II. The Institution of Judicial Review
A. The Basic Framework
B. The Counter-Majoritarian Difficulty
C. Justiciability
III. Federalism (Vertical Distribution of National Power)
A. A Government of Enumerated Powers
B. Commerce Clause
C. Other Powers of Congress
D. State Sovereignty as a Limitation on Federal Power
IV. Separation of Powers (Horizontal Distribution of National Power)
A. The Distribution of National Powers
B. The Legislative Power
C. The Executive Power
V. Individual Rights
A. Classifications Based on Race
B. Classifications Based on Sex
C. Privileges or Immunities Clause
D. Substantive Due Process
II. The Institution of Judicial Review
A. The Basic Framework
Marbury v. Madison (1803) – Court declares the Judiciary Act of 1789 unconstitutional establishing its ability to review legislative and executive action
United States v. Butler (1836) – Judicial branch has 1 duty – to lay the constitution beside the statute and decide if the latter squares with the former
Martin v. Hunter’s Lessee (1816) – Supreme Court has jurisdiction over state supreme courts
Cohens v. Virginia () – Virginia claimed that the USSC had no jurisdiction in a criminal trial where the state was a party against its own citizen. Court said states can’t be trusted to adequately protect federal rights.
Cooper v. Aaron (1958) – USSC ordered the desegregation of Arkansas schools, can also overrule executive actions by state officials (here the state governor)
B. The Counter-Majoritarian Difficulty and Some Possible Solutions
1. Interpretive Roles for Other Governmental Actors?
2. Traditional Modes of Constitutional Interpretation
McCulloch v. Maryland (1819) – US Bank can’t be taxed by state, state can’t tax those it doesn’t represent (other states in fed government)
Calder v. Bull (1798) – natural law/positive law; a will dispute, legislative civil decree not an “ex post facto” law, but it could be if it were in a criminal context
3. Political Control of the Court
Ex parte McCardle (1869) – Legislature limited appellate jurisdiction of the court, court did not inquire into motives, Constitutionally Valid.
United States v. Klein (1872) – Congress passed statute that required courts to consider presidential pardon as evidence of rebellion support. The court declared this Unconstitutional because congress has no control over how the court decides cases. Violated separation of powers.
C. Justiciability
1. Advisory Opinions, Standing, Ripeness & Mootness
Sierra Club v. Morton (1972) – No standing because P didn’t show how P was injured, only that they cared about the environment.
Lujan v. Defenders of Wildlife (1992) – Conservationists were denied standing when they couldn’t point to a point in time when they would return to the site of preservation and Ø causation because some of the damage was caused by foreign governments
Lyons v. LAPD () – No standing because P didn’t show he was likely to be choke held by the Cops again.
Tileston v. Ullman (1943) – Doctors can’t sue for damages that will be suffered by their patients.
Allen v. Wright (1984) – P sues IRS for not enforcing penalties against racists. Causation between injury and IRS actions was not found.
Linda R.S. v. Richard D (1972) – P says state needs to go after dead beat dads. Causation not shown between criminal proceedings and mother getting $.
US v. Richardson (1974) – general taxpayer rule;taxpayer sued for CIA expenditures to be made public. No standing because whole public was injured, not him specially.
Flast v. Cohen (1968) – exception to general taxpayer rule;Court held that taxpayer challenge that public funds used for religious purpose had standing under the establishment clause. “logical nexis between status asserted and claim adjudicated”
Valley Forge Christian College v Americans United (1982) – limit on taxpayer exception;Court refused to find standing when property was transferred and not funds.
FEC v Adkins (1998) – Ban on generalized grievances is prudential, when congress grants standing to “any person” it can create standing.
2. The Political Question Doctrine
Luther v. Borden (1849) – Trespass action, dispute over what government was official, court said this was the determination of the legislature or executive. Guarantee clause political.
Baker v. Carr (1962) – District lines gave urban areas much less representation then the rural areas. 14th Amendment equal protection allowed review (wasn’t a guarantee case)
Nixon v. US (1993) – Federal judge claims senate proceeding was not a trial as required by const. Court said congress had const. control over impeachment proceedings vaguely worded. Note courts conflict of interest.
Powell v. McCormack (1969) – Congress wouldn’t let P back, court did step in because no const. impeachment proceedings were used. Const. did give specifics in this instance. Note there was no conflict of interest
Goldwater v. Carter (1979) – President withdrew the mutual defense treaty with ROC without congressional consent. Foreign affairs are a political question.
Japan Whaling Association v. Baldridge (1986) – President told Secretary of State not to certify sanctions he was arguably suppose to under statute; court heard merits because it was simply a matter of statutory interpretation, but held for pres.
Coleman v. Miller (1939) – Involved the constitutionality of a constitutional amendment process. Court would not hear the case because of conflict of interest. Const. amendments are the check on the judiciary.
III. Federalism (Vertical Distribution of National Power)
A. A Government of Enumerated Powers
B. Congress’s Power to Regulate Interstate Commerce
1. One Hundred Years of Commerce Clause Jurisprudence: The Lessons (?) of History
Gibbons v. Ogden (1824) – New York ferry regulation, forbidding all but specified people to operate on their waters, invalid because of overriding federal legislation
United States v. E.C. Knight Co. (1895) –invalidated Sherman antitrust act. sugar refinery monopoly beyond reach of Congress because it involved manufacturing, not commerce
Champion v. Ames (1903) – Federal Lottery Act prohibiting interstate transportation of foreign lottery tickets upheld because it involved shipping goods across state lines; possibility of power abuse is not sufficient to remove the power
Shreveport Rate Case (1914) –Congress could regulate interstate railroad rates as well as those within TX because, in this case, “the interstate and intrastate transactions of carriers” were very related
Hammer v. Dagenhart (1918) – Child Labor Act invalid because its purpose was to regulate local labor rather than interstate commerce; Court focused motive
Stafford v. Wallace (1922) – stream of commerce; stockyards regulated because they can not be separated from the interstate movement of the goods
2. The New Deal and the Modern Welfare State
A.L.A. Schechter Poultry Corp. v. United States (1935) – retail occurs after stream of commerce and therefore cannot be federally regulated
Carter v. Carter Coal Co. (1936) – manufacturing occurs before stream of commerce and therefore cannot be federally regulated
NLRB v. Jones & Laughlin Steel Corp. (1937) – industry organized on “national scale” can be regulated under the commerce clause
United States v. Darby (1941) – upheld shipping ban on goods made by employees working more than the maximum number of hours or earning less than minimum wage; no restriction on Congress’s motives; Hammer overruled
Wickard v. Filburn (1942) – wheat grown & consumed at home has “substantial economic effect” and can therefore be regulated; aggregate rule
Heart of Atlanta Motel v. United States (1964) – ban on discrimination in places of public accommodation upheld due to discrimination’s impact on interstate commerce
Ollie’s Barbeque (1964) – companion to Heart of Atlanta; ban on discrimination in restaurants uph
the application of the statute to state & local employees unconstitutional. (expressly overruled in Garcia v. SAMTA)
Hodel v. Virginia Surface Mining Association (1981) – requirement that stripmines return the area to its “approximate original contour” upheld because it did not affect “State as States”-disting Usery as effect on state employees
Federal Energy Regulatory Commission v. Mississippi (1981) – state commissions can be required to consider federal standards, and in areas where Congress can preempt state regulation entirely it is free to impose less intrusive standards. Disting Usery b/c not mandatory
EEOC v. Wyoming (1983) – Age Discrimination in Employment Act upheld because it didn’t impair states’ abilities to structure their integral operations
Garcia v. San Antonio Metropolitan Transit Authority (1985) – overruled “traditional governmental functions” test because it still required judicial value judgment on State policies; State interests are better protected by procedural safeguards inherent in the federal structure
2. Prohibition on Federal Commandeering
New York v. United States (1992) – invalidated federal low-level radioactive waste regulations because they offered states a “choice” between two unconstitutionally coercive options
Printz v. United States (1997) – invalidated The Brady Act because its requirement for gun sellers to turn purchase information over to chief law enforcement officers “compelled enlistment of state executive officers for the administration of federal programs” and was therefore not a “proper” method of implementing delegated Article II powers
Reno v. Condon (2000) – upheld statute forbidding state motor vehicle departments and private entities who worked with them to sell private information, because the statute did not require states to enact laws or regulations and did not require state officials to assist in the enforcement
Testa v. Katt (1947) – not commandeering to require state courts to hear claims under federal law b/c of Supremacy Clause
IV. Separation of Powers (Horizontal Distribution of National Power)
A. The Distribution of National Powers
B. The Legislative Power
1. Judicial Control of Legislative Abdication: The Power and Duty to Legislate?
a. The Nondelegation Doctrine
J.S. Hampton v. U.S. (1928): upheld Tariff Act of 1922, which directed the President to change original statutory schedule of tariffs when needed; Court established the “intelligible principle” doctrine whereby a statute delegating broad legislative authority would be upheld so long as Congress provided sufficient guidance.
Panama Refining Co. v. Ryan (1935): invalidated a provision of the NIRA authorizing the President to prohibit, as part of a petroleum code, the transportation in interstate commerce of “hot oil” produced in violation of state-imposed production quotas = no “intelligible principle” to guide President’s decision.
ALA Schechter Poultry (1935): invalidated application of the NIRA which allowed trade associations to determine what was “fair competition.” There was no intelligible principle guiding the Executive as what “fair competition” meant or required.
