Con Law Outline – GULC – Goldberg – S2008 – 1

Constitutional Law – GULC – Goldberg – Spring 2008

I. SUPREME COURT

I. Judicial review concerning other branches when constitutionaL

A. Marbury v. Madison

i. Holding (Marshall)

1. Does Marbury have a right to the mandamus?

a. Yes, he commission was complete. Non-discretionary & no decisions to make

2. Does he have a remedy?

a. Yes, right was violated so the government has to have a remedy for him.

i. Apparently does not apply if you go to the wrong court- no remedy here

a. Act that gave the court the ability to provide this remedy is unconstitutional. C (Article 3, Sect. 2) only gives SC original & appellate jurisdiction in limited case and the Act tries to give it original jurisdiction in a whole other category.

b. Cannot add or subtract to either category (non-expandable) in C

3. Results

a. Placates republicans (Jefferson) by denying Marbury’s claim. Placates Federalists by establishing judicial review.

i. Claims that Congress gave them too much power here, but simultaneously establishes that SC has power to command the executive & executive has to enforce it against itself

b. One Way

i. The legislature has an independent duty to apply the C to the case / bill at hand. But it doesn’t work the other way. If Congress thinks it’s Constitutional and the court doesn’t, Congress is out of luck. Judicial gets to decide what is constitutional

ii. SC has right to strike down act of Congress as Unconstitutional

c. Narrowest Reading

i. Problem between the C and a statute, the C prevails.

ii. SC can’t do anything that the C doesn’t allow him to do.

d. Broadest Reading

i. The SC is the king and other branches are bound by its rulings.

e. The power of judicial review is implicit in the C.

i. Supremacy Clause says the Constitution and acts of Congress must be made in pursuance thereof.

f. SC’s interpretation of constitutionality is binding on everyone (Cooper v. Aaron)

i. Unconstitutional law remains on books but has no operative effect.

g. Problems

i. Why is the Court in charge?

1. If doesn’t make sense for Congress to decide if Congress has the power isn’t that what Marshall does for SC here?

2. Parallelism between Article III, Section 2 and the Supremacy Clause. – Reason why the courts are allowed to decide if an act is constitutional.

3. If the legislature could decide, it would be too powerful

4. Congress more corrupt?

5. Congress makes healthy constitutional change?

6. Judges aren’t influenced by changing politics/bias?

7. Majority could oppress minority – don’t want majority to decide all cases

8. Marshall: Judges take oath to support Constitution (BUT every federal official does)

9. Constitution is silent on the issue – hmmm

ii. SEE HYPOS (1/16)

1. Condoleezza Rice (deal w/ N Korea)- discretionary (for executive to decide)

2. Brit student w/ visa issue- ministerial? (How compel executive to obey order?)

II. JUDICIAL REVIEW (SC) CONCERNING STATE COURT (Interplay between C & SC concerning State Courts) (1/18)

A. SC has appellate jurisdiction over the highest state courts on issues involving the federal C, laws and treaties.

B. Explicit Constitutional Language: Supremacy Clause (clause II, Art. VI)

1. Article III: Federal Judiciary

i. Section I: Vested in one supreme court & lower courts that Congress establishes

a. Life tenure

ii. Section II: Federal Judicial power: all federal cases.

1. Clause II: Jurisdiction of supreme court: small amount original & rest appellate

C. Martin v. Hunter’s Lessee

(a) Facts

(i) land dispute – Martin argued VA didn’t have right to take Fairfax land under the Anti-confiscation treaty

(b) Issue – Which court (State or Federal) gets the final say in the interpretation of the federal law and treaty- who gets to say what the Constitution means?

(c) SC Found for Martin (treaty did apply) & VA court refused to enforce- claimed SC lacked jurisdiction

(d) Judiciary Act, Section 25 granted appellate jurisdiction over federal law cases decided in State courts

(i) VA Arguments

1. USED Marbury – constitution governs over the judiciary act (supercedes the act)- they felt the Judiciary Act was unconstitutional

a. Article III only covers cases arising in lower federal courts; not state court

b. Federal government and states are duel sovereign- states just as powerful as government States retain important powers. Together for common defense but still sovereigns.

i. Insisting on the supremacy of the Constitution

ii. Q is who gets to say what the Constitution means?

(ii) Justice Story opinion

a. SC gets the final say

b. Strong centralizing opinion- no union unless SC gets final say

(iii) Story’s Legal Reasoning

a. All Cases= not limited to federal courts

b. Are state courts supposed to decide federal law questions?

i. Yes – Obligation to construe it & decide it

c. Sovereignty Challenge Response:

i. Nature of the C limited the sovereignty (Text)

A. Article I, Section 10- list of things that states cannot do

B. Gave up many sovereignty powers including final say on meaning of C

ii. Policy Arguments

A. State Bias

B. Uniformity

d. Martin Principle: SC has the final say

(2) HARDEST QUESTION: RECAPTURE THE NOTION THAT THIS IS AN IMPORTANT DECISION (POLICY)

(i) Was joining the US a good deal? (statehood)

(ii) HYPOS (1/18) Should the United States participate in Global Community – International Criminal Court?

D. SUMMARY

(3) Duel court system

(a) Both decide federal matters

(b) SC final say

(c) Where SC cannot step in:

(i) Meaning of a state law when it does not conflict with federal

a. Final say on Q of pure state law

b. If adequate and independent state ground for a decision then the SC will not review that decision

(4) Once SC Decision- what does that mean?

(i) Cooper v. Aaron – declined to follow brown v. board

1. SC said under Article VI supremacy clause (which we get to interpret- Marbury) you have to follow our decisions because Brown is now also the supreme law of the land

2. Problem: implies that the supreme court cannot overrule itself

(ii) How can it be the supreme law of the land forever more?

a. How much further does it bind you

i. Cannot bind us forever- despotic & people cease to be own rulers

(iii) Hard Question? When is it appropriate to challenge Supreme Court’s view of the Constitution?

III. SOURCES OF JUDICIAL DECISIONS (Text, Reinforcement of democratic process, or natural law) (1/23)

A. TEXT

1. Article 1 section 8 Clause 18 (necessary/proper clause)- powers of congress

2. Article 1 section 9 – list of things congress cannot do

3. Article 1 section 10

4. Bill of Rights (amended in 1791): First Ten amendments: Restrictions on what congress cannot do (continuation of section 9)

a. 10^th Amendment: powers not delegated to US are reserved to states respectively or to the people

b. Articles of Confederation said powers not “expressly” delegated to the US (this was dropped in the Bill of Rights)

B. McCULLOCH V. MARYLAND (Text & reinforcement of democratic process)

i) Action for unpaid state tax assessed against the Bank of US- ISSUES:

(1) Constitutionality of the Second Bank of the US (YES CONSTITUTIONAL)

(2) Whether the states can tax it (NO CANNOT TAX)

ii) John Marshal Opinion

(i) Historic establishment of the banks = nation accepted a National bank as relevant & needed

1. History matters but it is not the reason for the decision

(ii) What is the source of the Constitution of the US?- people ratified it, not the State Legislatures

a. Government, though limited in powers, is supreme w/in its sphere of action

(iii) DOES CONGRESS HAVE UNLIMITED OR ENUMERATED (LISTED) POWERS (ART.I SECT.8)?

1. Problem: Enumerated powers (listed) for congress & bank is not one of them

a. Marshall says implied powers of congress

i. Left out the word “expressly” in the Constitution, so implied powers

ii. Textual argument- must be implied powers if have a list of things it cannot do.

iii. List that included all powers would be too long, too hard to understand

A. C is a broad framework of government- not small lists for everything

B. Intended to endure for ages to come & adapted to various crisis of human affairs

b. Class: Should the C be read to adapt to circumstances when it’s not in the C?

2. Necessary & Proper Clause (reduce vs. enhance powers?)- Marshall says enhance (doesn’t have to be essential)

c) Has the powers to make the bank of US

(iv) CAN THE STATE OF MARYLAND TAX THE BANK OF THE US? (NO)

1. Class- States have taxing power & in Article I Section 10 it doesn’t say can’t tax the US bank.

2. Marshall concedes but argues: Power to Tax is the Power to Destroy – breakdown of democratic process

a. State law falls because taxing Federal government (born by people throughout the union) & not just State

i. Need Court to step in to defend

ii. Property tax would not cause an issue & court would not have to decide this case

iii) Establishes two Doctrinal Points:

(1) Congress limited to its Enumerated Powers

(2) Necessary & Proper Clause enhances Congress’s powers by giving implied powers deemed by Congress useful for achieving appropriate ends.

iv) Constitutional Interpretation Tools

(1) Textual, (2) Framer’s Intent, (3) Historical History (when close call), (4) Breakdowns in Democratic Process

C. Natural Law Theory

1) Rights are not limited to C text- Some rights so fundamental that legislative acts against that right would not be applicable because the rights are so fundamental (Chase & Iredell)

a) Iredell- If it doesn’t violate written constitution, then valid

2) SC doesn’t rely on it but maybe subtle reliance?

(1) HYPO: Grandson of Terrorist (1/23)

IV. LIMITS ON JUDICIAL REVIEW (Methods to limit SC’s Power) (1/25)

A. President appoints & Senate confirms (So don’t choose own successors- but what questions do you ask them to assess?)

B. Ex Parte McCardle (Constitutional Provision: EXCEPTIONS CLAUSE)

I. Facts: Published articles against US & arrested & filed Writ for habeas corpus to challenge arrest. Congress enacted statute that repealed Habeas Corpus act (which gave SC appellate jurisdiction) while his case was pending.

II. Holding- Habeas Corpus act could be repealed

III. Exceptions Clause (Congress controls their appellate jurisdiction- Article III Section II Clause II)

a. SC has original jurisdiction over a few & appellate jurisdiction over rest, limited by Congress

i. Pure textualist argument- if you read the text, there is no distinction

2. What limitation would McCardle read in to exception clause – say the clause was designed to infringe free speech & is therefore unconstitutional

a. SC recognizes the problem & says not going to investigate the motives of the legislature

b. SC did in past situations (inconsistency exists)

3. Power under exceptions clause- McCardle gives Congress broad power BUT limited by:

a. Other routes to SC than habeas court: Certiorari & jurisdiction over federal law cases & original grant to habeas by SC

4. Ex. US v. Kline: effort by Congress was ineffectual (can hear the case- no mention of McCardle )

a. Congress passed statute that said people pardoned were supporters of the confederacy. Also said SC had no appellate jurisdiction over those cases – Congress’s action not upheld

b. Kline & McCardle – at odds?

c. Consistent?- Perhaps here no other route to SC

5. Congress doesn’t use its limiting power much, why?

a. Lower courts still follow SC precedent- Real strategy is to get SC to change precedent over time

IV. Important Pieces:

a. ***Challenge to Constitutionality of Reconstruction – SC doesn’t want to decide it

i. If rule unconstitutional, then wouldn’t be enforced

1. SC has no enforcement powers & executive would not do it

a. If the executive don’t obey to enforce then the Justices might lose their power & sway

b. Ex. Vietnam War (1/25)

V. Amend the Constitution (Most important way to control SC)

b. Hard to amend – 2/3 house & senate & then ¾ state legislatures

V. ADVISORY OPINIONS (2/1)

A. SC will not give advisory opinions (Has to arise our of a law suit)

1. No adversary system- can’t hear either side present views

2. Many state courts render advisory opinions (matter of state law) & no big deal

B. Neither legislature or executive can assign to judicial any duties other than one properly judicial

VI. ARTICLE III STANDING

A. WHO CAN BRING SUIT – not sufficiently affected by the thing bringing action against then can’t bring it

C) Constitutional Doctrine of Standing from Article III Case or Controversy- controversial & difficult to apply

B. ALLEN V. WRIGHT (1984)

1. Action against IRS for its inaction because Bob Jones v. US decided that tax exempt status is denied for racist schools, but its not being enforced. Rule said not a charity, if practice discrimination

a. Standing?

i. Had no standing – Cannot just say that what the government is doing is illegal

b. Article III forbids hearing w/out standing

c. 3 REQUIREMENTS FOR STANDING (must have all)

i. Specific Injury in fact

ii. Causation (direct)

iii. Redressability (close to causation)

1. If win, healthy chance that problem will go away

2. HYPO- FDA drug/skin cancer (2/1)

3. Reasoning in Case:

a. INJURY IN FACT (satisfied)

i. Stigmatized – stigma in this case is too broad (not direct enough)

ii. SEGREGATED EDUCATION = LESSER EDUCATION- SC accepts this as a concrete harm

b. CAUSATION (not satisfied)

c. REDRESS (not satisfied)

A) Court says they will segregate anyway (school is wealthy anyway)

1. Threshold used? Sometimes say “healthy chance”- Lots of discretion here

2. Counter- money matters & it will change things

4. Broader reasoning:

a. Separation of Powers Issue

i. This would put judiciary in role of executive action (contrary to Marbury)

ii. Prosecutorial Discretion: Certain area of executive power we don’t want courts to interfere with (don’t want court’s saying you must prosecute)

C. LUJAN V. DEFENDERS OF WILDLIFE (1992)

a. Congress passed Endangered Species act- Q: is geographic scope of it world-wide or solely US based? Action against Department of Interior that says it’s world-wide.

b. Do not have standing, so we never get to the merits of the case

a. Injury in fact

i. Court says no imminent injury (no definite plans to go back to area to study species)

ii. Court does say that aesthetic injury counts, not just economic injury

b. Causation & Redress

i. Suing the department of the interior but they are not even the ones giving aid to build the damn, so even if they have to stop, the things will still continue. Redress fails.

D. MASSACHUSETTS V. EPA (2007)

1) Clean Air Act- EPA must proscribe new standards for cars concerning pollution because EPA not enforcing Carbon Dioxide (which was causing global warming)

2) EPA said no we don’t think statute extends to carbon dioxide & the broad issue of Global Warming

3) States bringing suit against EPA have standing (5-4)

A. Injury: Loss of coast land

B. Causation- Global warming, which is coming from pollutants, causes sea to rise

C. Dissent says the affect of new reg. on only new cars & only in US will have barely any effect. (redress not there according to dissent)

VII. POLITICAL QUESTION DOCTRINE (2/5)

A. TYPE OF SUIT ALLOWED (standing concerns who brings suit)

1. If political Q, then dismissed not on the merits (not necessarily political issue (some were though – ex. McCardle))

2. Evolved out of suits in court to challenge state court under the Guaranty Clause (Article IV, sect. 4)

a. Guaranty Clause- guarantees republican form of government in every state

b. Luther v. Borden – claimed insurrectionists entitled to relief (RI government like a dictatorship)

c. SC refused to meet the merits- decides that under the Guaranty Clause it is for Congress, not the court, to decide what government is the established one in a state

d. Non-justiciable issue (should not be decided by the courts)

B. BAKER V. CARR (1962) (Set framework for deciding Political Q) (2/5)

a. Claim: voting power unconstitutionally diluted by the continued use of the 1901 provision

i. Not Equal Protection if some votes count less than others

b. Court can hear case because no Political Q- does not implicate the Guaranty Clause, so it is JUSTICIABLE

c. Political Question Elements (Balancing Test) (Brennan):

1. Is there something textually demonstrable (In the Constitution) that gives this controversy to another branch of the government?

2. Judicially manageable standards?

3. Prudential factors: (would be prudent and wise to stay out)

d. None of the characteristics of a political Q exist in this case

i. Equal Protection refers to states of the union & is different:

1. Not running up against the president or leg. (like in Guarantee Clause)

2. Judicial standards under the Equal Protection Clause are well developed & familiar

3. Do not risk embarrassment of government abroad or disturbance at home (no prudential concerns)

e. Had they used a guaranty clause claim, case would not have been able to have been heard

f. DISSENTING – the bad voter apportionment is a Political Q

i. No judicial remedy under C for every political mischief. Court should avoid political entanglements

ii. Guarantee clause masked as something else

iii. “JUDICIAL RESTRAINT Argument“- situations where democracy, not courts, must resolve the problem

C. VIETH V. JUBELIRER (2004)

a. Political Gerrymander Background (republicans v. democrats)

i. Racial gerrymandering is different and courts have sometimes stepped in

ii. Davis v. Bandemer: can reach the merits, it is not a political Q. Not unconstitutional so allowed that gerrymandering.- controversial

b. Voters claim unconstitutional political gerrymander (PA) in drawing the district electorate line

c. H (Scalia): Gerrymander is nonjusticiable and Bandemer decision was wrong

i. Davis v. Bandemer: – said political gerrymander claims are justiciable, but no standard was agreed on

d. (1) C gives power to legislature under Article 1 sect. 4 to alter district lines (remedy)

e. (2) No manageable standards have emerged so the claims are nonjusticiable (we already tried to form one)

f. Possible standards (ALL REJECTED):

1. Fairness TOC test (from Powell in Bandemer)- Scalia says it is not solid enough

2. Racial Gerrymander Standards (Stevens)

i. Court may not willy-nilly apply standards- even manageable standards- having no relation to constitutional harms

3. Five-step prima facie test w/ Voting Rights Act, law review articles & apportionment cases (Souter)

i. Cannot be successful because we do not know what we are testing for.

ii. Powell’s fairness argument underlies it and is equally weak

4. Breyer:

a. Unjustified use of political factors to entrench a minority in power

i. Absence of cost-benefit analysis

5. Kennedy:

a. Acknowledges no current standard but says we should continue to adjudicate because a standard may one day be discovered. (view as another vote for unjusticiability)

6. CONCLUSION: overrule Bandemer (18 years of unsuccessful application of that case) and decline to adjudicate political gerrymander cases (But still law because only a plurality (4), not an opinion.

7. Since Baker- Through Equal Protection Clause, generally find way to merits (rarely find Political Q)

8. Standing is a much bigger deal & is usually used instead of political Q to screen out cases

9. Political Q Cases since Baker

a. Nixon v. US (justice impeached) (Rehnquist)

i. Court refuses to reach merits- political Q

ii. Souter concern: might be case when we would want to step in (extreme facts- hypo: coin toss guilt or innocence)

iii. Response to Souter: Court could make just as arbitrary a decision (even more susceptible to it- life tenure)

b. Goldwater v. Carter: whether president has authority to abrogate a treaty (or do you have to go back to the senate?)

VIII. JUDICIAL RESTRAINT AND ACTIVISM (2/5)

A. BUSH V. GORE (2000)

a. Bush claimed unfair because counties not following same procedure for deciding if a vote counted in the recount

b. Violated Equal Protection Clause

c. Breyer said this was a political question, and congress should decide it (article 2, sect. 1- 12^th amendment)

d. Majority of SC said not political question and reached the merits

i. Partisan intentions (5-4): The 5 were R and the 4 were D.

ii. Nothing to counter-balance the partisanship- nothing was at stake here other than how do you count a vote

e. Judicial Activism Argument (derogatory) vs. True Judicial Restraint (2/5)

II. THE POWERS OF CONGRESS

I. GROWTH OF THE COMMERCE POWER (2/8)

A. POWERS OF CONGRESS

i. State legislature have all the powers of a sovereign

ii. Congress is limited to its enumerated (Art. I Sect

1. Necessary Proper Clause – allows Congress to do things which are needed to effectuate those powers

iii. The Commerce Clause (regulate goods moving across state lines)

1. Motivations to regulate commerce:

a. Health, safety and environmental effects

b. Economic reasons (lower or higher prices)

c. Labor conditions (reduce strikes, etc.)

iv. History of Court’s Interpretation of the Commerce Clause

1. 1824- Gibbons v. Ogden (Marshall) “congress can reach any commerce that affects more than one state”

2. SC in 19^th & 20^th struck down statutes as being too broad > narrowed to a few views:

a. “In the flow of interstate commerce” Test: “Purely internal” operations left alone

b. Production Test: subject- matter determined it (manufacturing places- couldn’t regulate)

c. Some intrinsically federal could be regulated – railroads

3. 1930s- New Deal era- SC hostile economic statutes (ex. Min wage clauses)

4. Court began to expand the commerce clause

B. NLRB V. JONES & LAUGHLIN STEEL CORP (1937)

i. National Labor Relations Act-

ii. Company fired employees who wanted to organize & argued Act unconstitutional

iii. Act was not unconstitutional (5-4) and still exists today (Got ride of all old approaches, but not clear replacement)

iv. Stream of Commerce Test Disappears

v. Production test rejected too (manufacturing v. production v. shipping company- no economic/legal sense)

vi. “Immediate and direct” control of interstate commerce test (very fact dependent)

vii. Effect of interstate Commerce

1. Regulate to prevent national economy from collapsing (strikes, etc.)

2. Commerce Clause to prevent break-down of commerce (mechanism for working it out- we have many fewer strikes)

C. US V. DARBY (1941)

i. Federal Labor Standards Act- “Prohibiting Commerce Rationale”- if you produce goods & your workers worked more than max. hours or at lower wage, then illegal to do interstate shipment of those goods across state lines

1. Rationale is direct as you can get, so passes NLRB test

2. No discussion of Congress’s motive- just prohibiting commerce so doesn’t matter what motive is

3. One major limit on this Rationale- regulations cannot infringe on any Constitutional Provision (Hypos 2/8)

a. Ignoring the Bill of Rights- 10^th Amendment- undermines states rights?

i. Stone calls the 10^th amendment a truism, therefore no violation. If not in Congress’s power, only then is it the States’ rights under the 10^th (Good reading of the 10^th?)

4. In upholding it, the court had history, text & precedent to support

D. WICKARD V. FILBURN (1942)

i. Agriculture Adjustment Act- Wheat quota – home-use related to MP (would have bought it in the market) (9-0)

ii. Negates the test of “direct or indirect” from NLRB

(1) Wickard Test: Must show “substantial economic effect” on interstate commerce (Congress’s motive is irrelevant)

(a) Aggregate Effect- his home use + others home use- CONGRESS CAN REGULATE ANY ACTIVITY WHEN, LOOKING AT THE WHOLE MARKET, THERE IS A SUBSTANTIAL ECNOMIC EFFECT ON INTERSTATE COMMERCE

(2) Darby: Congress can prohibit shipments of products in interstate commerce (Congress motive is irrelevant)

(3) When using either of these (Darby or Wickard), Congress cannot violate other parts of the constitution, but the 10^th is not relevant because it is a truism

(4) Big picture from both these cases= enormous federal power

(5) Story of Judicial restraint on regulation of the economy

E. KATZENBACH V. MCCLUNG (1964)

i. Upheld for a restaurant- enough of an impact for the commerce clause to be applied (Ollie’s bbq)

ii. “Whether Congress could have rationally thought that the racial discrimination in restaurants could affect commerce”- doesn’t matter what SC thought.

F. HEART OF ATLANTA MOTEL V. US (1964)

i. Public accommodations in hotels (can’t discriminate on race)

ii. Morality & equal treatment, but the commerce argument worked

iii. Why was it necessary to pass the Civil Rights Act (why was this case not affected by it)?

(i) 14^th amendment only applies to state actions; not private institutions

G. PEREZ V. US (1971)

i. Loan Sharking ACT (can’t threaten with bodily harm)- held to be a federal crime under the commerce clause

1. There was a money line

ii. Notes: Problem in allowing federal statutes about criminal violations that are usually controlled by state statutes?

1. Erodes state sovereignty; why do we want state sovereignty? (Check on Government)

2. Local is better at doing the local investigations/trials, etc.

II. SCOPE OF THE COMMERCE POWER TODAY (2/15)

A. US V. LOPEZ (expansion of commerce clause ended with this case- provided limit but didn’t turn back time)

i. Federal statute made it a crime to prohibit gun use in a school zone- Unconstitutional, Congress lacked power

ii. Congress Can Regulate (means of transportation that cross state lines)

1. Channels of interstate commerce

2. Instrumentality of interstate commerce

3. Activities that “substantially” affect commerce

iii. Nature of activity involved- hard to see how it affects economy (Different from wheat)

iv. This statute is very brief – not part of a whole regulatory scheme about price of guns (like wheat)

v. Gov tries to show 3 effects on economy: (1) Travel, (2) Education Process, (3) Spread cost through insurance

vi. Typically state controlled: 1) Education; 2) Criminal Law; 3) Family Law

vii. FEDERALISM GOOD BECAUSE DIVIDES POWER AND PREVENTS TYRANNY

viii. FEDERALISM IS GOOD BECAUSE “LABORATORY OF DEMOCRACY”- let the states figure out what works- if only have one might not try out other things that work

ix. FEDERALISM IS GOOD BECAUSE “POLITICAL ACCOUNTABILITY” WHEN 2 GOVS INSTEAD OF 1

x. Justice Thomas (concurs but would overrule Darby & Wicker- only states can regulate manufacture and production)

xi. Dissent- Souter stresses deference to Congress- know what doing

xii. Hypo (2/15): everybody in country has to take algebra

xiii. Underlying political issue: Is federalism really worth protecting?

B. UNITED STATES V. MORISSON (2000)

i. Campus rape at state school- filed suit w/ violence against woman act

ii. O’Connor -Struck down act as unconstitutional (states’ rights reasoning)

1. Economic vs. non-economic distinction is VITAL:

a. If economic regulation, (you can aggregate those), almost always victory for fed government & then defer to Congress’ judgment

b. If non-economic regulation, don’t aggregate and defer to congress’ judgment- scrutinize instead if this is a traditional area of state law

iii. Court decides what is economic and what is not by looking to areas traditionally state controlled (unclear line)

iv. Darby and Wickard remain good law (motive doesn’t matter)

v. Non-economic activity that is intrastate in nature is off limits (guns & assault are intrastate & non-economic)

vi. NOTE: Always look at the membership of the court when looking at these decisions

C. GONZALES V. RAICH (2005)

i. Upheld statute because might become part of interstate marijuana market

ii. Why was Lopez different? (statute and federal anti-drug laws)

1. Brief single subject statute making it crime to possess gun

2. Here comprehensive framework for regulating production, use and transport of illegal substances

iii. Economist View- of course it will impact the economy

iv. Dissenters (Kennedy & two others- who usually say Congress has broad powers)

1. The more evasive the statute, the more likely it is to be upheld

2. Truly concerned about Federalism (Lopez has meaning)

III. TAXING AND SPENDING POWERS (2/22)

A. TAX POWER IN THE C

i. No direct tax should be laid unless in proportion to the census (uniform tax)-

ii. What about an income tax- some states would pay more (so would be unconstitutional if considered a direct tax)

1. Fed government didn’t originally have an income tax

2. When need for it grew it was considered fair and progressive- Unconstitutional? Direct Taxation?

a. In 1885 Pollock case said unconstitutional

b. Reversed by the 13^th amendment in 1913- Congress has power to lay tax on income w/out apportionment equal on all states

B. ARGUABLE ABUSES OF TAX POWER

i. 1922 Bailey case- tax on child labor was found unconstitutional- not designed to raise revenue, just to regulate

1. Broadening of commerce clause allows it to regulate child labor w/out tax now

ii. Taxing tends to press consumption and raise revenue (sin taxes) – (ex. Tobacco tax- maybe some will stop smoking & for the rest we get revenue). Taxing used in many areas where revenue gain is very small.

C. US V. BUTLER (1936) (SPENDING POWER)

i. Agricultural Adjustment Act – to stabilize production in agriculture by assuring products sold at fair price. Proceeds of tax were used to subsidize farmers who agreed to restrict production

ii. Congress authorized to appropriate and authorize spending for the “general welfare” under Art. I Sect.9 – Act was to aid farmers during depression

iii. Issue: If taxing cannot be used to enforce regulation in areas where congress has no authority to interfere, may it raise money necessary to purchase compliance which it is powerless to command (Indirectly enforce)?

iv. NO. Act was unconstitutional. Congress cannot purchase compliance when it has no original authority to enforce regulation. (States, not Congress, have power to regulate agriculture)

1. Coerced farmers to do something with economic pressure

v. Didn’t decide if fell within the “general welfare” terms because unconstitutional for other reasons (violates the 10^th)

1. Reading general welfare clause out of C- truism (Madisonian View)

vi. Hamiltonian view-can spend money for general welfare, general defense (it is an independent power)

vii. SC holds that the Hamiltonian view is the correct one

viii. DISSENT: Threat of loss, not hope of gain, is the essence of economic coercion

D. STEWARD MACHINE CO. V. DAVIS (1937)

i. SOCIAL SECURITY ACT: if employer also made contribution to a the State unemployment fund, that satisfied certain minimal criteria set by Sec. of the Treasury, then employer received credit up to 90% against the federal tax

ii. P argued that purpose of the tax was not revenue, but invasion of state powers

iii. Overleaped bounds of power & contravene the 10^th amendment- NO- Social Security Act is Constitutional

iv. To Be Unconstitutional (Cardozo- not much guidance):

1. Need proof that tax was used as a weapon of coercion impairing the autonomy of the states

2. Every tax is in some measure regulatory; cannot confuse motive with coercion

v. States not bound to keep unemployment systems in place, but why not leave it entirely up to the States?

1. States were afraid to enact it- afraid of consequences on the economy

vi. DEEP QUESTION HERE: Free Will Hypos (2/22)- offering something nice overcomes free will more

vii. Cardozo recognizes free-will issue, but have assumed free will- dangerous to think otherwise

viii. Use Strings Attached w/ money from Gov (can’t remove constitutional rights thought (scrutinize motives)

E. SOUTH DAKOTA V. DOLE

i. “State will lose federal highway money if they don’t raise drinking age to 21″ – Statute upheld

ii. Congress used spending power instead of Commerce power because 1) easier to get the votes & 2) the 21^st amendment gave states’ special powers concerning drinking

iii. 4 PART TEST for seeing if strings attached was constitutional (must pass all 4)

1. Exercise of the spending power must be for the general welfare

2. (controversial) Condition imposed on States must be unambiguous (have to know what they are getting into)

a. Ex. Pennhurst School and Hospital v. Halderman- “appropriate treatment” = not specific enough string

b. Two supplement cases – disability education statute – should have know about the string

3. Strings must be related to the actual funding (must be a connection)

4. Congress cannot force a state to do something that would be otherwise unconstitutional

iv. Dissent – not enough connection between highway and drinking age

v. HYPO (2/22) : Funding for American Values Institution at public universities (standing & on merits arg)

IV. SECTION 5 OF THE 14^TH AMENDMENT (2/27)

A. 14th AMENDMENT: States cannot deny you life, liberty, or property w/out due process

i. “Without due process”- SC held that this language incorporated key provisions of the bill of rights against the states (Incorporation Doctrine)- Ex. States must protect first amendment right too, but some provisions not incorporated

ii. The 2^nd amendment (right to bear arms) – Parker Case- individual right? (present DC case)

iii. CONGRESS GOT ANOTHER ENUMERATED RIGHT (ENFORCE 3 AMENDMENTS- 13^th, 14^th, 15^th)

1. Scope of Enforcement? (Can they pass laws to enforce the 14^th?)

B. KATZENBACH V. MORGAN (How far can Congress go to enforce the 14^th?) (Equal protection 15^th or Due process 14^th?)

i. Congress Statute that certain non-English literate people should be able to vote- those with good education from other language school- SC (Brennan) upheld what congress did (had said state’s could do what want in Lassiter)

ii. 1) Theory: Pure enforcement of equal protection rights

Congress ensuring fair treatment from police/schools – if you can’t vote then you can’t ensure fair treatment

iii. 2) Theory (more controversial): Congress can go beyond Lassiter – equal protection is bigger than SC thought

iv. Dissent (Harlan)

1. What would prevent Congress from diluting rights

2. IT IS FOR THE COURTS TO DECIDE (substantive)

v. Response: Congress can’t dilute equal protection because it says it can only “enforce” the provisions, not restrict

C. CITY OF BOERNE V. FLORES

i. Zoning church size laws- can’t increase size of your church- lots of other religions had bigger churches

ii. 1963 Sherbert v. Verner- only burden your freedom if compelling state interest (Free Exercise Clause)

iii. 1990- Smith (NA & Peyote) reversed Sherbert- New Test: as long as neutral law that is not discriminatory to religion

1. BUT could be neutral on face & secretly discriminatory

iv. Reinstated Sherbert when Congress enact RFRA (Religious Freedom Restoration Act)

v. Due Process Clause imposes free exercise clause on the states, so Congress can enforce that right under section 5

vi. POINT: How broad is the section five power?- Congress cannot not decide substantive matters of C

1. Reverses Katzenbach’s Theory 2

2. Deters or remedies violations of C but cannot decide what is a constitutional violation

vii. Danger of allowing them to alter the meaning of the C:

1. Inconsistent with C because should enact an amendment if want that kind of change (This is what Marbury v. Madison was all about)

viii. 1) SECTION 5 POWER LIMITED TO ENFORCEMENT AND REMEDIAL MATTERS

ix. 2) ENFORCEMENT & REMDIAL ONLY WHEN PROPORTIONAL & CONGRUENT TO THE MATTER

x. Congress wasn’t changing the meaning of it, they were saying you’ve been interpreting it wrong (rejected)

xi. Kennedy: If enforcing or going to far Test: There must be a congruence and proportionality between the injury to be prevented or remedied and the means adapted to that end. (congruence- statute must match up to the problem)

D. SUBSTANCE OF THE ISSUE

a. Additional problem with RFRA- It says if trying to stop church from building extension, can only do it if compelling state interest- Stevens (Concurrence) thinks this violates freedom of religion

a. Favors religion over say a commercial building that wants extension

b. Not fair to give religion this break- non-profit, scientific groups don’t get the same break from zoning laws

c. Can you really say RFRA is just making everyone better?- Diminishing non-establishment values

b. Statute (2000 ARLUPA Act- Religious Land Use & Institutionalized Persons Act) & its constitutionality is pending – shows compelling state interest test can be used under Court’s own standards in narrow circumstances

i. If state infringes on your land use or on you in jail, then state must show compelling states interest

c. Commerce Clause rationale- (more like Raich or Lopez?)

d. Section 5 Rationale- (Secret prejudice at play or just an attempt to increase Congress’s powers?)

V. 11^TH AMENDMENT (2/29) (goes with 14^th?)

A. HISTORICAL BACKGROUND

i. Chisholm v. Georgia (1793) – allowed lawsuit when non-citizen of GA sued state of GA for debt

1. Outcry- concerned federal courts would too quickly find the States liable

ii. Constitution Amended (11): Cannot bring lawsuit in federal court seeking money damages against a state

iii. 11^th Amendment = citizen of another state cannot bring suit against someone in another state (money damages only)

iv. Hands v. Louisiana (1890)- Person in a state cannot sue own state

v. State Sovereign Immunity (state can waive it if want to)

vi. Power of Federal Government?

1. Congress can sometimes Explicitly pass statute aggregating state sovereignty (DEPENDS)

a. Fitzpatrick v. Bitzer- law had been passed under Sec. 5 of 14^th & suit could continue because Congress had explicitly knocked out state immunity in the statute

b. Seminole Tribe Fl v. FL: SC said cannot pass law to know out 11^th amend state immunity

c. 11^th was meant to limit Congressional power back then (1798) when State much more important

2. What can Congress do then?

a. Remedies for 14^th and push it as far as they can

b. If law is not valid exercise of Section 5, have to bring under 11^th (if employer is government)

B. EQUAL PROTECTION CLAUSE (EPC)

i. Challenging a distinction in a statute when challenge something under the Equal Protection Clause à State simply has to show that their distinction is rational à D has burden to show statute was irrational

ii. Discriminates on Race à Strict Standards à Must show compelling state interest

1. Section 5 works well to combat racial discrimination

iii. Gender Based à Less Stringent à Show state had an important interest in drawing the distinction

iv. KIMMEL V. BOARD OF REGENTS: Age discrimination in state governments (EPC allows it because rational)

v. HYPO (2/29)- Rational age discrimination statutes

vi. BOARD OF TRUSTEES V. GARRET (2001)

1. Employers with Disabilities Act à can’t discriminate against disabled & have to make reasonable accommodations

2. ****This is about the state – Private companies could not do this, but the state will do it because they are not bound because of the 11^th

3. Remedy has to be congruent and proportional to the violations of the equal protection clause

4. Congress failed because there was a rational basis, but it was not congruent and proportional

a. Unable to show that states were being systematically discriminatory to the disabled

5. Dissent: defer more to Congress- see why they felt approach was needed

vii. HIBBS DECISION

1. Family and medical leave act (state would not give people leave under the act)

2. Lawsuit brought in federal court for $ damages & government forced to argue that it was a Sect. 5 effort to enforce, not change the equal protection clause

3. Rehnquist said Act was ok- Court sympathetic to Congress

4. Not enough to say rational- have to show important government interest when gender discrimination

viii. TENNESSEE V. LANE

1. Disabled Act – paraplegic sued ’cause state did give wheelchair access for him to make court appearance

2. Not about employment- he had a court appearance (arrested for failure to appear)

3. Congress is not just enforcing equal protection clause, this is about the entire bill of rights

VI. TREATY POWER (3/12)

A. MISSOURI V. HOLLAND (MAIN)

i. Missouri sued S of Agriculture for enforcement of Migratory Bird Treaty Act (Treaty w/ Canada and Britain)

ii. Claimed unconstitutional and infringes on the 10^th - Federal Government lacks power to do this; reserved to the states

1. NOTE: commerce clause would cover it today

iii. Treaty power does permit Fed government to regulate the bird hunting

iv. Justice Holmes analogizes C to a living organism – consider it in light of American history and all that has happened

1. Does not take 10^th very seriously as a source of power in the Constitution- Truism (Darby)

a. States’ retain powers not delegated- but if national government is government of enumerated powers, then the 10^th adds nothing. We already know it. It has no force & forbids nothing.

b. Other interpretation: could read 10^th as securing the power of the states

2. Holmes suggest treaty power is not limited by the 10^th

B. HOLMES DICTA

i. Treaty Power is subject to no restraints, not even under the first Amendment

ii. Supremacy Clause Language: This constitution and the laws of the US which should be made in pursuance of and all treaties made under authority of the United States”

1. Laws are pursuant to Constitution, but treaties just made under authority of the US

a. So maybe treaties not under bill of rights at all

2. “Acts of Congress are the supreme law of the land….treaties are declared to be so when made under US…” (not in pursuance of the constitution)

iii. ARGUENDO: if does have to be pursuant to C, this Treaty doesn’t violate it

1. Article 2, Sec 2

2. Is there a great national interest? (very important Q for Holmes)

a. Yes, “National interest of very nearly the first magnitude” (modern view- animal protection)

C. REID V. COVERT: similar case

i. Accused of killing husband & Treaties w/ Britain allowed them to try her in a military tribunal

ii. She said they had no right- treaty is subject to C

iii. REID V. COVERT PLURALITY (not binding) (Black)- C applies to treaties

1. Distinguishes Holland – was only about tenth and didn’t violate Const.

2. Answers Holmes Q: only reason it was written that way was to make earlier treaties remain in force.

a. Problem: Article 6 Section I already solved earlier treaty issue, don’t need Sect. 2 to do it

3. Answer was attempt to answer Bricker Amendment

iv. Bricker Amendment (was not adopted- Still a live issue)

1. Stated: a contradiction of a treaty with C, cannot be enforced

D. TODAY: HOLMES DICTA V. REID PLURALITY (unresolved- make arguments)

i. HYPO (3/12): Tension w/ Iraq and Iran, so US treaty w/ Saudi Arabia that violates woman soldiers’ equal protection (14^th). Would win if US case & Congress had passed it, but treaty so maybe do it? (Argument for & against)

ii. HYPO: Country practices murder at their embassy in US

iii. Valid treaties must- “proper subject of negotiation”- real agreement (actually matters to both countries), otherwise House would be slighted (not involved in ratification of treaties = circumventing system)

iv. HYPO: Treaty w/ China – we will do away with Federal Death Penalty (assume popular in House), if they will abolish death penalty in China. (Bona fide subject of Negotiation or just domestic law in both?) (hmm human rights is subject of many modern treaties)

E. TYPES OF TREATIES UNDER AMERICAN LAW

i. Self-Executing Treaties (don’t require implementing legislation)

1. Upon ratification, it becomes law under Article 6 (moment executed becomes law)

ii. Implementing Legislation Treaties

1. Need legislation for the treaty to become law

2. Ex. Missouri complained about the implementing regulations.

iii. Implementing Treaties subject to C, so issues today are not of concern. Issue is with self-executing treaties.

VII. STATE AUTONOMY LIMITATIONS (3/14)

A. FURTHER LIMIT ON CONGRESSIONAL POWER

i. Certain Congressional actions violate fundamental principles of federalism in the C (don’t involve the 11^th)

1. National League of cities: Congress cannot set minimum wage for state employees

2. Garcia overruled National League

a. Traditional government function test failed

b. Garcia is good law today

B. NEW YORK V. US

i. Low level nuclear waste -ex. want hospitals but want the waste to go somewhere else “not in my backyard”

ii. Article 1 Sec. 10- no state shall, with out permission of Congress, enter into a compacts with other states

iii. STATUTE: 3 incentives to encourage waste sites in states

1. 1^st incentives:

a. can impose surcharge for other states’ waste

b. money put into escrow (secretary of energy) &reward states when they do things right

2. 2^nd incentives:

a. A state that accepts waste can increase the costs for access from other states & can eventually deny access by other states

3. 3^rd incentives:

a. Take Title Provision: for states that don’t want to take care of waste themselves

i. Either regulate according to regulations set forth by congress OR

iv. 3^rd incentive was unconstitutional infringement

1. Did not get this conclusion from the 10^th Amendment

v. NOTE: If part is unconstitutional, does the whole statute fall?

1. 3^rd incentive was severable, so the rest of the Act could go forward

vi. (O’Connor) Not a revolutionary opinion (doesn’t overrule Garcia- Garcia is not imbedded)

1. She discuss 10^th Amendment (can be seen as discussion of federalism in constitution)

a. Not meant to be drastic & completely restrict federal government (flexible)

b. It is a Tautology (ex. A =A) – it doesn’t do anything. The 10^th is ineffective

vii. Strike down Take title: What is the limit (what can the government not do)?

1. Anti-commandeering Principle: Government cannot commandeer the legislative process of the states = you cannot use (conscript) state officials or employees to do the federal work

2. Disallowing of a method, not limiting power of Congress to achieve its ends

a. Federal law is Supreme over State law that is contrary

b. Could pass statute to dispose of the waste a certain way (Allowed to regulate nuclear waste)

c. BUT cannot use states as adjuncts of government

viii. Policy Argument: Commandeering is bad because accountability is destroyed

ix. First Incentive (Valid Regulation Techniques at work)

1. Can regulate commerce in this area, Taxing power & Spending power (passes 4 part strings attached test)

x. Second Incentive (Valid Regulation Techniques)

1. Preemption: given a choice: follow regulation & we’ll do it or do it yourself

xi. Third Incentive (Not Valid- Fails test)

xii. Both options are independently coercive, so not preemptive right. Basically making states work for Congress

xiii. Can compelling interest trump commandeering? NO – fundamental to structure of C

xiv. Government Waiver Argument? – NY was involved in setting up statute so waived challenge

1. O’Connor rejects – federalism is meant to protect NY people, not just legislators

2. Federalism & separation of powers are designed to weaken government to protect individual dignity

xv. NOTE: Some rights that can be waived and some cannot- HYPO: (3/14) waive right to cruel & unusual punishment

xvi. NOTE: This principle applies to state legislatures, but not state courts. Can require state courts to hear cases concerning federal claims.

xvii. Dissent (White)- State officials will make sure people know that government is behind unpopular legislation

C. PRINCE V. US (extends NY v. US)

i. Cannot commandeer state executive officials

ii. Statute (Brady Act): Before big computer system goes up send form to chief officer in relevant district & make reasonable effort to decide if can sell to the guy (determines work, money spent, etc. of state officials)

iii. Reno v. Condon: Driver’s privacy protection act- very much like prince: statute falls

1. BUT SC reverse & upheld statute 9-0 (seems to contradict prince)

2. In Prince regulation applied only to state officials, this one governs private sellers

3. Doesn’t explain if need both features or some, just says here are the differences (not sovereign activity & applied to private and public)

a. Sovereign?- Isn’t raising money a sovereign activity

b. Private & Public: why is different just because public involved too

iv. HYPO (3/14): rare diseases starting to kill animals (Statute: Public (lose money if don’t record) & private zoos (get money if record))

v. Gonzales v. Oregon: assisted suicide allowed in Oregon sometimes

1. Arguable that federal statute regulated area in a way that invalidated the Oregon law- SC said NO

2. BUT in REISH court took other view (marijuana): they said yes federal law regulated that

III. LIMITS ON STATE POWER

v States have power unless it is taken away: Three limitations clearly defined:

1) Article I Sect. 10: states cannot enter into treaties or coin money

2) 14^th: cannot deny people of equal protection or due process

3) Where Congress has an enumerated power and exercises it, it renders invalid state law that is inconsistent with the federal law- Preemption- federal law preempts state law. From language of Article VI

I. DORMANT COMMERCE CLAUSE (3/19)

A. What if Congress is silent in an area where it has power to legislate?

i. State’s can decide OR No either we have a federal system, or we have none at all

B. Commerce Clause Area (Congress has not acted)

i. If whatever want, could cut off trade to other states

ii. If could do nothing, then couldn’t even regulate safest measures (Modern Ct. rejects all or nothing rules)

iii. Tests for if violate dormant Commerce Clause

C. Justifications for Dormant Commerce Clause:

i. US is a common market- barriers to commerce should be discouraged

ii. Benefits instate residents at expense of out of state residents who are powerless to change it (BREAK DOWN IN DEMOCRATIC PROCESS)

iii. HYPO (3/19): Georgia isoberry medicine

D. CITY OF PHILADELPHIA V. NJ

i. Prohibits importation of most solid waste collected outside of the state (scarce resource = landfills) (Congress is silent)

ii. YES Commerce is involved in this case (Stewart)

iii. Statute struck down- Protectionist measure (discriminates against out of staters, & (1) no VALID non-protectionist reason and (2) no non-discriminatory alternatives (needs 1&2 to be constitutional))

iv. Dissent: quarantine laws- we let them keep out people BUT both in and out affected

v. Policy Issues: is this the right result?

A. Federalism questions?

a. Individual states free to legislate & Congress silent on the issue

b. Congress power by own force gives power to strike them down because other wise isolationist issues?

c. If you think the movement of waste is dangerous, that doesn’t justify the statute

B. This is the isoberry case

C. Backstop here is congress

vi. Advantages to Congress stepping in? (federal regulation for environmental problem)

A. Same standards everywhere

vii. Want international regulation in this area?

viii. Courts anti-discrimination policy has been stringent, but should it be?

A. One exception Maine v. Tailor- Importation of live bait fish (had diseases)-

a. Stevens dissent- thought inspection system would work as alternative

ix. Dean Milk Case: All milk sold in city must be bottled and pasteurized w/in 5 miles of the city.

A. So discrimination across the board

B. Even-hand discrimination irrelevant- state itself would allow or not allow the ordinance, but out of staters still have no vote, while instaters could make a deal

E. C&A CARBONE V. CLARKSTOWN

i. Flow control ordinance – all trash to one private company (higher fees) & Carbone gangster wanted to dispose elsewhere

ii. Upheld Carbone’s challenge

A. Valid non-protectionist reason

B. Valid alternatives

a. City said interest in always having a system

b. Kennedy says alternative- could have subsidized (through taxes) the companies w/out giving monopoly.

c. Giving private facility a monopoly- worse than dean milk because single monopoly (no competition)

iii. Souter Dissent-

A. Better than dean milk because all local companies also excluded

B. Democracy is an adequate check here

C. Subsidies is not the free market- distorting the market just as much

iv. KEY FACT: subsidized a “private” waste transfer station

A. So what if the city ran it itself (to an economist just as bad, BUT to others different analysis (diff. day)

v. Two rationales that all justices have for dormant commerce clause

A. US is a free market and common market (Const says so for w/in the States)

B. Protectionism can flourish when democracy breaks down (when out of staters bear the cost & don’t have a vote)

vi. Justices Kennedy & Souter split on which rationale with more important

a. Clarkstown statute does violates US free market and common market (Kennedy)

b. Statute however does not really break down democracy (Souter) – ever voter is hurt by the statute equally. If hurt enough they will repeal the statute- democracy can still work

vii. HYPO (3/19)- small town in Vermont sets up auto repair shop

II. SUBSIDIES AND FACIAL NUETRALITY / BLANCINCING & PREEMPTION (3/26)

A. CONCLUDING DORMANT COMMERCE CLAUSE

a. Court can strike down state laws in areas where Congress is silent

b. If state statute discriminates on face, ask if valid non-protection reason for it and if no alternatives (very strict test- rarely passes- burden on state)

B. TWO MAJOR EXCEPTIONS (to striking down facially discriminating state statutes)

a. When state uses tax subsidies from general revenues to benefit instate interests

i. HYPO: (3/26) MD collects general taxes (broad range of things)- can give subsidy to particular industry if it wants to

ii. Distorts the market- dairy farmers w/ subsidy could charge a little less, but allowed because political process is a reasonably good check- less money for other funded services. Everyone understands the balance & keeps it in reason

b. Market Participant Exception

i. Reeves Inc. v. State: upheld state policy restricting sale of cement produced in a state-owned plant to state residents

1. States can have goals other than maximizing profits (voters decide if want state business)

2. Clarkstown get around Carbone- Own recycling department & charge low rates to instate users

3. HYPO-(3/26) Reduced tuition for instate students (Policy for & Against)

ii. Central Timber Develop. V. Wunnicke: Alaska sold timber only to instate (ok) but if buy from us have to process it here- Cannot regulate downstream. Cannot regulate after sale because then become state regulator again. (Ex. – would be like saying in-state students can’t move out of state after college- NOT OK).

C. WEST LYNN CREAMERY, INC V. HEALY

a. Tax on milk (all producers) – subsidy goes to in-state milk producers & brings instate producers back to even

b. One rational- Constitution even if silent tried to make a national common market

i. This statute affects that because out of state have to charge more (against idea of Nation of common markets)

c. STEVENS-

i. 1) This is exactly like a tariff

ii. 2) It is a break-down in the political process (Out of state can’t change leg.)

d. However consumers instate will be unhappy (Consumers not concerned enough about a few cents higher)

e. (Scalia) Subsidy from general revenues is ok but this kind of tax is not ok- targeted plan is too much

i. General subsidies however are 1) more transparent & 2) general expenditures come up for vote each year

D. HUNT V. WASHINGTON STATE APPLE ADVERTISING

1. Statute: All apples sold in NC must have no grade other than grade US standard (that one or none)

2. Washington challenges because have a SUPERIOR system of grading and huge burden to change packaging for NC

3. Strike down (9-0): NC growers do not get hurt at all & burdens interstate commerce & NC producers responsible for leg.

4. Consumer protection (no goods) – furthers no protection goals

5. FACIALLY NUETRAL BUT IT DOES AFFECTS DORMANT COMMERCE CLAUSE

a. Otherwise would give sneaky way for states to avoid commerce clause

b. Often pass facially neutral statutes w/ negative impact on interstate commerce, but if valid business reason ok

6. EXAMPLES (3/26) (sometimes hard- mixed good & bad motives)

7. GUIDELINES FOR VIOLATIONS OF DORMANT COMMERCE CLAUSE

i. If neutral on face, burden on challenger to show that the harm to interstate commerce clearly outweighs the benefit that the state is seeking to gain (balancing test- must be won decisively)

ii. If discriminatory on face, then burden is on state, not challenger, to show that they have a valid business reason and no possible alternatives

iii. Minnesota v. Clover Leaf Creamery- Prohibited milk in plastic containers (only) paper – for environment

A. Instate pulp industry loved it & out of state producers basically used all plastic

B. Court thought enough of genuine environmental interest (challengers didn’t prove burden)

E. EXON CORP. V. GOVERNOR OF MARYLAND (defies easy categorization)

a. MD Statute: can’t sell gas instate if producer of petroleum, so now only franchises allowed. Cannot have vertically integrated company in Maryland (produce to retail process)

b. Upheld, even though those hurt by state were ALL OUT OF STATE. Burden is entirely on out of state companies.

c. No violation because no difference in amount shipped in – Exxon still sells gas in MD- its gas demand is same

d. MD has regulated market structure but not affected flow of products (interstate commerce)

e. DISSENT (Blackmun) Helping MD citizens at expense of others

f. SC Generally – if think it’s a trick, then like Hunt. Divided when mixed (Roberts & Alito on opposite sides)

F. KASSEL V. CONSOLIDATED FREIGHTWAYS CORPS.

a. Iowa truck height statute

b. (Powell) Statute Struck down - Incantation (ritualistic statement) of safety insufficient- show actual safety improvements

c. Rehnquist said we should not second guess safety- that is for the legislature

IV. SEPARATION OF POWERS

I. INTRODUCTION TO EXECUTIVE POWER (3/28)

1. RELATIVE POWERS OF PRESIDENT CONGRESS AND COURT

A) ARTICLE II (Not a lot of domestic powers given under article II)

a. SECTION I: executive power vested in president

b. SECTION II: commander in chief, can require opinion of cabinet members, power to grant pardons, power to make treaties, nominate officers of US

c. SECTION III: Gives Congress info on the state of the union, recommend legislation. Shall receive ambassadors (decides whether to recognize a foreign government)

B) YOUNGSTOWN SHEET & TUBE CO. V. SAWYER (Scope of Executive Power)

a. Truman had Secretary of Commerce seize the steel mills (strike during Korean War)- allowed to grant wage increase

b. (Black- majority)- Truman’s action is unconstitutional

c. President’s sources of authority

i. Act of Congress (Statutes)

1. No such statute

2. Congress appears against it- Taft Hartley Act (meant to address this issue & president ignored it)

a. Must go to D Ct. & must find emergency need

ii. Constitution

1. Executive power vested – President has executive not legislative powers

2. Take care that law be faithfully executed- NO, he is legislating here (usurping)

3. Commander in chief- NO, Expanding theatre of war (all-encompassing level) (domestic dispute)

4. NOTE: Illegal actions in the past bear no relevance on the C- Congress has not lost exclusive authority to make laws

d. Concurrence (Frankfurter): Constitution = framework for government- historic traditional plays a role

i. Problem: Brown v. Board of Education – history supported separate but equal

e. ***CURRENT FRAMEWORK FOR ANALYSIS*** (Jackson Opinion – most influential of case)

1. President acts pursuant to Congress (Congress passes law giving him power & executes it)

2. President acts on issue that Congress is silent about

a. Zone of twilight- Maybe overlap of powers. Will be determined by circumstances (how big an emergency). Not decided on abstract theories of law.

3. President defies congressional orders. Disregards Congress.

1. President will likely be struck down (That was this case- domestic)

2. Only if president’s constitutional power is enough that he could win

f. Dissent (Vinson)- Role of history; President referred it & Congress did nothing; Pres more than messenger boy

g. SC has power to make president shut down the steel mills during a time of war- president complies. SC role in American system is strong.

h. Argument that not group 3 type (Jackson)?

i. Acquiescence: President sent notes to Congress & they were silent

ii. Just because they didn’t pass Taft Hartley, doesn’t mean they oppose President having that action.

iii. No statute that specifically forbids the president to seize.

i. Jackson rules against Truman but says that court cannot prevent dictatorship

i. Tools belong to the man that can use them- we may say that the legislative powers lie with congress, but only congress can prevent it from slipping out of its hands- Congress’ responsibility to check the president’s grabs at power

C) DAMES & MOORE V. REGAN

a. Iranian Revolution- Crisis- took American hostages & President Carter freezes Iranian assets

b. Deal: International arbitration; Dames & More had suit against Iran

c. Some like chances better in US court than the Hague arbitration- CLAIM- P didn’t have power to forbid trials in US

d. SC: Uphold Carter deal

i. International Emergency Economic Act: Statute, not directly applied. Envisions P seizing the assets (Jackson CATEGORY 1)

e. BUT President also suspended pending cases in US courts (CATEGORY 2- Youngstown would have said it was 3)

f. Consistent with Youngstown? (Applied in more flexible manner to give P deference w/ foreign countries)

i. Role of Congress: Congress acquiesced in both cases- different emphasis on acquiescence

ii. This feels less like a domestic dispute and more like a foreign policy dispute

g. If remove president’s power to bargain after the fact – Bad long-term consequences.

h. HYPO: (3/28) Terrorists seize 3 civilian nuclear power plants & P orders evacuation (can he?) (category?)

D) METAYEEN V. TEXAS

a. SC supported Mexican national who claimed right under treaty to notify Mexican consulate when arrested (murder)

b. Treaty gave him a right & Bush executive order- US will discharge obligations under treaty- courts will give it effect

c. Treaty was not self-executing, so not yet the law of the land- makes it a CATEGORY 3

i. No history of acquiescence- president loses this law suit until Congress acts to implement, TX wins

II. PRESIDENTIAL POWER IN FOREIGN AFFAIRS (4/2)

a. FOREIGN AFFAIRS

i. President’s commander in chief power comes up more in foreign affairs

ii. Treaty making power & power to receive ambassadors

iii. Executive is stronger in foreign than domestic affairs

iv. Dramatic claim by presidents: un-enumerated powers in foreign affairs (not listed in C)- SC has resolved it

b. TEXTUALIST CLAIM

1) Section 1 Article 2 vs. Section 1 Article 1

a. Article 1: “All legislative Powers herein granted”- suggested they will be listed in the C

b. Article 2: “The executive power shall be granted”: does not say “herein granted”

2) Hamilton thought this distinction in the C meant the P had un-enumerated powers in foreign affairs

c. UNITED STATES V. CURTIS-WRIGHT CORP (Curtis-Wright dicta)

i. Joint resolution (= statute) of Congress authorized the President to declare the sale of arms to certain countries illegal if it promotes peace (ARMS EMBARGO) & Delegated authority to P in the future

ii. President said sales to Bolivia were unlawful – Ds claim unconstitutional delegation of legislative power to the P

iii. (Sutherland) Category 1- no need for reasoning but wanted to define the powers more

iv. SC has never held whether or not it agrees with the Curtis-Wright Dicta

v. Domestic- limited to enumerated powers, but Foreign- un-enumerated (don’t have to point at something in C)

vi. Historical reasons- Foreign affairs powers are inferences of sovereignty (from Britain) – States never sovereign in foreign affairs- no need to carve out a list (like for Domestic powers which came from states)

1. Text Problem: If don’t need to list, why are some listed (ex. Power to make treaties)? (surplusage)

vii. P is sole organ of federal government- One voice (US Representative), Confidentiality, Better information

viii. Unknown if modern justices would accept Dicta

ix. How far does the un-enumerated power go? HYPO 4/2- Buy land in Syria for selfish reasons

x. BIG QUESTION: Do you want the president exercising un-enumerated powers to serve his conception of the national interest? Or should we stick to Youngstown authority in foreign affairs (deal Congress into it)?

d. MODERN RELEVANCE- Do we want un-enumerated power for the P?

i. Romney – When would P have C authority to bomb Iran w/out seeking use of force authorization from Congress?

1. Must act to protect against a potential threat but preferable to seek authority (Dicta) (Not partisan issue)

2. P could try to claim just doing a military action & not war.

e. HYPO (Potential for exam 4/2): Civil war in Argentina & Bush says no travel there 1) Political Q; 2) Dicta; 3) Youngstown

f. SEPARATION OF POWERS ON WAR-MAKING AUTHORITY

i. Congress has the power to declare war (Article 1, Section

ii. Could the President respond to an enemy attack (modern issue)?

1. (YES) Explicitly discussed in Constitutional Convention- gave Congress power to “declare war.” In sudden attack, President can make war & then Congress simultaneously declare it.

iii. Congress has never declared war. WHY DOESN’T CONGRESS DECLARE WAR?

1. Less political heat for Congress & declare war against somebody (Modern wars don’t look like that)

2. Maybe Congress has in fact declared war- just doesn’t formally call it that

3. OR “The tool belongs to man who can use them” (napoleon reference from Jackson Youngstown concurrence) – Presidents have just taken over the power

iv. 1866 Prize Cases- Lincoln blockade before Congress declared Insurrection (ok)

III. DETENTION OF ENEMY COMBATANTS (4/4)

a. WAR POWERS RESOLUTION

i. President can repel sudden attacks but beyond that, controversy

ii. Has never been a formal declaration of war- so what is Congress’ role in war

iii. Vietnam shaped war powers resolution (Johnson and Nixon)

1. Presidents make arguments that war legal & Congress declaration unnecessary

a. Gulf of Tonkin Revolution, Congress financed the troops, SEATO Treaty, Curtis-Wright

iv. Congress reacted by passing War Powers Resolution Act

1. Sec. 1547- Cannot use to infer ability to wage war: general language from other statutes (Tonkin) & treaties (SEATO) unless Congress specifically authorizes US force use in hostilities

2. Was this meant to be definitive legally or just a guideline? (MAYBE JUST GUIDLINE SECTION)

3. 1541(c) – When President can send forces into combat: (1) Declaration of war, (2) Specific statutory allowance, (3) National emergency created by an attack on US or our armed forces

v. Ps have called (1547) unconstitutional- doesn’t list all ways that President could use force: ex. Attacks on our allies, Genocide (humanitarian grounds), & American civilians overseas (tourists)

vi. Senate version- P could send troops to protect Americans overseas- it was dropped- perhaps concern that that allowance would make the power too broad & it could be used as a pretext by the president

vii. Consultation Provision- should consult w/ congress; & Reporting Provision- if use force, must report that to congress

viii. 1544(B) - Action section (clearly not guideline section – this is the law). Whenever he sends forces into hostilities without authorization he must terminate that use within 90 days (ACTION SECTION OF ARGUMENT)

1. 1544(B) suggests P can do ANYTHING as long as it lasts less than 90 days

2. So really saying President cannot have PROTRACTED USE

ix. 1544 (c): Congress by concurrent resolution, can order a pullout within 90 days

x. 1547 (d): Nothing in chapter meant to alter Constitutional power of Congress or President (well obviously it can’t)

b. EFFECT OF WAR POWERS RESOLUTION

i. Lots of criticism but it had effect. Ineffective only if you mean Congress hasn’t stopped wars from happening, but in authorization by Congress view, the Resolution seems to be working. (Reagan pullout, Persian wars, Iraq)

ii. Iraq war Congressional Voting- effects the P election currently (accountability is brought by the statute)

iii. President argument if he violates it:

1. (1) Resolution is unconstitutional OR (2) If not unconstitutional, I complied with it by being out in 90 days

iv. Policy Concerns

1. Congress may be dependent on P for flow of information- may not be as independent as would like

2. Political environment- once involved in war Congress authorized- unrealistic to pass a law pulling out

v. Another ISSUE: Can the President lawfully order assassinations (non-military led) overseas?

1. Executive orders by Ps (Reagan 1^st), banning assassinations (assassination not defined)

2. Since 1998 Clinton administration, interpreted that ban to not cover non-heads of state

vi. Should P be able to order assassination of Osama?- Government loosened definition to be able to kill terrorist leaders

c. HAMDI V. RUMSFELD

i. Detention of US citizen on US soil (South Carolina)

1. Soldier of Taliban so US thinks can hold till hostilities over w/out charging him with crime or holding trial

ii. His father sought Writ of Habeas Corpus petition & case reached SC

1. Calls on government to explain why someone is being held

2. Basic level of protection that enables you to go before a judge and ask why a person is being held

3. Forces government to give a reason & not hold people incommunicado

iii. Article I, Section 9, Clause II: Congress can suspend the Writ when in cases of rebellion, the public safety may require it (Congress has not done this)

d. Hamdi wants Habeas & then wants to be able to say that they are wrong

e. (1) Does executive have authority to detain US citizens who qualify as enemy combatants?

f. (2) Once lawfully detained, what process is he entitled to?

i. Issue of procedural due process (enormous flexibility for PDP- varies on context)

g. Due process demands meaningful opportunity to contest factual basis for detention before neutral decision-maker

h. REASONING (O’Connor Plurality opinion (4)- no opinion for the court- must patch together the stances of the court)

i. 1a) Does not address the Article II power question for president detaining him- Did not accept or reject (open)

i. P argues unlimited power to detain (Curtis-Wright Dicta)

j. 1b) Congress authorized detention through AUMF (Authorization of Use of Military Force Resolution)

i. Clearly satisfies War Powers Resolution- this statute is extraordinarily strong authorization – maybe even same as declaration of war

k. 1c) Hamdi Invokes Emergency Detention Act (1971)- Congress says AUMF does allow detaining

i. No citizen can be imprisoned or detained by US except pursuant to act of Congress (passed during Cold War to stop detaining people suspected of communism)

ii. Court – broad lang. of AUMF implicitly satisfies earlier ACT- Congress meant to authorize detaining US citizens

l. 2) If detainment allowed, WHAT DUE PROCESS IS DESERVED?

i. Government claimed held under MOBBS DECLARATION- Court says he deserves more (4 votes):

1. Mobbs does not satisfy procedural due process- Need notice & a hearing

2. Need to show evidence that enemy combatant & must give him some chance to respond (middle ground)

a. Doesn’t require usual kind of hearing- could meet burden by presenting statements like Mobbs that have hearsay. Burden can even be put on defendant instead of government

3. Respect for separation of powers- not going to be totally deferential

m. SOUTER CONCUR/DISSENT (Doesn’t agree w/ O’Connor but concurs to give him PDP rights)

i. 1) Have to look at authorization for use of force and Non-Detention Act

1. Doesn’t meet threshold of the detention act- Congress could have put detaining part in AUMF but didn’t

ii. Should have been treated as prisoner of war- violated Geneva – there was no imminent threat so not appropriate

iii. 2) No full trial but chance to respond (agree with plurality) (makes 7)

n. SCALIA & STEVENS DISSENT

i. 1) This guy should be set free immediately (2 choices) (NOTE: Curtis Dicta Q not answered)

1. Constitution creates provision to deal with this situation

a. Can charge him with TREASON- in Constitution (very serious offense)- person gets trial

b. Can suspend writ of Habeas Corpus through Congress- incommunicado for national security

ii. 2) He should get a full trial- the full process of the American Criminal Justice system

o. THOMAS DISSENT (Clear he would endorse Curtis-Wright Dicta)

i. 1) 5^th vote that President can detain US citizens- P has Constitutional authority under Article II

ii. 2) No procedural due process rights guaranteed- Mobbs is fine & president can decide process rights he deserves

1. People may be wrongly held but that is just a consequence of combat

p. Government eventually released him, why?

1. OPTION 1: NO case and didn’t want bad press

2. OPTION 2: (reason given) – Information on him was so confidential that it had operational details (ex. Informants & methods used) & could not be allowed to be made public. “Grey-mail” Issue

q. Current Court- Roberts and Alito replaced O’Connor and Rehnquist (unknown what outcome)

IV. MILITARY COMMISSIONS (4/9)

a. P has the ability to order intense questioning or torture? (bigger issue)

i. No individual under custody of government shall be subject to cruel and inhumane and degrading treatment, no matter where they are held in the world- P signed this & gave interpretation: executive branch will construe it in a manner consistent with their authority as commander in chief and executive

ii. Bush does not use word torture but he wants to use interrogation in some settings that would normally violate domestic law (maybe through Curtis Wright)

iii. Ex. Someone involved in an attack that has not yet happened- hope to nip it in the bud & save thousands of lives

1. Argument on other side:

a. Is it reliable information? They may make something up to stop the torture

b. Slippery slope argument

iv. Utilitarian argument: Harm to one outweighed by number of lives saved (is this fair?)

v. Analogous argument for death sentence: deter other murderers, not to punish them. Argument then works the same deterrent effect if it’s an innocent effect. Doesn’t turn on the guilt. You would execute someone to save 10 lives. (Troubling if kill an innocent- argument against utilitarian argument)

1. If don’t like then have to concede that sometimes the cost/benefit analysis works against you

b. Today: RIGHTS OF ALIENS (NOT US CITIZEN) HELD BY THE US ON GUANTANAMO BAY

a. Military base in Cuba, took prisoners from Afghanistan there

b. Q1: right of Writ of Habeas Corpus to find out why being held?

i. Existing precedent made two things reasonably clear about aliens captured during combat:

1. Those captured outside US did not have access to US courts

2. If hold in US then jurisdictional statutes do apply and they can claim Habeas Corpus

3. Lease with Cuba to keep base- ultimate Cuban sovereignty over land but we get total use as long as stay there. But Current Cuban regime says- illegal & want us to leave – US wont & invoke lease

ii. Rasul v. Bush (2004): given Americas complete control over the Bay, aliens there can go to US courts

c. HAMDAN V. RUMSFELD

i. Detainee held at Guantanamo- Order to be tried by military commission

ii. Military commission- no jury, run by military. Appear before the group & if lose by 2/3 vote, then he gets an appeal by 3 panel review designated by secretary of defense & that group gives recommendation to secretary of defense, then it could go to president. Executive branch detention, no courts involved at any level.

iii. Hamdan wants US court of Court Martial- Military agreed- UCMJ should be used in court martial

iv. Article 1, sect. 8: Congress power to make rules for the government & regulation of land and naval forces

1. To do this statute passed by Congress “Uniform Code of Military Justice”

a. Court Martial (quasi-judicial)

i. No jury of peers- military officials, Appeal to DC civilian court, SC eventually

v. Q: is it consistent with president’s power?

vi. After this decision, there was no military commission

vii. Hamdan Argument: no reason for military commission, you have the UCMJ you can use

1. President used AMUF to validate it

viii. Procedural differences for military commission

1. No access to evidence against him (don’t get to hear it)

2. Allows any evidence that has probative value regardless of how obtained (even if got through torture)

ix. Court says AMUF just does not say make up your own court system to try them (strikes it down)

1. Would have to show military necessity- there is no military necessity argument in Guantanamo

x. Some charges happened before 9-11, can you try that stuff with legislation passed after? NO

xi. Opinion of the Court for part of the opinion – 5 votes most of the opinion, some only 4

xii. Don’t address government power to detain for duration of hostilities. But undertaking to try him, have to follow certain procedures. He won, but not released, he is just still detained at least as long as hostilities continued

xiii. Policy Issues: This is a different kind of war, doesn’t fit those older statutes *** explosive issue in class

1. Prisoners of war are usually released when war over (exchange)

2. New mechanisms needed to deal with this kind of war? (Start fresh?)

a. Slippery slope

b. Should we create a National Security Court?

c. Send them back to original country to get tried?

d. Allies v. enemies?

xiv. Bigger policy Issue: Substantive rights of aliens? To what extent should non-citizens be able to claim the legal rights of US citizens?

1. Depends a little on which constitutional right is implicated

2. HYPO: (4/9) War Rally & student w/ illegal visa

a. Selective prosecution is hard to make (ex. Speeding stops)

b. Should this illegal alien be allowed to argue selective prosecution?

i. Issue: what would be the remedy? – leave him alone or deport all overstayed

ii. In interest of preservation of the rule of law

iii. No, no mechanism to keep track of everyone- selective is ok- he drew attention to self

iv. C is like a contract- if not citizen, not a party & never agreed to the good and bad parts

xv. Subject to these cases – Detainee Treatment Act (DTA)

1. Set up tribunals that are largely military exec. Tribunals (adequate & not copy of military commission)

xvi. BUT give appeal to District Court of Appeals for District of Columbia (appeal to tenure judge on DC circuit)

1. Judges have limited jurisdiction to review, but it is a traditional dose of our practice

2. Now have cases that raise adequacy question

3. It is not traditional habeas corpus- original constitution even had habeas corpus

d. QUESTIONS TO ASK:

i. CAN I DETAIN YOU?

ii. IF I CAN DETAIN YOU, CAN I TRY YOU AS A WAR CRIMINAL?

iii. HOW LONG CAN YOU BE DETAINED?

1. Tricky with war on terror- no defined end

V. EXECUTIVE PRIVILEGE (4/11)

a. Separation of power arise between direct conflicts

b. Article 1 section 6

i. Couldn’t be seized by litigants on way to Congress

ii. Speech or debate clause- shall not be questioned in any other place – because of this clause you cannot sue a Congressman for liable or slander

iii. Can sue the congressman if he issues press release & no longer in Congress

iv. President is not given these similar protections

1. Executive Privilege question

2. Can the President keeps secret documents or testimony that other branches want

3. All presidents have asserted executive privilege to help the executive branch

4. Ex. Eisenhower- courts never resolved the problem until Nixon case

c. United States v. Nixon

1) Watergate scandal – Public concern so great that Nixon appointed a special prosecutor (Archibald Cox)

2) Subpoena for presidential documents that thought was relevant (Tape recordings from the oval office)

i. People thought they would reveal if Nixon involved

3) Nixon appointed another new attorney & apologized for misbehaving

4) “CONSTITUTIONAL CRISIS”

5) Granted Cert. before judgment- took it out of court of appeals hands & directly to SC

6) Nixon promised to obey a definitive decision of the court (case was decided unanimously 8-0)

7) They decide Nixon must turn over tape

Nixon claimed an absolute privilege (if he says it, that is the end of the case, absolute bar)

9) Marbury v. Madison- judicial duty to say what the law is

a. Why is this argument unpersuasive?

i. Boiler plate – might be possible that P has absolute power

2. More substantive arguments:

a. Value of executive privilege?

i. He needs the candor of his advisors. Not everything should become public

1. Separation of powers- need some autonomy

b. Absolute privilege? NO

i. QUALIFIED or PRESUMPTIVE privilege (if necessary for executive functioning)

1. Balancing- does need on the other side outweigh presumptive privilege?

c. Is the qualified privilege constitutional? YES

i. Rooted in separation of powers

1. Could have said just common law privilege, what is the practical effect of saying constitutional?

a. Legislature, court & executive cannot change that power then

b. When constitutional, you cannot defeat it with a statute

ii. Nixon resigned after turn over (needs of criminal justice system outweighed his privilege)

1. Constitutional right of the 6^th Amendment- evidence might bear on Mitchell’s guilt

a. Need for factual accuracy

i. Counter Argument:

1. There are other times when all facts don’t come before the Court (ex. Exclusionary rule (not in the constitution))

a. It was judge made- way to enforce the 4^th

1. *****This Case establishes that the P of the US has a constitutional executive privilege

iii. Argument against: they gave one specifically to Congress (wrote in) so they would have written it in for the president if they had wanted it.

d. Why was the court so interested in giving the privilege?

i. No privilege for the judicial branch written in the Constitution either & they want to be able to have the secret decision meetings between justices (candor necessary)

1. But should their privilege be balanced and overweighed sometimes too?

a. Do judges benefit more from keeping things secret?

b. Aren’t they the ones that are harder to get at? (Not elected, etc)

e. If you agree with this decision, how would you feel about someone on trial- I need specific facts to prove my case & they are held by a reporter. Reporter will resist based on first amendment.

i. Wont have free speech and free press if don’t have privilege

ii. SC had this case before Nixon

iii. 1972- Was there a constitutional (Bransberg v. Hayes) privilege for reporters?

1. Court found no constitutional privilege for journalists (completely consistent with Nixon)

2. Needs of the criminal justice system outweigh the first amendment defense

a. But the fact a journalist has to turn over their tapes doesn’t mean they have to – they go to jail “contempt of court”

b. Some states have Shield Law (treat it like the exclusionary rule) to protect journalists

f. SCOPE OF THE DECISION

i. HYPO: Congresswoman seeks environmental documents for hearing (think president has ignored view of Congress). Concerning global warning. President invokes executive privilege. (memo form below)

1. What does US v. Nixon say about this question?

a. Footnote 19- decision does not apply to similar litigation – they leave the question open

2. What suggest to congresswoman is relevant?

a. Can’t just be a need for general documents, must be important

b. Specific factual information must be needed & they must be the only place you can get it

i. Ex. Corruption, specific findings

c. If document has no conversation & only facts then stronger argument because to argument about need for candor

3. Footnote 19 also leaves open civil suits – not decided (almost certainly viewed as a weaker claim- not as necessary, like criminal justice system is)

g. What about a President asserts National Security Claims

i. NO does not involve assertion of national security

ii. Can keep those secrets

iii. HYPO: If court got a case today & President says the document concerns national security matters, what choices does court have?

1. Might have an absolute privilege with respect to national security matters (still open)

a. Danger: Just stamp everything he wants secret with national security (abuse possible)

2. Still qualified executive privilege, need to turn it over to be looked at in secret. We will balance but balance in favor of you because national security is so important

a. Danger: The information may leak or the judge may know nothing about national security and release private information

h. Nixon’s behavior

i. Balance- type of presidential information & the societal need

j. United States v. Reynolds (1957)

i. Torts case from airline crash

ii. Military did want to give information about the special plane & individual did not get access to the information

iii. Military secrets were not outweighed by a torts suit

k. Controversies of Separation of Powers

i. Whether president can be made party to a lawsuit

1. too many people would sue & president would have to spend too much time defending himself

2. Nixon was never indicted in Watergate

3. Article 1 Section 7: President if impeached by house & convicted by senate is removed from office. President would then be subject to criminal prosecution

a. So can still be held to prosecution after the fact (since can do it after leaves office, suggests can’t do it while president)

ii. Immune from tort liability for things done during office, even if suit brought after leaves off (Nixon v. Fitzgerald) (5-4 decision)

1. Concern behind this rationale: whatever he says, someone will take offense so their would be no end in sight to the lawsuits

2. Why did 4 justices dissent?

a. Things done outside his job, when not acting as president

iii. What happens when sitting president is sued for a tort committed before taking office?

1. Too time consuming to go to trial before done with presidency

2. Should you be subject to discovery though?

a. Paula Jones filed sexual harassment charge against Clinton

b. Clinton argued all proceedings should be delayed till after office

c. SC said discovery should go forward (9-0)

i. Trial judge can manage it & reschedule

d. Clinton’s untruthfulness in deposition led to his impeachment

3. Should the court have foreseen what happened (disruptiveness)? Right decision?

a. Should they have envisioned he’d be charge with perjury

VI. IMPEACHMENT AND SUCCESSION (4/16)

a. IMPEACHMENT (charged with something)

i. High drama of separation of powers

ii. Constitution has a lot to say about impeachment

1. Article II Section IV: President, VP and all civil officers of US (ex. Federal judges) shall be removed from office for impeachment and conviction for bribery, treason or other high crimes or misdemeanors

iii. Article I, Section II, Clause V: House of Reps has sole power of impeachment (they indict you)

iv. Article I, Section III, Clause VI: Senate has power to try impeachments. When President tried, chief justice will preside. Not convicted without 2/3 of all senators vote to convict

v. Judge Walter Nixon- Impeached and tried (some lower fed. Judges impeached – effective control of life tenure)

1. Court found it to be political question so they threw out his case & he was removed from office

a. Textually demonstrably commitment to coordinate branch of government?

i. Yes, C gave Senate SOLE power to try impeachments (senate gets to decide what try means- we have no place changing it)

b. Judicially discoverable and manageable standards?

c. Prudential considerations? (to not hear a case, whichever way it might come out)

2. Rehnquist: what if we ever had a case involving the president – Too disruptive for the country

vi. Andrew Johnson (after civil War)- Impeached but not convicted because 2/3 vote

vii. Bill Clinton- Impeached but not convicted because 2/3 vote

viii. Impeachment proceeding pending against Nixon when he resigned- Likely that House of Rep would have impeached

1. Unclear whether Senate would have convicted him

ix. Will President impeachment become more prevalent?

1. Says something about the public mood- State’s allow citizens to recall governors

x. Clinton & Johnson cases focused on what constitutes a high crime /misdemeanor (neither bribery or treason)

xi. Neither had factual disputes, so Q is: was it a high crime or misdemeanor under Constitutional Standard?

xii. Johnson- fired former Lincoln cabinet member (modern view- w/in his rights)- he was sympathetic to the South

xiii. Clinton- false statements under other in judicial proceedings

xiv. What is high crime or misdemeanor in Constitution?

1. Two main Theories to read the phrase:

a. Narrow Theory: Has to be itself something you can indict someone for. It has to be a crime.

1. Would not reach abuses of power. Lot of bad things that are not crimes (ex. Torts are not crimes). Also has to be a serious “high” crime (same scale)

b. Broad Theory (not limitless): Abuses of power, Misuse of government power (something people cannot do because we’re not the President)- threatens the functioning of government

xv. No court cases to say which theory is best- always find political question and avoid

xvi. Congress hasn’t bought that it has to be indictable offense- Ex. President not carry out functions of his job (inaction)

xvii. Since pick the non-criminal interpretation, then it can become very political (ex. Clinton- partisan war)

xviii. HYPO (4/16): President lies under oath about sexual relationship. Imagine no partisan issues come into play. Should this be impeachable? Is it high crimes and misdemeanors? (Arguments for and against)

xix. HYPO Comparison- Federal Judge: Says he didn’t talk to Prosecutor (lie)- got friend’s kid out of drug trouble

xx. HYPO- if he lied about National Security, should he be more or less protected from impeachment?

xxi. HYPO- Should Elliot Spitzer have needed to resign so quickly? – Prostitute, so what?

b. AMENDMENT XXV (Succession)

i. CONSTITUTION: Article II Section I, Clause 6 (initial take on succession issues): in case of removal or President from office, or death, resignation, or inability to do his duties, the VP will take over. Congress may by law decide the line of succession. (There is a succession list- VP, Speaker of the House, President Pro tem of Senate, List of cabinet members (Secretary of State and then rest)). Always hide one cabinet member during state of the union.

ii. AMENDMENT XXV (modern take on succession issues) (1967)

1. Section I: If removal of P, VP shall become P (fixes the “act” as P language in C- now its clear he is the P)

2. Section II: Plugs gap in C, when vacancy in VP, President shall nominate one that will be confirmed by majority in each house of Congress. Section II has proved its effectiveness

3. Section III: Whenever P transmits that he is unable to discharge duties of office, VP serves as P until P says he is ok now. Used in past when Ps go into surgery.

4. Section IV (P removed when doesn’t want to be): “Unable to discharge powers and duties of office covers 3 or more things”: (1) Physical Illness (ex. Coma); (2) Mental Illness; (3) P who is kidnapped

5. Section IV Mechanism: triggered when VP and majority of Cabinet transmit word to Congress (declaration) that P cannot discharge his powers, VP will immediately become acting President. When P transmits his declaration that no inability exists, he shall resume duties of office unless VP and majority of Cabinet say otherwise. Then Congress shall decide the issue – need 2/3 vote of both houses that he is unable to discharge his powers. If get that then VP can continue serving as P.

iii. Controversies With Section IV

1. Alzheimer’s disease/Dementia- hard to define and demonstrate

2. HYPO: P captured on video taking bribe to undermine US interests abroad. VP wants to invoke Section IV

3. Only used when impeachment unavailable, overlap with it, or is it an alternative to impeachment?

4. HYPO: Bush suffers minor stoke & then shuts all banks down to stop mortgage crisis.

a. Political question- no case on the merits (you don’t want to touch this)

i. Textually demonstrable commitment- Congress shall decide the issue (not the courts)

ii. Judicially discoverable standards- there have never been cases

iii. Prudential Considerations- will upset apple cart & Cheney’s decisions left in question

b. COUNTER to political question argument

i. Different from Nixon case, because this text doesn’t say Congress has SOLE power- so maybe just ordinary legal question

ii. Of course no precedents

iii. Prudential considerations- decide case quickly & say Cheney’s actions ok in interim

c. Argument 2 (MERITS): Defying order of SC.

d. Counter: 25^th was about physical/mental illness & this is none of those things. You should put me on trial for impeachment (give me a chance for judicial defense)

VII. NONDELEGATION AND THE LINE ITEM VETO (4/18)

A. LEGISLATIVE AUTHORITY

1) Federal Administrative Agencies- exercise enormous powers

a. Raise Constitutional Concerns

2) Nature of Administrative Agencies

a. Quantitative (handle much more than Congress & promulgate more rules than Congress passes)

i. Agency handles Trial-type proceedings (AJUDICATION)

ii. Promulgate Rules (RULE MAKING) – By and large the laws that govern us are product of admin. agencies

b. Qualitative: Environmental Quality, Functioning of Economy (Fed, IRS, SCC etc.), Scientific Research funded by it, ITC (international decisions)

c. Government bodies headed by appointed persons & staffed by career civil servants

d. No agencies created by Constitution – all creatures of Congress

i. For every agency there is a statute by Congress & signed by P, that brought agency into being and gave it its role (Agency’s Enabling or Organic Act)

ii. Statute can be amended to give new jobs

iii. Typically give the agency much discretion (sometimes it seems like they have 100% control)

iv. Even when more guidance, vital policy turns on how agency implements an act- considerable power in deciding when to enforce and how to interpret

v. Substantial powers to carry out mission:

1. Dispense Government money

2. Levy substantial civil fines

vi. NEVER GIVEN POWER IMPOSE CRIMINAL PUNISHMENT (not Constitutional- don’t use juries)

vii. Congress can take power away or change it by statute too (Rare- only when political visibility is very high)

3) Types of Agencies

a. Type 1: Independent Regulatory Commissions

i. Headed by many

ii. Quasi Judicial functions so want some partial independence

iii. Appointed by president & confirmed by senate

iv. Cannot be removed by P- only limited control over commissioners (can’t fire them until their term runs out)

b. Type 2: Executive Agencies (mostly cabinet agencies- DOJ etc)

i. Headed by one person, appointed by president & confirmed by senate

ii. Can be removed by P at any time (Wholly part of executive branch)

iii. Some executive agencies not in cabinet (Food and Drug Admin, etc.)

c. CENTRAL FACT Of BOTH AGENCIES: politically appointed heads of agencies make up only small % of agencies employees- primarily civil servants hired through merit-system (very competitive) -not elected or chosen to be cross-section of public.

d. BUARACRATIC NATURE OF AGENCIES IS A FACT OF LIFE

4) Two Basic Methods to Perform Work:

a. Rule Making: promulgation of broad legislative rules. Published & collected in Code of Federal Regulations

i. Legislative type proceeding

b. Adjudication: Judicial proceedings where statute or rule is applied to particular cases. Publish in separate reporter systems for each agency.

i. Trial like proceeding

5) PROBLEM: ABSENCE OF SEPARATION OF POWERS

a. Isn’t the whole structure of agencies alarmingly unconstitutional (Youngstown- Congress legislates & P enforces)

b. Do we really want somebody to have the power to do executive (decide what to enforce), legislative (make rules) & adjudicative (try the cases)? (Tyranny- ARTICLE I, ARTICLE II, ARTICLE III)

i. Agencies violate that principle

ii. HYPO (4/18). FTC: Used car dealers not saying use of cars previously. Commission- “must have sign explaining substantial industrial use.” Get comments on the rule & promulgate a rule identical to the first proposed one. Enforcement action begins & adjudication in front of judge & admin law judge rules against guy. Gets appeal all the way up to commissioners & they decide what the meaning of the rule is that they promulgated “substantial.” So commissioners do legislative, executive and adjudicative work.

6) Controls on Vast Agencies?

a. Congressional Oversight- Original statute enacting agency went through normal process & since creature of Congress, Congress can overturn their work, change their budget, etc.

b. Judicial Review of these Agencies - courts are federal generalist courts & can go there if unhappy.

i. Constrained because defer to agencies a good deal (Upheld unless arbitrary and capricious) (Facts agreed if substantial evidence on record)

ii. Agencies win most of these cases

c. President appoints heads of agencies- brings it within Article II to some extent

7) Maybe we don’t believe in separation of powers, even though we stress Youngstown

Not so much that agencies are unconstitutional, its like they’re outside the Constitution

9) NON-DELEGATION DOCTRINE

a. Congress must legislate & make the laws (issue with agencies promulgating rules)

b. Is it ok for them to promulgate rules?- Yes non-delegation doctrine failed & agencies prevailed

c. Why would Congress Delegate? HYPO:

i. Suppose crisis in US where some get sick from genetically modified corn & outcry to ban it. Some say other causes for the sickness. Congress debates & passes law that delegates issue to DOA. Broad law by Congress- “all must be licensed & none can get license if unreasonably dangerous.” Such a broad law because Congress does not have (1) expertise, and there is too much (2) volume of cases, and (3) Avoid hot political issue.

d. Panama Refining & Schechter Cases- Struck down on non-delegation reasons & have not been struck down but also not followed

e. Rehnquist wrote for revival of non-delegation & so did liberals in lowers courts

i. Can’t just punt to agency- have to at list give them guidelines on how to do the stuff

f. PRESENT- non-delegation doctrine is dead

i. Whitman v. American Truckers Association

ii. Struck down EPA rule as lacking intelligible principle first

iii. SC unanimously reversed- we’re not going down that road- Congress can delegate if they want & elect a new Congress if don’t like results

10) Abigail Alliance v. Food and Drug Administration

a. Before take drug, it must be approved by FDA- must be (1) Safe and (2) Efficacious (Effective)

b. Awaiting use of life-saving drug for cancer- died before approved. Dad brought litigation

c. Three phases drug must pass:

i. Administer to small # of Humans to see if safe or poisonous

ii. Larger controlled clinical studies (placebo and drug clinical & doctor’s are blind to)

iii. Larger controlled clinical studies

d. Phase II & III take years – study to see if effective

e. Claimed constitutional right to drug that has made it through phase I (Gov has said it was safe) because once through that, then have right to take chances on the drug. Argument based on Due process clause – Congress & Agency should not have power to deny him opportunity of life.

f. ***NOTE: Industry was on the same side as government here- didn’t want to sell the drug to her either

g. SC denied review but Congress & Agency are considering changing the standards

h. Agency Arguments

1. Phases II & III sometimes turn up safety issues

2. If let anyone buy the drug, then no one will sign up to be in the clinical (’cause might get the placebo) & then don’t ever know whether effective or not. No controlled study.

a. Trade-off is between lives of people today (wont get drug) & future people (who will know what drugs work & what don’t)

i. Compassion Use Process expanded to meet middle ground?- Agency decides when to loosen up- and this is area when Congress might come in to trump them

j. Who prefers agencies & who prefers Congress? – Liberal prefer? Conservatives prefer Congress (less expertise, so less interference in market?)

11) Challenge to Delegations- CLINTON V. CITY OF NY (421)

a. Congress passed law & P signed it that created “The line item Veto”

i. Applies only to Congress’s spending bill (which is inflated due to politics)

ii. P can’t veto whole bill, so need line item veto to get out the outrageous charges

iii. P can cut out the pork- Congress can then pass it over the veto but makes it harder

b. 43 states give Governor the line item veto- primary way to balance budgets

c. But P one has to pass the Federal C & SC struck down the line item veto

i. It violated Article I Section 7 of the C because he has to the right to veto a “bill;” it doesn’t say he can amend a bill- all or nothing.

d. As long as Congress chooses to package things together SC says have to take it all or none (Need amendment?)

12) As Chief Executive, the P does have power of Prosecutorial Discretion- consider Federal criminal Code

a. Suppose individual suspected of counterfeiting but he is a small-timer & waste of time to prosecute him. So none is commenced (executive discretion). That decision cannot be reversed by court or Congress. Executive branch decides what to pursue and what not to

b. Court might try to step in only in an EXTREME situation (ex. All Civil Rights enforcement shut-down)

VIII. LEGISLATIVE VETO (4/23)

a. Legislative veto

a) Statute that says that certain agency decisions can be reversed by legislative veto

b) Legislative veto statute passed the regular way

i) Does not involve the president

ii) Several types of legislative vetoes- some said could be reversed by both set of houses. Others said could be reversed by either house of Congress. Others said reversed by certain Congressional committees

c) Over the years, numerous lawsuits brought challenging its constitutionality

d) SC avoided reaching merits for many years (standing, other grounds, deny cert, etc.)

e) INS- SC finally reached the merits

b. INS V. CHADHA

i. STATUTE- If agency finds that behaved, hardship to be deported, etc. then deportation can be suspended (statute retained Congress’ legislative veto possibility)- AG says Chadha can stay

ii. Congress vetoed the AG’s decision to suspend the deportations (Legislative Veto)

iii. Chadha brings the suit claiming legislative veto is unconstitutional

iv. SC struck down the legislative veto as unconstitutional & Chadha got to remain in US

v. REASONING (8-1)(not liberal v. conservative)(Burger- strict formalist opinion (like Black in Youngstown)

1. Fight against merging of power in one place

2. Claim: Legislative Veto is efficient way to delegate but then oversee

a. A: C is designed to have inefficiency (Separation of powers). Efficiency is not hallmark of democratic system

b. SEPARATION OF POWERS- WE DON’T CARE ABOUT EFFICIENCY (prevent abuse)

vi. History: Congress found examples of vetoes, does that help?- no, even more hostile because you’ve done it a lot

vii. Defect of action?- not in C- Legitimate- Bicameralism (same through both houses) & Presentment (P signature)

viii. Exceptions in C to idea that only act through Bicameralism & Presentment (4 provisions)

1. S & H impeachment, S for P appointments, S for ratify treaties

2. Response to Exceptions- explicitly set out in C, so because they listed the four- no others

ix. Stuff w/out bicameralism and presentment?- HOLD HEARINGS

1. But Veto- alters legal rights, force & effect of law – Hearings don’t have the force & effect of law

2. When Congress wants to bind Americans (make law), can only do it through Bicameralism & presentment

x. Would court support another way of Congress doing stuff w/out Bicameral & presentment?

1. No seems to say ALL LEGISLATIVE VETOES ARE DOOMED (broad rule made)

xi. ACITIVIST OPINOIN IN SOME RESPECTS (strike more Acts of congress than ever before)

1. Anti-majoritarian (not partisan)- unelected court is substituting opinion for that of elected (not ok)

xii. SENSE LIMITED: striking down statute limit, not striking down a whole statute

xiii. ARG That bill itself still stands- SEVERABILITY:

1. Congress would have passed it anyway, even if couldn’t have veto (hypo inquiry about Congress’s intent)

xiv. ARG that bill itself is dead- NON-SEVERABLE

1. No Congress worried about infringement on amendment & wouldn’t have done it if w/out legislative veto

xv. EXAMPLE: WAR POWERS RESOLUTION (4/23)

xvi. JUSTICE POWELL- Concurred in result only (wants narrower philosophy)

1. Strike only in adjudicatory setting- maybe want for Trade Regulation & War Powers setting, etc.

xvii. Narrowing- caution, more judicial function, retain possibility to rule for Congress

xviii. Broadening- clear area once and for all, why years of litigation, bright line rule

xix. WHITE DISSENT (looks like SC opinion in commerce clause area)

1. Congress is not striking with a sword, it is shielding its power from the dominating executive

2. C is flexible enough to adjust to history (adjust to the times)- FUNCTIONAL APPROACH TO C

3. Necessary & Proper Clause used

4. SC has done this with stuff like spending powers, etc.

5. BIG ARGUMENT: Hypocritical – Agencies- binding law w/out bicameral & presentment every day

6. If Congress can delegate, why can’t Congress limit its delegation? (Why all or nothing?)

xx. Separation of powers- court has been more formalistic, for whatever reason

xxi. Bicameral not necessary as check on agencies because can’t reach beyond limits of statute that created their power. Can’t go beyond delegations

xxii. Jesus argument: should look at intent behind rules

xxiii. Haven’t brought back non-delegation power, so agencies more powerful than ever

xxiv. Nadar (public interest group)- they prefer the agencies (don’t want it for Congress- too controlled by lobbyists)

xxv. TENSION BETWEEN SUBSTANCE OF BLACK YOUNGSTOWN & BURGER CHADHA OPINIONS

1. HYPO: Gas Tax & Driving Curfew (4/23) (Use Youngstown & then Chadha to switch category)

xxvi. Congress still has appropriations power ($ threat). Can also pass law to invalidate rule (just takes more time)

xxvii. NOVEL IDEA: SUNSET LEGISLATION:

1. Only given for set term of years- reversing presumption (no taking power away, just limiting time)

2. Congress might reauthorize it, and might not- More of an all or nothing instrument

xxviii. BIG PICTURE: EXECUTIVE AND AGENCY POWER KEEPS GROWING EACH YEAR (MACRO)

IX. APPOINTMENT AND REMOVAL (4/25)

a. BOWSHER V. SYNAR

i. Gramm Rudman Hollings Act- spending budget (deficit)- effort to control the deficits

ii. If deficit over certain amount, Controller General (CG) makes across the board cuts – some discretion in what to cut

iii. GAO is the government agency involved (not traditional administrative agency: informational, arm of congress) – no authority to issue binding rules that govern our lives like other agencies & no adjudication- headed by CG

iv. SC struck the Act down (follows closely with Chadha case- like a legislative veto) (Strict Separation of powers)

v. (1) CG = Congressional Officer = Congress can remove him for reasons beside impeachment (not easy but can)

vi. (2) CG is performing an executive function, so Congress cannot get involved

vii. WHITE Dissent: replay of Chadha dissent- Congress trying to control in a way that is not forbidden

b. MORRISON V. OLSON

i. Title VI Ethics in Government Act (reaction to Nixon mess)

ii. If AG finds sufficient suspicion, independent council appointed by special panel of 3 fed judges “Special division.”

iii. Hair trigger provision- AG didn’t need much to go to the Special Division (hint of wrongdoing)

iv. Morrison hired to investigate if Olson lied under oath when Assistant AG- Olson claims statute unconstitutional

v. Who guards the guardians- so even people who enforce the laws can be enforced against as well

vi. Trying to get them to supervise themselves (like Nixon issue- fired AG when investigated executive)

vii. ISSUE- Executive Control over agencies- SC uphold the scheme (hmm different result in the Separation of powers area)

1. Different tenor than the other decisions

viii. Challenge 1: Way Morrison was accounted

1. Article II, section ii, clause ii: P shall nominate w/ advice & consent of S, officers of the US. Congress may by law vest the appointment of such inferior officers as they see fit for heads of departments, etc.

2. Congress will say: she’s an inferior officer

3. Olson: she is head officer of US- then act would fall ’cause must be appointed by P

ix. SC said she was an inferior officer, why?

1. Could be removed by AG for good cause (suggests subordinate role to some political figures)

2. Limited scope of duties

a. No life tenure (serves so long as the case lasts) & limited jurisdiction (not enforcing all laws)

x. Challenge 2: Even if inferior officer, there is a limit to which Congress can vest power in you

1. Only executive could appoint, can’t have courts appoint prosecutor

xi. SC said NO- Clause ii, says congress can appoint as it sees fit (not unusual for judges to appoint prosecutors)

xii. RELATED QUESTION- acceptable to limit CG’s removal power to good cause?

1. P can remove cabinet members for ANY reason- Constitutional requirement- Congress cannot limit P’s power

2. For independent agencies, Congress does limit P’s power to fire them for cause & that has been upheld (stuck with old commissioners) – that is because these are quasi- legislative, quasi- judicial branches.

3. SO is she more like independent commissioner or cabinet member?

4. Won’t give a bright line. The real Q is whether removal restrictions are off such a nature that they impede the President’s ability to perform his constitutional duties.

5. Rehnquist says P here still looks like he’s able to do all his duties- still fundamentally the chief exec.

xiii. Big difference between what Congress does here & what it did in Chadha or Bower- HERE CONGRESS IS NOT TRYING TO EXPAND ITS OWN POWERS (reason why so strict in those cases doesn’t exist here)

xiv. Just giving more power to judges, not to strengthen itself – so now we’re back to more of a commerce provision kind of opinion (makes cases fit together)

xv. Limited carving out of Article Three & not adding power to self & 3^rd…?

xvi. Scalia thinks this decision provides zero guidance (dissent)

1. Critical of Humphrey’s executive – Executive should be effective in its own realm

xvii. Risks of independent council- this is that persons only case- wont weigh and balance against the other crimes or worry about costs in pursuing one thing- different reality for independent council (large budget & staff)

xviii. Looks like he could see the future of Monica Lewinsky (Ken Star)

xix. Senate Provision- got rid of this statute- Republicans and Democrats thought it not a good way to do business

xx. Back to old way of executive investigating itself