Constitutional Law I Outline Fall 2012 Prof.

Katkin Bill of Rights 1st 10 Amendments Bill of Attainder Cant punish a person without trial. Qui Tam Action Anyone can bring action against someone who is defrauding the Government. Concurrent Power Powers that may be regulated by Congress and states concurrently, with States yielding to Congress when powers conflict. Federalism Duel Sovereignty makes us answerable to 2 forms of government concurrently: The Federal Government by their enumerated powers and the necessary and proper clause, and State Governments by all other powers not delegated to the United States.

Articles 1. Congress 2. President and his Executive Powers 3. Constitution creates U.S. Supreme Court; Congress creates all other courts 4. State-to-State RelationsFull faith and Credit 5. Amendment Process The only way to amend the Constitution is to have 2/3 majority vote in Senate and House to send it to the Statesthen States must each have 3/4 vote. 6. Supremacy Clause - The Constitution of the Laws of the United states, shall be the supreme law of the land. State courts are required to enforce federal law, even if federal law does not have same outcome and conflicts with state law. 7. It takes 9 of 13 states to ratify a law of the Constitution. State Governments police power (falling under general jurisdiction) general power to legislate on any subject, unless there is an obstacle in the state or U.S. Constitution prohibiting them from doing so. U.S. Government default rule. Opposite from state government, in that Federal Government doesnt have power to exact a rule unless they can point to an article in the Constitution that allows them to. (enumerated power) I. Federalism: Congress Enumerated Powers 10th Amendment says the powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people. Congress powers are all enumerated or delegated. Congress must be able to point to a power given to them in the Constitution when exercising a power. A. Supremacy Clause Article 6: The Constitution of the Laws of the United States shall be the supreme law of the land. State courts
1

are required to enforce federal law, even if federal law does not have same outcome and conflicts with state law. B. Necessary and Proper Clause Article I, 8, Clause 18: Congress has the power to make all laws which shall be necessary and proper for carrying into execution the powers expressly delegated to them by the Constitution. 1. Congress may use any appropriate means to achieve the ends specified in the enumerated powers, so long as the means are not prohibited by the Constitution. Court will not question the need for particular means. 2. Example: Enumerated powers dont include power to incorporate a U.S. Bank, but Congress may do so as a necessary and proper means of carrying out its delegated powers to lay and collect taxes, borrow money, regulate interstate commerce, declare war, support the militaryall of these are enumerated powers. (McCulloch v. Maryland) 3. Test: The means to be achieved must be found under an Enumerated Power. So, if Congress passes an Act to ultimately exercise its required power under an Enumerated Power, the Act must rationally be related to the Enumerated Power. C. Commerce Clause Art. I, 8, Cl. 3: Congress has power to regulate commerce w/ foreign nations, and among the several states, and with the Indian tribes. 1. Interstate vs. Intrastate a) Interstate Commerce anything that involves money changing hands and business and commercial being conducted between one state and another is interstate commerce. i. Congress may also regulate products that have already been through interstate commerce, to promote efficiency and safety in the future for interstate commerce. ii. Motive irrelevant Congress may do whatever it believes in its own discretion to further efficiency in interstate commerce (i.e. prohibit sale of lottery tickets, or goods sold in substandard conditions) b) Intrastate Commerce Congress may regulate intrastate commerce only if it is economic in nature against the nation as a whole, largely due to the Necessary and Proper Clause. (i.e. It is necessary and proper for Congress to regulate this certain intrastate activity because, if viewed in the aggregate, it would have an affect on the nations economy as a whole, thus affecting interstate commerce.)

c) Close and Substantial Relationship Any act that has a close and substantial relation to interstate commerce can be regulated by Congress as well. i. Example: Congress may regulate intrastate working hours and wage for workers who make products that are put into interstate commerce. As long as Congress is saying that an item cant be shipped through interstate commerce that was made by low-wage employees, Congress has this power. d) Effect on Economy If an activity is wholly intrastate but would have an effect on the national economy, it may be regulated by Congress through their interstate commerce power. If they are not themselves interstate commerce, they must be at least economic. e) Rational Basis Test: The courts will determine if congress had a rational basis to reach the conclusion that the means were appropriate. If congress has no rational basis, then the courts will step in. f) Aggregate Doctrine Congress has the power to regulate activities that, even if wholly intrastate, would aggregately have a substantial effect on the national economy if they were allowed to continue. i. Example: Segregate restaurant can be overturned by Congress b/c allowing segregation in all restaurants throughout the nation would aggregately have an effect on people traveling the nation. 2. Three Broad Categories Congress may regulate under Commerce Power: a) (1) Channels Congress may regulate use of channels of interstate commerce b) (2) Instrumentalities Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, although the threat may come only from intrastate activities. c) (3) Economic Activities having Substantial Effect Congress commerce authority includes the power to regulate those (economic) activities having a substantial relation to interstate commerce. Test whether the regulated activity substantially affects interstate commerce. Rule where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained. o Lopez = Model Exam Answer (p107)
3

D. Taxation Powers Art. I, 8, Cl. 1: Congress shall have the power to lay and collect taxes without regard to enumeration. 1. 3 Types of Taxes: a) Direct Tax 2 forms i. Capitation Tax Head tax. (Each person must pay a certain tax no matter what) ii. Property Tax Each property owner must pay tax on the property he owns. b) Excise Tax Must pay tax on transaction w/someone else. c) Income Tax Congress may structure however they want. 2. 2 Limits on all Taxes: (Each tax falls under one of these limits) a) Must be uniform throughout the country (i.e. Federal Gas Tax) anyone else in this same situation throughout the country must be charged w/this same tax. OR b) Direct Taxes shall be apportioned throughout the several states (If there is a direct tax, each household in one state must pay the same as each household as another state.)This tax is dependant on what the population of the state is for this particular issue. ** The amount of taxes collected out of each state must be proportionate to the population of that state. 3. Motive Irrelevant As with all the enumerated powers exercise, motivation behind exercising an enumerated power (i.e. taxation power) is irrelevant as long as Congress is acting within the scope of their power. 4. Four Limitations on Spending Power: a) General Welfare The Constitution mandates that the exercise of the spending power must be in pursuit of the general welfare. Substantial deference to the judgment of Congress here. If Congress says that spending is for general welfare, then the law/spending will be enforced. b) Unambiguous If Congress desires to condition the States receipt of federal funds, it must do so unambiguously, enabling the States to exercise their choice knowingly cognizant of the consequences of their participation. i. Clear Statement Rule state must know that the spending is being done for a certain reason.

c) Relatedness Conditions on Federal Grants must be related to the federal interest, in particular national projects or programs d) Other Constitutional Provisions may provide an independent bar to the conditional grant of federal funds EX: Coercion by spending power would be unconstitutional. South Dakota v. Dole E. War Powers Art. I, 8: Congress has the power to declare war, raise and support armies, provide and maintain a navy, make rules for the government and regulation of the land and naval forces, etc. 1. Drafting Congress has enumerated power to raise army, and under Necessary and Proper Clause, may enact a draft if they need to in support of raising an army. 2. After War/Peace Time If war is "proximate cause" of the problem, then Congress has the power to remedy under their War Powers, so long as necessary and proper. a) Cloyd W. Miller Co. Congress may enact Housing and Rent Control Acts after war in order to rebuild the country. The effects of war still lingering, Congress can not only exercise whatever is necessary and proper to raise an army, but also rebuild the country, and protect soldiers returning home. F. Treaty Power Art. II, 2: the power to make treaties is delegated expressly; and by Art. VI: treaties made under the authority of the US are declared the supreme law of the land. If a treaty is valid, there can be no dispute about the validity of the statute under Art. I, 8, as a necessary and proper means to execute the powers of the Government. If only constitutional impediment is the lack of an enumerated power, then the treaty power can provide the basis for the power. 1. Legislation Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. Missouri v. Holland. a) A Treaty only has to be made under the authority of the United States, whereas Acts of Congress have to be constitutional. b) HINT Congress can use their enumerated Treaty Power to create additional powers (not enumerated). c) Example Congress may pass a treaty. Then, any legislation not expressly prohibited by the Constitution (see Reid below) which is necessary and proper to uphold the treaty will be constitutional. Another way to look at it is that, even though Congress may not have an enumerated power to pass X legislation, Congress does have an enumerated power to make sure the US upholds treaties we enter.
5

This is a way to pass an Act, otherwise unconstitutional, but for the fact it is enforcing a valid treaty. 2. Missouri v. Holland: Congress may make a treaty w/ England not to kill any birds migrating during a certain season, then pass an otherwise unconstitutional Act (infringing upon rights reserved to the States via the 10th Amendment here) to uphold that treaty, and the Act will be constitutional. A treaty made by the President with the required concurrence of 2/3 of the Senate is, under the Supremacy Clause, part of the supreme Law of the Land, which takes precedence over contrary state laws. Congress has power to make Treaties w/another country, and those treaties are supreme law of the land. 3. Distinguish: If the reason congress cant do something is b/c there is an express prohibition in the constitution, Congress can't use the Treaty Power to get around it. Can never be used to overcome the bill of rights or any other express limitation. 4. Reid v. Covert: Congress cannot pass a treaty that is against the Constitution (Congress cant pass treaty w/another country that says that anyone in foreign country committing crime on U.S. base will be punished by U.S. militaryleading to punishment without a trial, in violation of 6th Amendment Rights.) G. Foreign Affairs Congress has all power over foreign affairs, and States have none. H. Property Power Art. IV, 3, cl. 2: Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. 1. On Federal Land, Congress has 3 types of power: a) Congress has all the power of federal government (normal enumerated powers); b) Equivalent of state (police power), and c) Equivalent of private property owners power i. Congress power to enact rules that are enforced on federal property is constitutional. 2. State and Local law - All state and local law is effective on federal property within that state, unless it conflicts with the federal law enacted there. If conflict, state law preempted under the Supremacy Clause. Kleppe v. New Mexico I. Copyright Power Art. I, 8, Cl. 8: Congress shall have Power to promote the Progress of Science by securing [to Authors] for limited Times the exclusive Right to their Writings.

II.

1. Limited Time Congress has authority to enact new limited times (i.e. 50 years after death of author) as it sees fit, so long as it is exercising its enumerated copyright power, and the limited time does not say forever. Elder v. Ashcroft Structural Limitations on Congress Enumerated Powers A. Congress cant interfere w/States right to regulate its internal affairs (i.e. where to place its capital city) B. Taxing Congress cant regulate states by taxing them in their capacity as state governmentsmust subject them to same tax as private sector. Cant have tax that singles out states. C. Wages and Hours Congress may regulate wages and hours of both private sector and state and local government officials. D. Anti-Commandeering Law Congress cannot make or coerce a State to enforce a Federal Regulation; the regulation must be enforced by the federal government itself. 1. 10th Amendment State Autonomy Limits on Congressional Power a) Legislative (State Legislatures) Congress cannot order States to pass laws and punish them for not passing laws. But, Congress may give a State time to pass a law or take care of a situation, and if the State fails, then Congress may pass the law themselves. New York v. United States b) Executive (State Officers) Congress cannot compel the States to enact or enforce a federal regulatory program, and cannot circumvent that prohibition by conscripting the States officers directly (federalism / dual sovereignty). State officials and officers may consent and voluntarily enforce federal law, however. c) Judicial (State Courts) State courts are required to uphold and apply federal law when in conflict with state law b/c of the Supremacy Clause. However, state can have some state courts which will not have jurisdiction to hear fed. issues (courts of limited jurisdiction) as long as there is a higher court which will review the fed. court issue (courts of general jurisdiction). d) QUICK REFERENCE: State Courts must enforce federal law when laws conflict (Supremacy Clause Testa). However, Congress cannot force State Legislatures (NY) or state officials (Printz) to enforce Federal law; this must be done by Congress itself using Federal officers (Federalism). 2. Alternatives to Commandeering

III.

a) Spending Power (condition the payment of relevant federal funds on a states agreement to take title to waste) b) Commerce Power (pass federal legislation directly regulating the private producers of low-level radioactive waste to limit their production, promoting States to act and devise a disposal system) c) Conditional preemption (threaten to pass federal legislation under the Commerce Clause unless states choose to regulate according to federal standards) 3. EXCEPTIONS a) Laws of General Applicability - A simple prohibition saying "nobody can do X" which applies to state officials and the general public and prohibits all people from doing something is not commandeering b/c it does not require someone to do something, it just refrains people from doing something. Reno v. Condon b) No commandeering if no affirmative act is required by states c) Congress cannot order state officials to do something; but can tell them NOT to do something. 11th Amendment and State Sovereign Immunity from Suit: Judicial power of the U.S. shall not be construed to extend to any suit commenced or prosecuted against one of the US by Citizens of another State, or by Citizens or Subjects of any Foreign States. A. Black Letter Private citizens cannot sue states in federal court B. Private Citizens cannot sue their own State, or sue Another State in Federal or State court. C. Federal Government can still sue States for money damages and injunction D. Private plaintiffs can still sue states for money damages in 14th Amendment causes of action 1. Its okay to bring money damages suits against a state that violates the 14th Amendment. You can get both money damages and an injunction as remedies, but Congress must make it clear that its intention is to abrogate States 11th Amendment b/c of 14th Amendment violation by the state. E. Ex Parte Young Actions are still okay 1. Ex Parte Young Action - suit against a state official in their official capacity - suit must name them by name and by job title. Federal court could issue an injunction against state officials who sought to enforce an unconstitutional state law, on the ground that the defendant wasnt really the State, but an official, who is a person acting beyond his constitutional authority. When you see state officials acting under color of state law, doing
8

IV.

V.

something against federal law, the federal government or a private person can sue the state official as an individual person. So, find a state park ranger who has violated his federal law while acting under the color of state law, sue the state park ranger in their state employment. Can only get injunction against individual (not state); no monetary damages 2. Exception Ex parte Young actions limited to private s (i.e. bars a state agency from bringing Ex parte Young action against state officials in federal court). Commonwealth of Virginia v. Reinhard note: under appeal will be argued in front of the Supreme Court this semester. F. Suits with state consent are okay (state tort claims acts. Commercial contracting) G. Suits against MUNICIPAL (local) governments are not precluded under state sovereignty. None of the other rules apply to local government defendant, only to state or agents of the whole state. 1. Suits against KY (or justice dept. of KY) barred. Suits against Highland Heights (or any city or county (municipalities)) are not. H. In Rem Bankruptcy Jurisdiction is okay 16th and 17th Amendments A. 16th Amendment: Federal Income Tax: Power to lay and collect income tax is for Congress. Puts Congress in position where it has so much ability to raise money that it can do a lot more with legal powers. B. 17th Amendment: Election of US Senators: U.S. Senators elected directly by the people. Now Senate is directly accountable to voters (rather than state legislature). House was always set up like this. C. Significance: No actual litigation under these Amendments. Tremendous shift of power from states to federal govt. A wave of constitutional amendments followed, all of which were in a nationalizing direction. Constitutional Limitation on States Power A. Article I, 2 and 3 Qualifications for Serving House and Senate: State cannot change requirements and qualifications of its citizens or representatives to serve office in the Federal Government. 1. Congress cannot add to the Constitution; neither can States. 2. States are only reserved their Original Powers that they had prior to the Constitutionin the case of absence of Constitutional restrictions on State, or Enumerated Power by Congress.
9

VI.

3. The National Government must be controlled directly by the people w/o interference from the States. 4. Constitutional Qualifications Neither States (Term Limits) nor can Congress (Powell) alter Constitutional qualification requirements for serving in Congress, or any other Federal position. Note that Congress does have the power to exclude someone, but does not have the power to add additional qualifications (Powell). DORMANT COMMERCE CLAUSE: DCC is a judicially created negative inference restricting state power implied from the express grant of exclusive power to Congress to regulate commerce under the Commerce Clause. Not in text of Constitution created by SCOTUS. A. Applied When Congress is silent on an issue i.e. where Congress has left an area of commerce unregulated and State passes regulation that affects interstate commerce. B. Issue whether the express grant of power to Congress to regulate commerce precludes States from regulating commerce where Congress is silent. C. Distinguish Interstate commerce is different than taxing, in that taxing can be concurrent powers b/c States and Congress may lay and collect taxes w/o one affecting the others rule interstate commerce is a doctrine that States will almost always affect when enacting laws. Regulation of IC is expressly and exclusively granted to Congress. D. Application Overview: 1. If Facial Discrimination or Economically Protectionist Purpose/Effect apply Strict Scrutiny Test 2. If Undue Burden on IC (facially neutral) apply Pike Balancing Test 3. EXCEPTION: unless state acting as a Market Participant E. Several TESTS to see whether Law violates DCC: 1. Public Health/Safety: If purpose was to improve public health and safety, and had incidental affect on interstate commerce, State can enact law. However, if purpose was to affect/burden interstate commerce (i.e. make water not navigable), State cannot enact law. (Black-bird Creek Test) 2. Subject Matter/National vs. Local Test: Areas of commerce that are so local in nature that it would be sound policy to let local courts regulate will be given to the States. HINT think more about the subject matter and the nature of what is being regulated rather than the purpose of the regulation. (Cooley v. Board of Wardens) 3. Facial Discrimination apply Strict Scrutiny Test When State passes a law that on its face favors in-state commercial interests over out-of-state, it is per se invalid. There is a rebuttable presumption of unconstitutionality
10

and we apply a Strict Scrutiny Test. State has burden to prove BOTH: a) (1) The State regulation achieves some compelling state interest (i.e. promote health/safety/welfare); AND b) (2) There are no reasonable, nondiscriminatory alternatives available adequate to conserve States legitimate local interests. i. 1st is easy. 2nd is where the action is. c) Where a State treats its citizens one way (one rule applies to this state), and another states citizens another way (and another rule applies to other states), there is a virtually per se (or at least very strong) presumption that the facial discrimination is unconstitutional under the Dormant Commerce Clause. Are there reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests available? 4. No Facial Discrimination apply Pike Balancing Test: Where the statute regulates to uphold legitimate local public interest, and it only has incidental effect on interstate commerce, it will be upheld unless the burden on commerce is excessive in relation to the value of upholding the local benefits. Does incidental effect on interstate commerce outweigh the benefit the State receives from the law? If so, law is unconstitutional. F. Exceptions to Dormant Commerce Clause 1. Congress Power to Validate Discriminatory State Legislation: Congress may validate State laws that would be discriminatory under the Commerce Clause. 2. Market Participant Exception: When a state is acting as a market participant (i.e. buyer/seller/employer), and not as a regulator (i.e. sovereign capacity), the Commerce Clause limitations (discrimination & unreasonable burden) do not apply. If the state is a participant in the market, it can discriminate and unreasonably burden IC all it wants. a) Applies when: State acts just like a person/business trying to buy or sell or employ in the market. b) LOOK FOR: BUYING, SELLING, EMPLOYING NOT REGULATING or using Sovereign Powers (State cannot regulate dealings of private parties under this doctrine). c) South-Central Timber v. Wunnicke: Imposing down-stream conditions on a sale is outside the market-participant exception. Must be immediate transaction.

11

VII.

d) Dept. of Revenue of KY v. Davis: Where commercial activities by governments and their regulatory efforts complement each other in advancing a civic objective different from the discrimination traditionally held to be unlawful, the market participation exception can apply. G. Corporations: Corporate law is incorporated under State law, and Congress does not have much power to regulate corporations. Privileges and Immunities Clause Article IV, 2: The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. Serves as a restraint on state efforts to bar out-of-staters from access to local resources. Prevents one state from discriminating against citizens of another state regarding basic economic rights and activities based on state residency. Citizens of other states should be treated (for the most part) the same way as citizens of that state. Citizens of every State are citizens of the U.S., and should be allowed to move freely throughout the several states. The right to be treated equally under common law rights would fall under this Clause. A. Purpose: To create uniformity between several states and uphold Full Faith and Credit between several states. B. Distinguish from Dormant Commerce Clause: 1. Corporations enjoy no protection under this clause. 2. Privileges and Immunities Clause is a rights provision that Congress may not waive. 3. ***Privileges and Immunities Clause does not extend to all commercial activity, but only the exercise of fundamental rights. 4. No Market Participant exception under Privileges and Immunities Clause 5. No strong presumption of unconstitutionality in discrimination more of a balancing test. 6. The P&I Clause imposes direct restraint on state action in the interests of interstate harmony [unlike the Dormant Commerce Clause, which imposes implied restraint upon state regulatory powers so as to give way to superior authority (Supremacy Clause) of Congress to regulate interstate commerce] C. Always Apply Test!!! 1. Is the privilege/immunity one that is protected under this Clause? (IF YES, GO TO 2ND PRONG) 2. Is there a substantial reason to justify the law? Look to see if statute is aimed at fixing the problem that burdens the state (the type of evil that is created by out-of-staters) (IF YES, THEN LAW/STATUTE WILL BE ENFORCED; IF NO, P & I CLAUSE WILL OVERRULE STATUTE)
12

United Building & Construction Trades Council v. Mayor and Council of Camden: Court applied test where people were working in Camden but not living there; pursuing work was found to be a privilege/immunity protected under the clause, thus satisfying the first prong of the test; court remands to find out whether the statutes purpose of lessening unemployment of residents of Camden is substantial enough reason/justification to discriminate. In each case, inquire as to whether these substantial reasons exist, and whether the degree of discrimination bears close resemblance to themShow peculiar source of evil at which statute is aimed in order for statute or ordinance to be upheld D. Privileges/Immunities that are protected under P&I Clause, and will satisfy first prong of test: (Corfield v. Coryell) 1. Protection by the government 2. Enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. 3. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state E. EXAM TIPS 1. If P & E is going to be the answer, look for economic discrimination against citizens or residents. 2. Generally, P & E is not the answer - most of the time a fact pattern dealing w/ economic discrimination is going to be a Commerce Clause issue. But, if the words citizens or residents in fact pattern, think P&E. 3. Note: "citizens" does not apply to corporations or aliens (for P&E purposes).

13

Dormant Commerce Clause v. Privileges and Immunities ISSUE State/local action discriminates against out-of-staters DCC If the discrimination burdens interstate commerce, and there is no applicable federal laws, the action is invalid unless: 1. it furthers an important non-economic state interest and there are no reasonable non discr. alternatives OR 2. the state is a market participant If the law burdens interstate commerce and the burden outweighs the states interest in the action, the law is invalid creates single economic market, end balkanized economy to allow free trade within US without protectionist interest state to state to enhance economy Triggered when discrimination relates to business/economic activity. Yes doesnt matter if person or corporation claiming right either can exercise DCC rights. Yes Yes Congress can overrule and potentially allow for some discrimination Economic Activity More stringent - strict scrutiny P/I If the action denies the out of state person important fundamental rights, the law is invalid unless the state has a substantial justification and there are NO less restrictive means. 1. There non-resident must be a peculiar source of evil the state is attempting to regulate. 2. Discriminatory law must be best way to solve a problem. P/I does NOT apply where there is no discrimination.

State/local action does not discriminate

Theory

Trigger Applicable Entity (may a corporation be a )? Is there a market participation exception? May congress waive the clause? (okay discrimination)

Political motive about making a more perfect union and merging diverse states into one political harmony between states and reduce political tension. Triggered when discrimination relates to the exercise of rights NO only constitutional right of citizens of a state this does not apply to corps No No it is a constitutional right of the individual to be treated fairly in all states Congress cannot pass legislation which violates the P/I clause. Fundamental rights Less stringent closer to balancing test

What type of activity does clause effect? Standard of review

WHEN DECIDING IF DCC OR P&I, FIRST ASK THEORY, ENTITY, AND TRIGGER, QUESTIONS ABOVE
14

VIII. Article I, 10 Contracts Clause: Prohibits any State (not Congress) from passing Law impairing the Obligation/Debt of Contracts. If you have a contract already written, State cant then pass law that effects remedy or terms, or makes particular remedy for contract. Congress can, however. States can, however, pass law that will be followed by K written AFTER the state law is written. A. Distinguish: Congress can pass Bankruptcy laws affecting debt obligations of contracts. B. State Bargaining Away Police Power: State cant bargain away its police, legislative, or other Sovereign Power by entering into K and bargaining away w/private party (Charles River Bridge Case State was not bound to contract entered into w/bridge company giving them exclusive right to build bridge, and giving away States right to build bridge) C. Home Building & Loan Assn v. Blaisdell: Court says that if State is responding to emergency situation and vital interests of its people, it may relax Contracts Clause restraints, but only to the extend that it is necessary to relax restraints. 2-prong Test: 1. Need Emergency Situation to provide flexibility of the Clause 2. Need State to use method that only SLIGHTLY impairs payment of Ks, and doesnt MATERIALLY impair K payments/debts. D. Court says that just b/c states find it convenient to make promises and break them, they cant just do that. If states really enter into financial obligations, there is strong presumption that they must uphold those financial obligations. State cant make financial commitments and then not follow through. IX. Federal Preemption of State Law under the Supremacy Clause A. 3 Types of Preemption (ways State law is preempted): IN EACH PREEMPTION CASE, TRY TO APPLY ALL 3 OF THESE 1. Express Preemption - Congress writes law and says that it is to be exclusive, and shall preempt any state law, and that state law is given no effect that effects these issues (i.e. there is no state bankruptcy law, b/c Congress governs all of bankruptcy law) Savings Clause: Sometimes, Congress will pass law w/language that says this law is not meant to affect or preempt State laws governing the situation. Savings Clause = no preemption at all!!!! 2. Conflict Preemption (state law is literally in conflict w/federal law) - Even if Congress doesnt expressly say that it intends to preempt state law, Congress law and state law are so totally different and opposite, that Congress law will preempt state law b/c they are in conflict
15

X.

w/state law (i.e. Congress says teachers must wear blue shirt on Fridays; State law says teachers must wear pink shirt on Fridays) 3. Field Preemption (state law doesnt conflict w/federal law, but enacting state law would frustrate Congress law and intent/purpose behind that law) - Congress may be heavily regulated in an area, thus, state cannot regulate any in that area b/c state regulation, although it wouldnt technically conflict w/federal law, still effects federal law (i.e. Congress says teachers must wear purple tie on Fridays, state says teachers must wear blue shirt on Fridaysarguably, state law would effect federal law b/c no one wants to wear purple tie and blue shirt) Separation of Powers and Non-delegation: Separation of powers between 3 branches within the federal government. Branches are highly intermingled by the constitutional federal design. 3 Branches of Government: A. Executive: Largest branch; completely hierarchical w/the President at top; Article II vests power in President w/o qualification. 1. Presidents Powers: Constitution vests executive powers in President w/o qualification. President must get his powers from (1) the Constitution, or (2) Congress delegating the power (through statute or law). Elected office Enter into treaties w/foreign countries if Congress approves Appoint lower offices if approved by Congress Commander-in-chief of the Army (This does not mean that he can order citizens around in the U.S. just to support the militaryhe can only order soldiers around) EXECUTE a law that CONGRESS has passed (Executive Power President can only enforce and execute laws that Congress has already passed; he cant make up a law and then force people to follow itcant enforce a law that doesnt exist) RESPONSIBILITY to ensure that laws are obeyed. Pardoning Power 2. Youngstown Sheet Case: President cant use his commander-in-chief power to exercise authority over citizens, only the military. He also cant use his executive power to MAKE LAWS, but can only ENFORCE LAWS that

16

Congress has passed. Youngstown Sheet Case has 3 different views: Majority Rule/J. Black: President cant act unless he has express Constitutional power, or express authority from Congress J. Jackson: 3 Ways President may Act in Emergencies Dissent: President should have power to respond to emergencies, and not be messenger boy for Congress. 3. 3 Ways President May ACT IN EMERGENCY/Imminent Necessary Situation (Youngstown Sheet Case, Justice Jackson) : 1. Presidential Action pursuant to congressional authority: When a President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all the Congress can delegate. (through statutes they have passed in expectation of these emergencies) Presidential action, in these circumstances, is presumptively valid. Any challenger bears the heavy burden of demonstrating that the Federal Government lacks the power to do what its political branches have authorized. (However, note that Congress can never grant President a power that would be against the express provisions of the Constitution.) 2. Presidential action where Congress is silent: When President acts in absence of either a congressional grant or denial of authority he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. This category assumes some inherent presidential power exists. Yet, such a power must be subject to two important limitations: (1) presidential power may not be exercised in violation of other constitutional provisions; (2) presidential inherent power is subject to statute Congress may, by statute, regulate the exercise of presidential power in this area. Here, it is uncertain whether he can act in the way he tries to act. Where there is no law/statute or guidance that either grants or prohibits Presidents power in a certain type of emergency, the analysis shall be based on context. These contexts are analyzed by (1) looking at Congress other laws that they have passed, and thinking of whether Congress would have passed a law like this or not. (2) How did
17

Congress respond to the action that the President took? Did they respond by giving their approval of the action? Did Congress respond by disapproving?KEY IS TO LOOK AT CONGRESS voting on whether they like what President did or notif Congress does nothing, shifts power presumably for President to do the act. 3. Presidential action contrary to congressional directions: When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Here, the Presidents claim depends on the relative merits of his claim vs. Congress authority to act. (Congress power usually trumps POTUS). Usually, when Congress passes law that prohibits President from doing something, he cant do itit would be breaking the law. However, for example, if Congress passes law that takes away Presidents Constitutional (core Article II powers), such as being commander-in-chief, then this cannot happen. 4. U.S. v. Belmont: President has executive power over foreign relations, to go meet w/foreign leaders. President is able to enter into agreements unilaterally w/foreign countries to settle international dispute over claimsno Contracts Clause violation b/c President was exercising his right to foreign affairs. 5. U.S. v. Pink: Congress has no bearing on Presidents ability to unilaterally recognize ambassadors and determine with what countries the U.S. has foreign relations. 6. Executive Authority over Foreign and Military Affairs a) Foreign Treaties vs. Statutes: Takes 2/3 vote of Senate to pass treaty; only majority vote in both House and Senate for statute. Usually, now President wanting to enact foreign treaty usually goes through process and enacts a statute insteadnot much difference between the 2 today. b) Dames & Moore v. Regan: Example of implied acquiescence by Congress. Adopted Jacksons concurring opinion in Youngstown. Rehnquist modified Jacksons framework by observing that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some
18

point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. Just b/c Congress has not EXPRESSLY given the President the authority to act in a certain waythey may still have IMPLIEDLY granted him authority to act in a certain way (by looking at laws and statutes they have already passed which prove that their close relation to the situation implies Congress authorization of the power to the President) c) Medellin v. Texas: Courts will PRESUME that a treaty is non-self-executing, (unless the treaty explicitly says that it is self-executing) meaning that Treaties are not to be enforceable in Court unless Congress implements legislation (ENACTS A STATUTE) to make law to implement the treaty 7. Presidents Powers to Detain Persons Habeas Corpus, Martial Law and Military Tribunals a) Ex Parte Milligan Milligan, Indiana CITIZEN, and non-soldier, cannot be detained and tried in MILITARY COURT when civilian court is open. Privilege of Writ of Habeas Corpus may be denied by the government in times of great crisis and in the exercise of proper discretion. However, the Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. Thus, Military Tribunals may not be applied to citizens, whom are not unlawful enemy combatants, in states which have upheld the authority of the government AND where the civil courts are open and their process unobstructed. b) Ex Parte Quirin: Being a member of an enemy army subjects that member to Military Court jurisdiction, regardless of whether or not enemy army member has U.S. citizenship as well. Congress has EXPRESSELY said that Military Courts have jurisdiction over enemy aliens who have intent of being hostile against the U.S.this is put forth in Congress Articles of War. Thus, Military Tribunals may be used either (1) if the civil courts are closed b/c of the exigencies of war

19

OR (2) when dealing w/ unlawful enemy combatants. c) 2 Different Doctrines that Apply to Detaining people at War Times: i. Detentions of prisoners of war lawful combatants: Subject to capture and detention as prisoners of war by opposing military forces, but not subject to military tribunals. It is legal to fight for your own country, and if you are captured, you may be detained for the duration of the war/hostilitiesThus, those captured on the basis that they are members of the enemy army, then it is legal to detain people as a prisoner of war, and they dont have to be tried for a crime just held until war is over. ii. Detentions of war criminals unlawful combatants: Likewise subject to capture and detention, but are generally deemed not to be entitled to POW status; they are, in addition, subject to trial and punishment by military tribunals for their unlawful acts. Violation of the laws of war (Spies, fighting in wrong uniform, targeting civilians instead of military targets, sabotage, etc). These people are not only being detained b/c they are member of enemy army, but b/c they have violated crimes of war. These people may be subject to military justicetried in military tribunals. Dont necessarily get access to civilian courts. d) Hamdi v. Rumsfeld Hamdi was member of Taliban army; was born in U.S. but moved to Saudi Arabia when he was 1; captured and brought back to U.S.; being held as ordinary prisoner of war, not a WAR CRIMINAL; disputes that he is member of Taliban army. Court says that Military Court has jurisdiction in this case, but must hear with fair and open mind. If it appears he will receive unfair trial, then Hamdi will be taken out of Military Court.
20

Scalias Dissent: He is being charged with treason, which is penalty of death in Federal Court, so he may not want non-military jurisdiction. ii. Stevens Dissent: treason is a very serious charge, and they should be given every single right that a U.S. citizen is entitled tofair trial, all constitutional rightsbecause this is a very serious charge. iii. Thomas Dissent: Congress has authorized President to detain people in war times, so this falls under Justice Jacksons first category, and President is at his maximum authority. Youngstown Steel iv. Souters Dissent: Non-detention Act passed by Congress in the past makes presumption that citizens of U.S. are not to be detained by the military, and doing this falls in 3rd category in Youngstown Steel case, b/c President is going against Congress Act. e) Rumsfeld v. Padilla: Padilla is gangster from Chicago who made many trips to Afghanistanwas thought to be tied to Taliban; he gets arrested on plane for build dirty suitcase bomb. He is charged in Federal District Court, as a citizenPresident cannot order him to military court. f) Hamdan v. Rumsfeld: Hamdan is Bin Ladens driver; charged w/war crime of aiding terrorist attacks. President cant unilaterally order a prisoner of war BEING CHARGED W/WAR CRIME to Military Court. 8. Habeas Corpus: Prisoners right to petition to Federal civilian court system when being detained for a crime, and the right to all Constitutional protections for U.S. citizens. (Can be suspended during war times when courts are closed, military criminal, etc.). (Courts have jurisdictions to decide Habeas Corpus decisions) (Rasul v. Bush Guantanamo Bay detainees allowed to file petitions) a) FEDERAL COURT HABEAS CORPUS: Courts will then have jurisdiction to determine whether they were given fair and rightful military proceeding. Courts will intervene just to make sure that the military justice standards and procedures were correctly and fairly held. b) BLACK LETTER LAW: If you have someone detained as military combatant, they are entitled to military review to determine whether or not they are
21

i.

rightfully held and what they should be held aswar criminal, or prisoner of war, and whether their military proceeding was fair or not. c) IMPORTANT: The military justice that these criminal get must be the SAME as U.S. soldiers get when U.S. solders are tried in military courtFairness and fundamental procedures must be the same as those U.S. soldiers get in court-marshal. B. Legislative: CONGRESS, LAWMAKING 1. Congress Powers: Constitution vests all legislative powers HEREIN GRANTED (i.e. enumerated) to Congress. 2. Congressional Control over the actions of the Executive Branch a) INS v. Chadha: Chadha overstayed his student VISA & was thus deportable; appealed to Attorney General pursuant to provision of Immigration Act, asking for one-year extension; Attorney General granted Chadhas petition; under this Act, Attorney General/INS must report to House of Reps when it grants one of these extensions; House votes Chadhas extension to be reversed and unilaterally ordered him deported; this ONE-HOUSE VETO was found unconstitutional b/c it VIOLATED THE 2 REQUIREMENTS FOR PASSING A LAW: (Law = Doing something that CHANGES THE LEGAL RIGHTS OF SOMEONE) i. Presentment Clauses (Art. I, Sec. 7, cl. 3): Congress must present prevent all legislation to the President before it becomes a law. President has limited and qualified power to nullify proposed legislation by vetothus, lawmaking is to be shared by BOTH Houses and the President ii. Bicameralism (Art. I, Sec. 1 & 7): Laws must be passed by BOTH House and Senate, then sent to and signed by President for it to become a law. One House of Congress cannot unilaterally pass a law that is enforceable Then, if President VETOES, only TWOTHIRDS of the House + TWO-THIRDS of the Senate (rather than simple majority vote) can override Presidents veto. 4 provisions in the Constitution by which one House of Congress may act alone w/the unreviewable force of law, not subject to the Presidents
22

Veto: (1) Houses power to initiate impeachments; (2) Senates power to conduct trials on impeachment charges; (3) Senates power over Presidential appointments; (4) Senates power to ratify treaties. b) Clinton v. New York: Line-item Veto Act allowed President to mark through provisions of Congress budget that President didnt like, and then make the budget a law, based on what he liked from Congress proposal. RULED UNCONSTITUTIONAL, because President cant unilaterally rearrange Congress Budget Act, and then enact the law himself. He must either sign the whole or VETO the whole. 3. Congressional Control over EXECUTIVE OFFICERS of the U.S.: How much control does President have over other employees in the EXECUTIVE BRANCH? 2 Kinds of Executive Officers/Employees of the U.S. (Art. 2, Sec. 2, cl.2): Principle Officers of the United States they head a department of the government: Secretary of defense, secretary of treasury, etc. (President nominates these officers, and Senate enforces their employment) Inferior Officers of the U.S.law clerks to Federal Judges, etc.Congress can provide for how these offices are appointed (could be vested in courts of law, heads of departments, or even the President if they wanted to.) This language in this clause is silent on who can be FIRED from these positions. C. Judicial D. War Powers Resolution: Congress wanted to illustrate framework as to how the President can go about sending troops into battle. The President needs limited ability to respond to emergencies, but that power could not escalate over a period of time w/o checking w/Congress, and Congress getting involved. WPR doesnt apply if Congress DECLARES WAR (i.e. WWII only applies when War is not DECLARED). Gives President LIMITED ability, but also gives him some opportunity to respond to emergencies, but Congress needs to get involved ASAP when emergency arises. 1. Nixon tried to VETO because: a) Presidents constitutional powers as commander-inchief are being taken away fromand
23

2.

3.

4. 5.

6.

7.

8.

b) Congress being silent and not voting being construed as Congress disapproval of Presidents action takes away Presidents VETO power, b/c Congress silence = disapproval and not allowing act to go through means that they cant veto Congress decision. Presidents War Powers under WPR: Respond to EMERGENCY SITUATIONS by sending troops if necessary, or rallying troops to defend an invasion. However, President must CHECK W/CONGRESS under SECTIONS 3, 4, & 5 of WPR. Congress War Powers given by Constitution: Declare War Make rules/regulations regulating armed forces Budget Powers for War SECTION 3 OF WPR: President must consult w/Congress if at all possible before sending troops in emergency times SECTION 4 of WPR: President, in sending troops in, must report to Congress w/in 48 hrs of sending troops in, and must report every 6 months during hostile times to let Congress know what status of the war is. SECTION 5 of WPR: Responds to Youngstown Steel case, telling what Congress wants when President has sent troops into war, and then has reported to Congress. In this case, Congress MUST convene and vote within 60 days on whether or not it authorizes sending the troopswhether it was a good idea so we should leave them there; or whether it was a bad idea, and bring them back. a) Default Rule: Also, if Congress doesnt act within the 60 days, Congress ALWAYS WANTS THEIR SILENCE TO BE CONSTRUED AS THEM DISAPPROVING W/PRESIDENTS ACTION (i.e. if they dont meet, then President sending troops in unilaterally is not approved by Congress) b) Peaceful Troops: The WPR doesnt apply to troops being sent overseas in PEACEFUL SITUATIONS. SECTION 8 of WPR: Appropriation of Funds in itself to support a military mission that the President has ALREADY unilaterally initiated is not to be construed as Congress approval of Presidents unilateral action of sending troops. Past Presidents View on WPR: All Presidents have thought that the WPR is unconstitutional; similarly, even though the WPR says that Congress silence = Congress disapproval, any time the past Presidents have sent troops into foreign countries
24

and Congress has been silent, the President has kept troops there, and disregarded the Congress silence = Congress disapproval clause of the WPR

25