Cons%tu%onal

Law - Powers Fall 2011 Outline I. Judicial Power A. The Need for Judicial Review 1. Marbury v. Madison (p2) a) It is the province and duty of the judicial power to say what the law is. B. Interpre%ve Limits on Judicial Power 1. Tools for Interpreta%on Social Policy Stare Decisis Cons%tu%onal Structure History & Tradi%on Text Federalist Papers Original Meaning Original Intent

2. Originalism vs Non-originalism (BB) a) Strict Construc%onist - Text and nothing else b) Originalist - text, original meaning & intent, history & tradi%on c) Non-originalist - all the tools Originalist Benets Extremes arent as dangerous Swings are smaller (b/c text is xed) Legislature has a beXer idea of parameters Smaller judicial footprint Any room for compromise? Non-Originalist Permits progress Reects current values Every genera%on gets a chance to re- ra%fy the cons%tu%on It can go too far How do jus%ces know what will work?

Cri%ques

C. Jus%ciability Limits on Judicial Power 1. Prohibi%on on Advisory Opinions a) Reasons (1) Benets to having adverse par%es (2) Dont want to backlog SC (3) Outside the power given in Art. III b) Opinion of the Jus%ces (p42), Hayburns Case (p42) (1) Judiciary doesnt want to infringe on power of the execu%ve (2) Wants to preserve its turf (only use power when it really maXers) (3) Dont want courts opinion to be one with no ground c) Plaut v. Spendthrib Farms (p43) (1) There must be a case or controversy.

2. Standing a) Cons%tu%onal standing requirements (1) 3 Elements (a) Injury in Fact (b) CausaGon (c) Redressability (2) Allen v. Wright (p46) (a) 3 Elements of Standing (b) SoP argument as %e-breakers (3) MassachuseXs v. Environmental Protec%on Agency (p53) (4) Injury (a) City of Los Angeles v. Lyons (p60) i) How you draw the injury Is important. (1) Hypothe%cal? No standing. (2) Actual? Standing. (b) Lujan v. Defenders of Wildlife (p62) i) Injury must be imminent ii) Must show causa%on and redress (5) Causa%on and Redressability (a) LiXle cases (p65-68) b) Pruden%al standing requirements (1) Requirements in addi%on to cons%tu%onal standing - can be overruled by congress (2) Two Requirements: (a) Prohibi%on of 3rd Party Standing i) Excep%ons: (1) Rela%onship - inextricably bound (2) Obstacle to 3rd Party (a) Singleton v. Wul (p69) (b) Barrows v. Jackson (p71) (c) Elk Grove Unied School District v. Newdow (72) (3) Rock and a Hard Place (a) Craig v. Borne (p72) & Other liXle cases (p72) (b) Prohibi%on of Generalized Grievances i) United States v. Richardson (p77) (1) We only meant what we said in Flast. Just being a taxpayer does not give you status. (Overrules Frothingham) ii) Flast v. Cohen (p81) (1) Two pronged test (a) Link between tax payer status and legisla%on (b) Nexus between status and alleged cons%tu%onal infringement iii) Hein v. Freedom from Religion Founda%on (p84)

(1) (2) (3)

Dierent from Flast because money come out of execu%ve branch Taxpayer standing is a very narrow window Does NOT overrule OR extend Flast

3. Mootness a) Three excep%ons: (1) Wrongs Capable of Repe%%on But Evading Review (a) LiXle Cases (p97-100) (2) Voluntary Cessa%on (a) Friends of the Earth, Inc. v. Laidlaw Environmental Services (p100) i) Skep%cism over D trying to moot the case voluntarily ii) Sort of an extension of Roe v. Wade - capable of repe%%on yet evading review (3) Class Ac%on Suits (a) United States Parole Comm. v. Geraghty (p101) i) Case can s%ll be cer%ed without named P because someone elses name can go there 4. Poli%cal Ques%on Doctrine a) Allega%ons of cons%tu%onal viola%ons that federal courts will not adjudicate and that the Supreme Court deems to be inappropriate for judicial review. b) Baker v. Carr (p104) (1) 6 ways to raise a poli%cal ques%on (a) A textually demonstrable cons%tu%onal commitment of the issue to a coordinate poli%cal department (b) A lack of judicially discoverable and manageable standards for resolving it (c) The impossibility of deciding without an ini%al policy determina%on of a kind clearly for nonjudicial discre%on (d) The impossibility of a courts undertaking independent resolu%on without expressing lack of the respect due coordinate branches of government (e) An unusual need for unques%oning adherence to a poli%cal decision already made (f) The poten%ality of embarrassment from mul%farious pronouncements by various departments on one ques%on II. Legisla%ve Power A. Overview 1. Based on enumerated powers - federal government can only do what the cons%tu%on says it can do 2. State government can do everything except what the cons%tu%on says it cant B. Framework of Federalism and the Necessary and Proper Clause 1. McCulloch v. Maryland (p129) C. The Commerce Power and the Tenth Amendment 1. Three Ques%ons

a) What is the arma%ve reach of the commerce power? b) Does the 10th amendment limit that power? c) What is the role of the judiciary in policing this power? IniGal Reach of Commerce Power (Gibbons) Scope of the Commerce Power 10TH Amendment Limits Role of Courts Commerce = intercourse eects Probably weak; Toothless Defer to Congress 1800-1936 Era of Limited Power Commerce is NOT produc%on ; Indirect/ direct eects Strong; Toothy Searching review; Ac%vist 1937-1995 Era of Broader Power Substan%al eects; Aggrega%on 10th amendment is a truism Defer to Congress; Ra%onal basis

2. Ini%al deni%on of commerce power a) Gibbons v. Ogden (p143) (1) Commerce (a) Buying and selling of goods (b) Intercourse (c) Includes naviga%on (2) Among the States (a) intermingled with i) Poten%al to aect other states ii) Does not mean state actors (3) 2 possible 10th amendments (a) Toothless - just describes the way things are (b) Ballsy - even where congress has an enumerated power, the 10th amendment stops it from going to far 3. Era of limited power (1890s-1937) a) What is commerce? (1) United States v. E.C. Knight Co. (p146) (a) Commerce succeeds to manufacture and is not a part of it (b) Commerce is not producGon. (2) Carter v. Carter Coal Co. (p147) (a) Commerce is the equivalent of the phrase intercourse for the purpose of trade, and includes transportaGon, purchase, sale, and exchange of commodiGes between the the ciGzens of the dierent states. (b) The rela%on of employer and employee is a local rela%on. b) What does among the states mean? (1) Houston, East & West Texas Railway Co. v. United States (p149)

(a) The Shreveport Rate Cases (b) Wherever the interstate and intrastate transacGons of carriers are so related that the government of the one involves the control of the other, it is congress, and not the state, that is enGtled to prescribe the nal and dominant rule (2) A.L.A. Schecter Poultry Corp. v. United States (p151) (a) Ds did not sell poultry in interstate commerce c) Does the 10th Amendment limit congressional powers? (1) Hammer v. Dagenhart (p154) (a) Comes out opposite of Champion because of the way the court sees the 10th amendment (2) Champion v. Ames (p158) (a) Congress has the right to regulate commerce (b) Screw the 10th Amendment 4. Era of broader power (1937-1990s) a) Changing the Commerce Clause Doctrine (1) NLRB v. Jones & Laughlin Steel Corp. (p160) (a) It is the eect upon commerce, not the source of the injury, which is the criterion. (b) Destroys commerce/produc%on dis%nc%on (c) Key Ques%on: Does it have an eect on interstate commerce? (2) United States v. Darby (p164) (a) 10th amendment is a truism, only declaratory (3) Wickard v. Filbert (p166) (a) Destroys indirect/direct test - need only have some substan/al eect i) Congress can take aggregate eects into account b) The meaning of commerce among the states (1) Heart of Atlanta Motel, Inc. v. United States (p169) (a) There need only be a reasonable connec%on between the ends and means of Congress (b) People traveling across state lines cannot stay in the hotel of their choice - this aects interstate commerce. (2) Katzenbach v. McClung, Sr. & McClung, Jr. (p171) (a) Congress need only have a ra%onal basis for the means for solving a problem (3) LiXle cases (p173) c) Tenth Amendment from 1937-1990s (1) Na%onal League of Ci%es v. Usery (p175) (a) OVERRULED by Garcia (b) The act interferes with state and local func%on, therefore the act is not within the scope of authority granted to congress (2) Garcia v. San Antonio Metropolitan Transit Authority (p178)

No good reason why the court should only protect tradi%onal state func%ons i) I.e. - re, police, sanita%on, transporta%on, public health, licensing, u%li%es, educa%on, NFL, parks (b) States should use the poli%cal process to protect their interests 5. Modern commerce power a) What is congresss authority to regulate commerce among the states? (1) United States v. Lopez (p184) (a) 3 Categories of Commerce Power i) Channels of interstate commerce (highways, railways, etc.) ii) Instrumentali%es or persons or things in interstate commerce (i.e. freight) iii) Ac%vi%es with a substan%al rela%on to interstate commerce (1) Most problema%c! (b) Factors i) Economic acGvity? ii) JurisdicGonal hook? (1) Did congress explicitly/implicitly say anything about commerce? iii) Congressional nding? (1) Speaks to whether or not congress had a ra%onal basis iv) A_enuated causaGon and eect on tradiGonal state funcGons? (1) A stealthy way to sneak in the 10th amendment (2) United States v. Morrison (p196) (a) Conrms the Lopez analysis (3) Pierce County, Washington v. Guillen (p203) (4) Gonzales v. Raich (p205) (a) Purports to follow the same line of reasoning in Lopez and Morrison (b) Ques%on NOT is federal law cons%tu%onal, rather is THIS APPLICATION of federal law cons%tu%onal (c) Adds 5th factor = Comprehensive regulatory scheme? i) Okay to regulate a non-economic ac%vity that undercuts the regula%on of interstate commerce. (1) Scalias liXle surprise (d) Commercial is a subset of economic. Economic does NOT equal commercial. i) If acGvity is economic (or commercial?), take into account the eects on interstate market. (5) United States v. Comstock (BB) (a) Applica%on of necessary and proper clause (b) Factors: i) Necessary and proper clause is broad ii) Long history iii) Good reason iv) ProtecGon of state interests

(a)

v) A_enuaGon (c) Thomas and Scalia ques%on the scope of this 5 factor analysis b) Does the 10th Amendment limit Congresss authority? (1) New York v. United States (p216) (a) Government cannot commandeer the state legislatures (or interests) (b) Federal system is mean to protect individual liberty (through the power of local governments) (2) Printz v. United States (p226) (a) Cannot commandeer state execuGve brach either. (b) That would be even worse (3) Reno v. Condon (p236) (a) Cannot commandeer legislature or execuGve. Can commandeer judicial. (b) If its generally applicable to the states, its okay. 6. Modern Tenth Amendment Cases D. Taxing and Spending Power (not on midterm)