Constitutional Law
Halberstam
Winter 2014
I. The Constitutional Structure of Government
A. The Role of the Supreme Court
1. Judicial Review
a. Marbury v. Madison (1803): it is emphatically the province and duty of the Court to say what the law is
b. What a Constitution Does
1) Text. What does it say? How is it set up textually? BUT a lot of accepted constitutional norms are not actually in the text of the Constitution
2) History. What was the original intent of the framers? BUT document must be adaptable with time and there have been constitutional “revolutions” with the 14th amendment and the New Deal)
3) Structure. How does it work with our governmental institutions and structures?
4) Precedent. How has it been interpreted before? BUT constitutional decisions are not always binding
5) Policy. How can it work for us? What are the practical effects of interpretation?
2. Judging the Judges
a. Cooper v. Aaron (1958): the Court is the supreme interpreter of the Constitution; state officials must yield to the Court’s interpretation
b. Ex Parte McCardle (1869): Congress can modify the jurisdiction of courts, even if it eliminates controversies
c. US v. Klein (1872): Congress cannot pass laws that tell courts how to decide cases or whether to dismiss cases
3. Judicial Restraint: Cases, Controversies, and Political Questions
a. Advisory opinions, standing, ripeness, mootness, political questions
b. Massachusetts v. EPA (2007)
1) For standing, a litigant must demonstrate (1) that she has suffered a concrete and particularized injury that is either actual or imminent; (2) that the injury is fairly traceable to the defendant, and (3) that it is likely that a favorable decision will redress that injury
c. Baker v. Carr (1962) (Brennan)
1) [Challenges to malapportionment are justiciable. Malapportionment violates the equal protection clause]
2) [Standing ensures concrete adverseness. Standing requires that a plaintiff allege] “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions”
3) Political question cases involve
a) A textually demonstrable constitutional commitment of the issue to a coordinate political department, or
b) A lack of judicially discoverable and manageable standards for resolving it, or
c) The impossibility of deciding w/o an initial policy determination of a kind clearly for nonjudicial discretion, or
d) The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government, or
e) An unusual need for unquestioning adherence to a political decision already made, or
f) The potentiality of embarrassment from multifarious pronouncements by various departments on one question
4) EC criticism of Baker’s useless criteria
a) There is no place in the Constitution where the text states that the legislature or executive should decide whether a particular action constitutes a constitutional violation. The Constitution does not mention judicial review, much less limit it by creating “textually demonstrable commitments” to other branches of government
b) Most important constitutional provisions are written in broad language that do not include “judicially discoverable and manageable standards”
d. Vieth v. Jubelirer (2004) (plurality)
1) Scalia, J. Gerrymandering suits are inherently nonjusticiable political questions. Bandemer had proved impossible to implement: there are no judicially discoverable or manageable standards and no basis for courts to decide when partisan gerrymandering offends the Constitution
B. Federalism and the Powers of Congress
1. The Controversy over the Bank
a. McCulloch v. Maryland (1819) (Marshall)
1) Does Congress have the authority to create the Bank of the United States?
2) History. Historical experience justifies the constitutionality of a practice. Historical practice established the power of Congress to create the Bank. The first Congress enacted the bank after great debate
a) Frankfurter’s concurrence in Youngstown made a similar historical argument: a “systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned… may be treated as a gloss on ‘executive power’ vested in the President”
b) But why should an unreviewed practice (i.e. creating a bank) be presumed constitutional? Holmes: [that laws may be] “natural and familiar… ought not to conclude our judgment upon the question whether [the] statutes… conflict with the Constitution”
3) Structure. States do not retain ultimate sovereignty because they ratified the Constitution. The people ratified the Constitution; they are sovereign, not the states
a) [Criticism: Article VII says if nine states ratify, Constitution established. The states ratified the Constitution, not the people.] Marshall: the people acted within the states
4) Text. The Constitution does not enumerate a power to create a Bank of the United States, but this is not dispositive as to Congress’s power to do so. “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. In considering this question, we must never forget that it is a constitution we are expounding”
a) Congress is not limited only to those acts specified in the Constitution. Congress may choose any means, not prohibited by the Constitution, to carry out its lawful authority. Even though the Constitution does not mention a power to create a Bank of the United States, Congress can create one as a means to carrying out many of its other powers
b) If Congress was limited to the powers specifically enumerated in Article I, the range of laws would be finite. But if Congress can choose any means not prohibited by the Constitution to carry out its powers, it truly has an almost infinite range of options that can be enacted into law
5) Text (or Policy?). The necessary and proper clause (Art. I, §8) means that Congress may choose any means not prohibited by the Constitution to carry out its express authority. “Let the end be legitimate, let it be within the scope of the constitution, and 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 constitution, are constitutional”
a) [Criticism: the necessary and proper clause is a limit on Congress’s powers; Congress is only allowed to adopt laws which are truly necessary] Marshall: necessary means useful or desirable, not indispensable or essential. The “provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs”
b) The necessary and proper clause is placed in Art. I, §8, which expands Congress’s powers, and not in Art. I, §9, which limits Congress’s powers. Its “terms purport to enlarge, not to diminish he powers vested in the government”
2. Regulating Interstate Commerce (“Take I”)
a. From Origins…
1) Gibbons v. Ogden (1824)
a) NY granted F and L exclusive right to operate steamboats in NY waters. They licensed O to operate a ferry between NYC and NJ. G began operating a competing ferry service, violating the NY law. G was licensed by Congress. O obtained an injunction against G from NY courts
b) Marshall, C.J.
i) NY monopoly invalid under the supremacy clause; injunction dissolved
ii) Congress can regulate intrastate commerce if it has an impact on interstate activities. Commerce which is completely internal to a state (i.e. does not affect other states) cannot be regulated by Congress
iii) Neither state sovereignty nor the Tenth Amendment limit Congress’s power to regulate interstate commerce among the states. The sole check on Congress is the political process, not judicially enforced limits to protect the states
c) EC: are any interstate effects sufficient or must the impact be direct or substantial?
b. …Through the Emerging National Economy…
1) Evolution of Commerce Clause Doctrine: 1887-1937
a) The Court narrowly defined the meaning of commerce to leave a zone of power to the states: i.e. commerce was one stage of business, distinct from earlier phases such as mining, manufacturing, or production; only commerce itself could be regulated by Congress, the others were left for state regulation. US v. E.C. Knight Co. (1895)
b) The Court restrictively defined among the states: i.e. Congress could regulate only when there was a substantial effect on interstate commerce
c) The Court held that the Tenth Amendment reserved a zone of activities to the states and that even federal laws within the scope of the commerce clause were unconstitutional if they invaded that zone (e.g. regulation of production must be left to the states; federal law that prohibits shipment in interstate commerce of goods made by child labor was unconstitutional). Hammer v. Dagenhart (1918)
2) US v. E.C. Knight Co. (1895) (manufacturing is distinct from commerce)
a) US invoked the Sherman Antitrust Act to forbid a sugar refining company from acquiring four competing refineries (it would have refined 98% of all US sugar)
b) The Act could not be used to stop a monopoly in the sugar refining industry because the Constitution did not allow Congress to regulate manufacturing. The monopoly was in the production of sugar, not in its commerce: “Commerce succeeds to manufacture, and is not a part of it.” The effect on commerce was only “indirect” and thus outsid the scope of federal power
c) EC: a company could have a monopoly in production, and benefit from monopoly profits in commerce
3) Champion v. Ames (1903)
a) Federal Lottery Act of 1895 prohibited the interstate transportation of foreign lottery tickets. Champion shipped a box of Paraguayan lottery tickets from TX to CA
b) [The power to regulate interstate commerce includes the ability to prohibit items from being in interstate commerce]
c) EC: in both Champion and Dagenhart, a federal law prohibited the shipment of a specified item (goods made by child labor or lottery tickets) in interstate commerce. In both, Congress was trying to stop intrastate activities: the use of child labor and gambling in lotteries. Yet the child labor law was declared unconstitutional, while the lottery law was upheld
4) Hammer v. Dagenhart (1918) (zone of activities reserved to states: mining, manufacturing, production)
a) Child Labor Act of 1916 prohibited the transportation in interstate commerce of goods produced in factories employing children under 14 or employing 14-16-year-olds for more than eight hours a day, or six days a week, or at night
b) [Even if an activity was commerce and was among the states, Congress still could not regulate it if it was intruding into the zone of activities reserved to the states. The Tenth Amendment reserved control of activities such as mining, manufacturing, and production to the states. Congress cannot regulate mining, manufacturing, or production.]
c) [Regulating the hours of child labor was entrusted “purely to state authority”]
c. …Into the New Deal
1) A.L.A. Schechter Poultry Corp. v. US (1935) (direct/indirect)
a) Congress can regulate when there are direct effects on commerce, “but where the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power”
b) EC: why did intrastate railroad rates have a direct effect on interstate commerce, while regulations designed to limit the shipment of sick chickens in interstate commerce have only an indirect effect?
c) DH’s reading of Dagenhart, Schechter: Congress has the power to enable commerce, not interfere or stifle it
d. The Commerce Clause as it Emerged from the New Deal
1) NLRB v. Jones & Laughlin Steel Corp. (1937) (still using stream of commerce language)
a) National Labor Relations Act created a right of employees to bargain collectively, and established the NLRB to enforce the law
b) [The steel business was part of the stream of commerce; labor relations within it had a direct effect on commerce.] “The fact that the employees were engaged in production is not determinative”
2) US v. Darby (1941) (overrules Dagenhart)
a) Congress is free to exclude from interstate commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals, or welfare, even though the state has not sought to regulate their use. Champion v. Ames
b) Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause
i) The Tenth Amendment “states but a truism that all is retained which has not been surrendered.” In other words, a law is constitutional so long as it is within the scope of Congress’s power; the Tenth Amendment would not be used by the judiciary as a basis for invalidating federal laws
c) EC: Darby says Congress may control production by regulating shipments in interstate commerce
d) DH: Darby says Congress’ motive is irrelevant, and gets rid of (1) production/manufacturing v. commerce distinction; (2) stream of commerce test; (3) commerce enabling/stifling distinction; (4) dual federalism argument (re: Tenth Amendment, that powers not mentioned are reserved to the states; federal and state governments were separate sovereigns, each had separate zones of authority, and the Court was to protect the zone of activities reserved to the states)
3) Wickard v. Filburn (1942)
a) EC: Wickard discards the distinctions between commerce and production/manufacturing/mining, and between direct and indirect effects on commerce
b) “Questions of federal power cannot be decided simply by finding the activity in question to be ‘production,’ nor can consideration of its econo
ing. Congress may offer incentives to the states to influence their policy choices (e.g. attach conditions to the receipt of federal funds)
d) Conditional preemption. Where Congress has the authority to regulate private activity under the Commerce Clause, it may offer states the choice of regulating an activity according to federal standards or having state law preempted by federal regulation
e) EC: Congress cannot compel state legislatures to adopt laws or state agencies to adopt regulations
2) Printz v. US (1997) (cannot commandeer state executive officials)
a) Federal law required state and local law enforcement officers to conduct background checks on prospective gun buyers
b) Scalia: the law impermissibly commandeers state executive officials to implement a federal law
c) DH: under the Articles of Confederation, Congress could commandeer states, but it could not govern individuals directly. Stevens, dissenting in Printz, argued the Constitution did not strip Congress of this commandeering power; indeed, Hamilton in Federalist No. 27 argued that “the federal government was to have the power to demand that local officials implement national policy programs”
5. Regulating Interstate Commerce (“Take II”)
a. US v. Lopez (1995) (commercial/noncommercial)
1) Gun-Free School Zones Act of 1990 made it a crime to have a gun within 1,000 feet of a school
2) Rehnquist, J.
a) The law’s relationship to interstate commerce is too tangential and uncertain to uphold the law as a valid exercise of Congress’s commerce power. The law is not substantially related to interstate commerce
b) Congress may regulate three broad categories of activity under the Commerce Clause
i) Channels of interstate commerce (e.g. hotels, restaurants)
ii) Instrumentalities of interstate commerce, or persons or things in interstate commerce (e.g. railroads)
iii) Activities that have a substantial effect on interstate commerce
3) Souter, J. (dissenting): Rehnquist’s distinction between commercial and noncommercial looks much like the old distinction between what directly affects commerce and what touches it only indirectly
4) Breyer, J. (dissenting)
a) We should uphold a federal law as a valid exercise of the commerce power so long as there is a rational basis that an activity affects interstate commerce
b) Rehnquist makes a critical distinction between commercial and noncommercial transactions, but the transactions in Heart of Atlanta Motel and McClung were not commercial
5) DH: Lopez applies a standard it facially says it need not make (commercial/noncommercial). These formalist distinctions are ridiculous and unsustainable. One problem with formalism is that these administrable rules, which might be transparent and predictable, may not track the purpose of the rule, because the rule is an imperfect reflection of the reasons for it. Better approach: functionalism?
6) DH: after Lopez, can only aggregate activities that are commercial in nature
7) DH: arguments in support of Congress’s power to enact the Gun-Free School Zones Act
a) History. The Act does not regulate a traditional state function
b) Policy. The Court should defer to Congress; only impose a rational basis test
c) Violence affects education, commerce
d) Precedent. Heart of Atlanta Motel, Perez, and Wickard all aggregated classes of activities. Unclear whether all of these activities were commercial in nature. Wickard rejected the direct/indirect distinction; we should reject the commercial/noncommercial distinction
e) Whatever its nature, whatever its source, Congress should be able to regulate activity that substantially affects interstate commerce
f) Once Congress has found that an activity substantially affects interstate commerce, do not look further: no motive or purpose is required to regulate such an activity
g) Policy. Unpredictable results arise from throwing out the Act. After Lopez, to what extent may Congress regulate activities that substantially affect interstate commerce?
h) Perverse incentive: Lopez tells Congress to regulate more broadly
8) DH: arguments against Congress’s power to enact the Gun-Free School Zones Act
a) Role of the judiciary [to determine the scope of the Commerce Clause powers]
b) There must be some limits to Congress’s authority to regulate via the Commerce Clause (e.g. Congress should not be able to regulate local schools)
c) Text/Precedent. Too far removed: possessing a gun near a school does not “substantially affect interstate commerce”
d) Precedents involved commerce
e) Upholding the Act would give Congress a plenary police power
f) Gibbons: “the enumeration presupposes something not enumerated”; Congress does not have this power: it is not enumerated in the Constitution (in Gibbons, Marshall argued the phrase “among the several states” in the Commerce Clause implied that Congress could not regulate commerce wholly internal to one state)
g) No jurisdiction element: the Act should ensure that the particular firearm affects interstate commerce
b. US v. Morrison (2000) (economic/noneconomic)
1) Violence Against Women Act authorizes victims of gender-motivated violence to sue for money damages
2) Rehnquist, J.
a) Gender-motivated crimes of violence are not economic activity. We have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature
b) If we accepted this law, Congress could regulate any crime as long as the nationwide, aggregated impact of that crime has a substantial effect on employment, production, transit, or consumption. Congress could regulate all violent crimes in the U.S.
