Constitutional Law Outline-Massie Fall 2011
Chief Justice Roberts; Kennedy; Scalia; Thomas; Ginsburg; Kagan; Alito; Breyer; Sotomayor
Judicial Review
· The power of the federal courts to review legislation to determine whether it is consistent with the constitution
Marbury v. Madison (Marshall)→ Establishes Judicial Review
· Facts: Prior to his leaving office, President Adams commissions Federalist judges including Marbury, but Marbury’s commission did not arrive in time. Does Marbury have a right to his position and can the Supreme Court force the executive branch to deliver that position?
o 1. Does applicant have a right to the commission? Yes, everything was done that was necessary to vest this property right.
o 2. Does the law afford a remedy if that right has been violated? Yes, you can’t have a right without a remedy.
o 3. Is a Writ of Mandamus from the Supreme Court the correct remedy?
§ Judicial power is vested in the Supreme Court and has jurisdiction to issue a writ of mandamus…”to any persons holding office” which includes the Secretary of State.
· Rule: The Supreme Court has the power, implied from Art IV § 2 of the constitution to review acts of Congress and, if they are found repugnant to the Constitution to declare them void.
· Held: It is the province of the judiciary to decide what the law is. The constitution is the supreme law of the land and it is the province of the judiciary to say what the law is…The law is that the Constitution is supreme and any actions (including a federal law passed by congress) that go against the Constitution are null and void.
· If 2 laws conflict with each other the courts must decide on the operation of each. The Superior law has got to be the Constitution itself otherwise why have a constitution?
Cooper v. Aaron
· Facts: Arkansas sought to interpret the Constitution themselves and thereby ignore the SC’s ruling that separate but equal was unconstitutional.
· Held: State actors are bound by the SC interpretation of the constitution and may not refuse to obey federal court orders resting on constitutional grounds
· Art 6 of the Constitution makes the Constitution the supremacy clause → the judiciary says what the law is, and “if the legislatures of the several states may annul the judgments of the courts of the US, and destroy the rights acquired by those judgments, the constitution itself becomes a mockery” The constitution is always binding and the federal judiciary is supreme so respect.
A. Statutory Jurisdiction of the Supreme Court → Limits
· Original Jurisdiction § 1251: Supreme Court has original and exclusive jurisdiction over controversies between different states
o Not Exclusive:
§ Issues with ambassadors etc. of foreign states
§ Controversies between the US and a state
§ A state against the citizen of another state
· Courts of Appeals; certiorari; certified questions § 1254: Court of appeals may be reviewed by the Supreme Court by writ of certiorari, or certification by a court of appeals
· State courts; certiorari §1257: Final judgments may be reviewed in issues of a treaty, statute of US, question repugnant to the Constitution.
The Doctrine of Implied Powers
· Art I § 8: implied powers are those inherent in the means for carrying out the enumerated powers and implied powers. They are inferred from the constitution → confirmed by text in the Necessary and Proper Clause (“Congress shall have power to make all laws which shall be necessary and proper”)
· Enumerated Powers: commerce, tax & spending, declare war, immigration, bankruptcy, borrow money, patents/copyrights, foreign affairs, post-civil war amendments
· Implied powers get Rational Basis:
1) If not enumerated and not prohibited, judiciary determines if goal is legitimate
2) If legitimate Congress has implied power to choose all reasonable means to carry out legitimate goal
M'Culloch v. Maryland (Marshall)
· Facts: Congress established a 2nd Bank of the U.S. and Maryland sought to impose a tax on the bank’s offices in that state. Was the establishment of a national bank w/in the powers given to Congress?
· Held: Congress has the power to use any necessary means to carry out the enumerated powers.
· Rule: 1. Congress has discretion and power to choose and enacted the means to perform the duties imposed upon it from the N&P clause. 2. The C and the laws made pursuant to it are supreme and control the laws of the states.
· The Necessary & Proper Clause: Art. I, § 8 provides the enumerated powers of the federal government, but it has, in addition to the 17 enumerated powers, the power to create any legislation that is N&P to the exercise of those powers.
o This is not a limit on Congress (i.e. that the legislature could only pursue things which were ‘absolutely necessary’); but a statement that the details could be filled in by Congress
o “This constitution and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land”
o The Doctrine of Implied Powers: There is effectively an implied power to carry out the express powers by any means the legislature determines is best.
· Rational Basis Test: “Let the end be legitimate, let it be w/in the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist w/ the letter and the spirit of the Constitution, are constitutional.”
o The power of creating a corporation is for the purposes of effecting something else (means to an end)
o If the goal of some legislation is constitutional, then the courts will accept any reasonable means to accomplish that goal – so long as the ends are rationally related to an enumerated power it is probably constitutional
o Although there is strong deference to the legislature, that deference is not absolute; if there is no rational basis for a piece of legislation, it will be rejected by the courts.
· HELD: Marshall's doctrine of implied powers is that Congress has the power to use any necessary means to carry out the enumerated powers, thus incorporating the bank is a means of carrying out the enumerated power. If the Constitution was required to list all the powers it would be a code
US v. Comstock
· Under the necessary and proper clause, the court upheld an order to commit a mentally ill federal prisoner beyond release date; the government has the constitutional power to protect nearby communities from dangers of federal prisons. The Dissent says no power delegates to congress the power to enact a civil-commitment regime, and it's not necessary and proper.
State Powers in Light of the Commerce Clause
· Dormant/negative commerce clause: when congress has not acted pursuant to the commerce clause state legislation that regulate subject matter of national importance (interstate commerce) may still be subject to review. This is the negative aspect of the commerce clause power → the positive gives Congress the authority to regulate matters related to interstate commerce. Constitution is silent on the question of state’s reservation of power → neither denies nor grants.
· Pre-conditions for applying negative commerce clause analysis:
1) Area that the state has regulated must fall within the domain of the federal commerce power such that Congress could have legislated (consider scope set out in Lopez)
2) If/when the state regulation falls within the federal commerce power → ask whether the regulation conflicts with any statute Congress has enacted. If there’s a conflict, statute automatically fails under the Supremacy clause
· Even handed statute (look at burden) if it's not even handed then look at → serves legit local purpose (if it does serve local purpose) → is there a better alternative
Pike (nondiscriminatory) 1. The regulation must pursue a legitimate state end; 2. rationally related to the goal; 3. the regulatory burden imposed on interstate commerce must be outweighed by that state's interest in enforcing the regulation
Hughes Test (discriminatory): 1. whether that regulation actually discriminates against interstate commerce; 2. whether it serves a legitimate local purpose; and 3. whether alternative, less discriminatory means would be as effective
I. The Early Cases
Gibbons v. Ogden
· Facts: NY gives exclusive license…Gibbons has a federal license to carry on trade (NJ says you can sue for damages incurred by being impeded in NY)
· Held: Congress is specifically authorized by the constitution to regulate interstate commerce, and while doing so the state may not. The state must yield to Congress and the state may not prevent a federally enrolled, licensed vessel from enjoying all the privileges conferred by the act of congress (the injunction is lifted against navigation)
· The state law is repugnant to the constitution and void because it conflicts with the privileges granted by the federal licensing law (which exists to improve the quality of article produced by the labor of the country for export or domestic use).
Wilson v. Black-Bird
· Facts: In the Delaware case the Supreme court held that the state act empowering a dam is no repugnant to the constitutional power to regulate commerce because it is a gross and volatile creek
· Held: The clause is in its dormant state (congress hasn’t acted) the states and there is no conflict with any law passed on this particular subject. The power here comes from the state to protect the health and welfare of its citizens and is not really navigable anymore anyway. This dam was necessary to protect.
Cooley v. Board of Wardens
· Facts: Philadelphia harbor adopts a rule requiring any ships operating there to hire a Philadelphia pilot for the ships, but the Judiciary Act of 1789 had adopted and converted prior pilotage laws to federal control. However, the Act of 1789 isn't directly on point b/c it applies to all laws made before 1789.
· Held: Congressional act of 1789 Congress recognized that states can enact regulations that effect interstate commerce. Some subjects that are local in nature may require different rules to meet the local necessities
o This is not in conflict with the laws of Congress and does not interfere with any system which Congress has established.
· Rule: the states may regulate those areas of interstate commerce which are local in nature and do not demand one national system of regulation by Congress
o The grant of commercial power to Congress does not contain any terms which expressly exclude the States from exercising authority over its subject matter….if the state is excluded it is because of the nature of the power, thus granted to Congress, requires a similar authority not exist in the State.
o Until Congress should find it necessary to exert its power, it should be left to the legislation of the states (local not nation, best to be provided for not by one big system but by may legislative discretion by the status who can decide what's applicable to the peculiarities of the ports within their limits)
· PROBLEMS with Cooley: (1) Hard to determine whether something requires national or local regulation; (2) Cooley looked solely on the subject being regulated and did not consider how the states' regulation impacted interstate commerce
· TAKE AWAY: Cooley still stands for the idea that the dormant CC blocks some but not all state regulations which affect interstate commerce
II. Transportation
· Both these cases require the RATIONAL BASIS TEST
· Balancing test → extent of the burden on interstate commerece vs. extent of the local interest at stake
· The Inner-Political Check: Laws which have an internal effect and are unfavorable will be corrected through the political process because people of the state who are burdened by the state’s action can correct it (i.e. elect people opposed to the burdensome law – while if the in-staters are benefited by the burden on out of staters, the out of staters cannot correct this in the political process of the state) – if the law has no negative impact on internal commerce then there is no motivation for correction through political process
· It's important that the law not be discriminatory → Whatever burden exists must fall on instaters and out of staters or residents and nonresidents. That way the instaters have an impetus for change
South Carolina State Highway Department v. Barnwell Brothers
· Facts: SC legislature enacted a stature prohibiting the operation of trucks on its highways wider than 90 inches and heavier than 20,00lbs. The statute was enacted to promote highway safety.
· Rule: A limitation on interstate commerce to promote safety that does not discriminate against interstate commerce in favor of intrastate commerce does not unconstitutionally burden interstate c
but disposed of at a commercial facility within Alabama
· FGSL v. Michigan: statute was invalidated by the commerce clause, saying that prohibited private landfill operators from accepting solid wasted in another county, state or country
· OWS v. DEQ: Oregon imposed a tax on instate disposal of waste generated in other states but less on instate waste. Can’t have a diferential fee. Invalid
· CAC v. Town of Clarkstown: town agrees to build a solid waste transfer station, use it for 5 years, then sell it to the town. The town orders all waste be processesed at this station. The court said this isn’t ok.
IV. Outgoing Commerce
· Generally: Concerned with attempts by a state to regulate or restrict the export to other states of agricultural products, scarce natural resources or other commodities.
· Guiding Principles: (1) Local v. National Distinction (distinction first drawn in Cooley) If the area being regulated is of primarily local concern and the effect on interstate commerce is incidental the regulation is fairly likely to be sustained (2) Statute may not discriminate against interstate commerce, in either purpose or effect, against interstate commerce even though it may burden the commerce
· Differences between nondiscriminatory and discriminatory: they always look at the impact, but if it's obviously discriminatory (Dean's Milk) then they look at can this be done another way.
o If its' evenhanded they will call the ensuing process balancing (impact vs. interest that’s being served) not looking at alternatives just looking at the 2 interests in front of them
o If it discriminates they will call the ensuing process looking to see if there's a nondiscriminatory way to accomplish the process-they're looking outside the situation for other solutions.
HP Hood v. Du Mond
· Facts: N.Y. statute denied a Mass. milk distributor from operating a receiving station in N.Y. on the grounds that the receiving station will divert additional milk to MA and the result will be increased prices and less volume in the N.Y. market and a danger to the health of its citizens.
· Held: This is really just an effort to protect instate producers and disadvantage foreign distributors.
o State trying to protect home industry against out of state competition
· This is an “as applied” challenge → statute doesn’t facially discriminate, but the court will look to see whether there are discriminatory effects in the application
· The Court does not strike down the law on its face, BUT b/c statute was discriminatory in effect statute invalidà the goal of economic security cannot be achieved by discriminating against other states
Pike Church
· Facts: An order issued prohibited a grower of high quality cantaloupes from transporting uncrated cantaloupes from AZ to a nearby Cali city.
· Held: This was found to be an unlawful burden upon interstate commerce
· Balancing test: Where the statute regulated evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the punitive local benefits
· Dormant Commerce Clause: 1. Does the state regulation impermissibly discriminate against interstate commerce; 2. Are the incidental burdens imposed on interstate commerce clearly excessive in relation to the punative local benefits
Hughes v. Oklahoma
· Facts: An Okla. statute prohibited the export of minnows for sale outside of the state if those minnows were seined in Okla.
· Strict Test: Even handed statute (look at burden) if it's not even handed then look at → serves legit local purpose (if it does serve local purpose) → is there a better alternative
· Held: Statute violates the commerce clause; (1) statute discriminates on its face against out-of-staters so we apply strict scrutiny, (2) interest to not remove too many minnows probably a legitimate state interest, (3) however, there is a “least discriminatory alternative”; no other feasible alternatives had been pursued
· TAKE AWAY: If there is a discriminatory affect look to see if there is a reasonable alternative; if there is only a minimal or “incidental” burden on commerce apply balance test
Maine v. Taylor
· Facts: A Maine statute prohibited the importation of live bait into the state for the stated purpose of protecting a particular ecosystem that would be harmed by foreign parasites.
· Held: Despite the openly discriminatory effect of the statute, the Court held that the state’s interest in was significant and that the state law was the only reasonable way to protect that interest
· Applying the 3 part test:
o The law was discriminatory on its face (although not intent) on inter-state commerce
o The state interest was legitimate (protecting local environment)
o But, there was no non or less-discriminatory way to protect the local interest. Even with a strict, searching review (note that the court looked at reports stating the feasibility of local inspectors searching incoming fish for parasites, etc.)