CON OUTLINE
I. Judicial Review
Marbury v. Madison, 1803
-Marshall thinks that the list of original Jx in AIII is exhaustive and therefore that provision of the Judiciary Act allowing SCt to issue writs of mandamus is unconstitutional
-who interprets, Congress or the Supreme Court? Anti-majoritarian critique vs. insulation against political pressure
-judicial review reserved by Court
Martin v. Hunter’s Lessee, 1825
-state court refused to obey Supreme Court’s order on remand
-if it’s arising under federal law, treaties or Constitutional interpretation, then the Court has appellate jurisdiction over it
II. Federal Power
A. The Commerce Clause Power
-direct effects (pre-1937 through Carter Coal, Schechter, and EC Knight)
-substantial effects (Wickard, Darby and J&L)
-sea change with Lopez?
Gibbons v. Ogden, 1824
-Congress issues exclusive steamboat license
-it’s silly to say Congress can only regulate at the border; IC power necessarily follows IC into the territory of a state
-struck down state regulation – no good if it affects another state
Hammer v. Dagenhart (Child Labor Case), 1918
-Congress prohibits shipment in IC of any product produced by child labor
-statute overturned
-Congress does not have general police power, and unlike the Lottery Case, the goods here are by themselves harmless
-the manufacturing itself is intrastate and therefore not subject to the power (no direct effect) (see E.C. Knight: manufacturing is pre-commercial, not IC)
-this will probably result in a race to the bottom, but that doesn’t change the federalist scheme
-Congressional intent is to regulate labor, not regulating commerce
-Dissent (Holmes): this isn’t meddling with the states, it’s only saying what can move across state lines
Wickard v. Fillburn, 1942
-D Wickard, Sec. of Agr., put quotas on wheat production and fined P Fillburn for growing past his allotment (he used excess on his own farm)
-activity can be regulated based on substantial effect of aggregate of that activity
-the large, important market in wheat is clearly within Congress’ power, and power to regulate commerce includes power to regulate prices
-explicitly overrules direct/indirect test in favor of SE
-home consumption substitutes for purchases on the open market, and even though P’s consumption was trivial, in the aggregate it’s important even though there’s no jurisdictional hook in the statute
-rationale for federal intervention: free-rider/prisoner’s dilemma problem, where each state might let other states institute quotas and benefit from the higher prices in the interstate market
United States v. E.C. Knight Co., 1895
-Congress couldn’t suppress American Sugar Refining Co.’s monopoly because manufacturing is not commerce but is a pre-commercial activity
commerce’ means burdening/obstructing free flow of commerce, and screwing with labor does that
-so, this affects interstate commerce, b/c company was interstate and strikes would disrupt commerce (4th largest steel producer)
-readings of the Commerce Clause: “regulate” is ambiguous
-Direct Effects (Schechter, Carter Coal, E.C. Knight): regulate means “prescribe norm for” – dealing with the thing itself
-Substantial Effects (J&L, Darby, civil rights cases): regulate means “control” – you can do whatever else to get there
-“general welfare” clause in A1S8C1 is a tax and spend clause (see Butler), so you have to use the commerce clause here
U.S. v. Darby Lumber Co., 1941
-max and min wage standards for manufacture of goods for interstate commerce (Fair Labor Standards Act of 1938)
-Child Labor Case had held the Child Labor Act couldn’t function this way – overruled here (Congressional intent irrelevant, this has a SE on commerce)
-puts in place ‘substantial effects’ test, and wages have a SE on IC b/c race to the bottom (Prisoner’s Dilemma) will affect various states – SE basically means there has to be a valid rationale for federal intervention
