I. Supreme Court’s Authority
A. Marbury v. Madison – Judicial review of Congressional legislation.
1. If the Sprm. Ct. identifies a conflict between a constitutional provision and a congressional statute, the Ct. has the authority and the duty to declare the statute unconstitutional and refuse to enforce it.
a. the people established a government of limited power, so Congress must not be the only reviewer of constitutionality of their own laws, otherwise there is the potential for unlimited power.
b. Art VI states that the constitution is the “supreme law of the land”, and it is the function of the judiciary to say what the law is.
1) Sprm. Ct. is not the exclusive interpreter of the constitution, but they are the ultimate interpreter.
2. Criticisms- not explicitly stated in the constitution that the Sprm. Ct. is the ultimate arbiter.
a. however, since the constitution is silent, it is more practical to have an ultimate arbiter, and that should be the Sprm. Ct. because they can protect the interests of the minority because they are not subject to political pressures.
b. also serves as a way to legitimize government in the eyes of the people by having independent review.
B. Martin v. Hunter’s Lessee – judicial review of state court decisions
1. Sprm. Ct. has power to review the federal questions decided by state courts in order to maintain uniformity and supremacy of federal law.
a. under Art. III, the judicial power extends to “all cases” arising out of federal law, not just those that are originated in federal court.
1). limited to review of federal questions, so if there “clear and plain statement” of “independent and adequate state grounds” for the decision, the court will defer to avoid a 10th amendment conflict or giving “advisory opinions.” See Michigan v. Long
b. the federal gov’t is supreme, the states are not “dual sovereigns”
c. if states were not subject to review, federal law could not be applied uniformly across the nation.
C. Cohens v. Virginia- Sprm. Ct. has power to review state criminal cases, as well as civil cases (Martin dealt only with civil case).
II. Congressional Control of the Federal Court Jurisdiction
A. Ex-Parte McCardle – Art. III, § 2 states that the appellate jurisdiction of the Sprm. Ct. is subject to “such exceptions and conditions as Congress shall make”, thus Congress may limit the appellate jurisdiction (broadest reading).
B. Klien – attempts to control the appellate jurisdiction are unconstitutional if they are not neutral.
1. restricting the appellate jurisdiction is unconstitutional under separation of powers where it is used as a “means to and end” to alter the outcome of a particular case because it would deny the court the judicial function to “say what the law is.”
C. Plaut – even a statute that applies to a whole class of cases is unconstitutional if enacted for an illicit purpose.
1. might even prevent uniformity and supremacy of federal law required under Martin.
D. It is probably easier to limit the lower federal court’s jurisdiction, because Art. III, § 2 gives Congress the express power to eliminate them altogether. “in such lower courts as Congress may from time to time ordain and establish.”
III. Breadth of general federal power
A. McCulloch v. Maryland – breadth of the Congressional power
1. Congress has the “implied power” to enact legislation that, although it is not expressly enumerated in the Const., is “appropriate” and “plainly adapted” to the end of executing an enumerated power, so long as it is not otherwise prohibited by the Const.
a. “necessary and proper” means “helpful and conducive”
b. means-ends analysis of mere rationality – further inquiry to Congressional purpose would be against the separation of powers doctrine.
c. Marshall’s view is Const. may evolve within limits.
IV. The Commerce Power
A. Gibbons v. Ogden – Marshall’s broadest view of commerce power
1. Congress has the complete and exclusive power to regulate interstate commerce, even internally to the states, limited only by the Const.
a. “commerce” defined broadly as “commercial intercourse” (not just buying and selling) which concerns more than one state.
1) thus, “navigation” was part of “commerce.”
b. commerce power is “complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution.”
B. Knight – hostility to economic regulation (manufacture is not commerce)
1. Congress can only regulate activities under the commerce power if they have a “direct” affect on interstate commerce, rather than those that have an “indirect” or “incidental” affect.
a. the 10th amendment reserves the right of police power to the states to regulate local activities that have an “indirect” affect.
1) thus, “manufacture” was not properly controlled by Congress because it only has an “indirect” affect.
2) this case seems to fail its own test, but is an indication of hostility to federal regulation of economics.
C. Shreveport Rate Case – more deference to Congress – “close and substantial economic affect” on interstate commerce.
1. Congress has the power to “protect” and “foster” interstate commerce, thus Congress can regulate completely intrastate matters if they have a “close and substantial” affect on interstate commerce because the “ultimate object” was the protection of interstate commerce.
2. Swift – Congress can also regulate activity that, although they are completely intrastate, and do not have a substantial economic affect on commerce, if the activity is “in” commerce or part of the “current of commerce.”
a. thus, the middlemen who transported meat across the country could be regulated because they were part of the “current of commerce”. Their many transactions, viewed as a whole, represented interstate commerce on a major scale.
D. Wickard v. Filburn – quota on homegrown wheat
1. First standards appear:
a. Congress can regulate any activity, even a local one, if it has a “close and substantial” relationship to or affect on interstate commerce; and
b. Small local effects may be aggregated for purposes of determining “substantial affect.”
1) thus, a farmer’s use of homegrown wheat may be regulated.
E. Darby – two more standards:
1. Congress has control over the channels and facilities of interstate commerce, and can thus regulate “impure goods.
a. 10th amendment is not a limitation on Congressional power to regulate interstate commerce (no dual sovereignty).
2. Congress can regulate totally local activities in order to effectuate its regulation of interstate commerce (bootstrap argument).
a. “motive” or “pretext” is irrelevant as long as the means are “reasonably adapted” to the end of protecting interstate commerce.
1) thus, the criminalization of local employer activity was reasonable means of implementing the prohibition on interstate shipments of “impure goods.”
b. this means that in order to regulate an activity that has a substantial affect on commerce, Congress can regulate any activity which has a substantial affect on Congress’ power to implement its regulation of interstate commerce.
c. ex: Perez – Congress made express findings that organized crime had a “substantial affect” on interstate commerce and that loansharking was a primary source of revenue for organized crime, thus Congress could directly regulate loansharking, even though it was completely local in nature, because it affected Congress’ ability to effectuate regulation of organized crime and thus interstate commerce (no way to tell which loansharks were not related to organized crime, so regulate them all).
F. Commerce Power in Civil Rights cases – the 1964 Civil Rights Act based part of its authority on the commerce clause, banning discrimination in establishments which serve interstate travelers, or which buy or sell food a substantial portion of which “has moved in interstate commerce.”
1. Heart of Atlanta Motel – motel that is on interstate highway and serves interstate travelers may not discriminate.
a. express Congressional findings that the presence of discrimination “displaces” interstate commerce by discouraging blacks to travel in the south, thus it has a substantial affect on interstate commerce.
b. “if it is interstate commerce that feels the pinch, it does not matter how local the operation that applies the squeeze,” indicating that the “moral” purpose behind the law does not invalidate it.
2. Katzenbach v. McClung – Ollies BBQ is not near interstate travelers, but substantial amount of beef it buys moves in interstate commerce.
a. the local business climate suffers from discrimination, deterring investment in the area, thus displacing commerce, and having a substantial affect on commerce.
b. aggregation of the small affects of individual restaurants can be done under Wickard.
c. although there were no Congressional findings, the court would not scrutinize Congress’ motives where a rational relationship existed.
G. The 10th amendment “police power” as an independent limitation on the commerce powe
he rest of the constitution, namely the 9th and 10th amendments, but since it is normally exercised during times of “hasty patriotism,” there is potential for abuse.
b. It probably can not last as long as the effects and consequences of war last because many of them are permanent. (Jackson, concurring in the result).
D. The Treaty and Foreign Affairs Powers
1. Missouri v. Holland – Congress may regulate local activities pursuant to the necessary and proper clause as a means of giving effect to a valid treaty.
a. valid treaties are the “supreme law of the land” (supremacy clause) so they override state interests in the same area. (10th amendment is not a barrier to treaty power)
b. in operation, Congress may pass a valid treaty, and then pass a statute regulating a local activity if it is necessary to give effect to that treaty (similar to bootstrapping argument in Darby).
c. treaties themselves are limited by rest of constitution under Reid v. Covert (a treaty can not confer power on the Congress which is beyond the constitution).
2. Although there is not explicit grant of power to conduct foreign affairs, it is impliedly given to Congress and the President as the most logical holders of the power.
VI. Dormant Commerce Clause
A. Background
1. Gibbons v. Ogden – Marshall stated that the power to regulate interstate commerce is exclusive to the federal government because it is unsharable by its very nature, but decided the case on pre-emption grounds because he found an actual conflict.
2. In Wilson v. Black Bird Creek, Marshall backed away from this approach, conceding that a state’s exercise of its police power was not necessarily invalid if it had an affect on interstate commerce, so long as there was not a direct conflict with federal power.
a. the dam was a valid exercise of state police power because its purpose was to protect health and safety; and
b. it was non-discriminatory in effect – it burdened interstate and intrastate commerce equally.
3. Cooley – The states are free to regulate (under its general police power) those aspects of interstate commerce that were of such a local nature as to require different treatment from state to state, but not those which required uniform national treatment (which only Congress can provide) in the absence of action by Congress.
a. the determinative factor is the “subject” of the regulation (what is being regulated) rather than the “purpose” of the regulation.
b. this standard has been modified by modern courts
** B. Modern Approach:
1. determine if the state law is a substantial burden on interstate commerce;
2. determine the state’s interest in the law;
a. the regulation must pursue a legitimate state end
1) non-discriminatory economics
2) health, safety and welfare
b. the means must be at least “rationally related” to the legitimate state end.
1) economic advantage statutes are put to close scrutiny if there are “less burdensome alternatives” available
2) health and safety finding are given general deference.
3. determine the federal interest in preventing the burden and protecting interstate commerce
4. balance the state and federal interests.
C. Examples of the Modern Approach:
1. South Carolina v. Barnwell – regulation of size of trucks on state highways upheld
a. highway regulations were equal burden on intrastate and interstate commerce, so no discrimination;
b. highways are a local safety concern because they are built by the state
c. rational relationship existed, state findings given deference.
2. Southern Pacific v. Arizona – regulation of length of trains in state was struck down
