Bartholomew Roberts
Member
Just going over my "short" outline on Constitutional Law... I thought it might help some members understand the current teaching on Constitutional Law and it would certainly help me to go over the issues again.
==============================================
1)Should this case be before the court?
a) Political Question – test comes from Baker v. Carr
i) Textually demonstrable constitutional commitment of the issue to a coordinate (Executive, Judicial, Legislative) branch (of the Federal government) OR
ii) Lack of judicially discoverable and manageable standards for resolving it OR
iii) Impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion OR
iv) Impossibility of court undertaking independent resolution without expressing lack of respect due coordinate branches OR
v) An unusual need for unquestioning adherence to a political decision already made OR
vi) Potential of embarrassment from multifarious pronouncements by various departments on one question
b) Standing
i) Constitutional Requirements for standing:
(1) Must show personal injury (actual or threatened) as a result of putatively illegal conduct by D
(2) Injury can be fairly traced to challenged action and
(3) is likely to be redressed by a favorable decision
ii) Prudential limitations imposed by court on itself in addition to above:
(1) P generally must assert his own legal rights or interests, cannot rest claim on rights or interests of third parties
(a) Exception - Association standing - Sometimes assoc. has standing on its own (demanding membership lists of NAACP). Sometimes has standing if harm comes to a member of assoc. and harm comes to a member that is related to purpose of the organization.
(2) Cannot assert a generalized grievance that is pervasively shared and is most appropriately addressed by the legislature
(3) Cannot be a claim outside the zone of interest protected by the relevant statute or constitutional provision
c) Mootness & Ripeness
i) Ripeness – The court will not give an opinion until an injury has occurred
ii) Mootness - The issues involved in the case have been resolved
(1) Court will take cases where injury has been involved if the type of injury is capable of repetition and evading review (example – pregnancy/abortion, issue would be moot before it ever reached court)
2)Does it fall under Congressional restraints on the Supreme Court?
a) Constituional Congressional Powers over court
i) Congress may ordain and create inferior courts
ii) The Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions, and under such regulations as Congress shall make. (Art III Sec. 2)
(1) Congress may not totally strip SCOTUS of powers.See Ex parte McCardle SCOTUS reads these cases very narrowly to avoid Constitutional crisis.
3)What power does SCOTUS have over the States?
i) Martin v. Hunters Lessee – Supreme Court decisions have authority over aspects of state courts - (within Sec. 25 of the judiciary act – whether something is constitutional or has implications on the Constitution)
ii) McCulloch v. Maryland - Marshall states that government derives authority from people not states – states are limited by authority people have delegated to national government
(1) Limits on this implied power? Let the end be legitimate, within the scope of the Constitution; not prohibited, implied from the powers given.
(2) Big bang Theory – undifferentiated mass of people coming together to form a national government (national government is created by and serves the undifferentiated people, not the states)
(3) Structural, textual and Representation reinforcement arguments made to support bank power.
(4) Important limitation on state’s rights suggested - Marshall suggests important limitation on states rights/10th amendment – rights that the state never had (an original right to tax the means employed by the USG for the execution of its powers) cannot be taken away. I.e. if a state never had the right, it still doesn’t have it even though the Tenth Amendment says powers not specified are retained by the states/people
iii) U.S. Term Limits - Majority believes that states have no rights over structure that didn’t exist prior to the creation of the federal government (Big Bang Theory) Majority also believes that federal structure supports their position
(1) Analysis of this decision would suggest that the majority default is to support federal power where Constitution is silent. Dissent default is to states where Constitution is silent (based on analysis of this case and facts alone, no guarantees as to future outcomes, YMMV, etc.)
4)Commerce Clause
a) Proactive – Congress can proactively direct interstate commerce
b) Dormant – States do something that effects interstates commerce and Feds intervene (generally judicially) even though they have no proactive laws addressing the issue.
c) Congressional Power under Commerce Clause after New Deal decisions
i) Congress may regulate local matters that have a substantial effect on interstate commerce - J&L, Darby, Wickard
ii) Congress has to have a rational basis to do so - Darby
iii) Local effects may be aggregated to reach the substantial effects level - Wickard
iv) Congress may regulate items that cross state lines – Darby (older cases too)
v) Congress may regulate the instrumentalities of interstate commerce – Shreveport rates
vi) Congress may regulate items that facilitate commerce – are within the channels of commerce –Heart of Atlanta
vii) Lopez starts distinction between commercial and non-commercial activities
(1) When activity being regulated is local and non-commercial, Congress has a harder test to pass and may not be able to aggregate effects
(2) Lopez has no effect on instrumentalities, interstate transport or channels of commerce (4,5&6 abv)
viii) Gonzales v. Raich
(1) Congress may regulate non-commercial activities as part of a broad regulation of commercial activity if it reasonably believes that failure to regulate these instances would jeopardize success of the overall regulatory scheme
5)State Autonomy Issues
a) Legal reasons for states to reject federal law under 10th and 11th Amendments
i) Commerce clause exceptions outlined earlier, State Autonomy Barrier, Sovereign Immunity
b) State Autonomy Barrier (10th Amendment) – New York v. United States, U.S. v. Printz
i) Congress cannot “commandeer the legislative processes of the state by directly compelling them to enact and enforce a federal regulatory program
(1) However: Congress can use power of the purse to encourage them to enact legislation
ii) Printz v. United States – Plurality Rule: Bright line rule – no commandeering of executive processes by directly compelling them to enact and enforce a federal regulatory program
(1) O’Connor 5th vote: line less bright - Exempts ministerial reporting requirements from state executive officials
c) Sovereign Immunity (11th Amendment)
i) Citizens cannot sue sovereign (feds, state)
ii) Exceptions to sovereign immunity (Hans v. Louisiana)
(1) United States can sue state in federal court because they are sovereign
(2) Another state can sue a state in federal court
(3) Citizen doesn’t sue state as state; but sues state official claiming he acted outside either federal or state law (Ex parte Young fiction)
(a) Doesn’t allow money damages, just injunctive relief
(4) Congress abrogates sovereign immunity specifically in legislation under Art. I §8 or 14th Amendment §5 (underlined portion is change added by Seminole Tribe)
d) FEDERAL PREEMPTION - Congress can expressly preempt all other law (state law) when legislating in a area where it has power under the Constitution
i) Three kinds of preemption
(1) Express
(a) ERISA
(2) Conflict
(a) Turkey preservative – where federal and state laws conflict, federal law governs or when state law is an obstacle to purposes of Congress
(3) Field
(a) Often also express preemption; but not always
(b) Congress has regulated so often in that field it is said to preempt that field of law (immigration, airline routes).
(c) Field preemption can happen even when the laws are not incompatible
6)Separation of Powers Issues
a) Functional approach – looks to see whether encroachment is so significant it must be stopped or whether it is not and function as a working government is more important – usually used
i) Emergency Powers – Dames & Moore, Youngstown
(1) Youngstown introduces functional test in J. Jackson’s conc.
(a) President acts pursuant to express or implied authorization of Congress – wide latitude
(b) President acts in absence of Congressional grant – powers may overlap
(c) President takes measures incompatible with the express or implied will of Congress – “Courts can sustain exclusive presidential control in such a case only by disabling Congress from acting on the subject”
(2) Dames & More – Congress applies Jackson test to case to uphold Iranian settlement
ii) Legislative/Executive Actions – Morrison, Nixon (Executive Privilege), Clinton v. Jones
iii) Time of war – Ex parte Quirin, Hamdi
(1) Hamdi v. Rumsfeld breakdown – not a political question because writ of habeas corpus is textually committed to the judiciary
(a) Four votes for O’Connor (main) opinion – citizens can be detained without FULL due process
(b) One vote (Thomas) – citizens can be detained on process President deems appropriate
(c) Two votes (Scalia & Stevens) – no detention without full due process or suspension of habeas corpus
(d) Two votes – citizens cannot be detained without specific Congressional authority to violate Non-Detention statute (AUMF not specific enough)
iv) Morrison v. Olson
(1) Key to analysis – star on p412 – We simply do not see how the President’s need to control that discretion is so central/core to the President’s power as to require the counsel to be terminable at will by the President
(a) Does not affect core function of executive
(2) Does not usurp executive functions because Congress does not direct or control the counsel.
(3) No judicial usurpation of executive functions because court only appoints, does not direct or control counsel.
v) Nixon – Executive Privilege
(1) No absolute privilege from judicial process; but does recognize presumptive privilege of confidentiality for Presidential comms and President may be able to assert an absolute immunity in foreign relations/national security areas (not decided)
b) Formalistic – looks at functions given under the Constitution and decides whether actions taken violate the functions that branch is supposed to have
i) Legislative/Executive Actions Chadha, Bowsher, Clinton v. New York (line Item veto)
(1) Chadha - Violates Bicameralism – no act of Congress is passed unless both houses agree to it. Violates structural separation of powers even though all branches agreed to it
(a) Very textualist reading
(b) Violates essential Constitutional function of President to protect people from improvident laws by removing his executory power over this law
(2) Bowsher - Comptroller General is removable only by Congress; but carries out executive functions under law. Congress cannot delegate executive powers to itself (Majority regards Comptroller as part of legislative branch)
==============================================
1)Should this case be before the court?
a) Political Question – test comes from Baker v. Carr
i) Textually demonstrable constitutional commitment of the issue to a coordinate (Executive, Judicial, Legislative) branch (of the Federal government) OR
ii) Lack of judicially discoverable and manageable standards for resolving it OR
iii) Impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion OR
iv) Impossibility of court undertaking independent resolution without expressing lack of respect due coordinate branches OR
v) An unusual need for unquestioning adherence to a political decision already made OR
vi) Potential of embarrassment from multifarious pronouncements by various departments on one question
b) Standing
i) Constitutional Requirements for standing:
(1) Must show personal injury (actual or threatened) as a result of putatively illegal conduct by D
(2) Injury can be fairly traced to challenged action and
(3) is likely to be redressed by a favorable decision
ii) Prudential limitations imposed by court on itself in addition to above:
(1) P generally must assert his own legal rights or interests, cannot rest claim on rights or interests of third parties
(a) Exception - Association standing - Sometimes assoc. has standing on its own (demanding membership lists of NAACP). Sometimes has standing if harm comes to a member of assoc. and harm comes to a member that is related to purpose of the organization.
(2) Cannot assert a generalized grievance that is pervasively shared and is most appropriately addressed by the legislature
(3) Cannot be a claim outside the zone of interest protected by the relevant statute or constitutional provision
c) Mootness & Ripeness
i) Ripeness – The court will not give an opinion until an injury has occurred
ii) Mootness - The issues involved in the case have been resolved
(1) Court will take cases where injury has been involved if the type of injury is capable of repetition and evading review (example – pregnancy/abortion, issue would be moot before it ever reached court)
2)Does it fall under Congressional restraints on the Supreme Court?
a) Constituional Congressional Powers over court
i) Congress may ordain and create inferior courts
ii) The Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions, and under such regulations as Congress shall make. (Art III Sec. 2)
(1) Congress may not totally strip SCOTUS of powers.See Ex parte McCardle SCOTUS reads these cases very narrowly to avoid Constitutional crisis.
3)What power does SCOTUS have over the States?
i) Martin v. Hunters Lessee – Supreme Court decisions have authority over aspects of state courts - (within Sec. 25 of the judiciary act – whether something is constitutional or has implications on the Constitution)
ii) McCulloch v. Maryland - Marshall states that government derives authority from people not states – states are limited by authority people have delegated to national government
(1) Limits on this implied power? Let the end be legitimate, within the scope of the Constitution; not prohibited, implied from the powers given.
(2) Big bang Theory – undifferentiated mass of people coming together to form a national government (national government is created by and serves the undifferentiated people, not the states)
(3) Structural, textual and Representation reinforcement arguments made to support bank power.
(4) Important limitation on state’s rights suggested - Marshall suggests important limitation on states rights/10th amendment – rights that the state never had (an original right to tax the means employed by the USG for the execution of its powers) cannot be taken away. I.e. if a state never had the right, it still doesn’t have it even though the Tenth Amendment says powers not specified are retained by the states/people
iii) U.S. Term Limits - Majority believes that states have no rights over structure that didn’t exist prior to the creation of the federal government (Big Bang Theory) Majority also believes that federal structure supports their position
(1) Analysis of this decision would suggest that the majority default is to support federal power where Constitution is silent. Dissent default is to states where Constitution is silent (based on analysis of this case and facts alone, no guarantees as to future outcomes, YMMV, etc.)
4)Commerce Clause
a) Proactive – Congress can proactively direct interstate commerce
b) Dormant – States do something that effects interstates commerce and Feds intervene (generally judicially) even though they have no proactive laws addressing the issue.
c) Congressional Power under Commerce Clause after New Deal decisions
i) Congress may regulate local matters that have a substantial effect on interstate commerce - J&L, Darby, Wickard
ii) Congress has to have a rational basis to do so - Darby
iii) Local effects may be aggregated to reach the substantial effects level - Wickard
iv) Congress may regulate items that cross state lines – Darby (older cases too)
v) Congress may regulate the instrumentalities of interstate commerce – Shreveport rates
vi) Congress may regulate items that facilitate commerce – are within the channels of commerce –Heart of Atlanta
vii) Lopez starts distinction between commercial and non-commercial activities
(1) When activity being regulated is local and non-commercial, Congress has a harder test to pass and may not be able to aggregate effects
(2) Lopez has no effect on instrumentalities, interstate transport or channels of commerce (4,5&6 abv)
viii) Gonzales v. Raich
(1) Congress may regulate non-commercial activities as part of a broad regulation of commercial activity if it reasonably believes that failure to regulate these instances would jeopardize success of the overall regulatory scheme
5)State Autonomy Issues
a) Legal reasons for states to reject federal law under 10th and 11th Amendments
i) Commerce clause exceptions outlined earlier, State Autonomy Barrier, Sovereign Immunity
b) State Autonomy Barrier (10th Amendment) – New York v. United States, U.S. v. Printz
i) Congress cannot “commandeer the legislative processes of the state by directly compelling them to enact and enforce a federal regulatory program
(1) However: Congress can use power of the purse to encourage them to enact legislation
ii) Printz v. United States – Plurality Rule: Bright line rule – no commandeering of executive processes by directly compelling them to enact and enforce a federal regulatory program
(1) O’Connor 5th vote: line less bright - Exempts ministerial reporting requirements from state executive officials
c) Sovereign Immunity (11th Amendment)
i) Citizens cannot sue sovereign (feds, state)
ii) Exceptions to sovereign immunity (Hans v. Louisiana)
(1) United States can sue state in federal court because they are sovereign
(2) Another state can sue a state in federal court
(3) Citizen doesn’t sue state as state; but sues state official claiming he acted outside either federal or state law (Ex parte Young fiction)
(a) Doesn’t allow money damages, just injunctive relief
(4) Congress abrogates sovereign immunity specifically in legislation under Art. I §8 or 14th Amendment §5 (underlined portion is change added by Seminole Tribe)
d) FEDERAL PREEMPTION - Congress can expressly preempt all other law (state law) when legislating in a area where it has power under the Constitution
i) Three kinds of preemption
(1) Express
(a) ERISA
(2) Conflict
(a) Turkey preservative – where federal and state laws conflict, federal law governs or when state law is an obstacle to purposes of Congress
(3) Field
(a) Often also express preemption; but not always
(b) Congress has regulated so often in that field it is said to preempt that field of law (immigration, airline routes).
(c) Field preemption can happen even when the laws are not incompatible
6)Separation of Powers Issues
a) Functional approach – looks to see whether encroachment is so significant it must be stopped or whether it is not and function as a working government is more important – usually used
i) Emergency Powers – Dames & Moore, Youngstown
(1) Youngstown introduces functional test in J. Jackson’s conc.
(a) President acts pursuant to express or implied authorization of Congress – wide latitude
(b) President acts in absence of Congressional grant – powers may overlap
(c) President takes measures incompatible with the express or implied will of Congress – “Courts can sustain exclusive presidential control in such a case only by disabling Congress from acting on the subject”
(2) Dames & More – Congress applies Jackson test to case to uphold Iranian settlement
ii) Legislative/Executive Actions – Morrison, Nixon (Executive Privilege), Clinton v. Jones
iii) Time of war – Ex parte Quirin, Hamdi
(1) Hamdi v. Rumsfeld breakdown – not a political question because writ of habeas corpus is textually committed to the judiciary
(a) Four votes for O’Connor (main) opinion – citizens can be detained without FULL due process
(b) One vote (Thomas) – citizens can be detained on process President deems appropriate
(c) Two votes (Scalia & Stevens) – no detention without full due process or suspension of habeas corpus
(d) Two votes – citizens cannot be detained without specific Congressional authority to violate Non-Detention statute (AUMF not specific enough)
iv) Morrison v. Olson
(1) Key to analysis – star on p412 – We simply do not see how the President’s need to control that discretion is so central/core to the President’s power as to require the counsel to be terminable at will by the President
(a) Does not affect core function of executive
(2) Does not usurp executive functions because Congress does not direct or control the counsel.
(3) No judicial usurpation of executive functions because court only appoints, does not direct or control counsel.
v) Nixon – Executive Privilege
(1) No absolute privilege from judicial process; but does recognize presumptive privilege of confidentiality for Presidential comms and President may be able to assert an absolute immunity in foreign relations/national security areas (not decided)
b) Formalistic – looks at functions given under the Constitution and decides whether actions taken violate the functions that branch is supposed to have
i) Legislative/Executive Actions Chadha, Bowsher, Clinton v. New York (line Item veto)
(1) Chadha - Violates Bicameralism – no act of Congress is passed unless both houses agree to it. Violates structural separation of powers even though all branches agreed to it
(a) Very textualist reading
(b) Violates essential Constitutional function of President to protect people from improvident laws by removing his executory power over this law
(2) Bowsher - Comptroller General is removable only by Congress; but carries out executive functions under law. Congress cannot delegate executive powers to itself (Majority regards Comptroller as part of legislative branch)
