Constitutional Law Complete Outline PDF

PART I– JUDICIAL POWER JUDICIAL REVIEW AND ADVISORY OPINIONS Marbury v. Madison 4 Main Takeaways: 1.​ Establishes a general rule that law affords a remedy for any invasion of a legal right 2.​ That general rule applies to executive officials who violate a legal right (the courts can provide a...

PART I– JUDICIAL POWER JUDICIAL REVIEW AND ADVISORY OPINIONS Marbury v. Madison 4 Main Takeaways: 1.​ Establishes a general rule that law affords a remedy for any invasion of a legal right 2.​ That general rule applies to executive officials who violate a legal right (the courts can provide a remedy) 3.​ The court has the authority to redress violation of legal rights but do not have the authority to address political questions which are constitutionally designated to be at the discretion of the executive and legislative branches 4.​ Court has power to decide whether or not a legislative action complies with the constitution. Emphatically the province of the judiciary to say what the law is. Because the judiciary must take an oath to the constitution, it must decide cases or controversies in accordance with the constitution. The Supremacy clause makes it clear that the constitution takes precedence over statutes. No case or controversy, no duty to check the other branches. ADVISORY OPINIONS: ​ The President's request would subject the Court’s advisory opinion to revision. That would reduce the judiciary to a subordinate role. Today we understand that advisory opinions are not only inadvisable, they’re outside the power of the judicial branch. ​ Hayburn’s case o​ cemented that the Court has no power to issue an advisory opinion o​ Distinct from the President's request ▪​ Hayburn could make a case for a legal right ▪​ Would make the judiciary subject to review by the executive branch (aka an advisory opinion) ▪​President's request was abstract o​ Regardless, it has to be legally binding, it can’t be subject to revision by other branches. STANDING: OVERVIEW: ​ Standing is a component of case or controversy. ​ Gist: The plaintiff must have a personal stake in the outcome of the litigation ARTICLE III STANDING ​ Separation of powers considerations informs the three requirements o​ Most importantly, the executive branch is in charge of enforcing the law o​ If there is a discretion between law and government’s action/failure to act (enforce law against third parties causing injuries to others), then it becomes the duty of the court ​ Three requirements (Lujan) o​ Injury in fact ▪​ Concrete (not abstract) ▪​ Individualized (not generalized) ▪​ Actually or imminently occurring (not speculative) o​ Fairly traceable to defendant’s conduct (traceability) o​ Relief requested must be likely to redress injury (redressability) Article III Standing Cases Allen ​ Injury suffered by all persons when the government violates the law is abstract - not concrete - so it does not constitute injury in fact o​ Also generalized but the court focuses on absence of concreteness. ​ Stigmatic injury is also not concrete o​ UNLESS a person is personally/individually subjected to unequal treatment o​ If you are personally subjected to unequal treatment, the stigma that flows from that is concrete (converse of above) ​ Injury of those student plaintiffs (attendance of a segregated public school - which did constitute an injury in fact) could not be traced to allegedly unlawful policy of IRS  ​ Speculative how many schools had discriminatory policies, whether private schools would change their policies if they lost tax-exempt status, whether enough schools and parents would change their behavior to lead to an appreciable change in the racial makeup of public schools. o​ Trivial difference = no difference at all o​ Needs to be something other than a trivial change o​ Ex: 98% → 95% = trivial o​ Usually, it is obvious that there is a significant difference. Only question is if that difference is attributable to the defendant’s conduct or a third party’s conduct o​ That doesn’t mean that there is never a cognizable interest in having the government force the law against somebody else. ​ There is an especially heightened burden on the plaintiff to show fair traceability when the alleged misconduct is traceable to the executive branch’s failure to force the law Lyons ​ Standing inquiry applies to each form of relief that is sought ​ Compensatory damages redress past harm, but past harm does not permit prospective injunctive relief o​ Prospective injunction– A government official preventing a future harm from occurring ​ Past exposure to illegal conduct does not constitute likelihood to imminently suffer that again ​ Future likelihood of future injury is a predicate for establishing prospective injury o​ Too speculative that a person choked once would be choked again o​ Could seek damages but not an injunction. ​ Standard: are you reasonably likely to suffer the harm you are alleging in the future? o​ Draw the line between reasonably likely and speculative o​ Court rules that Lyons alleged future harm is speculative BECAUSE ▪​ People do not run into the police all that often and ▪​ Not every police officer always chokes the people they encounter (no policy existed) o​ Even if the police could be expected to choke people who resist or flee, the plaintiff didn’t allege that he had an intention of doing that. And any such claim likely would have disqualified him from getting equitable relief in any event. Lujan ​ Depriving someone of the opportunity to observe an endangered species = concrete injury in fact even though it is intangible ​ To establish standing, though, it is not enough to allege plans to view species at some point in future o​ Plaintiffs needed to show concrete plans ​ Even with concrete plans, though, plaintiffs could not show that the projects would not continue even if government changed its conduct → no traceability ​ So, even though it was an injury in fact, they could not show traceability or redressability Recent Cases on Standing Uzuegbunam ​ Past harm → ability to seek nominal damages o​ Even if defendant has mooted out the issue through policy changes which has given him exactly what the plaintiff is seeking ​ Article III case/controversy requirement → embodies the kind of issues traditionally amenable to and resolvable by judicial process o​ Common law courts awarded nominal damages to past harm → courts view this action as valid in present day ​ Otherwise, the courts wouldn’t have power to redress non-economic harms ​ Anomalous to privilege economic harms California v. Texas ​ Plaintiff lacks standing to challenge an unenforceable mandate ​ Absent an enforcement mechanism, a plaintiff cannot allege traceability to defendant’s allegedly illegal conduct ​ Individuals who suffered pocketbooks' injury (hurts a state’s budget) lacked standing to challenge it. ​ And for the states, it cannot be traced o​ Speculative in any event ​ Other harms alleged were tied to other mandates within the ACA, not the one they were challenging TransUnion v. Ramirez  ​ Congress’s creation of a right does not give everyone standing to enforce the right o​ A right that is neither constitutional nor common law may not give rise to standing ​ Constitutional rights → standing ​ Analogous common law rights → standing o​ Tangible ▪​ Property ▪​Bodily harm o​ Intangible common law analogues ▪​ Right not to be defamed ▪​ Right to privacy ▪​ Intentional infliction of emotional duress ​ Rights that are not analogous to common law rights may not be concrete ​ Inaccurate information - IF it has not been disclosed to a third party – is not a concrete harm o​ Closest common law analogue = defamation tort, which required publication, not a libelous statement in a desk drawer ​ Material risk of future harm = sufficient to establish standing for prospective relief BUT it is not sufficient for an award of damages absent the allegation that the overhanging risk causes concrete injury RIPENESS: Overview: ​ Subset of standing o​ Same three elements: ▪​ Injury in fact ▪​ causation/traceability ▪​ Redressability ​ If a plaintiff can bring a challenge against a statute before a statute is enforced against him ​ Only real difference between the two scenarios (prosecuted vs. before you are prosecuted but alleging you could be) is satisfaction of the injury in fact prong o​ But if you satisfy the injury in fact prong, then you will satisfy the other two prongs ​ Injury in fact: depends on whether you have shown a substantial likelihood of harm in the future (prosecution) Ripeness Cases SBA List ​ Requirements to satisfy first prong of injury in fact (part that deals with if there is a substantial likelihood of future harm)– Rule o​ Intention to engage in conduct that is arguably protected by the constitution o​ Conduct arguably prohibited by the statute o​ Credible threat of prosecution if you engage in the conduct ​ Third requirement = usually where all the action is o​ There is not always a credible threat ​ Prior cases satisfy that element in different ways: o​ Steffel ▪​ Plaintiff warned and threatened with prosecution if he disobeyed ▪​ Friend arrested ▪​ Plaintiff intended to continue conduct - thus a credible threat o​ Babbit ▪​ Actively participated in and intended to continue engaging in campaigns in the past. ▪​ Erroneous statements, which were prohibited by statute, were inevitable - exposing them to a risk of prosecution.  o​ Virginia books ▪​ The plaintiffs introduced 16 books that were covered by the statute. o​ Holder ▪​ Plaintiffs claim they had provided material support before the law’s enactment and would continue to do so in the future. The government had already charged 150 people with violating a law and it had declined to disavow prosecution of the plaintiffs. ​ Golden precedent o​ One precedent included in the case that did not satisfy standing o​ Plaintiff ’s sole concern related to a particular congressman and his record, and it was unlikely the candidate would run again. ​ Hypotheticals discussed o​ Prohibition of contraception ▪​ 100-year-old statute ▪​ No cases of prosecution ▪​ No credible threat ▪​High degree of likelihood that there were many violations of that prohibition o​ Prohibition of teaching evolution ▪​ 40-year-old statute ▪​ No cases of prosecution but no evidence of the conduct continuing ▪​ Statute chilling enough to scare teachers ▪​ Credible threat ​ Facts/Reasoning of SBA List: o​ The Commission issued a probable cause determination against the very kind of speech they intended to repeat. o​ Strong incentives to file complaints b/c they distract candidate o​ Frequent enforcement by commission o​ No disavow of intent to enforce the statute by government o​ Injured in past by same statute, likely to be injured in same way in future o​ Court tends to be more generous when applying standing to somebody who may be prosecuted for a violation of the law themselves. As opposed to being injured down the line by somebody else if the government doesn’t enforce the law. 303 Creative ​ Statute: CADA ​ Ripeness ​ 10th circuit found standing based on 3 requirements of SBA o​ Intended to engage in a course of conduct arguably affected with a constitutional effect o​ Refusing to make websites for same sex marriages arguably the same as discriminating based on sexual orientation (CADA) o​ Court concluded that their planned conduct arguably was prohibited by the statute o​ There was a credible threat of enforcement because no reason to think they would fail to attract customers, including customers who want their services to celebrate a same-sex marriage o​ No disavow of enforcement against 303, similar to cakeshop which was prosecuted, etc. → credible threat ​ Differentiation from other cases o​ In all other cases, plaintiffs had already engaged in the conduct ▪​ Here, there was no prior engagement – 303 creative not even running yet ▪​But no reason to think they wouldn’t, third element is stronger argument ​ Third element of standing = place where there will be the best chance for arguing a distinction between this case and precedents  o​ Alleged injury will not be based on what the plaintiffs did/do, but also third parties to act ▪​ Someone has to request a website AND file a complaint o​ Reliance on the actions of third parties – especially for the first part (for there to be a violation at all, someone will have to come for the service) – is best chance o​ Is it predictable that some same sex couple would seek to purchase 303 creative’s services, or is it just speculative? DOCTRINE OF MOOTNESS: Overview ​ A plaintiff who had an outcome at the outset of litigation loses their stake in the outcome of the litigation. When there’s no longer a case or controversy. ​ Three things that can save a case from mootness when events have eliminated the first source of an injury to the plaintiff: o​ A class has been certified ▪​Once a class (class action) is certified - even if the main plaintiff has lost a personal stake - there is likeness o​ Defendant voluntarily changes the challenged policy that removes chance of harming plaintiff, unless there is no reasonable expectation that they may return to that policy ▪​ Clear that there is no reasonable expectation that the defendant will return to implementing the challenged policy in the future ▪​ Ex: bankruptcy → liquidation of assets → won’t exist ▪​ Ex: change in state law → power of defendant o​ Capable of repetition yet evading review Mootness Cases Defunis ​ Moot o​ Not a class action o​ No voluntary doctrine implication - university did not change policy ▪​ Immediate harm had ended b/c Defunis had entered his third year, and preexisting university policy stated that - once in 3rd year - you cannot not finish degree regardless of whether they had gotten in under the admissions policy o​ Not capable of repetition [to the plaintiff] ▪​ Must one both of above to show it is capable of repetition – here it shows neither ▪​ No one else in exact same position, he will never be in same position again, and university never voluntarily changed its policy (policy changed due to injunction) o​ If it is not capable of repetition [to the plaintiff], is it going to escape review? ▪​ Washington Supreme Court had already ruled on the merits, so potential for future cases to be hastened ▪​ → means another student’s case would not become moot b/c it took longer to get to supreme court than it took for Defunis to begin third year of law school ▪​ Subsequent challenges can move more quickly ▪​ So it is not likely to escape review [generally speaking] ​ Article III is party specific o​ Class action evasion of mootness varies slightly but, in general, it is that specific plaintiff that must have active standing o​ Someone else somewhere else having a live claim does nothing to impact the mootness of the case b/c that other claim comes from someone not party to the case in question ​ Supreme court ruled no standing o​ Did NOT rule on the constitutionality of the university’s policy POLITICAL QUESTION DOCTRINE IN GENERAL ​ Political question when: o​ Textually demonstrable commitment of the issue to a coordinate branch of government o​ Lack of judicially discoverable and manageable standards for resolving the issue ​ Only have to meet one of these standards for it to be a political question POLITICAL QUESTION CASES Baker ​ Malapportionment of state legislatures are not political questions ​ Claims under Equal Protection Clause were not political questions, even though they were essentially the same claims as those made under Guaranty Clause (which were PQs) o​ Guaranty - no manageable standards for deciding what constitutes a republic form of government leaving that question to congress o​ Equal Protection Clause - discoverable and administrable standards for when malapportionment is unconstitutional. ▪​ Something like one person one vote ▪​ Equal number of people and representatives ▪​ Primary question for redistricting must be population Rucho ​ There is no discoverable and administrable standard for determining when gerrymandering violates the constitution. Our constitutional structure allows some degree of partisanship when drawing district lines and it does not guarantee proportional representation. ​ Gerrymandering is not unconstitutional (at least not prohibited by it) o​ But that does not mean that there is a textual commitment to legislatures for power to draw districts however they want ▪​ They cannot rely on excessive factors ▪​ But there is no way for establishing standards ​ SO, 2nd factor of PQ → ruling in Rucho (not 1st) ​ No applicable standard like the ‘one party one vote’ principle ​ Constitution assigns district line drawings to the legislative and it would be fanciful to assume that the SC can be blind to partisan considerations ​ Proportional representation could not be a constitutional standard because it was so at odds with constitutional acts like at large elections (Winner take all, popular vote elections) ​ No discoverable standard for the court to determine a standard for excessiveness - but held that excessive reliance on partisan considerations was unconstitutional but … o​ 1) the constitution furnishes no guide for selecting a baseline for measuring excessiveness - Various possible baselines – including proportional representation, maximum competitive districts, and districts drawn on traditional and politically neutral factors like compactness, political subdivisions etc. – but could not establish what would make one fairer than the other based on constitution ▪​ → no discoverable standard for determining which of various possible baselines to measure fairness o​ 2) Even if a baseline could be detected, nothing in the constitution for establishing a baseline for how much variation is too much ▪​ States have power to ban partisan gerrymandering ▪​ Congress undoubtedly has power to ban gerrymandering ▪​ Court does not have power to ban gerrymandering Powell ​ Rule: Courts have the power to interpret the qualifications but cannot determine the qualifications ​ Congress’ power to judge the “qualifications” of its own members is not an open-ended textual commitment to congress to exclude members for any reason  ​ Court: congress may only decide if a representative is unfit for congress based on the constitutionally expressed “qualifications” o​ At least 45, been a citizen for 7 years, and inhabitant of the state they represent o​ Lack power to exclude a representative for any other reason based on its power to interpret qualifications o​ Doing so would undermine a fundamental principle for our democracy (people choose their representatives) and the constitutions distinct provision of allowing ⅔ vote of House for expulsion Nixon ​ Senate’s sole power to try all impeachments → Congress has sole power to decide what the elements of a fair trial would be. ​ “Sole” means independently and without interference. And if the court interpreted what the elements of a fair trial were, the Senate wouldn't be acting independently. ​ Court ruling on issue would undermine Senate’s sole power ​ Constitution also separates impeachment from a criminal trial in order to prevent bias, and actually create the risk of bias ​ Checks and balances of judiciary would also be undermined, if the court could rule on the elements of a trial for its own members/colleagues ​ And judicial review could affect appropriate relief ​ Factors are very similar to Baker v. Carr (the first two) - lack of finality for example but “discoverable and manageable standards” would not be an independent basis in and of itself to conclude that an issue presents a political question ​ Trial by fire hypothetical: o​ Courts holding seems to embrace that extreme possibility o​ Court sometimes shies away from extreme examples and sets a limit o​ Court can’t define what a trial is but may say “some things cannot plausibly be conceived as a trial by modern standards” o​ Court may use due process to prevent against trials that shock the conscience or other constitutional principles o​ Court may suggest trusting the Constitutional system of protecting from the most alarming consequences ▪​ House would have to submit impeachment first ▪​ ⅔ of senate would have to agree to trial by fire Goldwater ​ *did not get to case in class ​ Takes 5 judges to create a holding – no opinion here had 5 supporters ​ No plurality opinion either, so cannot use “most narrow” as holding for now ​ Interesting but not binding ​ Constitution does not directly speak to the issue of President’s ability to unwind a treaty ​ Question: are there judicial materials from which a court could sensibly reach a conclusion on whether the President can unwind a treaty based on his other enumerated powers? o​ 4 say no: ▪​ Different types of treaties → difficult to make universal standard for which kinds of treaties he’d be able to undo the o​ Others held that there was no textual commitment to President o​ Others say there is means for judicial review Zivotofsky ​ Determining if Jerusalem was the capital of Israel was a political question ​ Determining whether an act of congress is constitutional = squarely in the court’s purview ​ Question (whether Congress’s immigration/foreign commerce authority or President’s authority to recognize which he gets from his power to receive ambassadors) is answerable by court ​ But the court can decide if congress gets the power to make this question or if the President gets this power TAKEAWAYS ​ Rucho, Powell, Nixon, Zivotofsky → help to define the factors of a political question described by Baker o​ Finality o​ Judicially discoverable and manageable standards PART II– CONGRESS’S POWERS NECESSARY AND PROPER N & P CASES McCulloch ​ Congress has the power to create a national bank, even though it is not expressly enumerated in the constitution o​ Longstanding historical practice supported the constitutionality of the bank ▪​ Longstanding practice can support constitutionality (phenomenon known as liquidation b/c disagreement melts away) o​ 10th Amendment: “All powers not given to the federal government” ▪​ Omission of “expressly” from Articles of Confederation → Congress has all incidental and implied powers sufficient to give congress the means to carry into effect its express powers ▪​ Changed between AoC and Constitution can be used to draw inference that this change = deliberate & meant something o​ Court was interpreting a constitution, not legislative code ▪​ Constitutions, unlike a code, are not expected to set out every power/means of enforcing it o​ Inference drawn from expansive express powers of government ▪​ Government granted immense powers on which the prosperity of the country depended ▪​ Would not make sense to limit enforcement of these powers needed to facilitate their execution – If an interpretation would “effectively nullify the effectiveness” of a power, then that interpretation should be rejected o​ Necessary and proper ▪​ Necessary in English usage often refers to what is useful, convenient, that which is calculated to produce the end sought ▪​ Not only meaning “Indispensable” ▪​ “Shades” of meaning – necessary, very necessary, absolutely necessary ▪​ Constitutional principle of natural meaning(s) = very important ▪​ More natural meaning (useful) makes sense in terms of context (recovery from articles of confederation’s massive failure and attempt to overcome it because it didn’t give congress enough power to run the country) ▪​ Narrow interpretation of necessary (necessary) would not make sense in this context and would have crippled congress’ power to run the country ▪​ Placed with the affirmative powers not the limitation ▪​ Placement in section 8 rather than 9, as well as the way it was framed as an affirmative and not a negative, indicates court’s interpretation being correct ​ Punch line in the court’s decision: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, ad which are with in the letter and spirit of the constitution which are not prohibited are constitutional” ​ The establishment of the bank easily passed that test since it was appropriate and plainly adapted means to effectuate the power to tax, to borrow, to regulate commerce, to declare and conduct war, and to raise support armies and navies, then it is constitutional ​ Power to create a bank useful for the power to tax ​ States cannot tax the bank: o​ Power to create implies the power to preserve o​ State power to tax a bank ▪​ Power to tax = power to destroy ▪​ State tax would nullify effectiveness of congressional power ▪​ Not constitutional o​ Supremacy clause ▪​ Federal law trumps state law o​ Necessary and proper clause Post office example ​ If congress has power to establish a rule, then they have the power to establish a means to prohibit the people from violating it ​ Regulate mail → regulate punishment of people who steal mail ​ Regulate punishment → create prisons ​ Create prisons → regulate prisoners’ conduct within incarcerations  ​ Regulate conduct → confine sexually dangerous prisoners including special programs ​ Confine sexually dangerous prisoners → indefinitely confine sexually prisoners even after their sentence is completed if states are unprepared to confine them to protect harm to third parties o​ US v. Comstock holding that congress had that power under the necessary and proper clause. Each step except the last satisfied McCullough and the last step was a modest extension of what was obvious. o​ The majority rejected the view that each step needs to be somehow tied back to the “great power” and instead as long as each step bears a sufficient connection to the one before it (appropriately and plainly adapted), that is sufficient o​ Copper mine hypo (Navy needs ships so it needs copper mines) illustrates this principle. An actual piece of legislation. Logic of Thomas Jefferson who thought it was an easy case. Because each step was very close to the one before it - which is the way the necessary and proper clause is interpreted. Can the train be too long? Yes, it can become too attenuated. COMMERCE POWER COMMERCE POWER: EARLY PERIOD Early Period Cases Gibbons ​ 3 inquiries: o​ Is there Commerce? ▪​ Buying, selling, & navigation - transporting persons or things o​ Is there regulation? ▪​ Proscribing a rule o​ Is it among the states? ▪​ Activities that concerned more than one state and that excludes activities within one state that have no effect on another ​ Remains vital to today’s understanding of commerce Daniel Ball ​ Congress can operate the safety of a ship only within one state can be regulated b/c of the danger of it harming a ship from another state ​ Power to regulate intrastate that can affect interstate ​ Expansive view regarding Congress’ power to regulate local commerce or local activity based on its interstate effects ​ Cannot regulate based on potential benefits to another type of commerce, though EC Knight + Carter Coal ​ Overruled by Jones & Laughlin ​ Commerce = selling goods, but not the steps that proceed it o​ Manufacturing, mining, and agriculture o​ Protected those regulations to the power of the states o​ Production NOT included in power ​ No matter how substantial the effect of these phases, Congress could not regulate ​ Narrowed “commerce” definition based on its effects ALA Schechter ​ Commerce cannot regulate local commercial activity based on indirect effects on interstate commerce o​ This is a police power o​ Police power = state power ​ Narrowed regulatory powers ​ Congress could not regulate the commercial packages practice of a slaughterhouse that sold its chickens locally to protect the interstate market for chickens ​ Nor could congress set wages for that slaughterhouse based on an effects theory Shreveport Rate ​ Upheld an ICC rule requiring a railroads interstate shipment rates to match interstate rates to prevent discrimination against interstate shippers ​ The court held here that this had a “direct” effect on interstate commerce ​ Inconsistent with other rulings ​ Indicative of the lack of clarity regarding the court’s use of ‘indirect’ and ‘direct’ – line between the two was never sufficiently articulated by the court Swift & Co ​ Transaction regulated was entirely intrastate, but goods themselves were in the process of being transported from one state to another o​ So, they could be regulated by Congress o​ Stream of commerce ​ Different from Schechter b/c, in that case, the goods had come to rest. Here, they are still on the move. Hammer ​ Overruled by Darby ​ Low point for congressional authority. Court held unconstitutional the prohibition on the shipment interstate commerce of goods produced with child labor. ​ The court invalidated it on the grounds that its purpose and effect were to regulate the labor practices of local producers ​ Different than lottery case b/c lottery tickets are intrinsically harmful, but goods produced - although under poor labor conditions - were not intrinsically bad Main Takeaways: ​ Commerce definition narrowed o​ Trade of goods between states o​ Shipment of those goods or people o​ No prior phases (manufacturing, mining, agriculture etc.) of those goods included in commerce ​ Regulatory powers limited o​ Limited using 10th amendment o​ Based on indirect/direct, in/out of stream of commerce ▪​ Intrastate could be regulated when they have direct effect, were in stream of commerce not ones that had come to rest, or good itself was intrinsically harmful but not ones that were manufactured in a harmful manner ​ Importance of these cases: o​ How to draw distinctions between cases which, at first glance, seem indistinguishable o​ Impetus for the distinction drawn by court – police power retained for the state – remains relevant today, and is continued to be expressed throughout cases COMMERCE CLAUSE: MIDDLE PERIOD Middle Period Cases Jones & Laughlin ​ Congress may prohibit manufacturers who ship their goods to other states from discriminating against union employees ​ Manufacturing may not itself be commerce, it precedes commerce and congress can regulate any activity that burdens or obstructs commerce ​ Production is part of commerce ​ Labor strikes obstruct commerce ​ Court rejected stream of commerce theory as a limitation ​ J&L was an integrated enterprise o​ Mined own materials o​ Owned own railroads o​ Manufactured the raw material into finished goods o​ Distributed through its own distribution centers ​ Applied this theory in NLRB v. Freedman (hypothetical given) o​ Work stoppages → burden & obstruct interstate commerce in and out of that state Darby ​ Congress has plenary power to regulate the channels of interstate commerce ​ Therefore, congress can bar the shipment of goods in interstate commerce produced by employees who do not receive minimum wage o​ Unfair competitive advantage in their interstate sales over companies that do pay fair wages ​ Overruled Hammer o​ “Inherently injurious” standard lacks any support w/in commerce clause  ​ Necessary and proper clause informs congress’ power to regulate local activities based on their effect on interstate commerce o​ Test: if it is reasonable and adapted means for promoting or removing burdens to interstate commerce ​ Critical lesson: this test ^ is the same whether the commerce clause or the necessary and proper clause is the justification for the regulation ​ Prior cases had placed too much emphasis on the tenth amendment in describing the limits on Congress’ power – it is simply a truism, and truism has no relevance to the antecedent question of whether Congress has that power Wickard ​ Since been described as furthest extension of Congress’ commerce power ​ Prior cases sustained production for interstate commerce not for local sale and much less home consumption ​ Holding: o​ Congress can regulate any activity which has a substantial effect on interstate commerce o​ Expressly did away with distinction between direct and indirect effects ​ Reasoning: o​ Congress wants to drive prices and demand of wheat o​ Home grown wheat → home use of wheat → demand down and price (?) ​ Activities can be aggregated in determining whether they have a substantial effect ​ Individual instances of regulation having little or no effect on interstate commerce is irrelevant if the class of activity regulated has a substantial effect on commerce Heart of Atlanta ​ Congress has authority to require nondiscrimination based on race in access to hotels that serve interstate travelers ​ The court deferred to Congress’ reasonable judgment that such discrimination deters interstate travel, which is part of interstate commerce even if travel is not of a commercial character Katzenbach ​ Reasonable congressional determination that racial discrimination deters the free flow of food from one state to another ​ Court defers to congress to decide if there is a rational basis for determining whether something has a substantial effect Perez ​ Congress has authority to prohibit loan sharking - the violent collection of debt ​ Congress’ power fits under 3 categories o​ Use of channels of interstate commerce o​ Protection of instrumentalities, or persons or things in, interstate commerce ▪​ Railroads, airplanes, interstate buses, etc. o​ Substantial effect on interstate commerce (most of the cases we study) ​ Prohibition of loan sharking sustained under third category ​ Categories are not hermetically sealed ​ Can look at a case in more ways than one ​ Distinct from other cases b/c: o​ Absence of anything on the face of the statute that relates the activity being regulated to interstate commerce ▪​ J&L - labor practice of employers “engaged in interstate commerce or that affect interstate commerce” ▪​ Darby - goods “destined for interstate commerce” ▪​ Heart - the activity of hotels that “served guests from other states” ▪​ McClung - restaurants that “buy a substantial amount of their food from out of state” o​ All of those statutes could be linked to interstate commerce o​ This statute regulates loansharking, without any statutory link between loan sharking and interstate commerce ​ Court nonetheless determined that there was a link, b/c it (as a class of regulated activities) provides funds for interstate criminal organizations Takeaway ​ Expansive congressional power under the commerce clause ​ Irv thinks that Perez competes with Wickard as furthest extension of Congress’ commerce power b/c of that reason COMMERCE CLAUSE: FINAL PERIOD Final Period Cases Lopez ​ New limit on commerce power ​ Striking down prohibition on possession of a gun in school zone ​ 4 factors contributing to decision: o​ Possession of a handgun is not itself an economic activity o​ Challenged provision was not part of a broader scheme of economic regulation of interstate commerce that would be undercut if the prohibition did not exist ▪​ Stand alone provision ▪​ Unlike Wickard - where regulation of the activity was necessary to ensure that it would not undercut the regulation of interstate commerce o​ No jurisdictional element that tied possession in a school to interstate commerce ▪​ Unlike prohibition in Bass on possession of a gun by a felon that traveled in interstate comment ▪​ No congressional findings on why possession of a gun in a school zone would have a substantial effect on commerce o​ Substantial effect test ▪​ Would allow congress to have a general police power which would violate the Constitution’s plan ▪​ State sovereignty ▪​ Education, crime, domestic relations - 3 areas that have always been thought to be in the area of state concern ▪​ Congress can regulate areas within those spheres. But they can’t regulate those areas with no constraints Lopez Charts Categories of Permissible Commerce Regulation Category Explanation & Additional Related Cases Information Use of channels Roads, tracks, airways, waterways for interstate commerce Instrumentalitie Trucks, trains, airlines, ships + truck s, people, or drivers, conductors, pilots, captains + things in the things they transport interstate commerce Substantial Activities that substantially affect 1.​ Darby: labor equality effect on interstate commerce, including a class 2.​ NLRB: labor unions interstate of activities when the aggregated effect 3.​ Wickard: homegrown wheat commerce is substantial. A class of non-economic 4.​ Heart of Atlanta: interstate travel activity can be aggregated for this 5.​ Katzenbach: purchasing food purpose if it fits in either 1(b) or 2 6.​ Perez: loansharking below. 7.​ Gonzales: possessing weed 8.​ Morrison: violence Factors for Analyzing “Substantial Effect” on Interstate Commerce Factor Explanation & Additional Applied to Facts of Lopez Related Information Cases 1(a). Economic Some sort of commercial activity Mere possession of anything - even a commodity Katzenbach activity that has value - is not economic activity. Ex: purchasing food Perez  1(b). Activity itself is not commercial but Possession is not part of a larger scheme b/c it is Wickard Non-economic failure to regulate it would undercut a clearly a stand-alone provision activity national scheme for economic Gonzales regulation Ex: possessing weed 2. Jurisdictional On the face of the statute is something Needed to add something like “which has Bass element linking the activity being regulated to traveled through interstate commerce” to the interstate commerce, with a reasonable statute enough connection that the activity is regulatable even if noneconomic 3. Do not have to be made, but improve Evidence is different than findings; findings are Morrison Congressional chances of validation by court inferences drawn from evidence, and here there satisfies findings were not any Cannot save a statute if other elements are not meant 4. Limiting If this theory could be used/applied in Government’s theories (“costs of crime” and Morrison principle order to regulate anything, then it “national productivity” reasoning, as well as fails cannot be constitutional; constitution’s citation of Heart of Atlanta to draw analogy with limited powers cannot be transformed racial discrimination) → unlimited Congressional into unlimited police powers for power to regulate (1) education, (2) [violent] Congress crime, (3) family law Morrison ​ Many of the same reasons articulated in Lopez, Congress did not have authority to provide a remedy for victims of sexual violence ​ Unlike Lopez, there were Congressional findings linking cause to interstate commerce, but the other factors remained the same ​ Congress cannot regulate noneconomic violent activity under commerce clause when the sole reason for doing that is that the activity in the aggregate has a substantial effect on interstate commerce ​ Congressional findings may help to establish a substantial effect if the regulation is based on an acceptable regulation theory o​ May help but their absence of these findings is not dispositive o​ Question remains if there is sufficient evidence to support that there was a substantial effect on interstate commerce o​ And congressional findings cannot save a statute when it is based on an impermissible theory like substantial effects ​ The theory of substantial effects is an impermissible theory o​ Which would allow congress to turn commerce clause into limitless police power ​ Noneconomic violent activity cannot be regulated by aggregation under substantial effects theory o​ Because it leads to limitless police powers Gonzales ​ Congress can regulate the production and possession of medicinal marijuana for personal use ​ Based on Wickard o​ Category 1b case (under Lopez categories) o​ Weed, wheat ​ Part of a broader scheme of regulating interstate commerce = failure to regulate local activity could undermine the broader theme ​ Lopez and Morrison doubly distinguishable o​ Stand-alone statutes, not part of a broader scheme of regulating interstate commerce o​ Production, distribution, consumption of a product are all economic activities to which the regulation of mere possession is tied  ​ This case added that the Necessary & Proper power allows congress to regulate even when regulated activity is not itself economic but has a substantial effect on interstate commerce o​ Not clear that there is any difference in outcome between the two approaches o​ For purposes of our class, you can assume that whether this class is treated as under commerce clause alone or commerce + N&P is irrelevant ▪​ Lopez = limiting principle which applies to both Definitively Overall: ​ When in economic activity territory and evaluating regulatory statute, it is acceptable in this class to use just the commerce clause or the commerce clause and the necessary and proper clause as justification. ​ If the provision leads to a police power, then the statute will fail (under both commerce and N&P clauses) ​ “Every great power has, implicit in it, the power to effectuate its ends in an effective way” - McCullough o​ N&P clause not a necessary addition Garcia ​ Overrules “traditional government functions” test by National League of Cities ​ Congress could constitutionally require the state to pay minimum wage and overtime to employees, whether or not they were performing traditional state functions ​ 10th amendment may still, however, bar provisions that would destroy state sovereignty o​ Standard just is not “traditional” functions ​ Minimum wage and overtime pay, however, is not w/in the protected zone o​ Just because something isn’t in the protected zone doesn’t mean its automatically unconstitutional ​ A regulation’s applicability to states and not to private parties does not necessarily determine its outcome but raises the question of violation of state sovereignty Pierce ​ The court upheld a statue that protected from discovery a road safety study conducted by the state ​ This statute fell w/in congressional power to increase the safety of channels and protection of instrumentalities of commerce ​ Category 1 or category 2 ​ Did not need to rely on an effects test Jones v. United States ​ Prohibition against arson of property used in an activity affecting interstate commerce not to reach an owner occupied dwelling ​ → serious constitutional questions raised under Lopez if court were to grant this exception ​ The court rejected the government’s argument not on constitutionality of statute but based on statutory interpretation grounds that owner occupied buildings are used to give loans to out of state residents or when they’re used to give insurance to out of state companies ​ Not within the ordinary understanding of how to “use” a building within commerce ​ Did not decide the question of constitutionality if the government’s theory was implemented ​ Takeaways: o​ Easy test: Okay to regulate anything that has traveled through interstate commerce o​ Harder test: Statutes which only jurisdictional element is affecting interstate commerce, however, is unlikely to be kindly looked upon by the court under factor four ▪​ b/c it may lead to limitless police powers ▪​ This type of jurisdictional element does not predetermine the statutes constitutionality the way having traveled through interstate commerce does ​ Local rental property/ies can be protected b/c part of greater scheme o​ Different than owner occupied property Solid Waste Agency ​ Will not be held responsible for this case Big Takeaways: 1.​ Noneconomic violent activity cannot be regulated based on aggregation and substantial effects theory 2.​ Does not mean, however, that because the above is bad and that the alternative is good 3.​ Noneconomic nonviolent activity cannot necessarily be regulated based on aggregation and substantial effects theory  4.​ However, it does make it to the next phase of analysis (application of the Lopez factors), whereas noneconomic violent activity regulations would not (under Morrison) 5.​ Lopez factors: 1.​ Part of a broader scheme? 1.​ Jurisdictional element? 1.​ Congressional findings? 1.​ Type of statute; would it give Congress a police power? 6.​ Categories of regulation are different than the Lopez factors 1.​ Lopez focuses on when Congress can regulate an activity based on that activity’s effects 1.​ (Categories being (1) use of channels, (2) protection of instrumentalities, and (3) substantially affects interstate commerce) 1.​ Category 3 regulations are analyzed using the Lopez factors 7.​ IN REVIEW SESSION: 1.​ Cannot aggregate non-economic activities unless they fall into 1b or 2 of the Lopez factors 1.​ Recognizing that those in 2 have to have a sufficient connection for the aggregation to be allowed 1.​ So, regulation of non-economic activity (like possession) is PERMISSIBLE. even if it’s local, so long as: 1.​ Failing to do so would undercut a national economic scheme 1.​ There is a sufficient jurisdictional element that links to interstate commerce 1.​ **Only example of this is Bass, where there was regulation on the possession of a gun that had traveled through interstate commerce** ANTI-COMMANDEERING (10/18) IN GENERAL Two New Rules ​ Rule 1: Anti-commandeering doctrine o​ Source: New York o​ Only triggered when congress requires state to regulate private parties ​ Rule 2: Congress may not regulate a state’s own authorities if it is destructive of state sovereignty o​ Ex – cannot tell a state it has to move its capital to another city o​ Source: Reno ANTI-COMMANDEERING CASES New York ​ Congress lacks authority to commandeer the legislative processes of a state to to enact and enforce a federal regulatory program ​ Both options to dispose of title waste or take title of private waste as impermissible commandeering and therefore held the federal statute unconstitutional ​ New York Distinguished laws applicable to private parties (minimum wage in Garcia) and those which encourage (vs. coerce) states ​ It also distinguishes the difference between encouraging and coercing states ​ Federal law may give states the choice of regulating or forgoing federal funds. They can also give states the choice of regulating according to federal direction or having their own laws preempted by federal law Printz ​ A mandate that state officials take reasonable steps to determine the compliance of private parties with federal eligibility requirements for gun ownership violated the anti-commandeering principle o​ Ex: reporting missing children might be permissible if it didn’t require investigating if private parties were in compliance with federal law o​ Historic reliance by congress on reporting requirements o​ Constitution unclear on issue o​ Does not necessarily raise an anti-commandeering issue ▪​ Reporting vs. enforcement – does not implicate the state itself in the same way something else (like gun enforcement) may ​ Here, statute violates anti commandeering principle ​ No distinction between directing a state to enact laws and directing state officials to assist in the enforcement of federal law ​ Also, no distinction between compelling state officers to make policy in enforcing federal law vs. the performance of ministerial work immaterial  o​ Ministerial may actually be worse Condon v. Reno ​ The court upheld the federal law prohibiting states from disclosing private information it collected from people seeking driver’s license ​ Statute regulated the state’s own activities and did not require the state to regulate private activities o​ Does not violate the anti-commandeering principle o​ A statute can be destructive of state sovereignty even if it doesn’t require states to regulate private activities ▪​ That question was reserved in Garcia case ▪​ This objection lacks force when Congress enacts a law of general applicability (Garcia) ▪​ Similarly, in Condon the court held that the anti disclosure rule was not destructive of state sovereignty because it applied to private actors as well o​ Does not mean converse is true, aka if congress only focuses on the states and not private actors then it automatically of destructive of state sovereignty – raises question, but does not answer. If general applicability is a requirement for sustaining a law that relates to the state’s own activities remains to be seen FROM CLASS NOTES: Hypos ​ May Congress require state employers to make reasonable accommodations to enable persons with disabilities to be employed by the state. o​ Yes o​ Regulate both private and public - Garcia o​ Like Reno ​ May Congress require states to ensure that employers within their states make such accommodations? o​ No o​ But don’t cite Baker to make this point on an exam – use New York and/or Printz ​ May Congress condition a grant of federal funds on states making reasonable efforts to ensure that employers within their states make such accommodations? o​ Yes o​ At least as a general matter ▪​ Some exceptions Murphy ​ Court saw no distinction between requiring a state to adopt a law (w/ respect to private parties) and preventing a state from offering private entities to offer sports gambling by repealing a state law prohibition on that activity (private parties as well) ​ Congress may not tell a state what it may or may not do in regulating private parties because of the anti commandeering principle ​ Court reaffirmed that congress can preempt state laws without violating the anti commandeering principle. A valid preemption provision must o​ Step 1: regulate private parties. Federal must either: ▪​ a) Impose federal law restrictions on private actors, OR ▪​ FDA hypo = example of this ▪​ b) Give private actors a federal right to be free from any regulation (state or federal) ▪​ Create a right ▪​ Ex: for unions to bargain with employers o​ If satisfied, Step 2: preemption ▪​ Congress may say states cannot offer sports gambling ▪​ Anything conflicting with the statute ▪​ Any requirement that is substantially more severe ▪​ Any requirement on that issue at all ​ Statute in question did not satisfy these requirements for preemption because it didn’t prevent private parties from conducting sports gambling nor did it give them a right to practice sports gambling Haaland (Parts IA and III) ​ Court rejected all three categories of anticommandeering challenges ​ First challenge: Requirement that initiating party in involuntary proceedings demonstrate “active efforts” to keep the Indian family together o​ Provisions apply to any parties who initiate involuntary proceedings– includes private individuals and agencies as well as government entities  ▪​A demand that either public or private actors can satisfy is unlikely to require the use of sovereign power (Murphy) o​ Examples of past private suits are not difficult find and courts have applied the “active effort” requirement is those suits o​ Provision is not directed primarily, much less exclusively, at the states ▪​ Legislation that applies “evenhandedly” to state and private actors does not typically implicate the 10th Amendment (Murphy) o​ Petitioners failed to show “active efforts” requirement commands the States to deploy their executive or legislative power ▪​State is not the only option for rescues of a child from neglectful parents ​ Second Challenge: ICWA Placement Preferences o​ Petitioner has not shown that “diligent search” requirement demands the use of state sovereign authority ▪​ Applies to private parties as well ▪​ The burden is on the tribe or other objecting party to produce a higher-ranked placement ▪​ Does not command state agencies to do anything o​ ICWA requires that state courts apply placement preferences– BUT Congress can require state courts, unlike state executives and legislatures to enforce the law ▪​ Supremacy Clause ​ Third Challenge: state courts required to maintain and transmit records of custody proceedings involving Indian children o​ Congress may impose ancillary record-keeping requirements related to state-court proceedings without violating the 10th Amendment ▪​ Suggested by Printz, explicitly held for the first time here INDIAN AFFAIRS Haaland (Part II) ​ Congress’s power to legislate with respect to the Indian tribes is “plenary and exclusive” o​ Sources of this power: ▪​ Indian Commerce Clause– reaches not just trade but also certain “Indian affairs” ▪​ The Treaty Clause ▪​ Constitution’s structure ▪​ Trust relationship o​ Congress’s power is not unbounded but is plenary within its sphere ​ ICWA does not impermissibly tread on the State’s traditional authority over family law (preemption) ​ Commerce with the Indian tribes, means commerce with the individuals composing those tribes TAX AND SPEND (10/20) OVERVIEW Two Main Questions 1.​ Taxing power - is this something congress can tax? 2.​ Spending power - what conditions can congress impose as a condition for receiving federal funds? TAXING CASES Butler ​ Taxing question ​ Even when Congress may not regulate under one of its powers, it may still be able to tax that activity if it contributes to the general welfare ​ 10th amendment precludes congress from using the tax power as a guise to regulate activity over which congress it has no constitutional authority  o​ Later cases have repudiated this aspect of Butler. A tax can be used to deter an activity over which congress does not have authority to directly regulate under one of its powers. o​ Congress does not need authority from enumerated powers to tax an activity ​ Butler still remains as the governing principle in terms of its classification of taxing power as an independent power Steward ​ Taxing question ​ Congress may tax employment just as it may tax anything else o​ It is not immunized from taxation even though it is viewed as essential to human happiness SPENDING CASES Sabri ​ Spending question ​ Court upheld a prohibition on bribing state officials who work for entities that receive federal assistance even though there was not “proof ” that bribes affect the disbursement of federal funds in any way ​ Relied on spending and N&P to hold that prohibition bribes related to for non-federally funded programs was plainly adapted to the federal interest in the funding program because: o​ Corrupt officials threaten fed programs o​ Money is fungible and puts pressure to take money from federally assisted programs – need to make up shortfall from somewhere Dole ​ Spending Question ​ Requirements for conditions o​ Promote general welfare o​ Related to purpose of the spending program o​ Unambiguous ▪​ Spending power depends on agreement ▪​ Condition only becomes a requirement when a state agrees ▪​ To agree, state has to know what is agreeing to ▪​ Thus, court decided that this is possible when statute is unambiguous o​ Cannot violate any independent constitutional limitation ​ Cannot use the spending power to coerce the state into complying with the spending condition arising potentially from the 10th amendment. Will later get definitively established. ​ Here, only a 5% loss of funds – so it is not coercion Endrew F. ​ Congress cannot generally regulate education (Lopez) under commerce clause or other source of power ​ But can condition the expenditure of federal funds on observing certain conditions ​ IDEA statute = one example o​ So is No Child Left Behind, Title II for needy children ​ Obligation to offer individualized educational program for children who receive education outside of progress ​ Court rejected [then prevailing view] that the obligation satisfied is satisfied when student makes any progress beyond de minimis CAPPING OFF COMMERCE, N&P, TAX AND SPEND NFIB v. Sebelius ​ Commerce clause power ​ Necessary and Proper Clause ​ Taxing power ​ Spending power ​ Treat chief justice’s opinion as the opinion of court because even when it is not joined by the 4 others, it either represents the view of the 5, or it is the narrowest ground for the decision and result reached and therefore it's the standard way the court represents the controlling opinion. Commerce, N&P powers ​ Congress lacks power under the commerce clause to require an individual to purchase a product o​ The power to regulate commerce, the court concluded, presupposes that commerce already exists ▪​ It does not include the power to bring commerce into existence  ​ The Government sought to limit scope of its theory so as not to imply that Congress would have limitless authority to require the purchase of products ​ The government well understood what happens when there’s not a limiting principal in the situation of this case → first learned this lesson in Lopez o​ Lesson from Lopez o​ 3 proposals/arguments of limiting principles from government: ▪​ 1) Cost shifting issue → special justification for the purchase requirement (otherwise, they impose cost on the rest of us) ▪​ Court did not see this as a real limitation; gives healthy food purchasing example ▪​ 2a) Characterize the uninsured as active in the healthcare market (regulating activity - not inactivity) ▪​ Court says: anyone who purchased a car two years ago and may purchase another in two years is not actually active in the car marker ▪​ 2b) Insurance is advanced payment - everyone will at some point become active ▪​ Court says there are many other markets where people will eventually become active in those markets (food, energy, etc.) ▪​ Cradle to grave regulation by government ▪​ 3) Requirement for purchasing insurance = necessary predicate for the overall regulation of the insurance business by Congress ▪​ Court concludes N&P exercise is confined to those things derivative of/related to a granted power; does not grant a substantive and independent power – those are the ones enumerated ▪​ Power needs to be derivative of an enumerated power or less substantive than an enumerated power to be a constitutional use of N&P ▪​ Court says this would allow Congress to draw in people to be subject to Congress’s authority who would not be otherwise ​ Court says this is distinct from Gonzales o​ Government attempted to use Gonzales as support for its 3rd limiting principle o​ Court says Gonzales involved the regulation of an economic activity (possession) o​ Gonzales also did not include independent and substantive power Taxing Power ​ Phrased more like regulatory function than a tax; but court says it can still be viewed like a tax ​ Court points out o​ It had usual features of tax ▪​ Imposed on taxpayers ▪​ Collected by IRS ▪​ Calculated in way taxes are ▪​ Raised revenue (at least in part the point of taxes) o​ Did not have usual features of penalty ▪​ No exceedingly heavy burden ▪​ Cost limited to cost of insurance, often significantly less, which makes it economically rational to opt out ▪​ No culpable state of mind (see enter requirement? sienta?) ▪​ Laws that seek to punish ▪​ Not collected by regulatory agency but instead by the IRS o​ MOST SIGNIFICANTLY: key feature distinguishing penalty from tax missing ▪​ Failure to purchase insurance was not itself unlawful; only the failure to make the payment for not purchasing insurance was unlawful ▪​ Like a tax ▪​ Not like a penalty ▪​ 4 million people opting out and Congress still likes the plan ▪​ Further indicates that they do not view 4 million people as acting unlawfully o​ Does not matter to analysis b/c it is same with all other taxes, but – meant to induce conduct (encourage purchase of insurance) ▪​ Which it probably did ▪​ And they got a benefit out of doing so Anti-Commandeering  ​ Coerced - rather than encouraging - state participation ​ Violates anti commandeering o​ New York, Printz ​ 3 circumstances contribute to conclusion that the condition crossed this line: o​ Condition not merely directed to funds dedicated to the expansion ▪​ Those types of conditions do not raise risk of coercion ▪​ Instead, it threatened all Medicaid funds o​ Effect on state’s budget operated as a gun to the head rather than encouragement ▪​ Dole: one half of one percent ▪​ Here: 10% of average state’s budget o​ Cannot be fairly conceptualized as a modification of the existing Medicaid program ▪​ Previous modifications were not questioned ▪​ Including the expansion of eligibility requirements ▪​ This, instead, transformed Medicaid into an entirely new program ▪​ Differences in degree eventually become differences in kind ▪​ Medicaid: only for neediest → comprehensive national plan to enforce universal healthcare ENFORCEMENT AUTHORITY IN GENERAL ​ Congress lacks power to prohibit discrimination in public accommodations under 13th and 14th o​ Same statute was later upheld, however, under commerce clause ​ 13th o​ Such discrimination cannot be viewed as a badge or incident of slavery o​ Not appropriate under 13th o​ 20 years = appropriate to “shake off ” the effect of slavery ​ 14th o​ Section 1 - in terms - applies only to the actions of a state ▪​ Includes state officials o​ Cannot be used to regulate private action ​ Later held in Jones and McCrary to use 13th to contract and buy property ​ 14th holding reaffirmed, however, in Morrison o​ Even though something may be predicated on action of state officials, remedy was directed against private individuals o​ This cannot be the case with 14th CIVIL RIGHTS CASES Katzenbach ​ VRA upheld for 2 reasons o​ 1) Assisted in securing members of PR community in NY nondiscriminatory treatment in the distribution of public services ▪​ Right to vote → help prevent discrimination by public servants against their constitutents o​ 2) Impermissible interference w/ right to vote equally under 14th ​ Latter holding gave impression that Congress may be able to determine meaning of section 1 of 14th itself ​ Rejected in City of Boerne Boerne ​ Congress may address regulate acts that are themselves not unconstitutional if o​ They carry forward prior unconstitutional acts (intentional discrimination) ▪​ Backwards effect o​ They may lend themselves to a future risk of purposeful discrimination ​ Literacy tests not prohibited by Section 1, but can be prohibited by Congress under Section 5 ​ Test for what Congress can (remedy and deter violations of 14th) and cannot (decree substance of 14th) and cannot do = “congruent and proportional” o​ Extent of history of violations targeter ▪​ Evasive history of violations? Few and far between? o​ Breadth of activity covered ▪​ Employment? Or every single thing the state does?  o​ Stringency of standard congress has imposed ▪​ Mild prophylactic? Strictest test that the law knows? ​ RFRA fails on all three o​ Not enough history o​ Too broad of activity covered o​ Way too stringent of a test ▪​ Hammer vs. fly swatter Shelby County ​ Held coverage formula unconstitutional (section 5 VRA) ​ Relied on outdated data that was tied to decades-old problems rather than what was called for (current data reflecting current problems) ​ Did not address ongoing effects of passed violations and was not aimed at preventing new violations in a prophylactic way o​ Once in that territory, apply congruent and proportional test **Congress can regulate constitutional activities if they carry forward past violations or lend themselves to new violations. This regulation/remedy must be congruent with and proportionate to the crime/injury. PART III– PRESIDENTIAL POWER THE TRIPARTITE FRAMEWORK/EXECUTIVE PRIVILEGE/PRESIDENTIAL IMMUNITY Youngstown ​ Most important case on establishing the bounds of presidential power ​ Court rejected president’s argument that the combination of vesting, take care, and commander clauses gave him this power ○​ This was domestic action, outside the theater of war ○​ Legislative actions in these circumstances = power of congress ○​ President enforces–not makes–the law ​ Jackson concurring: ○​ Peak: constitutional power and authority from congress ○​ Weakest: congress expressly or implicitly forbidden the power ○​ Middle: congress and president share power, or it is unclear ​ President likely to be able to act, especially in urgent situations U.S. v. Nixon ​ Marbury: court’s duty to say what the law is ○​ Determination preempts any contrary presidential determination ​ President does have a constitutional interest in protecting confidential information from his advisors in order to ensure that candid advice is not deterred ○​ Outweighed by court’s Article III interest in criminal process when there is a need for the evidence ​ President’s interest must yield to demonstrated need of the evidence by the court in a criminal case ​ In context of harm to national security, courts must show president utmost deference ○​ Perhaps to the point of not even examining the evidence in question Cheney ​ Stronger case for obtaining evidence from president in criminal than civil cases ​ Court left open what the scope of president’s protection, court’s power would be in that context Fitzgerald ​ Absolute immunity for President’s acts up to the outermost limits of his official duties ​ His actions are likely to arouse intense passions, making him a target for civil lawsuits Clinton ​ No temporal stay for cases over acts committed by president before he came into office ​ Trial courts would be able to manage litigation in ways that prevent harassment from coming into fruition ○​ Pleading phase and summary judgment ○​ Sanctions against parties which bring frivolous litigation EXECUTIVE PRIVILEGE/PRESIDENTIAL IMMUNITY Vance ​ President is not completely immune from a state subpoena for personal papers ○​ Nixon confidential communication standard should be applied ​ Risks of harassment, frivolous cases, etc. by state grand juries are adequately addressed by 3 existing protections: ○​ 1- President same right as every other citizen to challenge a subpoena on grounds that it was issued in bad faith or poses an undue burden ​ State law privilege ○​ 2- Prosecutors barred from using a subpoena to retaliate against President for his official positions ​ Supremacy clause = barrier to enforcement of that subpoena ○​ 3- Article II gives President right to challenge timing or scope of subpoena if he can make a case-specific showing that enforcement of the subpoena would unduly interfere with his official duties ​ Any additional protections would interfere with grand jury’s ability to hear all necessary evidence ​ So, adequate protections already in existence + risk of adding more protections → court’s conclusion Mazars ​ Presidential protections against Congressional subpoenas > that of private citizens ​ President can reject Congressional subpoenas in certain circumstances ○​ This case determines guideposts for how court can decide if those circumstances exist ​ Congress may not seek information from a private citizen for law enforcement purposes or solely for the sake of exposure ○​ But this protection is insufficient in regards to President’s personal papers b/c, in this area, it has no real limiting principle ○​ Additional protection necessary when clash involves coordinate branches of government ​ To protect the separation of powers ​ Four guideposts ○​ Congress may not seek the president’s information if other sources reasonably provide the information it needs ​ Cannot look at president as case study for general legislation ○​ Subpoena should not be any broader than is reasonably necessary for legislative objectives ○​ Should be evidence that subpoena advances a legitimate legislative interest, especially when that legislation deals with the presidency ○​ Burdens should be examined more so ​ Guideposts vague – do not give strong answer when not applied to specific cases/facts ○​ Vague, general, indeterminate terms → each side risks losing if going to court → incentive both sides to find solution, compromise outside of the court DELEGATION NON-DELEGATION DOCTRINE ​ Only 2 cases in which court has ever found an unconstitutional delegation: ○​ ALA Schechter ○​ Panama Refining ​ ***Have not technically been overruled *** Impermissible Delegation Schechter ​ President cannot be delegated power to make codes for fair prices ​ Limitations here: ○​ Inequitable organizations cannot provide codes ○​ Codes cannot promote monopolies ○​ Codes must support trades ​ These limitations are not sufficient ○​ President still has nearly limitless legislative authority under this delegation Panama Refining ​ No standard for President’s ability to use discretion in triggering the prohibition  ○​ Meaning he never has to trigger at all ​ Any trigger → President’s power nearly limitless **Since these two decisions, above a court has never found an unconstitutional delegation** Permissible Delegation Gundy ​ Congress can delegate an authority to enforce and implement a law ​ Governing line: ○​ Permissible when congress has supplied an intelligible standard ○​ Something that the executive must conform his implementation to and that the court can police the bounds of ​ Examples: Applying standard → upheld by court ○​ FCC - public interest ○​ ICC - just and reasonable rates and prices ○​ EPA - air quality requisite to public health ​ Courts cases reflect an understanding that modern problems cannot be solved unless congress is able to set general standards and delegate to administrative agencies sufficient discretion to implement them ​ SORNA ​ Standard not supplied but text, purpose, and history → court determined that AG must apply all SORNA requirements to all pre-Act sex offenders as soon as is feasible ○​ If not the case, THEN it would have lacked an intelligible principle ​ I.e., AG could have applied some/all/none of the SORNA requirements to some/all/none of pre-Act offenders at whatever time he so chooses to do so ​ This understanding → AG’s has discretion only on when it is feasible to do this ​ And this level of discretion is well w/in bounds of previously upheld cases ○​ Public interest ○​ Just and reasonable rates ○​ Air quality standards ​ Gorsuch Dissent ○​ Delegation only okay in three circumstances: ​ Congress delegates authority to executive to fill in gaps ​ Congress delegates authority to executive to find facts ​ Congress delegates authority to executive for non-legislative acts ​ Could do this on its own (w/o a delegation) ○​ As hypos discussed in class demonstrate, it is clear that Gorsuch’s standard is not any more workable than the intelligible principal standard ​ Can assume that anything that would satisfy any of Gorsuch’s three categories would also satisfy intelligible principle standard ○​ G’s first category = stricter than intelligible principle standard ​ IP = president can make policy if discretion is not limitless ​ Gorsuch = no policymaking APPOINTMENT POWER CREATES TWO DISTINCTIONS 1.​ Between officers and employees a.​ Employees not subject to appointment power at all b.​ Lucia - how to determine if it is an employee or an officer c.​ Significant discretion involved in the position is a better determinant than “permanency” of their office 2.​ Between principal and inferior officers a.​ After deciding someone has significant discretion, next determination is superior or inferior b.​ Constitution creates default rule i.​ Nominated by president ii.​ With advice and consent of the senate c.​ Constitution says congress can provide by law (write a statute) that appointment can be made i.​ By (alone)  1.​ President 2.​ Heads of offices 3.​ The court ii.​ For inferior officers only iii.​ Morrison - outdated test for inferior vs. principal officer iv.​ Arthrex - new test for inferior vs. principal officer d.​ If the appointment is made in one of those three ways, and the person ends up being a principal officer or an inferior officer in a position not covered by a congressional statute, then the appointment is unconstitutional OVERVIEW ​ All officers need to be subject to direction and control ○​ Olson satisfies this ​ All adjudicative officers need to be subject to oversight and review ○​ Edmond satisfies this ○​ Arthrex does not satisfy this ​ Combine two requirements to get the test for inferior officers from Arthrex APPOINTMENT POWER CASES Lucia ​ Officer vs. employee test ○​ Substantial discretion ​ Here: officers, not employees, because ○​ Took testimony ○​ Ruled on trials ○​ Decided admissibility ○​ Enforced discovery orders Morrison v. Olson ​ Test for if the person is an inferior officer ​ Considers 4 factors here: ○​ Subject to removal by AG for good cause ○​ Limited duties ​ Investigate and prosecute w/o AG’s approval/review ​ But no policy making ○​ Limited jurisdiction ​ Parameters determined by court at direction of AG ○​ Limited tenure ​ Tenure terminated at completion of assigned task ​ Do not need to have all 4 to be inferior ○​ Not essential requirements in all cases Edmond ​ Coast guard appellate judges are inferior officers ○​ Subject to administrative oversight ○​ Subject to de novo review of the law by armed forces court ​ And as long as there is de novo review of the law, there can be review with deferential standard for factual questions/appeals ​ Not essential to be inferior Arthrex ​ Patent judges functioning as superior officers ○​ Satisfied first factor from Edmond ​ Subject to all kinds of oversight ○​ But second Edmond factor missing ​ Court lacked authority to review PTAB decisions ​ Determining rights and liabilities → superior officer duties ​ Court invalidated the provision that gave directive on review ○​ Rather than invalidating the appointments  ○​ Do not need every decision to be reviewed ​ Just need there to be the ability to do so ​ Adjudicative officers need to be subject to direction and control ○​ (1) administrative oversight ○​ (2) review ​ Test: oversight and control at some level = inferior officer ○​ USE THIS TEST GENERALLY ○​ SUPPLEMENT WITH OLSON FACTORS IF YOU NEED MORE ASSISTANCE ​ Morrison provided the rule for adjudicative officers, but case left open the rule for other inferior officers ○​ Arthrex answered this question Buckley ​ Congress cannot give appointment power to itself or one of its officers ○​ Inferior officers not among the options listed by the Constitution (president, heads of an agency, courts of law) Noel Canning ​ Scope of president’s power to make recess appointments ​ Holdings ○​ Allowed during both inter and intra session recess, as long as the recess is substantial ​ Presumptively 10 days, but rock bottom more than 3 days ○​ Vacancy can occur before and exist through recess, or occur during recess ​ Court concedes this is not most natural reading ​ Purpose and history support this conclusion, though ○​ Senate is in session during pro forma sessions ​ Rested on provision of Constitution giving Senate right to decide the rules of its own proceeding ​ Gives House a similar right ​ Cannot make recess appointments during pro forma sessions REMOVAL AUTHORITY Myers ​ Congress could not limit the president’s authority to remove the postmaster–an executive branch official–by requiring congressional advice and consent ○​ Take care clause ○​ Vesting clause ​ Congress cannot interject itself into removal process by requiring that the president get its consent to remove an officer Humphrey ​ Congress could limit removal for commissioners of the FTC to instances of malfeasance, neglect of duty, or inefficiency – AKA MN&I or good cause ○​ Good cause → President cannot remove by saying “i do not trust this person as much” or “i do not think they are following the enforcement policies the way i would” ○​ Sometimes broadened out to include similar adjectives (misconduct) ○​ But can never be about trust, or following his priorities vs. their own ​ Limitation justified by need for a commission that would act impartially based on expertise and uninfluenced by politics ​ Distinguished from Myers ○​ There – purely executive officers ○​ Here – quasi judicial and legislative executive duties ​ Making reports to congress ​ Could be performed by someone responsible to legislature ​ Chancery to court ​ Courts have authority over those making reports to them ​ → someone looking over them, do not need president’s control or direction ○​ Not really within any of the three branches ​ TODAY  ○​ Everyone would say writing regulations to implement a federal statute or to adjudicate violations of the law are EXECUTIVE powers Weiner ​ Court inferred that congress had established for cause protection, even though statute did not say so expressly, because purpose was for commissioners to act impartially and free from any political influence ○​ Would be hard for them to do so if they were at will employees Bowsher ​ Congress could not give itself the power to remove the comptroller general based on good cause ​ Comptroller has executive function of implementing legislative standards for budget control Olson ​ Can provide for cause protection for counsel ​ Distinct from Myers and Bowsher ○​ There → vests removal authority in the legislature ​ Which is unconstitutional ○​ Here → still vests in executive, just limiting circumstances ○​ Former has no bearing on this issue then ​ b/c they did not actually rule on limitations/restrictions ​ Humphrey’s ○​ There → quasi legislative and quasi judicial duties ○​ Here → counsel performs exclusively executive duties ​ Prosecuting people for violating the law = core executive duty ​ → court to reconceptualize these cases in order to draw support ○​ What they really meant (about quasi leg or jud duties) is that limitations on removal of officials executing duties of that kind do not unduly interfere with the president’s enforcement responsibilities or executive responsibilities ○​ → derive a more general standard ​ AG can remove independent counsel for any reason ○​ So, for cause protection of counsel from presidential removal does not unduly interfere with his enforcement responsibilities ○​ As long as there is some way for him to get rid of someone for malfeasance, neglect, or inefficiency, then it does not interfere with president’s duties ​ Does not mean it is okay across the board ○​ Never okay to have limitations in relation to foreign affairs officials ​ CHANGED TEST ○​ From quasi legislative or quasi judicial to unduly interfering ○​ Former can inform, but latter really governs ○​ **and this is further changed by Seila Law – TBC** Free Enterprise ​ Cannot impose two layers of good cause protection ○​ Either one alone would have been fine ○​ But cannot have both ​ Constitutional difference ○​ Two layers - president cannot make his own independent judgment on whether a board member should be removed ​ If SEC says they do not think he is being negligent (i.e. no good cause), then President cannot do anything about it because he cannot fire SEC commissioners for disagreeing with him ​ Disagreement is not good cause ​ President cannot be held accountable for the board’s decisions ○​ Hands are tied, so he cannot be blamed for their actions RECENT REMOVAL AUTHORITY CASES Seila Law  ​ President has to be able to remove single agency directors who are not inferior officers with limited powers ​ Vesting clause and take care clause give president authority to control executive power, and power to control includes removal ​ Two exceptions only ○​ Humphrey ​ Described in varying degrees of generality and specificity ​ Not going to know until court tells us which version stands ​ But, for purposes of exam, it applies to a multi member body of experts ○​ Morrison ​ Described in varying degrees of generality and specificity ​ Not going to know until court tells us which version stands ​ For our purposes, it will apply to all inferior officers ○​ CFPB director does not fall into either category of exceptions ​ Single member director ​ Not an inferior officer but a principal officer ​ Court refuses to create a new exception here ○​ Lack of precedent ​ Tell tale sign of lack of constitutional authority ​ Although there is a first time for everything, it is weighty evidence of unconstitutionality ○​ Would frustrate the structure of the constitution ​ Concentrates power in a single individual only when that individual is subject to the people’s vote ​ This concentrates power in a single individual who is neither accountable to the people or president (through removal at will) Collins ​ Seila law practically dispositive ​ No historical precedent ​ Power concentrated in a single individual not accountable to the president or the people ​ Does not matter that director exercised far less power than that of the CFPB ○​ Because does not matter how much power an individual has/wields (single person, lack of accountability → should not have any power) Chiafalo ​ Can remove or fine an elector ​ Power to appoint–which is given to states–carries with it the power to require pledge, and also to remove or fine if pledge is broken ○​ Terms “vote,” “elector,” “ballot” do not contradict this ○​ Historically, terms are NOT understood to mean individual discretion ​ Have always considered the electors as having “voted” when they cast a “ballot” that matches the popular vote rather than reflects their own choice SEC v. Jarkesy Petitioners Brief Overall: ​ Congress did not violate Article II in granting tenure protection to the SEC’s ALJs. Summary of Argument: ​ When Congres