con law outline 3

8/3/2019 Con Law Outline 3

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Constitutional LawConstitution v. Articles of Confederation

1. AOC - most power to the states - all powers not expressly delegated to the national government

reserved to the states

2. AOC Flaws:a. No power for national government to tax the states

b. Congress lacked power to regulate foreign commerce. States conducted commerce on their own.

c. Encouraged unfair competition among states

d. States had approve any laws passed by national government nearly impossible b/c 9 out of 13were necessary

3. Constitution provided strong central government, with three branches of government.

a. Also gave federal government power to regulate foreign commerce ANDb. Power to tax

Court Systems in the U.S.1. Levels of Federal Courts

a. District Court (Trial level) has limited original jurisdiction.

b. Circuit Court (Appellate level)c. U.S. Supreme Court. A case can reach the Supreme Court by:

i. Original Jurisdiction (very rare, acts as a trial court)ii. Direct Appeal (only in very rare cases, such as with the voting rights act of 1965

iii. Certification can only be requested by a lower, federal level judge when they dont

know what to do with an issue of law

iv. Writ of Certiorari at the S.Ct.s discretion whether they will grant it; do not have to hear

a case. Granted usually when (a) there is a ripe issue or (b) there is a significant split inthe Circuit courts

v. Advisory Opinions court will not issue them because difficulty of prediction. Seen as

akin to legislating and produces a separation of powers problem.d. Federal Question cases

i. Arise under federal law, central to the issue (basically).

ii. Treason, Kidnapping across state lines, Civil Rights, Anything under the Major CrimesAct,

iii. Mail Issues, Tax issues, because of the federal power of it.

Judicial Review 2. Definition - Power of S. Court to consider & overturn any congressional and state legislation or other

official governmental action deemed inconsistent with the Constitution, Bill of Rights, or federal law.

3. Sources of the Powera. Marbury v. Madison (1803) outgoing Adams Federalist administration made number of

judicial appointees; One district judge didnt get his appointment and complained based on an act

of congress that granted the court to review this issue.i. HOLDING: Instead of grant the appointment, supreme court invalidated the act of

congress that granted them jurisdiction over the case.

ii. Judiciary Act of 1789 invalidated b/c it violated Art. III sec. 2 of the Constitution (grantof original jurisdiction to the Supreme Court) - the writ of mandamus was not among the

Constitutions grant of original jurisdiction to the S.Ct. (2) Separation of Powers if

Congress kept passing legislation telling S.Ct. when to exercise original jurisdiction, itwould be controlling the court and infringing on its sphere of power. (3) Congress isnt

going to invalidate its own statute (pro checks & balances argument) (4) Judges not

being swayed is a good thing.


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b. Counter Argument to Ct.s power of Judicial Reviewi. Constitution old, not easily amended.

ii. Congress represents the peoples interests and their will. (judicial review anti democratic

judges are political appointees and not accountable)c. What does a judge look to in interpreting law/constitution?

i. Text of law (strict/formalist reading Scalia strictly what is in the text of the

Constitution or law) versus functionalist/broader interpretation look at the intent.

ii. Precedent (stare decisis)iii. Tradition (what has the court done in the past? how Congress & President have acted

towards each other in the past)

iv. Original Intent what the framers had in mind when the wrote the constitution (look toFederalist papers, convention debates) Tension between whether the framers intended a

framework or conception that is fixed for all time or whether they intended a general

concept that might evolve over time. What is a judge to do when the fixed conceptionseems out of step with modern day realities?

v. Future Implications what effects will a judicial decision have on future?

vi. Social Norms , Social Policy, Prevailing Social Consensus or Morality (i.e. Heart ofAtlanta Civil Rights movement in the 1960s)

vii. Justice or Fairnessviii. Judges own Ideologies/Personal beliefs (conscious or unconscious)

a. Limitations on Constitutional Adjudication

a. Jurisdiction court must have authority to hear the case

b. Justiciability case must be appropriate for judicial resolution.

POLITICAL QUESTION DOCTRINE

1. Political Question Doctrine (1) political question exists when no law is broken OR when there are

reasons for the court to stay out of the issue, better left to the other branches. Where as a political issue(2) Essential element of the Political Question Doctrine - A political question exists when there is no

legal barrier to the action or when there are prudential reasons for the court to stay out of the issue.

2. Baker v. Carr (TN 1962) - Facts: Voters unhappy with the districting policies of the state since theyhadnt been redistricted since 1901; Assembly violated their equal protection rights. Legislature was

mis-apportioned. Relying on the 14th Amendment. Some over some under represented

a. HOLDING: Didnt fall under these conditions of a political question.

Elements of a Political Question

c. textually demonstratable constitutional commitment of the issue to a coordinate branch.

I) Constitution assigns the power to decide the issue to either Congress or thePresident.

II) Sort of saying that no law has been broken.

d. lack of judicially discoverable and manageable standards to decide the case

I) Court uses standards/rules of law in deciding cases; if there are no rules of law in

a particular area or standards by which to judge whether something is right or

wrong,II) If the point in 2(a) above is true, then the court should not decide it.

e. impossibility of deciding without making an initial non-judicial policy determination

I) Court cant first decide the case without making a policy determination thatshould be left to the legislative or executive branch

II) I.e., should we go to war?


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f. impossibility of deciding without showing due respect to coordinate branches.

I) Dont undermine the other branches of the government.II) No disrespect to Congress or the President. (i.e., foreign affairs questions)

g. unusual need to adhere to a political decision already made

I) More important to follow the course of action that either Congress or thePresident has set us on, than the courts decide the case

II) Foreign policy

h. potential embarrassment due to conflicting pronouncements from various branches.

I) Foreign policy a good example here as well.

1. Nixon v. U.S. Facts Nixon a former chief judge of a District Court; made false statements; sent

to prison Judge was impeached; evidence only taken by committee and not full Senate.

i. HOLDING : Held Nonjusticiable because power is granted to the Senate

j. REASONING: Under #1 of the Political question doctrine elements. textually

demonstrative delegation to a coordinate branch

1. Article I, Sec. 3 cl. 6

2. Sole Power court interpreted this reference in the Constitution to mean that the

Senate, not the courts should determine what procedures would validly constitute atrial.

II) Powell v. McCormack House refused to seat member because he had been convicted of a crime.

He argued that he met all constitutional requirements for membership. Govt. argued fell under #1 ofPQD. Court held no, that it wasnt a PQ & could be adjudicated.

k. REASONING: House only had power to decide whether someone met minimums in Art

I sec. 2, not to impose additional membership requirements. Court could decide thecase/was justiciable.

III) Goldwater v. Carter treaty making

A. Talking about terminating a treaty there is no textual provisionB. Court ruled the issue is a political question on what basis?

C. Prudential grounds to avoid potential embarrassment due to conflicting pronouncements; #6 of

the PQDD. Show respect to what President has already done, foreign relation should be left to the president

Standing Appropriate person/party must bring the case; To satisfy the standing requirement inherent in

Article III II case or controversy requirement

2. Injury in Fact (P must have suffered), which must be:

a. Concrete & Particularizedb. actual or imminent,

c. not conjectural or hypothetical (loose future plans)

3. Casual connectionbetween plaintiffs injury and alleged illegal action (cannot be general injury to

the public as a whole, fed court may only decide on the rights of individuals)

4. Injury will beredressed by the relief requested.

Lujan v. Defenders of Wildlife wildlife group wanting Endangered Species Act to extend to foreign

nations; claimed were going to go bird watching overseas.


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HOLDING: Ps did not have standing to bring suit because there was no injury in fact, because:

l. There must be some PERSONAL STAKE in the injury which must be concrete and

particularized to that injury/plaintiff.

m. no concrete plans to visit the elephants, only tentative (statement of intent to return, but

no concrete plans or definitive time period)(Purchase of plane tix would have helped)

n. Casual connection between Ds actions and the alleged harm suffered by P is minimal.

(dont work directly with animals, livelihood doesnt depend on watching the animals)

a person who works with a particular threatened animal is affected by a federaldecision, then there is injury in fact that is concrete enough as to you. Its a little trickier

in cases where someone works directly with animals of a particular species.

o. 3 hypos from Scalia Concurring Opinion, with a particular species of animal and if that

animal is threatened there is a concrete and particularized

p. If just seeing an endangered animal.

1. Warth v. Seldin (1975) lack of affordable housing because of Penfield city-zoning practice, group

of people sued.

a. Rules Required for standing: (1) injury wouldnt happen but for the action; (2) a

decision will redress the injury

b. Application Because it is not clear that lower income housing would be built, the Dsactions didnt directly cause an injury to the Ps. enough and plaintiffs failed to meet

causation requirement.

c. Court doesnt know that except for zoning requirement the builders would have built thehouses.

2. Allen v. Wright.a. Ps claiming IRS giving tax-exempt status to private schools that practice racial segregation.

To get that status, normally they have to prove to the IRS that they arent segregating.b. Ps claim - Tax-exempt status encouraged flight to private schools where they didnt have to

desegregate; would prolong segregation.

c. Holding: Same causation problem as in Warth v. Seldin causation of the injury wasnt

direct enough.i. They cant show that taking away the IRS status would mean that the public schools would be integrated.

E. Organizations may sue if:1. The members would have standing on their own

2. The interests of the association is a but for cause of the injury

3. A favorable decision will redress the injury

F. Prudential (Good sense, common sense) limits on standing (not allowed):

1. Claims on behalf of third-party interests, (2. Generalized grievances (including taxpayer suits)

Claims by Ps outside the zone of interests protected by Constitution or statute. (purely prudential

limitation)

Mootness Falls under Justiciability constraint to hear cases, speak to whether a case is ripe for review.

- Circumstances have changed that make the case irrelevant or it has been resolved.- It then becomes moot and wont be heard

- Overcome Mootness in an extraordinary case that would repeat itself but can defy judicial review

1. Exceptions good example is Roe v. Wade

a. Baby had been born by the time it got to the Supreme Court


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b. Would be capable of repetition and would forever to reach the Supreme court where there is a

factual situation going to be repeated where always by the time it got to the S.C. it would bemoot, they were going to go ahead and decide it anyway.

RIPENESS

1. Ripe something in its primewhen its ready for review.

2. United Public Workers v. Mitchell (1947) example. Ps said they were going to violate the act, had

not yet done so. Court held that they couldnt adjudicate a case for violation of something that not yet

happened.

Federalism - division of power between federal/national government and the state governments.1. Federal Power

a. Advantages of National/Federal Power vs. State Power

i. Federalism Advantages (1) uniformity of laws (2) less competition among states

ii. State Advantages (1) can tailor laws to residents (2) easier access to government andmore opportunity for citizens to be involved (3) can experiment with policy more

easily/smaller scale (4) check of federal power

b. Powers given to the Federal Government

q. Articles I (Congress) II (Executive), and III (Judicial)

r. Article I, Sec. 8 Necessary & Proper Clause gives Congress its implied powers,

those not specifically enumerated in the Constitution. enacting ALL LAWS

NECESSARY AND PROPERTO THE EXECUTION OF ITS AUTHORITY. (aka

the Elastic Clause)

a. For interpretation look to the text of the Constitution, Context of the provision,

Precedent, framers intent, etc.b. Federalist Argument very broad interpretation. Necessary means needful,

requisite, incidental, useful or conducive to those laws which are useful to

Congress in exercising its enumerated powers.

B. Powers given to the State Governments

s. 10th Amendment all powers not expressly delegated to the federal government are

reserved to the statest. General Police power power to protect the general welfare of its citizens

McCulloch v. Maryland (1819).

2. Congress chartered a national bank, (2nd time) Maryland imposed a tax on the national bank.

3. Issue (1) Does have Congress have the power to incorporate the bank? (2) did MD have power to lay a

state tax on a federal entity4. HOLDINGS: (1) Yes, Congress had the power (2) No, MD didnt have power to tax. WHY?

5. Reasoning:

a. Power to establish bank not an listed power, but court held that it was allowed/impliedunder the Necessary and Proper Clause (dependent on the enumerated power to collect taxes,

regulate Commerce, borrow money)b. NATURE OF THE CONSTITUTION it doesnt prohibit addition by not expressly stating.

Thinks the N&P clause should expand Congress power.

u. The framers did not mean to enact a code.v. Documents is flexible, broad, open to interpretation


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b. Congress should have ability to choose means it thinks is necessary to perform its enumerated

duties.

c. The Bank is a means not an end means to exercise its enumerated powers; if Congresss abilityto choose its means is constrained, constrains Constitutions ability to fit new situations.

d. Location of Necessary and Proper Clause is in the Text of the Constitution

1. It comes at the end of Article Is listing of Congress powers. Textually and structurally,its placed among Congress powers in the Constitution.

2. Compare the framers use of language elsewhere in the Constitution, leads to the

conclusion that Federalists are right and that this is an expansion, rather than a

limitation on Congressional Authority.

a. Counter Argument: Where does the power of Congress end slippery slope

I) Hole in Marshalls argument what is that ends he is trying to meet.

e. Reasoning of why MD doesnt have the power to tax the national bank

a. Congress/Federal Government Supreme to the states Supremacy Clause

b. When state taxes operations of fed. govt, acts upon institutions created not by ownconstituents, theyre taxing everybody, not just their district or state.

c. by taxing the fed they are taxing the country.

d. State exercising the power would undermine federal governments authority.

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

1. ISSUE : Can a state amended constitution affect or control qualifications for a states representative to

Congress?2. FACTS : Arkansas tried to impose a term limit period for representatives in Congress

3. HOLDINGS: (1) Power to add qualifications is not within original powers of the states and thus

not reserved via the 10th Amendment.

a. States could only RESERVE what existed before or at the time the Constitution was written.

b. No power to set qualifications for Congressional members was set before the constitution was

ratified, and thus the states did not have that power.

4. HOLDING (2) Framers intended Constitution to be exclusive source of qualifications for membersof Congress and the framers thereby divested states of any powers to add qualifications.

a. RULE: Any state power to set the qualifications for membership in Congress must derive not

from the reserved powers of the state sovereignty, but rather from the delegated powers of

national sovereignty.

5. HOLDING (3) Congressional reps are not merely state-centric representatives, but they serve the

national government as a whole

a. Kennedy Concurrence State imposed Term limits are a violation of federal sovereignty

6. HOLDING (4) - Unfairness to the other states, by hurting congress as a whole.

a. DISSENT in U.S. Term Limits v. Thornton

f. Powers reserved to the states under 10th Amend include Post Constitutional powers Congress

didnt exist before the constitution, so how could the states have had that power?? Oxymoron

g. Logic - Congressmen are not national representatives, they serve the people of the state fromwhich theyre elected. Nothing in Constitution says states cant prescribe requirements

h. Analysis/Counter Analysis of U.S. Term Limits v. Thornton

a. Minority/Dissent emphasizes that the people of AR elect state reps, state reps are

changing the AR constitution, therefore the change represents the peoples interests.


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I) Majoritys COUNTER: ARs representatives dont just affect AR. Affects the

nation as a whole. Theyre a part of the larger body of Congress which does/canaffect every state and the term limits are not fair to the rest of the country.

b. Minority/Dissent Constitution is silent, therefore powers are reserved to the states. Any

power not expressly delegated is reserved to states.I) Majority Counter: States couldnt reserve powers they didnt have before the

const. was written

c. Undue Aggrandizement between federal and state power

d. AR reps have to meet MORE requirements than what is in the constitution theconstitution is merely the minimum requirements:

I) Term limits gives states/reps MORE power b/c they have the power to add and

subtract requirements in the first place.

Commerce Clause (History)Article I, Sec. 8, cl. 3 grants power to Congress to regulate commerce with foreign nations, and AMONG

SEVERAL STATES and with the Indian tribes.

Pre Commerce United States- Lacked power to regulate commerce between states under AOC

b. Federalism Q whether the states or federal government should be able to regulatea. Who gets to police the line between state and federal power? What are the restraints on

federal power and should they be enforced by the political or judicial process?

c. Gibbons v. Ogden (1824) Courts first concept of what Commerce was.

i. Facts: N.Y. legislature granted to Livingston (barge operator). Livingston licenses exclusive righ

to operate steamship boats in NY waters between NY and NJ to Ogden. Gibbons began

operating competing steamboat service, in violation of Livingstons monopoly.a. Ogden obtains injunction to stop Gibbons from operating.

j. Issue: Whether the NY monopoly law was pre-empted by the 1793 federal statute cited by

Gibbons giving Gibbons the right to operatea. Holding : Marshall took a verybroad view of Congress power. COMMERCE

INCLUDES ALL COMMERCIAL INTERCOURSE.Commerce is broad enough to

include transportation of goods, navigation through interstate waters, and involvesmore than mere sale of goods. Commerce within one state can be a part of the larger

commercial intercourse if it ultimately ends in a different state.

I) Transactions that are wholly within the state Borders are NOT interstatecommerce.

b. Limits on Congress power to regulate interstate commerce determined by the political

process unless this exercising is in violation of some other aspect of the constitution.

c. Congress began exercising federal regulation under commerce power in 1887 with lawssuch as the Anti Trust Act

I) As national economy grew, everything looked like interstate commerce

II) Court asked whether they should redefine interstate commerce

III) Industrial revolution was happening, commerce needed to be redefined

a. U.S. v. E.C. Knight Co. (1892) SUGE KNIGHT a. FACTS: American Sugar company had 2/3rd of market; acquired Penn. Companies that gave

them 98% control of the sugar refining market.

b. Government sues under Anti Trust Act; D argues refining sugar was purely interstate commerce.

c. ISSUE: Does Congress power to regulate interstate commerce allow it to regulatemanufacturing within a state?


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d. HOLDING : MANUFACTURE OF GOODS IS NOT COMMERCE. Buying and selling of

goods and transportation is commerce. Nothing would be intrastate commerce if manufacturingis not. Bright line rule that federalist prefer.

e. Is the holding consistent with Gibbons v. Ogden?

i. Yes. No commercial intercourse taking place in Sugar case that met the definition ofcommerce put forth under Gibbons.

1. Counter Argument: Have to have manufacturing in order to have commerce. 98%

monopoly in manufacturing clearly effects commerce.

2. Debate comes down to policy decision let the political process decide thebalance.

b. Shreveport Rate Case (Houston E. & W. Ry. Co. v. United States) (1914)

a. FACTS: Different railway carriers, some based in TX, some based in LA. TX regulates pricesfavorably for in-state companies so people will choose to use TX companies over LA companies.

(E. TX to Dallas is 1/5th of a cent per mile; From E. Tx to LA (was 56cents) it was more than 1

cent per mile; closer between LA and E.Tx than between Dallas and E. Tx. 36.8 centsb. HOLDING: SHREVEPORT DOCTRINE Extends the operation of those carriers are purely

local because the power to regulate interstate commerce extends to local activities that have a

close and substantial relationship to interstate traffic, control of local activities is necessary tocontrol interstate commerce.

d. Congress has the power to regulate local commerce when allowing that localcommerce practice would hinder, limit or destroy the interstate commerce . Federal

power trumps when there is a conflict. There needed to be a close and substantial

relationship to interstate traffic with the local activity in order for it to be regulated.

e. SUBSTANTIAL ECONOMIC EFFECTS TEST - Rule from Shreveport Rate casethat stated Congressional regulation fell within the Commerce power so long as the

activities being regulated had a substantial economic effect on interstate commerce.

I) Shreveport v. Knight case not as clear of a conflict in Knight. Knight has to do

with mfg. Whereas Shreveport has to do with transportation.

II) DRAWBACKS : Predictability sacrificed b/c decisions made on case by case basis

III) Current or Stream of Commerce Theory developed by Justice Holmes;

Activity could be regulated under commerce power not because it had an

EFFECT on commerce, but because the activity itself was in or part of thecurrent of commerce.

a. FORMALISM v. FUNCTIONALISM

f. Formalist clear and separate boundaries between federal and state power;formal

bright line categorical rules and no grey area. Congress has much less power to decide if

its federal or state power under formalist theory and interpretation of commerce clause

power is much narrower. Strict textual reading of Constitution generally applied.

g. Functionalistgrey area; spheres of state and federal power; Federal power may expand

or contractbased on circumstances & historical context. Division of power is moreflexible. This approach leaves it to the political process to decide extent of Congressional

power, based on federal or state.

a. Hammer v. Dagenhart (1918) (later overruled by U.S. v. Darby)


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h. FACTS: Congress passed law prohibiting transportation of goods produced using child

labor. Labor laws are normally police power sphere, where states have that power, notfeds.

i. USED A FORMALIST APPROACH feds have to point to something specific in the

constitution that says they have the power to regulate. Used the commerce clause, sayingthat goods made by children are shipped through interstate commerce.

j. HOLDING: Child Labor Act is unconstitutional Congress motivations were to reach

too far into the state sphere to regulate intrastate. St

k. New Deal Era Cases Court was hostile to FDRs New Deal Legislation, they didnt

think the countrys poor economic condition gave cong a new/unlimited slate of power

k. Schechter v. U.S. case (Sick Chickens) (1935)a. Issue: validity of the National Industrial Recovery Act (NIRA), allowed president to

adopt codes of fair competition, and do things such as prescribe minimum wages andprices, collective bargaining.

b. Facts: Local poultry slaughterhouse only bought and sold its products locally, within

NYC.c. Holding: Court invalidated the law.

d. Reasoning:I) (1) Congress power went beyond regulation of interstate commerce - local

activity was not within the current of commerce. Schechter company only boughtand sold locally.

II) (2) Not affecting commerce - effects on commerce were indirect, not direct or

substantial.

b. Framework for Commerce Clause

l. Who is better to regulate commerce, state or federal government?m. Who should police the line, the court or the political process.

Functionalism vs. Formalisma. Formalist - separate spheres of state and federal power. What belonged to state, was

theirs, what was the feds was theirs.No overlap. Hard boundary between state and

federal power. Strong role for the court, less deference to Congress, bright lines.

b. Functionalist - Some hard areas of state and federal power, but there is a grey area in

between the two. Boundary is more flexible and might fall in favor of expanded state

power OR expanded federal power. Case by case rules, lesser role for the courts, andmore deference to congress in those gray areas.


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Commerce Clause (Shift in Approaches)

NLRB v. Jones & Laughlin Steel Corp (1937)

Turning point in the Court's jurisprudence; Foundation for the modern test -- that Congress may

regulate a local activity if it substantially affects interstate commerce. Court abandoned the old

direct/indirect effects test -- the question is not whether the effect on interstate commerce is direct or

indirect, the question is whether it is substantial

c. FACTS: Jones & Laughlin is a natl corp.; 10 people fired at PA plant; claim fired b/c they belonged to

a union. NLRB stated company needed to reinstate them. J&L was a steel corporation owning

operations involving steel mining, shipping, manufacturing, etc.a. Court wanted to move New Deal programs forward, looked to a functionalist application of the

Commerce Claused. ISSUE: Does the National Labor Relations Act (NLRA) go beyond Congress power to regulate

interstate commerce?a. No. The act was constitutional on its face.

e. HOLDING: For industries organized on a national scale, a labor dispute at a manufacturing plant

would have a SUBSTANTIAL EFFECT on interstate commerce.f. Reasoning: (1) Plants are spread out all over the country, not just contained w/in PA. (2) Substantial

Effects test Jones business manufacturing would have a substantial or profound effect on interstate

commerce because theyre a national company. Must have a close and substantial relation to interstatecommerce that their control is essential to protect commerce from burdens and obstructions and it can be

regulated.

n. Consequence of NLRB decision irrelevant whether activity occurs before, during or afterinterstate movement (does not have to be in the current of commerce) as long as the regulated

activity has a SUBSTANTIAL ECONOMIC EFFECT on interstate commerce.

a. Activity can occur before or after the interstate commerce

b. Effect on interstate commerce must be substantial

o. Functionalism v. Formalism:

a. Uses the test in a FUNCTIONALIST. Looks at the circumstances. Facts of the case tellus where the line should be between state and federal power.


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b. Labor unrest will have a direct effect on interstate commerce even if the labor unrest on

interstate commerce in a different industry with a different economy would not have thesame effect.

Wickard v. Filburn (1942)

a. Established the principle ofaggregate effects test.b. FACTS: Farmer (local activity), grew own grain to use for food, flour, feed for livestock and for seed .

a. Agriculture Adjustment Act limited how much wheat could be produced and consumed set

quotas; harvested double his quota, refused to pay the finec. HOLDING: Wickards activity did amount to interstate commerce because the aggregate activity of

others similarly situated had a substantial effect on interstate commerce. rejects manufacturing is not

commerce formalist approach and the direct/indirect effects test. FUNCTIONALIST APPROACHd. REASONING:

a. Consumption has market effect farmers as a class or as a whole Consumption locally

reduces the amount of wheat entering market, thus effecting commerce of the wheat market.b. Aggregate/Cumulative effect - plaintiffs violation itself did not effect interstate commerce,

but the TOTAL effect of all farmers going over the quotas has a substantial effect on interstate

commerce.

p. RULE: AGGREGATE/CUMULATIVE EFFECTS TEST - No category beyond federalregulation if it can be connected to interstate commerce via substantial effects. Substantial

effects can be found through taking together the local non-commerce activities of many otherssimilarly situated.

a. PRO WICKARD ARGUMENTS:

I) If Congress cant regulate local activities that completely messes up interstatecommerce, then they cant exercise their regulation of interstate effect. If it has a

substantial effect on interstate commerce, it should come under Congress power

regardless of whether the power is purely localb. CON WICKARD ARGUMENTS:

I) Too Intrusive - Should be example of completely local activity stuff that

Marshall talked about in Gibbons,, if anything is left for state regulation, whateverapproach used, it is purely local activity and should be out of Congress reach

II) Slippery Slope argument if Congress can regulate this type of activity, it can

regulate everything. Congress power limited to interstate commerce, even if

manufacturing could be seen as commerce, how is growing own wheat andfeeding it to own cows commerce?

III) What is local? Too broad of an expansion of federal power to commerce,

otherwise nothing is off limits to federal power.

United States v. Darby (1941) DARBY REVERSES HAMER

a. Facts: Fair Labor Standards Act prescribed minimum wages and maximum hours for employees

engaged in the production of goods to be traded in interstate commerce. Darby felt the government wastoo intrusive.

b. Holding: (1) Prohibition on movement of certain goods in interstate commerce clearly falls within the

power to regulate interstate commerce. (2) The motive of the regulation doesnt matter as long as theregulation itself conforms with the Commerce clause

c. Reasoning:

q. Relied on Shreveport Doctrine (stream of commerce argument intermingling of transportation,manufacturing, agriculture, if those activities are intermingled with interstate commerce, they

can be regulated.

r. Is not a 10th Amendment issue is irrelevant in this case.


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Heart of Atlanta Motel v United States (1964)

a. D refused to rent rooms to African Americans,

b. HOLDING: The commerce clause covers for regulation of intrastate activity such as the renting a room

to someone within the state?a. Congress can regulate this activity (Actually used discrimination in places of public

accommodation under the Civil Rights Act of 1964)

c. Ps arguments any time a room is rented, it becomes interstate commerce, because of traveling people

across state lines, food moving in interstate commerce, etc.

Katzenbach v. McClung (Ollies Barbeque) Blacks could only order takeout, whereas whites could eat

insidea. Court held that a substantial amount of the food had moved in interstate commerce,

b. Supreme Court disagreed. What was the effect on interstate commerce? Racist policies make it less

likely that businesses will locate in Birmingham, because if they employ Blacks or others of color, thosepeople wont want to work there.

RATIONAL BASIS STANDARD for enforcing interstate commerce actions under Title II

court says as long as its rational to think that there is a substantial effect by local activity on

interstate commerce, that is good enough for the courts. Very limited role for the court, highlydeferential standard of review. NEEDS TO NOT VIOLATE SOME OTHER PART OF THE

CONSTITUTION.


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Commerce Clause LIMITING CONGRESS COMMERCE CLAUSE POWER(need to addGonzales v. Rich for Changes in commerce clause power)

CURRENT COMMERCE CLAUSE ANALYSIS

U.S. v. Lopez (1995) Gun Free School Zones act, wanting to make it federal crime to a knowingly possess a

firearm in a school zone. Have reasonable cause to believe or know its a school zone.

a. Three categories of activities Congress can regulate under the power of interstate commerce:

I) Channels of Interstate Commerce (i.e., Darby prohibition on shipping goods on highways

and waterways would be this type of regulation)

II) Instrumentalities of interstate commerce and things or people in interstate commerce.

(overlapped with the first a bit) (i.e., a railway as in Shreveport case)

III) Local activities that have a SUBSTANTIAL relation to interstate commerce (Shreveport

case) or that substantially effect interstate commerce. MOST IMPORTRANT (greyer) category

1. Specific jurisdictional element

2. Is the activity economic

3. Are there Congressional Findings/Rational basis?

-To Sweeping? Swallow-up local control?

4. What is the link between the activity and interstate commerce? Is there a

stopping point?

s. Governments Arguments:

a. (1) violent crime effects interstate commerce (costs of injuries, medical care, societal

costs of death), also the dampening effect on interstate travel.

b. (2) Link b/t education and the possession of a firearm in a school zone means a lesseffective learning environment, which means poorly educated students, which means

students less prepared for the job market and THAT has a substantial effect on interstate

commerce.c. (3) Violent crime is ordinarily left to the states to regulate through their police powers.

t. HOLDING: Possession of firearms near a school no substantial effect on interstatecommerce; Link between the effect of guns on schools and interstate commerce is too tenuous

and indirect and theres no logical stopping point. Also violates states police power.

u. REASONING:

a. 922(q) doesnt have a specific jurisdictional element (This section was the Federalpower to regulate firearms). Which would ensure that firearm possession affected

interstate commerce through case-by-case inquiry.

i. Nothing in the statute that requires the government show that this particular

firearm shows a connection with commerceii. NO WHERE is there an element that requires the prosecutor to prove federal

jurisdiction in every case do not have to prove it substantially effectedinterstate commerce. If we did have it, that would be a JURISDICTIONAL

ELEMENT OF THE STATUTE.

II) Is the activity economic - aggregate effects test (Wickard) Cant rely on thistest if Congress is trying to regulate a non economic activity, which guns in

school zone is.


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III) Congressional findings - Congress is not required to make formal findings, but if

they had, it would have been helpful to the court to decide the case. If there wereCongressional findings setting forth the link between the two, would help the

courts analysis and might help the law meet the RATIONAL BASIS test, but

would not necessarily change the courts analysis.IV) Link between activity/interstate commerce Congressional regulation of guns

in school zones would be a taking of the police power that is reserved to states

is there then a logical stopping point for federal power?

b. Dissents Arguments/Reasoning used the rational basis test for whether Congress couldhave found a significant or substantial connection between school violence and interstate

commerce.

I) Majority opinion runs contrary to cases upholding Congress power underCommerce Clause despite less signif. connections to interstate or foreign

commerce than school violence.

II) Rejected majoritys distinction between commercial/non-commercial activity line too hard to draw; schools could fall on the commercial side of that line.

i. Threatens legal certainty (stare decisis)

c. Congress later amended the statute to put in a jurisdictional element and congressionalfindings.

I) Congress put in the same jurisdictional hook used in almost all other federal gunlaws and all these laws havent been overturned.

II) Amended Lopez statute not yet challenged

United States v. Morrison (2000) sexual assault case - Congress passed law providing federal civil remedy

for victims of gender motivated violence. Congress Enacts under: (1) Section 5, 14th Amendment (2)Commerce Clause

b. COURT HOLDING: Local activity, need to look at Category 3 substantial effect on interstate

commercea. There is nothing economic about the activity

b. Aggregate test is NOT applicable to a non economic activity

c. Jurisdictional element Court says theres no jurisdictional element, look to the language of thestatute. Plaintiff doesnt have to show intent.

d. Non-jurisdictional element nothing that requires a direct to the Interstate Commerce Clause.

e. Congressional purpose of a statute under Lopez motive is irrelevant

c. Rational Basis/Congressional Findings Congress has many of them; violence against women effects

commerce by deterring women from interstate travel, workforce mobility, costs.

a. Heart of Atlanta not applicable - what Congress is regulating in Morrison is a further stepremoved from Interstate Commerce than what was regulated in Heart of Atlanta.

b. More persuasive Congressional findings to support findings (Court didnt think it was enough in

Morrison)

i. Amend to include use of a weapon moved in interstate commerce in a crime ofviolence against women. This adds the jurisdictional hook. Plaintiff would have to

prove that her assailant used a weapon that moved in interstate commerce. Suggested by

both Lopez & Morrison this would change outcome.1. Is the change sufficient? NO.

i. Step further removed from interstate commerce, not trying to regulate the

possession of a weapon, but the use of a weapon in a crime against women.Weapon is secondary to the crime trying to be regulated. Link is more

tenuous.


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1. Local Activities that Substantially affect Interstate Commerce (4th

Element) Must ask whether the activity is economic?

2. Different Jurisdictional Hook - A personwho crosses state lines with the intent to

commit a crime of violence motivated by gender shall be liablea. Is the one step removed problem avoided using this? Same local activity,

jurisdictional hook is that the assailant crosses state lines himself. Its the person

who is committing the act of violence.

b. Counter Argument: This doesnt apply in every case; this is only in cases whereassailant crossed state lines with the intent. Jurisdictional HookDOES NOTHAVE TO BE ECONOMIC

1. The activity Congress is trying to regulate itself is what has to beeconomic.

c. Doesnt matter what Congress motive is as long as they fit it into one of the three

parts of the standard for the Commerce Clause. (Criminal statute used thisjurisdictional hook)

d. Jurisdictional Hook STILL might be too far removed from interstate commerce.(i.e., activity has questionable impact on it) Focus is on the local activity that is

actually being regulated.External Limits on Federal Power: State Autonomy, Federalism, and the 10th Amendment

v. Separation of Powers formalist v. functionalist approaches.a. Dual Federalism - sees 10th Amendment and structure of government as a constitutional

concept that Congress may not invade the powers reserved to the states.

I) When Congress enacts legislation that encroaches on state powers, court has thepower to void the legislation and enforce the divide between the national and state

governments

i. More like the Formalist approach rigid, enforceable by the courts; serves asa defense against too much change.

ii. Courts can enforce the rigid divide

II) Cooperative Federalism - acknowledges division of authority between two levelsbut does not construe it as a hard and fast limit on federal power. It is not a

judicially enforceable restraint on Fed. power.

i. Sees more flexibility in the divide of federal and state power.ii. Generally encourages policy innovation and flexibility.

iii. See political process as way of determining where the divide between

state/federal should be.

b. 10th Amendment serves as the primary constitutional, textual limit on Congress power.

I) The powers not delegated to the United States by the Constitution, nor prohibited

by it to the States, are reserved to the States respectively, or to the people.

c. State Autonomy (10th Amendment)

I) Some limits expressly stated in Art 1, Section 9.II) Federal regulation of state regulation of private parties

III) Encouraging & providing incentive vs. Compelling & Coercing (anti-

commandeering)

National League of Citites v. Usery (1976) (Dual/Formal)

a. Government tried to increase state and local employees min wage and max hours.


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i. MONETARY INCENTIVES State charge for other states bringing waste in; fees go

into fund that rewards states for solving own waste problem.1. HOLDING: ALLOWABLE. Court says that these are plainly constitutional, just

encouraging, which is allowable.

ii. ACCESS INCENTIVES longer state fails to comply with the act; states that acceptwaste could not comply with those who are trying to

1. HOLDING: ALLOWABLE. State could shut out another state from bringing

radio active waste into their dump site. Increasing costs of disposal would be

authorizing states to REGULATE ACCORDING TO FEDERAL STANDARDSOR BE PREEMPTED by federal law and federal government would exercise its

commerce power.

iii. TAKE TITLE PROVISION State would have to take title to all radioactive wastegenerated in the state and be responsible if the state did not comply with the act, and thus

state would be responsible for waste

1. HOLDING: TAKE TITLE PROVISION VIOLATED THE 10TH

AMENDMENT. Crosses the line from encouragement to coercion. the two

choices really arent choices at all.

a. dont have authority to pass a law forcing state to take title. Same as tryingto control the state treasury.

b. Regulate the way we want you to or we will regulate it ourselves. (choiceon its face but turns out it really isnt) Careful this might be a test

quesiton

iv. REASONING:

c. ANTI COMMANDEERING PRINCIPLE: Fed. govt is commandeering state

treasury, controlled by the state legislature. If waste transferred to state, state willhave to pay to get rid of it and the fed govt will be telling state to spend its

resources to get rid of the waste. Not a REAL CHOICE to states. Cant force

states to pass legislation. Goes to the essence of state sovereigntyd. Commandeering allows Congress to escape political heat for unpopular

decisions.

4. Government/Courts Arguments/Counter argumentsa. Govt argument #1 - Strong federal interests should overcome the state

sovereignty interests (in disposing of radioactive waste)

1. Court said no balancing of federal and state interests. No matter howstrong federal interest, there is not constitutional authority that would

allow Congress to require states to regulate in a certain way.

b. Govt argument #2 state judges are required to apply and uphold federal law.

So why not make the legislature abide by federal law.

1. Court responded courts ability to bind state judges comes directly from

the constitution in Art. 6 sec. 2 Supremacy Clause (mentions statejudges specifically). Nothing is stated about the legislature.

c. Govt argument #3 - Congress should be able to act as a referee to the states.equitable for all states to take responsibility for disposal of own waste within their

borders. Okay for Congress to enforce the compromise made by states reps in

Congress1. Court responds that the link wasnt really there. Still has to stay within

the bounds of the constitution. No constitutional provision to enforce the

compromise. Thats great, but you still dont have that power.


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d. Govt argument #4 -NYs reps agreed to the law as written, benfitted from it,

and now NY wants out of the law and its not fair.1. Court responds that NY may have voted for it, but that didnt

constitute approval by the state. Court protects the people, not the state

officials.

5. MAJORITY OPINION IS AN EXAMPLE OF STRICTFEDERALISM/SOVEREIGNTY. Cannot trust the political process.

6. Whites Dissent says that the law the court invalidated is a perfect example ofcooperative federalism (Garcia) . States coming together to reach a compromise to

address the national problem of the disposal of waste. We should let the political process

work in this way, its supposed to do.a. the court is compromising the sovereignty of other states in order to uphold NYs

sovereignty

b. Court doesnt understand all of the political and policy arguments GARCIAshould control in this case. Garcia court said the role for the court is to step in

when the political process cant be trusted, but otherwise leave it to Congress.

c. Congress can pass a law with the same effect/purposes if it bases it on the threatof preemption or the monetary incentives.

a. Are Garcia and N.Y. consistent? Yes.

I) Garcia Majority federal government can tell a state how much it should pay thestate employees unless flaw in process.

II) BUT NY Majority federal government cannot force state to take responsibility

for privately created radioactive waste in their borders.III) Synthesis Garcia (fed gov acting as employer) doesnt raise the same kind of issue

that New York does, New York (fed gov regulating as a gov)is more intrusive

into state sovereignty.IV) Its o.k to tell the states they need to regulate something, the feds just cannot tell

them how to it. States are allowed to meet the requirement however they see fit.

Printz v. United States (1997) federal commandeering of executive officials

a. FACTS: Brady handgun law; firearms dealer 5 day waiting period. Contact area chief Law

enforcement officer.

b. ISSUE: Does forcing local law enforcement to conduct temporary handgun background checkscommandeering the state executive branch by compelling/forcing state officials to execute

federal laws.

c. HOLDING: Temporary provision is not constitutional. . Congress cannot circumvent theprohibition on making states enact a federal regulatory program (as in N.Y. v. U.S.) by

conscripting state officers directly to administer or enforce a federal regulatory program.

Commands are inconsistent with system of dual sovereignty. Fed gov is forcing the people who

execute policy, instead of the legislatures who make the policy = not good.d. Whole idea hides political accountability, being mad at state when fed is directing the state

officials to perform ideas, (similar to new york even though dealing with state executive officials

instead of stat legislatures)

e. REASONING: (Government vs. Majority Courts Arguments)

i. Government argues: early congressional laws that seemed to say Congress could order

states to execute1. Court responds that those are just about state judges, state judges are special

because theyre mentioned in the supremacy clause


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ii. Government argues - a difference between regulating and requiring execs to implement

policies. These are just MINISTERIAL TASKS1. Court responds - this argument wont work because not a clear line between

execution and policy making; no meaningful way to distinguish between just

execution and what is policy making. Line would be too impreciseiii. Govt argues - the political accountability isnt at issue as it was for the majority in NY

v. US. Everyone knows that it is a federal act.

1. Court responds - the purchaser isnt going to realize that its federal government

making and implementing the law. (from OConnors opinion in NY v. U.S.) key difference is political accountability (in coercion v. encouragement).

iv. Govt argues (supported by dissenters in the case) Federalist 27 (Hamilton) laws of

federal govt as to enumerated powers will become the SUPREME LAW OF THELAND to the observance of which all officers.in each state will be bound by the

sanctity of an oath. Fed. 27 had to do with original intent of the framers.

1. Souters dissent can require states to implement regulation. Distinguish betweenstate legislature and the state executive. Executives are more analogous to state

judges rather than state legislators.

2. Court responds -MAJORITYs interpretation state officers would have totake a role in implementing federal policy, cant read the passage as supporting

this principle, because there is no way to read the passage as applying ONLY toexecutives,. Only means that they cant obstruct federal law, not that they have to

enforce it.a. very tough to draw the line between making state policy and executing of

the laws.

Separation of Powersgovt less efficient; checks and balances; inefficiency as protecting individual rights.

b. Executive Encroachment on Legislative Powers

c. Three Branches Checks and balances also come from the overlap of power, blending of thefunctions

A. Purpose? (1) kept one branch from becoming too powerful (undue aggrandizement) (2) Seen as

a guard against tyranny. Framers were most concerned with concentrating too much power in thelegislative branch Difference between Article I and Article II

1. OVERLAP BETWEEN CONGRESS/EXECUTIVE - what differences???

1) Congress powers are enumerated. Specifically listed.

2) The President has an unqualified executive power. This difference in languageand in the structure of the constitution gives rise to the argument that thePresidents powers are more expansive than Congress(i.e., that the

President has power not specified in constitution.

i. COUNTER: Art. IIs reference to exec. power is merely descriptive.

Unlike Congress, President has authority to exercise unspecified powers.

Grant of authority broader than what is in the Constitution.

a. Executive Power

I) Executive Orders - issued by the President or Exec. Agency and they have the

force of law. Easily repealed or overruled by another Exec. order.II) Executive Agreements - between two nations; similar to a treaty. President binds

the United States. Must not be ratified by the Senate. Congress must be informed,

can be nullified through legislation. Not binding on the next President unless heconsents.

III) BOTH of the above criticized as an end run around law and treaty making.


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Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952)

d. FACTS: Labor dispute b/t steel co. and employees, Employees strike; Truman felt steel was necessary tothe war effort in Korea; Issued Exec. Order ordering Sec. of Commerce to take control of steel mills and

keep in production.

e. The Exec. Order was not pursuant to any Congressional authorization or a statutory authorization (Taft-Hartley Act)

f. ISSUE: was the seizure a valid exercise of Exec. Power?

g. HOLDING: No. Court held that if it is not expressed in the Constitution under Article II or allowed by

some authorizing federal legislation, the President (executive) does not have that power. Was noexpress Congressional authorization, only Congress has power to do what President did.

h. REASONING: (Justices Black): FORMALIST APPROACH

a. Constitution; which ones may have applied?I) Vesting of Exec. power in President Art II sec.

II) Take care faithfully executed Art II Sec. 3

i. HOLDING: the order is akin to legislating. Does not direct that aCongressional policy be executed in a manner prescribed by Congress, but

that a presidential policy be executed in a manner prescribed by the President.

III) Commander in Chief power - Art II sec. 2 i. HOLDING: War effort is in Korea, not US so this isnt a theater of war. This

wasnt about a theater of war.i. Note: Justice Jacksons concurring opinion became most relied on. 3 categories of executive decisions.

a. Pres acts pursuant to express or implied consent of congressb. Pres. act on his own, (congress is silent) leaves a twilight zone for congress to maybe accept.

c. Pres acts against the will of congress. (where this case fell from)

j. Policy if congress would have upheld Trumans decision, it would have taken 2/3 vote to overturn it(amendment) with this decision, Truman just needed 51% of the votes to support his decision.

k. Justice Jacksons Concurrence(More followed than Majority) FUNCTIONALIST APPROACHa. Key Difference w/ Majority: Acknowledges that President could have powers beyond a strict

reading of Article II, even in the absence of authorizing legislation. Powers are not fixed, but

fluctuate.b. Three categories of authorized Presidential Action: (His power + Congress

approval/implied)

a. (1) Express or Implied authority - precedent in the Constitution or in statutory law

passed by congress + presidents powers.

b. President can rely on maximum authority, max power. that he has PLUS all of the power

that Congress can delegate to the President.

i. Certain powers of Congress cannot be delegated to the President and onlywhen President acts under a non-delegatable power can it be found

unconstitutional. .

ii. Presidents authority is at its strongest in this category.

iii. only way his actions are unconstitutional:1. if his action is way outside of federal authority or it falls within, a rare,

non-delegable powers of congress.(ie. congress trying to give the

power to declare war).

c. (2) Congress is Silent/Concurrent Authority - (hasnt said one way or the other) - the

President has all the power that belongs to the Exec. PLUS the zone oftwilight whereCongressional and Presidential power overlap. Blending of powers; President has

anything that is in the overlapping zone when Congress is silent. Government will

argue that there is IMPLICIT AUTHORIZATION.


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i. We dont know whether Congress would or wouldnt prohibit or allow

Presidential authority. Zone of overlap is much smaller than in the firstcategory. IT DEPENDS.

d. (3) Express or Implied PROHIBITION from Congress President acting on his own.President only has those powers delegated in the Constitution. Jackson could have

interpreted Congress actions as silence, but because of the refusal to include the seizure

power in the Taft Hartley Act, meant that Congress meant President shouldnt have the

seizure poweri. Presidential authority is at its weakest under this category. President only has

thepowers that are expressly delegated under Article II.

ii. Only way its constitutional for pres to act is if it is expressly stated by const.,his exclusive power to act.

President left circle. White in circles are Congress non-delegable powers. Middle sections are the overlap. No

overlap in express prohibition. Pink is twighlight zone.

Dames & Moore v. Regan (1981)

1. Facts: Iran hostage crisis, embassy seized. Issued Executive Orders Freezing Iranian assets in the U.S.as part of the hostage release, provided claims should be settled at the International Claims Tribunal(binding arbitration) .

a. D&M contracted with Iranian government to inspect Iranian nuclear plants, hadnt paid D&M to

terms of the contractb. D&M/Ps claim President exceeded constitutional and IEEPA authorization (2) Denial of Due

process by imposing decisions of claims tribunal

2. Issue: Did President have authority to (1) Freeze Iranian assets (2) Require all claims to be sent tobinding arbitration of the Claims Tribunal

3. Holdings: YES. President had authority to do both. There is (1) Express (IEEPA act from carter

admin) Congressional authorization for freezing of assets and (2) Implicit Congressional authorization

for submitting pending claims to the International Claims tribunal. (general idea of the legislation gavepresident broad power and implied the power)

4. Reasoning: (Uses Jacksons concurrence framework from Steel Seizure case) modified jacksons

opinion executive power IS NOT CATEGORICAL and is more like a SPECTRUM or CONTINUM ofpower ranging from express authorization (max authority) to express prohibition.(min authority), more

functionalist, not a series of bright line rule. A sliding scale.

a. Issue 1: Freezing the assets and removing them from the reach of the courts was authorized byCongress in the IEEPA. EXPRESS AUTHORIZATION. Presidential power at height. Actions

are presumed to be constitutional. Potential Problems:

i. Could be prohibited if Congress statute was unconstitutional in the first place;


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ii. If Congress has the power and can do it itself, but this power belongs EXCLUSIVELY

TO CONGRESS and Congress cant delegate it to the President.iii. Court holds that neither at issue here, so this is okay.

b. Issue 2: Terminating claims in federal court and requiring them to be adjudicated in claims

tribunal: NO FEDERAL STATUTE that expressly authorizes this action by the President. Fallsinto Category 1 above of action, but its less clear than in the first Issue.

i. THERE IS IMPLICIT AUTHORIZATION BY CONGRESS. (Pg. 347) Court looks

to (1) The International Claims Settlement Act (other federal legislation IEEPA and

Hostage Act imply broad scope for appropriate presidential action) (2) History priorcourt cases and legislative history. History indicates that Congress has tacitly approved

similar acts (Pres has done this b4 and congress hasnt complained so they dont mind,

what it DOESNT do is make unconstitutional acts constitutional)1. Court may have found differently than steel seizure because Congress silence:

2. Exam: when it looks like silence, argue both implied authorization and implied

prohibition.3. Little tougher in a true emergency the court will give more deference to

presidents authority, Steel case wasnt a true emergency compared to this case.

ii. This matter was clearly about Foreign Policy, not domestic policy as in the Steel Seizurecase

1. Rejection of Formalist approach how different if used Blacks analysis from Steel Seizure case?

Where may Black have found authorization?

a. Claims Tribunal no federal legislation that expressly authorizes. Look then to the Constitution.

b. Perhaps under Article I, Sec. 8, cl. 9 to Constitute tribunals inferior to the S.C. OR The

Commerce Clause regulate Commerce with Foreign nations.

2. Why does Functionalist approach make more sense in D&M case?

a. Makes more sense in dealing with foreign affairs or a National Emergency, but theres nothing inthe standard makes one think it turns on whether or not its an emergency or dependent on it

being a foreign affairs question.

b. Political Process between the President and Congress is a sufficient protection for casesinvolving the separation of power. Because of all specific Constitutional safeguards aboutfederalism, there are not detailed, specific, constitutional checks in these instances than it is with

separation of powers. Role in overseeing Presidential action is limited to the Congressional

approval standard.

Executive Privileges and Immunities

l. Basis for Legislative Immunity Article I, Sec. 6, cl 1 - Speech & Debate Clause Members ofCongress shall in all cases be privileged from arrest during attendance in chambers or speech and

debates.

m. Difference between Privilege and Immunitya. Privilege cannot force a legislator to testify about the legislative process. Similar to the

attorney/client privilege. This information cannot usually be introduced in a court proceeding.

b. Immunity - exemption or protection from being named a party in a case or other proceeding.Cant sue a legislator for his legislative act.

i. Cant sue a legislator for passing a law.

i. Absolute Immunity blanket, absolute protection, as long as it falls within sphere of privilege or

immunity, its absolutely protected. No way they can be sued for any legislative act they introduce

or pass.


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a. Debate on a bill is absolutely protected from a civil action for introduction of a bill or

debate on a bill for certain statements.

ii. Qualified Immunity Limited, not absolute or blanket protection. Some things are protected

under some circumstances. Nearly all government officials from all levels (police officers, to highranking officials) enjoy QUALIFIED IMMUNITY.

a. Some things they can be sued for, and other things that you cant.

b. Key is the reasonableness of the officials actions.

c. Want Congress to be able to engage in vigorous debate and to take action w/out fear ofpersonal liability or suit.

b. Reasons for Executive Immunity - Same Reasoning might apply for the President (1) want him to be

able to concentrate on governing (foreign & domestic affairs) without fear of being sued for an unpopulardecision. There is no coordinate textual protection of the President in the Constitution. It is silent on the

matter. (2) Separation of Powers - being subject to civil liability means thejudiciary is making

pronouncements on the official actions of the President in his executive branch duties. (3) TimeConstraints want President to govern, not spend all time in court defending against lawsuits.

i. the pres has the greatest scope of official immunity.

United States v. Nixon (1974)

i. Facts: Watergate scandal, break-in of DNC headquarters, Nixon refused to turn over some of theaudio tapes and documents that implicated his involvement in the plot to the special prosecutor on

the claim of Executive Privilege.ii. Issues: (1) Is this a justiciable issue or a political question best left to the exec. branch to decide? (2)

If not a political question, does Executive Privilege apply to the case so president can avoid

presenting the tapes? (3) Does the Constitutional silence in Article II on grant of ExecutivePrivilege or Immunity mean a Qualified or an Absolute Privilege (if one exists)?

iii. Holding (1) This is a justiciable issue (2) Absolute Executive Privilege does not apply. (3) Executive

Privilege or Immunity exists, but only in certain instances and it is qualified, not absolute. Even thequalified privilege may be outweighed by need to develop facts in a criminal proceeding but may be

upheld if it involves matters such as national security, military, etc.

iv. Reasoning:a. Executive Privilege or Immunity is implied (not stated) in the Constitution, because w/out it,

President couldnt function. (why we know pres. has the immunity)

b. He gave a general reason not specific, and this was a criminal proceeding and not a civil

proceeding. The public interest in a criminal trial out weighs the public legislative interest.c. An Absolute privilege would aggrandize the President and his power at the expense of the

judicial and legislative branches. Could also impede courts ability to achieve justice through the

criminal system.d. Determining type of privilege that applies depends on (1) circumstances and the basis of the

claim of privilege is it generalized, or is it particularized (not turn over this specific

information for this specific reason) (i.e. for national security reasons); and (2) Type of case

involved is important. Interest of confidentiality cannot trump over the interest of dueprocess in the fair administration of criminal justice. Need for info in a criminal proceeding

will always trump the qualified privilege.

c. Court did not believe that the possibility of infrequent subpoenas for conversations (like the one

at issue) would have an impact on the candor of discussions the President has with his advisors.

d. Nixon did not claim a sufficient basis under either of the above circumstances to prevent the

court from ordering him to turn over the tapes. He merely said that he shouldnt have to because

they were privileged communications between he and his staff members.


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e. Nixon was either going to be impeached for (a) obstruction of justice or (b) disobeying theSupreme Courts order to turn over the tapes Nixon resigned on August 9, 1974, the House had

voted on the two passed articles of impeachment.

a. Court said that he may have had a better claim had the claim been based on a matter of

foreign affairs, the military, or national security.

f. Courts decision helped avert a potential constitutional crisis. (1) Good prevented politicalupheaval and uncertainty; protected countrys interest. (2) Bad can be argued that this was a

political matter best left to the coordinate branches (exec. and legisl.) and the political process

(constitutional process of impeachment) to decide.

g. Hypothetical what if Nixon had claimed tapes contained military secrets? Would court have

decided differently?a. Court usually defers to President on military and national security matters. If it is clear

from external evidence that a state secret is involved, court may grant the privilege

without examining the information. Then, what good is the court?b. If they are not satisfied that a state secret is involved, there is a problem because the

courts are deciding whether the tapes actually contain military secrets and that might beout of the scope of their power.

c. If court doesnt review then pres, could always just say that there were military secretsand it would never get reviewed so tough.

h. Hypothetical 2 Congress rather than court ordered President to submit to an In Camera reviewof Presidential documents. Does it seem like Congress could force President to turn over

Presidential documents and Congress would determine whether anything in the documents could

be kept secret?

Clinton v. Jones (1997)

i. Facts: Sexual harassment claim against Clinton from before he was elected President in 1991.Clinton did not claim absolute immunity or that the President couldnt be sued for private conductnot related to his official duties, but claimed TEMPORARY IMMUNITY from having to defend

against the suit while in office.

ii. Clintons reasoning included:a. Practical considerations want the President while sitting as President to spend time with his

official duties, not defending against lawsuits, because its bad for the country.

b. Separation of powers with the judiciary applies. Could turn into a power struggle between twobranches.

c. Flood of Litigation - Potentially there would be a lot of suits like this or in different cases.

iii. Issue: Does the President have a temporary qualified immunity from being sued while in office foreven unofficial acts or conduct?

iv. Holding: No. The President can be sued for unofficial act or conduct and does not have any even

temporary privilege of immunity the suit cannot be postponed until the President leaves office ifthe conduct/action is unofficial in character.

v. Reasoning: (for no temporary qualified immunity just while President is in office)

a. Practical reasons: Wouldnt even be necessary for him to be there - -court could work around hisschedule, do discovery without him.

b. Theoretical not really concerned about separation of powers argument; no danger Court would

become too powerful.


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c. Unlikely that there would be a flood of litigation of this type and even if we did, there are all

types of structures in the courts that can dispose of them and weed them out early on in thelitigation.

d. To the extent this raises any kind of National Security issue, courts know how to deal with it,

they respect the sphere of the president in that matter.vi. Breyers Concurring (1) more of a functionalist approach didnt see a problem with postponing

the suit until President out of office and does cite the flood of similar litigation argument. (2)

Lawsuits could have political motivation (3) District courts might not be equipped to handle suits vs.

the President motivated by politics.

I) ANALYSIS OF MAJORITY APPROACH (PRO MAJORITY)

i. Courts decision could apply to unofficial conduct that happened whileClinton was President.

ii. President is not above the law, unofficial actions are subject to courts,. Most

concerned about protecting official decisions and conduct.1. Counter argument see Clintons arguments to postpone the suit.

a. Why would postponement be inappropriate? (1) Violates Jones due process

rights. (2) Because we want to know if it actually happened and if it is true,because it might affect our votes and not protect him until he leave office

b. Counter: Political Process of impeachment can take care of publics need toknow if his actions are bad enough.

II) Suit was dismissed because settled out of court. December 11, 12, 1998 HouseJudiciary committee approved four articles of Impeachment resulting for

Clintons depositions about Lewinsky, in regards to the Jones suit.

i. 1st article of impeachment perjuryii. III obstructing justice, delay, conceal and cover up evidence regards to the

Jones lawsuit.

iii. February 1999 Clinton acquitted 55-45 on Perjury, 50-50 on obstructioncharge.

a. Capstone: 2000 Presidential Electionsi. Judicial Review, Federalism, Separation of Powersj. Bush v. Gore