I.Judicial Power

A.Constitutional Interpretation

  • Textualism: Reading the direct language of the constitution/ statute.
  • Originalist: Constitution means today what it meant the say it was ratified. The meaning and scope remain the same, thus the same question should produce the same answer. Promotes:
  • Consistency/ predictability
  • Objectivity/ democracy (keeps unelected judges from striking down the will of legislature/people)
  • Social contract: changing the meaning of the Constitution, voids the social contract
  • Non-originalist: Framers intended to paint with a broad brush and it should be read to evolve. Constitutional law is like the common-law, interpreting the constitution should protect broad principles and values. Promotes:
  • Practicality (originalism is impossible in practice since we don’t know what was actually originally meant)
  • Legitimacy (the constitution is binding because we choose to accept it as so since it keeps up with changing notions of liberty and equality)
  • Protection of Minorities (The danger of democracy is the tyranny of the majority, judges protect the minority)
  • Structuralist: Looking at the structure of our government not explicitly in the constitutional text—separation of powers, federalism, and judicial review.
  • Formalism: Looks at the text and form of the Constitution.
  • Functionalism: Looks at the real world consequences of the action.

B.Judicial Review

  • Review of Federal Action: There is no explicit textual authority for federal courts to review federal legislation and federal executive actions as to their constitutionality. However, Marbury v. Madison implied this power under Art. III of the Constitution.
  • Federal “judicial power” defined: Unless a case falls within one of the “cases or controversies” identified in Art. III, §2, an Art. III federal court must dismiss the case for want of subject matter jurisdiction. (See, Muskrat v. U.S.)
  • Supreme Court Jurisdiction: Original, Appellate & Discretionary Review
  • Original Jurisdiction—Supreme Court original jurisdiction is defined by Art. III. It cannot be enlarged or diminished by Congress. (Marbury v. Madison)
  • Appellate Jurisdiction (Congressional Power)—The Supreme Court’s appellate jurisdiction is vested by Art. III to the “cases and controversies” enumerated there subject to congressional exceptions.
  • Discretionary Review—Supreme Court review of lower court decisions is almost entirely a matter of discretion.

C.Supreme Court Review of State Court Judgments

  • Review of State Action: Art. VI requires state courts to make decisions in conformity with the U.S. Constitution, thus when state court judgments “aris[e] under the constitution” as defined in Art. III, §2the Supreme Court has the power to review them as a function of its appellate jurisdiction (federal question doctrine). (Martin v. Hunter’s Lessee).

D.Judicial Supremacy

  • Extension of Supreme Court Rulings:Because Supreme Court rulings are the supreme law of the land, everyone is bound by the constitutional interpretation of state judgment, federal question case if the case in question clearly extends. (See, Cooper v. Aaron).
  • Limits on Judicial Supremacy: Judicial supremacy can be fought by (1) trying to name and confirm new justices (2) political branches overrule the court by amendment (3) Congress can tinker with the law. Ultimately, judicial supremacy rests on Congress, the President, and the people because the Court’s rulings mean nothing unless the president respects and enforces it. Occasionally, the court spends its capital testing the public’s capacity for deferring to the Court, but tend to accept out of respect/fear of tyranny of the majority.

E.Limits on Judicial Power (Justiciability)

WHAT MAY BE LITIGATED?

  • The Political Question Doctrine: Questions found to be political based on the Baker v. Carr test are non-justiciable (Brennan) argument that everything can pass the test
  • Textual Commitment, Judicially Discoverable/ Manageable Standards, Policy Determination, Respect for Other Branches, Unquestioning Adherence, Avoid Embarrassment (See also, Nixon v. U.S.)
  • NO Advisory Opinions: Advisory opinions are NOT “cases or controversies” in adversary form and because there is no issue pertaining to real people in an advisory opinion it is not in a context that is capable of judicial resolution. Additionally, judicial restraint prevents the Court from issuing advisory opinions to prevent violation of separation of powers. (Muskrat v. U.S.)
  • Pro-advisory opinion argument: More efficient for the Court to issue advisory opinions if they will just strike down a law in the long run. Judges are the true experts in our system and can prevent the costs of making people live under an unconstitutional law. It is not a violation of separation of powers, but an opportunity for the branches to work together.

WHO MAY LITIGATE?

  • Constitutional standing: Plaintiff must have a personal stake in the outcome by establishing an actual injury that can be remedied by a lawsuit.

WHEN CAN THE CONSTITUTIONAL QUESTION BE LITIGATED?

  • Mootness: A case must be dismissed when because of change in circumstance the court’s determination of the legal issue cannot have any practical effect in achieving the desired result.
  • Ripeness: There must be a present injury (legal question/controversy) in order to sue.

F.Checks on Judicial Power

  • External limits: President can appoint new justices; Senate can reject nominees, Constitutional amendments; Congressional impeachments; Lack of enforcement mechanism; Potential addition of justices; Congress can impose schedule limitations; Congressional Budget Control
  • Stripping Jurisdiction: The Court’s Appellate Jurisdiction may be subject to limitations arising from separation of powers principles and constitutional rights and liberties (See, Ex Parte McCardle).

II.Federalism

A.Necessary and Proper

  • Congress may enact laws that are “necessary and proper” to carry out its (delegated) powers so long as they are within the scope of the Constitution. (See, McColloch v. Maryland)
  • Congress may enact laws that are rationally related to its enumerated powers (1) extension of long-standing policy, statute-accounting for state interests, and narrowly tailored to only address the legitimate federal interest. (U.S. v. Comstock)

B.The Commerce Power

  • Definition: Congress has power to regulate “commerce among the several states” which has come to mean interstate commerce. However, the commerce power provides the basis for congressional regulation even of local intrastate activities.

1.Early History

  • Commerce: The traffic of buying and selling goods, the interchange of commodities, shipping and all commercial transactions based on a textual and originalist understanding of Const. (Gibbons v. Ogden)
  • “among the several states”: Among means “intermingled with” thus commerce that concerns more than one state. (Gibbons v. Ogden)
  • Regulate: Congressional authority to do whatever it wants within its spheres of power. (Gibbons v. Ogden)
  • A formal view of the Commerce Clause:Congress has power only to regulate commerce narrowly defined, and not the effects of local activity on interstate commerce (U.S. v. E.C. Knight Co., bad law).
  • Effects test:Congress has the authority to regulate intrastate matters that have such a “close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance” (Shreveport Rate Case)
  • Social Regulation & The Commerce Clause: The Court originally made distinction between allowing Congress power to regulate interstate shipment of goods when its motive was to enforce its own social and moral view (Champion v. Ames) and that Congress cannot regulate even interstate commerce if the effect of that regulation is to control intrastate activity (Hamer v. Dagenhart, bad law overturned by Darby).
  • Direct & Indirect Effects: Congress has power to regulate only an intrastate activity’s direct effects on interstate commerce. (Carter v. Carter Coal Co., limited by Darby)

2.Later History (The New Deal & Beyond: An Expansive View)

  • Substantial impact: “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to [regulate them]” (NLRB v. Jones & Laughlin Steel Corp.)
  • Overturning Hamer& limiting Carter Coal: Congress may regulate not only interstate commerce itself, but also “those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to a legitimate end.” (U.S. v. Darby)
  • The Aggregation Principle: The effect of activity which wouldn’t have any discernable impact on its own should be “taken together with that of many others similarly situated” to see if it has a substantial impact on interstate commerce and is thus under Congress’ authority to regulate. (Wickard v. Filburn)
  • The Rational Basis Test: Does Congress have a rational basis for concluding that the regulated conduct, whether viewed alone or in the aggregate, has a substantial effect on interstate commerce? Note: Courts tend to defer to congressional judgment (see, Wickard v. Filburn)
  • Social Regulation & The Commerce Clause: Racial discrimination in the aggregate (whether a small restaurant or a motel housing interstate travelers) has a significant impact on interstate commerce and therefore Congress has a rational basis for regulating it. (Heart of Atlanta MotelKatzenbach)

3.The Modern Test

  • Channels of Interstate Commerce:Local activities (intrastate commerce) can be regulated if they are part of the “stream” of interstate commerce. (U.S. v. Lopez, citing Darby; Heart of Atlanta Motel)
  • Instrumentalities of Commerce (or persons or things in interstate commerce):Congress’ power to regulate and protect interstate commerce extends even to local activities that threaten the instrumentalities of interstate commerce. (U.S. v. Lopez citing Shreveport Rate Case)

(NOTE: If the regulated activity falls in the channels of interstate commerce or is an instrumentality of commerce, then it doesn’t NEED to have a substantial effect to fall under Congressional control, but it can still be discussed for analysis)

  • The Affectation Doctrine:Under the N&P clause, Congress can regulate intrastate activities if it can rationally conclude that such activity has a substantial effect on interstate commerce.
  • Four factors to determine whether an activity substantially affects interstate commerce:
  • Economic Acitivity: Congress has authority to regulate local activity on the theory that, in the aggregate, it substantially affects interstate commerce only if the activity is “economic” in nature. (U.S. v. Lopez, limits Wickard’s aggregate principle to only apply when the activity is economicsee also, U.S. v. Morrison)
  • EXCEPTION: “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” (Gonzalez v. Raich)
  • Jurisdictional Element: Whether the object sought to be regulated had moved in interstate commerce, ensures through case by case inquiry that the activity in question affects interstate commerce Does the statute contain explicit language tying the regulated activity to interstate commerce (U.S. v. Lopez)
  • Congressional findings of an Economic Link: While Congress is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce, to the extent that it does must show a substantial effect. (U.S. v. Lopez)
  • How attenuated is the link between the regulated activity and interstate commerce? The Constitution creates Congress as a body with enumerated powers, the Court cannot allow for regulation of such attenuated activity as to give Congress limitless power. (U.S. v. Lopez, see also U.S. v. Morrison)
  • As-Applied v. Facial Challenges: An “as-applied” challenge is an argument that the law was unconstitutional as it applied to the specific conduct (see, Gonzalez v. Raich). An “on its face” challenge argues that the statute was unconstitutional in its entirety (see, U.S. v. Lopez). Generally, it is easier to win on an as-applied challenge than a facial challenge, but considering the decisions above it may be easier in Commerce Clause cases to prevail on a facial issue—at least if Congress has not created a comprehensive regulatory scheme.

4.The Modern Test, Part II

  • Creating Commerce: Congress only has the power to regulate existing commerce under the Commerce Clause, but not to create commerce to regulate. If Congress could create commerce, there power would be unlimited in compelling individuals and thus cannot exist with dual sovereignty. (National Federation of Independent Business v. Sebelius- OBAMACARE case)

C.The Tenth Amendment

  • “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
  • “[D]istinguishing encouragement from Coercion”: Congress cannot constitutionally command states to regulate or to enforce a federal regulatory program, since this would undermine political accountability and dual sovereignty. In such cases, there is no judicial balancing of national and state interests. But Congress can require states to regulate or face preemption by a federal program. (New York v. U.S.)
  • Commandeering State Officials: The historical understanding of the Constitution (from the early Congresses) “suggests an assumed absence” of the power to force state officials to execute Federal law (distinguished from judges). The structure of the Constitution’s “dual sovereignty” upon which Federalism is built does not allow the states to be treated as subdivisions of the federal government that can be regulated by Congress. Precedent in New York v. U.S. supports this argument. (Printz v. U.S.)

D.The Taxing Power

  • “The Congress shall have power to lay and collect tax, duties, imposts and excises to pay debts and provide for the common defense and promote the general welfare.”
  • The Scope of the Taxing Power: Congress has the fiscal power to create taxes as a revenue-raising measure with an incidental motive to regulate. However, this is not a regulatory power and “penalties” may not be imposed in the guise of taxes. (See, Child Labor Tax Case)
  • Doctrine of Objective Constitutionality: Courts today tend to accept any tax as a fiscal measure if, on its face, it is a revenue producing measure. (U.S. v. Kahrigereffectively overruling the “penalties found in Child Labor)
  • Functionality Test: A penalty is a punishment for unlawful behavior. Thus, if the statute at hand does not suggest an act is either lawful or unlawful, it functionally acts as a tax. (National Federation of Independent Business v. Sebelius- OBAMACARE case)

E.The Spending Power

  • “The Congress shall have power to lay and collect tax, duties, imposts and excises to pay debts and provide for the common defense and promote the general welfare.”
  • The General Welfare Clause: Congress is permitted to spend for the general welfare even if Congress could not achieve its desired objective pursuant to its other enumerated powers. Thus, Congress’ power to spend is an independent fiscal power not limited to the regulatory powers of Art. I, §8. (Hamiltonian View; see U.S. v. Butler)
  • Adam’s View (Broad): The General Welfare Clause grants authority that is separate from the preceding provision that confers the power to tax—in effect, to read, “Congress shall have the Power To… provide for the common Defence and general Welfare of the United States.” This would allow Congress to pass virtually any regulation, making limits on Congress’ other powers would be irrelevant thus destroying dual sovereignty and functional aspects of our Constitution. (see, U.S. v. Butler, not correct interpretation)
  • Madison’s View (Narrow): The General Welfare Clause could be read as a shorthand reference to the enumerated powers that follow in Article I, §8, meaning that Congress would have power to tax or spend only when it is acting legitimately pursuant to one of its other enumerated powers. (see, U.S. v. Butler)
  • The Limits on the Spending Power:
  • (1) Congress must act in pursuit of the general welfare(2) Any conditions on the states’ receipt of federal funds must be imposed unambiguously; (3) The conditions imposed on the receipt of funds must be germane to the purposes for which Congress approved the grant; (4) The condition cannot require action that would violate some other constitutional provision; (5) Congress cannot offer the states financial inducements that amount to coercion. (South Dakota v. Dole; see also, National Federation of Independent Business v. Sebelius- OBAMACARE case RE: COERCION, 20% is too much)
  • Congress may impose any reasonable conditions for participation in federal spending programs even if this induces states to conform to federal standards. The courts defer to Congress’ judgment of reasonableness.
  • The Tenth Amendment is not likely to be a barrier to congressional spending so long as the states remain free to reject the federal grant and its conditions.

F.The Dormant Commerce Clause

  • The Dormant Commerce Clause, as interpreted by the courts, limits state power to enact regulations affecting interstate commerce. States may not discriminate against interstate commerce absent substantial justification. Nor may states place unreasonable burdens on interstate commerce.

1.Facial Discrimination: A state law that purposefully discriminates against interstate commerce, e.g., by restricting imports thus protecting local producers from external competition or limiting exports thus preserving goods for local consumers is virtually per se invalid.

  • In order to overcome the strict scrutiny placed on facially discriminatory statutes that presumes unconstitutionality it must (1) narrowly serve a compelling state interest [typically dangerous or unwanted items: quarantine laws, baitfish, diseased cattle]; (2) AND it cannot be overcome by nondiscriminatory means. (Dean Milk Co.; Hughes v. Oklahoma; City of Philadelphia v. New Jersey)

2.Intent and Effect

  • Facially Neutral BUT Discriminatory Intent or Effect: A state law (under strict scrutiny) that does not directly treat out-of-state interests differently from in-state interests has the potential to create effects on commerce outside the borders of the state imposing the regulation is invalid. (Kassel v. Consolidated Freightways)

3.Undue Burdens—balancing:

  • In determining if a nondiscriminatory state regulation of interstate commerce is valid, the courts balance the local interests in maintaining the law which cannot be solely economic in nature against the burden on interstate commerce. (Southern Pacific v. Arizona)
  • Jurisprudence concerns: Some members of the Court reject the Intent & Balancing extensions of the dormant commerce clause because of institutional competence concerns arguing that these extensions“compel [the court] to function more as legislators than as judges” in making “policy-laden decisions” (Thomas’ dissent w/ Scalia and Chief Justice Rehnquist Camps Newfound/Owatonna, Inc. v. Town of Harrison).

4.Exceptions

  • Market Participation Doctrine: When the state acts, not as a regulator, but as a private business, buying or selling goods or services in the market place, the Dormant Commerce Clause doctrine doesn’t apply. Even state discrimination in favor of its own citizens is permissible.
  • Dangers of the Market-Participant Exception: “Unless the ‘market’ is relatively narrowly defined, the [market-participant exception] has the potential of swallowing up the rule that States may not impose substantial burdens on interstate commerce even if they act with the permissible state purpose of fostering local industry.” (South-Central Timber v. Alaska, plurality)
  • Congressional Consent: Congress may authorize states to enact laws that would otherwise violate the Dormant Commerce Clause because the Dormant Commerce Clause is a quasi-constitutional doctrine—it is there to preserve an area for the federal government, thus the federal government (Congress) can limit it.

III.Separation of Powers

A.Executive Power over Domestic Affairs