Law Constitutional I - Coenan
Fall, 2004, Outline
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Constitutional Law I - Coenan
1) JUDICIAL REVIEW
a) Checks and balances
Fall, 2004, Outline
i)
ii)
One of the principal concerns of the Framers (see Madison in Federalist no. 10) was that of factions and a great amount of concern about oppression by majority factions. Checks (1) The Veto Power (2) Judicial Review (3) Fed-state federalism (a) Rests upon the concept of enumerated powers The 10th Amendment states explicitly that the powers not granted to the federal government are reserved for the states Separation of powers (1) The judicial power
(b)
iii)
(2)
is specifically limited by Art III 2. To wit: Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under (a) this Constitution, (b) the Laws of the United States,
b)
and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. (3) One argument against judicial review is that nobody can then stop the Court. But there are checks on judicial review. (a) Constitutional amendment. (b) Impeachment of judges Marbury v. Madison i) Generally (1) Marbury and others were appointed judicial positions and the appointments were not delivered by the Sec of State (John Marshall, interestingly). Jefferson later ordered Madison, his Sec., not to deliver the commissions. (2) Cause of action here was the ever-familiar failure to deliver commission; remedy sought was a writ of mandamus
(c)
ii) iii)
Issue Is the Supreme Court empowered to review acts of Congress and to purge them of language that it finds repugnant to the Constitution? Holding: Yes
(1) (2)
The action of the plaintiff is discharged because the Court doesnt have original jurisdiction. The Judiciary Act is unconstitutional to the extent that it provides for Supreme Court jurisdiction over this claim. The Judiciary Act of 1789 granting the Court the power to issue writs exceeded the grant of power under the Constitution, under which the Court had no original jurisdiction to hear this kind of a case.
The Constitution and those acts that the Congress may make in pursuance thereof are the supreme law of the land. Therefore, the Court must determine which acts were actually made in pursuance of the Constitution. (3) As to the writ of mandamus (a) Issue one: Can somebody get a writ of mandamus against the Sec. of State? Marshall says sure they can. Except in instances involving executive discretion. Issue two: Does the Supreme Court have the power to issue the writ, which they do as a matter of the Judiciary Act of 1789? Yes, but not under the Constitution, so Marshall tells us. (4) Note that Marshall had determined in dicta that Marbury was entitled to relief in this case; the Supreme Court just couldnt be the body that grants it. (5) The Supremacy Clause lends a lot of weight to the notion that a body whose job it (emphatically) is to say what the law is may interpret the Constitution. The Constitution itself says that it is a law.
(b)
iv)
c)
Overriding principle: The Supreme Court may hear cases interpreting acts of Congress that involve questions of the Constitution or federal laws, statutes, and treaties. Martin v. Hunters Lessee i) Generally (1) Martin was heir to estates of Lord Fairfax, which were confiscated by the State of VA, an action that was later overruled by a US treaty with England that protected such property (2) The VA Supreme Court decides that, yes, the State of VA was actually justified in taking the property and selling it to Hunter, whose lessee brought an action in ejectment against Martin.
ii) iii)
Issue: Does the Supreme Court have appellate jurisdiction over the highest state courts on issues involving the federal Constitution, laws, and treaties? Holding: yes. (1) The 1789 Judiciary Act granted this power (2) The Supreme Court has appellate jurisdiction in all cases in which it also has original jurisdiction, and it certainly has this in cases involving the Constitution, laws, and treaties of the federal government
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Constitutional Law I - Coenan
Fall, 2004, Outline
(3) In effect, what the VA Supreme Court was saying is that Supreme Court review of VAs highest court would be like a person from France appealing to the English House of Lords.
iv)
d)
e)
Overriding principle: The Supreme Court may hear cases on appeal from State Supreme Courts that involve questions of the Constitution or federal laws, statutes, and treaties. Cohens v. Virginia (1821) i) A case involving a criminal conviction for the illegal sale of federal lottery tickets in Virginia ii) The Supreme Court extended its power to hear cases arising from criminal convictions in the states provided they stemmed from the Constitution or a law of the US. Cooper v. Aaron (1958) i) A desegregation case held because of the Governor of Arkansas refusal to comply with the holding in Brown v. Board of Education, even though the holding wasnt directed at him or at future cases explicitly ii) The Court orders compliance, falling back on and affirming the settled doctrine that the Supreme Court is the ultimate arbiter of constitutional issues
iii) a)
2) CONGRESSIONAL POWER
Resoundingly declared that the principle annunciated in Brown v. Board, an interpretation of the 14th Amendment, was the supreme law of the land.
McColloch v. Maryland (1819) i) Generally MD sought to enforce a tax on banks operating within that state but not chartered by the state. Suit brought against the cashier for the National Bank in Baltimore, McCulloch ii) Issues (1) Can the Congress incorporate a bank despite no Constitutional authorization therefore? (2) If such a bank is charterable, can it be taxed by the states? iii) Holding
(1)
(1)
Yes and yes. (a) The case in this regard hinges around the Necessary and Proper Clause (i) In Art I 10, the Framers had used the word absolutely next to necessary, so they clearly knew how to qualify the word necessary (ii) In this case, the Court holds that necessary is that which is convenient, useful, essential, or appropriate
(iii)After all the Framers had used the words and proper, and if you are proceeding from the idea that
necessary means indispensable, then the words and proper have no meaning [I would dispute this analysis] Let the end be legitimate, let it be within the scope of the Constitution, then all means which are appropriate [i.e necessary and proper] which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are Constitutional.[Thus, 30 years after the Constitutions drafting, was its meaning eviscerated,and the federal power grab began.] (c) Also of note: the first national bank bill was passed by the first Congress. The Framers were present in the first Congress. (2) Yes. The Supremacy Clause is cited. The power to tax an organ created by Congress is the power to destroy it. (b) Furthermore, theres that the federal governments banks are intended to tax all the citizens of the Union, not just those living in MD. Therefore, presumably, if MD were to tax say the ground upon which the National Bank branch sits, together with all the rest of the land in MD, then this would be constitutional. (3) Rules (a) The government of the Union, though limited in powers, is supreme within its sphere of action The question of whether a particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, will depend on a fair construction of the entire Constitution. US Term Limits v. Thornton (1995) i) Generally (1) Arkansas adopted a constitutional amendment that prohibits the name of an otherwise eligible candidate for Congress from appearing on the state ballots if he has served more than three terms in Congress
(b)
(a)
(b)
b)
ii) iii)
Issue: Can a state impose qualifications for membership in Congress in addition to those provided for in the federal Constitution? Holding: No. (1) The Court relied on Powell v. McCormack to say that there can be no impositions upon a Representatives qualifications for serving in office other than those laid out by the Constitution
(2) iv)
The states can exercise no powers whatsoever which exclusively spring out of the existence of the national government which the constitution does not delegate them. No state can say that it has reserved what it never possessed. For this reason, no reserved power under the Tenth Amendment can be claimed here.
Dissent (Thomas, OConnor, Scalia, Rehnquist)
(1)
Nothing in the Constitution deprives the people of the power to say the manner in which they will choose those who shall represent them. The 10th Amendment doesnt reserve just the powers that the states had before but all powers not granted to the federal government (2) The notion of popular sovereignty that undergirds the Constitution does not erase state boundaries but rather tracks them.
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(3) In regards to this dissent, the author of the leading treatise on constitutional law in America also commented that it is hard to understate the case of how the Court very nearly came to something radically different from the modern understanding of the Constitution.
c)
Powell v. McCormack (1969) i) Elected Representative to the House, Adam Powell, Jr. was denied a seat by the rest of the House because of a committees finding that he had wrongly diverted funds and made false reports
ii)
3) CONGRESSIONAL POWER
a) Generally
Despite fears of a potentially embarrassing confrontation between the coordinate branches, the Court held that it had the power to judge the Houses power to exclude a member and that this was limited to questions of age, citizenship, residence, as laid out by Art I 2. Powell would have to be impeached to be removed.
AND THE
COMMERCE CLAUSE
i) ii)
Bootstrapping Problem first arose in Hippolite Egg: the concern being that Congress would use its commerce-prohibiting power to justify regulation of intrastate activities (in which case, post-commerce eggs were regulated)
Sooper-bootstrapping Darby v. US gave rise to fears that everything under the sun could be controlled by the Commerce Power (in this case, pre-commerce goods and their production were regulated). Under the super-bootstrap theory, the Congress may regulate a purely local activity if it is reasonably adopted to enforce a direct prohibition of moving a good across state lines. iii) Three prongs of commerce power (1) Channels and instrumentalities Initiated in Gibbons v. Ogden (b) Channels including such things as highways, rails, telephone lines (c) Instrumentalities might include trucks, trains, electrical signals (2) In-commerce theory (a) Congress can regulate even wholly intrastate commerce if it is in the stream of interstate commerce (3) Affecting-commerce theory (a) Congress can regulate local activities if they affect interstate commerce in a substantial way
(a)
b)
PRE-1936 COMMERCE-CLAUSE JURISPRUDENCE i) Commerce prohibiting power
(1)
The Lottery Case (expansive) (a) Facts (i) Champion v. Ames, 1903 (ii) Suit over a federal law which sought to prohibit the carrying of lottery tickets through interstate commerce (b) Holding (i) Solidified prohibitive power of Congress over certain interstate commerce (ii) Prohibition is a form of regulation of commerce
(c)
Dissent Distinguished from previous cases involving the prohibition of diseased animals in that these prohibited a good which itself could harm commerce (d) Followed by (i) Hoke v. United States 1. 1913 suit over the constitutionality of a ban on transporting prostitutes across state lines 2. solidified proposition that Congress could prohibit the interstate transportation of virtually anything that they chose to target (ii) Caminetti v. US 1. 1917 case involving a man bringing a woman into interstate commerce, whom he would make his mistress and his concubine 2. upheld Congressional prohibition even in the absence of any plan of commercialized vice
(2)
Hippolite Egg (1911)(expansive) (a) Facts (i) Eggs unlawfully shipped across state lines because their labels didnt conform to federal standards (ii) Eggs had reached their final destination at time they were confiscated (b) Holding (i) Following McCulloch, Court reasoned that confiscation of eggs was an appropriate means to the end of preventing the trade of them between the states
(ii) Gave rise to bootstrapping fears that Congress could use the Commerce Clause to justify virtually
anything
(3)
Hammer v. Dagenhart (1918)(restrictive)
(a)
Facts Case grew out of the Child Labor Act of 1916, which barred interstate transportation of goods manufactured in shops that employed children under certain conditions (b) Holding (i) Narrow majority struck down the act, holding that it would be too indirect to prohibit the goods themselves, which are harmless (ii) Reasoned that contrary holding would inevitably bring all manufacture under federal control
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Constitutional Law I - Coenan ii)
Channels and Instrumentalities Theory
Fall, 2004, Outline
(1) (2)
Generally As annunciated in The Daniel Ball, Congress has the power to control what amounts to a continued highway of commerce, both with other states and with foreign countries and the instruments of that commerce Gibbons v. Ogden (1824)(expansive) (a) Facts (i) 1824 case involving a costal shipping firm granted a license by US government (ii) Ogden sought to enjoin because of his own monopoly granted by NY state (iii) Presumably, all of this occurred in an intrastate context (b) Held (i) Commerce is intercourse, and regulating commerce entails prescribing rules for carrying on that intercourse (ii) Commerce power, such as it is, is plenary (c) Followed by
(i)
The Daniel Ball (1870) (expansive) 1. 1870 case involving federal licensing and inspecting of steamboats operating entirely within one state 2. statute upheld because the river the boat was on was part of a continued highway of commerce both with other states and with foreign countries 1. Challenge to Congressional act setting freight rates; aimed at leveling interstate rates, but also affected intrastate rates
(ii) Shreveport Rate Case (1914) (expansive)
Court held that Congress power to regulate instrumentalities of interstate commerce extended to intrastate matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the maintenance of conditions under which interstate commerce may be conducted on fair terms iii) In-Commerce Theory
2.
(1)
Swift & Co. v. US (1905) (expansive)
(a) (2) (3)
Involved Sherman antitrust action of US government against several meat-packing firms that were fixing prices (b) Held that Congress could so regulate, even such intrastate price fixing, because such cattle were indubitably in the stream of interstate commerce Stafford v. Wallace (expansive) (a) 1922, also involving stockyards and their alleged unfair trade practices as under the Packers and Stockyards Act (b) Held: stockyards were but the throat through which the current of commerce flows Schechter Poultry v. United States (1935) (restrictive) (a) Facts (i) 1935, involved the prosecution of two small Brooklyn chicken markets for violation of wage and hour rules (ii) 96% of NY poultry purchased for resale in NY had come from out-of-state (b) Holding (i) When merchants made their purchases for local disposition, the stream of commerce ended (ii) Goods were not to go any further into interstate commerce and therefore were outside of the regulatory power of the US Carter Coal v. Carter ((1936) restrictive) (a) Facts (i) 1936, involved the Bituminous Coal Conservation Act of 1935 (ii) Congress sought to regulate the causes of labor discord in the coal industry (iii) Case involved the source of coal into the stream of commerce
(4)
(b) iv) (1)
Held that Congress had no power to regulate here, as goods had not yet entered stream of commerce
Affecting-Commerce Theory US v. E.C. Knight & Co. (1895) (restrictive) (a) Generally (i) Congress began undertaking monopoly-busting under the Sherman Ant-Trust Act of 1890 against E.C. Knight, which controlled 98% of the nations sugar refining business
(ii) E.C. Knight argued that the Congress didnt have power under the Commerce Clause to control or regulate
manufacture merely because of its power to control interstate commerce
(b) (c)
Issue: Does the Commerce Clause grant the Congress the power to trust-bust, to outlaw a monopoly in manufacture?
Holding: No. (i) Commerce succeeds to manufacture and is not a part of it (ii) Manufacture affects commerce only incidentally and indirectly or in a secondary and not a primary sense (iii) To hold otherwise would be to vest Congress with the power to regulate, not only manufacture, but a whole host of other things including every branch of human industry [exactly right] (iv) Justice Harlans lone dissent made reference to McCullochs means-to-an-end rationale (2) Erosion of E.C. Knight doctrine
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Constitutional Law I - Coenan (a)
Fall, 2004, Outline
Addyson Pipe & Steel Co. v. United States (1899) (expansive) (i) Pipe manufacturers prosecuted under Sherman Anti-Trust Act for price fixing (ii) Prosecution upheld: It is enough to establish a direct, immediate, and intended relation to interstate commerce (iii) Pipe manufacturers had conspired to fix prices for the future disposition of the manufactured article Northern Securities Co. v. U.S. (1904) (expansive) (i) Congress can outlaw an acquisition of corporate securities that threatened to decrease competition in interstate train rates (ii) The transaction directly affected interstate commerce
(b) (3)
Alton Railroad (1935)(restrictive) (a) Railroad Retirement Board v. Alton R. Co
Holding: no The connection between government mandated pensions and efficient interstate train service is too tenuous to allow regulation under the Commerce Clause (4) Schechter Poultry & Carter Coal (above) Schechter: Extraordinary conditions do not create or enlarge constitutional power (b) Carter: no justification of wage-and-hour rules to coal mines on an affecting-commerce theory (c) Return again to the language from E.C. Knight of secondary and indirect effects upon commerce POST-1936 COMMERCE-CLAUSE JURISPRUDENCE i) Commerce Prohibiting (1) US v. Darby (1941) (a) Holdings (i) Can Congress bar transportation across state lines of any goods manufactured by workers not compensated in accordance with federal guidelines?
(b) (c) (a)
Issue whether Congress can force Railroads to adopt pension plans for their employees
C)
1. Yes. Though this conflicts with the holding in Hammer, the Court overruled those cases. (ii) Can Congress control wages and hours for all employees involved in making goods for shipment interstate? 1. Yes. The evils of substandard labor conditions affect interstate commerce. 2. Or alternatively, Congress may adopt appropriate aids to prohibiting unwanted interstate commerce (iii)This case parts company with the Lottery case in that, there, Congress had held that the effects of
gambling were harmful to commerce just like the effects of transporting around diseased livestock. Here, however, its hard to hold that lumber is a detriment to commerce. The prohibition power is now a blanket one, regardless of how substantial the effects on commerce.
(iv)Here, the Court also uses the alternative, means-to-an-end theory of McCulloch. Congress can already
prohibit these goods at state borders, so a necessary means to this end is the regulation of these goods at the source. (2) US v. Sullivan (1948) (a) Congress can prohibit the movement of drugs labeled in violation of federal standards and, to effectuate that prohibition, ban the post-shipment labeling even by a pharmacist who had not at all been involved in interstate commerce himself (b) It was sufficient that drugs that had gone through interstate commerce were being held for future sales (3) Limits of commerce prohibition In the Mann case, Congress prohibited the movement of women across state lines for the purposes of immoral sexual activity. The question then arises: can they prohibit the movement of say blacks across state lines? (b) And the answer is no: the commerce prohibition power is limited to the extent that it bumps up against other protections of the Constitution as amended. So, the power substantially ends where it affects individuals rights. In-Commerce Theory (post-36) (1) The Court has appeared willing to endorse congressional power to regulate intrastate activities on the ground that they concerned something that had at some time moved across a state line (2) Currin v. Wallace (1939) (a) Federal statute barred the sale of tobacco at auction houses at which farmers customarily sold product headed for interstate commerce (b) Court upheld the law even if it were true that some of the tobacco was destined for intrastate uses
(a)
ii)
(c) (3) (4) (1)
Principle: That Congress can reach intrastate activities as long as it is controlling things that are in commerce
Mulford v. Smith (1939) Regulation, to be effective, must, and therefore constitutionally may, apply to sales
Goldfarb v. VA State Bar (1975) (supremely expansive) Lawyers conducting residential title searches are acting sufficiently in commerce to come under the purview of the Sherman Act because funds for home purchases frequently come from out-of-state sources iii) Affecting-commerce post 1936 NLRB V. JONES & LAUGHLIN STEEL (1937) (singularly expansive) (a) NLRA attempts to impede the unionizing efforts of a plant operated by one of the nations largest steel companies
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(b) Justice Roberts falls victim to the intimidation of Roosevelts Court-packing scheme and sides with the New Dealers on this one Congress may regulate these activities, which, despite their intrastate character had such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions (2) NLRB v. Friedman-Harry Marks Clothing (1937) (a) Unlike Jones & Laughlin Steel, this clothing manufacturer was a small timer with a miniscule share of the intrastate market (b) Offering no additional reasoning, the Court declared that the NLRB could control this intrastate shop for the reasons set forth in Jones & Laughlin Steel Immediate New Deal era successor to Schechter Poultry, where the activities of a local business were held not to substantially affect interstate commerce. Also substantially departed from E.C. Knight in which it was held that Congress could not regulate intrastate production/manufacture (3) The Aggregation Technique (a) Wickard v. Filburn (1938) (i) Ohio dairy farmer grew a small amount of wheat on his land for his familys own needs in violation of the Agricultural Adjustment Act
(c)
(c)
(ii) Principle: In wielding its commerce power, Congress can regulate each individual member of a group,
even assuming each individuals effect on commerce was de minimis, so long as the activity of that individual taken together with that of many others is far from trivial (b) The aggregation principle has been attacked on the grounds that the more sweeping a federal program, the more likely it is to affect individuals whose aggregated activities fall under the Commerce Clause; hence, the more the government intrudes, the more likely the intrusion is to be deemed constitutional iv) Commerce Power & Civil Rights Cases (1) The Civil Rights Act of 1964 was passed relying largely upon the commerce power
(2)
Heart of Atlanta Motel v. U.S. (1964) (a) The Court upheld the Civil Rights Acts application to a motel in downtown Atlanta (b) Emphasized the extensive evidence that discrimination by hotels and motels impedes interstate travel (c) Despite that this particular hotel could be characterized as purely local, the Court said that if it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze. (3) Ollies Barbecue (1964) (a) Katzenbaugh v. McClung (b) Case involved desegregation of a barbeque restaurant that had obtained 46% of its meat from out-of-state dealers (c) Making no claim that interstate travelers frequented the restaurant, the Court upheld the laws application (d) Aggregation principle applied in light of significant Congressional findings that, yes, restaurants do have effects on people, and, thats right, people do engage in commerce Alternative theory put forth here of the enforcement power of the 14th Amendment wouldnt be quite as acceptable, since the 14th deals with state and not private action. A search for limits
(e)
v)
(1) (2) (3) (4)
US v. Bass (1971) (restrictive?) (a) Federal law challenged which prohibited the receipt of a gun by a felon (b) Court read the law narrowly to apply whenever the government demonstrated that the firearm had at some point passed through interstate commerce Scarborough v. US (1977)(restrictive) (a) Court upheld a federal ban on possession of guns by felons (b) Requirement of the minimal nexus that the firearm have been, at some time, in interstate commerce U.S. v. Yellow Cab Co. (1947)(restrictive) (a) Anomalous case in which the court held that cabs carrying passengers to trains were too unrelated to interstate commerce to constitute a part thereof under the meaning of the Sherman Act (b) Arguably only a case of statutory interpretation Hodel v. VA Surface Mining and Reclamation Assn (1981) (expansive) (a) Challenged Congressional power over a mining operation on the grounds that the Commerce Clause didnt extend to the use of private lands within the borders of states (b) Court rejected this on the flimsiest of associations: that surface mining operations can affect the utility of land, which burdens commerce Perez v. US (1971) (expansive) (a) Challenge to prosecution under a federal statute on the grounds that Congress could not regulate local, intrastate crime (in this case, loan sharking for a $1,000 loan) (b) Justice Stewart was the only one who bit, however, whereas the majority simply lumped this loan shark in with all others under an aggregation theory
(5)
(c) d)
This case also contains the question of whether certain Commerce-Clause legislation might intrude upon the police and other powers of states. Federalism concerns are raised. One might see Lopez as overruling some of the reasoning of this case.
The Post-1986 Commerce Power i) US v. Lopez (1995)
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Constitutional Law I - Coenan (1) (2) (3)
Fall, 2004, Outline
Lopez, a 12th grader, was convicted of carrying a firearm in a school zone under the Gun Free School Zones Act of 1990 that made it a federal crime for an individual to possess a firearm at a place that the individual knows, or has reason to know, is a school zone. Issue: May Congress prohibit activity that is solely criminal in nature and has no economic ties under its commerce power?
Holding: No. (a) Possessing a gun in a school zone doesnt arise out of a commercial transaction that substantially affects interstate commerce (b) The only way to find effects upon interstate commerce would be to pile inference upon inference with a result that grants Congress a general police power. (4) Concurrences (Kennedy, OConnor): Education is an area of traditional state concern. The concurrence goes out of its way to say that these individuals dont wanna mess with the foregoing precedent. (b) (Thomas) Repeal Jones & Laughlin Steel (5) Lingering questions:
(a) (a)
What about a federal law that makes it illegal to possess heroin. One could argue under Lopez that this would be unconstitutional. But change it to a law that makes it illegal to possess heroin with intent to distribute, and there you go. Bobs your uncle.
Apparently, the problems with Lopez can be side-stepped if one attaches a jurisdictional hook to the law. That is, words to the effect that: it will be illegal to possess a firearm in a school zone if that firearm has previously moved through interstate commerce. ii) Migratory bird case (Solid Waste Agency of N. Cook County v. Army Corps of Engineers)(2001). (1) Army Corps of Engineers rule was made in interpreting a statute allowing the ACE control over navigable waters under the Clean Water Act. The rule the ACE promulgated allowed them to prevent filling in of local waste ponds on the grounds that migratory birds might want to land on them. (2) Court read the CWA narrowly not to allow the ACE to so act. Narrow reading so as to avoid running into the constitutional question of whether the ACE could control small, intrastate ponds whose only nexus with commerce was the glancing goose nexus. iii) Eldred v. Ashcroft (2003) (1) A copyright clause case. CTEA had extended copyright to 70 years. (2) Case notable only in that dissenters in Lopez who read the Commerce Clause so broadly would not allow a broad reading of the Copyright Clause. iv) US v. Morrison (2000)
(b)
(1) (2) (3)
Morrison prosecuted for rape under the Violence Against Women Act, which provided a civil damages remedy for gender-related violence. Issue: May Congress provide a civil remedy for a violent crime on the ground that the aggregate effect of such crimes substantially affects interstate commerce?
Holding: No. (a) Court here follows the rationale of Lopez (b) Aggregation rationale would essentially give Congress power over any criminal activity. The police power was clearly left by the Constitution to the states. (4) Dissent (a) One difference here is that, unlike in Lopez, the Congress had assembled substantial amounts of data showing that violence against women will affect commerce. (b) The majoritys approach will lead to complex rules requiring fine distinctions that will yield random results. (5) Notes (a) The federalism concerns are counter-acted in this case by the fact that the State of Virginia and others filed amicus briefs in favor of the law.
(b)
The majority comments that we need not adopt a categorical rule against regulating any non-economic activity. . .. This would seemingly leave room for such things as the regulation of drug possession [as Raich v. Ashcroft will probably show in a few weeks.]
4) EXTERNAL RESTRAINTS ON THE COMMERCE POWER a) State sovereignty & Federalism i) The Coyle limit
(1) Congress cant tell a state where to locate its capitol (2) but this doesnt tell us too very much about the next and the next case
ii)
US v. California (1936)
New Deal Court upheld a penalty imposed upon a state-owned railroad for violation of a federal act, stating, among other things, that the states power is necessarily diminished by constitutional grants of power to the federal government. iii) New York v. U.S. (1946) (1) NY sought to avoid a federal tax on its sale of bottled mineral water from state-owned springs (2) so long as Congress generally taps a source of revenue by whomsoever earned and not uniquely capable of being earned only by a State, the Constitution of the US does not forbid it merely because its incidence falls also on a State.
(1)
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Constitutional Law I - Coenan iv)
Fall, 2004, Outline
National League of Cities v. Usery (1976) (restrictive) (1) The FLSA had extended its minimum wage and hour restrictions to all employees of state governments.
(2) (3)
Issue: Does Congress commerce power extend to allow regulation of activities that traditionally fall under the purview of the state governments? Holding: No. (a) Rehnquists majority opinion held that such restrictions upon state activity would impermissibly interfere with the states sovereign operation
(b) (c) v) (1)
Insofar as the challenged amendments operate to directly displace the States freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by [The Commerce Clause]. Concurrence by Blackmun would call for a balancing test between the interests of the state and the federal government.
Garcia v. San Antonio Metropolitan Transit Authority (1985) (expansionist)
National League of Cities had held that Congress could not reach the activities of States under the Commerce Clause (2) Here, the Court parted company with this notion, holding that the Fair Labor Standards Act applied also to police, firefighters, and other local government officers vi) FERC v. Mississippi (1982)
(1)
Largely overrule National League of Cities (2) Challenged law was Public Utilities Regulatory Policies Act, which required state regulatory agencies to consider certain approaches to rate structuring. (3) In upholding the Act, the Court noted that Congress could have preempted this entire field and the Act was therefore a less intrusive way of achieving the same ends.
vii) SC v. Baker (1988)
Federal income tax can be imposed on interest from bearer bonds issued by the states
viii)Reno v. Condon (2000) (expansionist)
(1) A unanimous Court upholds a federal law banning the sale of private information by the states. Specifically, the federal law prevented state DMVs from knowingly disseminating private information gathered about registrants for drivers licenses etc. South Carolina brought suit because its own laws required it to sell such information. (2) Rehnquist, writing for the Court, distinguishes NY and Printz on the grounds that the case is more like Baker, where the federal law there regulated State activities rather than seeking to control the manner in which States regulate private parties. . . The statute [being upheld in this case] does not require the States to regulate their own citizens. (3) Personal information gathered in DMVs is a thing in interstate commerce.
ix)
New York v. United States (1992) (restrictive) (1) Facts (a) Congress develops a sweeping nuclear waste disposal plan requiring states to enter into certain compacts with one another and dispose of waste in certain ways etc. (b) Two NY counties and the state object to the plan on Tenth Amendment grounds
(2) (3)
Issue: May Congress use the states to implement its own regulatory schemes?
Holding: No. (a) States were offered the option of themselves regulating via receipt of federal funds or being preempted by federal regulation. Congress may not force states to make such a choices. (b) By attempting to force states to either take title to radioactive waste or become liable for generators damages, Congress was commandeering state governments into the service of federal regulatory purposes (c) Nomatter how great the federal interest, the Constitution does not give the Congress the power to force the states to regulate (4) Notes: (a) This case distinguishable from Garcia in that the latter only required states to do what was required of employers in general, whereas in NY, the Congress was designing a scheme specifically to lord over states.
x)
Printz v. US (1997) (restrictive)
(1) (2) (3)
Facts: The Brady Act required local law enforcement officers to perform background checks in accordance with the federal scheme. Law enforcement officers challenged the law. Issue: May Congress compel state officers directly to enforce a federal regulatory program? Holding: No. (a) Though historical evidence has shown state judges made to enforce federal statutes, judges have frequently been called upon to hold on the law of other sovereigns. (b) The federal government has never been able to use state officers to enforce federal laws with the consent of the states. (c) The Federalist Papers are argued. Dissent contends that they should be construed to mean that state officials can be called upon to enforce federal laws. Scalia sees the wording as stating simply that state officials must not get in the way. Or at the most, that such help would be voluntary.
One critique of the majoritys argument is that if the federal government can no longer rely upon the states to enforce its laws, its gonna have to aggrandize itself to do so. So, be careful what you wish for, Scalia. (4) Notes:
(d)
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(a) An obvious question arises: what if Congress decides to make grants of money to states contingent upon their compliance with a congressional regulatory scheme or their causing their officers to do the work of the federal government. (b) Another restriction upon this doctrine is that Congress may apparently boss around state when it comes to federal elections. (c) Along this vein, the Court says that Congress can engage in so-called additional preemption. Example: Congress will regulate all gun sales themselves with microscopic involvement unless the states agree to help with the limited regulation imposed by the Brady Act
b)
11th Amendment Constraints (State Sovereign Immunity) i) The Eleventh Amendment (1) The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. (2) Two broad competing theories of its meaning
(a) (b)
Majority (conservative justices) theory: The 11th bans all suits against state governments from being heard in the federal courts.
ii)
Minority (liberal justices) theory: The 11th restricts the federal courts subject matter jurisdiction only in precluding cases being brought against states that are founded solely on diversity jurisdiction Hans v. Louisiana (1890) (1) States may also not be sued by their own citizens in the federal courts
Any other holding would be anomalous, as the 11th clearly prevents citizens of other states from suing a state in federal courts (3) There is still substantial disagreement over whether Hans should be overruled, the conservative justices asserting that its underlying principle exists not only in the common law of England but in the jurisprudence of all civilized nations iii) Seminole Tribe v. Florida (1996)
(2)
(1)
The earlier holding of Pennsylvania v. Union Gas Co. (1989) had been that Congress could impose limitations upon the States 11th-Amendment sovereign immunity under the exercise of its Art I powers. The abrogation of the 11th was justified by a plurality of liberal justices on the grounds that the 11th stated merely that the judicial power should not be construed to allow. . . And only judges construe. Congress does not. It can abrogate the sovereign immunity provided by the 11th and expose the states to monetary remedies.
The five-justice conservative majority in Seminole Tribe overruled this previous holding and stated neither the Congress nor the courts could abrogate 11th-Amendment sovereign immunity. iv) Alden v. Maine (1999) (1) Suit under private action allowed by the FLSA brought in federal court and properly dismissed. Brought again in State court against Maine by one of its citizens
(2)
(2) (3)
Despite fact that the FLSA could be properly brought to bear against state actors, this didnt abrogate the principals of the 11th Amendment. Private actions under the FLSA cannot be brought against states; Congress cannot force the states to turn against themselves.
Lingering question: could qui tam private actions be brought under the FLSA by citizens of a state in the name of the United States? v) The principle of Seminole Tribe and Alden (1) Shelter states from actions under the FLSA and the duty to pay damages for any injury made actionable by Congress pursuant to its Art I powers. (2) Forecloses suit by each and every state employee, not only those workers engaged in the states integral operations. vi) Exceptions to the principle of Seminole Tribe and Alden (1) Unlawful State Practices In Ex Parte Young (1908) the Court determined that suits could be brought in federal courts to enjoin unlawful state practices (b) Requirement that the suit be brought against the responsible state official rather than the state itself (2) Actions by another state The 11th Amendment does not bar actions brought against a State by another State or by the Federal Government (b) US v. Mississippi (1965) (3) Actions against municipalities The 11th Amendment has no application to actions for either injunctive relief or money damages brought against cities or sub-units of the states. (b) Individuals can still sue under the FLSA if they work for a city and not for the state. (c) Osborn v. Bank of US (1824) (4) Fourteenth Amendment (a) Fitzpatrick v. Bitzer (1964) (i) concerned a state claim of sovereign immunity in an action for money damages based on sex discrimination under the Civil Rights Act (ii) Fourteenth Amendment signified a shift in the federal-state balance by placing restrictions upon state authority
(a) (a) (a)
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5) OTHER CONGRESSIONAL POWERS
a)
(b) Prosecutors may argue that congressional abrogations of state sovereign immunity, even if not sustainable under the Commerce Clause, qualify as proper exercises of the XIV Amendment enforcement power. (c) But this XIV Amendment exception is only to a limited set of identifiable equal protection or due process claims
The Tax Power i) Child Labor Tax Case (1922) (1) Generally (a) Bailey v. Drexel Furniture Co.
(b) (2) (3)
A few months after Hammer v. Dagenhart, the Congress imposed an excise tax of 10% upon all businesses violating child labor laws.
Issue: May Congress use its taxing power to reach activities that it could not under the Commerce Power? Holding: No. (a) Congress may properly impose excise taxes, even where an incidental regulation or restraint results but excise burdens may not in and of themselves constitute a regulation and nothing more.
(b) ii) (1) (2) (3)
The revenue-raising effects of this statute are merely incidental. The Court invoked the pretext passage from McCulloch.
US v. Kahringer (1953) Facts: A federal tax was levied on gambling employees and upon each wager made. The tax was challenged as a disguised regulatory measure. Issue: Is a federal tax invalid if it discourages specific activity and produces little revenue? Holding: No. Not anymore
b)
The tax does in reality raise revenue, so it is presumptively valid. A federal tax does not cease to be valid merely because it discourages or deters the activities taxed. (b) Courts cannot limit the taxation power absent a penalty provision without any ascertainable revenue need. The Spending Power i) Congress may spend federal monies for the common defense and general welfare of the United States.
(a)
ii)
US v. Butler (1936)(restrictive) (1) Federal subsidy payments to farmers conditioned upon their compliance with federal rules designed to limit crop production
(2)
The Court invalidated the practice as a pretext for an undelegated power. Parade of horribles argument was evinced to the effect that a contrary holding would result in similar regulation controlling all aspects of American industry.
(3) Case essentially rendered moot by Jones & Laughlin Steel iii) South Dakota v. Dole (1987) (1) At issue was a federal statute that withheld 5% of highway funds from any state that permitted drinking under the age of 21. (2) Four-step test for determining whether a proper exercise of spending power
Does the spending plainly advance the general welfare? (A subject on which courts should defer substantially to the judgment of Congress.) (b) Has Congress acted unambiguously, thus permitting states to make a choice knowingly, cognizant of the consequences of their participation? (c) Does the spending induce the states to engage in activities that themselves are capable of being deemed unconstitutional? (d) Was the condition placed upon the spending reasonably calculated to advance the federal interest that the spending itself serves? The Treaty Power i) Missouri v. Holland (1920) (1) Court here held that a federal law limiting the hunting of migratory birds went beyond its commerce power but upheld the law on the grounds that the US had recently entered into a treaty to cover just this subject (2) Power valid where (a) The treaty dealt with a national interest of very nearly the first magnitude, and (b) The law was a necessary and proper means to effectuate the treaty ii) Bootstrapping concerns (1) Could Congress simply make a treaty with any nation and then enact laws that would otherwise be unconstitutional? Could they, say, enact a treaty with the UN Human Rights Commission banning all guns around schools ( la the opposite of Lopez)? The Necessary and Proper Clause
(a)
c)
(2)
d)
i) ii)
Kleppe v. US (1976) Court upheld the power of the government to ban interference with wild burros, even after they had wandered off federal range lands, where federal power over them would have been per se permissible Woods v. Cloyd W. Miller Co. (1948) Post-WWII federal rent controls permitted as a necessary and proper means of carrying out the war powers. The housing deficit was in large part caused by the rapid demobilization of veterans. [Beautiful. The government may control all housing because people whom it once employed want to live in some of it.]
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e) The XIII Amendment
Fall, 2004, Outline
i)
ii) a)
Jones v. Alfred H. Mayer Co. (1968) (1) Upheld a congressional ban on private race discrimination in housing sales on the grounds of 2 of the XIII Amendment granting Congress the power to pass all laws necessary and proper for abolishing all badges and incidents of slavery. (2) Congress could rationally determine that the law addressed a relic of slavery permissibly regulated by the federal government Would arguably permit a federal ban on race-based crimes
6) THE DORMANT COMMERCE CLAUSE
Generally i) Rules (1) The court will treat laws that facially discriminate against interstate commerce and laws that are protectionist in purpose as virtually per se invalid. (2) The Court has likewise invalidated laws that favor local economic interests at the expense of out-of-state competitors even when they do not take the form of overly discriminatory statutes (3) Protectionist effect: a finding of protectionism is generally fatal to a state law regardless of its purpose
(4)
ii)
The Court has also struck down facially neutral laws that unduly burden interstate commerce, applying the Pike balancing approach The Pike Balancing Test (1) Pike v. Bruce Church, Inc. (1970)
(a) (b)
Arizona sought to require a cantaloupe grower in that state to comply with its labeling requirements and pack its fruit in Arizona, even though the grower had all of its fruit packaged in CA and compliance with the law would cost it a small fortune.
A unanimous Court invalidated the law, holding the local interest too tenuous to justify the resulting burdens upon commerece (2) A law will be upheld where (a) The statute regulates even handedly to effectuate a legitimate local public interest, depending upon (i) the nature of the local interest involved (ii) whether, by some other means, the local interest could be promoted as well with a lesser impact on interstate activities (iii) the fact that the Court will view with particular suspicion a requirement that particular activities be performed within a state, especially when they could be performed more efficiently elsewhere (b) Its effects on interstate commerce are only incidental (c) The burden imposed on such commerce is not clearly excessive in relation to the putative local benefits iii) Cooley v. Board of Wardens (1851) (1) Ushers in the dormant commerce clause doctrine (2) The grant of the commerce power in and of itself barred some state legislation by rendering congressional power exclusive as to subjects that are national in their nature
b)
c)
South Carolina Hwy Dept. v. Barnwell Bros. (1938) i) Court upheld a SC state regulation regarding the width and weight of interstate carriers on its highways. ii) Passed on rational basis grounds: the state was legitimately protecting its citizens and highways from harm iii) In-state surrogates existed for the burdens borne by truckers interstate iv) States pay for their highways entirely out of their own tax dollars v) In the absence of. . . legislation, the judicial function, under the Commerce Clause as well as the Fourteenth Amendment, stops with the inquiry whether the state Legislature in adopting regulation such as the present has acted within its province and whether the means of regulation chosen was reasonably adapted to the ends sought. Southern Pacific Co. v. Arizona (1945)
i) ii) iii)
Facts: AZ law imposed restrictions on the number of cars permitted on any train operating within the state (14 passenger cars or 70 freight cars) Issue: In balancing the effect of a state regulation on interstate commerce against the states safety and welfare interests, may the court consider the efficacy of the regulation in furthering the state interest? Holding: Yes. (1) There is a particular need for uniformity in this area of commerce that weighs against state interests. (2) The total effect of the law as a safety measure is negligible or even problematic.
(3) iv) d) i) ii) iii)
Barnwell Bros. is distinguishable because it dealt with state highways, which are not only run and owned and paid for by the states but are of a more legitimate local concern (Court notes in this regard that nearly 95% of the rail traffic was interstate.)
Dissent: (Black) The Court here is acting like a stooper legislature Facts: Iowa prohibits the use of 65-foot double trailers on its highways. Issue: May the courts examine evidence to determine whether a states purported interest in safety is real and substantial enough to justify applying its police power to interstate commerce? Holding: Yeah. (1) A state cannot avoid a dormant Commerce Clause attack merely by invoking public health or safety. The courts are required to balance the states safety interest against the federal interest in free interstate commerce.
Kassel v. Consolidated Freightways Corp. (1981)
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e)
This case is distinguishable from the SC case despite the high deference given to states in controlling their own highways.. iv) Rules: (1) Less deference to the local interests is due because the law bears disproportionately on out-of-state residences and businesses (2) Safety concerns are nevertheless important and will be given extreme deference: if safety concerns are not illusory, then the court will not second guess the state legislatures judgment. Local discrimination against non-local competition
i)
Dean Milk Co. v. Madison (1951)
(1) (2) (3)
Facts: Madison County ordinance prohibited the sale of pasteurized milk unless processed at an approved plant within a five-mile radius of downtown Madison and the sale, importation, receipt, or storage of milk for sale in Madison unless originating at a farm inspected by Madison officials, who were not required to inspect any farms farther than five miles from the city center Issue: May a statute with a valid local purpose but that discriminates against interstate commerce be upheld if there are nondiscriminatory yet effective alternatives
ii)
Holding: no. (a) Though the ordinance has a valid purpose, it discriminates against interstate commerce. (b) Local statutes can no more erect barriers to commerce than can state statutes. (c) There appear to have been alternatives to the regulation that would have served the interest but not burdened commerce. (4) Critique of this holding (a) The safety interest was great; the alternative means of providing for it were perhaps not as easy as the majority alleged. (b) There were tons of in-state surrogates that could have opposed this law in the state legislature. Philadelphia v. New Jersey (1978)
(1) (2) (3)
Facts: NJ prohibits the importation of liquid or solid wastes in order to protect public health, safety, and welfare from the consequences of excessive landfill developments Issue: May a state prohibit the importation of environmentally destructive materials solely because of their source of origin? Holding: No.
Even if, for arguments sake, the law does serve a legitimate safety end, this end may not be achieved by discriminating solely against out-of-state items (b) This holding may actually benefit NJ in the future, as protection against state trade barriers could one day run contrary to its interests. (c) The comparison to quarantine laws is not compelling because those laws prohibit traffic in noxious articles regardless of their origin. (4) Notes (a) A solid alternative to NJs protectionist law would have been to raise taxes on all landfills. iii) Maine v. Taylor (1986) (1) 8-1 Court upheld a law banning the importation of out-of-state baitfish
(a)
(2) (3) (1) (2) (3)
The ban had a legitimate environmental purpose stemming from uncertainty about possible ecological effects on the possible presence of parasites and non-native species. This actually is like unto the quarantine laws.
Principle: Where an interest that is naturally peculiar to one state is protected, that interest may have a greater weight. E.g. where Hawaii bans the importation of snakes; where a mostly desert state controls the export of water. iv) C&A Carbone Inc. v. Clarkstown (1994) Facts: In order to pay for the solid waste processing plant it had built, the town of Clarkstown passed an ordinance requiring all waste within the town to be deposited at its transfer station, for which it charged above-market prices. Carbone sought to ship its waste to a cheaper alternative site. Issue: May a local government pass a local-processing requirement? Holding: No. (a) The economic effects of this business reach interstate commerce. Carbones facility received waste from out-ofstate. The ordinance also deprives out-of-state businesses of access to the local market.
(b) v)
f)
It is immaterial that the statute applies to all solid waste regardless of origin. The discrimination here is against non-local processors. The ordinance here is even more restrictive than that in Dean Milk (c) Clarkstown would have had a variety of alternative means of addressing its local waste disposal requirements that do not discriminate against interstate commerce. Fort Gratiot Sanitary Landfill (1992) The Court invalidated a Michigan law that prohibited landfill owners from receiving solid waste from outside the county in which they were located. Dormant commerce clause and Tax Schemes
i)
In order to be valid. . . (Complete Auto Transit v. Brady rules) (1) 1) the tax must have a reasonable or substantial nexus to the taxing state
(2)
2) the tax must be fairly apportioned
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ii)
Fall, 2004, Outline
3) the tax must bear a fair relation to the benefits granted to the taxpayer by the state (this one has been interpreted very loosely; its almost impossible to have a tax struck down under it) (4) 4) tax must not discriminate against interstate commerce West Lynn Creamery v. Healy (1994)
(1) (2) (3)
Facts: Mass. adopted a law requiring every milk dealer in the state to make a monthly premium payment based on the amount of its sales. The funds collected were distributed to Mass. dairy farmers. In effect, many out-of-statebased dealers paid a tax that went to benefit only in-state interests. Issue: May a state impose a tax on all sales of a particular product in order to subsidize only in-state sales of that product? Holding: No. (a) This subsidy has the same effect as a tariff: out-of-state milk is higher priced. (b) Though in-state subsidies are generally permissible, the combination of a tax on out-of-state interests and the subsidy on interests in-state impairs the political process because those in-state interests who would ordinarily oppose the tax are mollified by the subsidy. Thus, there are only out-of-state interests who could oppose it. Concurrence: (Scalia, Thomas) In effect, this results in a tax that is higher on out-of-state interests than in-state.
(4) iii)
Camps Newfound v. Town of Harrison (1997) (1) A Maine statute provides a property tax exemption for benevolent and charitable institutions incorporated within that state but denied full exemption for those conducted primarily for the benefit of non-Maine citizens (2) A 5-4 majority struck down the law as facially discriminatory of non-residents. If, Stevens argued, the law were to prohibit non-Mainers from attending camps in Maine altogether, it would clearly be unconstitutional as under the dormant commerce clause.
(3) iv)
g)
Dissent by Scalia, Thomas, Rehnquist, and Ginsburg argued that look the exemption here is a narrow exception designed to compensate those who contribute to the public fisc, arguably by relieving Maine of some of its welfare burden.
South Central Bell v. Alabama (1999)
The Court unanimously invalidated an Alabama franchise tax that gave domestic corporations the power to reduce their tax burden solely by reducing the par value of their stock. Facially Neutral Laws with Discriminatory Effects i) Even a facially neutral law will be deemed discriminatory if (1) Its protectionist tendencies are so apparent that it is functionally indistinguishable from a tariff or other discriminatory rule (2) The law was adopted because of a protectionist purpose (3) The law has intolerable "extraterritorial effects"
(1)
ii)
Modern decisions continue to suggest that an ill-defined set of facially neutral state laws will trigger scrutiny more exacting than deferential "Pike balancing" review if their effects are distinctively or obviously destructive of interstate commerce. iii) Exxon Corp. v. Governor of Maryland (1978) (1) Court upheld a Maryland ordinance prohibiting oil producers and refiners from operating local service stations on grounds of preferential treatment. (2) The dormant commerce clause protects the interstate market, not particular interstate firms. (3) Since all suppliers and refiners were out-of-state anyway, there was no discrimination against out-of-state goods in favor of in-state. iv) Minnesota v. Cloverleaf Creamery (1) Court upheld a state law that banned the sale of milk products in plastic non-returnable containers but allowed them in other sorts of non-returnable containers, primarily those made of pulp wood.
v)
Baldwin v. GAF Seelig, Inc. (1935)
(1)
The de-facto tariff principle (2) NY established minimum price levels for milk sold by in-state dairy farmers. To ensure the programs success, dealers who bought milk from out-of-state producers for resale in NY could not pay less than the statutorily specified amount (3) The Court held that the law acted effectively like a tariff since it prevented efficient out-of-state producers exercising from their trade advantages
vi)
Henneford v. Silas Mason Co. (1937) (1) Compensatory use taxes (2) State imposed a sales tax and a matching compensatory use tax on goods purchased out-of-state for local use. (3) Court upheld the law, recognizing that "equality is the theme" of the statute (4) But the most distinguishing characteristic between the two was how much each resembled a tariff; the tax in Silas Mason simply fell outside of the de-facto tariff principle
vii) H.P. Hood & Sons v. DuMond (1949) (1) In-state hoarding
(2) NY law blocked the opening of a milk receiving station near the border with Mass., the fear being that the station would divert needed milk from NY (which was presently running under a communist economy, it would seem) to Boston. (3) Court narrowly overturned the law on the grounds that it amounted to commerce-hampering hoarding of milk. A NY law was unlikely to afford any protection to out-of-state Mass. consumers who were nevertheless also affected by it.
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Constitutional Law I - Coenan viii)Milk Control Board v. Eisenberg (1939)
(1) Price controls on in-state producers
Fall, 2004, Outline
(2) (3) (4)
The milk wars continue with a Pennsylvania law that required in-state exporters to charge a minimum price when shipping milk out-of-state. Farmers challenged law on grounds that it prevented them from competing just like the chaps in Baldwin but this time in reverse. Court rejected plaintiffs reasoning and upheld the law since it applied to in-state, not out-of-state producers as in Baldwin (Who ever heard of a reverse tariff, after all.)
h)
This case is on dubious footing in light of the Court's more recent declaration that state authorities "may not insist that producers or consumers in other states surrender whatever competitive advantages they possess. Facially Neutral Laws with Discriminatory Purpose i) Generally (1) Courts will take a hard look at any facially neutral law whose stated purpose is to promote the economic advantage of in-state enterprises (2) Likewise, tax breaks specifically designed to promote local industries, even if superficially neutral, will violate the dormant commerce clause principle
ii)
Cities Service Gas v. Peerless Oil (1950) (1) Challenged law was a minimum price for the sale of natural gas within the state to prevent rapid and uneconomic dissipation of the state's resources (2) The Court upheld the law as a reasonable measure for curtailing the demand of both in-state and out-of-state buyers
iii)
i)
Buck v. Kuykendall (1925) (1) State refused to license a Portland-to-Seattle bus line on the grounds that the route was already "adequately served" (2) The Court overruled the state, whose primary purpose, they believed, was not safety regulation but prohibition of out-of-state competition Extraterritorial Effects i) There are constitutional concerns when local regulations have ripple effects upon businesses in other jurisdictions
ii)
Brown-Forman Distillers v. New York (1986) (1) State "dictates" pricing scheme for whole nation (2) Law required liquor dealers to certify that the price they charged in NY did not exceed the price certified at the outset of the month as the lowest price that would be charged for that product during that month anywhere in the nation. (3) Court rejected this law on the reasoning that once a dealer posted his price in NY, he would not then be free to change is prices anywhere else in the United States. In practice, the law had the effect of controlling liquor prices in other states. Healey v. The Beer Institute, Inc. (1989) (1) Interstate price gridlock (2) Law required Conn. beer distributors to certify that the price they were charging was not, at that given moment, higher than the lowest price charged in any adjoining state
iii)
(3) iv) (1) (2) v)
Court struck down this law on the same rationale as in Brown-Forman. The law, especially if adopted in other states, would trigger a nation-wide price "gridlock" inconsistent with the free flowing of interstate commerce Anti-corporate takeover law (foreign corporations)
Edgar v. MITE Corp. (1982) Illinois law forbids all corporate takeovers as long as Illinois residents own more than 10% of the corporation's stock or the corporate target had its principal office and specified amounts of its capital in Illinois. (3) Law invalidated. The Court noted that the State had no legitimate interest in regulating the dealings between outof-state firms and out-of-state shareholders. CTS Corp. v. Dynamics Corp. of America (1987) (1) Anti-corporate takeover law (domestic corporations)
j)
Court distinguished Edgar by noting that Indiana anti-takeover law applied only to domestic corporations. Law upheld. Exceptions to the Dormant Commerce Clause i) The Market Participant Exception
(2) (1)
South-Central Timber v. Wunnicke (1984) (a) The State of Alaska offered to sell its timber but only if buyers agreed to have it processed in-state before being exported.
(b) (c)
Issue: When a state sells its own resources, may it impose post-sale restrictions on the buyer? Holding: That's a negative, Ghost Rider. (i) No evidence of Congressional consent to this state program, which, even had it existed, would have had to have been unmistakably clear
(ii) The market participant doctrine must be limited to allowing a state to impose burdens to commerce within
the market in which it participates. Here, Alaska, was imposing excessively down-stream restricitions. (d) Rules
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(i)
Fall, 2004, Outline
ii)
The state may not impose conditions that have a substantial effect outside of the market in which it participates. The Privileges and Immunities Clause
(1)
United Building & Construction Trades Council v. City of Camden (1984)
(a) (b) (c)
Facts: City of Camden adopts an ordinance that required that at least 40% of the employees of contractors working on city construction be Camden residents. Issue: Does the P&I Clause apply to municipalities that require contractors to hire the municipality's own residents to work on construction projects? Holding: Yes.
(i) (2)
If a state can't discriminate in this manner, neither can a city. The law discriminates not only against instate but also out-of-state residents. (ii) The P&I Clause doesn't prevent discrimination against out-of-state residents if there is a substantial reason for the discrimination. Supreme Court of NH v. Piper (1985) (a) Practice of law by nonresident (b) A state violates the P&I Clause when it limits state bar admissions to in-state residents. (c) This rule will not take hold, however, if (i) There is a substantial reason for the discrimination, and (ii) The conduct bears a substantial relationship to the State's objective iii) The Congressional Consent Exception (1) If Congress so provides, state laws that otherwise offend the dormant commerce clause are immune from challenge to it
(2)
Prudential Insurance v. Benjamin (1946) (a) An act of Congress excluded even blatantly discriminatory state legislation against insurance companies chartered in other states
(b) (3)
Principle: Congress can exercise its power to regulate interstate commerce, including by subjecting it to limitations and disadvantages in conjunction with coordinated action by the states.
Metropolitan Life Insurance v. Ward (1985) (a) A foreign corporation challenges a state tax law that discriminated on its face in favor of domestic insurers. (b) Though immune from dormant commerce clause jurisprudence, it was struck down nonetheless under the Fourteenth Amendment's Equal Protection Clause. Penalizing foreign insurers to effectuate parochial discrimination is not the sort of iv) Congressional Preemption (1) Express Preemption (a) Cipollone v. Liggett Group, Inc. (1992)
(i)
Along with the Surgeon General's warning placed upon all cigarette packages, Congress has also expressly forbidden any requirement or prohibition based on smoking and health provided for by state law (ii) SCt has held that this preemption also displaces state tort law regimes to the extent that the claim is based upon a failure-to-warn products action. This would not preempt, however, 1. breaches of express warranty 2. claims based on fraudulent statements 3. claims for failure to warn administrative agencies about health risks
(2)
Implied Preemption (a) A category of cases containing both
(i)
Conflict preemption where a state law contravenes federal purposes or requires action that violates federal law
(ii) Field Preemption which applies here federal law is so pervasive or federal interests are so predominant
that state laws on the same subject should not operate (b) Burbank v. Lockheed Air Terminal, Inc. (1973) (i) Municipality in the State of CA sought to control take off and landing times of aircraft (ii) Court found implied preemption in the form of conflict preemption because the timing of takeoffs and landings would "severely limit the flexibility of the FAA in controlling air traffic flow." But see Silkwood v. Kerr-McGee Corp. (1984) where the Court refused to preempt a punitive damages award to a nuclear plant employee because his employer failed to protect him from radiation. Congress' purpose to occupy the safety field in nuclear regulation apparently did not extend to state tort actions. (3) Field Preemption
(c)
(a)
Requirement of a clear showing of congressional intent to preempt (Rice v. Santa Fe Elevator Corp. (1947)) (i) Manifestation of Congressional intent to preempt 1. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it. 2. The Act of Congress may touch on a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject
3.
Where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens,
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states cannot, inconsistently with the purpose of Congress, conflict or interfere with [that scheme] (Hines v. Dadowitz (1941))
(b) (c)
Where Congress has preempted a field, the Court's function is to determine whether the state's law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. (Hines v. Dadowitz) Pacific Gas & Electric Co. (PG&E) v. State Energy Resources Commission (1983)
(i)
Facts: CA legislature prohibited certification of nuclear power plants until the State Energy Commission made a finding that a demonstrate technology for permanent disposal of high-level nuclear waste had been approved by the federal government. industry, as long as the state acts for a purpose not preempted by Congress?
(ii) Issue: May a state impose restrictions on an industry when the federal government also regulates that (iii)Holding: Yes 1. The legislation in this case was not motivated by concerns of the safety and health of Californians but
instead for the specific economic purpose of avoiding power disruptions that would result if waste buildups forced power plant shutdowns. Great illustration that half of your case lies in how you frame the issues. 2. The Nuclear Regulatory Commission has power over the safety aspects of nuclear energy but no authority over the question of whether or not a plant should be built. 3. Although the NRC had determined it safe to build a power plant, this did not amount to an order compelling the state to so act (even assuming that such an order would be constitutional) 4. The state is not frustrating the purposes and objectives of Congress, which amounted to promoting safe nuclear energy. (d) Presumption of state power - Rice v. Sante Fe Elevator (1947) (i) When Congress legislates in an area that states have traditionally occupied, the Court will commence with the presumption that the historic powers of the state were not to be superseded by the federal act (ii) Requirement of a clear and manifest purpose of Congress"
(iii)Note, however, "clear and manifest purposes" can still exist even in the absence of express preemption.
(iv) This canon is sometimes sidestepped by a finding that the legislation lies outside of a field traditionally occupied by the states (4) Conservative justices and preemption (a) Some commentators have noted that even the more traditionally "federalism minded" of the justices have been quick to find congressional preemption over state laws. (b) The theory being that these justices value private autonomy over regulatory control, regardless of the fact that that control arises in an area traditionally occupied by the states. (c) Federal agency preemption (i) The Court has even been seen to be willing to give deference to federal agency decisions and rules in the name of implied or express preemption (ii) Geier v. American Honda Motor Corp. (2000) 1. State airbag suits barred by conservative majority upon a finding of federal agency preemption 2. Stevens, dissenting: Preemption found here is nothing more than "the product of the Court's interpretation of the final commentary accompanying an interim administrative regulation and the history of airbag regulation generally."
7) THE EXECUTIVE POWER
a)
Executive Encroachment on Legislative Power i) Generally (1) The whole of the executive power is granted to the president under Art II Section 1 (2) President's legislative powers (a) Power to propose legislation (b) The power to exercise some rule-making power as delegated to the executive agencies and officers by Congress (as long as the decisions are pursuant to some reasonably definite standards) (c) Veto power, which can be overridden by a 2/3 vote of both houses of Congress
ii)
The Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer (1952) (1) Facts: (a) President Truman orders the Secretary of Commerce, Sawyer, to seize the nation's steel mills and keep them running in order to cope with striking steel workers during the Korean War. (b) Congress had previously adopted an act to allow the President to bust up such strikes (which Truman was unwilling to do) but had specifically rejected legislation allowing him to seize industries to prevent shutdowns.
(2) (3)
Issue: May the President, acting under the aggregate of his constitutional powers, exercise a lawmaking power independent of Congress in order to protect serious national interests
Holding: Um. . . . no. (a) Here, there was a specific rejection of legislation that would have granted this power. (b) This doesn't fall under our guy's war powers. (4) Frankfurter's concurrence (a) Notes that some powers can become constitutional when nobody has bothered to question them for decades. (b) But that is not the case here, and the fact that Congress had specifically rejected legislation so providing controls. (5) Jackson's concurrence
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Constitutional Law I - Coenan (a)
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(A concurrence made all the more interesting since Jackson, as Roosevelt's Attorney General, had argued for expanded war powers for that president.) (b) The "executive power" the Constitution grants is nothing more than a granting of the thereinafter enumerated powers of the President. (c) Three types of situations determine whether the President may exercise executive power (i) Express grant: When there is an express or implied authorization by Congress for Presidential action: Here the Pres.'s authority is at its maximum. He may be said in these circumstances to personify the federal government.
(ii) Silent Congress: Where the President acts in the absence of any congressional say one way or the other,
he may exercise his own independent powers. But there exists a "zone of twilight" in which Congress may have concurrent authority. In this area, the legality of presidential action is likely to depend upon "the imperatives of events" or "contemporary unknowables."
(iii)Congressional denial: Where the President takes action incompatible with the express or implied will of
Congress. Here his power is "at its lowest ebb" and he can rely only upon his expressly granted powers in the Constitution minus any concurrent powers of Congress.
(6)
Dissent (Vinson, Reed, Minton)(who??)
(a) iii)
Presidents must be empowered, and have been in the past, to deal with national emergencies. Roosevelt commandeered coal mines as an exercise of his war power just some years prior. (b) Eschews the "messenger-boy" conception of the Presidency. Clinton v. New York (1998) (1) President Clinton applies a line-item veto act to cancel two spending measures, one of which in some way ticked off the City of NY.
(2) (3)
Issue: May Congress grant the President a power to cancel legislation after it has been duly enacted and signed? Holding: Nuh-uh. (a) The Constitution allows the President to return a bill to Congress, an action that takes place before the bill becomes law. In contrast, the line-item veto occurs after the bill has become law. A constitutional veto is of the entire bill, whereas the line item veto only to part. These are constitutionally significant differences. (b) Constitutional silence on a matter as important as presidential action must be construed as disallowing such action.
(c) (4) iv) (1) (2) (3)
This is distinguished from powers granted the President under a 19th-Century Tariff Act, in which the President was empowered to suspend certain tariffs. This suspension was a specific delegation of power to the President under the act itself. (d) This is also distinct from the traditional power of the President to decline to spend apportioned funds. Dissent (Scalia, O'Connor, Breyer) No. This actually is constitutional. The United States, in a treaty with Algeria and others, agreed to stay all legal proceedings against the government of Iran on Iranian assets frozen by the United States. The agreement was implemented via executive order. Dames & Moore had a judgment against Iran for an amount that fell outside of the range provided for by the agreement. The judgment was stayed by a federal district court, and this suit ensued. Issue: May the President, in response to a national emergency, suspend outstanding claims in American courts by executive order? Holding: You betcha. Dames & Moore v. Regan (1981)
b)
There was law on point. The International Emergency Economic Powers Act permitted the President to regulate any property in which any foreign country or national thereof had any interest. In effect, the act was intended to permit freezing of foreign assets as bargaining chips. (b) Though the act didn't specifically authorize the suspension of in personam lawsuits, the general tenor of the law indicated Congressional approval and slides us into Jackson's first zone. (c) A systematic, unbroken, executibve practice, long pursued in the knowledge of the Congress and never before questioned, may be treated as a gloss on executive power granted by Article II. (Frankfurter's concurrence from the Steel Seizure Case.) The War Power i) Generally (1) The War Powers Resolution (a) The President may introduce troops into hostilities pursuant to (i) A declaration of war (ii) Specific statutory authorization
(a)
(iii)A national emergency caused by an attack on the United States, its territories or possessions, or its armed
forces (b) Upon introduction of troops, the President shall terminate use within 60 days of the submission of a congressional report unless the Congress (i) Has declared war (ii) Has statutorily extended the 60-day period (iii) Is physically unable to meet because of an attack on the United States (2) Emergency powers
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(a) Habeas corpus may be suspended in cases of rebellion or invasions. But its placement in Article I implies that it is only Congress that may suspend it, Lincoln's actions in Maryland during the Civil War notwithstanding. (b) President shall be commander in chief of the militia in times of insurrection or rebellion if that militia has been called by Congress (c) States themselves can raise armies if they are invaded
ii)
Ex Parte Milligan (1866) (1) Milligan was detained in Indiana by the military for allegedly participating in the Rebellion and was tried by a military court and sentenced to death.
(2)
The Supreme Court declared that, even though Lincoln's suspension of habeas corpus had been legal, an emergency provision could not legally authorize trial and conviction of a citizen by a military court, even during wartime. (3) The Court rejected the prosecution's argument that the military court was authorized by the "laws and usages of war."
iii)
Ex Parte Quirin (1942) (1) Appeal by German spy who was caught engaging in unlawful combat activities in attempting to sabotage war industry and materiel within the United States.
(2) (3)
Issue: During a time of war, may the government try and sentence unlawful combatants via military tribunal? Holding: Oh yeah, baby. (a) Citizenship of the United States by an enemy combatant does not relieve him of the prospect of trial for warfare that was unlawful. (b) We cannot say that the V and VI amendments were designed to protect unlawful combatants for the enemy who, under the laws of war, are otherwise triable and punishable by death.
(c) Ex Parte Milligan distinguished in that Milligan was neither an enemy combatant nor an unlawful one. iv) Post 9/11 Cases (1) (2)
Johnson v. Eisentrager (1950) Germans captured in Pacific theatre were tried in a tribunal in Germany and not entitled to the privilege of a United States court because they were "at no relevant time. . . within any territory over which the United States is sovereign." The privilege of litigation does not extend to such aliens. Rasul v. Bush (2004) (a) Federal judges have authority to consider habeas petitions from Guantanamo Bay detainees who argue that they are being held unlawfully.
(b) (3)
This despite the fact that the United States didn't have "ultimate sovereignty" over Gitmo. (c) Kennedy urges narrowness of holding, fearing that United States can have passing sovereignty over all sorts of territories on which our troops are located. (d) Dissent fears that this "judicial adventurism" will extend the right of habeas to the four corners of the globe. Hamdi v. Rumsfeld (2004)
(a)
Facts: A United States citizen was detained on United States soil as an unlawful "enemy combatant." The grounds for Hamdi's detention were by no means undisputed, the government having only alleged that he was a "resident of Afghanistan." (b) Holding: (i) The congressional resolution authorizing force in Afghanistan was a limited approval for the detention of this narrow class of enemy combatant. (ii) The purpose of detention is to prevent enemy troops from taking up arms and fighting us again; thus, there is no bar to the nation's holding one of its own in this capacity. (iii) It is agreed that indefinite detention for the purpose of interrogation is not authorized. (iv) A citizen-detainee seeking to challenge his classification as an enemy combatant is entitled to notice of the factual basis for his detention and a right to rebut the factual allegations before a neutral decision maker.
(v) (c) (d) (4)
However, the exigencies of the circumstances may determine that, beyond this minimum requirement of process, the proceedings may be tailored to alleviate the uncommon potential to burden the executive at a time of ongoing military combat. Initial captures on the battlefield need not receive the process discussed here.
Dissent (Scalia, Stevens): The constraint of the Executive, even in times of war, in his power to indefinitely detain citizens was one of the very principles upon which our nation's rebellion was founded. Hamdi should have his day in court. Dissent (Thomas) Detain the bastard.
c)
Rumsfeld v. Padilla (2004) Overturned on jurisdictional grounds since the habeas action should have been brought against the Commander of the brig in which Padilla was being held. Stevens dissents and notes that "unconstrained executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber." Congressional Encroachment on the Executive i) Generally
(1)
In principle, the granting of legislative power to the Congress entails a complete restriction upon the delegation of this power.
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Constitutional Law I - Coenan (2) (3) (4) ii)
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This does not, however, prevent the legislature from "seeking assistance, within proper limits, from the coordinate Branches." (Touby v. United States (1991)) In United States v. Curtiss-Wright Export (1936), the Court cautioned against the setting of narrow limits and bounds within grants of authority from the Congress to the Executive. (The case involved a grant of authority to declare an arms embargo against Bolivia and Paraguay) Interlinked powers: In Loving v. United States (1996), the Congress had granted power to the President to prescribe rules governing the use of the death penalty in courts martial. The Court noted that it is "hard to deem lawless [such] a delegation. . . interlinked with duties already assigned to the President by express terms of the Constitution.
INS v. Chadha (1983) (1) Challenged law sought to allow the suspension of an alien's deportation by vote of a single house of Congress the House in this case.
(2) (3)
Issue: May Congress employ a legislative veto device to oversee delegations of its constitutional authority to the executive? Holding: Nope. (a) This case does present a constitutional question and is not solely a political question.
(b) (4)
The Constitution is clear on the process necessary for the Congress to enact legislation, and this involves bicameralism and presentment. These devices were put into place to ensure liberty. (c) Moreover, the Constitution enumerates only four instances in which a house of Congress may act alone: impeachment, trial after impeachment, ratification of treaties, and confirmation of presidential appointments. Dissent (White) (a) Look, the Congress could have delegated unrestricted power to the Executive here, but they chose not to. Now, they're left with the choice of granting blanket power or none at all. Their very retention of some power to check executive action preserves liberty.
And it's not like they're writing a new law without bicameralism and presentment here. This veto may only negative what the executive department has proposed. Geesh. iii) Congressional Control over Executive Officers (1) Generally (a) The President shall, with the advice and consent of the Senate, appoint ambassadors, Judges of the Supreme Court, and all other officers of the United States. (b) Inferior officers may be appointed by the President alone or by the heads of their respective departments.
(b)
(2)
Buckley v. Valeo (1976) (a) Prohibition of congressional appointment of officers (b) The Congress sought to itself appoint officers to head up the Federal Elections Commission. These officers were given "direct and wide-ranging" enforcement power and "extensive rulemaking and adjudicative powers." (c) An agency with a majority of congressionally appointed personnel can only exercise those powers which Congress itself might have exercised absent the delegation. (d) An appointee exercising significant authority pursuant to the laws of the United States is an officer thereof and must be appointed by the usual process prescribed for an officer Bowsher v. Synar (1986)
(3)
(a)
Facts: Congress created the Balanced Budget and Emergency Deficit Control Act, which was enacted to reduce the size of the deficit to zero over a period of years. Members of the CBO would report findings to the Comptroller General, who would then make conclusions as to necessary spending reductions. The President would issue an order mandating these reductions, which would then become law unless Congress took contrary action. Issue: May Congress assign to the Comptroller General the task of deciding which parts of the federal budget must be cut in order to meet deficit reduction targets? Holding: No.
(b) (c)
(i)
Congress is not granted an active role in supervising executive officers. The removal power has no bearing on this and in any even is exercisable only in cases calling for impeachment. execute the laws. The Comptroller's exercising of his independent judgment amounts to an execution of the law.
(ii) Because Congress cannot execute the laws, it may not grant an officer under its control the power to (iii)The binding of the President in requiring his ordering of the Comptroller's recommendations is a
particularly egregious over-extension of Congressional power. Dissent (White): All that Congress has done here is to specify a detailed procedure for the execution of powers that it itself has. There is no effect other than a control over the amount of money that Congress apportions clearly a legislative power. iv) Fettering the President's removal power (1) Myers Rule:
(d)
(a) (b)
From Meyers v. United States (1926) holding unconstitutional a law that certain groups of postmasters could not be removed by the President except by consent of the Senate. The President's power to remove purely executive officers is unrestrictable.
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Constitutional Law I - Coenan (c)
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Humphrey's Executor v. United States (1935) Congress could specify removal proceedings for officers appointed under the FTC Act as these were not "purely executive" officers. The FTC could not properly be characterized as "an eye or arm of the Executive" as many of its duties under the statute were free from executive control. (2) Wiener v. United States (a) President sought to remove an officer of the War Claims Commission, a body that was principally judicial in nature. (b) President enjoined as he has the blanket power to remove only if officers are purely executive or if Congress can fairly be found to have conferred the removal power.
(3)
Morrison v. Olson (410) Independent Counsel Case
(a)
Facts: Congress creates the office of the independent counsel to investigate and prosecute specified government officials for violations of federal criminal law. Under the Act, the Attorney General will submit a report to a special court and make a determination as to whether specific acts that he has investigated warrant further prosecution. The special court then appoints an independent counsel that will comply with the DoJ to the extent possible but will also be overseen by Congres. Issue: May Congress provide for the judicial appointment of independent counsel for purposes of investigating and prosecuting members of the executive for violations of federal criminal law? Holding: Yes. (i) Inferior officers may be appointed by the judiciary, whereas principal officers may only be appointed by the President with the advice and consent of the Senate. (ii) Factors in determining an inferior officer. 1. Whether the officer reports to a higher executive official. 2. Whether the authority is limited to specified, limited duties. Whether the officer has policy making authority. 3. Whether the office is limited in jurisdiction and tenure. (iii) The removal restrictions here are of no serious concern, as the only reason to be bothered by restrictions upon removal is when these impede the President's power to perform his constitutional duty. Sentencing guidelines adopted constrained the judiciary to a determination of sentences only in cases not contemplated by the Commission. Commission was "an independent commission of the judicial branch" all seven members of which would be appointed by the President with the advice and consent of the Senate and three of whom would be federal judges. Issue: May Congress create an independent judicial commission to establish guidelines that are binding on the federal courts? Holding: Yeah. (i) The Court in the past has vigilantly guarded against two dangers 1. That the judiciary neither be assigned nor allowed tasks that are more appropriately accomplished by other branches and 2. That no provision of law impermissibly threatens the integrity of the judiciary. (ii) The creation of a sentencing commission is not unconstitutional unless Congress has vested in it powers that are not properly exercised by the other branches or that undermine the integrity of the judiciary. (iii) The inclusion of this commission in the judicial branch does not expand the powers of the judiciary, which itself has long been responsible for the determining of sentences.
(b) (c)
(4)
Mistretta v. United States (1989) Sentencing Commission Case
(a) (b) (c)
(iv)Finally, the power of the President to appoint and remove commission members does not affect the status
of the judges so serving as judges. Dissent (Scalia): In effect, the commission's guidelines are laws. Congress cannot create a body that has no delegated power other than to make laws. Executive Privilege and Immunities
(d)
d)
i)
United States v. Nixon (1974)
(1) (2) (3)
Facts: The special prosecutor issued a subpoena ordering President Nixon to produce various tapes and other records relating to presidential conversations and meetings. Issue: Does executive immunity give the President an absolute, unqualified immunity from judicial process under all circumstances? Holding: Negative. (a) Absent a claim for the need to protect military, diplomatic, or sensitive national security interests, the broad public interest in the President's confidentiality will be trumped by the gravity of the allegations here. The in camera inspection of the materials by a federal judge cuts further against the need for confidentiality. (b) The generalized need for privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. (c) Though rejecting generalized privilege, the Court here does recognize a generalized, presumptive privilege.
ii) iii)
In Presidential Campaign Activities v. Nixon (1974), the Court rejected enforcement of a subpoena for tapes by the Senate Committee investigating the Watergate matter. The Committee's need to know did not outweigh the public interest in executive confidentiality. Nixon v. Fitzgerald (1982)
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(1) Case involved an Air Force whistleblower who was later fired, he claimed, because of his testimony before a congressional subcommittee. (2) Holding: (a) The President has absolute (rather than qualified) immunity from civil damages for his official acts. At least, that is, in the absence of explicit affirmative action by Congress. (b) Judges and prosecutors also have unqualified immunity for official acts.
(3) Dissent (White, Marshall, Brennan, and Blackmun): This effectively places the President above the law. Not good. iv) Clinton v. Jones (427) (1) (2)
Facts: Jones sued Clinton for we-all-know-what while he was Governor of Arkansas, and Clinton sought to have the trial stayed until the end of his "presidency" on the grounds that the need to have a timely trial was outweighed by the taxing effect this ...