Constitutional Law I – Guzelian – Spring 2014
I. Judicial Review
A. Marbury v. Madison
1. Supreme court has ultimate authority to declare the constitutionality of a statute or government action.
2. Supreme Court decides legal rights, not the president.
3. Supreme Court has final say whether something is unconstitutional, not the president.
B. STANDARDS OF REVIEW
1. STRICT SCRUTINY: Compelling reason to pass legislation, that is narrowly tailored (necessary) to achieve a legitimate purpose.
2. INTERMEDIATE SCRUTINY: Important reason to pass legislation, that is substantially related to achieve a legitimate purpose.
3. RATIONAL BASIS: (Default) Reason to pass legislation, that is reasonably related to achieve a legitimate purpose
a. Legitimate Purpose does not have to be actual purpose.
II. Powers of the Federal Government
A. Necessary & Proper Clause Article 1§8
1. Congress has the power “to make all 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 State or in any department or officer thereof.”
2. Necessary = “Useful” not essential
3. The Federal Constitution and laws made are supreme.
4. Supremacy Clause exists so states cannot veto a federal act by their sovereignty. (McCullough v. Maryland)
5. If an enumerated power, Congress can your N&P clause as means to accomplish goals.
6. Rational Basis Standard is Applied à Reasonable people can disagree on how Congress uses the power, but as long as Congress is rational, then their power is ok.
7. Enumerated Powers that N&P attaches to:
a. To lay and collect taxes
b. To borrow money
c. To regulate commerce
d. To conduct war, and
e. To raise and support an army and navy
B. Commerce Power: Congress shall have the power to regulate commerce… among the several states and within the Indian tribes.
– Among Several State: 1) Interstate, AND 2) If in-state affects interstate commerce.
1. Historical Developments
a. Early 19th Century
2. Development of the Modern Doctrine (Lopez)
a. 3 Prong Test of Commerce
1) Channels of interstate commerce (Heart of Atlanta): Things that are moving through the states including people or good that have already moved in interstate commerce or that are destined to move in interstate commerce. Thus, Congress can regulate moral or social policy that affects IC.
i. Discrimination on the basis of race affects commerce. (Heart of Atlanta)
2) Instrumentalities, persons, or things in IC, even if the threat comes from purely intrastate activity. (Cars and jurisdictional hooks)
3) Activities with a “substantial relation” to IC.
i. Comprehensive Scheme of Regulation – Congress has the power to regulate under N&P Clause. Congress can regulate intrastate activity if the failure to regulate that class of activities would undercut the regulation of the interstate of the market in that commodity.
1. Wickard: Court held there was only one commodity, wheat, it still founds a comprehensive scheme because it affected the national market v. one state’s market.
2. Raich v. Gonzalez: Court found the Controlled Drug Act affected the manufacturing, distribution, and transportation of drugs, even though the activity was purely local activity.
ii. Economic/Commercial Activity
1. Rational Basis Review probably applies for economic activities, if the activity itself is economic then the regulation itself will almost always be upheld. But non-economic activity cannot be regulated.
2. Economic Activity: “production, distribution, consumption” of a commodity (Raich)
iii. Noneconomic/ Non-Commercial Activity à Strict Scrutiny
1. No protection of “is it rational”
2. Hearings and congressional evidence may be helpful but not sufficient
3. May not use cumulative effective doctrine
4. Traditional state regulation? The court is reluctant about congressional regulation of areas traditionally regulated by the states (e.g. Health, safety, crime, education, and family law)
Commerce Clause Approximate Flow Chart
C. Taxing Power
1. Congress is allowed to tax and raise revenue, even if the amount is only negligible and even if the motive is not to raise revenue, but to regulate activity.
2. A condition on taxing regulation must satisfy several criteria:
a. For the general welfare (Limited view)
b. Raises some revenue (then not a penalty)
c. Cannot violate any other constitutional provision.
3. May be independent of other enumerated powers
4. As long as the tax functions wit regulatory effect the motive and purpose are irrelevant.
D. Spending Power: Congress has the power to spend for the general welfare.
“Do this or you lose federal money” = Spending power issues
For test purposes analyze SD v. Dole
1. A condition in federal spending must satisfy several criteria.
a. Must be for the general welfare of the United State: Court will defer to congress;
b. The condition must be clear and unambiguously stated so states can knowingly assume conditions;
c. The condition must be related to the purpose of the federal spending program; it cannot be coercive.
1) Relationship between funds and condition: Consider Dole which linked highway safety to changing the drinking age to 21. The amount of spending in Dole was 5%. Dole seemed to suggest that the spending was too high might be deemed coercive. Argument may depend upon how much money is actually involved and what effect it will have on the state.
d. The conditions cannot violate any other condition of the federal government.
1) Ex. Making a state give up all their money Sebelius (healthcare) = Coercive. Losing 10% of a certain fund is less coercive.
2. May be independent of enumerated powers.
E. War & Treaty Powers: Other Powers
1. Congress has the power to declare war and remedy its evils even after the cessation of the hostilities.
2. Article 1§8: Congress has the power to declare war, raise and support armies, and to make rules for the government and regulation of the land and navel forces.
a. Article II §2: The President shall be the commander in chief of the army and navy.
3. Power based on international law: Not enumerated in the Constitution; but because the US is a sovereign power and all other sovereign power have this right, we also have this right.
a. Note: Congress cannot regulate commerce with foreign nations.
4. Remedy Effect of War: Established by the N&P clause with the war power. The power continues past cessation of hostilities to remedy effects of war.
a. (Woods): Upheld the act when rent control measure enacted after WWII and just a couple of years after the war officially ended. Ambiguity in how long power extends depends upon 1) Time period; 2) Space (theatre of war); and 3) Connection with war.
b. There is little jurisprudence on power b/c was has not been declared in a long time. War is usually declared through the President’s power as commander in chief or executive power.
c. When broad domestic legislation, there is a danger of Congress’ such far reaching power with regard to war powers as there is less likely to be judicial oversight because under pressure of great national emergency.
5. 10Th Amendment Limits State Powers: No state
ocess of impeachment.
2. Analyze how law is related to independent counsel in Morrison. Is it?
a. If yes, this is acceptable b/c of appointments clauses.
b. If independent, it is clearly apart from the executive branch and Congress cannot limit.
3. No branch of government may aggrandize its authority by usurping power that more appropriately belongs to another branch.
a. Performing the function of another branch: Congress makes the laws, the Executive enforces them, and the Judicial branch decides disputes concerning the laws. In Youngstown (Steel seizure case), the court held that President Truman’s seizure of the steel mills constituted an exercise of legislative power and thus was not permissible.
1) If only Congress can regulate an industry, President can suggest policy, but not order it.
b. Important Facts relevant to Youngstown:
1) Legislature did not authorize the Executive branch to use military force and thus there was no law that existed for President to ensure the law was faithfully executed.
2) The President was not close to the theater of war because the war was no in the “backyard.”
3) President can only act pursuant to the Constitution in 3 ways:
i. With express or implied approval from Congress.
ii. When there is a zone of twilight
1. Congress neither approves or disapproves of a shared power.
iii. When the Congress expressly or impliedly disapproves what the president is doing.
c. Important Facts relevant to Hamdi:
1) Executive branch has limited authority during wartime and the war powers do not five the President a blank check.
2) Necessary for Congress to set a long-term policy for dealing with terrorist action that is not formed in the middle of a crises where the Executive branch might be tempted to give into demands in the short-term and hurt foreign policy in the long run
4. No branch of the government may encroach upon the functions of another branch making it difficult for the other branch to do its job.
a. Exercising Control or Supervision: In Morrison v. Olson, the Executive argued that the restriction of a “good cause” requirement of the independent counsel impinged on the executive’s right to supervise and terminate executive branch officers for any reason. But the court found that was not enough of an encroachment à Must be enough to impeded on the branches ability to do its constitutional duty.
b. Undermining the Authority of Another Branch: In U.S. v Nixon, the court held that an absolute executive privilege would have undermined that judicial branch’s ability to function, while in Clinton v. Jones, the court held that allowing a suit against the president would undermine his ability to function as President.
To determine is a qualified privilege exists, the court must perform in a balancing test, weighing the interest in confidentiality, the need for the executive to have the confidential communication, against the purpose for which is sought (President’s evidence in a criminal trial.)
