CONSTITUTIONAL LAW – Bergin Fall ‘03
1. Federal courts may only exercise jurisdiction permitted under
Article III of the Constitution
Article III Sect 2: Federal Judicial Powers
a) cases arising under constitution or laws of US, treaties
(fed ?)
b) ambassadors, ministers, consuls
c) admiralty, maritime
d) cases b/w 2 or more states
e) cases b/w citizens of different states
f) cases b/w a state or its citizen and a foreign country or
foreign citizen
2. Martin v. Hunter's Lessee: SC has authority to review
decisions of state courts only to extent that the decision was based on federal
law. Even if federal law is involved in a case by a state court, if the state
court decision is based on state law that is adequate for the decision and
independent of federal law, the Supreme Court lacks power to review the case
3. Marbury v. Madison: SC has authority and duty to declare
a congressional statute unconstitutional.
4. Sources of Judicial Power:
a. McCulloch v. Maryland: ( state tried to tax a federal
bank for operation in the state) The states have no power to burden the
operation of federal laws designed to execute powers vested in the federal
gov’t by the constitution.
* Necessary and Proper
Clause: the ends are enumerated in the constitution and the means necessary to
achieve those ends must be permitted,
- allows for a federal bank as a means to carry out tax and spend power.
- Purposes of Case and
Controversy :
i.
reduces friction b/w the branches produced by judicial review
ii. ensures that constitutional issues will be resolved in context
of concrete disputes rather than hypos
iii. Constitutional decisions are rendered on those actually injured
rather than those who want to impose their own public policy on gov’t
1. no advisory opinions – judicial review cannot be exercised in
the abstract. Decision must end a real
dispute between parties. The Dept.
of Justice can issue advisory opinions for the executive b/c the Dept.
of Justice is part of the executive and therefore isn’t overstepping it’s
bounds.
2. Standing
= status of being
qualified to assert legal rights in ct b/c plaintiff has a sufficient stake in
the controversy
a. Allen v. Wright: Parents of black students sue IRS
for giving tax exemption to racist private schools.
Rule: Standing requires a P to allege a personal injury,
fairly traceable to D's unlawful conduct, and likely to be redressed by the
requested relief.
b. Elements of Standing: (Art III now requires)
i. injury in fact= an invasion of legally
protected interest which is concrete, particularized, actual, or imminent
Requires P’s Injury to
1) arguably be w/in zone of interests
protected by statutory or
constitutional
provision at issue
2) be particular, not shared by all or almost all citizens (
not too generalized)
ii. caused by the action
complained of ( action of D must be but for cause)
- injury suffered
must be fairly traceable to challenged action of D and not
result of independent 3rd party not before the court
iii. that is redressble by the court
c.
Nexus Requirement (Lujan):
P must Show:
1) allegedly unlawful conduct has caused his
or her injury in fact
2) injury is likely to be redressed by
favorable decision
- nexus requirement not imposed outside of taxpayer context
d. Policies/Functions of
Standing:
i.
Ensure courts will decide cases that are concrete rather than abstract
or hypothetical
ii.
Promote judicial restraint by limiting occasions for judicial
intervention into the political process
iii.
Ensure that decisions will be made for those directly affected rather
than bystanders with ideological interests
iv.
Important because of SOP system, ct can’t hear cases simply b/c they
want to, require a concrete stake thus giving the exec and leg breathing room
e. Lujan v. Defenders of
Wildlife: Congressional statutes cannot confer standing to P’s who suffered
no actual injury in fact.
-In suits against the government the concrete injury requirement
must remain
***Congress cannot interfere with constitutional standing
requirements.
f.
Standing for 3rd Parties Rights: Sierra Club v. Morton:
a P must have personally suffered an injury to have standing, and may not base
his claim on injuries to third parties
g. Association has standing on
behalf of its members if:
1) members would have
standing on their own
2) interest
organization is trying to protect is germane to assoc purpose
3) neither the claim
nor the relief requires member participation
3. Jurisdiction of SC
a. Routes to the SC are appeal and certiorari. Appellate (mandatory) jx was abandoned in
1988. Cert jx is discretionary, often exercised to resolve conflicts among
courts
b. Ct lacks jx to hear appeals from cases decided on adequate and
independent state grounds
C. Political Question ( SOP
Problems)
1. Area where legislature that does not have law in place, judicial
branch would be creating policy and overstepping into legislative power (separation
of powers) (Marbury v. Madison)
-3 Possible categories Brennan refers to as political
question areas:(topics reviewed in previous political question cases)
a. foreign relations
b. duration of hostilities
c. validity of
enactments
2.
Baker v. Carr: Constitutionality of legislative
apportionment schemes is not a political question.
Re-apportionment issues present justiciable
questions – (Baker v. Carr)
1. Constitutionally assigned duty or power to a branch of
govt*
Ex: Impeachment assigned to legislature so not
justiciable
2.
No judicial discoverable and manageable standards for resolving the issue
3. If
ct must decide policy Q better left to leg. or executive
4. Ct can’t undertake
resolution w/o expressing lack of respect to other branches of govt
5. Unusual need for
adherence to a political decision already made
6. The potential embarrassment of various
pronouncements on a single issue from different branches
***You only need one to make
it a political question; not a checklist.
3.
Seeking protection of a political right does not mean it is a political
question
4.
Davis v. Bandemer: Claims of unconstitutional gerrymandering are justiciable b/c there
was a judicially discernable and manageable standard by which cases could be
decided
5.
Nixon v. US: Fed judge was challenging impeachment trial.
Rule: The adequacy of the
performance of a duty committed to another branch of govt, such as senate’s
duty to try all impeachments, is a non-justiciable political question.
EXAM TIPS for SOP – see if executive order is “making of law”,
could be violation
-
make sure law is “presented” to Pres. or Cong. violation
-
Pres. committal of troops for repel of sudden attack (does not have
power to declare war – 60 day limit)
-
Appointment or firing of federal official (approval by congress)
Congress can only remove by impeachment
c. Purpose of SOP and C&B is 1) division of labor among
branches and 2) prevention of tyranny
1.
Executive Powers – (Article II)
a) Execution of Laws- faithfully executed
b) Commander-In-Chief- directs and leads armed forces but can’t
declare war
c) Treaty and Foreign Affairs- (treaties w/ 2/3 for senate
approval)
d) Appointment of federal officers- cabinet members, federal judges,
and ambassadors
e) Pardons- only for federal offenses
f) Veto- President may veto any law passed by both houses but may
be overridden with a 2-3 majority of the house (no line-item veto)
2.
Legislative- (Art I)
g) Interstate Commerce
h) Taxing and Spending
i) DC- regulate Washington, DC
j) Federal Property- power to regulate and dispose of fed prop
k) War and Defense-can declare war and establish and fund armed
forces
l) Enforcement of Civil War amendments
3.
Judicial ( Art III)-fed judiciary may decide “cases and controversies”
that fall w/in judicial power
4.
Separation Of Powers Problems
a. Youngstown Sheet and Tube v. Sawyer (Steel Seizure Case):
During Korean War, Truman issued an executive order directing his Sec. Of
Commerce to seize mills and operate them under federal direction.
-Seizure struck down b/c unconstitutional exercise of
the lawmaking authority
reserved to Congress.
RULE: President must merely carry out laws,
not make them.
-Presidential powers must come from
either constitution or congress
Presidential Actions Fall w/in 3 categories:
- Pres action has maximum
force and authority when he acts pursuant to an
expressed or implied authority by congress
- When Congress is silent
(absent of either congressional grant or denial of authority), constitution grants president certain
powers to act independently or
concurrently w congress= “twilight zone” – invites
pres action
- Pres power lowest when he
acts contrary to the will of congress, expressed
or implied (pres constitutional power
less congress constitutional power)
b. Dames and Moore v. Regan (Sec. Of Treasury): Pres ordered
dismissal of pending litigation against Iran in US courts and forced claims to
go to arbitration pursuant to an exec. agreement.
RULE: An executive agreement has
the same force and effect as a treaty and can alter the rights of US citizens.
-Pres has power where such
settlement or suspension is necessary and incident to the resolution of a major
foreign policy dispute and congress has acquiesced in that type of presidential
action, the action will be deemed w/in pres’s constitutional authority
-Majority uses 3 categories
of pres action mentioned in Youngstown concurrence.
5. Domestic Affairs
a.
US v. Nixon: Nixon refused to turn over
tape recordings and documents which were subpoenaed in the course of the
Watergate investigation.
RULE: Where the claim of
privilege is general, and not related to a particular need to protect military,
diplomatic, or sensitive national security secrets, the pres has a qualified
privilege.
- Apply Balance Test: need for candor v. countervailing public
policy
- Constitution does not
create presidential immunity from judicial process.
b. INS v. Chadha: Legislation authorizing congress to act
alone is unconstitutional as a violation of a separation of powers, if exercise
of legislative power is involved and it does not fall within one of the
exceptions stated in the constitution. The bill must be presented to the
president for signature or veto and there must be bicameral approval.
RULE: Legislation allowing for a one house legislative veto is unconstitutional.
- Legislative Function alters rights, duties, and
legal status
- Legislation requires both
1) bicameral approval 2) presidential assent
c. Bowsher v. Synar: (Congress delegated comptroller in
charge of disbursement of funds) Congress may not reserve to itself the power
to remove executive officers. It is a violation of SOP for executive functions
to be performed by one over whom Congress has power of removal, since the
person really is an agent of congress.
- Congress could control
execution of its enactment of legislation indirectly by passing new
legislation.
- Removal by congress is
constitutional only if by impeachment.
RULE: Congress cannot vest
executive function into a legislative officer.
d. Morrison v. Olson:
Legislation authorizing the Atty. Gen. to request appointment of
independent counsel did not violate SOP b/c congress may limit the Pres’s right
to appoint lower level officials despite the Constitution’s Appointment Cl (Art
II Sec 2).
RULE: President has power to appoint top or
principal level officers, congress has power to appoint inferior officers.
-To determine PRINCIPAL V.
INFERIOR, turns on how much independence the officer will possess, how far
reaching, his duties are, and latitude of discretion the officer possesses.
6. Foreign Affairs
a.
US v. Curtiss- Wright Corp.: It is not
an unconstitutional delegation of congress’s lawmaking power to give pres the
authority to prohibit the sale of arms to a foreign nation engaged in conflict.
RULE: Congress may delegate to the pres a broader
array of lawmaking powers when foreign affairs are involved.
- In foreign affairs pres
must have some freedom of discretion and freedom from statutory restriction to
properly maintain FA.
- During war it is the
President, not Congress, who has a better opportunity, as the one who speaks
and listens as the representative of the nation, of knowing the conditions that
prevail in foreign nations.
- The President is the sole
organ of the federal government in the field of international relations, and
therefore, we must not condemn the legislation at issue before us by imposing a
general rule, that effect of which would conclude that an unlawful delegation
of legislative power to the President occurred.
- The government’s powers
concerning foreign affairs are not limited to the grants of power enumerated in
the Constitution
a. Resolution-
Important
Info:
- In 1974, Congress enacted
the war powers resolution which limited the President’s authority as commander
in chief, required the President to consult with and report to Congress
concerning military actions, and allowed Congress to terminate military actions
within a certain time.
- Some argue that it is an
unconstitutional infringement of the powers of the President, especially with
his ability to repel sudden attack.
- Does not affect short term
military action of 60 days or less.
- Constitution gives pres limitless power as Commander-in Chief and War Powers Resolution cannot take away anything given by constitution.
1. Article IV provides that federal statutory and constitutional
law is supreme and binds the states, regardless of anything to the contrary in
a state’s common, statutory, or constitutional law.
2. Preemption – federal statutory law displaces state statutory or
constitutional law whenever Congress so intends. Congress may expressly state its intention to
displace state law, or such intention may be inferred from the federal
legislation. That intention is inferred
when there is an actual conflict between federal and state law, or when the
nature and extent of the federal law implies congressional intent to occupy the
field exclusively.
1. Article I, Sec. 8 – gives Congress the power to use all
necessary and proper means to execute the powers of the federal
government. Courts defer to Congress’s
judgment of the necessity and propriety of the means it selects. So long as the means employed by Congress are
rationally related to an enumerated power of the federal government the
courts will not invalidate the legislation as unnecessary or improper
a. this clause is not a separate and independent source of
authority for congressional action. It
serves only to permit Congress to use any rational means to implement some
other authorized power.
b. incorporation of the Bank of the United States was deemed necessary and proper to the fiscal operations of the federal government (McCulloch v. Maryland)
1. Article I, Sec. 8 – gives Congress the power to regulate
interstate, foreign, and Indian commerce
2. Commerce Clause Functions: 1) Source of congressional authority
and 2) it acts implicitly as a limit on the state legislative power.
a. Gibbons v.
Ogden: Commerce power is plenary ( like all others vested by constitution)
and may be exercised to its utmost extent w/ no limitations other than those
prescribed in the constitution.
- States can’t regulate
interstate commerce.
- The federal govt has power
to regulate all of the external concerns of the nation and those internal
concerns of the states generally.
Commerce: is more than just buying and selling of
goods, includes navigation and any other form of commercial intercourse among
states
Among: states internal concerns that affect other
states falls w/in definition of "among several states"
3. Judicial test for the Scope of the Commerce Power
a. Congress must determine factually that the activity regulated is
actually in commerce or substantially affects commerce
1) In commerce – if the activity is an “instrumentality” or channel
of commerce, or if it involves the interstate movement of any article that is
the subject of market exchange
2) Substantially affect – Congress must make factual finding of
substantial affect. If it regulates
purely intrastate and noncommercial activities, the courts will not defer to
Congressional findings but will review the issue independently
i. Wickard v. Filburn: (farmer grows wheat) An activity
that is local , but has a substantial influence on interstate commerce by
reason of its aggregation with similar or other local activities throughout the
nation, may be regulated pursuant to the commerce cl.
b. Rational judgment – rational basis to believe the activity is in
commerce or substantially affects commerce
c. Reasonable means – means must be reasonably related to
its regulatory objective
History of Judicial
Approaches to CC
4. Direct Effects Test: Manufacturing is not considered
commerce (United States v. E.C. Knight Co.)
a. production of an article intended for export to another state or
country is not commerce.
b. even though it may ultimately affect commerce, suppression of
monopoly is a police power.
5. Realistic Approach: Congress may regulate
instrumentalities of intra-state commerce (RR rates) if their use bears a close
and substantial relation to interstate commerce. [Rate-setting as commerce] (Houston,
East & West Texas Railway v. US)
a. Congress has power to protect interstate commerce from
impediments of local control
b. Disparity in rates depending on origin and
destination in and out of state was substantial enough of an effect on
interstate commerce to warrant regulation
6.
Commerce Clause as Police Power
a. Champion v. Ames: Statute regulating morals was upheld.
RULE: Congress may prohibit the interstate
transportation of any things or commodities that are ordinary subjects of
traffic (lottery tix) and have a recognized value in $$$.
7. New Deal Commerce Clause
a. “Indirect
Affect”: Once a good in interstate commerce is disposed of in the state of
final destination, it is no longer in interstate commerce and thus no longer
subject to the federal commerce power. (A.L.A. Schechter Poultry Corp. v. US)
-Schecter’s wage policies
may affect interstate to lower prices, but the effect was too indirect.
8. Liberal Approach to CC
a. NLRB v. Jones
& Laughlin Steel Co.: (Steel co refused to follow order to
cease-anti-union efforts) Congress’s power to protect interstate commerce is
not limited to transactions that are an essential part of the flow of
interstate commerce. May also encompass purely intrastate activities that
burden, obstruct, or have a substantial effect on interstate commerce.
b. US v. Darby:
Court held that if in the judgment of Congress a local activity substantially
affects interstate commerce it is not for the judiciary to question this
considered judgment.
- motive is irrelevant
9. Limit on Congressional Commerce Power
a. Areas for regulation
1) regulate the use of channels of interstate commerce
2) regulate the instrumentalities of interstate commerce, as well
as persons or things in interstate commerce
3) regulate activities that have a substantial relation to
interstate commerce (substantially affect)
b. Modern Cases:
i. US v. Lopez: (Guns in school)
RULE: Under the commerce clause, congress may legislate only those activities
that implicate: the channels, instrumentalities, or activities w/ substantial
effect on interstate commerce.
- Commercial activity(economic) vs. noncommercial activity
(non-economic): if econ: was there a substantial effect? In non: was there a
bigger econ effect?
ii. Commerce Clause regulation of
intrastate activity is permitted only if that activity is economic in nature (US
v. Morrison)
1. 2/3 Senate approval of Presidential treaties to make supreme law
of the land under supremacy clause.
2. 10th Amendment is not a limit on treaty power
a. pursuant to treaty congress can legislate on matters over which
it would otherwise not have the power
b. power to make treaties is express power; if the treaty is valid,
the statute is equally so, being necessary and proper (Missouri v. Holland)
3. War Power: congress has power to declare war
and make laws necessary to carry out that power
1. Article I, Sec. 8 – power “to lay and collect taxes, duties,
imposts and excises, to pay debts and provide for the common welfare of the US
2. If Congress has the power to regulate the activity taxed, the
tax is valid even though enacted for regulatory purposes.
3. If Congress does not have the power to regulate the activity,
the validity of the tax depends on its validity as a revenue-raising measure.
1. GENERAL WELFARE power of Article I, sec. 8
is connected with the taxing and spending power. This clause can only be invoked when there is
an expenditure of money appropriated by Congress
2. Spending must be for a national concern; however, great
deference is given to the determinations made by Congress in providing for the
“common benefit”
3. Local v. General Welfare (US v. Butler)
a. RULE: Spending power may not be used to purchase compliance in
an area that congress is powerless to command.
b. Congress can’t claim that local conditions create national
concern.
4. Inducement of States (Steward Machine Co. v. Davis)
a. RULE: Congress may use the Spending Power to persuade states to
enact legislation in the area of general social welfare without violating
constitutional provisions.
b. Refer to SD v. Dole below for 4 factors for what is w/in
Spending Power (III E)
5. Spending for the General Welfare – Congressional determination of general welfare and deference by the courts to Congressional findings
1. State immunity from federal regulation
a. 10th Amendment – powers not delegated to the federal
government, nor prohibited to the states, are reserved for the states
b. Valid regulation of states (Garcia v. San Antonio Metropolitan
Transit Authority)
1) Congress can enforce minimum wage and overtime requirements
against local government’s mass transit authority
Rule: If Congress is
regulating something against private entities and the state is participating in
the same activity fed. govt may regulate the state
2) Test for immunity from federal regulation under Commerce Clause
i)<