Judicial Review: Marbury v. Madison (1803) Judicial Supremacy: Martin v. Hunters Lessee (1816), Cooper v.

Aaron (1958) Political Question: Baker v. Carr (1962), Nixon v. US (1993) Standing and Ripeness: Muskrat v. US (1911), Allen v. Wright (1984), Health Care Act Justiciability: HJ Res 2, Raines v. Byrd Necessary and Proper: McCulloch v. Maryland (1819), Early Commerce Clause: Gibbons v. Ogden (1814), US v. EC Knight (1895), Shreveport Rate Case (1914), Champion v. Ames (1903), Hammer v. Dagenhart (1918), Carter v. Carter Coal (1936) Second Wave: NLRB v. Laughlin Steel (1937), US v. Darby (1941), Wickard v. Filburn (1942), Heart of Atlanta v. US (1964), Katzenbach v. McClung (1964), Later Restriction: US v. Lopez (1995), US v. Morrison (2000), Gonzales v. Raich (2005), Taxing and Spending: Child Labor Tax Case (1922), US v. Kahriger (1953), US v. Butler (1936), South Dakota v. Dole (1987), US v. Comstock (2010), Affordable Care Act Preemption: Silkwood v. Kerr-McGee (1984), US Term Limits v. Thorton Dormant Commerce Clause Ships, Trains, & Trucks: Cooley v. Board of Wardens (1851), Wabash v. Illinois (1886), SC Highway v. Barnwell (1938), Southern Pacific v. Arizona (1945), Kassel v. Consolidated Freightways (1981) DCC Preventing Protectionism: Dean Milk v. Madison (1951), Philadelphia v. NJ (1978), Camps Newfoundland v. Town of Harrison (1997) DCC Exception for Marketplace Participant: South Central Timber v. Wunnicke (1984), United Haulers v. Oneida (2007) Interstate taxation: Quill v. North Dakota, Internet Tax Freedom Act Privileges and Immunities: Baldwin v. Fish and Game (1978), Presidential Domestic Power: Youngstown v. Sawyer (1952), Presidential Foreign Power: Dames v. Reagan (1981), US v. Curtiss-Wright (1936), Goldwater v. Carter (1979) Presidential Power in War: Hamdi v. Rumsfeld (2004) Executive Privilege: US v. Nixon (1974), Nixon v. GSA, Bills of Attainder, Nixon v. GSA, Nixon v. Fitzgerald Congress & Legislative Process: Whitman v. American Trucking (2001), INS v. Chadha (1983), Clinton v. NY (1998) Congress Control over Executive Branch Appointments: Myers v. US (1926), Humphreys Executor v. US (1935), Bowsher v. Synar (1986), Morrison v. Olson (1988), Free Enterprise v. PCAOB (2010)

QUESTIONS TO ASK
Who is doing what to whom and why? What does each side want? What they asking the court to do? What are the different perspectives that you can view the problem? How would the level of generality affect the ruling? Is this question justiciable? Is there proper standing? o Injury in fact? o Causation? Is it fairly traceable? (Allen v. Wright) o Redressability? Will the relief sought by the plaintiff redress the injury? o Taxpayer standing? Is there case or controversy ripe? o Probability of harm will take place o Hardship to parties if immediate review is denied o Fitness of record for resolving legal issues Is the question moot? o All above requirements must remain in play or the case will be deemed moot. o Exceptions: Collateral consequences, wrongs capable of repetition but evade review, voluntary cessation, class actions Is there a political question? o Does it implicate separation of powers? o Does the Constitution commit final resolution of this issue to the other branches? What part of the Constitution grants this type of power? Does the Necessary and Proper Clause apply? What does this mean for the next case? Is Congress using its Commerce Clause Powers? What is it seeking to regulate? Is it unconstitutional in the entirety? Or as applied? (1) Is it regulating use of a channel of interstate commerce (terms and conditions of sales, type of good that can be sold)? o Trying to control production monopoly? (EC Knight Direct Test - overruled) o Is it controlling wages and conditions of production? (Carter Coal Direct Test - overruled) o Is it prohibiting a good? For moral reasons? (Champion, Hammer) (2) Is it an instrumentality (conduit through commerce occurs) of interstate commerce (safety standards on transportation)? o Does the instrumentality affect multiple states? (Shreveport Rate, Gibbons) (3) Does it substantially affect interstate commerce (expanded under N&P)? o Regulation of labor standards? (NLRB, Darby) o Part of a class, whose behavior taken collectively will affect interstate commerce? (Wickard) o Trying to protect civil rights in places of public accommodation? (Heart of Atlanta, Katzenbach) o Is the activity being regulated itself, economic in nature? How attenuated is causation? (Lopez, Raich, Morrison) Economic is not commercial, refers to production, distribution, and consumption of commodities (Raich) Is it part of some broader regulatory scheme? (Raich, Lopez) Are there findings? Should it matter? Should the fact that states support the law matter? (Lopez) Is Congress using its taxation powers? Taxation is a distinct constitutional power; spend only to promote general welfare. (Butler) Do not need to show activity is substantially related to interstate commerce. (Butler) Central issue is whether or not it seems to be regulating an activity or trying to raise revenue? What is general welfare? o Not necessarily judicially enforceable because how can you tell what Congress is thinking. (South Dakota) o How voluntary is the restriction? (Butler compared to South Dakota) What constitutes a tax? o Does it raise revenue? Will minimal revenue still count? (Kahriger) If it does not raise revenue, it has to be authorized by some other power. Will the tax eventually discourage the behavior so much that no revenue will be generated in the future? If so, then you must analyze under Commerce Clause. o Does it more characterized as penal or prohibitory? Difficult presumption that the revenue-generating tax is valid as everything can be seen as regulatory If it is clearly penal or prohibitory, you must analyze under Commerce Clause. (Child Labor Tax) Is there conditional spending measure directed toward the states? o Is it for the general welfare? (Broad)

Is the condition imposed unambiguous such that the state is aware of the consequences? Is condition related to expenditure? (Dakota: Money for roads, condition for age restriction, purpose for road safety) Does the condition violate some constitutional provision? (Dakota: state should regulate alcohol) Has final compulsion passed to a point where pressure is now compulsion? (Butler compared to Dakota) (Is figuring it out a political question?) Is there a conflict between federal and state law? (Preemption Supremacy Clause) Presumption against preemption. Express: Congress Expressly displaces state regulation on a particular matter Conflict (Implied): Compliance with both is an impossibility Field (Implied): Congress chooses to regulate something exclusively, leaving no room for state involvement What is the intent of the government regulation? (Silkwood) Does the state regulation hinder the enforcement of the federal one? (Silkwood) Distinction of damages vs. standards? (Silkwood) Limitation on Federal Office (Elections Clause vs. Supremacy)? (Thorton)
o o o

Is Congress trying to prevent the States from doing something? (Dormant Commerce Clause) Does it demand a uniform system of control? How do you tell? (Cooley) Old test. Now, has the state sought to regulate interstate commerce in a manner that would be better left to Congress? o Law whose purpose is to regulate interstate commerce? o Law to discriminate interstate commerce? o Law that burdens interstate commerce? o Is it facially discriminatory? (1) Is there a legitimate state purpose? (No regulation of interstate commerce or economic protectionism) o Economic Protectionism: If it was enacted to shield locals from out of state competition. o Should the intent or the effect matter more? Weigh the concerns at play. (2) Does the regulation occur wholly outside of the states borders? (3) Does it discriminate against interstate commerce? o What constitutes discrimination? Only between interstate and in-state? Not types of products. o Who has to pay the tax or bear the burden? (Dean Milk) o Is there a less discriminatory alternative available? (Philly v. NJ) o Are there just more out of state people? (Oneida) (4) Do the benefits outweigh the burdens? (Dean Milk, Southern Pacific) o Is balancing even appropriate? How clear is it? (5) Is it the least burdensome means for the State to achieve its goals? o What is the goal? Is the goal actually being achieved? (Barnwell, Kassel) o Is it the least burdensome means for state to achieve its goal? Can it be justified under market participant doctrine? o State can participate free of DCC restraints, is the state a buyer or seller? o Can the regulation be separated from the participation? (Wunnicke) o Is it a subsidy or a rebate/tax exemption? (Camps Newfound) The first okay but the second is not. What is the source of the funding? Do the out-of-state people have to pay? How can you even tell the difference between the two? Is the State levying a tax? (Quill, ITFA, Camps Newfound) o Use tax vs. excise tax? o Is it discriminatory? o Is there a substantial nexus to the taxing state? (Quill) Is Congress trying to exercise some sort of executive power? (p. 326) Such as participating in removal (Myers, Bowsher) or performing some adjudicatory function (Chada) Is Congress trying to limit the Executives ability to remove an officer? (p. 320) What type of officer are they? (p. 313) Is there an issue with separation of powers, generally? (p. 300) Is it textual? Are there specific provisions being implicated? Is it structural? Is someone aggrandizing its own power? Is it encroaching on the power of another branch? Is the President exercising some sort of lawmaking power? (Youngstown) Did Congress authorize him to do so? o Is such an executive order within the scope?

What can we infer about Congress silence or lack thereof on this area? Textual argument: all lawmaking power is vested to the Congress Structural argument: President is aggrandizing the executive branch by encroaching Is there some sort of pressing emergency?

Is delegation of Congressional power proper? Is it an intelligible principle to which the person or body authorized to act is directed to conform? How much guidance is given over the exercise of discretion? (Whitman) Line item veto: Clinton v. NY (p. 308) Legislative veto INS v. Chada (p. 310) Tax for not owning a home, cause you dont get a deduction. Prudential Reasons: How many more facts do we need? Maybe something will happen in the future that will eliminate the constitutional issue. Chadha: Silence cannot mean anything. If one house vetoing it cannot mean anything, both houses not doing anything cannot be sufficient as well. Is the retaining of power? Humphreys executor/Morrison vs. Myers (retained veto). What would count as a retaining of power? Which officials should this extend to? Field Preemption: least likely to occur, Congress is regulating a process issue not a substantive issuesuch as the field of labor relationscannot do anything in the field, but there is difficulty defining what the field issuch as state wage laws and field of labor relationsNarrow and broad at the same time Implied Preemption: 1) actual conflict between what the state says and what the federal says you have to go, arises not in the regulatory context, but in the tort/contract context. Is there some sort of tradeoff?

Executive Order: 1) Is his order preempted by something? 2) Does the president have independent authority?

JUDICIAL REVIEW
I. SOURCE OF POWER Judicial Review: Doctrine that the courts have the power to invalidate governmental action which is repugnant to the Constitution State and federal courts have explicit power to review and invalidate actions of both the executive and legislative branches The doctrine of judicial review, also applies to Executive action, courts may call executive officers to answer for their actions and review those actions as to their constitutionality (judicial discretion is precluded when the executive possess legal or constitutional discretion, but subject to judicial review for non-discretionary duties) SCOTUS also has appellate jurisdiction to oversee constitutional issue decided by state courts, policy argument is the need for uniformity Marbury v. Madison (1803): Jefferson took over the presidency from John Adams but in a last ditch effort Adams presidency sought to appoint Federalist members to various positions. Some of those appointments were not delivered including Marburys and he passed suit against Madison (Jeffersons Secretary of State) for the commission. Because Marbury filed his petition for the writ of mandamus directly in the Supreme Court, the Court needed to be able to exercise original jurisdiction over the case in order to have the power to hear it. Marshalls opinion: It is emphatically the province and duty of the judicial department to say what the law is Marbury has a right to the commission, because Congress passed a law creating the office, gave him a term, its not revocable, it was signed by the President and sealed by the Secretary of State. It would be improper to withhold the commission. Distinction between discretionary vs. mandatory acts? Granting Marbury relief would be a violation of the constitution because it would require SC to exercise original jurisdiction in an are not granted by the constitution Art. III sets out the broadest limits of jurisdiction, Congress can limit it, but they cant add to it which means the SC cant have original jurisdiction to grant a writ of mandamus, but could have construed other public Ministers and Counsels as including the President You have to have limits otherwise the Constitution would be meaningless and thus someone needs to enforce those limits Decision established Congress power to limit jurisdiction but establishes power of the courts to invalidate laws that they find unconstitutional Creation of Doctrine of Judicial Review: It is the responsibility of the SC and the Federal Courts to set aside actions of government that do not conform to the language of the constitution. SC has power over non-discretionary decisions (duties imposed by Congress my statute), but not over matters that require executive discretion (political matters). This was a ministerial duty, so SC has jurisidction Significance: The Paradox of Marbury: Marshall says that there must be authority for legislation in the text of the constitution, but theres no textual authority for judicial review in cases of inconsistencies between the constitution and acts of Congress in the constitution. Under Marshalls view, ONLY judges can determine constitutionality. (3 provisions provide basis: Art III, 2; Supremacy Clause; Oath clause.) Martin v. Hunters Lessee (1816): Virginia had a law where the state could claim land owned by Loyalists. It sought to claim land owned by Lord Fairfax, leased to Martin, who claimed that it was protected by the Treaty of Paris and Jay Treaty. This was the case Fairfaxs Devisee v. Hunters Lessee (1813) The Virginia state supreme court upheld the confiscation. It did not do so on the grounds that Virginia law was superior to U.S. treaties, but rather because it argued that its own interpretation of the treaty revealed that the treaty did not, in fact, cover the dispute. The U.S. Supreme Court disagreed with this conclusion, ruling that the treaty did in fact cover the dispute, and remanded the case back to the Virginia Supreme Court, but the Virginia court then argued that the U.S. Supreme Court did not have authority over cases originating in state court. Storys Opinion: Supreme Court authority over state courts in matters of federal law o Derived from text of Constitution, if it could not review then it would never hear federal question cases o Since states have power to rule on federal issues, it must be able to review or would not have AJ in all other cases o Supremacy Clause states that Federal interpretation will trump State interpretation Rejects concern of state judicial sovereignty because it can already review executive and legislative decisions Rejects presumption that state judges not as skilled by stating it is more important to have uniformity Legislative power to remove a case to Federal court would be inadequate for maintaining this uniformity Significance: If this case was provided for in the Constitution, the Constitution may not have been ratified at all. States courts are free from lower federal courts as Article 3 only provides power to the SC

Cooper v. Aaron (1958): Following Brown, Arkansas state legislature amended the state constitution to oppose desegregation and then passed a law relieving children from mandatory attendance at integrated schools. The school board of Little Rock still continued with the desegregation program. After Little Rock Nine incident, they urged suspension of its plan of desegregation. They alleged that public hostility to desegregation and that the opposition of Governor Orval Faubus and the state legislature created an intolerable and chaotic situation. The relief the plaintiffs requested was for the African-American children to be returned to segregated schools and for the implementation of the desegregation plan to be postponed for two and a half years. The district court granted the school board's request, but the United States Court of Appeals for the Eighth Circuit reversed. Prior to the Eighth Circuit's decision, the Supreme Court had denied the defendants' request to decide the case without waiting for the appeals court to deliberate on the case. Decision: (Unanimous) States bound by Supreme Court decisions and had to enforce them even if they disagreed with them Although there was good faith on the part of the school board, it was still impermissible under Equal Protection to segregate Supremacy clause and judicial review meant that Brown was binding on all states, regardless of any contradicting laws Brown decision cannot be nullified openly and directly by government, nor indirectly though evasive schemes Public officials required to swear oath to uphold Constitution thus must follow the SCs precedents, even if education is state responsibility, it has to be done consistent with Equal Protection Methods for Interpretation: Originalism (Intentionalism): Start with the constitutional text but take it based on the history and shape it so that it is relevant today in settling constitutional issues, dont confine yourself to the context of the framers (useful, broader than textualism, but possible multiple views from the same theory) Textualism: Scalia; Thomas: Text is only subject of inquiry, although language is ambiguous, the text gives us something concrete to hold on to, but words can change meaning Interepretivism: Courts can interpret the constitution when the result can be fairly implied or derived from the language of the constitution, uses the constitution as an anchor and to provide some structure Non-Interpretivism: Fundamental issues of our society are now protected by vague phrases and we should concede that S Ct relies on norms and other sources Neutral Principles: Frankfurter: Courts should interpret the constitution in complete detachment. Look for the most neutral principles, judges should be free from any kind of result oriented jurisprudence. Passive Virtues: Judicial Restraint, even when courts have power to act they should be reluctant to do so, legitimacy of judiciary depends on its restraint II. A. LIMITATIONS OF JUDICIAL REVIEW Case or Controversy Federal judicial power granted in Art. III is limited to certain defined cases or controversies requiring a case be in an adversary form that is capable of judicial resolution and that its resolution would not violate separation of powers need present or possible ADVERSE parties (throughout the entire litigation) Example Case: Muskrat v. United States (1911) o History: Congress set aside land for one group of Indians, and then increased the numbers who were eligible. In later act, Congress said that original group could bring a suit against the US as a to see is later act was constitutional since it made each persons share of land smaller thus depriving people of land (violation of 5th A) o Court: DISMISSED case for lack standing based on no case or controversy because there are no present or possible adverse parties (judicial power requires actual controversies and adverse litigants) o No judicial exercise allowed since US has no interest and just trying to get an advisory opinion on the constitutional validity of the law (though some state courts (non Art III) are allowed to hear advisory opinion) o To bring suit, Cherokes would have to bring a suit of ejectment against someone going on their land Policy Reasons: o Avoid Premature Decisions: Smooth allocation of power among courts over time o Representational Interests: Unfair to hold later litigants to an adverse judgment in which they havent been properly represented o Self-determination Interests: Importance to place control over the political processes in the hands of those more closely involved Exceptions Clause In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. Const. Art. III, Section 2, Clause 2. Congress can remove and limit the appellate jurisdiction given to the judicial branch Standing

B.

C.

D.

Prudential Standing: Even though a case meets the constitutional requirements of standing, the court feels that its inappropriate to grant standing as a matter of judicial discretion, recall appellate review is discretional Three requirements: Injury in fact, causation, and redressability Injury in Fact o An invasion of a legally-protected interest which is (a) concrete and particularized and (b) actual or imminent, no conjectural or hypothetical o Associational Standing: (1) One or more members would have standing independently (2) Interests at stake are be germane to associations purpose (3) Claim or relief is not be dependent on member participation o Congress can also create by statute a legal right, the denial of which satisfies the injury in fact requirement BUT, you still cannot ignore the other Art III minimum requirements Causation Requirement (But For) o Must establish causation by showing that the injury is "fairly traceable" to the defendant's action being challenged Redressability Requirement o "Substantial likelihood" that the injury is "redressable" if the court grants the requested relief Political Question Generally o Federal judiciary's desire to avoid inserting itself into conflicts between branches of the federal government o Justified by the notion that there exist some questions best resolved through the political process, voters approving or correcting the challenged action by voting for or against those involved in the decision Origin: o Roots in Marbury: Marshall stated that when the Secretary of State was performing a purely discretional matter, such as advising the President on matters of policy, he was not held to any legally identifiable standards. Therefore, some of the Secretary's actions are unable to be reviewed by a court of law. Baker v. Carr (1962): Issue of whether or not the court system could decide to redistrict voting districts in Tennessee as some peoples were worth more because lines were drawn not reflective of the population (rural vs. urban) Joe Carr was sued in his position as Secretary of State for Tennessee. Carr was not the person who set the district lines the state legislature had done that but was sued ex officio as the person who was ultimately responsible for the conduct of elections in the state and for the publication of district maps. o Baker: Discrepancy caused him to fail to receive the "equal protection of the laws" required by 14th amendment o State of Tennessee: Legislative districts were essentially political questions, not judicial ones, relief for legislative malapportionment had to be won through the political process o Brennan Decision: (1) Court has SMJ: Complaint is an issue arising out of constitution (14th amendment) (2) P states a justiciable cause of action: Consider appropriateness of making the final determination and whether there are satisfactory criteria for a judicial determination, and NOT political question, in this case it has to do with equal protection By ignoring the constitution, Tennessee is denying people the equal protection of the laws and their right to equivalent representation (3) P has standing to challenge the apportionment statute Not a political question, since it does not involve separation of powers concerns and EP standards for decisions are available; distinction as this is over state policy o Frankfurter, Dissent: Guarantee Clause Case should govern in this case and this clause states that the issue here is non-justiciable Court makes a determination here which is inconsistent with the role of the judiciary; many political factors go into re-districting: geography, demography, etc No reason for the complaint because the people of TN still able go out to the polls and vote Frankfurter worried that the court may be undermining its own power If TN legislature ignores them, they will lose their power Passive Virtue Argument: Only power of SCOTUS is the willingness of people to adhere to their decisions Geographically proportioned representation is NOT necessarily an element of equality under 14th amend Never in this country has it been demanded that there must be proportionality between the population and the weight of their votes o Concurrence: If TN had any other relief available, the Court should not get involved, but in this case, TN does not allow for referendum (direct vote) and people in the legislature will NEVER vote themselves out of office. There must be some remedy, so the court MUST intervene Factors for Consideration (From Baker): o Textually demonstrable constitutional commitment of the issue to a coordinate political department Ex. Impeachment, declaring war, time to ratify amendment o Lack of judicially discoverable and manageable standards for resolving it

Impossibility for a court's independent resolution without expressing a lack of respect for a coordinate branch Impossibility of deciding the issue without an initial policy decision, which is beyond the discretion of the court Ex. Not appropriate to determine when a war is over because they lack information of the other branches o Unusual need for unquestioning adherence to a political decision already made o Potentiality of embarrassment from multifarious pronouncements by various departments on one question o First two factors refer to what is appropriate (more important, constitutionally based), next four, refer to deference to the other branches (prudential concerns) Nixon v. US (1993): Federal judge incarcerated due to perjury but refused to resign. House impeached him and senate convicted him and he challenges the judicial proceedings against him. o Nixon: Art I, 3, cl. 6. Senate shall have the sole Power to try all Impeachments. Nixon argued that entire Senate had to sit in on all the proceedings instead of having a committee do the evidentiary work and submit a report to the whole Senate for approval o Rehnquists Opinion: This is a non-justiciable question o Based on the constitutional convention and commentary, the framers didnt want the SC to decide impeachments not representative, lack enforcement o Also, dont want possibility of same body trying issue twice if impeachment was also a criminal matter, appeals would affect finacily and cause delay, no manageable standards for judicial involvement. o Impeachment is sole check of the legislature on the judiciary o No need for judicial involvement b/c there are already safeguard of splitting procedure between houses and requiring a super majority Raines v. Byrd (1997): Appellees are six members of Congress, four senators and two representatives. The Senate passed a bill, Line Item Veto Act, in 1996. The next day the House passed the same bill and the President signed the bill into law. The Act went into effect the following January. The Act states that the President may cancel certain spending and tax benefit measures after he has signed them into law. o Legal Issue(s): Whether each of the Appellees, plaintiffs initially, has standing to sue? Is the claimed injury personal, particularized, concrete, and otherwise judicially cognizable? o Courts Holding: No, the appellees lack standing to sue. o Law or Rule(s): Article III U.S. Constitution, the asserted injury was the consequence of the defendants actions, or that prospective relief will remove the injury. Case or controversy requirement. Is the claimed injury personal, particularized, concrete, and otherwise judicially cognizable? o Procedure: District Court issued judgment in favor of appellees/plaintiffs and the S. Ct. vacated and dismissed. o Court Rationale: Ct. will not address the merits of the case before addressing the standing issue. Appellees claim of standing is based on the loss of political power, not the loss of a private right. Their injury is not the diminution of legislative power or an institutional injury, but rather the injury is merely an unfavorable vote, of which may be reversed by Congress at a later date. The Appellees would like this court to determine the separation of powers to their favor. That is not the court prerogative unless it is of last resort. o Plaintiffs Argument: The procedure allows the President to nullify each Senator and Representatives vote not in accordance with the Presidents wishes, after he had passed the bill into law. Therefor the Senators and Representative have suffered an concrete injury, i.e. deprivation of a Constitutional right. o Defendants Argument: The injury claimed here is not of a personal nature, but of a political one originating out of official interest.
o o

THE NECESSARY AND PROPER CLAUSE

I. TEXT The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. II. EXPLANATION

McCulloch v. Maryland (1819): There was no specific power under the Constitution to create a bank and Hamilton created one regardless of this. Maryland established a statute imposing a tax on the face value of notes issued by banks and branches located in the state to drive the bank out of business. The Baltimore Branch controlled by the Bank of the United States refuses to pay. Maryland insisted that they had a right to tax the bank, but the bank said the state had no such right. Issue: Can Congress create a bank of the United States? If so, can Maryland tax the Bank of the United States? o Yes and no; law passed by the state of Maryland taxing the Bank of the United States is unconstitutional Marshall Decision: o (1) Historical practice for nations to establish banks and this one was done carefully with approval by executive o (2) States do not retain ultimate sovereignty even though they ratified the Constitution. It was the people who ratified the Constitution, and thus it is the people who are sovereign o (3) Just because power is not enumerated is not dispositive; It is a constitution we are expounding
o o

o o

(4) Broad interpretation of the word necessary, it permits Congress to seek an objective that is within enumerated powers as long as it is rationally related to the objective and not forbidden otherwise Narrow interpretation rejected as many of the powers would be useless if only those deemed absolutely essential could be passed. NPC within powers, not limitations section Could not tax as the Congress has implied powers that need to be related to text but not enumerated NPC only relevant to those not already an enumerated powers; it is meant to enlarge, not diminish power

THE COMMERCE CLAUSE

I. TEXT [Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes Gibbons v. Ogden (1824): NY legislature Livingston and Fulton exclusive navigation privileges of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of years. Livingston and Fulton granted a license to Gibbons operated a competing steamboat service between Elizabethtown, New Jersey and New York City that had been licensed by the United States Congress in regulating the coasting trade. Ogden filed a complaint in the Court of Chancery of New York asking the court to restrain Gibbons from operating on these waters. NY court obviously found for Ogden. Ogden: States often passed laws on issues regarding interstate matters and that states should have fully concurrent power with Congress on matters concerning interstate commerce Gibbons: Congress had exclusive national power over interstate commerce according to Art. I, Sec. 8 of the Constitution and that to argue otherwise would result in confusing and contradictory local regulatory policies. Marshalls Opinion: o Source of Congress's power to promulgate the law at issue was the Commerce Clause. Accordingly, the Court had to answer whether the law regulated "commerce" that was "among the several states." With respect to "commerce," the Court held that commerce is more than mere trafficthat it is the trade of commoditiesit is also intercourse. This broader definition includes navigation. The Court interpreted "among" as "intermingled with." o Marshall's ruling determined that "a Congressional power to regulate navigation is as expressly granted as if that term had been added to the word 'commerce'." o The Court went on to conclude that Congressional power over commerce should extend to the regulation of ALL aspects of it, overriding state law to the contrary: o "If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States." o Power of Congress over commerce is plenary (full, entire, complete)
o

Only limitation is for people to vote their representatives out of office

United States v. EC Knight (1895): In 1890, the United States Congress enacted the Sherman Antitrust Act, an attempt to curb concentrations of economic power that significantly reduced competition between businesses. One of its two main provisions outlawed all trade combinations or agreements that severely restricted trade between states or with foreign powers. The second outlawed any attempts to monopolize trade within the United States. When the American Sugar Refining Company acquired almost all of the sugar-producing capacity in the U.S., the government sought to divest it of its monopoly. In 1892 the American Sugar Refining Company gained control of the E. C. Knight Company and several others which resulted in a 98% monopoly of the American sugar refining industry. President Grover Cleveland, in his second term of office (18931897), directed the national government to sue the Knight Company under the provisions of the Sherman Antitrust Act to prevent the acquisition. Decision: Result of the transaction was the creation of a monopoly in the manufacture of a necessary of life" but ruled that it "could not be suppressed under the provisions of the act" Manufacturingin this case, refiningwas a local activity not subject to congressional regulation of interstate commerce Action against manufacturing monopolies would need to be taken by individual states, making such regulation extremely difficult with regards to out-of-state monopolies because states are prohibited from discriminating against out-of-state goods by, among other things, the Dormant Commerce Clause and Article I Section 10 of the U.S. Constitution Holding has been narrowed by subsequent decisions What is the problem between direct/indirect and primary/secondary? Distinction is fairly arbitrary. Shreveport Rate Case (1914): Railway managed an interstate railway line that ran through Dallas and Marshall, Texas (on the eastern border of Texas), and Shreveport, Louisiana. The freight shipping rates "on wagons" from Marshall to Dallas, a distance of 148 miles, was 36.8 cents, and the rate from Marshall to Shreveport, a distance of 42 miles, was 56 cents; the rates for other goods, and from other points in Texas, showed similar imbalance. Shreveport competed with Dallas for shipments from East Texas, but the skewed price structure (mandated by the Texas Railroad Commission), greatly favored shipments to and from Dallas over Shreveport. The Interstate Commerce Commission, acting on a complaint from the Railroad Commission of Louisiana, found that "an unlawful and undue preference and advantage" was thereby given to the Texas cities, ordered the company to change the rate structure to end discriminatory pricing. Issue: Regulation of commerce completely within a state is not an enumerated power of the federal government. In effect, the Interstate Commerce Commission was attempting to set the rate that the railroad could charge from Dallas to Marshall, a section of

rail line completely within the borders of Texas. The railroads argued that "Congress is impotent to control the intrastate charges of an interstate carrier." Congressional authority "necessarily embraces the right to control operations in all matters having a close and substantial relation to interstate traffic, to the efficiency of interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms" Regulation of the intrastate line was a means to the end of regulating interstate commerce Knight has narrow holding restricted to intrastate manufacturing, transportation is arguably more interstate commerce Again there is concern that there are little limitations to this grant of power Champion v. Ames (1903): Congress enacted the Federal Lottery Act in 1895, which prohibited the buying or selling of lottery tickets across state lines. The appellant, Charles Champion, was indicted for shipping Paraguayan lottery tickets from Texas to California. The indictment was challenged on the grounds that the power to regulate commerce does not include the power to prohibit commerce of any item. Decision: Congress power to regulate interstate traffic is plenary; power is complete in and of itself Wide discretion allowed Congress to regulate traffic as it sees fit, within Constitutional limits, even to prohibit goods Plenary reasoning is distinct from the aggregate-impact theories later espoused in the Shreveport line of cases Doesnt this seem like general police power that would violate 10th amendment? Does not matter that its also a police power so long as there is some commerce nexus State having power doesnt preclude Congress as long as it can use Commerce powers Hammer v. Dagenhart (1918): Dagenhart filed suit on behalf of his two minors, stating law that prohibited interstate commerce of goods made through child labor.

Decision:

Statute is invasion of state police power; Production and Manufacturing of goods come prior to commerce and therefore, are matters of local regulation What are they regulating? Child labor, which is one prior to shipment of goods across state lines, furthermore the goods themselves are not inherently evil (lottery tickets)

Dissent: The existence of state police power DOES NOT mean that Congress CANNOT regulate o Once states seek to put their products across state lines, the federal government can regulate Distinction between preceding/following transportation is poor reasoning The Court should not look at other purposes of the statute because as long as there is interstate transportation then Congress power is plenary Carter v. Carter Coal (1936): Congress was trying to deal with constant coal strikes, so it passed legislation requiring collective bargaining (effectively a regulation of manufacturing). All mines were required to pay a 15% tax on coal produced. The act was not mandatory, but mines that complied would be refunded 90% of the 15% tax. Shareholder Carter sued the coal mine claiming that coal mining was not interstate commerce and therefore could not be regulated by the federal government. What are they trying to regulate? Production of coal, not the commercial transaction of it Even if production of coal is an evil, it only has power to regulate over national evils, not local ones Just because it is intended for interstate commerce, it is not subject to regulation until it enters stream Mining is local business, subject to local taxation Direct-indirect analysis from EC Knight, with same problems as the distinctions are arbitrary NRLB v. Laughlin Steel (1937): Congress sought to regulate labor policies of a purely local steel production plant. This is a similar situation to the EC Knight case about sugar. However, the Court uses this opportunity to expand Congressional power. Carter Coal apparently had due process and improper legislative delegation issues, which make it not binding Is the relationship close and substantial? In this case, preventing unionization has significant impact on the economy. How important it the industry? How do draw the lines? United States v. Darby (1941): Congress attempted to prohibit the shipment of lumber made by people with noncomplying wages. This is pretty much the same circumstances as Hammer v. Dagenhart, in this case the purpose is to regulate wages and hours of workers. Is this something that must be regulated for commerce to be controlled effectively? What would happen if Congress could not control? Why is the 10th amendment just a truism? No longer linked to being able to regulate primary conduct No longer restricted to inherently harmful items or conduct as there is no Constitutional basis for this distinction

Wickard v. Filburn (1942): Sough to regulate private use of wheat by stating wheat grown for individual use also counted against the quote limits by the Agricultural Adjustment Act. Purpose of the act was the control the price of wheat. Rational Basis test: Does Congress have a rational basis for concluding it has substantial effect on interstate commerce? Aggregation Principle: Would activity taken together with that of others similarly situated have an effect? Extra wheat used for private uses is wheat that wont be bought on the market. Heart of Atlanta/Katzenbach (1964) How many people do you need from out of state to be considered interstate commerce? What if you dont have any one from out of state? Does moving food through commerce count? Katzenbach: Segregation itself affects interstate commerce because it places an artificial restriction of flow on goods and services from entering segregated areas. US v. Lopez (1995): Act prohibited gun possession near schools attempted to justify with Commerce Clause. How much can you let the Congress determine what is or is not significantly affecting interstate commerce? Is what they are seeking to regulate an economic activity? How do you tell what that is? US v. Morrison (2000): Violence Against Womens Act that provided relief for violence against women. Again not aimed at state actors, but private conduct What they are seeking to regulate is not economic activity Gonzales v. Raich (2005): Categorical prohibition of manufacture and possession of marijuana as applied to intrastate prohibition Scalia: Activities that substantially affect interstate commerce, can thus not be party of interstate commerce itself and must be justified by N&P Even though the market for pot is illegal, there is still an interstate market. The purpose of the CSA is to control the supply & demand interstate for illegal drugs. Congress has a rational basis for belief that home-grown pot will affect the IC. Distinguished Lopez and Morrison easily, bc pot is a commodity and clearly and economic activity.

TAX AND SPENDING POWER

I. TEXT The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties Imposts and Excises shall be uniform throughout the United States. Child Labor Tax Case (1922): Congress passed the Child Labor Tax Law which imposed an excise tax of 10 percent on the net profits of a company that employed children. The law defined child labor as under the age of sixteen in any mine or quarry, and under the age of fourteen in any mill, cannery, workshop, factory, or manufacturing establishment. The definition also included the use of children between the ages of fourteen and sixteen who worked more than eight hours a day or more than six days a week, or who worked between the hours of 7:00 p.m. and 6:00 a.m. Drexel was a furniture manufacturing company in North Carolina. On September 21, 1921, a collector from the Bureau of Internal Revenue (now the Internal Revenue Service) assessed $6,312.79 in excise taxes for employing a child under fourteen during the 1919 tax year. Drexel paid the tax under protest and sued for a refund. Arguments: Drexels main argument was that the tax was an unconstitutional attempt to regulate manufacturing. The United States argued that the statute as an indirect tax did not need to meet a standard as long as it was geographically uniform. In addition, the government contended that the tax was merely an excise tax levied by Congress under its broad power of taxation under Article One of the Constitution. Penalty, not tax. Congress could take control of many areas of public interest, which the States have control over reserved by the Tenth Amendment, by enacting regulating subjects and enforcing them by a so-called tax. This would break down the constitutional limitations on Congress and eliminate the sovereignty of States. A tax is a source of revenue for the government, while a penalty is a regulation and punishment for a certain behavior. United States v. Kahriger (1953): Congress levied a tax on persons engaged in people accepting wagers and required such persons to register with the then IRS. Purpose of this was to help catch the rampart mob activity taking place in the US. There is a Fifth Amendment issue with self incrimination because in many states it is illegal to gamble. Taxes can be valid even though they have some regulatory effect if they generate some revenue. United States v. Butler (1936): The main point of the case was whether certain provisions of the Agricultural Adjustment Act of 1933 conflicted with the Constitution. In the Act, a tax was imposed on processors of farm products, the proceeds to be paid to farmers who would reduce their area and crops. The intent of the act was to increase the prices of certain farm products by decreasing the quantities produced. The Court held that the so-called tax was not a true tax, because the payments to farmers were coupled with unlawful and oppressive coercive contracts and the proceeds were earmarked for the benefit of farmers complying with the prescribed conditions. Making the payment of a government subsidy to a farmer conditional on the reduction of his planned crops went beyond the powers of the national government. Specifically, Justice Roberts said: The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. The tax, the appropriation of the funds raised, and the direction for their disbursement, are but parts of the plan. They are but means to an unconstitutional end. Quill Corp. v. North Dakota (1992): Quill had no physical presence in North Dakota (neither a sales force, nor a retail outlet),[1] but it had a licensed computer software program that some of its North Dakota customers used for checking Quill's current inventories and place orders directly. North Dakota attempted to impose a use tax on Quill. North Dakota argued that under due process, Quill had established a presence, as the floppy disks were physically located in their state. The Supreme Court based its reasoning on analysis of the Commerce Clause rather than due process. The Commerce Clause gives the federal government power to regulate interstate commerce and prohibits certain state actions, such as applying duties, that interfere with trade among the states. In National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 US 753 (1967), it was held that a business whose only contacts with the taxing state are by mail or by common carrier lacks the "substantial nexus" required under the Dormant Commerce Clause. The court determined that Complete Auto Transit, Inc. v. Brady, 430 US 274 (1977), did not limit or undo the National Bellas Hess rule. A corporation, the court ruled, may have the minimum contacts required by the due process clause and still fall short of the substantial nexus required by the Dormant Commerce Cause. The court noted that the bright-line rule of National Bellas Hess "furthers the ends" of the Dormant Commerce Clause. The Quill court thus reversed the decision of the North Dakota Supreme Court requiring Quill to collect and remit sales taxes on purchases made by customers from that state In Quill Corps. v. North Dakota, the Supreme Court ruled that a business must have a physical presence in a state for that state to require it to collect sales taxes. However, the court explicitly stated that Congress can overrule the decision through legislation.

DORMANT COMMERCE CLAUSE

Dean Milk v. City of Madison (1951): A municipal ordinance requiring all milk sold in Madison to be pasteurized at an approved plant within 5 miles of the city. Illinois milk producer, Dean Milk, on appeal from a state court holding that found the municipal ordinance to be reasonable, charged that the true purpose of the ordinance was to protect local industries from competition from nonlocal producers. The city cites a concern for public health and safety. Cannot discriminate, even in the exercise of its unquestioned power to protect the health and safety of the people, if reasonable nondiscriminatory alternatives are available, in this case having inspectors go around and inspect The fact that in-state producers were also discriminated against was not found to be relevant to the fact that it discriminated against interstate commerce. South Carolina v. Barnwell Bros. (1938): South Carolina passed a law in 1933 that prohibited trucks with gross vehicle weight exceeding 20,000 pounds and width exceeding 90 inches from using state highways. Barnwell Brothers, Inc. (P) and other truckers and interstate shippers brought suit in federal district court against the South Carolina State Highway Department (D) to enjoin enforcement of the law on the grounds that it violated the Due Process Clause of the Fourteenth Amendment, and imposed an unconstitutional burden on interstate commerce in violation of the Commerce Clause. The district court ruled in favor of the plaintiffs, holding that the law imposed an unreasonable burden on interstate commerce because it prohibited a large portion of traffic from passing through the state. Statistical evidence showed that 90% of trucks had widths of 96 inches and only four other states limited weight to less than 20,000 pounds. A state highway regulation is valid provided that it discriminates equally between interstate and intrastate commerce and there is a rational basis for the law. In the absence of federal legislation, a state may adopt regulations limiting the weight and width of vehicles in order to promote safety and conserve its highways, provided such regulations do not discriminate between vehicles traveling in interstate commerce and vehicles traveling only within the state. The states generally have the power to regulate in such matters, and judicial inquiry into the validity of such regulations in light of the Commerce Clause and the Fourteenth Amend. is limited to the issue of whether the restrictions are reasonably adapted to the end sought (i.e. rational basis test). The adoption of one weight or width regulation versus another is a legislative not a judicial choice. It is not to be determined by a court weighing the merits of the legislative choice and rejecting it if the evidence appears to favor a different standard. The record fails to exclude the possibility that there exists a rational basis for the regulations and indeed shows that there is adequate support for the legislative judgment. These measures as adopted are within the legislative power of South Carolina. In this case, there was data to show the beneficial effects of the legislation.

Southern Pacific v. State of Arizona (1945): The Arizona Train Limit Law of 1912 (the Law), prohibited the operations of trains of more than 14 passengers or 70 freight cars and authorized he state to recover a money penalty for each violation. The trial court found for the Defendant and the state supreme court reversed. The state supreme court believed that the statute was enacted within the states police power and that it bore a reasonable relation to the health, safety and well-being of the states people. This finding was irrespective of the statutes effect on interstate commerce. A state law that puts a significant burden on interstate commerce, yet provides no real improvement in safety, will be found to violate the Constitutions Commerce Clause The Supreme Court determined that the usage of trains with greater than 14 passenger cars and more than 70 freight cars is standard practice on many United States railroads. If train length was to be regulation, national uniformity in regulation, such as only Congress can impose, is practically indispensable to the operation off an efficient and economic national railway system. The Supreme Court also determined that the Law imposed a serious burden on interstate commerce. Also, the Law does not provide any actual safety benefits and in actuality makes train operation more dangerous. Kassel v. Consolidated Freightways (1981): An Iowa statute restricted most truck combinations to 55 feet in length. The statute did provide for some exceptions. Consolidated Freightways sued, alleging that Iowa's statutory scheme unconstitutionally burdens interstate commerce. Iowa defended the statute as a reasonable safety measure enacted pursuant to its police power, asserting that 65foot double tractor-trailers are more dangerous than 55-foot singles, and that the law would improve safety and reduce the number of highway accidents by diverting truck traffic outside the state. The District Court made the factual finding that 65-foot doubles were just as safe as 60-foot doubles and 55-foot semi-trailers. Iowas law substantially burdens interstate commerce insofar as it uses regulations out of step with all of its neighboring States regulations. Moreover, Iowa discriminates against out-of-state interests by providing Iowans exemptions that are not extended to out-of-state interests. Although the Supreme Court usually defers to the judgment of the State legislatures as to the justification of its laws concerning local concerns, less deference is due them in cases such as these: where the States safety justifications appear illusory; and where local regulation places a disproportionate burden of its statutory scheme on out-of-state interests. Concurrence: Brennan states you should not look at the lawyers safety justifications only the states interest are important, in this case they wanted to reduce the interstate traffic which was not okay

Dissent: Rehnquist states you should be able to look at the lawyers safety concerns because you cant really know that they werent contemplated by the legislature because they are so many people (Cant tell what actual purpose is)

City of Philadelphia v. NJ (1978): A New Jersey law prohibiting the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State" unconstitutional because it violated the Dormant Commerce Clause. "Whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently." In other words, New Jersey couldn't regulate beyond its borders. Furthermore, the court held that legitimate local interests which had incidental interstate effects were within the state's general police powers, but "where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected" Dissent: Rehnquist maintained that the law was constitutional, on the basis of the validity of quarantine laws. Rehnquist reasoned that the toxic trash New Jersey handled from out-of-state was no different than diseased meat and germ-infected rags that were legally prohibited in quarantine laws. Because states can rightfully burden interstate commerce in the name of health and safety, Rehnquist found no hindrance to this law in the Commerce Clause. Camps Newfound v. Town of Harrison (1997): Camps operates a children's church camp in Maine and finances its operations through a $400 per camper weekly tuition charge. The majority of its campers are out of state children. Maine's tax scheme exempts charitable institutions incorporated in the state, and provides a more limited tax benefit for institutions which principally benefit nonMaine residents so long as their weekly service charge does not exceed $30 per person. Ineligible for any exemptions, Camps challenged the constitutionality of Maine's tax exemption statute. Are campers articles of commerce? Yes, Heart of Atlanta. Definition of commerce is same for DCC purposes Does a nonprofit organization count as commerce? Yes, many lines of commerce where charities participate in. Should not make distinction between for-profit and charity, and also Wickard should apply (aggregation) Dissent: Scalia finds it to just be a state-provided indirect welfare, so it shouldnt matter Dissent: Thomas finds no basis for dormant commerce clause as it reduces to making policy judgments such as whether a state is legitimate, effects are merely incidental, nature of the local interest, and alternative means South Central Timber v. Wunnicke (1984): Defendant, the State of Alaska proposed to sell timber owned by the state. In the contracts of sale, it included a provision requiring all timber purchasers to partially process the timber in Alaska. The provision was incorporated in order to protect Alaskan timber-processing industries and to derive revenue for the state. Plaintiff purchases timber and ships it elsewhere for processing. Plaintiff claims that the contract provision violates the commerce clause. The Court of Appeals found that Congress had implicitly authorized Defendants processing requirement. Marketplace-participation allows State to refuse to do business with out of state (Reeves dealing with cement) In absence of Congressional action, State can favor own citizens (require more documentation - Hughes) However, there needs to be a proximity; working for city was crucial in upholding building contracts (White v. Mass) Is there foreign commerce, natural resource, restriction on resale? (Not present in Reeves) Should privity of contract be a requirement? Not necessarily, just need to be a participant in the market (but how do you define market?) In this case, it is regulating a down stream portion of the market Dissent: Rehnquist says why cant you do indirectly what you can do directly? You could have just sold it directly or subsidized the industry. United Haulers v. Oneida-Herkimer Solid Waste (2007): The plaintiff, United Haulers, a not-for-profit corporation made up of waste management companies, sued the New York counties of Oneida and Herkimer, which controlled the Oneida-Herkimer Solid Waste Management Authority, under 42 U.S.C. 1983. United Haulers claimed that county ordinances requiring all solid wastes and recyclables generated within the two counties to be delivered to one of several waste processing facilities owned by the Authority violated the Dormant Commerce Clause. In Carbone, the Court struck down a similar flow control ordinance that forced haulers to deliver waste to a private processing facility. Here, the Court held that because the facilities were owned and operated by a state-created public benefit corporation, the restriction was permissible "Disposing of trash," Roberts wrote, "has been a traditional government activity for years, and laws that favor the government in such areas but treat every private business, whether in-state or out-of-state, exactly the samedo not discriminate against interstate commerce for purposes of the Commerce Clause." Roberts applied the balancing test from Pike v. Bruce Church to determine that the local benefits outweigh the interstate commerce concerns, but a majority of the court did not agree that applying the balancing test was necessary. II. PRIVILEGES AND IMMUNITIES

Baldwin v. Fish and Game (1978): Court found that the licensing system bore some rational relationship to legitimate state purposes. The court concluded that the nonresidents' interest in sharing the limited resource on more equal terms with residents simply did not fall within the purview of the Privileges and Immunities Clause. Equality in access to state elk was not basic to the maintenance or well-being of the union, and whatever rights or activities were fundamental under the Privileges and Immunities Clause, elk hunting by nonresidents was not one of them. The legislative choice was an economic means not unreasonably related to the preservation of a finite resource and a substantial regulatory interest of the state because it served to limit the number of hunter days.

PREEMPTION
Silkwood v. Kerr-McGee: Karen Silkwood worked as a laboratory technician and became involved in union activities and investigated health and safety issues as the plant. She testified before the Atomic Energy Commission regarding violations of health and safety regulations and alleged that Kerr-McGee falsified inspection records. A few months later, Silkwood discovered that she had been exposed to dangerously high levels of plutonium. The circumstances of the contamination were highly unusual and Silkwood alleged that she was the victim of retribution for her whistle. The jury awarded Silkwood $505,000 in compensatory damages and $10,000,000 in punitive damages. The Court of Appeals reduced the award for compensatory damages to $5,000 and held that punitive damages were preempted by federal law. Silkwood appealed and the Supreme Court granted certiorari. Issue: Does the Nuclear Regulatory Commissions exclusive authority to establish safety standards for the operation of nuclear power plants foreclose the availability of state law tort remedies? Holding: No. The Nuclear Regulatory Commissions exclusive authority to establish safety standards for the operation of nuclear power plants does not foreclose the availability of state law tort remedies.The federal preemption of state regulation of nuclear power does not extend to the state-authorized award of punitive damages. Regarding legislative intent, there is ample evidence that Congress had no intention of forbidding the States to provide remedies for those suffering injuries from radiation in a nuclear plant. KerrMcGee is unable to point to anything in the legislative history of the Price-Anderson Act which established an indemnification scheme for operators of nuclear facilities or in the implementing regulations that indicates that punitive damages were not to be allowed. In enacting and amending the Price-Anderson Act, Congress assumed that state law remedies were available to victims of nuclear incidents, even though Congress was aware of the Nuclear Regulatory Commissions exclusive authority to regulate safety matters. Preemption regarding damages for radiation injuries should not be judged on the basis that the Federal Government has so completely occupied the field of safety that state remedies are foreclosed, but on whether there is an irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would frustrate the objectives of the federal law. The award of punitive damages does not conflict with the federal remedial scheme to impose civil penalties on licensees for violation of federal standards. The award of punitive damages does not hinder the purpose of the statute to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes, since Congress disclaimed any interest in accomplishing this purpose by means that fail to provide adequate remedies to victims of nuclear incidents. US Term Limits v. Thornton (1995): Arkansas set a term limit on how many years their representatives and senators to the US Congress can be in office. The plaintiff contends that the Constitution does not forbid the practice, and therefore the 10th amendment will allow the limits. The limits were put into the Arkansas state constitution. The fundamental purpose of representative democracy is that the people should choose whom they please to govern them. Court disagrees with the argument that the 10th amendment gives the state this right: 1) the power to add qualifications is not within the original powers of the states and 2) even if states possessed this power, the Framers intended the Constitution to be the exclusive source of qualifications for members of Congress and that the Framers thereby divested states of any power to add qualifications. This power can only arise from national sovereignty. The text/structure of the Constitution, relevant historical materials, and the basic principles of our democratic system precludes such power. Also, the Framers wanted a uniform legislature, so they wouldnt want states to add their own qualifications. The ratification debates hold no evidence of the assertion that states have this power. Though term limits were a major controversy, they were struck down. It would be incompatible with the peoples right to choose. The right to choose representatives rests with the people, not the states. The appellee argues that the states have the right to regulate the manner in which elections are carried out, giving them the power to set term limits. This would also give the same power to Congress, which the Framers would find unfathomable. The only way to set term limits is by a federal constitutional amendment. Kennedys concurrence points out that McCulloch established the superiority of the federal government over the state government; states cant impose on feds Thomass dissent: The Constitution is silent on this issue; states have the power under the 10th amendment Case Notes: this was a referendum initiative; does this make a difference in the analysis? The Constitution is silent, ambiguous- what should the judiciary do when the evidence is in equipoise? Here the SC has to pick national or state sovereignty- is this an opportunity for judicial power? What is the SCs duty? What is the default rule for equipoise, when neither sides inferences are stronger than the others?

SEPARATION OF POWERS
I. PRESIDENTIAL ACTIONS

Youngstown v. Sawyer (1952): The steel industry threatened to strike during the Korean War, and President declared emergency. Pres. ordered Secretary of Commerce to seize steel mills and keep them running. Congress did NOT follow up with authorization of the emergency measures. Mill owners brought suit, claiming that Pres. has no independent power to seize property, and theres no Act of Congress to back up the seizure. There is no statute authorizing the seizure. Congress had specifically considered and rejected statute that wouldve authorized emergency seizures of property in labor disputes, AND there were 2 statutes that set out procedures Pres. couldve followed here, but didnt. There is no express power in the Constitution for the Pres. to seize property; there are no implied powers that apply. The Pres. has no power to make laws that is reserved to the Congress (Art. I). The Pres. has the duty to ensure that the Laws be faithfully executed (Art. II) this does NOT imply that he can make laws. Executive power cannot be implied to grant lawmaking power this would defeat checks and balances. The Pres.s power as Commander in Chief does not grant authority because this action was not taken in the theater of war. Jackson Concurrence: Notes that Presidents power is at a max when working with Congress; when Pres. acts in the absence of Congressional support he can only exercise the express/implied powers granted to Executive by Constitution; when Pres. acts against the will of Congress (as here), his power is at a minimum: can only rely on his constitutional powers MINUS those of Congress. Hamdi v. Rumsfeld (2004): Hamdi was an American Citizen born in Louisiana who moved to Saudi Arabia. When he was 20 years old he moved to Afghanistan. The U.S. states that he was apprehended holding a riffle in the battlefield, and that he was aligned with the Taliban forces fighting against the United States. The government only relied on a single affidavit stating that Hamdi was an enemy combatant (Mobbs Declaration). Upon captured Hamdi was taken to Guantanamo Bay but when they discovered he was a U.S. Citizen they transferred him to another prison in Virginia. In 2004 (3 years after) his father filed a Writ of Habeas Corpus in the Eastern District of Virginia. He states that his son went to Afghanistan on a relief trip and stated that he was young and inexperienced, and was trapped in Afghanistan once the military campaign began and thus there is no legal basis for detaining him. The government had held his son without any charges against him and for an unlimited amount of time. Legal Rule: 18 U.S.C. 4001(a) No Citizen shall be imprisoned or otherwise detained by the U.S. except pursuant to an Act of Congress. AUMF: Broad powers to President about fighting terrorism, necessary and appropriate force. Government Claim: The executive has the power to detain ANY enemy combatant and that U.S. Citizens COULD BE enemy combatants. That they could hold an enemy combatant indefinitely without the right to due process until after the armed conflict ended. OConnor J. Decision: AUMF (Authorized Used of Military Force Post 911) is a sufficient statute under the meaning of 4001(a) However, 5th Amendment Due Process gives a Citizen held in the U.S. as an enemy combatant, the right to contest the detention before a neutral decision maker Rejects government claim that Separation of Powers and Limited ability of courts in matters of military decision making ought to restrict the judgment to whether there was legal authorization for detention Even when detained in the field of battle the U.S. still has to show that the person is validly detained, thus Habeas Corpus is still appropriate Filing of Mobbs Declaration in combination with interrogation is NOT sufficient to satisfy the requirement of charging a party Because these are times of war, when in front of the decision maker the government is NOT required to abide by ALL the same procedures as a criminal trial Hearsay can be used and there is a presumption in favor of the government (Hamdi has burden of proof) This shows that OConnor wanted to find a middle ground Stated that when it came to Due Process the court should adopt the Matthews Test o Court should consider the private interest that will be affected by the official action o Court should consider what type of procedural safeguard must be provided by the detaining authority to protect the interests of the private person o Court should consider the interest of the government o Based on the Matthews Case Hamdis Due Process should be a citizen-detainee seeking to challenge his specification as an enemy combatant must receive NOTICE of the factual basis for his classification & a FAIR OPPORTUNITY TO REBUT the governments factual assertions before a NEUTRAL decision maker Rejects Article II Argument: A state of War is NOT a blank check for the President when it comes to the rights of the Nations Citizens (Youngstown) Souter J. Concurring in Part & Dissenting in Part: Agrees that the government does NOT have unconditional power to detain Hamdi but disagrees that AUMF satisfied 4001(a) requirement, 4001(a) was written out of fear of WWII internment camp repetition. AUMF lacks any clear statement of intent to allow detention. Agrees with Due Process given by OConnor

Scalia J. Dissent: Government only has two options; (1) Charge Hamdi and try him with treason or (2) Congress must authorize the President to suspend Writ of Habeas Corpus. It was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention. Thomas J. Dissent: Hamdi was detained as an enemy combatant apprehended with Taliban forces in Afghanistan. This falls under the War Powers of the Federal Government and therefore the Writ of Habeas Corpus should fail. Due Process requires NOTHING MORE than a good faith executive determination. An Executive acting pursuant to statutory and Constitutional authority may, consistent with the Due Process Clause, unilaterally decide to detain an individual IF the Executive deems this necessary for public safety EVEN IF HE IS MISTAKEN! This is NOT an area for the courts because they are not adequately able to protect security interests. "Because a decision to bomb a particular target might extinguish life interests, the pluralitys analysis seems to require notice to potential targets.

Dames v. Reagan (1981): In 1979 American embassy personnel were seized and held hostage in Iran. In response President of the United States Jimmy Carter (President Carter), acting pursuant to the International Emergency Economic Powers Act (IEEPA), froze Iranian assets in the United States. In 1981 the hostages were released pursuant to an executive agreement that (1) terminated legal claims between the government of each party and the nationals of the other and (2) brought about the transfer of all Iranian assets held in the United States by American banks. After taking office, President Reagan issued an Executive Order ratifying the Agreement, thereby suspending Dames & Moores legal claims with the Iranian government. Congress has implicitly approved the practice of claim settlement by executive agreement. The Presidents actions with regard to the transfer of assets were taken pursuant to specific congressional authorization under the IEEPA. Although the IEEPA itself did not authorize the presidential suspension of legal claims, Congress implicitly approved the practice of claim settlement by executive agreement. For example, Congress enacted the International Claims Settlement Agreement Act of 1949. Moreover, Congress has frequently amended the same act to provide for problems arising out of settlement agreements. Thus, Congress has demonstrated its acceptance of the Presidents claim settlement authority. The Court emphasized the narrowness of this ruling, limiting its decision to the facts of the case US v. Curtiss-Wright (1936): Congress, acting by joint resolution, had authorized the President to place an embargo on arms shipments to countries at war in the Chaco region of South America. Acting pursuant to the resolution, President Franklin Roosevelt proclaimed such an embargo. When Curtiss-Wright Export Corp. was indicted for violating the embargo through the sale of machine guns to Bolivia, it defended itself on the grounds that the embargo and the proclamation were void because Congress had improperly delegated legislative power to the executive branch by leaving what was essentially a legislative determination to the President's unfettered discretion. Did the Joint Resolution passed by Congress grant too much authority (and legislative power) to the President, in violation of the non-delegation doctrine? Was the President required by due process considerations to make findings of fact in support of the proclamation? Did the revocation of the May 1934 proclamation operate to eliminate the penalty for its violation? The Court reasoned that, while the Constitution may not explicitly say that all ability to conduct foreign policy on behalf of the nation is vested in the President, such power is nonetheless granted implicitly. Moreover, said the Court, the Executive, by its very nature, is empowered to conduct foreign affairs in a way which Congress cannot and should not. The Court stated that "there is sufficient warrant for the broad discretion vested in the President to determine whether the enforcement of the statute will have a beneficial effect upon the reestablishment of peace in the affected countries." The upshot of this ruling not only upheld export limitations on the grounds of national security (similar ones still exist today) but also established the broader principle of executive supremacy in national security and foreign affairs The Court has not recognized the full scope of executive power suggested by Justice Sutherland's sweeping language. Congressional authorization may be necessary to legitimize many executive acts. In Regan v. Wald (1984), for example, the Supreme Court cited Curtiss-Wright in upholding the constitutionality of the president's regulations restricting travel to Cuba expressly on the ground that they had been authorized by Congress. On the other hand, in Federal Energy Administration v. Algonquin SNG, Inc. (1976), the Court validated presidential restrictions on oil imports based on very broad congressional language delegating apparently unlimited regulatory authority to the executive branch. In an opinion written by Justice Sutherland, the Supreme Court rejected these arguments and found in favor of the government. Goldwater v. Carter (1979): Communists took over China and the right wing government moved over to Taiwan to form their own nation. Carter took position that the Peoples Republic of China (Communists) were the legitimate nation and abolished the treaties that it had with Taiwan. The Constitution says the President can make treaties, but is silent on treaty termination) Senator Byrd passed a measure requiring for Senate approval if the President wanted to terminate a treaty (Byrd Amendment). Goldwater needed measure so that he would have a case or controversy, otherwise there would be NO standing. Senator Goldwater brought suit stating that there is NO constitutional authority for Carter to abrogate a treaty and sought declaratory judgment. Who can terminate a treaty? Is it justiciable for the Court to decide if the President can unilaterally terminate a treaty? Question of the Presidents power to unilaterally terminate a treaty should be treated as a political question and is nonjusticiable for the following reasons: o There is NO constitutional provision directly controlling the issue o The political branches have adequate resources to decide the issue o The issue involves foreign affairs

Powell J. Concurring: The case was justiciable, but NOT ripe for review. The reason the case is not ripe for review is because Congress had NOT done everything in their power to solve the situation. Congress would have to show that the Senate supported the Byrd Amendment retroactively. Rehnquist J. Concurring: This case is a non-justiciable one regardless of ripeness. The court had NO unique competence in the area of foreign relations and ought to keep out of it giving deference to other branches Brennan J. Dissenting: This is a constitutional issue about which branch holds a particular power and the Court can decide this question. Therefore it is a judicial question as to whether what the President did was textually committed in the Constitution and NOT a political question EXECUTIVE PRIVILEGE

II.

US v. Nixon (1974): Nixon asserted executive privilege to avoid producing White House tapes for use in Watergate investigation/trial. Nixon argued this was a non-justiciable political issue simply a dispute among members of the executive branch (ie, the Special Prosecutor w/in the Justice Department vs. the Pres.). SC says no because a) the Special Prosecutors terms of appointment make him independent of the Pres., and b) whether evidence can be used at trial is definitely a legal question. The executive has absolute executive privilege over military/state secrets (this is a necessary implied power Pres. must be able to get candid advice) The executives privilege in other matters general privilege is only presumptive. Its subject to a balancing test of value of confidentiality vs. importance of need to reveal. In a criminal investigation, the need is significant and info can be protected thru in camera review of docs Nixon v. GSA (1977): Presidential Recordings and Materials Preservation Act was passed directing the General Services Administration to take possession of Nixons White House papers and tapes recordings. Nixon had executed a depository agreement with the Administrator of the GSA providing for the storage of his White House papers and materials near his home in St. Clemente. The Act required for those papers to be stored and preserved by the GSA in order for them to be available for judicial proceedings. Nixon sued challenging the constitutionality of the act The Act is NOT a violation of Separation of Powers; President Ford signed Act into power and President Carter urged its validity Screening by archivists is a very limited intrusion by personnel in the Executive Branch sensitive to concern The Act would not impede the Executives ability to complete constitutionally assigned function How can you tell what the Congresss subjective intent is? Bill of Attainder? Is he being punished for no reason? His property is being seized? (Eminent domain) Clinton v. Jones (1997): On May 6, 1994, former Arkansas state employee Paula Jones filed a sexual harassment suit against U.S. President Bill Clinton and former Arkansas State Police Officer Danny Ferguson. She claimed that on May 8, 1991, Clinton, then Governor of Arkansas, crudely propositioned her. The suit was filed in the U.S. District Court for the Eastern District of Arkansas. Judge Susan Webber Wright, who had taken a class under then-Professor Clinton at the University of Arkansas School of Law, ruled that a sitting President could not be sued and deferred the case until the conclusion of his term (although she allowed the pre-trial discovery phase of the case to proceed without delay in order to start the trial as soon as Clinton left office). Both parties appealed to the United States Court of Appeals for the Eighth Circuit, which ruled in favor of Jones, finding that "the President, like all other government officials, is subject to the same laws that apply to all other members of our society." Clinton then appealed to the U.S. Supreme Court, filing a petition for writ of certiorari. In the majority opinion by Justice John Paul Stevens, the Court ruled that separation of powers does not mandate that federal courts delay all private civil lawsuits against the President until the end of his term of office. In his concurring opinion, Breyer argued that presidential immunity would apply only if the President could show that a private civil lawsuit would somehow interfere with the President's constitutionally assigned duties. Nixon v. Fitzgerald (1982): Fitzgerald lost his management position with the Department of the Air Force after blowing the whistle on significant budgetary overruns on the building of a military transport plane. Majority Reasoning: [Powell] The absolute [rather than qualified] immunity is required due to the unique position of the Presidency. The President must not be diverted from a proper exercise of discretion for fear of being subject to a lawsuit for private damages. The President is required to make decisions every day that would arouse the most intense feelings, and so must enjoy absolute immunity for his official acts. There may be cases where the Congress could take some affirmative action to subject the President to personal jurisdiction, but the court would have to weigh the constitutional weight of the interests to be served with the danger of intrusion on the authority and function of the Executive Branch. There are other ways to keep the President from abusing power, namely the press, impeachment, re-election, and personal reputation. Dissent Reasoning: [White] Attaching absolute immunity to the office of the President, rather than to particular activities that the President might perform places the President above the law. The scope of immunity should be determined by the function, not the office, and the dismissal of employees does not fall under a constitutionally assigned executive function which would be substantially impaired by the possibility of a private action for damages.

Notes: In Harlow v. Fitzgerald, the court refused to extend blanket immunity to the top Nixon aids involved in the same conspiracy as charged in the above case. Qualified immunity was the proper standard, unless perhaps the aid was entrusted with discretionary authority in such sensitive areas as national security or foreign policy. However, the court refused to give the Attorney General absolute immunity even while engaged in actions related to national security in Mitchell v. Forsyth. III. LEGISLATIVE PROCESS

Whitman v. American Trucking (2001): Clean Air Act stated the EPA to set primary ambient air quality standards to protect the public health with adequate margins of safety. Non-Delegation Doctrine does NOT apply here because if it was applied strictly nothing could be delegated. What limits are there? Immigration & Naturalization Service v. Chadha (1983): Student from India overstays his visa and the immigration and naturalization service ordered Chadha to be deported. Chadha filed for cancellation of deportation. Based on Section 244(a)(1) of the Immigration and Naturalization Act, if he had resided in the country for over 7 years, was in good moral standing, and he would suffer extreme hardship by moving back. The Immigration judge decided to cancel the deportation. There was a clause in the Immigration and Naturalization Act in which Congress could veto the order against the deportation. The House of Representative vetoed and stated that Chadha had to leave the country. The immigration judge reopen the proceedings and Chadha sued stating that the legislative veto provision was unconstitutional. Not all laws that are efficient and useful are constitutional; even useful political infractions are still subject to constitutional provisions Do we find in federal legislature examples of the legislative veto? There are more than 200 bills that have a legislative veto. They may be useful but they should all be subject to constitutional process. Framers wanted to divide power between the three branches of government and wanted legislation to be deliberate When the framers wanted to permit one house to act alone, they specifically provided for it in the Constitution o House: Power to initiate impeachment o Senate: Power to conduct and convict impeachment trials o Senate: Given final unreviewable power to approve or disapprove presidential appointments o Senate: Unreviewable power to ratify treaties Whether an act of one House is an exercise of legislative power depends on whether it has the purpose and effect of altering the legal rights, duties and relations of persons. Here, the legislative veto was used to do what otherwise wouldve required legislation Whenever Congress exercises legislative power, it must adhere to the bicameralism (both houses pass the law) and presentment (the President signs the law) requirements of Art. I, 7; 4. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked. Note: Theres no similar requirements on the Executive Branchs execution of the laws, bc the power of execution is limited by the laws passed. Whites Dissent: The legislative veto is a useful and necessary means for Congress to exercise control over the Agencies to whom it delegates powers. Since Congress delegated the power in the first place, why should it be unconstitutional to reserve some power? (Majority responds: problem is that the mechanism of the reservation extends Congresss power beyond what it has in the Constitution by eliminating the bicameralism and presentment requirements)
o

Clinton v. NY (1998): Clinton exercised his power under the Line Item Veto Act to cancel spending planned in the Balanced Budget Act waiver of recoupment of $2.6B in taxes that NYC charged Medicare providers (and also cancelled a tax waiver for food refiners the Snake River case) The President must comply with the Presentment clause, Art. I, 7, both when enacting laws and when repealing laws. The Constitution provides for the President to return an entire bill, but not to return only portions of a bill and then sign the rest into law. The Line Item Veto Act essentially allows the President to do the equivalent of returning only part of a bill; hes permitted to unilaterally cancel portions after hes signed into law. Different from precedent: o No changed conditions between Congresss passage & Presidents cancellation / change of legislation (Unlike Field v. Clark tariff precedent) o No Congressional restraint on how the Pres. exercises his discretion; o Congress did not authorize cancellation of portions of the law in the Balanced Budget Act; authorization in a different statute (Line Item Veto Act) is not sufficient results in unconstitutional delegation of lawmaking. Dissent: Scalia says this is a delegation doctrine question; not a Presentment question, and the power delegated to Pres. under Line Item Veto does not go too far such that its unconstitutional. Breyer says that the kind of power given to Pres. under Line Item Veto (to choose not to spend; or to give laws no further force & effect) has been given before and is constitutional. Says it doesnt matter that the grant of discretion comes in a different law III. APPOINTMENTS

Myers v. US (1926): In 1920, Frank S. Myers, a First-Class Postmaster in Portland, Oregon, was removed from office by President Woodrow Wilson. An 1876 federal law provided that "Postmasters of the first, second, and third classes shall be appointed and may be removed by the President with the advice and consent of the Senate." Myers argued that his dismissal violated this law, and he was entitled to back pay for the unfilled portion of his four-year term. Chief Justice William Howard Taft, writing for the Court, noted that the Constitution does mention the appointment of officials, but is silent on their dismissal. An examination of the notes of the Constitutional Convention, however, showed that this silence was intentional: the Convention did discuss the dismissal of executive-branch staff, and believed it was implicit in the Constitution that the President did hold the exclusive power to remove his staff, whose existence was an extension of the President's own authority. The Court therefore found that the statute was unconstitutional, for it violated the separation of powers between the executive and legislative branches. In reaching this decision, it also expressly found the Tenure of Office Act, which had imposed a similar requirement on other Presidential appointees and played a key role in the impeachment of President Andrew Johnson, to have been invalid; it had been repealed by Congress some years before this decision.

Humphreys Executor v. US (1935): Roosevelt fired Humphrey, an officer at the FTC. However, the Federal Trade Commission Act only permitted the President to dismiss an FTC member for "inefficiency, neglect of duty, or malfeasance in office." Roosevelt's decision to dismiss Humphrey was based solely on political differences, rather than job performance or alleged acts of malfeasance. The Court distinguished between executive officers and quasi-legislative or quasi-judicial officers. The latter may be removed only with procedures consistent with statutory conditions enacted by Congress The former serve at the pleasure of the President and may be removed at his discretion. Court ruled that the FTC was a quasi-legislative body because of other powers it had, and therefore the President could not fire an FTC member solely for political reasons Bowsher v. Synar (1986): Under the Gramm-Rudman-Hollings Act of 1985, Congress vested the Comptroller General with the power to determine amount by which annual budget exceeds expected income, and then the Pres. orders the Agencies to reduce their annual budgets by an amount stated in CGs report. Humphreys Executor held that its permissible to limit Presidents power to remove executive agents to good cause. Myers held that Congress cannot require its advice and consent to removal of executive officers. Congress cannot retain removal power over any officer charged with the execution of the laws (except by impeachment) this power would amount to a Congressional veto power over execution of the laws Here, CG is executing the laws bc hes interpreting how Acts provisions apply and determining how to adjust budget accordingly Dissents: White says the GRH Act is important, and the CG is exercising legislative not executive power (appropriation of funds is the province of Congress). Blackmun dissent would have changed the removal procedures for the CG instead of invalidating the entire GRH Act, which is important legislation Morrison v. Olson (1988): Morrison was Independent Counsel to investigate alleged perjury by Olson. IC is given all powers of AG within her jurisdiction (the specific case for which shes hired) and substantial independence. Can only be fired for good cause. Is the IC an inferior officer such that Congress may grant appointment power to the Court by law? Yes. o Can be removed by AG, so inferior in that sense; o Limited duties (no policy making; no collateral administration) o Limited jurisdiction (only the specific crimes alleged) o Limited duration (office ends when investigation/prosecution is completed) Can Congress empower branches other than the Executive to appoint inferior executive officers (i.e., are inter-branch appointments permissible)? Yes plain language indicates Congress can delegate appointment duty as it thinks proper; o Courts have expertise in attorneys, so its reasonable o Concerns over conflict of interest are a reasonable motivation to vest appointment power outside of the executive branch o No bright-line rule against it (in opinion or in Constitution) Whether appointment power falls outside of the Judicial Power (Art. III)? o Defining jurisdiction of the appointees office is appropriate where the nature and duties will necessarily vary w/ the circumstances giving rise to the need for the appointment, and where the courts discretion to define jurisdiction is limited by those circumstances. o The miscellaneous powers delegated to the Judicial Branch (receiving reports, deciding how to dispose of reports, etc.) are ministerial duties that are incidental to normal judicial activity, and thus permissible even though they arent backed by authority under the Appointments Clause. o The removal power given to the Court is very limited only when job is done; real removal power is in AG, so this isnt a fatal flaw. Whether the Act is invalid under principle of separation of powers? o Whether good cause restriction on removal by AG interferes with Presidents exercise of constitutional functions?

In Humphreys Executor, SC held that Congresss ability to restrict Pres.s removal powers to good cause depends on type of agency, and is permissible where the agency is not purely executive. This was too rigid. The imposition of a good cause restriction is permissible for any type of agency as long as it does not unduly trammel on the Presidents executive authority. o Whether the Act as a whole violates separation of powers by reducing Presidents control over prosecutions? No. Congress has not taken any power for itself through the Act. There are sufficient checks on the judicial authority granted. Most importantly, the Court can only appoint an IC at AGs request. The act does not impermissibly undermine the Executive Branchs powers/authority. The AG has control over whether to appoint IC in the first place, and has power to remove for good cause; no one else has removal power. Scalia Dissent: The Executive power was unified to make it stronger (better check on legislative power). The IC process removes some of the Executives prosecution/investigation power and vests it in an independent entity that the Pres. does not control. Some control in the executive is not enough. The broad checks and balances of constitution are sufficient mechanism to keep the Executive in check; separate investigation power is not required or appropriate. We shouldnt overrule Humphreys. The IC has too much power and too little accountability.