IDEOLOGY ALIGNMENTS
Fed: believes in state sovereignty (dual-sovereignty) some areas that are carved out for state control and some for federal control
Libertarian: believes the government is a necessary evil for very limited purposes, like international defenses & police power. Very protective of individual rights.
Nationalist: Federal government needs to retain power
Strict construct: look at the language and even if we’re pretty sure that they intended something else, we start and maybe even end with the language. Don’t take into account anything else.
Broad: read notions into the test of the constitution.
Evolutionists: Think what the framers would think if we grabbed them and brought them into this time period, would they have thought the statute was constitutional. Organic view of constitution as an adapting thing.
Orig: what did the framers believe at the time the it was drafted.
Pro-Business: Like if its making money
Pro-regulatory: like the rules and regulations
JUDICIAL REVIEW(Marbury p.2/ p.3)
Article III – The Judicial Branch
Section 1 – Judicial powers
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Section 2 – Trial by Jury, Original Jurisdiction, Jury Trials
(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
POLITICAL QUESTIONS
Baker (p.103/p.21)
Powell (p.116/p.23)
Issues involving: 1) a history of the issue’s managementby another governmental branch; 2) a lack of judicially manageable standards for resolving it; 3) the impossibility of deciding the case without an initial policy determination calling for nonjudicial discretion; 4) the impossibility of resolving it without expressing lack of respect due other government branches; 5) an unusual need for unquestioning adherence to a political decision already made; or 6) the potentiality of embarrassment from a variety of announcements by different governmental departments on one question. (Baker v. Carr) The primary reason that political questions have been held to be nonjusticiable is the separation of powers. (Baker) An issue is not deemed justiciable merely because it involves a political issue.
An analysis of any case held to involve a political question will reveal:
1) a history of the issue’s management by another governmental branch;
2) a lack of judicially manageable standards for resolving it;
3) the impossibility of deciding the case without an initial policy determination calling for nonjudicial discretion;
4) the impossibility of resolving it without expressing lack of respect due other government branches;
5) an unusual need for unquestioning adherence to a political decision already made; or
6) the potentiality of embarrassment from a variety of announcements by different governmental departments on one question.
3 most important places political question has been applied:
1. Challenges to restrictions on Congressional membership [political doctrine question was denied]
2. Challenges to the President’s conduct of foreign policy
3. Challenges to the impeachment process
NECESSARY AND PROPER McCulloch (p.129/p.30)
Must be combined with something else
Article 1, §8 – Powers of Congress
WHAT ROLE SHOULD CONCERN OVER PROTECTING STATES HAVE IN DEFINING CONGRESS’S POWERS?
Justifications for protecting states from federal intrusion:
· The division of power vertically between federal and state governments, lessens the chance of federal tyranny.
· States are closer to the people and thus more likely to be responsive to public needs and concerns.
· States can serve as laboratories for experimentation. [To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment might be fraught with serious consequences to the Nation.]
SHOULD IT BE THE ROLE OF THE JUDICIARY TO ENFORCE THE 10TH AMENDMENT AND PROTECT STATE SOVERIGNTY OR WHETHER THIS IS AN ISSUE OF FEDERALISM AS A LIMIT ON CONGRESS IS UNNECESSARY BECAUSE THE POLITICAL PROCESS WILL ADEQUATELY PROTECT STATE GOVERNMENT INTERESTS.
The terms necessary and proper have been interpreted to mean that if the end for which Congress legislation is legitimate, within the scope of the Constitution, then “all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Consitution are constitutional. Congress may use “reasonable means for achieving its delegated powers. [Court has adopted a deferential approach allowing Congress to use any legislative means rationally related to its granted powers].
COMMERCE CLAUSE
Article 1, §8, clause 3: Congress shall have the Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
4 ERAS OF COMMERCE CLAUSE JURISPRUDENCE
· Early American History until 1890’s: broadly defined, but minimally used
· Gibbons (p.142/p.32) “among means intermingled with”
· 1890-1937: narrowly defined & used 10th amendment as a limitation& applied a restrictive conception of what is among the states.
o E.C. Knight(p.146/p.33): Commerce succeeds to manufacture, and is not apart of it. The power to regulatre commerce is the power to prescribe the rule by which commerce shall be governed, and is a power independent of the power to suppress monopoly.
o Carter Coal(p.147/p.34): Commerce is the equivalent of the phrase “intercourse for the purpose of trade” and includes transportation, purchase, sake, and exchange of commodities b/w citizens of the different states. And the power of commerce embraces the instruments by which commerce is carried on.
o Shreveport Rate Cases ability to regulate intrastate transactions because of their impact on intrastate commerce
o Schecter Poultry: Congress’s power limited to regulate intrastate transactions by restricting Congress to only those matters with a “direct effect” on interstate commerce.
o Among the states: regulating matters in the “stream of commerce” (used in many cases during this time period).
§ Local activities can be regulated by Congress if they are part of the stream or current of interstate commerce. In defining interstate commerce, the Court rejected a technical inquiry into the non-interstate character of
can legislate to protect interstate commerce and prevent it from being misused. The courts will not probe the motive or purpose of Congress’ regulation of interstate commerce. Congress, therefore, can achieve social welfare objectives by using its broad commerce powers.
The Affection Doctrine: Congress has the power to regulate local activities to the extent such regulation is necessary and proper to fostering and protecting interstate commerce. The fact that federal law has the purpose or effect of displacing state police power will not make the federal law invalid. But the fact that the federal law regulates in traditional core areas of state concern may bear on the validity of the law.
Direct-Indirect Test: Prior to the New Deal Congress could regulate local activities having “direct” effect on interstate commerce, but not local activities having only “indirect” or “incidental” effect on interstate commerce.
Modern Day Affection Doctrine:
· Substantial Effects: Congress may regulate even local activity if it can rationally conclude that such activity has a substantial adverse effect on interstate commerce, regardless of whether the effect is “direct” or “indirect.” The Court defer to the congressional judgment. Again, that fact that the law has the purpose or effect of displacing state police power regulation does not make the federal law invalid.
· Cumulative effects: In determining the adequacy of the effect, Congress may consider the cumulative effect of all the activities regulated even though the contribution of a particular activity may be trivial.
TENTH AMENDMENT V. COMMERCE CLAUSE:
The 10th Amendment, insofar as federal regulation of private activity is concerned, it a truism—anything not delegated is reserved to the states.
Hodel v. Virginia Surface Mining (p. 178): Court made it clear that Usery only applied when Congress was regulating state governments, not when Congress was regulating private conduct. Upheld a law as constitutional because it did not regulate the sates as states.
Lopez-Morrison: All of these decisions limiting the scope of Congress’s Commerce Clause power were 5-4 rulings, with the majority of CJ Rehnquist, O’Connor, Scalia, Kennedy, and Thomas.
Instrumentalities of Commerce: Congress has power to “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities (Lopez).
Solid Waste Agency v. US Army Corps: Issue. Whether the Clean Water Act, which applies to “navigable waters,” could be applied to intrastate waters because of the presence of migratory birds. No, where an administrative interpretation of a statute incokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result. This requirement stems from out prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority.
