Constitutional Law I C Notes for Review

Please keep in mind that these notes are fallible, and do not exhaust the subject matter of the course.

Judicial review. We started off the course talking about judicial review.

1. In Marbury v. Madison, we learned that federal courts may declare an act of the legislature unconstitutional if it is inconsistent with the Constitution. We talked a little bit about the wisdom of judicial review. We noted that judicial review preserves the strength and integrity of the Constitution, by providing a fairly effective means to enforce the document against the elected branches of government. In addition, we noted that judicial review often protects people and interests that have little clout in electoral politics. On the negative side, we noted that judicial review is counter-majoritarian, and that judge-made law is arguably illegitimate under pure majoritarian democratic theory.

2. In later cases, we saw that courts may also invalidate acts of the executive because they violate the Constitution. See, for example, Youngstown Sheet & Tube v. Sawyer.

3. From reading such cases as Marbury and Youngstown, we saw that the Constitution is law in the United States. It is not merely aspirational, like the Declaration of Independence. Because the Constitution is law, it may be cited in court, and, if it applies to the issue at hand, it can resolve the case. Moreover, if both a statute and the Constitution apply to a particular situation, and the two are inconsistent, the Constitution will govern, because it is higher law. In fact, it is the highest form of positive law in the United States.

4. There are several pieces of supporting evidence for the proposition that the Constitution is law. Ultimately, however, it is an impressionistic Aproof.@ First, such clauses of the Constitution as the Supremacy Clause and the Arising Under Clause seem to treat the Constitution as Alaw.@ Second, many parts of the Constitution, such as the Contract Clause, sound very much like law. As I say, however, there is no logically perfect proof in the Constitution itself that it is law in the sense that it may be cited in court as authority.

5. At some point in our discussion of Marbury, we talked about whether other branches of the federal government are bound by the Supreme Court=s interpretation of the Constitution. The answer to this is not perfectly clear, because there will be situations where some aspect of the federal government other than the Court will have the final say on a particular matter. Where that happens, that someone will be bound by the Court=s interpretation only to the extent he or she feels constrained to be. For example, although the Court held in McCulloch v. Maryland that Congress has authority to create a national bank, President Andrew Jackson subsequently refused to sign a bill renewing the charter of the Bank of the United States, on the ground, said he, that Congress lacked power to create such an entity. Because no one could subject his veto to judicial process, it survived as a presidential decision based on the Constitution and inconsistent with an interpretation of that document by the Court.

6. In Martin v. Hunter=s Lessee, we learned about the Supreme Court=s power to review decisions of state courts. As we learned in that case, Congress can constitutionally authorize the Court to hear appeals from such decisions. This is considered an incursion on state sovereignty necessitated by the federal system. In his opinion for the Court in this case, Justice Story attempted to defend this aspect of the Court=s jurisdiction as being required by the Arising Under Clause of Article III of the Constitution. Whether or not it is required by that clause is arguably beside the point. It is probably sufficient that it is permitted by that clause.

7. An additional matter we talked about in connection with Martin was whether the Supreme Court is bound by a state court=s assertion that a state ground for decision precludes assertion of a federal right. We learned that, although the Court will show deference to state courts, it will look into this aspect of a state court=s decision enough to assure itself that federal rights are not being frustrated. See the excerpt from Indiana ex rel. Anderson v. Brand on pages 25-26 of your text for a discussion of this.

8. In the notes after Martin, we learned about the doctrine of Aindependent and adequate state grounds@ as per Michigan v. Long. Under this doctrine, if a state court plainly states that its decision rests on state grounds that are independent (that is, logically distinct from federal law) and adequate (that is, capable of resolving the case), then the Supreme Court will not review the case. This is because the Court could not possibly change the outcome of the case.

9. We also talked a little bit about the statutory jurisdiction of the federal courts. As you learned in civil procedure, a federal court needs two sources of authority to exercise subject-matter jurisdiction over a case: First, it needs statutory authority to exercise such jurisdiction. Second, that statutory authority needs to be constitutional.

10. The basic statutory provisions regarding the Supreme Court=s jurisdiction are in your book. 28 U.S.C. ' 1251 describes the Court=s original jurisdiction. Section 1254 describes the Court=s jurisdiction to hear cases on writ from the lower federal courts. Section 1257 describes the Court=s jurisdiction to hear cases on writ from the state courts. You do not need to memorize these statutes, but you should be aware of the basics of how they work. For example, you should be aware of the independent and adequate state ground rule, and you should be aware that a litigant may take a case to the Supreme Court of the United States from a state court below the highest court of a state if the highest court, etc., refuses to hear the litigant=s case.

11. In Ex parte McCardle and the notes afterward we learned that Congress= power to control the appellate jurisdiction of the Supreme Court and all the jurisdiction of the lower federal courts is theoretically Aplenary@ (i.e., Afull@). In fact, under the Constitution Congress need not create lower federal courts at all. In theory, therefore, it could eliminate much, if not all, of the Supreme Court=s appellate docket and close down the lower federal courts. We talked about whether this would or could ever happen, and we noted that, perhaps, the Constitution requires that the Supreme Court be allowed to perform certain Aessential functions.@

12. From Muskrat v. United States we learned that federal courts may not issue advisory opinions. In this case, we talked about the difference between an advisory opinion and a case or controversy, and we noted that, under Article III of the Constitution, federal courts may not exercise jurisdiction in the absence of a case or controversy, which the courts define as a dispute between parties in adverse legal positions. We talked about the reasons for this rule a little bit. We noted that people may not argue vehemently when all they want is an opinion. We also noted that many issues disappear before they become real cases. Thus, the rule against advisory opinions preserves judicial resources and saves courts from unnecessary opinions.

13. We talked briefly about the Eleventh Amendment. We noted that states may not generally be sued in federal court. We learned about the Astripping doctrine@ of Ex parte Young, pursuant to which, to cause a state to conform its behavior to federal law by order of a federal court, one observes the fiction of suing the officer responsible for enforcing the state law at issue, rather than the state itself, asking solely for prospective injunctive or declaratory relief.

14. We read a case or two about the political question doctrine. Under this doctrine, courts will not decide certain questions on the merits that are more appropriately left for final decision to another branch of the federal government. We noted that the political question doctrine is not a matter of federalism. In other words, the Supreme Court will not refuse to decide a case because a state government ought to have final say with regard to a particular issue.

Implied powers. We then talked for about a class or so about Congress= implied powers.

1. As a theoretical matter, we noted that the federal government is a government of limited or enumerated powers. In other words, the federal government may only exercise powers that the Constitution gives to it, subject to the restrictions set forth in that document. State governments, by contrast, have the police power, that is, the power to legislate for the health, welfare, safety, and morals of their populace. State governments may exercise any power not denied to them by the U.S. Constitution or by any other valid federal law, such as a federal statute, a treaty, a valid federal regulation, or a valid executive order or agreement.

2. From McCulloch v. Maryland we learned about the Necessary and Proper Clause, Article I, ' 8, cl. 18. We noted that the Supreme Court held in that case that this clause expands Congress= power, by allowing it to adopt any means that is appropriate to the accomplishment of a legitimate end, provided that means is not foreclosed by other language of the Constitution.

State powers in the federal system. We then talked for a number of classes about state powers in the federal system. In particular, we talked about the Adormant@ aspects of the Commerce Clause, Article I, ' 8, cl. 3, the Privileges & Immunities Clause, Article IV, ' 2, cl. 1, and pre-emption of state law by federal law.

1. Through reading a series of cases, we learned that, in general (there are those who disagree), there are two Atiers@ of review under the Dormant Commerce Clause. The first tier applies to laws that overtly discriminate against out-of-state commerce, either by doing so on their face or in practical effect. When courts analyze laws under this first tier, they will scrutinize them closely, and they will usually strike them down. Among the things they will look at will be the importance of the legitimate governmental interest at stake, if there is one, the extent to which the discrimination promotes that interest, and the existence or non-existence of reasonable non-discriminatory alternatives. We noted that economic protectionism is not a legitimate governmental interest.

2. The second tier of review applies to laws that are even-handed in their treatment of out-of-state and in-state commerce. Courts will not scrutinize these kinds of laws as closely as laws that overtly discriminate against out-of-state commerce. Judicial review under this tier is essentially a comparison of the legitimate benefits of a law with the extent of its interference with interstate commerce. Under this analysis, unless the law=s negative impact on interstate commerce Aclearly exceeds@ its putative legitimate benefits, it will survive scrutiny. In theory, courts look at the existence or non-existence of reasonable non-discriminatory alternatives when performing analysis under this tier, but the Court as a whole has never based a decision on this factor. Finally, some justices have looked to evidence of an actual protectionist motive for a law. For them, the existence of such a motivation has defeated the law (perhaps on the theory that discovery of such a motivation would kick the law into some form of Afirst-tier@ scrutiny, or invalidate it entirely). Other justices have insisted upon looking only at the objective impact of the law. See the split of opinions in Kassel v. Consolidated Freightways on page 108 of your text for an example of this. Remember that, under either tier of analysis, a protectionist effect of legislation receives no weight, because protectionism is considered an illegitimate state interest.

3. Keep in mind that, under the Commerce Clause, Congress may permit discrimination by states against out-of-state commerce. Remember too that Congress is allowed to act on protectionist motives. Thus, it can seek to Aprotect@ one state=s economic interests against those of another, provided it complies with all other provisions of the Constitution. Similarly, Congress can seek to Aprotect@ U.S. industry against foreign competition.

4. We also talked a little bit about the reasons for the Dormant Commerce Clause. We noted that we want a national economy and a national marketplace, not one broken up into many small pieces. We noted that the Dormant Commerce Clause prevents states from enacting bitter retaliatory legislation against each other.

5. We also noted the idea of Avirtual representation@ as a justification for treating even-handed laws more leniently than overtly discriminatory laws. The idea of Avirtual representation@ is that, when a law hurts people inside as well as outside a state, the people inside the state can be relied upon to apply political pressure to the state government to change the law. When a law hurts only outsiders, however, no one can be relied upon to challenge the law.

6. We then talked about the so-called Amarket-participant exception@ to the Dormant Commerce Clause. We noted that the Supreme Court has held that states may discriminate in favor of insiders when they participate in the market rather than simply regulating it. In South-Central Timber Development Co. v. Wunnicke, we saw the Court strike down an Alaska law that attempted to discriminate against outsiders at a point beyond the state=s participation in a particular market. We noted that the Court has not decided whether subsidies violate the Dormant Commerce Clause.

7. We talked briefly about the Privileges & Immunities Clause of Article IV, ' 2, cl. 1. We noted that, in general, states must afford the same privileges and immunities to out-of-staters as to in-staters.

8. We noted that there are three steps to analysis under this clause. First, one must decide whether a law discriminates on the basis of state of citizenship. If so, one must then decide whether the interest denied to out-of-staters is a privilege or immunity that triggers the clause. Not all interests are important enough to do this. See Baldwin for more on this.

9. The third step is to decide whether the discrimination is allowable or not, assuming the interest at stake qualifies as a privilege or immunity under the second step. There are several formulations of this test, but I think they all point in the same direction. One formulation is to ask whether out-of-staters are a Apeculiar source of the evil@ the state is trying to eradicate. Another is to ask whether the discrimination is substantially related to a substantial governmental interest. It is technically an open question whether this clause has a market participant exception. I would argue that it does have an exception of sorts, but that the exception is not categorical. Instead, the fact that state money is at stake, or that the state is participating in the market, will be a factor in the court=s analysis.

10. We also noted some differences between the Dormant Commerce Clause and the P&I Clause of Article IV. Although both clauses will apply to many situations, there are some differences between them. First, only citizens may take advantage of the P&I Clause. It may not, therefore, be invoked by a corporation. Second, the P&I Clause requires some form of discrimination between in-staters and out-of-staters. Thus, a law that prohibited any person from bringing bait fish (for example) into a particular state arguably would not implicate the P&I Clause, because neither in-staters nor out-of-staters would be permitted to engage in the practice. The same law would be subject to first-tier review, however, under the Dormant Commerce Clause. See Hughes v. Oklahoma. Third, as we have noted, the Dormant Commerce Clause=s market-participant exception is categorical, whereas that of the P&I Clause, if it exists at all, is contextual. Fourth, Congress may not relieve states of the effect of the P&I Clause, but it may relieve states of the effect of the Dormant Commerce Clause. Fifth, only the Dormant Commerce Clause will apply in instances where there is no interest at stake important enough to qualify for protection under the P&I Clause. On the other hand, Acommerce@ must be at issue for a violation of the Dormant Commerce Clause to occur, although this term covers a lot of ground.

11. The last thing we talked about in this chapter was federal pre-emption of state laws. We noted that pre-emption can be express or implied. We further noted that there can be two kinds of implied pre-emption: Afield@ pre-emption; and Aconflict@ pre-emption.

a. Express pre-emption arises when Congress expressly displaces state law that would otherwise apply to a particular situation. An issue that arises with respect to express pre-emption is the scope of the pre-emption. Thus, even where Congress expressly pre-empts state law, the issue of whether a particular state law is pre-empted may still be subject to litigation.

b. AField@ pre-emption arises in areas of such pervasive federal regulation that all state legislation in the area is impliedly pre-empted. Foreign policy and immigration are often cited as examples of this. A related issue is whether Congress pre-empts a field by establishing an administrative agency and authorizing it to promulgate regulations governing activity in the field.

c. AConflict@ pre-emption arises when it is physically impossible for a regulated entity to obey both federal and state law, or when complying with state law would frustrate the achievement of Congress= objectives.

d. Pre-emption generally: My sense is that, in deciding whether federal law pre-empts state law, courts will also take into account the historical role of states in regulating the area in question, and the need for state-by-state regulation rather than a uniform federal standard. Pre-emption analysis thus can closely resemble analysis under the second tier of the Dormant Commerce Clause.

Federal powers in the federal system. We then spent several classes talking about Congress= powers under the Constitution. We talked primarily about commerce and spending, but of course Congress has a number of powers enumerated in the Constitution.

1. We noted that, until 1937 or so, the Supreme Court tended to distinguish between Ainterstate@ and Aintrastate@ commerce on a Abinocular@ basis. That is, it tended to look strictly at the activity in question and ask whether, as an activity, it was interstate commerce. The Court did not care whether (or how much) the activity affected interstate commerce, unless the activity and interstate commerce were directly related. It considered that for the most part irrelevant. Thus, the Court considered such disparate activities as manufacturing, mining, agriculture, and major league baseball (to name a few) to be local, subject only to regulation by the states.

2. Around 1937, this all changed, when the Court embraced a more empirical, economic approach to the distinction between interstate and intrastate commerce. Under the new approach, Congress could regulate any phenomenon, no matter how local it was, as long as the phenomenon was substantially related to interstate commerce. This brought so much formerly Alocal@ activity within the scope of congressional regulation that one commentator (who later served as the first special prosecutor for Watergate) wrote that the limits on Congress= power under the Commerce Clause were purely political, and not at all judicial.

3. The Court seems to have put a slight judicial limit on Congress= powers under the clause in such cases as United States v. Lopez and United States v. Morrison. In Lopez, the Court said that Congress could not criminalize the possession of a gun within 1000 feet of a school because there was an insufficient relationship between Lopez= action and interstate commerce.

In Lopez, the Court noted that there are three predicates for congressional power under the Commerce Clause. First, Congress may regulate the channels of interstate commerce, meaning (I believe) that Congress may exclude from these channels Aundesired items@ (whatever they may be) subject to specific prohibitions elsewhere in the Constitution, such as the First Amendment. Second, Congress may regulate the instrumentalities of interstate commerce, meaning (I believe) that Congress may regulate the conduits of interstate commerce (highways, railroads, etc.) themselves. (There seems to be some overlap between these two categories, however.) Finally, Congress may regulate activities that are substantially related to interstate commerce. But (and importantly, I think), the Supreme Court added a certain conceptual aspect to this third predicate in Lopez. Specifically, the Court said that the activity that is supposed to be substantially related to interstate commerce must itself be economic or commercial in nature (unless it is closely related to interstate commerce). The Court also suggested that there are certain enclaves of local prerogative, particularly education and domestic relations, that lie beyond the power of Congress to regulate. There was more of this reasoning in Morrison.

4. A few additional notes about all this. First, it isn=t clear anymore how much Congress can help itself by putting language in its statutes about the relationship between the activity being regulated and interstate commerce. The Court has suggested that, where the naked eye cannot see such a relationship, findings would be helpful, although not dispositive. Substantial findings weren=t enough in Morrison, however. Second, Congress can probably avoid difficulty under cases like Lopez and Morrison by putting a jurisdictional requirement in the statute at issue. For example, if Congress had prohibited possession of a gun within 1000 feet of a school where the gun had moved in interstate commerceCthereby making the nexus with interstate commerce an element of the offense chargedCit might have been possible to prosecute someone like Lopez under federal law. Finally, Congress has power to regulate every member of a class that is, in the aggregate, substantially related to interstate commerce. See, for example, Wickard v. Filburn, in which the Court upheld federal regulation of wheat grown for consumption on a farm, on the reasoning that, if everyone grew wheat for consumption on the farm, the interstate market in wheat would be substantially affected.

5. In reading cases from the Depression and the New Deal we also talked about the so-called Anon-delegation@ doctrine. Under this doctrine, Congress must exercise its power to make law or not exercise it. It may not delegate that power to someone else and adjourn sine die. But, Congress may confer discretion on executive officials and administrators (even broad discretion) provided it gives them guidance along with the discretion. The basic requirement is that Congress provide an Aintelligible principle@ to guide the exercise of discretion.

6. Congress has broad spending powers. Under Article I, ' 8, cl. 1, Congress may spend money on anything that promotes the general welfare of, pays the debts of, or provides for the common defense of the U.S. This is a broad power. Congress also may attach conditions to its expenditures, so long as it complies with the lenient test of South Dakota v. Dole. Under Dole: (1) the expenditure must be for the general welfare, etc.; (2) the condition must be stated unambiguously; (3) the purpose of the expenditure and the purpose of the condition must be conceptually related; (4) Congress may not require the states to violate the Constitution in exchange for the money; and (5) Congress may not Acoerce@ the states into complying, although it may Ainduce@ them. The line between Ainducement@ and Acoercion@ is a fine one.

7. Finally, we noted that Congress may not Acommandeer@ the states to do its dirty work; instead, Congress must do its own dirty work. This does not mean that Congress may not regulate the states in the same way that it could or does regulate private citizens and entities. It simply must not take over states= own regulatory powers. In connection with this, we discussed Reno v. Condon (2000), in which the Court upheld the Driver=s Privacy Protection Act, which limited states= ability to sell or distribute personal information about drivers without drivers= consent. The Court said this was OK because Congress wasn=t commandeering states= political powers; it was simply regulating states= activities in the purchase and sale of information, which can be analogized to similar activities in the private sector.

Separation of powers. We talked for several classes about separation of powers.

1. We began this portion of the course by talking about foreign policy. In particular, we talked about the President=s powers in this area. We noted that the President=s powers in this area are significant, owing to the necessity for quick and decisive action in the international arena, and also owing to the executive=s unique access to information. In support of this part of the course we read United States v. Curtiss-Wright. In this case, the Court held that Congress could delegate particularly broad discretion to the President in the area of foreign affairs, notwithstanding the non-delegation doctrine described in such cases as Schechter Poultry, because the President already possesses great power in this area.

2. But, no sooner had we learned about the President=s Aextensive@ powers vis-à-vis foreign affairs than we learned that there are real limits to what the President may do without authority from Congress, particularly in the domestic sphere. In Youngstown Sheet & Tube v. Sawyer we saw the Court reiterate that Congress makes the laws, generally speaking, not the President. When discussing Youngstown, we noted the difference between the formalism Justice Black exhibited in his opinion for the Court and the more practical or historically-driven approaches of Justices Frankfurter and Jackson in their separate opinions in that case.

3. We talked a little bit about the power to make treaties. This power is Aplenary@ in the sense that the potential subject-matter of treaties is not limited to the subject matter of the enumerated powers, but consists of anything that can be put into a treaty that does not itself transgress one of the specific prohibitions of the Constitution, such as the First Amendment. In this regard, we noted that the Tenth Amendment is not considered such a specific prohibition.

4. We also learned about Aself-executing@ and Anon-self-executing@ treaties. We learned that a non-self-executing treaty that has not been implemented by legislation is essentially unenforceable in a domestic court, whereas a self-executing treaty has the force of law. Where a statute and a self-executing treaty conflict, the one later in time governs. If the United States fails to honor or implement a treaty, or if it reneges on a treaty (at least to some extent), that is not a matter of domestic law. That is a matter for the counter-party to the treaty (that is, the other country=s government) to bring up with the United States government.

5. We discussed legislative privilege and immunity. Under the Speech or Debate Clause of Article I, ' 6, cl. [1], no member of Congress may Abe questioned in any other Place@ Afor any Speech or Debate in either House.@ We learned that the scope of this protection is quite broad, extending beyond statements on the floor to statements in committee, as well as actual votes. In Gravel, similarly, we learned that this protection extends to aides. It does not, however, extend to decisions to publish material outside Congress, because such publication is Ain no way essential to the deliberations of [the legislature].@ From Helstoski we learned that the privilege does not extend to promises made to promote particular legislation, although it does extend to evidence of actual votes. A[I]t is clear from the language of the Clause,@ the Court wrote, Athat protection extends only to an act that has already been performed.@

6. We talked about executive privilege. In the Tapes Case, we saw the Court recognize that there can be executive privilege, even though the Constitution doesn=t talk about it per se, but that President Nixon could not assert it in that case because, the Court said, his Aundifferentiated claim@ of executive privilege had to give way to a Ademonstrated, specific need for evidence in a pending criminal trial.@ Had he made a specific claim that the items being sought included sensitive information about national security, etc., he might have prevailed.

7. We then talked about Chadha and the legislative veto. We noted that, despite the usefulness of the legislative veto, the Court struck it down in Chadha because it violated the Apresentment@ and Abicameralism@ requirements of Article I, ' 7, cl. 2 and 3. In discussing Chadha, we noted the distinction between the formalism of Chief Justice Burger=s opinion for the Court and the functionalism of Justice White=s dissent.

8. We then talked about Morrison v. Olson, in which the Court upheld the Independent Counsel provisions of the Ethics in Government Act of 1978. In this case, the majority reasoned that these provisions did not violate separation of powers, even though the IC could be removed only for cause, even though the IC performed a Apurely executive@ function, and even though the executive branch had limited control over the activities of the IC, because these provisions did not unduly interfere with the President=s ability to perform his or her assigned constitutional duties. Among the factors the Court noted in support of its holding were its conclusion that the IC was an Ainferior officer@ and the fact that Congress itself played no role in deciding whether the IC could be removed.

Before Morrison, we noted, Congress could make an administrative official performing a Aquasi-legislative@ or Aquasi-judicial@ task removable only for cause, see Humphrey=s Executor v. United States (member of the Federal Trade Commission) and Wiener v. United States (member of the War Claims Commission), but it could not give similar protection to someone performing a purely executive function (at least a high-level one), see Myers v. United States (postmaster). The Morrison Court had to repudiate the Arigid categories@ established by these cases.

Ripeness, mootness, and standing. We concluded the course by talking about ripeness, mootness, and standing.

1. A federal court will not decide a case if it is not ripe. That is, it must present a mature case or controversy. It must not be a matter of speculation whether or not a case exists.

2. The requirement that a case not be moot is essentially the flip-side of the requirement that it be ripe. Under this rule, the case must continue to exist throughout the litigation. If it is resolved at some point before judgment, such that the parties no longer have an adverse legal relationship, then a case or controversy no longer exists for purposes of Article III.

3. In DeFunis we learned about an exception to this rule for disputes that are Acapable of repetition, yet evading review.@ Classically, this exception applies only if the dispute can recur between the parties, but this aspect of the rule has not always been followed.

4. In addition, we learned that voluntary cessation of illegal behavior by a defendant will not ordinarily moot a case, unless there is no reasonable expectation that the defendant will resume the allegedly wrongful conduct.

5. We talked about standing. There are three basic constitutional requirements for standing: (1) allegation of injury in fact; (2) allegation of causation by the defendant; and (3) redressability. We noted that ideological injury does not count as injury in fact, but we also noted that, where a plaintiff appears to be challenging federal legislation or federal conduct on an ideological basis, the Adouble-nexus@ test of Flast v. Cohen should be considered. If a federal taxpayer can satisfy Flast=s requirements, the Court will deem him or her to satisfy the requirement of injury in fact (as well as all the other constitutional and prudential requirements), even though the expenditure would not actually affect his or her economic interests. We noted, however, that Flast has only been satisfied where a federal taxpayer challenges an exercise of the federal spending power as an establishment of religion.