I. Constitution Generally
A. Conferal of powers
1. Legislative power on Congress – Art. I § 1
2. Executive power on President – Art. II, § 1
3. Judicial power Supreme Court – Art. III, §1
B. Language
1. Language of the constitution is either
a. constitutional – creates a power OR
b. declaratory – merely announces a power that already exists
II. Federal Judicial Power – major developments
A. Authority to review federal laws/executive actions
1. Contit. is silent about judicial review of exec. and legis. acts
2. Marbury v. Madison–est. judicial review of legis. or exec. decision that may be in conflict w/ constit., and if so, they are invalid
a. Facts: Marbury ass’gn commission as justice of peace by outgoing Pres. Adams (federalist) the day before Jeffersonians (Republicans took office). Marbury’s comm. didn’t get delivered to him, so he sought writ of mandamus to force Madison (Jefferson’s sec. of state) to deliver the comm.
b. substantive q. (brilliant b/c decided b/f juris. q) –P was entitled to comm. b/c
a. appointment effective once signed and sealed, not delivered and was entitled to remedy b/c duty of ct.’s to provide remedy for every wrong
b. appointment of judge diff. from cabinet member that can be dismissed at will by Prez.
c. juris q. (real importance of the case) - § 13 of judiciary act is unconstit. b/c
i. it purports to give S.Ct. orig. juris. to issue mandamus but ii. Art. III, § 2, para. 2 of con. only gives S.Ct. orig. juris. over cases involving foreign diplomats and states. a. what isn’t enumerated isn’t there, S. Ct. can’t have orig. juris. over anything but the enumerated instances
d. political dimension – Marshal decided subst. q. first b/c wanted to est. Marbury was in the right but found no juris. b/c if had granted relief to Marbury, Prez. wouldn’t have followed and would have discredited S. Ct. in its early stages.
e. Paulson’s evaluation of arguments
i. constit. trump of conflicting legis. Acts
a. reduction ad absurdum (Marshall)
i. assume opposite of premis is true – legis. on same level as con.
ii. opposite yields absurd results – constit. is an absurd attempt by people to limit a legis. power that is unlimitable, constit. would be meaningless.
c. proves your premise – b/c constit. not meaningless, its prov. must trump legis. Acts
b. Gibson’s (Eakin v. Raub) counter
i. to declare a law void that was passed according to Congress’s Art. I power is an usurpation of that power
ii. judicial power to review Act to determine whether conflicts
a. Plain language (Marshall)
i. lang. of constit. – judicial power shall extend to all cases arising under this constit.
ii. legis. Act arises under constit (Art. I)
iii. judicial review extends to legis. act
b. slippery slope against Marshall (Gibson in Eakin v. Raub)
i. causal claim- if grant judges some substantive review power then their power for review will keep growing
NOTE: he predicts power growing to review election results and qualifications of legislators
ii. normative eval. (is the result a bad thing) – not bad for judges to inquire into elections or leg. qualifications
iii. result – Gibson’s arg. doesn’t support his point
c. checks and balances
i. Marshall – judiciary acts as check on congress
ii. Gibson’s conunter – the ppl. are the check on Cong.
a. framer’s didn’t intend a collision b/t branches
d. oath of office
i. Marshall – Justices swear to uphold the constit.
ii. Gibson’s counter – every officer of gov’t takes the oath
a. giving effect to an unconstit. law is not a positive act violative of the constit.
4. Other arguments re: Judicial Review
a. arguments for judicial review:
i. Countermajoritarian view – Congress rep. majority and therefore might pass laws which infringe on minorities rights. Whereas, justices appointed for life and therefore apolitical.
ii. Stability – if each branch free to interpret the constit. there would be no final answer b/c
a. branches would interpret constit. in their favor
b. court’s decision would have limited effects b/c overruled by another branch
iii. Judicial self restraint
a. court decides only issue presented (narrow holding)
b. courts no decided constit. issue if can be decided another way
c. courts attempt to construe stat. so as not to conflict w/ constit.
b. arguments against judicial review
i. Antidemocratic – fed. judges aren’t elected officials and therefore not politically accountable. To vest final auth. over constit. is repudiated of prin. of democratic self-governance. See:
a. Substantive due process in “liberty of contract”
b. Bush v. Gore dissent
ii. Entrenched Error – very difficult to correct mistaken interpretation by judiciary. Can only correct through:
a. subsequent ct. overrules, appoint new justices, impeachment, constit. amendment
B. Authority to review state laws
1. Less problematic than review of fed. laws b/c if states can pass laws repugnant to fed. laws then states will not be part of the republic
a. threatens cohesiveness of fed. system itself
b. review power is inevitable b/c constit. review of state dec. is the glue that holds the union together during times of instability (Holmes)
i. if not just be a loose confederacy of states (slippery slope)
2. S. Ct. can review state laws/ct. decisions for conflict w/ fed. laws interp. a. Martin v. Hunter’s Leasee
i. Facts: S. Ct. acquired jurisdiction to hear appeal from VA state ct. decision under §25 of Judiciary Act b/c involved a treaty. S. Ct. reversed state ct.’s decision. State ct. refused to give effect to S.Ct.’s judgment b/c held §25 was unconstitutional.
ii. rationale
a. Art III – grants appellate jurisdiction over all cases arising under the constit. regardless whether heard in state or fed. ct.
b. Supremacy Clause – federal law must be supreme to state
c. Uniformity – necessity for uniformity of constit. interpretation throughout the United States
Note: state judges are independent when hearing exclusively state claims
C. Alternative approach to constit. review –centralized judiciary
1. American judiciary is decentralized – every ct. can hear constit. claim
2. German/many other countries are have constitutions which provide for a centralized judiciary
a. differences
i. each state has their own court for constitutional interpretation
a. if a ct. of orig. juris. has a constit. question, it stays proceedings and gives the question to the constitutional ct.
iii. if statute is found unconstitutional, the entire statute is invalid
a. in US ct’s the statute is just set aside, but usually fades away b/c of stare decisis
iv. ct. can issue mandate to parliament to repeal or re-write laws
v. ct. can hear abstract reviews
a. in US must be an actual challenge to the statute
vi. ct. divided into 2 senates, each w/ own specialty, appointed only for 12 yrs. or age 70
vii. jurisdiction over disputes b/t high state organs
a. in US don’t hear disputes b/c of political quest. doct.
b. similarities
i. parliament expressly enumerates jurisdiction
a. in US jurisdiction is inferred (Marbury v. Madison)
ii. jurisdiction over fed.-state conflicts
a. in US – fed. judiciary Act § 25 and modern counterpart
iii. citizen can bring compl. for gov’t failure to recognize a constit. right
a. in US citizen can bring compl. under title 42, civil rights
D. Limits on Judicial review
1. Congress’ power to “strip” the courts of appellate jurisdiction under the exceptions clause (Art. III §2, para. 2)
a. McCardle
i. FACTS journalist imprisoned under the Military Reconstruction act for writing incidiary comments. Applied for writ. of habeas but was denied. Appealed to S. Ct. under Act which gave ct. appl. juris. over habeas claims. After arguments were heard by ct. but b/f the ct. passed judgment, Congress repealed the habeas act taking away S.Ct’s juris to hear the case.
ii. Rule: Congress can withdraw S.Ct.’s appl. jurisdiction under the Exceptions Clause (appl. ct. juris conferred “with such expections…as Congress shall make) any time b/f judgment
ii. Hornbook Rule: Congress’ power to reign in appl. juris. under the exceptions clause is unlimited
iii. Paulson’s View: last line of the opinion states “it does not affect the juris. which was previously granted” which may reference §14 Judiciary act giving ct. power to issue writ of habeas
a. POINT – case doesn’t speak to ct’s acquiescence to ct. stripping power b/c retained habeas juris. under another act.
b. Yerger
i. FACTS: like McCardle also imprisoned under Military Reconstruction act. Unlike Mcardle, he seeks habeas under §14.
ii. RULE: Ct. grants jurisdiction to issue writ under §14 even though congress stripped juris to hear writ under Habeas Act.
iii. Rat.:
a. b/c of importance of appl. review, if congress strips appl. review by repealing or passing an law, ct. will construe it narrowly to apply only to that law.
iii. Point: proves ct. fight congress trying to strip them of juris.
2. Congressional power to decide the outcome of a case by changing the laws
a. Klein
i. FACTS: P pardoned and sought to recover property that was taken away. While on appeal to S.Ct. congress passed act undoing the pardon and stripping ct. of jurisdiction.
ii. RULE: Act stripping S.Ct. of jurisdiction to hear a pending case and imposing its interpretation of the lawinvades judicial function and violates separation of powers.
a. congress’ act was basically an attempt to decide the case for the court.
b. case involved an indiv. right, where congress has less discretion to restrict
b. Seattle Audubond
i. FACTS: Environmental group sued Forest Service alleging violated environmental laws. While on appeal congress changed the laws so Forest Service was in compliance.
ii. Ct. upheld the change in law
a. this was just a change in law rather than an attempt to tell ct. how to interpret evidence or alter jurisdiction (like Klein)
b. case involvedpolicy, not indiv. rights (like Kline)
3. General Theme of court stripping
a. Theory for court stripping
i. Framers did not place any limit on congress’ ability to withdraw app. juris. under the Exceptions clause (no internal constraints)
ii. Congress is branch that has power to make laws, ct. should only interpret them.
a. Countermajoritarian – ct.’s are making the laws by overturning congressional intent, and congress (not the ct) represents the ppl.
b. Theory against court stripping
i. Congress can’t pass laws which restrict guaranteed rights protected by the constit. (external constraints of the constit.)
a. Ct. gives effect to the ppl’s will by enforcing the constit. when congress gets it wrong – protects the minority
b. protecting indiv. rights is an essential function of the ct. and more indiv. rights recognized now than in days of above cases (late 1800s)
ii. reduction arg. – if S. Ct. did not have juris. to hear claims involving indiv. rights, could lead to liberties stripped, imbalance in gov’t, majoritarian control
4. Election issues are reserved by Art. II, §1 to the states
a. Bush v. Gore – Ct. wrongly overruled Fl’s interpretation of its own laws re: election decision based on equal protection grounds
i. Steven’s dissent – Art II lang. that election matters determined by states w/ deference by the state ct. to provide the final answer. addit., there is not fed. q. presented
ii. Souter’s dissent – 1887 election laws leave the last word w/ congress. May be an equal protect. issue if diff. districts using diff. standards to interp. votes, but that should be remanded to state ct.
iii. Ginsberg’s dissent – in past where Ct. has overruled state ct.’s interp. of its own laws (Martin v. Hunter’s Leasee) where exceptions to the rule. The case poses a political question under the Guarantee Clause
iv. Breyer’s dissent – clear from legis. history that congress is to have the last word
NOTE: case dist. from Baker v. Carr b/c not talking about malapportioned districts, talking about prez. election at large
5. Political Question Doctrine
a. insulates from judicial review some question where separation of powers issues loom too large (see Separation of Powers disc. below)
III. Congressional power under Art. I, § 8
A. Generally
1. Art. I, §8 lists certain enumerated powers of congress (constitutive)
2. Model of limited gov’t – powers that are expressly enumerated, excludes any other powers vested in Congress
3. Bill of Rights are express denials of gov’t power/citizens’ immunity, to compliment the enumerated powers to further ensure limits on fed. Gov’t
B. The Necessary and Proper Clause (Art.I, §8, para. 18)
1. Broad Reading
a. Mcullough
i. Facts: MD enacted tax upon all banks in state not charted by the state. The statute only applied to Bank of U.S. (a federal bank) est. by congress to control money supply. Bank refused to pay tax.
ii. Main issue: does congress have power to est. a bank.
iii. Arguments:
a. Hamilton (for broad reading)
i. n/p clause is declaratory of congress’ implied power to use any means nec. to achieve an end enumerated in the constit. (spending power, nat’l def., ect).
b. Madison/Jefferson (narrow reading)
i. n/p clause is a restriction, it is constitutive of congress’ power to only use means necessary and proper to achieve an end
a. bank is not necessary to achieve the end
a.to imply power in nature of gov’t would give gov’t every power (slippery slope)
Note: Madison orig. arg. for broad reading in Federalist Papers b/f he represented state of MD
iv. Marshall’s opinion/Rule – broad interpretation
a. means/end matrix
i. let the end be legit. and w/in scope of constit. then
ii.means which are appropriate, which are adapted to that end, are constitutional
b. limits
i. end can’t be a pretext for executing powers not entrusted to gov’t
ii. means must not be prohibited by constit.
b. rationale
i. Constit. is great outline – b/c general, everything that couldn’t be inferred is enumerated (static), everything else is outlined for inferences.
ii. proper = appropriate (ignores necessary)
Note: precursor to modern “rational relationship” test – but rat. relationship implies truth as a criteria
C. Commerce Clause (Art. I, § 8, para. 3)
1. Generally
a.Framers intent for CC (as stated in Hood) – states have police power to protect, health safety and welfare of their citizens. But states can only regulate internal commerce. This creates natural tendency for states to economically favor their own residents. Created a balkanization among the states, b/c each one doing their own thing w/out an eye to the greater good.
b. Purpose of CC – created to provide uniform regulation of state trade
2. Broad Reading (Marshall’s opinion in Gibbons – NY ferry case)
a. Congress’ regulatory power qua plenary power
i. framers intent (Jackson’s statement in Hood – above)
ii. states are disabled from protecting their citizens from outside comp.
iii. if states regulated themselves, rivalries would break out
b. Doctrine of Representation allows all states equal access to check congressional regulatory power
i. alleviates fear of abuse of power
c. Purely instate activities are open to state regulation
3. Early cases (pre-new deal) – oscillation b/t formalism and realism
a.Formalism: limiting application of CC by comparing challenged statute to objective definitions (doesn’t address the real issue - discriminatory effects)
i. insurance policies aren’t commodities, not reg. by congress and open to state reg., even where discriminatory for out of state insurance co.’s (Paul v. VA)
ii. state only prohibits “manufacture” of alcohol, not carrying it into another state, even if all product is manufactured for out of state shipment (Kidd. v. Pearson)
Note: these are actually dormant CC cases b/c challenges to state statute w/out a conflicting fed. stat.
iii. congress can’t regulate instate manufacture b/c causes a monopoly (discriminatory effect) across several states (Knight) a. manufacture is not commerce (indirectly related)
b. transportation is commerce (directly)
c. Congress can only regulate things directly related to comm
i. slippery slope if congress can regulate all directly related things it will swallow up state’s police power
Note: Knight is classic example of formalist approach
iv. congress can’t est. uniform child labor laws b/c reg. instate manufacture, not transport.
a. ct.’s arg.
i. dist. from Lotto case b/c that involved transport of harmful goods
ii. CC not created to prevent unfair comp. b/t states
iii. reg. of child labor is state auth. and gov’t come crashing down if congress given power to reg. state auth. (slippery slope)
b. Holmes dissent/Paulson’s evaluation
i. case exactly like Lotto – reg. morals
ii. majority opinion puts states who rightly choose to reg. child labor at a disadvantage – exactly what CC was created for, to put states on equal footing
iii. majority’s slippery slope is overdrawn
Note: when arguing for narrow reading, always trot out 10th Amend. just for good measure
b. Broad, realist reading of CC (address problem by determining the actual economic impact or motivation for the regulation)
i. within field of navigation- federal safety reg. applied to boat carrying product wholly instate, but transporting goods from out of state (Daniel Bell)
ii. to regulate public morals – fed. law prohibiting interstate transportation of lottery tickets upheld on grounds of “transportation” (Lottery Case)
a. Paulson doesn’t like b/c “transportation” of lotto tickets was a pretext for regulating pub. morals – violates Marshall’s pretext limitation.
iii. w/in field of transportation – congress can regulation intrastate transportation that has a “close and substantial relationship” to interstate comm. (Shreveport – classic realist opinion)
a. Test for close and substantial relationship (empirical)
i. safety OR
ii. efficiency OR
iii. uniformity (fair market)
iv. w/in field of trade practices – instate trade practices that congress fears will probably burden interstate comm. are brought into the current of interstate commerce for fed. restraint (Stafford)
a. “current” test is less workable than close/sub. relation. test
4. Laissez faire Court resists Roosevelt’s legislative program – shift back to formalism (reminiscent of Kidd/Knight)
a. Schechter
i. FACTS: following great depression Roosevelt & Congress had agency draw up Poultry Code w/ intent to stabilize industry prices. P, convicted of violated the code, challenged it as unconstitutional.
ii. RULE: Local activities at the “end of the stream” do not have a direct effect on interstate commerce
iii. strong formalist opinion (looking at direct/indirect effects) by Hughes, same who wrote Shreveport.
a. waiting for a big case b/f turned the corner to realism
b. Carter (carbon copy of Kidd/Knight) – magnitude of effect is irrelevant if the effect is not direct (logical and linear link to interstate comm.).
i. diff. from Schechter b/c ct. not just ducking the issue
5. Revolution of 1937: Recognition of congressional police power (realism here to stay for awhile)
a. Congress may regulate any intrastate activity that exerts a substantial effect on interstate commerce (NLRB v. Jones & Laughlin – act prohibiting employers from firing b/c employees membership in Union upheld)