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INTRODUCTION
Constitutional Law Methods (1) Text (2) History (3) Structure (4) Precedent (5) Policy What is a constitution?
- Pre-commitment device - rules of limitation to allow productive government
- Constitutive rules - enabling rules, creating institutions, officials "We the People"
- Rules of change - amendment procedure
- Complex set, across time, generations, involving enforcement and significant interpretation Constitution functions to create a set of enabling rules that creates the entity it governs ● Preamble → creates “We the People” ● Article I → creates + empowers the legislature o enumerated powers, protection of rights, limitations on state powers ● Article II → creates + empowers the executive o no specific subject matter ● Article III → creates + empowers the judiciary o extent of powers + subject matter ● Article IV → relations between states o full faith + credit clause ● Article V → amendments o difficult, so instead we interpret the hell out of what we have ● Article VI → supremacy clause o self-declaration that this Constitution is the law of the land ● Article VII → ratification ● Bill of Rights o looks different than original proposal, which focused on containing self interest Articles of Confederation ● Each state retained sovereignty & confederation expressly granted powers Problems o no power to enforce taxes o individual power of the states (allowed them to violate treaties) o no judicial branch or executive o limited maritime jurisdiction o trade wars among states o overlapping laws between states What if you don’t like a Supreme Court decision?
- Amendment
- Appointments
- Impeachment
- Ignore Court
- Pack/Reduce the Court
- Remove Jurisdiction 7. Relitigate
o Ripeness (sued/credible threat) o Mootness (if resolved, moot, exceptions if future similar cases expected) Standing (with multiple challengers, only 1 needed for standing): o Injury In-Fact (NOT a violation of a right) Concrete; Particularized (not widespread); Imminent o Causation (Injury is traceable to the defendant) o Remedy (court action is redressable, change of procedure will mitigative negative outcome of the injury in-fact , NOT legal wrong)
Political Question Doctrine Baker v. Carr (1962) Political question doctrine (one is sufficient to be a Political Question) o Textual Commitment o No Judicial Standards o Prior Non-Judicial Policy Determination o Lack of Respect o Finality o Uniformity/Avoid Embarrassment Cases Facts Holdings Nixon v. United States (1993) Impeached, tried in Senate, delegated to committee Claimed was not legitimately "tried" (1)Textual Commitment (Senate has sole power to try impeachment, no check) ● Sole: full discretion on substance, no judicial limits (2)Finality (Already Impeached, decision decided, unclear if can reseat a judge) Powell v. McCormack (1969) House didn’t seat Powell after allegations of fraud Judiciary says must be seated, 3 requirements to be a representative: (1) Age (2) Citizenship (3) Residency Must follow constitution, question if House claims he is "3-years-old" whether judiciary can interfere Federalism & The Powers of Congress Necessary and Proper (N&P) Clause 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. Article I, Section 8 Enumeration includes "implied powers" (N&P clause) Enumeration presupposes something not enumerated 10 th^ Amendment: "expressly" omitted Deference to Congress on degree of necessity Will step in if in violation of constitution Preemption/Supremacy (suspending/displacing state laws) Federal Government is more than the sum of state governments Power to Tax = Power to Destroy Power to Create = Power to Preserve o States cannot tax Federal Government
intrudes on purely local matters
New Deal A.L.A. Schechter Poultry Corp. v. U.S. (1935) National Industrial Recovery Act enabled Live Poultry Code establishing hours restrictions, minimum wage, labor rights Poultry shipped to N.Y. slaughterhouse by railroad from other states Sold directly to consumers extraordinary conditions do not create or enlarge constitutional power Flow of interstate commerce ceased when chickens came to rest within a state Direct v. Indirect Effects NLRB v. Jones & Laughlin Steel Corp. (1937) NLRA established right to unionize J&L fired employees who sought to organize a union J&L owned manufacturing plants, mines in many states, steamships, jurisdictional element → limited application to manufacturers affecting IC ⇒ “as applied” challenge rejects “manufacturing” + “steam of commerce” tests + attacks “direct/indirect” Gibbons Overthrown (3 Potential Arguments) Post-Gibbons always wrong Movement about purpose of Federal Government, a change in constitutional understanding Jurisprudence Post-Gibbons did not logically make sense (impossible to distinguish direct v indirect) New Commerce Clause Interpretation Cases Facts Holdings Wickard v. Filburn (1942) Agricultural Adjustment Act of 1938 - maximum wheat quotas Farmer exceeded quota BUT wasn't selling outside state Can regulate intrastate activities if they have a substantial effect on interstate commerce Aggregation / Class of Activities – cumulative influence on overall market (price, quantity, demand, supply) Deference to Congress in determining what substantially affects IC Once established as commerce THEN Congress can pretty much regulate it
Taxing and Spending Powers 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 Article I, Section 8 Constitutional Requirements Relates to the common defense and general welfare Must be uniform Tax may not be a criminal fine (if it does CANNOT go to the general treasury) Must originate in the House Hamilton (adopted today): Congress has the power to tax and spend for any purpose that it believed served the general welfare as long as it does not violate another constitutional provision
Taxing and Spending Cases Facts Holdings Bailey v. Drexel Furniture Co. (1922) Child Labor Act placed 10% tax on profits of any company using child labor Naturally and reasonably related to tax collection NOT solely for another purpose United States v. Butler (1936) AAA taxed ag processors and used funds to subsidize farmers to reduce production In service of other enumerated powers or SEPARATE (can be independent of other enumerated powers) No penalty provision extraneous to any tax need Steward Machine Co. v. Davis (1937) Required employers to pay unemployment tax to U.S. treasury Credited 90% if already contributing to state unemployment fund Collective action problem: (prevents race to the bottom) Every tax is in some way regulatory Incentivization is NOT coercion hope of gain is NOT a threat of loss United States v. Kahriger (1953) Revenue Act imposed a tax on gambling & required registration Tax upheld even if negligible revenue Principle interest does NOT need to be raising revenue South Dakota v. Dole (1987) Withhold 5% of federal highway funds for states whose minimum drinking age is less than 21 One area of affirmative, substantively given power to states (21st amendment) Conditional Spending indirectly doing what you cannot do directly 5 Requirements of Conditional Spending : Related to the General Welfare Unambiguous Related to Federal Concern/National Interest No Independent Bar (cannot incentivize unconstitutional activities) No Coercion (extreme pressure = coercion, not ever seen in case) The Budget item that is cut is GERMANE to policy goal National Federation of Individual Mandate: Penalty imposed if you don't get healthcare Penalty can be a tax where: Administrative: $ ⇒ general treasury (IRS code, gov’t collects revenue, Dept.
power to force states to pass laws Printz v. United States (1997) Brady Act: national instant background checks Until federal system established (a few years), local chief law enforcement officer "make reasonable effort" to check purchases of guns Extended Anti-Commandeering Rule to Executive Officials Federal Government cannot commandeer state executive officials to enforce federal law Can only do it for discrete, ministerial actions Even if short-term Constitution allows commandeering of state judges Can still require reports Commandeering = forcing states to affirmatively, coercively restrict their citizens Reno v. Condon (2000) DPPA restricts states' abilities to disclosure driver's personal information, $5k/day penalty General Regulation : regulating states as private entities (not as separate governments) "not state qua state" Regulating state activities Personal Information = Interstate Commerce Prohibiting v. Affirmative Command Congress can also regulate states through Conditional Preemption (but no cases on that) Area Congress can regulate, so Congress can kick states out of regulating in this area, or say states can regulate in this area but only as Congress says it can National Federation of Independent Business v. Sebelius (2012) Facts Individual Mandate o Penalty imposed if you do NOT get healthcare insurance o Purpose: healthcare is special, "cost-shifting" - push younger/healthier people in market to lower premiums Medicaid Expansion Conditional Funding o If states don’t expand Medicaid eligibility lose preexisting funding and the expanded funding Holding Individual Mandate (No holding) Unconstitutional under commerce clause: Congress does not have power to regulate inactivity Medicaid Expansion
Conditional Funding (No Holding) Majority: can condition on present funding/expansion Liberal Dissent: can condition on past and present funding/expansion Conservative Dissent: canNOT condition on any funding/expansion (not severable) Coercive Funding Reasoning: about 10% of states’ revenues Severability (Holding) Congress would have passed this law without unconstitutional provision(s) Foreign Affairs He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur Article II, Section 2 Treaty Power Defined as Procedure (not by substance) – President Negotiates & 2/3rds of Senate Ratifies National Purpose (only substantive limitation, never ruled against this though) Respect Affirmative Limits on Federal Power (Bill of Rights) – Reid v. Covert (1957) Self-Executing Treaties (clear statement sensitive areas) o Immediate domestic effect o Federal & state judges must apply o Later in time rule (re: conflicting statutes) Non-Self Executing Treaties o No Domestic Effect o Congress can pass implementing legislation through N&P Clause to make Self-Executing Congressional-Executive Agreement o Long history (Frankfurter), Highest Authority (Jackson) o COUNTERARGUMENT: unconstitutional (circumvents treaty process- 2/3rds majority) o Self-Executing: power must be found in Congress’ enumerated Section VIII powers
State Regulation & The Dormant Commerce Clause States should NOT be acting in an area reserved to Federal Government (violates Federalism, Preemption) Congress can authorize States to economically discriminate (ex: New York v. United States) Protectionism: Economic Discrimination with the purpose/effect of favoring local industry Purpose: unity, economic efficiency, representation reinforcement of out-of-state interests (but goes against constitution’s principles of particular representation) Cases Facts Holdings City of Philadelphia v. New Jersey (1978) NJ law prohibits importation of waste collected out of state (facially discriminatory) Asking whether this is protectionist Could you have done this a lot easier? Balancing to question the motives Three Part Motivation/Purpose Test (consider all together through lens of protectionism) - o legitimate local concern o out-of-state burden o least restrictive means (purpose could not be achieved not discriminatorily) Do NOT need to consider effects on other states if purpose is NOT protectionist If effect is incidental NOT protectionist Maine v. Taylor (1986) Banned imported baitfish to protect natural ecosystem Legitimate local concern, out-of-state burden, least restrictive means Hunt v. Washington State Apple Advertising Commission (1977) NC required apples using U.S. grade or no grade for apples imported, purpose = prevent fraud Washington had higher grading system, costly to change practice to ship to NC Facially neutral rule can still be discriminatory Discriminates against Washington apples NOT legitimate local concern o Protecting against fraud a façade Out-of-State Burdens o Raises cost, removes economic advantage of Washington apples NOT least restrictive means o Could've carved out exception for higher graded apples Market Participation Doctrine (Exception) Halberstam Argument: natural state monopoly counts for MPD but NOT a state mandated monopoly Hughes v. Alexandria Scrap Corp Market-Participant Doctrine
Reeves, Inc. v Stake (1980) States can discriminate as players, not as regulators State owned industry OR State as purchaser South Central Timber Development v. Wunnicke (1984) Alaska required purchasers of state produced timber to process it within the state before being shipped out (Ruled Unconstitutional) Cannot Impose: Downstream conditions (within state) Substantial regulatory effect outside of state
state courts giving effect to the treaty Unprecedent action (fails gloss of history) of president giving directive to state courts American Insurance Association v. Garamendi (2003) CA enacted statute to assist Holocaust victims & descendants collect from insurers Sole EA binding on states because (a) Twilight Zone and (b) 200-years history ( claim settlement ) Reasoning: Uniformity in Foreign Affairs Article I, Section 10 States cannot enter International Agreement President, Congress, and the Administrative State Bureaucracy Expertise & Efficiency Political Accountability Congressional Checks Budget Set Standards Appropriations Rider Notice and Wait Impeach Political/Popular Pressure (notice and comment rulemaking) Sunset Provision Kill the: Rule/Authority/ Agency Supremacy Clause Article VI, Section 2 of the Constitution provides federal laws “shall be the supreme law of the land.” Preempts conflicting state law, applies to all United States citizens Congress can always investigate and inform Separation of Powers: (1) follow specific rules set forth in constitution, (2) no self-aggrandizement, (3) no undermining other branch’s ability to carry out constitutionally assigned functions. Appointments [President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Article II, Section II
[President] shall take Care that the Laws be faithfully executed Article II, Section III Constitutional Arguments Text: President shall nominate (Principal) Officers of the United States (w/ advice and consent of the Senate) Congress can vest appointments of Inferior Officers to President, Head of Departments, Lower Courts Take Care Clause Separation of Powers: Congress can NOT appoint Inferior Officers = Self- Aggrandizement Principal v. Inferior Officer (if no one between the officer and the President) Counterargument to Constraints Unitary Executive Theory: the entire executive power is vested in the President
