CON LAW I OUTLINE—Coenen Spring 2012
Judicial Authority
Judicial Review
· Marbury v. Madison
o Marbury appointed Justice of the Peace for D.C.—Madison would not transmit commission—Marshall held that Marbury entitled to commission notwithstanding lack of delivery—entitled to remedy—
o Issue: Art. III grants original jxn in cases affecting ministers, consuls or wher state is a party; appell. jxn in all other cases—Judicial Act of 1789 gives original jxn to this mandamus action—Judicial Act in conflict with constitutional, therefore must be stricken
o Supreme Court can nullify duly enacted laws (by Congress or States) as unconstitutional
§ no specific clause in the Constituion granting this power, but there are reasons
o 7 reasons Marshall gives for judicial review
§ A written constitution: powers and limits of legislature are defined and written therein—limits must be taken seriously—the way to take seriously is through judicial review
§ Practicalities: potential abuse of power by congress must be checked—Judges are focused on the long term principles rather than the short term interests—judicial independence (judges won’t give way to the passions of the moment)
§ Syllogism: The court’s job is to apply the law, the Constitution is law, therefore the court’s job is to apply (and interpret) the Constitution—“the Supreme Law of the Land”—if state judges are bound by the Constitution then certainly the Feds are as well.
· critics argue that the Constitution is not like a typical statute
§ Textual argument: article III of the Const extends to cases arising under the Const.—
· the problem with this argument is that the power of judicial review (to srtike down acts of Congress) is not express wihtin this power
§ Absurd Result/Plain violation
§ Oath: because judges take an oath to uphold the constitution, they should be the sole interpreters. (Coenen thinks a stupid argument).
§ Framers mention the Constitution first (?)
o Emphatically the province and duty of the judicial department to say what the law is.
o Counter Majoritarian Difficulty
§ 9 people deciding huge questions
§ checks on the judicial branch may not be that good.
· Court as ultimate interpreter
o Other officials have the authority (and the duty) to make Constitutional interpretations
o Cooper v. Aaron—Court unanimously held that AR had to accept the Brown decision and further, that Supreme Court is the Ultimate interpreter of the Constitution—Supreme Law of the Land
o Dickerson—Congress may not overrule Supr. Ct. by statute—only by amendment
· Martin v. Hunter’s Lessee (VA Supr. Ct must obey U.S. Supr. Ct.) and Cohen (US Supr. Ct. review of state court criminal decisions)
o Supreme court can review judgments of state courts to determine if constitutional
o Concern for uniformity
o it’s the case that determines jurisdiction, not the underlying court
o a sense that state courts aren’t entirely trustworthy because a lot are elected.
· Political Questions
o typically, Supr. court will refrain from hearing political questions (see Impeachment §)
o Powell—an exception to the political question doctrine—review of whether Congress had breached the Constitution by failing to seat a member
System of Federalism
Division of Power between the National government and the States
· McCulloch v. Maryland
o US creates 2d National Bank, locates branches in the states—MD adopts a tax or hefty fee on each note, private prosecution for failure to comply
o does congress have the authority to incorporate a national bank?
§ Yes, under the necessary and proper clause
o Necessary has two potential meanings:
§ broad (Hamiltonian) reading: convenient, useful, essential
§ narrow (Jeffersonian) reading: indispensable
o Arguments made in support
§ Parade of Horribles: the narrower interpretation would result in absurd results
· e.g. Congress granted power to open post offices; but if not also allowed to criminalize stealing mail (while not an indispensable action), wouldn’t be able to carry out express powers
§ Textual arguments: not “expressly”; “absolutely necessary” used elsewhere (principles of interpretation suggest different meaning here); “proper” used
§ Nature of a Constitution: intended to last, to be concise
· must be somewhat flexible to have relevance over time
· can’t cover every circumstance and be concise
§ Historical argument—Articles of Confederation (where Congress could only exercise those powers expressly granted) Stunk!
· the 1st Congress (many of whom helped to write the Constitution) passed this law—they must have known what the Const. meant
o Is the Fed’l govt supreme over state gov’t? YES
o Representative Reinforcement—actions of one state may affect everyone else
§ tax on bank has the power to destroy—may have a nationwide effect
§ further, a tax would subject the fed’l gov’t to the control of a state
· Federal limits on the Scope of State Power
o U.S. Term Limits, Inc. v. Thornton
§ Can Arkansas impose extra qualifications on those who run for Congress (that they agree with term limits)?
§ focused on 10th Amendment—rights not expressly granted are reserved to the states
§ Majority—powers “reserved” to the states connotes that the powers must have existed before
· Citing J. Story—states can’t reserve a power they didn’t already have
· Alternatively: spirit of the constitution (representative self government) suggests that states should be prohibited from taking such action
· UNIFORMITY
§ Justice Thomas—because the Const. doesn’t prohibit states from placing restrictions on Federal candidates, that authority must be reserved to them
· agrees with McCulloch , but comes close to overturning it—may say that some state powers arise by necessary implication
· do states have the power to secede? not expressly granted nor prohibited
§ Congress=representatives of the people of the United States, not of the individual statesàtherefore States don’t have power to impose additional qualifications
o Cook v. Graleike
§ State law placing a pejorative clause on ballots of those Reps who don’t support term limits
§ States can’t do indirectly what they’re prohibited from doing directly
· Structure of Federalism
o division of power between the national government and the States
o Value of having States
§ Greatest good for the greatest number served by having local control
§ Experimentation—states as laboratories for new ideas
§ Efficiency—functions better performed at local level—others better at national level
§ Political participation—easier to participate n State gov’t than Federal
o Value of Federal Gov’t (drawbacks to confederation of independent states)
§ Inefficiency—duplication of bureaucracies
§ lack of uniformity and equality
§ common defense, foreign affairs better handled on a national level
The Commerce Clause
· 2 Separate Roles in American Constitutional Law
o a grant of power to the Congress with fuzzy edges
o dormant commerce clause—limits on state powers in light of countervailing federal interests
· Early history of Congress’s use of Commerce Clause
o Gibbons v. Ogden (1824)
§ steamship entering NY waters–Fed’l law granting license to interstate operator preempts state law prohibiting out of state ships
§ classic initial interpretation of the Commerce Clause
§ Congress has the power to regulate commerce that affects other states or concerns more than one (can’t touch intrastate commerce)
o US v. E.C. Knight (1895)
§ prosecution of sugar refiner under Sherman Antitrust
§ production/manufacture can’t be regulated—outside the scope of the Commerce clause
o Addyston Pipe and Steel (1899)
§ another case under Sherman Antitrust—this time, if monopolization withi intent to control purchase and sale price, then within the Commerce power
o Shreveport Rate Case (1914)
§ substantial economic effect—because rates for RR travel within the state will affect rates outside the states, comes within the Commerce clause
o Stream of Commerce Theory
§ Congress can regulate things that are within the flow of commerce between states
§ e.g. Swift–a stockyard that is a pit stop between states can be regulated—in current of commerce (see also Stafford)
o Lottery case (1903) (Prohibition of Commerce as a Police Tool)
§ prohibiting commerce–the Federal lottery act prohibits interstate transport of lottery tickets—upheld
§ Although Congress does not have a police power—this sure looks like one
§ Congress has the authority to prohibit the movement of goods and services (does that go along with the facilitation of the movement of goods and services
§ prohibiting commerce upheld for harmful goods—e.g., Hippolite Egg (bad eggs), Hoke (transport of prostitutes)
eres with integral government functions
o Garcia (1985)—renewed supremacy of the Fed’l Gov’t
§ Overrules Nat’l League of Cities (Blackmun changes his vote) impossible to determine what a traditional government function is—FLSA can be applied to States in their capacity as employers
§ Political process limits will prevent the Federal government from assuming too much power over the states—so no need for the court to limit the Commerce clause from application to the States
§ SC v. Baker—SC argued that the political process does not do enough to limit the Commerce power—political process failure (theoretical) is the only time otherwise constitutional exercise of Commerce power trumped by state autonomy
o New York v. US (1992)—limit on Congressional Regulatory Authority
§ Take title provisions, applied only to states, can’t be justified by the Commerce power
§ applied only to the states, not universally (as was the case with the FLSA in Garcia)
§ Congress cannot compel states to enact and enforce a federal regulatory program.
o Printz (1997)—limit on Congressional power to use state officers
§ Federal Government cannot force State officials to implement their rules
§ Souter—disagrees with this holding—cites Federalist (Fed officials can force state officials to collect taxes)
§ Scalia—Only when states consent to doing so will a state official have to implement a Federal rule
· Federalist instincts seem to trump textual instincts
§ unlike NY v. US, this case involves a command to executive officials rather than legislative officieals
o Reno v. Condon (2000)
§ statute prohibiting states from selling drivers’ license information—allowed under commerce power
§ It’s clearly something in commerce, but is it limited as a regulation of the states?
§ Regulates states as the owners of databases, rather than as states
· Prongs: Congress can regulate:
o Channels, instrumentalities of Interstate Commerce
o Things “In” Interstate Commerce
o Things that substantially “affect” Interstate commerce
§ rational basis test
§ aggregation approach
§ economic—non-economic activity distinction
o Wickard ; Lopez out there somewhere too.
o Other Styles of Argument under the Commerce Clause
§ Commerce Prohibiting Technique
§ Super Bootstrapping Technique
· regulation of something related to the movement of something across state lines
· External Constraints
o Coyle Limit
§ can’t tell a state where to locate its capital
o Nat’l League of Cities
§ overruled in Garcia—external constraints to regulate state and local functions
o Political Process Defects
§ Garcia—interests are adequately protected by political process
§ sometimes, national legislature may not operate in a way that takes state interests into account—then the Court will step in (SC v. Baker)
o NY v. US and Printz-iple
§ Congress cannot commandeer state legislative or executive authorities to implement federal regulatory program
· conditional spending programs
· conditional preemption
· particular clauses “exception”
o 11th Amendment—State Sovereign Immunity
§ Seminole Tribe (1996–immunity in Fed’l Court)/Alden (1999–immunity in state court)
· as a general rule, people cannot sue states for money damages in either state or Fed’l court even if Congress has passed a law permitting such suits and even if the law would be perfectly fine as an exercise of the commerce clause
· Abrogating State immunity pursuant to an exercise of the commerce power
