Constitutional Law: Outline of the Outline

CAN THE COURT HERE THIS?

General Review

Marbury v. Madison(Established Court’s authority for judicial review of federal legislation and executive ends: court will reverse statutes that conflict with constitution)

Martin v. Hunter’s Lease(SC has constitutional authority to review constitutionality of state court decisions (essentially can review state decisions that rest on federal law): since federal law supreme: that means review question of federal law. Also applies to state legislative and executive action; criminal and civil)

Cooper v. Aaaron(when SC interprets the constitution, that interpretation is supreme law of the land and binding on everyone)

1. Is it a political Question?

Baker v. Carr(district apportionments case: 1 of 6 factors must be present for question to be non-justiciable political one. Equal protection claims on state assembly apportionments are justiciable (1 person 1 vote), don’t violate any of factors)

Powell v. McCormack(the textual commitment of house being judge of members doesn’t preclude court from hearing issues about not seating congressmen, only means house judges the three requirements of constitution, and cannot add more: (ceiling not a floor))

Nixon v. United States(senate has sole power to try impeachments, the courts cannot review impeachment proceedings)

2. Is there a procedural Issue? Mostlly Case/controversy/Standing

Muskrat v. United States(Court will not issue advisory opinions: need a case or controversy)

Allen v. Wright(tax breaks segregated school case: to bring suit, P must have real and individualized injury (not as member of class) that is traceable to the action challenged and can be redressed by the relief sought: purely ideological Ps will not have standing)

3. Congressional Control of Supreme Court Jurisdiction

Ex Parte McCardle(Congress may make exceptions and regulations regarding the SC’s appellate jurisdiction. Does not say congress may strip federal courts in their entirety of right to issue habeas corpus relief)

Federalism Questions (1. federal power generally 2. commerce power (early, middle, late) 3. taxing and spending powers 4. state autonomy and congressional power to regulte states 5. federal limits on state power (Preemption, DCC))

Generally

1. The scope of federal power

McCulloch v. Maryland Part I(Bank case: Where the ends is legitimate and within the scope of the Constitution, all the means are appropriate which are plainly adapted to that end which are not expressly prohibited; states can’t tax federal gov; SHOPLIFT)

McCulloch v. Maryland Part II: (Necessary and proper: not strictly necessary; broad discretion of the means by which powers fed gov can carry out power it has)

McCulloch v. Maryland Part III: (states can’t tax fed gov)

United States v. Comstock(civil commitment case: Congress doesn’t have to say what enumerated power an act is necessary for, just some legitimate interest: rational basis review for laws)

Commerce Power (early Years) what can the federal government do?

Gibbons v. Ogden(ferry case: defining the commerce power (commerce, among the states, regulate): broad interpretation of commerce and the clause: can regulate all commercial matters that affect more than one state, as long as regulation does not violate constitution)

United States v. E.C. Knight Co. (Sugar monopoly: commerce power does not include power over everything that implicates interstate commerce (manufacture)) (1895)

Shreveport Rate Case(R.R. rates case: congress can regulate intrastate rates of common carrier that have substantial effect on interstate commerce) (1914)

Champion v. Ames(lottery: congress can regulate the transportation of goods in interstate commerce (lottery tickets): motivation is irrelevant) (1903)

Hammer v. Dagenhart (child labor: commerce power does not include regulation of interstate goods that affect local activities (production)) (1918) (overturned by Darby)

Carter v. Carter Coal Co.(coal worker hrs: commerce power does not include power to regulate activity (producing) just because it affects commerce) (1936)

Commerce Power: Middle Years (expanding): constitutional moment

NLRB v. Jones & Laughlin Steel Corp.(steal unions: Substantial Effects Test: congress may regulate local activity if that activity has a substantial effect on interstate commerce (getting rid of pre/post shipment distinction)

United States v. Darby(labor standards in shipment: effect on local activity doesn’t matter) (commerce power extends to intrastate activities that substantially affect interstate commerce) (ends not important) (overturns Hammer)

Wickard v. Filburn(home wheat: if activity, in the aggregate, has substantial (economic?) affect on interstate commerce, then it’s under the commerce clause: no need for activity to be commercial)

Heart of Atlanta Motel v. United States(discrimination affects interstate commerce, so within commerce power: applying rational basis)

Katzenbach v. McClung(BBQ case) (congress can compel non-discrimination on commerce grounds when food provided traveled through interstate commerce)

Commerce Clause: recent Cases: 3 categories

United States v. Lopez(guns free school act: Three categories of commerce power: 1. Channels. 2. Instrumentalities. 3. Activities having substantial affect) (split category 3: economic can be aggregated, non economic cannot: too attenuated to economic won’t count)

United States v. Morrison(violence against women: congress cannot regulate local non-economic activity if causal chain to substantial effect on commerce is too attenuated. Findings element gone: probably apply to criminal laws:)

Gonzales v. Raich(weed growth case: congress can regulate intrastate production and possession of economic activity that has a substantial impact on interstate commerce: BC part of a comprehensive scheme that’s within congress’ power. Don’t accept as applied challenges)

National Federation of Independent Business v. Sebelius I(ACA under commerce clause: congress cannot compel individuals to become active in a market, on the ground that failure to do so affects commerce)

Roadmap for dealing with Commerce Clause Questions

2. Taxing Power

Child Labor Tax Case(can tax as long as primary purpose is to raise revenue, not to regulate through taxation)

Unites States v. Kahriger(Gambling tax case: without penalty provisions for breach of activity under regulation of state, court will not invalidate a tax.)

National Federation of Independent Business v. Sebelius II(ACA is a tax: Child labor tax case problems do not apply to here: complies with tax rules: it’s a tax)

Spending Power

United States v. Butler(Hamiltonian view of spending power for the general welfare; but limited by 10th amendment to not regulate what’s in states power (10th amendment part no longer followed)

South Dakota v. Dole(drinking age case: Congress can regulate beyond commerce power through conditioned grant of money)

National Federation of Independent Business v. Sebelius III(ACA Medicaid: can condition money so states will take certain action, but can’t regulate through tax. Applies Dole but coercive. Severed part)

State autonomy from congressional control

National League of Cities v. Usery(no fed min wage on state employees, overruled by Garcia)

Garcia v. San Antonio Metropolitan Transit Authority(fed min. wage. Overruled Usery: the limitations on federal powers is in having enumerated power, the other limit is federalist (political), not 10th amendment).

States do have some protections…

New York v. United States(Toxic Waste Case: Fed can’t compel states/local legislators to enact and enforce a federal regulatory program) (doesn’t apply to spending power, but could be coercive)

Printz v. United States(cannot compel state/local executive officers to enforce federal regulatory program)

Federal Limits on State Power (no state power over federal gov)

U.S. Term Limits, Inc v. Thornton(states have no power respecting the federal government that the constitution does not grant)

Federal Preemption

Silkwood v. Kerr McGee Corp.(federal nuclear safety law: preempted state regulation, but not state tort action; bc that’s not in congressional scheme)

Preemption Tree

Dormant Commerce Clause

Gibbons v. Ogden (start of dormant commerce clause)

Facially Discriminatory Cases

Dean Milk Co. v. City of Madison(milk case: cannot regulate, even if protecting legitimate local interest, if there are reasonable non-discriminatory alternatives)

City of Philadelphia v. New Jersey(state laws that discriminate on their face are presumptively unconstitutional)

Camps Newfound/Owatonna, Inc. v. Town of Harrison(Maine Camp Case: Same definition of commerce applies to DCC as to affirmative commerce power)

Discriminatory in Purpose and Affect (Category II)

Regulation that burdens interstate commerce: PIKE balancing approach (category III)

South Carolina State Highway Dept. v. Barnwell Bros. (regulation on S. Car. Roads for trucks was okay bc it did not discriminate)

Kassel v. Consolidated Freightways Corp. of Delaware(iowa trucking: Safety measure barely furthered, substantial burden on interstate commerce great=strike down. Most deferential for safety concerns)

Southern Pacific Co. v. State of Arizona(RR LENGTH: INVALIDATED STATUTE BECAUSE IT IMPOSED A SERIOUS BURDEN ON INTERSTATE COMMERCE: APPLYING PIKE TEST)

Exception to DCC: Market Participant

South-Central Timber Development, Inc. v. Wunnicke(Alaska timber: when state is acting as a regulator (imposing conditions beyond their participation) and not just a participant in a market, the market participant to DCC does not apply)

Exception to DCC: Congressional Consent

Prudential Ins. Co. v. Benjamin(insurance tax case: when congress has acted affirmatively to allow non-uniform treatment: DCC does not apply)

Decision Tree for Federalism Based Concern

Seperation of powers: exec power of domestic; Exec power of foreign; war on terror; exec priv/immunity; congressional control of leg.; congressional control of exec (appts/removal

Executive Power of Domestic Affairs

Youngstown Sheet & Tube Co. v. Sawyer(Steel seizure case: Maj: prez power from congress or const. presidential assertions of authority in domestic affairs is limited; Jackson’s concurrence: three catagories of Prez’s power)

Executive Power in Foreign affairs

Dames & Moore v. Regan(Iran cases to admin: history of congressional acquiescence on similar matters and congressional silence can show implied grant to presidential power. Foreign affairs)

Executive Power: War on Terror

Ex Parte Milligan(if detained without writ being suspended: citizen have right to normal trial even if writ has subsequently been suspended)

Ex Parte Quiran(german sub case: unlawful enemy combatants can be denied jury trial and be subject to military tribunals)

Hamdi v. Rumsfeld(President can indefinitely detain citizen enemy combatants without charging them (with congressional approval of military force). But have right to review of if they’re actually enemy combatants)

Hamdan v. Rumsfeld(president cannot try non-citizens by military commission (against Uniform code of military justice) absent congressional approval)

Executive privilege

United States v. Nixon(criminalprivilege: president enjoys a qualified executive privilege in criminal proceedings: better claim if national security type thing)

Presidential immunity

Clinton v. Jones(the president is not immune from suit for actions done before he was in office)

Congressional Control: the legislative Process

Non-Delegation Doctrine: congress, which the constitution grants the legislative power, cannot delegate that power: needs clearly intelligible principle: bc then it’s not delegating legislating

Whitman v. American Trucking Associations(EPA standards case: Congress does not impermissibly delegate legislative power if it provides an intelligible principle to guide the executive delegee)

Legislative Veto: bicameralism presentment issue

Immigration and Naturalization Service v. Chadha(immigration case: legislative veto is unconstitutional because it violates presentment: here: violates bicameralism as well. All legislative action must comply with procedure)

Line item veto: Non-delegation or separation of powers? Bicameralism presentment cont… Combing above two

Clinton v. New York(line item veto case: it’s unconstitutional because it violates bicameralism/presentment. Seems like a non-delegation issue though)

Congressional Control: executive Offices

Appointmentsclause: article II sec. 2:

Removal

Myers v. United States(congress cannot reserve role in power to remove officers (completely unfettered part ruled out))

Humphrey’s Executor v. United States(FTC officer case: beginning of indi agencies: congress can place limits on presidential removal of quasi legislative or quasi judicial agency officers (even principle ones). Myers restricted to purely executive officers)

Policy arguments for unfettered v. restricted removal

Bowsher v. Synar(comptroller budget case: congress cannot reserve power over officer doing executive role)

Marrison v. Olson Removal(essentially overrules Myers; Humphreys) (special prosecutor case: Limitation on presidential removal is okay as long as it won’t substantially interfere with his ability to execute the laws)

Free Enterprise Fund v. Public Company Accounting Oversight Board(multi level protection: not allowed to have two layers of tenure: bc prez cut out of decision)

Appointments

Marrison v. Olson appointments(essentially overrules Myers) (special prosecutor case: 1. Can’t be incongruity between functions performed by delegating authority and performance of duty they appoint. 2. Who count’s as principle/inferior officer)

Standards of Review

  • Complete Deference
  • Political Questions
  • Rational Basis: there must simply be a rational basis to believe the means are towards a legitimate government (within it’s power) objective (McCulloch v. Marlyand)
  • Virtual per se upheld
  • Middle Level Standard: important ends with substantial relations
  • Ex.
  • Strict Scrutiny: the objective pursued must be compelling and the means chosen must be necessary to achieve that end. (Dean Milk)
  • Necessary: no possible less restrictive ends
  • Government action (usually gonna be state action): will almost always be struck down
  • Per Se Test: not valid

CAN THE COURT HERE THIS?

General Review

Supreme Court Powers

  • Review of constitutionality of federal statutes (Marbury v. Madison)
  • Review of State Court Decisions: When they have to do with federal law (Martin v. Hunters Lease)
  • Federal Jurisdiction: Art. III sec 2:
  • Includes: (1): cases arising under the constitution or federal statutes (2) cases of admiralty (3) cases between two or more states (4) cases between citizens of different states (5) cases between a state or its citizens and a foreign country or foreign citizens
  • Congressional Control of Federal Judicial Power
  • Congress decides what type of cases the SC may hear, but can’t expand past general federal judicial power
  • Question still open congress could prevent federal review (appellate or original) in a whole field.

Marbury v. Madison(Established Court’s authority for judicial review of federal legislation and executive ends: court will reverse statutes that conflict with constitution)

  • Court avoided answering the real question by saying it’s O.G. under the judiciary act was unconstitutional, therefore couldn’t hear case.
  • Read “shall” as “may only” (but this mutually exclusive list decision later reversed)
  • Said judiciary act gave court MORE power than constitution said it could;
  • But now: if there is a constitutional and an unconstitutional way to read a statute, read it as constitutional
  • Marshell Used 8 arguments: structure; institutional logic; nature or written constitution; judicial function; textual; judicial expertise; democrative theory; undemocratic theory.

Martin v. Hunter’s Lease(SC has constitutional authority to review constitutionality of state court decisions(essentially can review state decisions that rest on federal law): since federal law supreme: that means review question of federal law. Also applies to state legislative and executive action; criminal and civil)

  • Textual argument: shall=must at least be able to review fed questions.
  • Since fed. issues arise in state courts: gotta be able to review otherwise won’t necessarily have power of federal questions
  • Uniformity argument: want uniform interpretation of fed. Law everywhere
  • Institutional rationale: point of fed. Cts was bias local interests. (applies to criminal in Cohen v. Virginia)

Cooper v. Aaaron(when SC interprets the constitution, that interpretation is supreme law of the land and binding on everyone)

  • Doesn’t just bind the parties: but everyone
  • Court is just making it clear what constitution is saying: and constitution is binding on everyone. So SC decision is just like plain language of constitution.

Dickerson v. US: congress can’t pass bill previously declared unconstitutional

How Can Prez/Congress oppose courts decision

  1. Voice opposition
  2. Power of appointments
  3. Take narrow view of holding: court just binding on two parties (BUT Cooper v. Aaron)
  4. Presidential non Acquiescence: just don’t listen (never done)
  5. Congressional response: statute against SC holding
  6. Depends on broad or narrow view. But can make slight changes to get around reasoning of ct but still overrule (BUT Disckerson v. US)
  7. So when prez fights the court: gotta do it in court: (oath they take is to uphold court decisions too: since that’s the constitution now)

Requirements for judicial Review (federal law-Marbury) (state court, exec, and leg against fed. (thus supreme) law-Martin v. Hunter’s Lease) (everything else in their jurisdiction: but seems appellete review can be restricted)

Can the Court hear the Quesiton?

1. Is it a political Question?

Baker v. Carr(district apportionments case: 1 of 6 factors must be present for question to be non-justiciable political one. Equal protection claims on state assembly apportionments are justiciable (1 person 1 vote), don’t violate any of factors)

  • Factors (1 of which must be present to be a political question): none here
  • 1. Textual commitment: constitutional text commits decision to another branch
  • 2. Lack of judicially manageable standards: no standard to resolve question
  • 1 person 1 vote standard
  • 3. Policy determination: initial policy determination (role of leg.) necessary for court to make a decision
  • 1 person 1 vote: that was fine: even though previously thought of as policy determination
  • 4. Avoid disrespect: some need to avoid disrespecting another branch
  • seems impossible in any court decision
  • 5. Unquestioning adherence needed: some need to adhere to another branch of gov. where political decision already made
  • 6. Avoid embarrassment/One Voice of government: need for gov to speak with one voice to avoid embarrassments from various pronouncements on single issue by diff. departments. (maybe int’l stuff)

Powell v. McCormack(the textual commitment of house being judge of members doesn’t preclude court from hearing issues about not seating congressmen, only means house judges the three requirements of constitution, and cannot add more: (ceiling not a floor))

  • “house shall be judge of its members” not enough of a textual commitment. Only judge the three factors: age, citizenship, residency
  • ethical conduct attachment: beyond constitution. And not textually committed to house to decide
  • court: deciding what constitution says: decided those are the only three requirements constitution puts on congressman

but then opposite as above…