Con Law Outline PDF

Table of Contents {#table-of-contents.TOCHeading} ================= [Constitutional Interpretation and Judicial Review 2](#constitutional-interpretation-and-judicial-review) [Constitution of the United States 2](#constitution-of-the-united-states) [Judicial Review 3](#judicial-review) [Marbury v...

Table of Contents {#table-of-contents.TOCHeading} ================= [Constitutional Interpretation and Judicial Review 2](#constitutional-interpretation-and-judicial-review) [Constitution of the United States 2](#constitution-of-the-united-states) [Judicial Review 3](#judicial-review) [Marbury v. Madison 3](#marbury-v.-madison) [The Judicial Power: Advisory Opinions and Standing 5](#the-judicial-power-advisory-opinions-and-standing) [Cases 7](#cases) [Separation of Powers 11](#separation-of-powers) [A. Background 11](#background) [B. POTUS Authority Over Foreign Affairs and the Military 12](#potus-authority-over-foreign-affairs-and-the-military) [**Libya No-Fly Zone Case Study** 13](#libya-no-fly-zone-case-study) [C. President v. Congress---In the Domestic Arena 17](#president-v.-congressin-the-domestic-arena) [D. Presidential Immunity 17](#presidential-immunity) [Congressional Subpoenas for Presidential Records 18](#congressional-subpoenas-for-presidential-records) [Presidential Immunity and Prosecution 19](#presidential-immunity-and-prosecution) [E. Appointments and Removals 21](#appointments-and-removals) [Appointment Clause, Art II §2 21](#appointment-clause-art-ii-2) [Appointment Cases 22](#appointment-cases) [Removal Cases 23](#removal-cases) [F. Federalism 29](#federalism) [G. The Commerce Power 32](#the-commerce-power) [Spending Power 34](#spending-power) [**South Dakota v. Dole (1987) (5:37--23:06)** 34](#south-dakota-v.-dole-1987-5372306) [Cases 36](#cases-1) [Federal Limits on State Authority 38](#federal-limits-on-state-authority) [The Dormant Clause 38](#the-dormant-clause) [Cases 39](#cases-2) [**Exxon Corp. v. Governor of Maryland (1978)** 39](#exxon-corp.-v.-governor-of-maryland-1978) [**Minnesota v. Clover Leaf Creamery Co. (1981)** 39](#minnesota-v.-clover-leaf-creamery-co.-1981) [Market Participant Exception and Immunities to Dormant Commerce Clause 41](#market-participant-exception-and-immunities-to-dormant-commerce-clause) Constitutional Interpretation and Judicial Review ================================================= Constitution of the United States --------------------------------- - Article 1: creates congress and powers of congress - [Necessary and Proper Clause:] Congress has the power to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution to the gov't and in any department or officer.  - [Commerce Clause] - [Spending Clause] - Article 2: creates Executive Branch and its powers  - Article 3: creates Judiciary and its jurisdiction  - Tenure during good behavior - [What government does it create?] - Magisterial Generalities---equal protection, freedom of speech, all broad meanings - Only ONE definition in ALL of the constitution (treason)---very open-ended doctrine - [How does the Constitution preserve liberty?] - Checks and balances on power - Protects citizen's rights (10^th^ amendment) - [Why do we have the Constitution?] - Create an effective and powerful national government - Limits government power, says what the powers are, what the government can and cannot do - Established 3 branches of Government - \(1) Legislative (most powerful) - \(2) Executive - \(3) Judiciary - [Articles of Confederation] - Gave too much power to the states - Created a highly constrained national government (already threats of invasion) - [Tension between Civil Liberties and Effective Government] - [Constitutional Interpretation] - Text of Constitution - History of Framers intention - Case precedent - Structure - Relationship between State and Federal Power - Federal Power is limited - Must find authorization - Enumerated powers listed in Constitution - States - State can do anything unless expressly limited/against federal government - Don't need permission in constitution like federal government - Police Power - Unless some specific prohibition - Like making everyone go to church in Sunday - Authority never a problem for states Judicial Review --------------- ### Marbury v. Madison - Established SCOTUS judicial review, say what the law is - Issue---Does SCOTUS have authority to review laws and legislative acts to determine whether they comply with the US Constitution - YES---they do have authority to review laws and legislative acts (Statutes) if comply the US Constitution - [Jurisdiction] - **Original Jurisdiction** - Between states, ambassadors, public ministers, counsels, vice counsels, foreign states, US and a state, State against citizen of another state then ***straight to SCOTUS*** - **Appellate Jurisdiction** - Congress has power to make courts and control courts AG - Everything else, ***must go to appellate court and appealed to SCOTUS*** - \(1) Does Marbury have a right to the commission? - YES---he has appointment once signed and sealed, delivery is not required (says Marshall) - \(2) Do the laws of the country afford him a remedy? - YES---if there is a right, then there is a liberty and must be a remedy - \(3) Is he entitled to remedy requested? - YES---writ of mandamus is correct remedy - The issue is granting this writ will command the Secretary of State (first executive officer) - Distinction---whether the power is political, meaning a discretionary power, then POTUS has the power to appoint officers (political power and discretion) and courts cannot mandate a POTUS to do that - No one has a legal right to a commission; however, once the commission is signed and sealed the personal has a legal right and POUTS must appoint under statutory and constitutional law (no discretion) - \(4) Is the court authorized to grant a writ of mandamus? - Constitution in Art. III provides for juridical power, but does not create SCOTUS - SCOTUS can only do what Congress authorizes it to do - But the Judiciary Act of 1789 created SCOTUS and sets out its jurisdiction and authority---power to issue mandamus - \(5) Can the SCOTUS issue the writ of mandamus? - No, may only issue a mandamus in appellate jurisdiction and this case was filed as original jurisdiction - List of cases the SCOTUS can hear on original jurisdiction, this is not properly in the SCOUTUS - Inference to show the list is exhaustive - \(6) Does judiciary have authority to declare an act of Congress unconstitutional? - YES---restraint on power of Congress or else Congress could take off its limits and interpret the constitution in ways that would not limit its power. - Constitutional Analysis---gives power of judicial review, does not specifically state this, but from the structure of the constitution this power must exist (balance) - Structure Argument - Some provisions give power to the judiciary branch to interpret the constitution - Congress should be limited through checks and balances - Policy/Values (of the Constitution itself) Argument - Constitution has the purpose of limiting power, it would be inconsistent to give Congress final say in interpreting its power - Consequences---Congress's power would be limitless if judiciary couldn't strike down a law - Textual Argument - Some provisions point to judicial power specifically (Treason---requires 2 witnesses in court) - Practice Argument - How the branches of the government have understood a provision that may be ambiguous - If the practice is uniform (between parties, presidents, etc.) then strong showing it is correct interpretation - If conflict between law and constitution, constitution prevails - Judicial role to determine if there is a conflict---\"it is emphatically the power and duty of the judiciary to say what the law is" - How do we know the Constitution is the paramount law? - Art. VI---"Supreme law of the land" (Supremacy Clause) - But only establishes that Federal law us superior to State Law - Justice Marshall---laws made in furtherance of the constitution - Judges swear under oath to uphold the law of the constitution - Objective Reasonable Person Standard---understanding what the constitution means as opposed to subjective thought of the founding fathers - Best Argument---judiciary has to act as a check on self-serving interpretation of power by Congress The Judicial Power: Advisory Opinions and Standing ================================================== - Justiciability covers limits on judicial power including standing - [Limits on Advisory Opinions] - Based on the constitution, judicial power extends only to *cases or controversies* - prohibition on advisory opinions in constitutionally required - Advisory Opinions: - Have no adversaries - SCOTUS cannot act until later if the validity goes to the SCOTUS - i.e. SCOUTS never rules on POTUS war proclamation - Certain cases are never subject to judicial review - [Doctrine of Standing---2 Components] - Standing---Is party bringing lawsuit a proper plaintiff? - Most important---SMJ question, can be raised at anytime by either part or the court - Fed courts can only hear a case brought by a party with proper standing - If no standing, no authority for SCOUTS to hear the case - \(1) Constitutional---3 Requirements - **(I) Injury in fact** - Concrete + particularized - Actual or imminent - Violation of constitution of stating act---2 parts: - \(a) Personal/Particularized and Concrete - P may present only personally suffered injuries - \(b) Actual or Imminent (opposed to speculative) - i.e. Mass. V. EPA---Mass sues to enforce EPA to regulate vehicle emissions with respect to greenhouse gases - Even though foreign greenhouse gasses have a greater effect, Court can still redress because small decrease may have an impact - Injury argument---greenhouse gases are raising global temperatures and raising sea levels and Mass is losing costal land - Own the property, have the interest in protecting - Even if the injury is slow and incremental, it is still real and there is a loss - **(II) Causation** - Fairly traceable - Reasonable link between complained of action and injury - Does it seem related to D's conduct - i.e. Allen v. Wright---suit against IRS to enforce tax-exempt status to discriminatory schools - Causation Issue---between conduct of IRS and desegregation of schools is highly indirect and relies on actions of 3^rd^ parties not in the suit - **(III) Redress** - Must be likely to comply with order, doesn't have to be certain - Is it likely the remedy sought will redress the harm? - i.e. Mass v. EPA---no regulation outside of U.S., but just because a remedy has a slower effectiveness is irrelevant, as long as it addresses some injury, does not need to reduce all injury - \(2) Prudential Elements\--court - Elements of Standing---court imposed, means Congress can waive: - \(I) No generalized grievances - Cannot be a grievance to everyone, but just because a lot of people does not mean it is a generalized grievances (could be mass tort) - i.e. Obama invading Iran and everyone is mad - citizen suit provision - \(II) No 3^rd^ Party Grievances/Standing - Cannot assert someone else's injury - If I see you injured in accident and you get arm chopped off, I cant bring a claim for you, cannot sue on someone else's behalf, but if I suffer emotional distress by witnessing harm to you then okay - \(III) Zone if Interests (Z of I) - Rare to come up - The harm is actually what the law means to protect - i.e. Atlanta zoning code places height limits on buildings and Kinkopf sues Peachtree center for being one inch over limit but sues on grounds that it is unconsoubly ugly - not ugly because inch over limit, could be 10 feet under and still unconconisubaly ugly, not within zone of interest law trying to protect and courts would say no standing ### Cases - [Lujan v. Defenders of Wildlife] - Application of Standing Doctrine---P's sues to make overseas US companies to abide by Endangered Species Act---SCOUTS rejects because no standing - \(1) P's must have suffered an injury in fact - Not imminent---no plants to return - Not actual---not currently present in foreign country - Injuries were not actual or personal---just because P's like an animal doesn't mean there is an injury - Didn't buy ticket to go see them that would show imminent harm - Individuals that studies the animals must be in the region of the world where they are located, not un U.S. - \(2) Must be a causal connection between the injury and the conduct complained of (proximate cause)--- - Citizens Standing---Congress allowed citizens to sue under endangered Species Act to make sure law was being enforced #### Allen v. Wright (1984) **Alleged Injury:** Parents of public school children sued the IRS for failing to deny tax-exempt status to racially discriminatory private schools**.** Subsidizing segregation hindered their children's access to racially integrated education. **Court's Holding**: **No Standing**: - **Injury (everything hinges on the existence of a constitutional injury):** Yes there was: discriminatory private schools - **Causation**: The harm not fairly traceable to IRS enforcement because the harm is the result of **third-party decisions** (e.g., private schools maintaining discriminatory practices), **made by parties not before the court.** - **Redressability**: Removing tax exemptions might not reduce private school segregation. **(speculative rather than likely a favorable ruling would provide redress)** **Hypothetical Examples on how to phrase the injury:** 1. **Deadbeat Dad Enforcement**: a. **Facts**: Ex-wife sues sheriff for failing to enforce child support. b. **Injury**: monetary c. **Outcome**: No standing due to reliance on speculative third-party (State/sheriff and deadbeat dad that is not before the court) action. So **not fairly traceable to Sheriff's actions** (husband paying). **Husband Seeking Alimony**: d. **Injury**: Denied access to **procedural rights** for alimony due to a gender-based law. He is asking for access to the process, not just the monetary asks. Also here you are suing the state too, but more specifically the Court, who is a **present party**. e. **Outcome**: Standing granted when framed as a **process injury** (**denial of equal access)**. 2. **Polluted Potomac River**: f. **Facts**: Friends of the Earth sue Interior Department for not fining a polluting company. Asking the Court to order Interior dept to fine company g. **Comparison to Allen v. Wright**: Similar third-party causation issues with **3^rd^ party company not before the court**, but standing allowed. There's a standing case for whatever side you argue. **IT'S AN INCOHERENT GAME**. - - [Standing Game] - Most important Part---Injury in fact because Causation and Redressability depends in it - i.e. Friends of the Earth v. EPA---P's sue when Potomac River became polluted because they could no linger picnic - Injury---no picnics to P's, so particular - Causation & Redressability---EPA may be the case, but polluter's may not stop and just pay the fine - Holding---court says standing, they wanted to hear the case (no difference between Allen case above) - i.e. Wife sues husband for alimony payments - Injury---wife is owed money, particular and actual - Causation & Redressability---more likely than speculative, but court says no because depends on 3^rd^ party action, husband may not pay and go to jail - [Third Party Grievances] - Bush v. Gore---Bush sues to stop the recount - Injury---says votes were not being counted equally (Equal protection rights) - Problem---Bush voted in TX not FL - Solution---the interests are intertwined as votes are cast for somebody and Bush has standing despite prudential bar for the rights of individuals voting for him - Buy beer from somebody, men 21, women 18, is that case brought by 19 year old men? No, brought by bartender who is over 21 because he wants to sell to 19 year old men. Sides of a transaction. - Bush as receipts of vote proper plaintiff because recipient of treatment for people trying to vote for him. - Political Questions - Baker v. Carr---new way of looking at this, Equal Protection Claims rather than gurentee clause claims - **Test for Political Questions** (from **Baker v. Carr (1962)**): - **Textual Commitment**: Issue is constitutionally committed to another branch. - **Lack of Judicially Manageable Standards**: No legal principles to resolve the issue. - **Examples**: - **Guarantee Clause**: Ensuring a \"Republican form of government\" is a political question due to lack of standards. - Brenens says amtters becase gfoes ot core of what political questions is - Political when question at issue is committed when another department (rare but occurs) - How do we know if something is committed to discretion of another department - Lack of judicially manageable standards - Tells you question IS NOT legal question - Politics question left to other branches - Series of other considerations - Constitutional problems - Unusual need for standing by decisions already made - Factors that show questions committed to political branches not for judicial consideration - Republican form of govt - No monarch - That's it - No legal standard for what is or is not reopublcian form - So judiciay cant answer questions broghytb under that heading - One person, one vite - Disctirns equal in population - Federal elvel not possible - Californai and montana get 2 sentors - Otherie equal protection requires one person one voite - Other context? Impeachment committed to policatl branches - House power to impeach sentate power to try - Can sentate delegate to a committee actual taking and assessing of evidence - Yes says SCOUTS - Not yet but we don't know what a trial is - They say nope we cant tell you what counts as a triual - Left to sentate to sya what counts as a trial - Sentate can deciude what the want to do - Crazy method like flipping a coin that would be judicial - Trial by ordeal like jousting then they can do that if they want its commited to them - Non reviebale doiscretion of non policatl branches congress or potus - Other consdieraitosn help lead court to condlcustoin tha tinfact pollical issue ahs been commited to polticla branch - [Political Question Doctrine] - **Examples of Non-Justiciable Constitutional Clauses:** - **Guarantee Clause (Article IV, Section 4):** - Ensures a \"republican form of government.\" - What constitutes a \"republican\" government? - Courts have avoided defining its scope, labeling it a **political question, so its up to other branches** - **High Crimes and Misdemeanors Clause (also left to political branches):** - **Impeachment power:** - No judicial precedent defining \"high crimes and misdemeanors.\" - Political branches (Congress) interpret this clause independently. - Gerald Ford's assertion: Congress can impeach for any reason deemed appropriate. - Political branches act within their discretion but remain guided by constitutional principles. (even with partisanship influence ofc) - **Judicial Role:** Courts resolve disputes but may defer to political branches on certain constitutional provisions. - Constitutionality is not solely a judicial question. Separation of Powers ==================== Background ---------- - [Federalist Papers] - No. 47 - Separation of powers is to prevent tyranny, which occurs when the whole power is within one individual - No. 48 - Cannot trust mere parchment barriers against encroaching powers - Structure important to preserving liberties---protecting by no defining papers, but arranged in a self-checking way - Government---representative republic, don't want people voting on every issue - Legislature split into separate divisions - Agencies & Departments created by Congress - How to check powers created in Constitution? - Human nature---politicians will protect their own power and fight off other branches - Check and Balances---each branch given partial agency in the other to fend off power attacks - [Challenges to POTUS Authority] - Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) - Constant tension---preservation of liberty vs. effective national government - Justice Jackson's Framework: (thing of a spectrum) - Cat. 1---President Y and Congress Y = Maximum Authority, it can only be violated if no government can do it and its unconstitutional - Cat. 2---President Y and Congress? - Cat. 3---President Y and Congress N = Minimal Authority, can only prevail is POTUS is acting on his own preclusive and exclusive authority and Congress is not authorized to act in the area - Presidents Claim of Power (None are preclusive) - Commander in Chief - No one has all military powers, Congress has power to raise and support army and navy and to declare war - Power is not preclusive and exclusive---will not prevail in category 3 - Vesting Clause - Art II grants executive powers to declare war and Congress powers are limited to those enumerated in the Constitution - But not in line with framer's intent for President to have complete control over the military - Take Care Clause - This is a duty to enforce and conform to the laws, not a power to make laws - [Applying the framework] - POTUS Authority Over Foreign Affairs and the Military ----------------------------------------------------- - [War Power's Act] 1. **Purpose**: Limits the President's ability to engage U.S. troops in hostilities without Congressional approval. **Statutory Language**: Focuses on \"introduction of American troops into **hostilities**.\" 2. **Constitutionality:** The **Constitution** already gives Congress the power to declare war. a. Presidents cannot initiate war without Congressional approval. b. But clearly we have accepted that the president can introduce troops into hostilities although this statute doesnt actually authorize that. 3. **Provisions:** c. Requires **notification to Congress** within 48 hours of introducing troops if prior notification is impractical d. Troops must be withdrawn **after 60 days** unless Congress provides specific authorization. i. **Constitutionality:** Shared power with Congress (unclear) a. Commander in chief power (battlefield power) b. Congress has power to regulate military and declare war 1. Prez differ on constitutionality view (Republican say it unconstitutional and Democrats say opposite) e. **Concurrent Resolutions**: ii. Congress can issue resolutions disapproving troop deployment. Then President must withdraw. iii. **Unconstitutional:** Presidents have argued this feature is unconstitutional due to lack of a Presidential veto involved with the CR and they are right (no bicam and presentment (see INS v Chadha and Anti aggrandizement principle) **Context for Enactment** 1. **Vietnam War**: a. Lack of clear **authorization** or start date led to prolonged conflict. b. WPR was designed to **prevent incremental escalation** without deliberation. c. Ensures Congress retains control over war declarations. ### **Libya No-Fly Zone Case Study** **A. Context** 1. **2011 Arab Spring**: a. Muammar Gadhafi used force against uprisings. b. The **UN authorized a no-fly zone** to protect civilians. 2. The U.S. led enforcement under President Obama's **executive order**. **B. Legal Issues** 1. **Authorization**: No Congressional statute authorized the U.S. action in Libya. WPR does not provide authority for a 60 day blank check for Prez. WPR requires president to have authorization and if Congress withing 60 days doesn\'t give specific authorization then a. BUT President Obama argued it was in the **national interest** i. regional stability rationale (but we dont have a treaty in the region like we do in Europe) ii. Foreign affairs rationale: UN support, iii. humanitarian concerns **(never before seen as "national interest" and the real reason**: Gaddafi killing ppl) iv. Essentially the president is claiming an unqualified authority to insert troops into hostilities b. **Presidential Power**: v. Presidents cite inherent **Commander-in-Chief powers**. vi. The Office of Legal Counsel (OLC) justified actions as limited and temporary. 2. **WPR Compliance**: c. **48-hour notification**: Obama reported late but complied. d. **60-day withdrawal**: Controversy arose as operations continued beyond 60 days. Obama's administration argued around 60-day limit and said [drone strikes] **were not \"hostilities\" under WPR**. 1. Critics, including legal scholars, rejected this as unprincipled statutory interpretation. **Implications = Expanded Presidential Authority**: a. Libya set a precedent for using military force without Congressional authorization. b. Future actions may hinge on **national interest** declarations. c. So are there any limits? See Hamdi v. Rumsfield - POTUS cant act but has 48 hours until he must consult with Congress - Act says it is not an authority of power---would give POTUS 60 free days otherwise - Act Regulates inherent power, therefore POTUS must consult Congress in 48 hours has 90 days for hostility to end unless Congress approves (or in category 3) - [Torture Memo] - President goes to Justice Department to ask if what he is about to do is legal, must look to Jacksons Framework - Inherent Power? - Commander in Chief can detain enemies and interrogate them to get information - Congress Act Unconstitutional? - Congress has power in Art. II, § 8 - Define and publish offenses against the law of nations - Make rules for the government and regulation of the land and naval forces - Not preclusive and exclusive - Bad lawyering to say Congress has no authority - Wire Tap - Intrumentaltities of interstate commerce - Congress auhtority to provide protections on these instrumentalities - Is potus power preclusive, no, congress auhtoirty power to regulated data intrusmentlatiies of interstaste commerce  - His consitutianl assinge dfuntions kkendy after says we are in category 3 - Sop principle functional anapysis balanciong - Bicamerlaism and presentment potus could have veto but not hhow justice kennedy applies it and not how cour tapplies tandard aymroe like in sleia - Now court is protective of the president when looking at it functionally - [Rights of Enemies ] - Milligan---D caught at home in Indiana - D is not a belligerent caught in the battlefield - This was not enemy territory, to the courts were open and operating and a US Citizen is entitled to that process before being convicted - Quirin---Nazi's, 2 Citizens, returned to Germany for training and planned attack on the US but were caught and sentenced to death in military courts - Different from Milligan---D took off uniforms, a violating of Law of War and were acting as belligerents - [Guantanamo Bay] - Hamdi v. Rumsfeld---D US Citizen was picked up in battlefield in Afghanistan (D claims not) by Northern Alliance and turned over to the US for a bounty - AUMF authorizes POTUS to take action against anyone who aided or harbored 9/11 attacks so POTUS can hold D to determine if enemy combatant - D is entitled to challenge his status as enemy combatant - Standard Due?---Balance between D's right of being held against is will vs. US preventing enemy to return to battlefield (D more important) - Holding---POTUS and Congress must create a system that comports to due process but courts will allow a presumption of guilt and hearsay - Hamdan v. Rumsfeld---Petitioner was caught in Afghanistan and transferred to GB was Osama Bin Laden's driver and was charged with conspirator triable by military commission - Nothing in AUMF talks about detention---War the usual way - UCMJ---War crime and enemy combatant---new tribunal #### Zivotofsky v. Kerry (2015) **Background**: Congress **passed a law** allowing U.S. citizens born in Jerusalem to list **Israel** as their birthplace on passports. a. The **State Department** refused, citing long-standing U.S. policy of neutrality on Jerusalem's sovereignty. b. **Conflict**: The **statute** required the State Department to take a position on Jerusalem, contradicting executive branch policy. **Constitutional Question** a. **Constitutional Recognition Power**: Does the President have exclusive authority to recognize foreign nations and their territories? i. **Article II, Section 3**: Reception Clause. ii. Grants the President authority to **receive ambassadors**, [implicitly granting **recognition power**.] iii. Other Article II powers, such as negotiating treaties, support the President's broad authority in foreign affairs. iv. **Functional Reasoning:** The President acts as the sole voice in foreign affairs for reasons of unity, secrecy, and diplomatic delicacy b. **Statutory Conflict**: Is Congress's law requiring passports to list "Israel" an unconstitutional infringement on presidential authority? v. **Category Three**: Congress's statute directly contradicts the President's decision not to recognize Jerusalem as part of Israel. vi. Justice Kennedy concluded the **President's recognition power is** **exclusive and precludes Congressional action**. - **Application to Zivotofsky**: The statute requiring "Israel" on passports [**undermines** the President's authority] to **determine and communicate recognition policy**. - **Congressional Powers at Issue**: Authority over passports arises from Congress's power to regulate **naturalization** and foreign commerce. Congress has broad foreign affairs powers, **but they cannot conflict with exclusive presidential functions.** The law's title was "statement of policy with respect to the status of Jerusalem". **So, law impermissible.** - **The Court here is protective of the President's power.** #### **Functional Approach to Separation of Powers for Domestic Affairs Questions (Renquist Framework)** a. **Does** Congress's **statute impermissibly interfere with the President's constitutionally assigned functions** (here the foreign recognition powers)? b. Functional balancing used to defer to the statute bc it has gone through bicam and present, but NOW as reflected in ***Zivatofsky*** and ***Seila*** the balancing is protective of the President's power c. The Court recognizes the President's authority in foreign affairs is bounded by Congressional powers. BUT the balancing test led to the law being impermissible because Congress exercised its power in an impermissible way, in a way that prevents the president from effectively exercising the recognition powers. d. This framework gets you to the same conclusion as Jackson. But jackson is used by the Courts for foreign affairs. - President v. Congress---In the Domestic Arena --------------------------------------------- [Non-Delegation Doctrine] Schechter Poultry v. US [Bicameralism and Presentment] INS v. Chadha Presidential Immunity --------------------- #### Trump v. Vance - **Key Points:** - a New York grand jury, as part of a criminal investigation, issued a subpoena to Mazars USA, LLP, President Trump\'s accounting firm, seeking access to his personal and corporate financial records, including tax returns. The subpoena was issued by Cyrus Vance Jr., the Manhattan District Attorney, investigating potential violations of state law. - President Trump challenged the subpoena in federal court, arguing that as a sitting president, he was absolutely immune from state criminal processes and that the subpoena was overly broad and issued in bad faith. - **Trump argues for a) absolute immunity** and then as fallback**, b) heightened protection standard** (as opposed to regular citizens) - **Distinction between federal and state criminal proceedings.** - **Supremacy Clause:** Argues [states] cannot impair [federal] functions. - **Impairment of Official Duties** - **Political Harassment:** Concerns of politically motivated state prosecutions. - **Supreme Court Ruling:** - Injunction is denied and Prez does not have **absolute immunity**. It is not necessary or proper under Art 2 and Supremacy Clause. - **Heightened Protection standard** rejected. Trump's records spanned pre-presidential and after, but burdens of production can be accommodated, and they are personal records not related to official acts as president, (so more like *Jones*) - **SOP Impairment Standard applied:** Constitutionally forbidden impairment of the executive\'s ability to perform its constitutionally mandated functions. - **Does the compulsory process [unduly impair] the president from performing his constitutionally assigned functions?** - **Sometimes Courts say "unduly impair" and sometimes "prevent"** - **Functional Analysis used - Determined with Balancing Test:** Consider executive branch impairment of constitutionally assigned functions vs. complying with the subpoena. - Court upheld the principle that compliance does not unduly impair presidential duties. - Presidents subject to the same rules as private citizens for personal documents. ### Congressional Subpoenas for Presidential Records **Congressional Powers and Subpoenas** - **Scope of Authority:** Congress can issue subpoenas for legislative purposes for ANY subject(no limit). They can hold in contempt for noncompliance (subpoena to Biolab company to appear before Congress). Two ways to handle contempt: - Inherent contempt: jail under Capitol - Criminal proceeding by US Attorney on behalf of Congress - **Derived Power from Commerce Clause:** Congress may regulate economic activities that in the aggregate have a substantial effect on IC. (like hazardous materials being produced by Biolab.) - **Courts do not question Congress's motives** if a legislative purpose is plausible (Grandstanding versus legitimate legislative interests) #### Trump v. Mazars Case - Congress sought Trump's financial records. He asked for heightened standard of review - **Claim:** Documents necessary for legislative reforms (e.g., money laundering, election security). - **Key Question:** Is heightened protection needed for a sitting president's records? - **Court\'s Decision:** - Not giving Trump heightened standard of review. Also, not applying the standard of review Congress requested (normal person standard). The Court does give a **heightened protection**. - **Balancing Test:** Limits harassment risk while preserving Congress\'s investigatory powers. - Rejects absolute immunity but grants **heightened protection** for presidential documents. ### Presidential Immunity and Prosecution - **Topic:** Examining the extent and limits of **presidential immunity** from prosecution. - **Key Questions:** - Can a [sitting] president be indicted? - Moss Memo: regardless if actions pre presidency or while. - How does this align with separation of powers principles? #### Framework for Analysis Moss Memo (2000) - OLC in DOJ - an opinion that the DOJ/Executive follows **Standard for Determination:** Assess whether the challenged action (e.g., indictment) disables the president from performing constitutional functions. **Balancing test**: Weighing **Executive burdens** vs. **Legislative and judicial interests.** **Burdens on the Executive** 1. **Incapacitation:** a. Imprisonment would render the president unable to perform duties. 2. **Stigma and Public Perception:** b. Domestic and international effectiveness impaired. 3. **Distraction:** c. Legal defense **diverts attention** from governance. **Balancing Countervailing Interests** - **Judicial and Legislative Concerns:** - **Rule of Law:** Ensures no one, including the president, is above the law. - **Retribution and Deterrence:** Core principles of criminal law. - **Practical Challenges:** Delayed prosecution risks: - **Statute of Limitations** expiring. - **Evidence degradation** over time. **Arguments Supporting Temporary Immunity for Sitting Presidents** - **Statute of Limitations Concerns Mitigated:** - Options like **equitable tolling** or Congressional extensions might address statute of limitations issues. - **Impeachment Clause:** Provides a mechanism for immediate accountability. If really pressing, impeach and remove then prosecute constitutionally. - **Rule of Law and Retribution is Delayed, Not Denied (most heavily weighed by Court):** - Prosecution resumes post-term, preserving accountability. - **OLC Conclusion:** - A sitting president cannot be indicted or prosecuted but can face **prosecution after office.** **Critical Perspectives** - the delay creates **unequal treatment under the law.** - **Stigma and distraction** were deemed insufficient concerns in *Clinton v. Jones* for civil suits. **Presidential Immunity from Criminal Prosecution for [Acts Taken in Office ]** #### Trump v. United States - **Indictment Charges:** - False elector schemes - urged VP to change results - DOJ misuse to further voting conspiracies. - January 6th riot and obstruction of votes. - Pressuring state officials to change elections results (e.g., Georgia call). - **Court's Categorization Presidential Actions:** Differentiates **official** vs. **unofficial acts.** - **Unofficial Acts:** - No immunity. - Example: Pre-presidential or personal conduct unrelated to duties. - **Official Acts:** "anything within the outer perimeter of the office" - **Exclusive & Preclusive Presidential Authority:** - **Absolute immunity** for actions within preclusive, exclusive authority, because no other branch is authorized to act within the subject - Pardons, veto - investigation and prosecution power (bc John Roberts says so, but never before held) - so accepting bribe in order to drop prosecutions can conceivably be. Kinkopf: i think its wrong, but it's the rule - **Constitutionally Shared or Statutory Authority:** - **At least presumptive immunity, maybe absolute**, subject to further judicial review later. So the court remanded to treat with presumptive, and to see if absolute **[Hypothetical Scenarios where a Pres could say "I was doing these personal acts to aid me in my job"]** - **FEMA Aid Manipulation:** - President orders FEMA to withhold aid for certain states for partisan gain. - This is different than using DOJ, under the preclusive authority - Court MAYBE views this under **shared statutory authority**, invoking **presumptive immunity**. - So next Q is whether the presumption will hold, so we do a balance to determine if indictment interests of the judiciary would interfere with Prez authority to supervise the executive branch (apparently preclusive authority). But the Court only gives general guidance and sends to lower court to decide on case specific details: - Does it interfere with the president\'s performance of constitutional functions? - Is it somehow justified by an overwhelming interest on the other side? - **President Shooting Spouse:** - Determination depends on: - **Official vs. Unofficial Act:** "as long as it\'s within the outer perimeter of the office" - Burden is on prosecutor that it is manifestly and palpably beyond the president's authority - you cannot say that just because it\'s beyond the scope of the president\'s authority, that it\'s an unofficial act or just because it\'s illegal it's unofficial - Also, the Court says there is no inquiring into the President's **motives** - **So we are left with an undefinable way to determine** Appointments and Removals ------------------------- ### Appointment Clause, Art II §2 - Officers of the United States - POTUS shall nominate and by and with the Advice and Consent of the Senate, shall appoint (PACS) - Inferior Officers - Congress may by Law vest the Appointment in the POTUS alone, in the Courts of Law, or in the Heads of Department - Congress can NEVER appoint anybody - If Congress doesn't specify the mechanism of appointment of an inferior officer, the officer shall be appointed by the POTUS via PACS - Art II §2 - The appointment clause controls the selection of all "officers of the US" - Principal officers must be appointed by the POTUS with the advice and consent of the Senate - Congress may NOT vest appt of inferior officers in the POTUS alone, in the courts of law, in the leadership of both houses and heads of deparments ### Appointment Cases #### Buckley v. Valeo - Officer of the United States (Principal Officer) - "any appointee exercising significant authority pursuant to the laws of the United States is an "officer of the united states and must, therefore, be appointed in the manner prescribed by the appointment clause: - Executive officer - Congress may not vest in itself the power to appoint executive branch official - Appointments clause intended to exclude Congress from direct administrative control - Executive officer = executive branch agency official - When court at step one rec SEC it is not appointed in conformity with apt clause therefore SEC commissioners, NOT officers of the US, only exercise functions exercised by employees, so not significant authority - Make reports, gather info, make recommend - Cant issue advisory, cant institute prosecutions, can't impose penalties that are not in aid of legislative process or legislature or judiciary, those are things the court said can't be done #### Morrison v. Olson - Inferior Officer: possibility of removal by a high executive branch official below POTUS, limited duties, limited jurisdiction, limited tenure, lack of policy-making authority - Power to prosecute (enforcement of law) is an executive power #### Impeachment Clause, Art. II §4 - POTUS, VP, and all civil officers of the US, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors - Only constitutional provision that speaks of removal ### Removal Cases #### Myers v. US (1926) - Default Rule: only POTUS can only remove officers and can remove AT WILL - Congress CANNOT condition POTUS removal of executive officers on Senate consent - Unitary executive #### Humphrey's Executor v. US (1935) - Congress may not limit POTUS removal power for "purely executive officers" - Purely executive is defined in contrast to "quasi-legislative" or "quasi-judicial" - Quintessential executive power is prosecution - Quasi-legislative power is rulemaking, standard-setting - Quasi-judicial power is adjudication - Good cause = "inefficiency, neglect of duty, or malfeasance" - Exception to\... #### Bowsher v. Synar (1986) - Congress may not participate in the removal of executive officials except by impeachment - Congress may participate in the removal of legislative officers, whose only role is to advise congress - Here, executive officer fully limited jurisdiction to congress - Facts - The comptroller general, Charles Bowsher (defendant), was the head of the Government Accountability Office. Under a 1921 statute, Congress could use a joint resolution, with presidential approval, to remove the comptroller general for grounds such as a neglect of duty or inefficiency. Congress could also remove the comptroller general through impeachment. In 1985, Congress passed a budget act to reduce the federal deficit. The act gave the comptroller general authority to select which budget cuts to make in order to reduce the deficit. The president was required to mandate these spending cuts, and the cuts would go into effect unless Congress intervened with overriding legislation. Anticipating legal challenges, Congress created a fallback provision that eliminated the comptroller general's role in selecting the budget cuts if the role was invalidated. After the budget act was passed, Congressman Mike Synar and others (plaintiffs) sued Bowsher. They argued that the 1921 statute allowed Congress to remove the comptroller general using a process short of impeachment, while the budget act tasked the comptroller general with executive duties. Therefore, they alleged, the comptroller general's budget-cutting role was unconstitutional because it was unconstitutional for Congress to have the power to remove an official performing executive duties using any process short of impeachment. A three-judge panel of the federal district court in the District of Columbia ruled that the act was unconstitutional. Bowsher appealed to the United States Supreme Court. - Holding: - Under the separation-of-powers doctrine, if an official is charged with executing the laws, Congress's power to remove that official must be limited to impeachment only. - As set out in the United States Constitution, Congress has the power to make the laws, and the executive branch has the power to execute the laws. Under the separation-of-powers doctrine, these powers must remain separate; one branch may not have another branch's powers. - For instance, if Congress or its agents have the power to execute the laws, that violates the separation-of-powers doctrine. The Constitution expressly limits Congress's role in appointing and removing officials who help execute the laws: the president may appoint executive officials to help execute laws with the advice and consent of the Senate, and Congress may be involved in removing executive officers only through the impeachment process. - If Congress had additional removal powers over executive officials, it could control their actions by threatening to remove or removing officials who did not act as directed by Congress. This legislative control over executive functions would violate the separation-of-powers doctrine. - Here, the 1921 statute gives Congress broad authority to remove the comptroller general using a process short of impeachment, potentially for reasons as minor as inefficiency. This broad removal power gives Congress control over the comptroller general and makes the comptroller general an agent of Congress. However, the power to select budget cuts and to command the president to carry out those cuts is the power to execute the laws, a purely executive function. Thus, the budget act's provision tasking the comptroller general, an agent of Congress, with this executive power is an unconstitutional violation of the separation-of-powers doctrine. - Accordingly, the budget act's role for the comptroller general is invalidated, and the fallback provision is effective instead. The district court's judgment is affirmed. #### Morrison v. Olson (1988) - The removal of an agency official can be placed in the head of a department, such as the attorney general or a cabinet secretary, who is themselves removable at will by the POTUS - Inferior officer - Morrison's breadth of authority still matters - Does not matter for Humphrey - Can it be said that the agency, commission, doesn't exercise executive power - If those things can be said it doesn't matter how limited it is, or the breadth #### Selia Law v. CFPB (2020) - Most like Myers case - Congress cannot limit the POTUS power to remove purely executive officers, POTUS should be able to remove at will with 2 exceptions - Humphry's executor---multi-member agency subject to partisan balancing, who wield largely legislative or judicial powers and do not exercise significant executive power - POTUS can only remove for cause - Congress can insulate independent commissioners that exercise quasi-legislative or quasi-judicial functions from removal by POTUS via -for-cause removal protection - Morrison---independent counsel and inferior officers with limited duties and authority - The inferior officer only removed for cause; important that inferior officers have limited power so as to not interfere with the POTUS - Reasoning: take care clause and POTUS is elected - Congress can insulate purely executive for cause removal protection provided that the removal protection not impede the POTUS ability to perform their constitution duty - Justifies concentration of power with the POTUS b/c he's already elected by the people so he should be able to remove - Narrow Morrison test to apply only to inferior officers and cabins, the application of Humphreys to multi-member commissions reinterprets Myers to provide broad prohibition on restriction on POTUS removal authority outside the narrow confines of Humphrey and Morrison - Reporting function, fact finsing - Where agency function not in aid of judiciary, Scalia law regard what it is doing as executive - Reasoning/Holding - Yes. It is a violation of the separation-of-powers doctrine for an administrative agency to be headed by a single director not removable by the president at will. The Constitution contemplates a government in which power is divided everywhere it is held. The exception is the president, who possesses significant power but is directly accountable to the people via regular elections. - If an administrative agency possesses significant governmental power and is headed by a single director not subject to removal by the president at will, then the director may act unilaterally, without oversight. Such an agency structure, placing extensive power in a single person, violates the Constitution's vision for government. - Additionally, such an agency structure violates the president's removal power. Under the Constitution, executive power vests in the president alone with a presumption that inferior executive officers will assist in performing executive functions. The president's executive power is recognized as including the power to remove at will officers carrying out executive duties. Generally, Congress may not limit the president's removal power. Only two exceptions have been judicially upheld. - First, Congress may create protections for inferior executive officers who have limited duties and no administrative or policymaking authority. - Second, Congress may implement for-cause removal protection for members of multimember boards heading agencies. However, that exception should be limited to agencies without substantial executive power. Here, the CFPB is an independent agency headed by only one director. The director has a five-year term and may be removed by the president only for cause. The agency structure vests broad power in one person, something the Constitution generally prohibits. - The problem is exacerbated by the agency's receipt of funding from the Federal Reserve, which further insulates the director from oversight. The agency's structure also violates the president's removal power by preventing removal at the president's will. Neither of the recognized exceptions to unfettered removal power applies. - The director is not an inferior officer with only limited duties, nor is the director part of a multimember board. The CFPB's structure violates the separation-of-powers doctrine and is not permissible under the Constitution. However, the provision restricting the president's removal power is severable from the rest of the Dodd-Frank Act. The Ninth Circuit's judgment is vacated, and the case is remanded for further proceedings. 1. **Edmond v. United States (28:44)**: i. Coast Guard judges are appointed by the head of a dept (Sec of Transportation) and are **inferior officers** as they are supervised by the Judge Advocate General (JAG), who can remove them and oversees administrative tasks. a. **Key Factors**: Officers are inferior if **supervised** and subject to **control** by higher-ranking officials. ii. Supervision is administrative: salary iii. Control: Removal by JAG without cause (at will removal) b. The tension between **Morrison v. Olson** and **Edmond v. United States** lies in their differing criteria for determining whether an officer is **inferior** or **principal**. **Morrison** emphasizes functional independence, allowing the independent counsel significant autonomy while still classifying the role as inferior due to its limited scope and tenure. In contrast, **Edmond** focuses on hierarchical supervision, holding that an officer is inferior only if subject to meaningful oversight, including removal or direction by a superior officer. This creates a conflict between prioritizing independence (Morrison) and reinforcing executive control (Edmond), reflecting broader debates over separation of powers and the unitary executive. 2. **Arthrex Case (Article 1 Administrative Law Judge Case as opposed to Art 3 judicial branch judges)** a. Patent Trial and Appeal Board (PTAB) judges were ruled as **principal officers** due to lack of direct executive oversight by the Patent and Trademark Office (PTO) director. The Secretary of Commerce appoints the judges, bc the PTO cant as he is not a head of dept. But this is not fine bc they are principal officers. b. Although Congressional intent here was so that the judges are independent, impartial to handle patent disputes, The director had administrative control, but no control over the specific decisions of the PTAB judges, therefore not subject to meaningful supervision and control. Therefore Congress violated appointment clause. c. **Significance** i. The key difference between ***Edmond*** and ***Arthrex*** lies in their approach to supervision and control. In ***Edmond***, *general administrative oversight and at-will removal* were sufficient to classify officers as inferior. In contrast, ***Arthrex*** required **specific meaningful supervision and control, including the ability to review and countermand decisions,** making supervision stricter and narrowing the criteria for what constitutes an inferior officer. ii. **Inferior officers**: must be subject to **meaningful supervision** **and control** over the duties that make them an officer in the first place (significant authority to alter legal rights and duties) iii. NOTE: the real aim of the Court is to constrain the administrative state iv. **Administrative State**: Many federal positions face potential constitutional challenges under the evolving interpretation of \"significant authority.\" - [Current Framework] Morrison v. Olson - 4 types of SOP Cases (Challenged to Congressional Authority/Rehnquist framework) - \(1) Express Textual Procedure (**exceptional circumstances)** - If the [Constitution explicitly addresses] the issue, its provisions must be followed without deviation. - **Key Cases**: - *Buckley v. Valeo*: Congress-appointed Federal Election Commission members found unconstitutional; appointments clause strictly interpreted. - *INS v. Chadha*: Legislative veto deemed unconstitutional due to lack of bicameralism and presentment. - \(2) Anti-Aggrandizement Principle (**exceptional circumstances)** - Applies when Congress **takes affirmative actions** like creating law that **gives itself future power. That specific power doesn't go through bicameralism and presentment.** No branch may expand its power at the expense of another. - Congress may not give itself authority to alter legal rights and duties outside of the legislative sphere without going through bicameralism and presentment (passing a law, and in the law giving itself power to create lists of people the president chooses from for appts of officers). More specifically, they can't pass a law giving themselves this **authority in the future** - **This is a simple analysis. If they give themselves that future power, then impermissible. Period.** - Example: - *INS v Chadha*: Legislative veto - *Myers v. United States*: Problematic because the Senate had a role in removing officers, giving itself power beyond bicameralism and presentment. - \(3) General SOP principle---see Morrison - **Where we end up most of the time; see *Morrison and then tension with Seila Law; substantively the same as Jackson's 3^rd^ Category*) - This is a functional analysis** - Applied when Congress **minimizes or reduces the power of a rival branch** of the president or the courts, - **Standards**: - \(1) Congress cannot prevent the president from performing constitutionally assigned functions. - \(2) Courts use vague language such as **\"unduly interfere\"** or **\"impermissibly infringe.\"** - \(3) Emphasis on **functional analysis** and **high** **deference** to Congress's legislative intent. - \(4) The blending of powers design of Constitution inhibits the court from drawing definitive lines: the branches' ambition fends off the infringement of the others. - How this can happen: Congress creating legislation in an area where it is precluded\>\> where Constitutional role of the President is to exercise the power completely and alone in this area.(Kinkopf: I think these situations are more rare than Court does but\...) - Court used to be highly deferential to Congress, but now highly protective of President and suspicious of Congress. - Morrison v. Olson and Seila Law represent conflicting approaches: **Morrison** is highly deferential to Congress and restrained in the judiciary\'s role, while **Seila Law** is protective of presidential authority and assertive in judicial policing of separation of powers. - \(4) Non-Delegation Doctrine - Negative image of anti-aggrandizement principle - Never will be Congress violate---only need to attach an intelligible principle - **even more deferential to Congress than \#3)** - Courts defer when Congress delegates power, reflecting trust in Congress\'s judgment to relinquish authority adequately. - Federalism ---------- - **How to interpret federal authority generally** (short answer: *very broadly* in order to effectuate the [broad purposes] that the Constitution has vested in the federal govt): - **Federal Government**: Limited to **enumerated powers** in the Constitution. - Must find specific constitutional authority for federal action. - **States' Powers**: Any unenumerated power defaults to the states. - Example: Federal government cannot prosecute for murder, as it is not enumerated. - Arguments for the Bank of the United States - Hamilton's Justifications: - Tax Collection: Bank increases money supply and provides a medium for tax payments. - Borrowing Money: Facilitates government loans. - Regulating Trade: Stabilizes currency for interstate commerce and prevents trade disruptions. - Marshall Historical Argument - **First Bank (1791)**: Established by the **First Congress**, many of whom were framers of the Constitution. - Opposed by Jefferson/Madison but supported by Hamilton and signed by Washington. - **Re-chartering**: - **War of 1812**: Demonstrated the necessity of the bank, converting previous opponents (e.g., Madison). - Charter lapsed but re-established due to national need. - **Marshall's Rebuttal to Maryland**: - States claim: Federal power comes from a league of states, making it subordinate. - Marshall's view: - Federal power derives from **the people**, not state governments. - The Constitution was ratified by the **people through state conventions**, creating a national sovereign. - Implied Powers Doctrine - **Constitution's Nature**: - Constitution cannot list all powers; it is **broad and principled**, not a statute or contract. - **Implied Powers**: Derived as necessary to achieve constitutional ends. - **Example**: - **Enumerated Power**: Establishing post offices. - **Implied Powers**: Carrying mail and punishing mail theft. - **10th Amendment**: \"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.\" - Omission of the word **"expressly"** suggests a broader view of federal powers. - Departmentalism - 1\) Each governmental branch (executive, legislative, judiciary) interprets the Constitution independently. - 2\) Supreme Court decisions are not binding on other branches, only [persuasive]. - President Jackson's reasoning in **Veto Message:** - **Precedent as practice:** - Congress has addressed the bank issue multiple times with conflicting outcomes. - Public opinion supports his veto. - **Judicial Precedent:** - The judiciary can declare measures unconstitutional but cannot remove Congress's or the Executive's [discretion] to act. - - McCulloch v. Maryland - Congress created Bank of the US and Maryland imposed state tax on the bank - The Constitution was ratified by the people not the states, therefore it is the supreme law of the land - Necessary and Proper Clause---necessary means convenient and implied a power not a limit - MD cannot tax federal chartered bank because whole nation is not represented within MD's government, they could impose tax to detriment to the country - [Federalism explained] - Ability of states or individual to challenge federal law - All cases today are individuals (Supremacy Clause) - Questions becomes what is the federal governments limits - Positives - Liberty---Divide and conquer - No one has all power, state vs federal - Tailoring---different places can take account for their differences, local preferences/values - Labs---states can experiment policies, if they go well other will adopt - Closer---state governments closer to the people - Multiculturalism---like policy of CA, you can live there - Check---on federal governments power - Negatives - No uniformity---can be costly to businesses with no regulations - Tyranny of Majority---states have more homogeneity - More homogenous---single group retain power to oppress minority - States don't have a good track record for civil liberty side - Externalities---problem with transporting cots elsewhere - Economies of Scale---1 department of agriculture vs. 50 states - Race to the Bottom---if states all experiment to be where businesses are located The Commerce Power ------------------ - [Framework] (3 Categories): - \(1) Congress may regulate the **use of the channels of interstate commerce** - Chanel -- stream of commerce, goods moving in the stream, places where commerce occurs - i.e. highways, waterways, internet - cases: *Darby*, *Heart of Atlanta* - \(2) Congress may regulate the **instrumentalities of commerce and persons or things in interstate commerce** - Instrumentalities of interstate commerce - i.e. trains, planes, cars, highways - persons of things in interstate commerce - cases: child labor, adulterated eggs, lotto tix - \(3) Congress may regulate **economic activities having a substantial relation of significant affect to interstate commerce** - Cases: *Lopez*, Morrison, Raich - **U.S. v. Lopez** - Gun Free School Zone Act - Made it a federal crime - Economic is the key word---differentiate from the Wickard holding - Holding - Concerns with congress overstepping into states roles (police power), this more about the activity being regulated and ask if it is a traditional state function and more local = non-economic - Traditional state concerns---education, criminal law, and family law - Possessing a gun on school campus is NOT economic activity so Unconstitutional - Amendments---Congress amended the statute made findings and gave a - Finding---only helps show a substantial affect, not that the activity is economic - Jurisdictional Element - If YES---will always make the law legal and narrow scope to Category 1 or 2, but US must prove goods moved interstate - If NO---we are in category 3 and US must show economic activity and substantial affect - **U.S. v. Morrison** - Violence Against Women Act - Federal punishment for crimes motivated by gender - Clearly Category 3 (women are in state) - Holding - Congress cannot regulate because not an economic activity, rather an *intrastate* violent activity - **Gonzales v. Raich** - Controlled Substance Act prevents cultivation of marijuana in California (Compassionate Use Act) - In category 3---assuming plants didn't come from out of state and there is no jurisdictional element - Substantial Affect---yes because the drug industry is billions so huge impact - AGGREGATE - Economic activity---2 arguments - \(1) Necessary for Congress to regulate cultivation as part of its comprehensive economic scheme - \(2) Activity is economic, still affects markets even if black markets and is a production, consumption, distribution of a commodity (dictionary definition), and it is quintessential economic because you don't want to purchase elsewhere so grow yourself - i.e. grow in backyard - Exception---congress may regulate non-economic activities if part of a comprehensive economic regulation [Other Limits on the Commerce Power (10^th^ and 11^th^ Amendments)] - National League of Cities v. Usery - Garcia v. San Antonio - NY v. US - Printz v. US - Reno v. Condon - US v. Butler ### Spending Power - **Congress\'s Spending Power**: A critical power enabling Congress to influence national behavior and priorities. Spending power allows incentivization through funding. **Congress may impose whatever requirements, conditions it wants that operate with the funding, within the program, but when it makes conditions that are outside that funding**, not on how the funds are being spent, not within the program, t**hen we have to do this analysis about whether the state\'s choice is a voluntary or whether the state is being coerced.** **Spending Limitations** Congress can **condition spending** if it satisfies 4 specific criteria: - **Promotes General Welfare**: Deferential to Congress's judgment. (Porkbarrel spending is arguably unconstitutional but no court can uphold that) - **Unambiguous Terms**: States must clearly understand conditions. - **Related to Federal Interest**: Conditions must be germane to the purpose of the funds. (even if attenuated, the standard is a rational basis) - **No Constitutional Bar**: Conditions cannot violate the Constitution - like discrimination or by commandeering. It can be impermissible commandeering if the funding condition is coercive. ***Dole* = 0.5% of the state's entire budget was permissible but NFIB v. *Sebelius***: **10%+ = coercive**. Coercive conditions, such as threatening large portions of state budgets, are unconstitutional **Textual Limits** 1. **General Welfare Clause**: Congress can only spend for the **general welfare**, but the meaning of this clause is ambiguous and broadly interpreted. 2. **Constitutional Prohibitions**: a. Spending **cannot lead to unconstitutional outcomes** (e.g., cruel punishment) (3:42--3:55). b. Spending **cannot conflict with specific constitutional amendments** (e.g., First Amendment rights) (40:00). ### **South Dakota v. Dole (1987) (5:37--23:06)** - **Facts**: Congress withheld 5% of federal highway funds from states with a drinking age under 21. - **Key Issues**: - Could Congress require states to adopt a drinking age under the **Commerce Clause**? No, due to anti-commandeering and state sovereignty , but they could establish a national drinking age, but the 21^st^ amendment gave regulatory power of alcohol to the states - So Congress used **spending power** instead, linking funds to state compliance. This is an INDIRECT, and acceptable as long as 4 requirements are met: - **Supreme Court Decision**: - Congress can **condition spending** if it satisfies specific criteria: - **Promotes General Welfare**: Deferential to Congress's judgment. (Porkbarrel spending is arguably unconstitutional but no court can uphold that) - **Unambiguous Terms**: States must clearly understand conditions. - **Related to Federal Interest**: Conditions must be germane to the purpose of the funds. (even if attenuated, the standard is a **rational basis**) - **No Constitutional Bar**: Conditions cannot violate the Constitution - like discrimination or by commandeering. It can be impermissible commandeering if the funding condition is cooercive. **Here 0.5% of the state's entire budget was permissible** #### NFIB v. Sebelius (2012) - **Facts**: Affordable Care Act expanded Medicaid; states refusing compliance risked losing all Medicaid funds. - **Key Issues**: Was the condition coercive? Losing **100% of Medicaid funds (10% of total state budget)** was deemed a \"gun to the head\" and **impermissibly coercive** (48:36--49:58). - **Supreme Court Decision**: - Coercion analysis hinges on the **proportion of state budgets** at stake: - **South Dakota v. Dole**: 0.5% = permissible. - **NFIB v. Sebelius**: 10%+ = coercive. - **South Dakota v. Dole** - Federal Law requiring SD to raise drinking age to 21 to receive highway funding - 4 Part test for validity of constitutional spending - \(1) **General Welfare**---not limited to enumerated powers, but must be general purpose to serve public, courts are highly deferential - \(2) **Clear Statement**---must be unambiguous so states are aware there is a condition - \(3) **Germanness**---condition must be germane (related/relevant) to the spending - \(4) **Other constitutional provisions**---cant condition on a constitutional provision( i.e. must adopt Roman Catholic as state religion) ### Cases - Gibbons v. Ogden - NY legislature gave people exclusive rights to operate steamboats who licenses to Ogden to operate between NY and NJ, but Gibbon creates his own company with federal license - Congress can regulate interstate commerce, that is intercourse and includes regulation of the movement and incident to sale - **Among** **the states** = concerning more than one state - Interstate commerce clause - Foreign commerce and Indian tribes - First: - Is the federal law valid? - If valid - Supremacy clause kicks in federal law wins - If not valid - State law stands and monopoly stands - Federal Law for Gibbons is Valid - Marshall - Starts with US is not a treaty, it's a union a nation of states - Starts with what is the nature of our nation and its barring on the case - How do we construe federal power - **Federal power is granted by the people to the govt states not individual entities** - Should we strictly construe federal power? - No, not even sure what strict construction is - Narrow would cripple the govt - We should view constitution as ordinary usage plus the purposes for which they were conferred - Ordinary meaning in context for which words were adopted so that it will uphold those means - Commercial means navigation - Within meaning of commerce because you can't restrict commerce to ONE of its meanings, understand term as it is generally understood, doesn\'t have to be, commercial intercourse, all things that get paid for would be commerce - Congress is granted the power to regulate interstate commerce in Article I, § 8 of the Constitution. - The word commerce includes **traffic, intercourse, and navigation, as well as commodities associated with interstate commerce.** - Congress may regulate all commercial activities occurring between states but not activities occurring solely within one state's borders. - US v. EC Knight - Does congress have authority to regulate sugar refinery trust? - NO---manufacturing sugar is NOT Commerce because they are producing to sell it, not for personal use (in contrast to Gibbons) - Court wants to limit Congress' power - Hammer v. Dagenhart - Child labor Act prohibited the interstate transfer of goods produced by child labor - Issue---is this constitutional? - No---congress cannot prohibit commerce, but they just did (adulterated eggs, women, gambling) DISTINCTION? - The actual commerce was immoral and injuous whereas here the chair the child made is not bad in and of itself - OVERRULES BY US DARBY - US v. Darby - FLSA set minimum wage and maximum hours that D was not complying with, so D challenged the act - Holding---Congress may regulate **intrastate** activities that have a substantial affect on interstate commerce and can have whatever motive it wants (overrules Hammer) - Schechter Poultry v. US - Carter v. Carter - Wickard v. Filburn - Heart of Atlanta v. US Federal Limits on State Authority ================================= The Dormant Clause ------------------ - [Background] - Implications from Cluse - Power to regulate interstate commerce is reserved - State and local Laws are unconstitutional if they place an undue burden on interstate commerce - Subjects Congress Commerce v. State's general welfare - Concurrent powers, they overlap - Reasons to have the Clause - Prevents Protectionism---contrary to the idea of a free market (Constitution created this) - Allows states to withhold items (timber, apples, etc.) - Protects Out-of state Interests against in state legislation - If in-state legislation could create benefits that impose out-of-state costs everyone would implement - No political representation within the state from out-of-state citizens - [Dormant Commerce Framework] - \(1) Discriminatory Laws---laws that discriminate out-of-staters - Overt or Facial Discrimination - i.e. NJ---no garbage from out of state allowed - Purpose and Effect/Means - i.e. GA---all cola must be sold in red can (benefits acrew to local coca cola and burdens out of staters like pepsi) - Determining if unconstitutional - Does the law serve a legitimate state interest? - Easy question for states to answer (public safety, health, protect citizens pocketbooks, etc.) - Is there a non-discriminatory alternative means of achieving the state's interest? - Hard question---this is the reason most laws fail - \(2) Neutral Laws---do not discriminate facially, in purpose, or effect - Pike Balancing Test - Presumption is in favor of the law (burden is on the challenger) - Compare burden on interstate commerce to the local benefit and if the burden is clearly excessive then the law is unconstitutional ### Cases - Philadelphia v. NJ - NJ law stops waste from out of state - Irrelevant what the purpose of the law was (protect health), if the law treats out-of-state citizens different its discriminatory Court's Alternative Means---don't allow any waste into landfills, not dangerous to transport waste only to store it - Hunt v. Washington State Apple - NC passes law says no grading other than US and Washington has different (better) apple grading system - Analysis---law is discriminatory in effect because expenses Wash apples, strips them of advantage of better grades, and brings NC in better competition - Alternative means---put baseline USDA grading system without requiring Wash to remove its labels #### Non-Discriminatory Laws - **Definition**: Laws that do not distinguish between in-state and out-of-state commerce on their face. ### **Exxon Corp. v. Governor of Maryland (1978)** **Facts:** Maryland barred petroleum producers from operating retail gas stations. No in-state producers existed, so the burden fell on out-of-state companies. **Issue:** Did the law violate the Dormant Commerce Clause and was it discriminatory? - **Facially Neutral:** Applied equally to all producers (but there is discriminatory effect the court is willing to ignore because they [believe] the legit interest, UNLIKE the Washington apple case.) - **Legitimate Interest:** Addressed price gouging and unfair practices by petroleum producers when there were gas shortages - **No Discrimination:** Burden on out-of-state firms was incidental due to no in-state producers. ### **Minnesota v. Clover Leaf Creamery Co. (1981)** **Facts:** Minnesota banned the sale of milk in plastic containers but allowed cardboard containers. Most cardboard came from in-state sources, while plastic was produced out-of-state. **Issue:** Did the law violate the **Dormant Commerce Clause and was it discriminatory?** **Holding: No.** **Reasoning:** - **Facially Neutral**: Applied to all plastic containers regardless of origin. - **Legitimate Interest**: Aimed to reduce environmental waste. - **Incidental Burden**: Out-of-state producers were affected, but the burden was not clearly excessive compared to environmental benefits. **Even Neutral Laws Must Undergo Further Balancing**: #### Pike Balancing Test - **Legitimate Interest**: Identify the local benefit. - **Burden on Interstate Commerce**: Weigh against the local benefit. - Burden must be **clearly excessive** relative to the benefit. #### Pike v. Bruce Church (1970) - **Facts**: Arizona required cantaloupes to be labeled with an Arizona grade before export. Only Arizona labelers can label Arizona cantaloupe. - **Issue**: Neutral law, but does it unduly burden interstate commerce? - **Holding**: Law invalid. - **Reasoning**: - **Legit Interest:** Purpose is to promote local business and promote AZ reputation. - The Court reaches the right conclusion for the wrong reason: There was a **nondiscriminatory alternative:** let anyone in other states put the Arizona label on - **Burden on Interstate Commerce**: The farmer would incur **\$200,000 in costs** to comply with the requirement. The local benefit (promoting Arizona's reputation) was insufficient to justify the burden. #### Subsidies vs. Taxes - **Taxes**: Discriminatory if they burden out-of-state competitors. - **Example**: Georgia imposing a tax only on out-of-state sodas - **Legit Interest**: raise revenue - **Non-discriminatory alternative**: tax everybody - OR - **Legit Interest**: Foster local business - **Non-discriminatory alternative**: offer subsidies (always the alternative) - **Subsidies**: Permissible even if they only benefit in-state businesses. #### West Lynn Creamery v. Healy (1994) - **Facts**: Massachusetts imposed a tax on milk sold in-state, with the revenue subsidizing local dairy farmers. - **Holding**: Invalid. - Pike v. Bruce Church - AZ law must put label on cantaloupe saying from AZ but mist be packed and labeled within AZ - Analysis - Benefits to AZ---know AZ is where its from, create national market, no \$ amount - Burden to P\--\$700k to pack in state - Holding---law is unconstitutional, state hoarding is not allowed and the alternative means is to allow "grown in AZ" label to be placed on cantaloupes anywhere - Kassel v. Consolidated Freight - Minnesota v. Clover Leaf - Minnesota v. Clover Leaf (law doesn't violate the DCC) - Not discriminatory in effect b/c IS interests were also adversely affected looks at the representation rationale to say that there are adequate proxies in state (those adversely affected by the law) to counter the in state beneficiaries - So then it passes the ND law test (Pike balancing) -- the local benefits to the environment outweigh the costs. Market Participant Exception and Immunities to Dormant Commerce Clause ---------------------------------------------------------------------- - [Market Participant Exception] - South-Central Timber v. Wunnicke---Alaska states before timber the state sells is shipped, it must be processed in state - DCC Analysis---this is state hoarder doctrine and will almost always fail, alternative is subsidized local processing industry - AK argument---we are not regulating, there is no law, only place this limits in our contracts when we sell timber - Court---market for timber is different than processing, state may not avail itself to exceptions by downstream regulation of market is not participant in