing 4. But, states may use a use tax on the use of an out of state good instate -this more or less extends sales tax to an out of state good and levels playing field c. Taking away an advantage 1. Laws that in effect strip away an advantage from out of state goods may be protectionist 2. Baldwin: NY imposed a milk price floor any milk sold in NY, thereby imposing it on outstate sellers as well/ this in effect took away any pricing advantage VT sellers could have 3. Hunt (apple case): NC did not allow any other rating system on apples other than the USDA/ this took an advantage away from WA apples which have a stricter grading system 4. But compare Eisenberg: opposite of Baldwin imposed floor on all PA milk producers, whether selling to instate or outstate buyers/ PA is making intrastate regulation which is within its power b. Hoarding
1. Another major barrier to interstate commerce is states hoarding their instate resources kinda the opposite of a tariff 2. Hood Case: Ct struck down law that attempted to hoard local milk supply by not allowing an outstate person to build another milk collecting plant 3. State fauna and flora a. Old view Geer v. CT: state had collective property interest in wildlife and so could discriminate against who got these things b. New view Hughes v. OK: seen as hoarding Ct struck down law that did not allow minnows to be shipped out of state 4. But compare Peerless Oil and Gas: Ct OKd law that fixed a minimum price on a well that was used primarily for out of state use b/c it did not keep the gas in the state, and potentially it could affect instate users as well 6. Pike Balancing Test cb297-299,314-321; cn61-62; sn28-31 a. Balancing test gives some deference to states interest and seeks to see if the benefit outweighs the burden b. Often a challenge will include discriminatory, protectionist arguments and also say the law burdens interstate commerce c. Mite Corp: IL antitakeover statute was invalid because it was too burdensome on interstate commerce with little state benefits applied to all corp that do business in the state d. CTS: OKd IN statute because it only applied to IN corp and state is allowed to regulate instate interests 7. Market Participant Exception Cb322-328; cn62-64 a. Policy 1. When a state is a participant in the market as opposed to a regulator, they have the right, as do private business, to make some choices about who they do business with 2. Often such activities are funded by taxpayers, so they should benefit them 3. Helps to encourage states to experiment with different programs if they can reserve the benefits to their residents b. Reeves: SD allowed to have a cement plant that only sold to state residents c. White: City allowed to have restriction on Kors to hire a % of city workers because workers are viewed as working for the city d. Limits: 1. (SC Timber) states cannot control downstream arrangements like saying timber bought instate must be processed there as well fear of letting state have power to impose too many conditions 2. Not allowed to have an illegal monopoly 3. Not allowed to hoard precious resources e. Summary of exceptions 1. Congressional consent Congress can pass law allowing a state to violate dormant CC 2. ME baitfish case sufficient state interest OKd a facially discriminatory law
3. Use tax case 4. Tax funded subsidies 5. Quarantines B. Privileges and Immunities Clause cb328-337; cn64-67; sn32 1. Text a. Article 4 of Const b. 14th amendment 2. 1st question is there a fundamental interest at stake? like freedom of movement, employment, etc does not apply to all commercial activity 3. If there is, then clause applies at this point there must be an overwhelming state interest at stake a. Close relationship with what it is trying to solve b. Strong justification for the action 4. No exceptions a. No market participant b. Congress cannot grant authority c. Residence reqments 1. Camden case: Ct held that cities could not discriminate and make Kors hire instate residents (same as White case, but different result because brought as P & I case) 2. Rejected surrogacy argument b/c a subset of state residents are still favored over out of staters 3. States/cities can require that public employees live instate or city C. Preemption of State Authority cb337-344; cn67-68; sn33 1. Authority supremacy clause of Const 2. Overarching question is what is the intent of Congress/ highly fact-specific inquiry 3. Explicit preemption a. Congress specifically states that state laws are preempted b. Issue may be how the subject of the Act is characterized 4. Implied preemption Congress has reserved this field for regulation a. Field preemption: Congress scheme is pervasive in this area and there is no room for state laws 1. Example: Fed laws extensively regulate nuclear safety, so state laws cannot regulate this/ however, states may regulate nuclear for other reasons, like economic reasons 2. How the field is characterized is very important b. Federal law dominates because the of the importance of the purpose 5. Conflict preemption state law frustrates objective of federal law D. Miscellaneous cb344-349; 1. Congress can consent to a state law, but not to one that is otherwise unconstitutional
2. Equal protection clause: states cannot favor local businesses over out of state in taxation -Example: Met life v. Ward: AL could not favor local insurance companies through taxation VII. Separation of Powers A. Limits on Presidential Power 1. Steel Seizure Case (Court upholds lower courts injunction of Trumans order to keep Steel factories going) cb354-364; cn69-72 a. Blacks view 1. Sees it strictly as an exercise of legislative power which is not in purview of Constitution refuses to see as exercise of executive power 2. Strict Constitutionalist disregards other past examples of similar exercise of power 3. Hypo: what if our troops were pinned behind enemy lines and would likely perish if we did not get bombs to them immediately -Black would likely still not allow because the C does not give president the power to legislate b. Frankfurters view 1. Places more importance on historical actions in construing the Constitution not so text specific 2. Nonetheless, he distinguishes past historic actions\ 3. Hypo: may be more likely to allow because then be more like past actions which were more foreign affairs related c. Jacksonian analysis 1. Tripartite analysis of presidential actions a. Pres acts with express authority of Congress given highest presumption of validity b. President acts when Congress is silent, which is presumed acquiescence c. President acts against Congress in which case she better have some good Cal backing 2. Here, this action falls into category #3 b/c Congress refused to make such a provision part of the Taft-Hartley Act 3. Hypo: may fall into category 2 b/c Congress did not speak to that particular situation 4. This method of analysis, though simplified, has become dominant for this sort of question d. Vinson only dissent said Congress had already OKd because they had authorized money to be spent on Korean War e. Douglas 1. Characterize as a taking, and says that since Congress spends money, they are the only ones who can decide a taking 2. Hypo: probably not make a difference f. Note on importance of characterization: professor has made a big deal that how the action is characterized is important to how it is then analyzed
2. Clinton v. NY (line item veto) Cb42-49; cn69,72 a. Held unconstitutional because it gives the president the power to amend legislation b. Dissent characterizes as giving the President discretion, which has been allowed (if individual bills, President could veto) B. Limits on Congress 1. Congressional vetoes cb375-389; cn72-73 a. Presentment clause legis must be presented to the President to veto b. Chadha: Congress gave AG the power to suspend deportation of an illegal alien/ Congress could give a 1 house veto of this suspension c. Court held that the one house veto was unconst as violation of presentation clause, even though Congress could delegate power to AG to suspend the deportaiton (Congress can delegate legis power) d. Court later disallows 2 house veto e. Concern is that Congress has power to create all these agencies, but then has no way to keep them in check because of Courts broad holding concerning the 1 house veto 2. Impoundment controversy cb383-389; cn73-74; sn35 a. General idea There is usually an implicit grant of discretion for a president not to spend funds for a particular provision b. Nixon asserted that there was an inherent Cal power for a president to do so c. Congress then passed this act and required any deferral or termination to be approved by Congress in 45 days (no cases on this listed) d. Bowsher v. Synar (Balanced budget)-- see below> problem is that Congress cannot give an officer executive powers nor reserve removal powers for itself 3. Appointments Clause cb389-399; cn75-76; sn36-37 a. Art II 2: President appoints officers and gets it approved by the Senate; Congress can vest power to appoint inferior officers in President alone, to Judicial branch, and to Heads of Departments a. Buckley: held that Congress could not give itself the power to appoint officers who have executive powers b. Morrison 1.Got to issue of what an inferior officer was 2. Factors to consider a. Independent counsel can be removed by a higher executive branch official despite having independent powers b. Limited to specific duties and has no policymaking abilities c. Limits to jurisdiction and tenure of the office 3. This decision, along with Mistretta, demonstrated a more flexible, functional approach to separation of powers c. Metropolitan Wash. Airports 1. This decision was a return to rigid approach of Chadha and Bowsher 2. Had to do with Congress appointment of a Board of review to
supervise transfer of DC airports from federal government to a DC authority 3. (Bowsher) Congress cannot appoint someone to exercise executive authority 4. (Chadha) Congress must exercise legislative power in conformity with bicameral and presentment requirements 5. The board was a violation of both of these principles 4. Removal power cb a. Source: The Constitution does not contain a removal clause, but court infers that since President can appoint officers, he can remove them as well b. Development: Presidents power to remove 1. Myers: Congress could not pass a law that does not allow the president the power to remove an appointed officer without consent from Congress/Court held that President could remove any officer at will 2. Humphreys Executor: Limit on Myers held that Congress could require that the president remove an office only for causes specified in the legislation/ thus Congress cannot take the power away, it can limit it 3. Weiner: Court held that President did not have absolute power to remove officials who were not part of the executive establishment/ Court held that President could only remove an officer who performed a judicial function with cause 4. Compare with Morrison: Perhaps president has no absolute powers over those not appointed by him 5. Another distinction is that Congress may have ability to restrict removal of inferior officers, but not superior ones because Congress has no role in vesting that power in the president c. Congresss removal power 1. Bowsher v. Synar a. Had to do with the delegation of the Comptroller General the power to make conclusions about spending reductions b. Court held that Congress could not assign executive powers to officers under its control/ this office is under Congress control because they have the sole removal power of Comptroller 2. Thus, Congress may not reserve a removal power to itself of executive or judicial officers, except by impeachment 5. Delegation Principles cb399-404 a. In general 1. Congress cannot delegate non-legislative power 2. This issue has been floating around these other areas like appointment and removal issues b. Bowsher: Congress can delegate legislative power, but can then control it through making more legislation (couldnt reserve a power to remove a budget comptroller would have to impeach) C. The Authority to Make National Policy 1. Nondelegation principle in foreign affairs cb403-404; cn81; sn38
a. Curtis-Wright case: Court upheld joint resolution that allowed presidnet to ban sales of arms 1. Nondelegation principle has few teeth, and fewer in foreign affairs 2. Here, president has this authority anyway a. President as sole organ of the nation 1. Dicta in case gives president broad discretion to act in foreign affairs as countrys sole representative 2. Issue is whether this power would trump a Congressional resolution contrary to Presidents action 3. Question of specifically what president is doing president has power to make treaties with Senate, Commander in Chief, appoint and receive ambassadors b. Role of Congress 1. Statement regarding the president a...