PRE-CONSTITUTION
The Constitution cannot be understood unless we understand why we took up arms against the British in a successful revolution.
John Dickenson
Most reluctant to declare independence, and was author of olive branch petition. Declaration of Independence was unanimous was because people who disagreed, like John Dickenson, stayed home to not embarrass the movement. He also immediately went out and raised a regiment to ght for the continental congress. Parliament had laid duties (taris) on glass and paper. Dickenson said that an external tax created by parliament is valid as parliament has a right as sovereign to lay duties to regulate commerce/mercantilist trade. He says, however, that an internal tax directly on the people is taking property and invalid. Parliament says well, if we cant tax you, then we can increase the duties and get the money anyways! This is where Dickensons argument comes in. He says that duties can be laid but not to solely raise revenue. He says the nature of the thingnot what you call itis what it is (cant be pretextual) He says that the purpose of a tax is to raise revenue, while the purpose of the duty is to regulate behavior. Colonists believed that the parliament was deeply corrupted and was lying about what they were doing.
Declaration of Independence
The Declaration of Independence is a legal document in two senses: Its an international legal document, and a british legal document, as its made in the form of a traditional english petition to the king. First is a legal , asserting that they would become independent under international law. Only subjects to international law at the time were sovereign states; colonies had no standing. The declaration of independence was asking the international community to acknowledge them as a new legal entity. Jeerson wisely puts this rst, almost as a threshold issue. Dutch were the rst to give recognition by lowering its colors in respect to an American ship passing by. The declaration sets out the ultimate purpose of man, then explains that government ows from that purpose, not the other way around. Up until the time of the declaration, the revolution had been fought on legal terms. The declaration also is based on legal terms. So the next challenge was to create a structure for government based on these legal arguments.
Articles of Confederation
Starts out by establishing sovereignty of the states, rather than the people centric sovereignty of the constitution. It says that the union would be perpetual, and secession was not thought; they were in it for the long haul. Most of the powers given to the united states are foreign, so it existed internationally as an entity, but domestically, it might not have been a single entity. There was no oce of the president, rather it was a committee with a presiding ocer, and congress had a legislative and judicial and executive function. Also there was a lot of turnover in the system, short terms, etc. made it very inecient.
Northwest Ordinance
While the constitutional convention met in Philadelphia, the confederation congress continued to meet in NY, passing their greatest triumph, the NW ordinance. It was re-passed by rst congress under US constitution. This document established the govt over the NW territory. All the states gave up their claims to the US in the confederation congress so the confederation congress had to pass laws regulating the territory. 5 states formed from the NW territory were subject to the ordinance. NW ordinance setup how territories could join the nation. And, most important thing was that when new states joined they would be equal to the other states. Eastern states knew that eventually they would be outnumbered, which southern states feared because of their hold on slavery. It also had a kind of bill of rights attached to the inhabitants of the states: Article I - Freedom of worship; Article II - common law rights; Article III - religion had to be encouraged because a republic cannot last unless the people possess a modicum of virtue; and Article VI - no slavery, which testies to the fact that the framers wanted slavery to be geographically limited.
THE CONSTITUTION
Article I - Sets out legislative powers; congress is limited to the powers enumerated. Article II - Executive duties/powers; powers are not enumerated. Article III - Judicial branch; Supreme Court is the only court required by law. Core Powers - Each branch has central core functions that the other branches are not permitted to impede. If a core function is invaded, the branch being invaded has a right to action. Partial Agency - Gives each branch some limited power in the other branches (e.g. presidential veto). Prevents one branch from becoming more powerful than any one other branch. Protects the core functions of each branch.
Constitutional Convention
Dierent interests were presented. Some wanted strong states rights, some wanted to do away with the articles of confederation. All votes were by state, but needed a quorum of the state delegation to have a vote for your state. Hamilton was left for NY in the middle because other anti-federalists left. Out of the 50 who started, 35 stayed through to the end. There was a vote between the VA and NJ plans, and the VA plan won, but after resolutions, the two plans were truly melded together/compromised. Most say that they got the best of both plans. Had a hard time guring out how to elect the president. Didnt want popular vote, since that leads to plebiscitary tyranny. Thats why they came up with the electoral college system (rst was bad, changed by 12th amendment to elect president and VP together). Had a question about separate federal judiciary or just a supreme court. They let congress decide, and now we have a separate federal judiciary.
Thoughts on Government
Great ideas found in this document written by Adams: two houses of legislature; the reason government is instituted is happiness of people; independent judiciary; an executive veto on legislature; and judges appointed by governor with advise and consent of council. Why should judges have less checks and more independence than other branches? Judges should be more learned/experienced, exemplary moral, patience, calmness, coolness. The framers had great trust in the character of judges in how they would exercise their power, but were distrustful of legislatures, etc. The question is whether their optimism was well founded based on what has happened since.
Virginia Plan
Presented rst. (He who sets the agenda sets the conclusion). This plan goes right for a national government, getting rid of the articles of confederation. Its a larger state plan with a strong national government (e.g. it says the national government could veto state laws). A proposed council of revision would meet to determine whether or not to veto acts of the legislature, and the council would be formed by the executive and judges.
This concept is found in the supremacy clause of article VI of the constitution. All agreed on national govt having: direct power to tax, control commerce, ind. judiciary, and able to form an army.
Ratification of Constitution
Rather than go to state legislatures, they called for a popular vote from the people to call for an election for a convention in each state to determine to ratify (which is what John Adams did with the Mass. constitution). Whats the legal signicance of going to the people of the several states rather than the state legislatures?? When the people of the several states ratify the federal constitution, they ipso facto (by the act) change their states constitutions, because some powers were transferred to the federal government. Only the people had the power to do this, not the legislatures, since legislatures were a product of the state constitutions. legally speaking, only the people had the power to do this.
Federalist 47 (Madison)
Montesquieu wrote the spirit of the laws praising the British constitution because it had a separation of powers. Because the branches were so separate, and one couldnt take over the other, that prevented a constellation of forces that could lead the government to become tyrannical. The anti-federalists argued that the overlapping of the branches of government could lead to the branches taking over each other. Federalist 10 + 47 shows how the structure of government can be used to preserve liberty.
Federalist 51 (Madison)
Here Madison does something even more sophisticated, he harnesses passions to pit them against each otherBut the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department necessary 4
constitutional means and personal motives to resist encroachments of the others. The provision for defenses must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. This argument is why the federalists didnt think we needed a bill of rights. The desire for one became so powerful though, that some wouldnt ratify without a promise to pass one later. Why else didnt they think a bill of rights was necessary? Because of a basic rule of statutory interpretation: inclusio unius est exclusio alterius (the inclusion of one thing excludes all others). Fundamental rule of statutory interpretation. If you say X is not allowed, then everything non-X is allowed. Essentially, the constitution is a document of enumerated powers (Article I, Section 8 powers herein granted). So they would say, we dont have the power to pass a law against religion, so you dont need a bill of rights. The reason you have bills of rights in state constitutions is because they dont have enumerated powers. If your legislature can legislate on everything, then you need a bill of rights to create exceptions. On top of this, they said it was dangerous to have this list of rights, because the congress would then operate up to the limits of those listed rights. Congress will do everything else up to those listed powers. The ninth amendment was added to the bill of rights to say inclusio unius est exclusio alterius wouldnt apply here, to attempt to prevent Congress from overreaching its powers. He also mentions that the society will be broken into so many parts that factions wont arise.
Separation of Powers
Three mechanisms by which separation of powers is enforced: (1) partial agency; (2) self-restraint (Marbury); and (3) non-compliance.
that sense would be appellate jurisdiction, when it is issued to direct the delivery of the commission would be original jurisdiction. As a result, the Judiciary Act of 1789 attempted to expand original jurisdiction. But can the legislature expand the original jurisdiction of the Supreme Court? If Congress can change the jurisdiction of the supreme court, then much of the wording of the constitution is just a waste of words, since the congress can change it at any time. This references a rule of statutory interpretation, that extra wordiness, mere surplasage, is not really allow. All words in a statute should mean something. So a construction of a statute that renders these words useless cant be the right construction.
Juticiability Doctrines
As a court, the Supreme Court is subject to justiciability doctrines (what the court is competent to decide): Finality of Decisions, No Advisory Opinions, Political Question, Standing, Ripeness, and Mootness.
Federalists Papers 78
Where in 78 has Hamilton disagreed with Brutus? He thinks that the judiciary is the weakest of the three branches, and it is more likely to be overwhelmed by the other two, because it doesnt control the sword (executive power) or the purse (legislative power). He believes that the legislature operates by will (passions) and the executive operates by force (power, troops, enforcement), but that the judiciary only operates by judgment. Judges serve under good behavior (doesnt mean nice guy), which is a term of artit meant you cannot be red. This is preferred as if their salaries could be reduced, they would be beholden to the other branches. Hamilton agrees that the judiciary is independent, and that in the main, the normal checks and balances do not apply to the judiciary. Amendments would be hard to get, and impeachment is also dicult, and appointment power was only granted to prevent appointment of cronies. He believes they have to be independent because theyre so weak. Brutus may ask, and did, however, what makes these people free of the passions that the other branches have?? Hamilton responds that judges wont be so dangerous because the very craft of judging limits the judge. Its a self limiting type of function.
not. there are all kinds of mechanisms as to how to follow or distinguish precedent. For both of these two, rather than judging their will, theyre looking at whats out there and judging on it (3) Law of Process civil procedure rules limiting what the court can hear or what it can do (4) Law of the Subject (doctrine) very complex areas of law and rules of the substance that bind the court to decide a particular case before it (5) Law of the Case (res judicata) cant change a case thats been decided; the law of the case is binding on those parties (6) Law of the Judge (judicial ethics) recusing from cases youre too close to; its an internal restraint on what judges can do. is he limited to the written law? or unwritten law as well? (7) Law of Law (principle of legality) courts will study a law to see if it meets minimal aspects of what it makes binding law. It cant be vague, or its called absurd. law has certain internal elements that make it what it is, and the judge will enforce that. (8) Law of Reason - in the Anglo-American system of justice, judges have to give reasons. They have to be completely (or at least pretend to be) transparent. The judge has to put themselves out there and show they have reasoned their way; congress doesnt have to do this. Courts have to justify themselves, which is an extraordinary limitation. (9) Law of the Constitution underlying basis of our system, always a background principle even in other topics (1st amendment and libel, for example)
Pardon Power
The President has the power to pardon someone found guilty of a crime. This power is a core power of the president, and cant be undermined or qualied by Congress.
Ex Parte McCardle
This case is signicant as the entire reconstruction scheme hinged on how it would turn out. Also, it illustrates how the core powers of the three branches of government work together. In Milligan, the court said it was unconstitutional to suspend habeas corpus or try a civilian in military court if theres a civilian court operating. The Supreme Court had appellate jurisdiction at that time and could review denial of the writ. In McCardle, Congress then changed the law and limited the Courts appellate jurisdiction
during the case, which theyre allowed to do, to prevent them from reviewing writs of habeas corpus. The court then said they were bound by the law and couldnt review the denial of the writ because they had no jurisdiction. Congress removed appellate jurisdiction with regards habeus corpus relief prohibited under the act of 1867. He also says that if the legislature exercises a legitimate power, the court is not allowed to review, as a constitutional matter, what the congress had done. Congress exception power is a partial agency power to check the court, and is meant to be defensive (per Madison in Federalist).
U.S. v. Klein
Issues in Klein are if Congress can limit Presidential Pardon power, and whether a pardon can be used in evidence as an armation of guilt. The court says that congress cant tell the president who he can pardon. Pardon power is a judicial power of the president, he determines the legal position/status of a person when he pardons. Also, the pardon cant be used in evidence as a pardon completely eliminates the acts done by the person as if they never happened. [Exam] How could the congress written the law to avoid the decision in Klein? (good exam question). They could have repealed the original actthey cant keep the original act and make it come out their way. Theyd have to remove their right to recover property under the underlying law. The motive to do it doesnt matter, so someone couldnt say that the repeal was just pretext.
judicata is a procedural right of a winning party, not something the court would do sua sponte. Dissenting, Rehnquist says that the law says to the court of claims to hear the case again, directing the court to hear a close case. It wasnt just waiving res judicata like Blackmun said, rather, they were telling the court to do something.
A.I.G. v. Iran
Iranian hostage crises where Iran seizes American assets. American companies want to sue Iran, so they attach/seize the assets of Iran in America to give them quasi in rem jurisdiction. President Carter blocked removal of assets. The U.S. and Iran reached an agreement, which required the U.S. to terminate the legal proceedings, so the president by executive order quashes the legal proceedings, settling the claims. The American companies lost out on their attachments, so they sue saying you cant take away our rights and duties by executive order, because that would undermine the court. The court holds that the president does have the power to suspend claims of americans against a foreign sovereign. The president has the power to enter into agreements and treaties with foreign governments, and in this case, nalizing the agreement modied the law. Can those agreements modify domestic law? In this case, yes.
The Supreme Court said that courts are obligated to apply law (otherwise valid) as they nd it at the time of nal judgment, including, when a case is on review, the time of appellate judgment. Until appellate rights are exhausted, even an otherwise valid judgment may be negated by supervening legislation.
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cannot be told a rule of decision. The only case in his way is Sioux, so he tries to limit that. Scalia says that because the judicial power is one to render dispositive judgments, the Federal law eects a clear violation of separation-of-powers. The statute was unconstitutional because it overturned a Supreme Court decision and gave relief to a party that the Court had said was entitled to none. This case is important because the court in Sioux and Robertson (Spotted Owl) gave congress wide berth to change law, and in 1995, the court gets its back up, and starts to draw some lines where congress had had fairly wide discretion in the past.
Inferior Courts
Congress under Article I has the power to establish tribunals inferior to the Supreme Court. This is sort of a partial agency interaction between Congress and the Supreme Court, as Congress creates the lower courts.
Jefferson
Can the president prevent the execution of laws passed by congress? Jeerson pardoned printers who were put in jail, and congress paid back the nes. They checked the court, but through their own powers, he didnt avoid enforcing the law.
Jackson
Jackson didnt like the banks, but the court said they were constitutional. So Jackson said yeah
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Lincoln
Lincoln says that Dred Scott didnt get his freedom, and that we cant interfere with that because of res judicata. Secondly, Lincoln said that the courts dicta saying that slavery cant be regulated by congress isnt binding, and that congress can just pass another law.
Roosevelt
In gold clause cases, FDR expected the court to strike down acts, and the court upheld the legislation, to his surprise. FDR had drafted an executive decree if the decision had come down dierently.
Guarantee Clause
The Constitution guarantees States: (1) popular rule; (2) a republican form of government (no monarch); and (3) rule of law. This allows states wide latitude to innovate, so long as they have these three basic elements. In Luther v. Borden and in Colgrove v. Green the Supreme Court has said that enforcement of the Guarantee Clause is a political question and is non-justiciable. After Baker v. Carr, the Guarantee Clause is not a political question anymore.
Luther v. Borden
RI revolution, which govt is legit, court says its not up to them.
Colgrove v. Green
The court holds that apportionment is a political question.
Baker v. Carr
Before Baker v. Carr, reapportionment was determined to be a political question because legislatures were supposed to gure out how they were to be elected.
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Frankfurter argued that the court shouldnt become an administrative body, drawing lines and enforcing rights around the country. Brennan believes that they should become that kind of quasiadministrative body. This case provides a good summary of the political question cases, even though the opinion dramatically changes how political questions are handled. Political question cases are found where: (1) there is a textually demonstrable constitutional commitment of the issue to a coordinate political department (veto, impeachment); OR (2) a lack of a judicially discoverable and manageable standards for resolving it (dissent focuses onto this point); OR (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion (foreign aairs); OR (4) the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government (asking for Nixon tapes, papers in the executive branch); OR (5) an unusual need for unquestioning adherence to a political decision already made; OR (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question. If any of these are found, then thats a reason for the court to stay out of the case. Brennan gets out from under the doctrine because he isnt looking at whether a political question is present, but rather that the political question cant be completely removed.
Foreign Affairs
Goldwater v. Carter
Carter denounced the treaty with Taiwan, and Goldwater brings suit to say that the Senate should have 2/3 vote to get out of treaty too. A Plurality of four on the court said that the senate didnt have this right, and that its the a political question for the president to decide.
Trial of Impeachment
Nixon v. U. S.
Judge Nixon claims he wasnt tried before the Senate because he was tried before a committee. The question is whether the Senate has the sole power to determine how to try its cases. [Rehnquist] The court holds that the issue is non-justiciable on both textual and prudential grounds because the plain meaning of the word sole is that the Senate alone has the authority to determine how to try the case (its procedures).
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FEDERALISM
Supreme Court Reviewing State Court Judgments
Martin v. Hunter's Lessee
Here Justice Story is saying that the Supreme Court is at the top of the court system and says that because the legislature has power to pass federal laws that remove some state sovereignty, then analogously the court can hear these cases as well. It is the case then, not the court, that gives us jurisdictionthe Supreme Court can hear any case that involves federal law.
Cohens v. Virginia
The judicial power extends to all cases arising under the Constitution or a law of the U.S., whomever the parties may be.
McCulloch v. Maryland
McCulloch was the head of the Maryland branch of the national bank who refused to pay the tax passed by Maryland. Suit was brought against him by Maryland, and it went all the way up to the Supreme Court. Hamilton and Marshall had long argued that there are implied powers granted to Congress in the Constitution, but the Necessary and Proper clause was put in the Constitution because of the experience under the Articles of Confederation where Congress was forbidden to use ancilliary powers. The Necessary and Proper clause also allowed the Congress to organize the government: the federal judiciary, administrative oces under the executive branch. The clause is (1) a granted power to organize the other branches of government, and (2) it is an armation of the implied powers of Congress to eectuate its own enumerated powers. Congress is still limited by Article I (powers "herein granted"). There are three points we should take from McCulloch: (1) there should be a plain connection between the means and the ends; and (2) Congress shouldn't be allowed to use Necessary and Proper clause pre-textually to get around some limit on its powers; and (3) States cannot regulate those people outside of it's sovereign control (this is shown when Maryland taxes the bank, as the people of the other states aren't represented in Maryland). For the most part, subsequent to McCulloch, particularly in the 20th century, the means and the ends don't have to be very close, and they use the rational basis test (minimal scrutiny) to nd
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U.S. v. Comstock
This case is troubling. Was there an extrinsic due process restraint such as due process or something in the bill of rights? Does the necessary and proper clause allow congress to order the civil commitment of mentally ill and sexually violent federal prisoners beyond their federal prison term? [ Justice Breyer, for the court] holds that yes, the congress does have that power. Merely a convenient and logical extension of federal power over people who are already in federal custody. What is a legitimate purpose of punishment? The majority presumes the purpose is safety of the public. Assuming the safety purpose, its logical under the necessary and proper clause to keep them in custody. The extrinsic issue of how we know theyre dangerous isnt covered. What test does justice Breyer use to determine the connection between the means and ends? He looks at whether Congress could have reasonably concluded that it was necessary to do this. This is a speculative minimum rationality version of the rational basis test, not just minimum rationality. [Concurrence by Kennedy and Alito] Kennedy wants the rational basis test to be at least as exacting as the rational basis test in the commerce clause. He believes there has to be objectively a rational connection between the means chosen and the ends sought to be achieved. He wants it to be a demonstrated link in fact, based on empirical demonstration. [Dissent by Thomas, joined in part by Scalia] Thomas and Scalia dissented, writing that the statute intrudes on the states sovereign police powersthe necessary and proper clause cant be used to facilitate powers not enumerated in the Constitution. Thomas says there needs to be a specic enumerated power for the necessary and proper clause to be used (the majority was doing a kind of bootstrappinge.g. you put people in prison under the N&P clause because of drug laws under the commerce clause, and then you can use N&P again to keep him in prison longer). If you keep using N&P to connect to N&P reasoning, you can add layers and layers of regulation getting further from an enumerated power. He wants a direct relationship, even if its a minimum scrutiny test, and a specic delegated end (enumerated power).
qualications. So the question is whether the Framer's intended that the qualications be exclusive to Congress? Steven's third argument is that the House is to represent all the people of the United States. But House reps are residents of States, and have to represent the people of a State, so this isn't a very good argument.
Regulate
Regulate - To prescribe the rule by which commerce is to be governed. This is decided by congress and is a political question; it is non-justiciable according to Marshall; it is not a judicially determinable rule.
Commerce
Buying, selling, and tracking goods, and the incidents thereto, such as navigation. Its limitation is in its denition. Instrumentalities of commerce, methods of commerce.
Qualitative
The thing itself is commercial and is in commerce. Quality of the thing, the nature of the thing (same as Marshalls denition above).
Quantitative
The thing itself is not commercial and not in commerce, but it eects commerce. Anything that has an eect on commerce is commerce, such as manufacturing.
Causal
Justice Cardozo wants a test to examine the immediacy of the eects of commercial activity. If we just look at all eects of acts on commerce, then everything becomes commerce and under the commerce power. So Cardozo wants aects to be measured in degrees. This can overlap with with the quantitative approach, as something can have an immediate aect and substantial aect.
Jurisdictional
If a thing is transported in interstate trac, it can be regulated, whether it is commercial or not. The court has really never cut back on this power, and the court will not scrutinize the purpose.
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Gibbons v. Ogden
NY legislature grants a monopoly to Ogden operate steamboat in NY waters. Gibbons wanted to operate his steam boat in NY waters. Gibbons ferries were licensed under a federal navigation act from 1793. Issue is whether federal statute pre-empts the NY law granting a monopoly. Because the navigation act would trump the NY monopoly under the supremacy clause, Ogden has to argue that commerce does not include navigation, so the navigation act was outside Congress' powers to regulate. Marshall says that commerce includes not just buying or selling, but the means to transport goods. This is a textual argument--what is the intrinsic (what's in the word) denition of commerce? He holds that navigation is commerce. Marshall says that "among the several states" is commerce involving more than one state-interstate, not just when the good crosses the state line, but is from the beginning of the trip to the end of the trip, and Congress can regulate the whole trip. That said, commerce completely internal to a state is not interstate commerce. Marshall says that the legal denition of "regulation" is determined by the Congress, and then the people--it's non-justiciable as it's a polical question. The court can determine if something is commerce or not, or whether it's interstate, but the court cannot determine what's a real regulation and what's not. There are two powers operating here as well, commerce clause and necessary and proper clause. So there might be a trip thats wholly internal to a state that can be regulated through the Necessary and Proper clause to eectuate something under the Commerce clause, and then we have to look at how close the means is to the ends.
interstate commerce, and to take all measures necessary or appropriate to that end, although interstate transactions of interstate carriers may thereby be controlled."
Hoke v. U.S.
This case dealt with a Madam who was importing girls for prostitution. In this case the 18
court upheld the Mann Act which prohibited the transportation of women in interstate commerce for immoral purposes. The court reasoned that Congress had the power to prohibit certain types of interstate commerce based on its commerce power.
Caminetti v. U.S.
In this case, Caminetti just bought a ticket for his mistress to cross state lines, and was arrested and that was upheld. Similar to Hoke, this case deals with an act of Congress prohibiting the tracking of "white slaves" which applies to women transported across state lines for prostitution or other reasons.
Hammer v. Dagenhart
This case dealt with an act of Congress that banned the shipment of goods made with child labor into interstate commerce. The majority opinion distinguished this case from The Lottery Case, Hipolite E , and Hoke as each of those cases involved the regulation of the transportation of something that was harmful was the object of the regulation. The act in this case dealt with the standardization of the employment age of children, as the goods shipped were harmless. The court explained that interstate commerce begins when goods are shipped, and not when they are being produced, as that is a matter for local regulation, otherwise all local production intended for interstate commerce could be regulated. The majority is claiming that commerce was just being used as a pretext to get to manufacturing of goods. In other words, the purpose was bad, even if the means was constitutional. The dissent argues that an act that is within the powers of Congress should be upheld regardless of the "incidental eects" it may have. Justice Holmes in his dissent also argued that child labor was bad, therefore it is ok to be prohibited, as the court shouldn't intrude on questions of policy or morals decided by Congress. Its very hard to reconcile this with Champion v. Ames, as the court is looking at the purpose of the act, while in Champion, they didnt evaluate the purpose. One distinction is that the goods in Hammer are just ne, while in Champion, the good itself was the problem was was being regulated.
Qualitative & Causal Era (During The New Deal) Railroad Retirement Bd. v. Alton Railroad
This is a high-water mark of the qualitative test, as it does not allow a quantitative rationale to win. The government had implemented a pre-cursor to the social security system, and argued that the act was constitutional as the retirement and payment of pensions boosts morale which makes people more cheerful and work better, improving commerce indirectly. The court argued that the pay was established based on the job being done, not how long someones been working there. And that if morale is being regulated, then the government can regulate anything. Roberts was seeing that if you open up to the quantitative reasoning, then Congress has no practical limitation on its power. The reasoning here was qualitative reasoninglabor requirements may aect commerce but labor requirements are not qualitatively commerce.
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The government tried to argue that wages and hours aect prices in the state which in turn aect prices out of the state. This kind of broad power would essentially get rid of the limit of the power because it would only be limited by the discretion of Congress. Qualitative reasoning was used herethe rules about conducting business are not interstate commerce. The government tried to argue that the chickens were still in the stream of commerce, and Hughes says that the stream ends when the chickens reach the slaughterhouse. The government also tried to say that the wages/rules aected interstate commerce, and Hughes said "that proves too much" and that if the government could regulate this it could regulate everything. Hughes is saying that if you use the quantitative theory, the commerce power becomes totally a political question, as congress can then dene "commerce" and "among states", rather than just "regulation". In this case Justice Cardozo creates a third option, the causal test. He wrote that although all commerce in some ways aects the entire country, there are dierent degrees of commerce and that the law is not indierent to these degrees, so he wants to look at the immediacy of the aect for a causal test. This is similar to Cardozo's view in Palsgraf, he looks at the closeness of the causal connections between commercial activity.
Quantative Era (After the New Deal--Judicial Deference Toward Exercise of the Commerce Clause)
After 1937, the court adopts the quantitative rationale, which we'll see in Darby. So why didn't the causal theory hold? Cardozo died in 1938. Also, Justice Black came onto the court and rejected the causal view, and convinced Justice Stone to remove that rationale and stick with the quantitative view. Progressive theory of what government should be has ltered through to the Court, and the Court adopts a new persona. It no longer regards itself as watching over formal divisions in the government. The progressive view of government is that it should be a closer democratic relationship, and that the courts should stay out of the political battle between factions. Two stages - 1938-1954 the court is very restrained, lets Congress do what it wants as long as its fair. From 1954-1990 the court is more substantively progressive (more second semester).
quantitative case. Justice Hughes talks about acts having a "close and substantial" relation to interstate commerce. As a quantitative case (having been re-characterized), this case adds the "enterprise" concept to the quantitative idea of a local activity substantially eecting interstate commerce. Rather than showing that wages aect interstate commerce, you just have to show that the whole enterprise eects interstate commerce. Dierence between majority and dissent has to do with the enterprise concept. The majority says that if the whole enterprise aects commerce, then any little part of it can be regulated. The causal test is very similar to the necessary and proper test. Is there a rational basis, a causal connection, between the means and the ends of the regulation. The court says the means must be substantially related to the ends. Very similar to plainly adapted from Marshall in McCulloch. Why doesnt the Court pick up on this test? Because at the time the Court was gutting the necessary and proper clause from the plainly adapted test and just wanted a rational basis test. So they just missed this test and this approach dies.
U.S. v. Darby
Case concerns the prohibition of goods in interstate commerce of goods produced in substandard labor conditions (overruling Dagenhart). The court uses the quantitative analysis again, as the court mentions the "aect" of local activities on commerce throughout the country. The act prohibit substandard labor, using bootstrapping to get at local activity directly the prohibition is the means and the end, its necessary and proper to prohibit hiring of workers at low wages to prevent shipment of goods made at low wages (jurisdictional element). Court says that Congress has a police/plenary power, and that there is no longer an intrinsic (denitional) limit on this power. Rather, we have to look at extrinsic limits on the power, such as through the Bill of Rights.
Wickard v. Filburn
The court uses quantitative reasoning, that growing outside quotas aects interstate commerce. This is used to create the horizontal class rationale similar to the vertical enterprise concept. If you put these together, its very hard to nd something that Congress cannot reach through the Commerce Clause. For the horizontal class test the court looks at whether the whole group of similarly situated individuals have an eect on commerce, not just the individual. Court is giving the denition of interstate and commerce over to the Congress as a political question, in addition to regulation which they already had. Also in this case, all of a sudden, commerce becomes economics. They say that Congress can regulate economic activity among the several states.
Maryland v. Wirtz
Fair labor standards case. It upholds the substantial eects test and enterprise concepts. Justice Harlan is also looking for a limit on the substantial eects test, and doesnt nd one as the law is upheld.
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Court says that if there are two means, one restricted (moral, police) and one allowed (commerce), Congress can regulate commerce even if it has an impact that is moral and secondary.
Katzenbach v. McClung
Restaurant case where court found that Congress could regulate activities of restaurant because it aected commerce (same as Heart of Atlanta pretty much). Three ways to use commerce power: (1) in interstate commerce; (2) substantial eects; and (3) supplies in interstate commerce used in intrastate activity.
Perez v. U.S.
Loan sharking case. Congress federally prohibits loan sharking. Justice Douglas says right out how can you arrest a local loan shark? Through being a member of a class. On what grounds does Justice Steward dissent? Seems to be disagreeing with the class theory, and might also be making a tenth amendment argument as well. During this era you have some of these bad conscience dissents asking how far have we gone? Where do we draw the line?
U.S. v. Bass
Gun case where court says if Congress was ambiguous and therefore statute must be construed towards lenity, and also that federal crimes aren't usually dened where a state already has power. Justice Marshall denes a rule saying that where there is no jurisdictional element, and the activity regulated is traditionally left to the states, Congress can reach the activity, but must clearly state the purpose of the regulation.
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interstate commerce, and that it aected interstate commerce. Hes impliedly overruling the Caminetti case. He wants a kind of nexus connection between the thing that travels through interstate commerce, and that it somehow aects commerce. This is trying to put some limit on the jurisdictional element. [Kennedy and OConnor, concurring] Court should be deferential to Congress and shouldnt overturn Commerce Clause precedent, but that said, the Court should still be a check on the legislature when it goes too far. Allowing Congress to regulate everything that would normally be within the States powers eliminates borders and eectively ends Federalism. Theyre saying that progressive democratic accountability melds with the federal idea, because states are better at guring out democratic accountability, since theyre closer to issue. [Thomas, concurring] The Court has drifted far away from the rst 150 years of case law on the Commerce Clause; commerce is dierent than manufacturing and agriculture; looking back on the older view of the clause doesnt mean throwing out recent case law; and Congress should not have a blanket police power through the Commerce Clause. Also, the entire constitutional structure is violated, as the enumerated powers are mere surplusage, as is the rest of the constitution, if we use the substantial aects test. [Breyer and Ginsberg, dissenting] Congress has the power to regulate any activity that has a signicant eect on commerce (he thinks substantial is too narrow). The court should look at whether the regulated activity cumulatively eects commerce, and if Congress had a rational basis for concluding that it does. Breyer says because we spend lots of money on schools, and because gun violence around schools is a problem, Congress should be able to regulate guns around schools. In eect, he says that this is a political question and that it should be left up for Congress to decideits a non-justiciable issue because courts arent competent to decide the limits of the regulation. He also says not that Congress had a rational basis, but that they could have had a rational basis, which is the lowest bar for the rational basis test (speculative minimal rationality). [Souter, dissenting] Guns are articles of commerce, and can restrain commerce. People dont get guns without commerce. Because guns are part of commerce and have a harmful use, Congress should be able to prohibit them from certain markets. This is a qualitative argument of sorts. But I think it fails when you consider school children a market or the possession of a gun commercial just because its a product. There is virtually no limit on Congress power under this logic. [Stevens, dissenting] Rational basis test and the Court should defer to the legislature.
U.S. v. Morrison
Court invalidates civil damages provisions of the Violence Against Women Act. Student took disciplinary action against two football players after being raped. The school didnt punish them, so she dropped out and sued the football players and the school in federal district court. [Rehnquist, for the Court] Gender motivated acts of violence are in no way economic activity (qualitative argument). Non-economic activities cannot be aggregated to show a substantial economic eect. Whats commerce and whats interstate is still for the courts, and shouldnt be turned over to Congress. He also brings up the jurisdictional element like in Lopez, but doesnt apply in this case (statute is struck down on its face). That said, unlike Lopez, this act was supported by many congressional ndings that criminal activity would, in aggregate, aect interstate commerce. This reasoning has no logical limit,
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and is rejected by the court. Congress may not regulate violent crime simply because of its aggregate aect on interstate commerce. This would be a police power that is reserved to the states. [Thomas, concurring] Substantial eects test is inconsistent with original understanding of commerce. If we dont go back to original understanding, we will continue to see Congress use the Commerce Clause to gain police powers. [Souter, Stevens, Ginsburg, and Breyer, dissenting] Congress has the power to regulate activity, that in aggregate, has a substantial eect on interstate commerce. Congress is allowed to determine what those aects are, and the courts shouldnt review congressional assessment (political question, non-justiciability argument). Here congress had lots of data, therefore the act should stand.
Gonzales v. Raich
Medical marijuana case. Is the personal growing of marijuana for personal consumption an economic activity? Majority says that even though marijuana is illegal, it is an item of economic trade as there is a huge market for it. So now, how far should the substantial eects test go, and how far should deference to congress go. This case opens up the necessary and proper clause. Also, rst cases in decades where the necessary and proper clause is spoken about, argued over, and analyzed. [Stevens, Kennedy, Souter, Ginsburg, and Breyer, majority opinion] Congress can regulate a class of activities that may have a substantial eect on interstate commerce. Also, congress had a rational basis that aggregate activities will have a substantial inuence on interstate commerce. [Scalia, concurring] Prohibition of interstate commerce in marijuana can be reached by the commerce clause, but not local growing and consumption. Those activities can only be reached through the necessary and proper clause, as banning local growing and consumption is necessary to eect a ban on interstate commerce in marijuana. Scalia sees a regulatory scheme to destroy the trade in marijuana, so its necessary and proper to ban possession of marijuana to accomplish the total ban. [OConnor, Rehnquist, and Thomas (in part), dissenting] States are laboratories to try novel social and economic experiments. The majoritys view of economic activity is too far reaching, and would cover all productive human activity. Eect of marijuana growing is too small to eect interstate commerce. How does she distinguish Wickard? She says there is no evidence that personal consumption has substantial aects on interstate commerce. [Thomas, dissenting] Thomas argues for the same kind of rule as Scalia, but then goes further and says that the current means is neither necessary or proper. Thomas nds that the regulation must be necessary AND proper, and he cites McCulloch on those standards. Whats necessary? The means must be appropriate plainly adapted to executing an enumerated power. He rejects the minimum scrutiny rational basis test, and says that it must be subject to judicial scrutiny. What is proper? A measure which is (1) designed to accomplish a legitimate purpose, and (2) does not overly encroach on the federal system. This brings up the 10th amendment again. This is a dicult argument, because the line drawing for how far the 10th amendment goes is unclear. He also says its not a legitimate state purpose because local growth is not economic activity. Thomas says that local possession is not just personal possession, but was authorized by the state of California for the health of its people under its traditional police powers, and that eliminating it destroys the police powers of the states, so its not proper, even if its necessary (plainly adapted). 24
Alderman v. U.S.
Certiorari was denied in this case, and Scalia and Thomas thought i t should have been heard. Rehnquist had made a concession in Lopez listing the dierent types of goods that are in commerce, allowing the jurisdictional clause, so Congress just tacked on a jurisdictional requirement and the law was ok. This is why Thomas argues here in Alderman that the jurisdictional clause is no real limit. This is a doctrinal marker, as well probably see this come up again. Thomas is saying that even for the jurisdictional element, he wants to see a substantial aect on interstate commerce that must be proven. Looking back at jurisdictional clause cases (Hipolite E , Champion v. Ames), if you use the substantial aects test included with a jurisdictional test, these cases would probably still stand. Thomas says its time to apply the substantial aects reasoning from Lopez to the jurisdictional element of the commerce power, because its just hanging out there as an excuse for congress to regulate something (which doesnt make much sense, because its just trac over a border, not necessarily commercial).
External Limits on the Commerce Power: Federalism and the Tenth and Eleventh Amendments
This is a shift from an intrinsic limit on congress power to regulate power to extrinsic limits. Most limits on govt that the courts impose are extrinsic limits; the rights talk.
Tenth Amendment
Founders believed a bill of rights was unnecessary because the powers of the federal government were enumerated, and the federal government did not have the extensive police powers of the states. Furthermore, Federalists argued that if we had a bill of rights restricting government in some areas, it was necessarily implied that the government could restrict the people in all other areas (inclusio unius est exclusio alterius). Bill of rights was promised so Constitution could be ratied, but Tenth Amendment was added to serve as a bulwark against any implying of the alteration of the original enumerated powers of the Constitution. Unfortunately, in the Legal Tender Cases in 1871, the Supreme Court used this exact reasoningthat the restriction of the Federal Government in the Bill of Rights implies powers granted to the Federal Government. The Tenth Amendment provides a rule of construction between the amendments and the Constitution, and also serves to arm the Constitutions basic scheme of dening the relationship between the national and state governments. Founders were wary of national government so they created a scheme of mixed sovereignty. Enumerated federal powers was critical to this scheme. The New Deal court expanded federal powers far beyond anything that the founders would have imagined. That said, the court more recently has invoked the Tenth Amendment to prevent the federal government from commandeering the state governments.
Coyle v. Oklahoma
When Oklahoma joined the union, there was a federal act that set the state capital, and the Supreme Court invalidated this condition.
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railroad because of its nature as a railroad, regardless of who owned it. Case was decided in 1936, towards the end of the qualitative era. If this was a private railroad, this would not have been a problem even in the qualitative era (the decision was unanimous). The problem is whos running the railroad: the state of California. The question is is there a special limitation on congress power because this is a state run railroad? The court says that the states and private companies werent on dierent grounds. Why was there no dissent? In this era there was a whole series of cases dealing with the nature of the thing being done, not who does it. Therefore, running a railroad is a privatelike activity, no matter who does it, based on the nature of the activity being done.
Maryland v. Wirtz
Expansion of Fair Labor Standards Act to schools, hospitals and removed exemption of State employers with respect to employees of hospitals, institutions, and schools. Court held that this was within the power of congress under the commerce clause.
Fry v. U.S.
Federal wage freeze case to stave o ination. [Marshall, majority] Federal government can x wages because it has power to regulate commerce that is very broad. Following Wirtz, governmentt can even regulate state employees. Also, xing wages is even less intrusive than activities in Wirtz. [Rehnquist, dissenting] Even if congress has the power, a state or individual can assert armative constitutional right that limits congress. He would still allow regulation when activities of state are outside traditional governmental activities. This is a lone dissent that eventually gets turned into a majority opinion in National League of Cities.
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balanced. Federal power should be allowed when the federal interest is greater and where state compliance with federal standards is essential. Why do judges want a balancing test? Three or four dierent times, this is one where the judge is unsure of the doctrine or what the rule should be, so wants to decide on the facts of the case what side has the better balance of the equities. [Brennan, joined by White, Marshall, dissenting] This is a political question and should be left up to congress. They also say theres a long line of precedents being aected, but they dont want to recognize anything pre-1938.
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process. Once its given over to the political process, its too problematic for the court to determine how well the political process protected the interests of the parties involved.
Testa Case
The Supremacy Clause does bind judges to the supremacy of the federal law (textual and structural). The case for this is Martin v. Hunters Leassee (The cause, not the court, gives them jurisdiction over the case). So, congress cannot commandeer the legislature or executives of the states, but may commandeer the judicial branch because of both textual requirements and structural requirements. The constitution only creates a supreme court and congress structures the rest. It was expected that state judges would enforce federal law because congress may not have created federal courts at all.
Printz v. U.S.
Federal law required state and local law enforcement ocers to conduct background checks on prospective handgun purchasers. This extends the principle that the federal government cant commandeer the legislative branch (NY v. US) to the executive branches of the states as well. [Scalia, joined by Rehnquist, OConnor, Kennedy, Thomas, majority] Congress cannot get around the limits on their power by directly ordering state ocials to do something, rather than giving them a choice like the take title provision in NY v. US. [Souter, joined by Ginsberg, Breyer, dissenting] By not allowing federal govt to use state 28
employees, fed govt then has to create a large new organization to enact this plan. (um, maybe its a bad idea then????). [Souter, dissenting additionally] Federalist 27 says that congress can use the state and local employees to carry out their legitimate powers. [Breyer, dissenting] We should look at other nations to see what they do, and they force states to implement broader policies because they believe it interferes less (except that states cant disagree, which is kind of the whole point here)
Reno v. Condon
Federal law prohibited state DMVs from selling personal data. [Rehnquist, unanimous court] This is a generally applicable law like in SC, and so decisions in NY and Printz dont apply here. Issue is whether the 10th amendment provides a safe harbor for the sovereignty of states to be immune to certain forms of commerce clause legislationits an extrinsic restraint on the commerce clause.
Limits on Federalism
Export Taxation
The constitution completely bans any tax or duty on exports. Originally this was favored by the south to prevent their export dominated economies from being disproportionately taxed. It hasnt come up very much in the court, but when it does the supreme court has consistently found the ban to be pretty complete. The only real issue is whether something is in the process of being exported, or if it is in a pre-export condition.
Port Preference
This clause was written into the constitution to prevent government from being used to channel trac towards one port over another. The court has construed it very narrowly, however, and has not stopped Congress from acting when there were large incidental preferences given to ports because of bridges being built in one place rather than another, or because one port was dredged more deeply than another.
Import-Export
Originally banned states from taxing imports and exports of either foreign or domestic goods, but that has changed over time. The court has established a test for whether a state tax violates this clause that has three elements: (1) the tax must have prevented the federal government from regulating interstate commerce uniformly; (2) import revenue is diverted from the federal government to the states; or (3) risked interstate disharmony. Thomas has argued for a more original understanding of the clause to replace the dormant commerce clause. This is particularly important because Justice Thomas writes that this should replace the dormant commerce clause casesthat it was designed to carry the water against states being discriminatory against other states, and would allow the court to get out of the complications of the dormant commerce clause.
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[Important: Always ask what the state is doing. What are they regulating? Why are they regulating it?] The [dormant] commerce clause acts as an extrinsic restraint on the police powers of the states. The question is: to what extent does the unused commerce clause operate as an extrinsic restraint on the states police power? Analysis Pattern (1) First look at whether any exceptions apply (e.g. has congress entered the eld and there is possible pre-emption? is this a privileges and immunities issue? is the state acting as a market participant?) (2) If no exceptions, apply modern approachsee below. In other words the rst question is whether theres some form of preemption, the second question is does the state law discriminate on its face? then you still ask, has Congress permitted it? then did Congress do what it did legitimately? was it within its commerce power? Did it intrude into the central functions of the state? Tests Applied For strict scrutiny the end needs to be compelling, and there can be no less burdensome means. How do you know whats compelling? Its very hard to articulate. Compelling means something is so compelling it calls to action. This test is somewhat dierent in more modern formulations. For rational basis (minimum scrutiny) the end must be a legitimate end and the means must be rationally related(1) the means are acceptable so long as they are not wholly unrelated to the end; or (2) the means are acceptable unless no rational legislator could have thought the means would accomplish the ends. For intermediate scrutiny the end must be important and the means must substantially accomplish the end. If compelling is dicult, important is more complicated. Also, how much is substantial? Thats tough too. When the courts use this test, they tend to develop it with a peculiarly phrased test for the particular clause of the Constitution. So there are 4 or 5 areas where this test is applied and in each there is a dierent formula (the other tests are generic for all areas of law).
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regulates commerce. If there was a congressional act preventing the stopping up of navigable creeks, then the plainti would have an argument and the Delaware law would be void, but there was no such law.
DiSanto v. Pennsylvania
Here a state law fee of $50 on travel agents booking people for steamships for foreign travel was held unconstitutional. After the national and local test from cooley, the courts developed a direct or indirect distinction. If state laws had a direct impact on interstate commerce they were void, but if the eect was indirect, they were not. In this case Justice Stone says that the direct-indirect approach is too mechanical and just doesnt work out very well in practice. Instead he proposes a balancing test that looks at the nature of the regulation, the character of the business involved, and the actual eect on the ow of commerce. This somewhat balances national and local interests.
Buck v. Kuykendall
Here Justice Brandeis held unconstitutional the denial of a certicate of convenience (license) to operate an auto stage line (bus line) because the purpose was protectionist (preventing competitioncommerce) and not for the safety or health of the people (police power). The purpose of the denial was not to promote safety but because the territory was already adequately served by other carriers.
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In these days roads were regarded similar to the Philadelphia harborthey were a parochial and very local thing.
Modern Approach
(a) state laws that facially discriminate against interstate commerce are void. If the discrimination is in the end (purpose) then you have virtually in every case it is struck down without the state having a second chance to justify it (one exception is Maine). (b) state laws that are facially neutral as to interstate commerce but have an impermissibly protectionist purpose or eect are void. If there is a discriminatory means to an otherwise legitimate police power end, its not per se invalid but will be tested on a strict scrutiny standard is there some nondiscriminatory reason outside the origin of the products to treat them dierently. (c) state laws that are facially neutral but have a disproportionate adverse eect on interstate commerce may be struck down under the balancing approach laid out in Pike. Balancing Test from Pike: If a statute regulates evenhandedly to eectuate a legitimate local public interest, and its eects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the local benet.
Maine v. Taylor
Exception to the rule of virtually per se invalidity in regards to a law that facially discriminated against another state. Maine passed a law banning out of state bait sh (a kind of herring used to catch lobsterNova Scotia made a lot of money sending herring into Maine, but there were parasites in the herring) from being imported into the state, claiming that there would unknown ecological eects, and non discriminatory means of achieving this protection. Is it discriminatory on its face? Yes. Is it a valid interest? yes, the parasites would destroy the local herring. But is there any other less burdensome way to accomplish it? No. The purpose
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is not discriminatory from an economic standpoint, it was to protect the Maine herring population. This is a rare instance where strict scrutiny passes. Only Justice Stevens dissented, stating that Maine did not carry its substantial burden of proving why it cant meet its needs in the same manner as other states with the same concerns.
Hughes v. Oklahoma
Court held invalid a law that forbid anyone from transporting or shipping minnows for sale out of the state which were procured or raised within the state. [ Justice Brennan writing for the majority] Oklahoma had failed to use nondiscriminatory alternatives, such as placing limits on the number of minnows allowed to be taken in state, or specifying how to get rid of minnows in state. When a wild animal becomes an article of commerce, its use cannot be limited to the citizens of one state to the exclusion of citizens of another state [ Justice Rehnquist, joined by Chief Justice Burger, dissenting] State has a substantial interest in preserving and regulating the exploitation of natural resources for the benet of its own citizens, and the range of regulations a state can adopt to these ends is extremely broad, and the burden in this case on interstate commerce is minimal. Hughes is here to overrule the Natural Resources Exception - Used to be a legal ction that state owned natural resources in their wild, unappropriated status. Because of this the court allowed states to protect their resources because of the ction that they owned the resource. This no longer exists.
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[Stevens for a 5-4 majority] Exemption functionally serves as an export tarri, and non-prot companies shouldnt be allowed around the ban on discriminatory laws. [Scalia, joined by Rehnquist, Thomas, and Ginsburg, dissenting] Law was not facial discrimination, and was only a narrow tax exemption designed to subsidize or compensate organizations that benet the public.
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eect on interstate commerce. [Souter, Rehnquist, and Blackmun, dissenting] Because the statute only selects one company and not a geographical region, it is dierent that precedent. The processing station is essentially a local government facility that is just run by a contractor, and is dierent than a private business being regulated.
Facially Neutral Laws with Protectionist Purpose or Effect Baldwin v. G.A.F. Seelig
[Cardozo, writing for the court] New York passed a law outlawing the sale of milk produced out of state and purchased for less than it would cost to buy in New York. If this is allowed it would set up a barrier to trade. The state argued that if they dont protect the farmers they wouldnt be able to stay in business and then New Yorks supply of milk could be threatened. Economic welfare is always related to health, because there is no health if men are starving. The state is just trying to use the health excuse to get around a trade restriction.
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[Frankfurter and Rutledge, dissenting] States should be able to deny a license if the competition would be destructive and the interstate commerce thats impacted is minor.
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analysis.
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Reeves v. Stake
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State of South Dakota sold cement from a state-owned plant only to state residents. The court upheld the plan because of the long recognized right of a trader or manufacturer in private business to deal with whoever he wanted to deal with (absent a statute contrary). If it was discriminating on the basis of race, then the equal protection clause would apply. Discriminating based on locale is ok with regards to the dormant commerce clause.
Twenty-First Amendment
In addition to repealing the 18th amendment (prohibition) the 21st amendment says that no one can import alcohol into or transport it through any state in violation of the states laws. At rst some though this gave states total control over alcohol sales, even in violation of the Import-Export Tax Clause or the Commerce Clause. The supreme court, however, has chipped away at it and now a state can decide to be dry or regulate other aspects of liquor control such as drinking age, but thats about it, as the state control of liquor is subject to the power of congress under the dormant commerce clause and other extrinsic limits of state power (spending power, necessary and proper clause, commerce clause, import-export tax clause). The states cant now favor their own wine industry against other states wine industries, for example.
and Immunities Clause? There are only a few, but the most important one is the right to a lawful calling (work, craft, occupation), its the idea of free labor. The other two privileges that it seems to protect are the right of access to the courts of the forum state (procedural right), and it also includes the right to travel. (3) then state has to justify the discrimination (burden is on the state to come up with this, not for the courts to think it up) What standard does the court apply to the justication? Intermediate Scrutiny: the end must be important and the means must substantially accomplish the end. When the courts use this test, they tend to develop it with a peculiarly phrased test for the particular clause of the Constitution. So there are 4 or 5 areas where this test is applied and in each there is a dierent formula (the other tests are generic for all areas of law).
Hicklin v. Orbeck
Unanimous decision invalidating an Alaskan law requiring that residents be preferred over non-residents in certain jobs.
Pre-Emption
First question with regards to state and congressional actions should be whether theres a congressional act, then whether it preempts the state action, and if not, if the dormant
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commerce clause applies. Congress may preempt state power to regulate in three ways: (1) by express statement (express pre-emption). In this case, the only question is whether state statue ts under the federal regulation. (2) by implied occupation of a regulatory eld ( eld pre-emption) Only two types of elds: one thats left to the states, or one that was intended to be federal. If the constitution seems to show that the area is regulated by the federal government, state regulation is highly disfavored in that area, and the burden is on the state to show that the state is not intruding on the federal interest (e.g. foreign aairs). If its an area covered traditionally by state police power, the question is whether Congress intended to legitimately exercise its power in that area by: (1) congress making a clear statementCongress must say so in the text of the law pretty clearly that Congress intended to regulate the entire eld; (2) the scheme of federal regulation is so pervasive that it left no room for states to supplement; or (3) the act of Congress touches on a eld in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. If whole eld taken over by Congress, then no state laws, even if they dont conict with the law, can apply to the eld. or (3) by implied preclusion of conicting state regulations (conict pre-emption). Congress doesnt occupy the whole eld, the state uses its legitimate police power, and congress uses its legitimate powers in a particular area. The question is, as a matter of fact, does the state law impede the federal law. Two phrases court uses to determine if state law impedes federal law: (1) [Hines] Rather, the court must look at, under the circumstances of the case, whether the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress; or (2) [Florida Lime] Conict preemption applies where compliance with both federal and state regulations is a physical impossibility.
Supremacy Clause
When state and federal laws conict, federal laws pre-empt state laws, as long as they are constitutional. Pre-emption occurs when congress intends a law to pre-empt state law. Treaties also fall under this clause, and are treated as supreme law if self-activating. Non-self-activating means congress has to take action to make them eective.
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their regulations to be the only game in town, or whether they were ok with additional regulations. But what if the state was acting pre-textually, saying they wanted nuclear plants to be very safe so much to block their construction? The utility company could then argue it was pretext and impeding the federal purpose. White didnt like to go behind the text of the law, however, and would say as long as theres a fair way to say the state truly wants to regulate for its stated purpose, it should be allowed.
Hines v. Davidowitz
Court barred enforcement of PAs alien registration act of 1939. the Court stated that when the Congress has enacted a complete scheme of regulation, the states cannot, inconsistently with the purpose of Congress, conict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations. There is no formula to determine the purpose of Congress. Rather, the court must look at, under the circumstances of the case, whether the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Did PA law complement or conict with Congress?
MA law banned state entities (not private citizens) from buying goods or services from companies doing business with Burma. [Souter, for the court] Congresss passing of federal mandatory and conditional sanctions against Burma preempted MA law since MA laws more stringent and inexible provisions were an obstacle to the accomplishment of Congresss objectives. Its as if Congress intended the President to occupy the eld of human rights sanctions.
Zschernig v. Miller
Oregon law during cold war said that if foreigner would receive money under ORs intestities statute from a relative who died in OR, he could receive it so long as the foreigners country would give an Oregonian the same rights if they died in the foreign country. This came up in East Germany as East Germany did not allow estates to transfer to foreigners upon death. Douglas said this is a foreign aairs area and the state cant regulate the relationship with foreign countries.
Congressional Consent
In this situation, absent Congressional intervention, the Court would manifestly nd discrimination contrary to the Dormant Commerce Clause. Congress has the power exclusively to regulate interstate commerce. Congress could pass a law discriminating in favor of certain businesses over others (could subsidize railroads over canals). Since Congress can discriminate on their own, can they discriminate by allowing states, subject to Congressional approval, to discriminate? Congress isnt telling the states what to do, but is leaving it up to them. Congress cannot consent to a state practice that congress itself would be prohibited from exercising.
Equal Protection
Suppose its an insurance case, and theres discrimination by a host state against PA insurance company or agency (dierential taxes, licensing requirements, etc.). Cant use PI 43
clause because its a corporation, so youre stuck with dormant commerce clause, but state raises McCarren act for consent, and it allows it. Do you have any last resort? Equal protection clause of the 14th amendment is a true last resort. You only get a higher level of scrutiny if discrimination is based on race or gender. As a corporation the burden is just minimum rationality, so youd have to show that the discrimination doesnt even meet minimum rationality. We dont know how far the court will go on equal protection, but you still have a caseyoud have to show that state law didnt pursue legitimate state interest, or means were so irrational that they dont even pass minimum scrutiny. How do you argue that mccarren act is unconstitutional? One way, insurance is not commerce, but the court held that it is. Even if it is not commerce, it still has economic eects, and youd have to argue that it doesnt substantially eect the interstate market, but thatd be very dicult.
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TAXATION POWERS
Bailey v. Drexel Furniture
Child labor tax case. Congress enacted huge tax that acted as a penalty if companies didnt follow strict guidelines as to age of workers. Even though the court approaches these kinds of situations with a presumption of validity, the motive behind this tax is plain in the language of the lawthe tax is merely pretext for regulating something the Congress cannot otherwise reach (Hammer v. Dagenhart). The court cites Justice Marshalls McCulloch discussion of pretext. Court holds tax unconstitutional based on the above. The tax in this case was a penalty, not a tax, because it went too far in its extent. How could they tell if its a penalty? The tax was 10% of their whole income even if only one child worked for them. A tax would be geared to the number of times you do the activity, but this punished you regardless of how many children were employed. Coercive power of the state to force you to do something is the sovereign power of the state. Penalties invoke this kind of power. Taxing is a separate power with the purpose of raising revenue. If tax becomes a penalty, it moves from a tax to a penalty and impedes on the police powers of the states (10th amendment).
McCray v. U.S.
Tax on margarine was challenged as excessively high, and court upheld tax saying that Congress could choose the subject of its taxation, and that the motive for doing so did not invalidate the tax. Congress does not have the power in this era (qualitative era) to regulate margarine to benet dairy farmers, so how could they uphold the tax? There were two motives in the tax: to earn revenue, and to discourage behavior. The court nds that every tax discourages the behavior taxed. But the problem is at what point does the tax become excessive? The court doesnt decide, and says that as long as it produces some revenue, and the schedule of the tax is neutral, then it will be upheld.
U.S. v. Doremus
Drug regulation case. Opium and coca were taxed and their sale and distribution heavily regulated/ supervised. Court upheld the tax even though another motive, not on the face of the tax, might have been behind Congresss passing of the tax. The regulation must be reasonably related to the collecting of the taxif it goes beyond what is reasonably related to collect the tax, then its a pretext.
U.S. v. Kahriger
The court upheld a federal tax on gambling. Challenger of the law claimed that Congress used the tax power as a pretext to penalize illegal intrastate gambling and was moving into an area occupied by the states police
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powers. The court upheld the tax saying that the possible ulterior motives didnt matter, and that it also generated signicant revenue as a tax. The majority here was just trying to get out of the way of Congress, which was the policy at the time. The tax must still be reasonably related to the collection of the tax, and must not be a pretext for getting to powers not granted to Congress. Tax is bad if: (1) it is too coercive; (2) it appears to be a regulation because (a) its not reasonably related to the raising of revenue or (b) the whole methodology looks like a penalty; and (3) there are extrinsic restraints (bill of rights, etc.). These are the limitations, but the court has only applied them in the child labor tax case.
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SPENDING POWERS
Two questions in the spending clause: (1) Is the spending power tied to a delegated power of Congress? Can congress only spend to accomplish a delegated end? (2) How general does the spending need to be to be for the general welfare? How particular must the project be for the court to say that the spending isnt general enough??
U.S. v. Butler
Act tried to control farming by allowing payment to farmers for reducing their farmed land. Court held that regulation of agriculture was a province of the states and that the act was not a valid exercise of the power to spend for the general welfare. The taxing and spending to control agricultural production is a means to an unconstitutional ends, and is pretext (citing Marshall in McCulloch). Government argues that this is dierent from child labor case because participation is voluntary, but court says its not because the farmers who dont participate lose out on benets that others gain (power to confer or withhold benets is power to coerce or destroy). Dissent argues that threat of loss, not hope of gain, is economic coercion.
Helvering v. Davis
Court upheld old age benets portions of social security act. Congress imposed a federal tax to provide for spending of the benets.
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Justice Cardozo said that the spending was for the general welfare and that Congress wasnt abusing its power.
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Commerce Power
[ Justice Ginsberg dissent] Everyones already involved in healthcare (strongest argument for the government). Her second argument is that even if you arent in the insurance market now, you create an economic free rider burden on the market that can be proven, especially when you attach that to the preexisting conditions policy. Huge economic cost shifting problem. [ Justice Roberts response to Ginsberg] His rst response is that the power to regulate something presupposes that the economic activity exists to be regulatedyou dont regulate something that doesnt exist, but only on something that already existsits not the power to create commerce. Once regulation exists, its a nonjusticiable part of the commerce power. So activity has to exist for there to be regulation. This does not reverse any precedents on the commerce power since 1938, but if you take this case and Lopez, the court is sort of creating a qualitative threshold to the commerce power (dont over state this). But can Congress regulate inactivity because of substantial eects on interstate commerce? No, all inactivity in every market has an eect. The argument is that you prove too much, and leaves no limit to the power, making the concept of a dened power nonsensical. He says that people arent in the market for healthcare outside of buying and selling. [Dissent] Forgoing participation in an interstate market is not commercial activity.
Tax Power
Anti-Injunction Act says that no person who thinks that a congressionally passed tax is unconstitutional can ask for an injunction not to collect the tax, you have to wait until the tax is paid and then you can request a refund. Roberts says that for the purposes of the anti-injunction act, its a penalty, but for the purposes of the Constitution, its a tax. He says the reason is that the anti-injunction act is a statute, and Congress can change its obligations under the statute, and by calling this a penalty, Congress was saying that the anti-injunction act does not apply. He then argues that its a tax in its nature because it produces some income, and there is no scienter (mens rea) requirement. So why did Roberts make it a tax? Principle of statutory interpretation is bring a statute within the constitution if theres a reasonable way to do so. Its just a matter of judgement at that point. Because its a tax, you arent compelled to purchase health insurance. Its still your choice, even if tax is levied upon you. If you were forced to purchase it, it would have been a regulation. [Dissentfull dissent has better arguments] argues that the majority is rewriting the statute, as congress said no such thing regarding tax v. penalty distinction, and that the court should not impose taxes by rewriting what Congress had said. Dissent makes mincemeat of the scienter argument, as we have plenty of criminal acts that dont require
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mens rea (strict liability). Dissent thinks its a penalty, and therefore invalid under the tax power.
Spending Power
This is the rst case, at least since the 1930s, where the spending power has been held to go too far. This is a quantitative test of the spending power. Regulation placed on medicaid were so onerous that the States didnt really have a choicethe inducement went too far, your money or your life. In the NY v. US case, it was more of a qualitative test, as Congress didnt have the power to force another sovereignthe statesto take title to property or pass a regulation that they want it to pass. They can only induce a behavior. Vote on this clause was 7-2 against, saying that its too far. All other elements were 5-4.
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FOREIGN AFFAIRS
War Power
Where does the war power come from? War power has a lot of domestic impact much more than foreign aairs, so the War Power is spoken of as a separate power, and is inferred from the grant of other powers to Congress such as to raise and equip an Army and Navy. Some say the War Power is just another term for textually given and granted powers. An alternative argument is that this is an unenumerated power, freestanding.
Woods v. Miller
Continuation of rent control in Washington during WWII. Assuming that the war power exists, rent control over private contracts can only be legitimate under what power? The necessary and proper clause to help execute a war power eciently. This is a scary power, which is why Justice Jackson concurs (he had just come back from presiding over Nuremberg trials and was sensitive to the problems of war making powers of central governments). How do we know were at war? Have to look at both legal status of war and immediate eects of that legal status. Here, no treaty with Japan, troops still abroad, etc.
Treaties
The treaty power is limited to agreements with foreign powers under international law that is a matter of international concern. However, under international law, everything is a matter of international concern except those matters forbidden by peremptory norms of international law (e.g. piracy, slave trade). One possible exception is that a treaty is invalid if it contravenes a notorious known restriction on one of the parties by its own domestic law. Extrinsic constitutional restraint limits the treaty power and is shown in Reid v. Covert. No cases to hold that a treaty is limited extrinsically, but its held universally that the principle of Reid applies to treaties as well. Treaties are subject to extrinsic restraints (Bill of Rights, etc.).
Missouri v. Holland
First case was what Congress can do under the war power, this case is about what Congress can do under the treaty powerwhat can Congress do using the Necessary and Proper Clause to execute a treaty? From historic practice since Washington, advise and consent means really just consent. The Senate can, however, put reservations (like a counter-oer in contract, going to the substance of the treatytheres no treaty until the other side accepts), conditions, and interpretations on a treatythese bind courts as to the meaning and substance of the treaty. Treaty power has to have an intrinsic limit, but what is it? It must be a subject of international
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concern. Congress passed a law saying you cant shoot Canada geese. Missouri objects saying Congress cant pass a law thats contrary to the commerce power. Congress says yes we can, its under the Treaty power. The state says what about the 10th amendment, we own these birds and youd be intruding on our sovereign powers (this is before Hughes v. Oklahoma which said that states dont own wild game). Theyre arguing for an extrinsic limit on the necessary and proper clause used to carry out a treaty. Justice Holmes says that there is a national interest that can only be protected through action working with a foreign power. He also says that all acts of Congress in pursuance of the Constitution are the supreme laws of the land as are treaties passed under the authority of the United States (Supremacy Clause). Holmes says that the Constitution is not a restraint on the treaty power. This doesnt really make sense, as it would allow a treaty to establish a law higher than the constitution itself? Justice Holmes was a civil war hero but came out with no values, but did believe that above all a nation needs to defend itself where the national interest is concerned.
Zschernig v. Miller
Oregon law during cold war said that if foreigner would receive money under ORs intestities statute from a relative who died in OR, he could receive it so long as the foreigners country would give an Oregonian the same rights if they died in the foreign country. This came up in East Germany as East Germany did not allow estates to transfer to foreigners upon death. Douglas said this is a foreign aairs area and the state cant regulate the relationship with foreign countries.
Executive Agreements
Is between executives (president and prime minister). Typically status of forces agreements are executive agreements (allows us to have troops in other countries per NATO). Under status of forces agreements, host country gives up jurisdiction over crimes committed on the base, but we agree that we will try these people under the uniform code of military justice. The President (as executive) may make an agreement with a foreign executive that binds the United States if (1) he is authorized to do so under a treaty of which the United States is a party (e.g. status of forces agreements); (2) he is authorized to do so under a validly passed act of Congress (e.g. trade negotiations); or (3) he is acting alone within his exclusive power (e.g. disposition of armed forces during wartime).
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Congress; or (c) the agreement was made pursuant to Congressional authorization. (3) Subsequently passed laws by Congress void executive agreements except those made entirely within the exclusive executive power of the President, but there are few, if any, executive agreements made within the Presidents exclusive executive power that are binding domestically without needing Congressional authorization.
Reid v. Covert
Two cases where wives killed their husbands. Both convicted by military tribunal and sent back to the US for prison. Justice Black said that the constitution acted as an extrinsic restraint on executive agreements. Almost all commentators agreed that this had to be written in the case law to restrict this power.
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