Constitutional Law Outline
I. Constitutionalism and Judicial Review
A. Constitutional Interpretation – Types of interpretation
i. Textual:
a) Look at the definition of the individual words
b) See if the words are used elsewhere in the document
c) Look at grammar and punctuation
ii. History/Originalism:
a) Ask how things were when the Constitution was created
B. Judicial Review
i. Two Competing Theories
a) Formalism
i) The Constitution should be interpreted in accord with its original meaning and statutes should be read in accord with their plain meaning.
ii) Textual review of Constitution without regard for the impact of the decision. (“Even if there is an injustice here, it is not our job to fix that injustice, but merely rule on interpretation of the Constitution.”)
b) Functionalism
i) Review the themes of the Constitution for their function in governing and allow adoption of non-specified rights, privileges, etc.
ii. Marbury v. Madison – The Constitution is the law of the land, and all other laws are subservient to it. The Constitution enumerates powers of the branches. The U.S. Supreme Court has constitutional authority to review executive actions and legislative acts. The Supreme Court has limited jurisdiction, the bounds of which are set by the U.S. Constitution, which may not be enlarged by the Congress.
a) Marshall’s view of Constitutionalism: Because the framers bothered to write it down, the Constitution serves to limit the powers it gives. The only Constitutional powers which exist are limited to those listed therein.
II. Executive Power
A. Introduction to Executive Power
i. Youngstown Sheet & Tube Co. v. Sawyer– The executive branch is bound to enforce the laws within the limits of the authority expressly granted to him by the Constitution, and he cannot usurp the lawmaking power of Congress by an assertion of an unspecified aggregation of his specified powers. Concurring justices argue about whether the President has emergency power if there is no conflicting legislation. Justice Jackson says: What really matters is legislative authorization and he defines executive power according to Congress’ approval. If its not in the text of the Constitution, you cannot do it AND if Congress doesn’t tell you to do it, then you shouldn’t do it.
a) Jackson’s Three spheres of executive authority:
i) strongest with a congressional authorization
ii) weakest against a congressional prohibition
iii) uncertain alongside a congressional silence
ii. US v. Richard M. Nixon – Conversations between the President of the United States (the President) and his advisors are generally privileged, but that privilege is not absolute.
B. Executive Power – War Powers
a) Executive Agreements
i) What does the text of the Constitution say?
ii) What has Congress said in legislation? (See Youngstown)
iii) What are the chances of judicial enforcement?
C. Executive Power – War on Terror
i. Hamdan v. Rumsfeld (2006)
a) Issues: Jurisdiction: Does the court have jurisdiction despite Congress’ Detainee Treatment Act. Military commissions: Does the President have the authority to create these tribunals/commissions being used to judge Hamdan?
b) Held: Jurisdiction: Court maintains its jurisdiction by disregarding the Detainee Treatment Act. Not all jurisdictional stripping statutes are retroactive. Military commissions: No, President can’t do it alone; Yes, with Congressional approval under Justice Jackson’s Youngstown analysis.
III. Congress’ Commerce Power & Tenth Amendment Limits:
A. Congressional Authority
i. Article I, Section 8, Clause 3: “The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes…”
ii. McCulloch v. Maryland (1819) – The Constitution is the supreme law of the United States and state law must defer to it. Constitution emanates its authority from the People. While it is true that the federal government is one of limited and enumerated powers, the Constitution does not exclude incidental or implied powers. It does not require that everything be granted expressly and minutely described. This seems contrary to Marshall’s prior view of enumerated powers in Marbury.
iii. Court has found 3 ways that Congress can regulate under the commerce clause:
a) Commerce – interstate interactions
b) Instrumentalities of commerce
c) Activities with a substantial relationship to interstate commerce
B. Congressional Power & 10th Amendment (Limited Era pre-1937)
i. What is commerce? Commerce clause read narrowly pre-1937
a) Gibbons v. Ogden – (ferry boats in NYC) “Commerce is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”
b) US v EC Knight Co. (1895) – Congress cannot regulate manufacture under Commerce clause. There is a difference between “manufacture” and “commerce”, namely that commerce succeeds manufacture. Commerce is transactions, transportation, purchasing, exchanges, but not manufacturing of a product. (no longer good law – Darby, Wickard)
c) Carter v. Carter Coal Co. (1936) – Intrastate activities including production and manufacture are not interstate commerce. (no longer good law – Darby, Wickard)
ii. What is “among the states”?
a) Houston, East & West Texas Railway Co. v. US (Shreveport Rate Cases) (1914) –Congress can regulate purely intrastate railway pricing that impacts interstate pricing. A narrower reading of the commerce clause that allows Congress to regulate purely intrastate activity that has a “close and substantial” affect on interstate commerce.
b) Schechter Poultry Corp. v. US (1935) – As the Defendant corporation buys the poultry in state and sells the poultry in state for in state consumption, the corporation is not involved in interstate commerce and Congress cannot regulate. Congress cannot regulate intrastate transactions having an indirect effect on interstate commerce. (This distinction becomes less important after NLRB & Darby – 1937 & 1941.)
iii. Does the 10th A limit Congressional powers?
a) “The powers not delegated to the United State by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
i) Two ways to read 10th Amendment:
· Just a reminder of the mandate of federal government of enumerated powers, not an actionable cause.
· It does create a judicially enforceable protection of defined power of the states.
b) Hammer v. Dagenhart – Prior to 1937, 10th Amendment was a tool to protect states’ police powers from federal regulation. Congress’ power under the Commerce Clause cannot undermine the police power left to the States by the Tenth Amendment. (overruled by Darby)
c) Champion v. Ames – Lottery tickets crossing state lines are interstate commerce.
C. Congressional Power & 10th Amendment 1937-1991
i. A new broad reading of the Commerce Clause
a) NLRB v. Jones & Laughlin Steel Corp. (1937) – If intrastate activities have a “close and substantial relation to interstate commerce,” Congress has the explicit power to control them insofar as they affect interstate commerce. Almost any activity that affects interstate commerce is open to Congressional regulation.
b) US v. Darby (1941) – Congress may regulate intrastate activities so long as there is a connection between such activities and interstate commerce. Abandons distinction between production and commerce specifically overruling Hammer v. Dagenhart. Shipment is an obvious facet of production, but it is interstate commerce. The Tenth Amendment is merely “a truism that all is retained which has not been surrendered.”
c) Wickard v. Filburn (1942) – In upholding federal laws controlling wheat production, the Court held that Congress may regulate the activities of entities totally apart from interstate commerce, if those activities affect interstate commerce. Although the wheat may be entirely for personal consumption, it reduces overall demand for wheat. Although the effect of one farmer may trivial, when viewed in the aggregate (if everyone overgrew wheat “for personal consumption”), this decrease in demand would have a significant effect on interstate commerce.
i) The court discarded the “direct-indirect” approach of Gibbons v. Ogden. The new test is whether the activity has a “substantial economic effect” on interstate commerce.
ii. Civil Rights cases – The meaning of “commerce among the states”
a) Heart of Atlanta Motel (1964) – Marketing hotel rooms to out of state visitors found to be interstate commerce. Congress may regulate local businesses under the Commerce Clause if their business activities have some impact on interstate commerce. This case established the principal that the scope of the Commerce clause was so broad that almost any sort of activity could be touched thereby.
b) Katzenbach v. McClung (1964) – Although an activity is local and may not even be regarded as commerce, Congress m
it in the aggregate.
ii. The 10th Amendment arises to limit federal regulation
a) New York vs. U.S. (1992) – The federal government passed the Low-Level Radioactive Waste Policy Act which compelled states to either provide adequate waste disposal sites or take possession of such waste (liability and disposal). The court held that such a law interfered with state sovereignty under the 10th amendment as it compelled a state to regulate the field instead of directly regulating the generators and disposers of waste. Congress does not have the power to compel states to enact or administer a federal regulatory program.
i) Majority agrees that 10th Amendment is just tautology, but they surprisingly use it to put down the ‘take title’ portion of the law. (They also agreed that Congress had authority under Commerce Clause.)
ii) Court distinguishes from Garcia by focusing on Congress compelling the States to legislate themselves rather than merely recommend. The Congress cannot commandeer state legislatures.
iii) Congress has some authority over states; but not the authority to strip one of their most basic sovereign powers.
b) Congress may effect the objective by the following means:
i) Incentivize: Attaching conditions on the disbursement of federal funds. The conditions must bear some relationship to the purpose of the federal spending. (NY v. US)
ii) Pre-emption doctrine: Offering the state a choice of regulating the activity according to federal standards or having federal law pre-empt the state law. The federal government would be responsible for enforcement, in the latter case. (NY v. US)
iii) Encouragement: Regulate old-fashioned commerce issues. Directly regulating the individuals in the state by exercise of the Supremacy Clause. In this case the federal government must enforce the law or regulation.
iv) Congress may regulate the states’ activities where the regulation does not require the states in their sovereign capacity to regulate their citizens. (Reno v. Condon)
c) Printz v. U.S. (1997) – The federal government passed the Brady Act which required local and state law enforcement officials to collect and submit to the federal government data on those purchasing handguns. The court held that such a requirement was a violation of state sovereignty as it hijacked state agents to enforce federal regulations, rather than enforcing such regulation by means of federal law enforcement. Congress may not command state officers or their political subdivisions to administer a federal regulatory program.
d) Reasoning for banning direct control over state governments:
i) 10th Amendment preservation of rights to states and division of state & federal power
ii) Decreased accountability as the legislators that set the rules (federal) are isolated from the public feedback regarding the legislation by the state officials who are enforcing the legislation (NY v. US)
iii) Disturbs the separation of powers between the branches of federal government by decreasing the executive’s power to enforce the legislature’s statutes. (Printz v. US)
e) Reno v. Condon (2000) – The federal government enacted the Driver’s Privacy Program that required state DMV and private organizations to not release private information on persons who have submitted such data to the DMV for licensing purposes. The court held that the law was permissible as it: (1) is generally applicable, (2) demands action on the part of the state rather than enforcement of a federal rule on its citizens, and (3) is a valid exercise of the Commerce Clause. Congress may regulate state activities where the regulation does not require the states in their sovereign capacity to regulate their citizens.
