I. The Supreme Court’s Authority
A. Judicial Review
Marbury v. Madison (1803), page 2
· Facts – There was a political struggle between Adams and the Federalists, and Jefferson and the Democrat-Republicans. Just before leaving office, Adams appointed new judges including justices of the peace for DC. Commissions were signed and sealed by the Secretary of State (Marshall) but not yet delivered. Jefferson and Madison refused to honor those appointments which hadn’t been delivered. One of those appointees, π, sued seeking writ of mandamus to compel Jefferson’s Secretary of State, Δ, to deliver the commissions
· Marshall’s majority holding – Marbury is entitled to commissions since they were signed and sealed since that is a civil liberty that should be protected by government. The President is constrained by adopted law and the new government has to abide by previous law.
o Judiciary Act supposedly grants jurisdiction to Supreme Court to issue writ of mandamus to officer of US government but that is at odds with Article III that grants original jurisdiction in only very limited cases (Article III is the ceiling) and infers that Congress shouldn’t have authority to appropriate jurisdiction of the Supreme Court because otherwise subsequent parts are “form without function.”
o When there is conflict between Judiciary Act and Article III, the Constitution is supreme and it’s the role of the judiciary to decide one way or the other because Constitution is supposed to constrain and limit arbitrary power and it’s the will of the people
· Limits to Supreme Court:
o Obligated to decide cases (and not just exposit constitution) and follow facts, precedents
o Attached to notion of written constitution – determination of court when interpreting constitution is also attached to “written-ness” of constitution
o Political limits
§ Has neither power over purse nor sword
§ Subject to other branches – i.e. impeachment, appointed by politicians
§ Amendment to Constitution
Martin v. Hunter’s Lessee (1816), page 17
· Story’s majority holding – Supreme Court is constitutionally authorized to review the constitutionality of state court decisions because:
o State court is not sovereign because the constitution cuts back upon state sovereignty in many ways
o There is need for uniformity in decisions throughout the nation interpreting the constitution
Cooper v. Aaron (1958), page 20
· Facts – Arkansas governor and state legislature said that they were not bound by a federal district court’s desegregation order interpreting Brown v. Board of Education
· Holding – the federal judiciary is supreme in the exposition of the law of the constitution and its interpretation is binding on state legislatures and executive and judicial officers.
II. Federalism
A. Federal Legislative Power
McCulloch v. Maryland (1819), page 63
· Facts – Congress chartered the second bank of the US in 1816 but many states enacted anti-bank measures such as Maryland which proceeded to tax the bank. James brought suit on behalf of Maryland against McCulloch, a cashier of the branch in Maryland.
· Marshall’s majority holding – Constitution allows Congress discretion to pick the means to accomplish an end as long as the end is legitimate, within the scope of the constitution, means are appropriate, plainly adapted to that end, not prohibited, and consistent with letter and spirit of the constitution
o Constitution derives its authority from people and not he states and thus the Constitution must be simple and not complex (like a legal code).
o Though creating bank is not an enumerated power, the necessary and proper clause (necessary doesn’t mean indispensable here) affirms right of Congress to choose means
o Thus charter of bank is valid
o Maryland tax is unconstitutional as it conflicts with valid federal activity. The power to tax is the power to potentially destroy and because the tax discriminately targeted the federal bank which is not represented in the Maryland legislature
· Court establishes several crucial aspects of constitutional law:
o Federal government is supreme over the states and the states have no authority to negate federal actions
o Court expansively defines scope of Congress’ powers
o Court limits ability of states to interfere with federal activities
Dred Scott v. Sandford (1857), page 1 of supp I
· Facts – Missouri Compromise meant that part of the Louisiana Purchase territory would constitute state of Missouri with state constitution permitting slavery while admitting amine as a free state. Also it prohibited slavery above the line of latitude of Missouri’s southern border. Dred Scott was slave owned by individual who during 182-‘s travelled across different sates including to Illinois (free state) and two areas of Louisiana Purchas territory where slavery was prohibited. After travels, Dred Scott (claimed resident of MO) claimed he was free and sued Sanford (resident of NY) in federal court under diversity jurisdiction for assault. The case turned on whether Dred Scott was free or slave because assault was permissible to slaves.
· Taney’s majority holding – No person that is descendent of African slave can be citizen of Missouri or a citizen of the US
o Eventually overruled by 14th Amendment § 1 which says that anyone born in US is citizen
o Traveling to free state does not liberate Dred Scott and Missouri Compromise is unconstitutional because slavery is a property right that cannot be deprived
o Sets aside morality all together and only addresses the legal side and gives reasons for why they can’t be citizens:
§ No language in constitution defines citizenship one way or another – Article IV, § 2 talks about rights and privileges granted to one state must be recognized by all states so if free Blacks had rights of citizenship such as free speech and went to states where there are slaves, it could be disruptive
§ Clauses in constitution specifically address the question
· Article I § 9 reserves right to import slaves until 1808 (though in 1808, Congress promptly prohibited further importation)
· Article IV § 2 says that states will pledge to maintain and uphold right of masters over slavery
· Argument seems weak because constitution never says anything about African Americans being free or not and never addresses difference between slaves and free – contrary, 3/5ths compromise in Article I means that free blacks should be counted as whole person!
§ Initial framers of constitution confines rights of citizens only to free white people otherwise why would the framers qualify with “white” in the statute
§ Declaration of Independence doesn’t apply to blacks because that would be inconsistent
· Ways to respond to this:
o Textual reasoning
o Historical intent – as soon as constitution permits prohibition of importation of slaves, Congress does so and several states had banned slavery which suggests that perhaps notion of the acceptability of slavery was changing. Also constitution is designed to be expansive (as Marshall argues in McCulloch)
· Take away points:
o Original sin of the constitution
o Judicial review not necessarily progressive
o Jurisprudence of original intent vs. due process
III. Commerce Clause
· Reasons for not having continued autonomy of states:
o Economic inefficiency (i.e. no point in having an FDA for each of the 50 states)
o Cohesion
o Having small states means less factions and more despotism
· Reasons for continued autonomy:
o Experimental creativity
o National decision making may not be responsive to local needs
o Balance or check against federal government and a double security of states against federal government (Federalist Paper No. 51)
o Advantage of state to be decisive (Federalist Paper No. 45)
A. Before New Deal
Gibbons v. Ogden (1824), page 83
· Facts – New York legislature gave an exclusive monopoly right to operate a steamboat within New York waters to Ogden (π). Π’s former partner, Gibbons (Δ) obtained authorization from federal statute to operate a steamboat between NY and NJ, thus violating the legal monopoly.
· Marshall’s majority holding – Commerce clause allows Congress to regulate steamboat operation between NY and NJ and thus the federal statute is constitutionally valid (the federal law thus preempts the New York statute)
o Defines commerce and says it isn’t just “buying and selling” but its intercourse, which includes navigation
o It has to be “among” several states (defined as that which concerns more states than one) and thus acknowledges that there is distinction between interstate commerce and commerce that is entirely within a state where federal government has no authority and presupposes limits to what federal government can do (no jurisdiction over things that are completely internal within the states)
United States v. E.C. Knight Co. (1895) – Sugar Trust Case, page 85
· Facts – government filed civil against under Sherman Act against Δ claiming that it controlled 98% of sugar industry and thus was a monopoly.
· Fuller majority holding – the statute is unconstitutional
o Affirmed the dismissal of action because the statute does not extend to the challenged monopoly since Congress has no constitutional authorization to regulate a monopoly in “manufacture” under the commerce clause
o The fact that an article is manufactured for an export to another state does not make it interstate commerce
o That there is a difference between direct and indirect effect by looking at the links in the logical chain
o Without this limit, there would be little left for the states and so the court must draw the distinction somewhere
o Here, though distinction between manufacturing and commerce seems arbitrary, the relationship was too indirect to allow federal regulation
Houston E. & W. T. RY. Co. v. United States (1914) – The Shreveport Rate Case, page 86
· Facts – There was a railroad between Texas and Shreveport and also a railroad within Texas to a port. Congressionally authorized commission imposed rates because the railroad company was discriminating against interstate railroad traffic by making it cheaper to ship through Texas rather than Shreveport even though the distance was longer. The commission tried to eliminate the differential by regulation but commission had to regulate the rate within Texas as well which raises question of whether it is interstate commerce.
· Hughes’ majority holding –there is right to control operations in all matters having such a “close and substantial relation” to interstate traffic that the control is essential or appropriate to the security of that traffic
Champion v. Ames (1903) – The Lottery Case, page 87
· Facts – Federal Lottery Act of 1895 prohibited importing, mailing, or interstate transporting of lottery tickets.
· Harlan’s majority holding – upheld the constitutionality of the statute holding that lottery tickets are subjects of traffic and therefore are subjects of commerce
o The suppression of nuisances injurious to public health or morality is among the most important duties of government and to do so, may regulate the commerce of
o Congress can exclude anything from commerce among the states whatever the motive
Hammer v. Dagenhart (1918) – The Child Labor Case, page 89
· Facts – Congress passed a law barring the transportation in interstate commerce of goods produced in factories employing children under 14 years old or employing children between 14-16 for more than 8 hours a day or 6 days a week or at night
· Day’s majority holding –the act is unconstitutional as it transcends constitutional Congressional authority because the goods shipped here are of themselves harmless as the act in effect doesn’t regulate transportation but aims to standardize ages at which children may be employed and also because such regulation authority is reserved to the states
o Concedes that this is regulation of commerce but distinguishable from the Lottery case because the purpose is not to prevent the good but the way it is being produced
B. The New Deal
Railroad Retirement v. Alton Railroad Co. (1935), page 91
· Facts – Congress passed law establishing a compulsory retirement and pension plan for all carries subject to the Interstate Commerce Act claiming it was related to efficiency of transportation.
· Roberts’ majority holding – unconstitutional because the law was not in purpose or effect a regulation of interstate commerce but was essentially related solely to the social welfare of the worker
o Supported by cases like Hammer (Congress can’t regulate outside of legitimate sphere)
o Reinforces the Hammer framework because social welfare is insufficiently connected to as was the child labor manufacturing
Schecter Poultry (1935), page 91
· Holding – Unconstitutional because insufficiently related to commerce and sold to local poultry dealers
Carter v. Carter Coal (1936), page 93
· Sutherland’s majority holding – unconstitutional because the regulation of maximum hours and minimum wages in coal mines doesn’t directly impact commerce
o Citing Schecter, it finds that production is a purely local activity.
C. Post New Deal
NLRB v. Jones & Laughlin Steel Corp (1937), page 97
· Facts – Jones is in business of steel manufacturing and it’s a large integrated company with 75% of its product being shipped outside of the state. The NLRB found that Jones was engaging in unfair labor practices because it had fired certain union workers.
· Hughes’ majority holding –this was allowed and constitutional because it’s essential to “industrial peace,” and to prevent industrial warfare
o Court seems to be willing to say that this is a legitimate effort to protect interstate commerce
o Also the steel corporation was clearly a part of interstate commerce
o There is still a distinction between what is interstate and not but this is sufficiently tight enough to justify regulation by Congress
Wickard v. Filburn (1942), page 102
· Facts – π sued the Secretary of Agriculture to enjoin enforcement of a penalty imposed upon him for exceeding a market quota that he had grown for home consumption and to feed his livestock.
· Jackson’s majority holding –upheld the constitutionality of the act saying that though this has small impact on interstate commerce, the aggregate effect of all such wheat quota infringements would have a huge effect
United States v. Darby (1941), page 98
· Facts – Δ was a lumber manufacturer who challenged an indictment charging with violating the Fair Labor Standards Act, which regulated hours and wages of employees in local manufacturing activities.
· Stone’s majority holding –statue is constitutional and acceptable as it prohibits shipment or transportation of the proscribed goods
o Similar to Hammer which is overruled here as the means adopted by the statute for the protection of interstate commerce by the suppression of the production of the goods for interstate commerce is related commerce.
o Power to regulate commerce gives authority to regulate interstate commerce even by prohibition and it’s irrelevant whether it’s in conflict with state
eral government
o This case evaluates what should happen if there is only one state (one of the inherent defects in such a system)
Gregory v. Ashcroft (1991), page 16 of Supplemental Handout
· Facts – ADEA makes it unlawful for an employer to discharge any individual over 40 years old because of age. Π’s contend that Missouri’s mandatory retirement requirement for judges (70 years) violates the ADEA.
· O’Connor’s majority holding – states’ power to define the qualifications of their officeholders is upheld because the ADEA is interfering with the judiciary function of states which is presupposed in the Constitution
o A federal law will be applied to important state government activities only if there is a clear statement from Congress that the law was meant to apply
o Doesn’t however overrule Garcia because the fact that the act doesn’t necessarily include “judges” in the text show that Congress never intended it to be so
South Dakota v. Dole (1987), page 24 of Supplemental Handout
· Facts – Congress passed a law which directed the Secretary of Transportation to withhold 5% of federal highway funds otherwise allocated from States in which the purchase or possession of alcohol by someone under 21 is lawful. South Dakota sued saying that such constitution limitations on the spending power violated the 21st Amendment
· Rehnquist’s majority holding – a conditional grant of federal money is constitutional as such encouragement is a valid use of spending power as long as it’s in the pursuit of the general welfare, it is unambiguous, and conditions on federal grants are related to national interests
o Perhaps because the federal government would only withhold 5% of highway funds (even though on average, 20% of states’ budgets come from federal sources), the states can still decide and have a choice
· O’Connor’s dissent – this is limitless and the federal government would then be able to do anything it wants
F. The Spirit of Federalism Returns – The Commandeering Doctrine
New York v. United States (1992), page 134
· Facts – The governors in all the states in 1980 came together and decided on an agreement solving the problem of nuclear waste (of course no single state wanted the nuclear waste). 42 of the states complied, but one of them, New York, didn’t and brought suit challenging the legitimacy of such a statute. The governors asked Congress to pass a statute to ensure that the states complied with the agreement and so Congress passed a statute in 1985 that encouraged compliance in 3 ways:
o Imposing taxes on those states that didn’t comply and remitting those to states that did comply
o Access incentives – ordinarily can’t discriminate based on states but this would allow states to refuse nuclear waste from other states that did not comply
o Take-title sanctions – after a certain point, states that didn’t comply would get to own the nuclear waste.
· O’Connor’s majority holding – Such a statute is invalid as the federal government may not compel the states to enact or administer a federal regulatory program
o There’s no problem with the incentives but finds a problem with the “take-title” provisions because it’s not longer encouragement but inducement and coercion and such an instruction to state governments would be beyond the authority of Congress to regulate and thus Congress is offering two unconstitutionally coercion choices
o Says that such commandeering is invalid because
§ Intent of original framers of constitution – Articles of Confederation only granted power for national government to act through the state legislatures but that was one of the reasons for its failure and thus because framers adopted the Virginia plan, it gives direct authority to national government over individuals (this constitution according to Federalist No. 15 explains that the federal government can enact legislation over the people
§ Protection of natural liberties – there must be alternative seats of authority and legitimacy to counterbalance the federal government
o Allowing Congress to commandeer state governments would undermine government accountability
o Though not revisiting Garcia, court clearly rejects conclusion that the federal judiciary wouldn’t use 10th Amendment to invalidate federal laws
o Doesn’t purport to limit the power of federal government to intervene under the 14th Amendment
· White’s dissent – If interested in protecting state sovereignty, there needs to be a failure of the political system but here the states agree
· Stevens’ dissent – there is problem invoking framers because perhaps power over individuals was an additional power of the federal government
Printz v. United States (1997), page 139
· Facts – The Brady Act made it illegal for criminals to get guns and directed state law enforcement officers to participate in the administration of a federally enacted regulatory scheme. It imposed upon the chief law enforcement officer (CLEO) of each jurisdiction to “make a reasonable effort to ascertain within 5 days whether receipt of gun would be illegal.” It didn’t obligate any other kind of action.
· Scalia’s majority holding – Brady Act is unconstitutional because Congress cannot compel the states to enact or enforce a federal regulatory program by conscripting the state’s officers directly
o The federalist papers’ contemplation of federal government using state officials to enforce regulations necessarily implies that the federal government would act with the consent of the states but that consent is not here (though McCulloch might suggest that the federal government doesn’t need to depend on the states)
o Separation of Powers doctrine – Concerned about Congress making an end run around the executive powers granted to the President under Article II, § 3
o There seems to be several problems with Scalia’s opinion:
· Dissent – even if New York v. United States is correct, the extension of commandeering principle seems different here because Federalist No. 27 contemplates that courts of local governments will be rendered auxiliary to enforcement of federal laws (and also might mean that FLSA is invalid because it forces states to enact regulations
