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Fall 1995

ROLE OF FEDERAL JUDICIARY

1. States & Colonies formed indiv. constitutions
2. Articles of Confederation
-Power was vested in legislative govt.
-Fed govt was weak, few powers.
-No tax/commerce regulation
-No foreign relations power
3. Bill of Rts & Constitution
-7 Articles. (1,2,3)

Where can one look to resolve disputes re: the Constitution?
-Intention of the framers?
-Text itself?
-Structure of the Constitution? Organization?
-Meaning of the words in the constitution?
***Cts haven't confined themselves to historical antecedents.

JUDICIAL REVIEW OF FEDERAL EXECUTIVE & LEGISLATIVE ACTS:

MARBURY V. MADISON
Practice under which the cts (fed) claim the authority to review decisions reached by other branches of fed/state govt to determine whether those decisions & laws by Congress/the President/States by conforming the requirements of fed law & the Constitution. -Declare Unconstituional & unenforceable decisions overturning decisions made by the Gov't/Officials/People.

So called Federalists were elected to office in early yrs, serving approx a decade. 1800 election, Republicans (Jefferson) elected. [Federalists were swept from office]. Federalist Congress passed laws re: Judiciary. Adams nominated people to serve these new offices & they were confirmed by the senate. Marbury was in this situation, but his commission was never delivered. Marshall was the Sec. of State in the Adams Administration & was appointed as Chief Justice of the US. Marshall's brother was the Federalist officer who was supposed to deliver the commissions, but he didn't deliver Marbury's. Marbury sues to get his commission. Lawyer choses to bring it directly to the Sup. Ct. Republicans undo some of the Federalist procedures. Ct. now only meets in February. Finally the case is heard by the Sup. Ct, composed mostly of Federalist Judges.

Issue: Where does ct derive the power to decide issues regarding the Constitution & decisions made by officers, congress, etc.
1. Rt to commission demanded? Yes
2. Remedy exist? Yes
3. Does ct have rt to issue writ of Mandamus? No

Suit is brought under the Jud. Act of 1789, against a Fed. Official re: obligations imposed upon him by Fed Law. Case: Ct determines whether they can make decisions which overturn the Executive Branch and/or disregard impositions of the Legislative Branch, more specifically the Consititution. Also look to Article III.
Ct concludes that Congress hasn't been faithful in administering Article III based on the Jud. Act of 1789. Marbury relies on Jud Act of 1789 b/c it says writs of Mandamus are w/in the power of the Sup. Ct. Marshall inquires as to whether it is right for the Ct to look into & question the behavior & discretionary matters of high exectutives of the Fed. govt. Decides there are Political & Judicial matters. Political questions are generally not subject to examination by the cts & no remedy exists. Judicial questions are subject to examination & remedies exist.

DISTINCTION B/T DISCRETION & DUTY:

-Where Executive officer has discretion on how to carry out job, perhaps one can't go to ct complaining the discretion was handled in a way that you disagree with.

A power of the Sup. Ct. to declare unconstitutional an action by the state.
Ct's provide a remedy when someone causes harm to another when they owed Many instances, recognized by the ct, where it would be inappropriate for the ct to regulate/control the President's actions. The S.Ct. does have juris when the person/dept had/has a duty to act.
-No commission/writ issued to Marbury.
1. Construction of 1789 Jud. Act...Marshall says this is in conflict w/Art III of the Constitution. Juc. Act confers orig juris for writ of mandamus, but it isn't included in Art III for orig juris, only App Juris. In Martin, opinion suggests that S. Ct. can carry out the writ for App. Juris. If S.Ct. said they couldn't have case b/c of lack of juris, then Marbury would have been able to refile in another ct. Art III confused Marbury into thinking Sup. Ct. had orig juris b/c the Jud. Act was a congressional act..."All other cases..." Marshall said congress was trying to add to orig juris, which violates the Constitution.
-Cts are to read statutes in a way that is consistent w/the Constitution.
-Question posed to Marshall is what are we to do? So what did he do? -He declared that section of the statute unconstitutional. Marshall also declares that the Constitution is superior to all legislative acts. His oath was to uphold the Constitution.

-Article VI: Judges shall be bound by the Const as the binding law of the land.
-Supremacy Clause
-Juris over all cases arising under the Const & therefore the rt to look to the -Constitution & also to be loyal to the Const.
- 3 Views: Ct has auth to interpret the Const & other branches are free to pursue their own interpretation, unless a ct order is req'd to carry it out. -Ct has the last word on constitutional construction.
-Federalist Paper #78, p20 [Hamiltion]
Who checks the cts?
-Marshall doesn't answer this question..

MARTIN V. HUNTER'S LESSEE:
Issue: Whether congress via the constititution granted the S.Ct. app juris from state cts which can & will be binding upon that state?
-The Jud. Act of 1789 was upheld. Underlying dispute re: 2 claimants to the same piece of land. Both derive title from different sources. (Lord Fairfax & Va.) A claim of rt derived from a federal treaty. Many constitutional claims, such as this, can commence in the state cts.
-Sup. Ct. must have App. Juris for state claims, wherever they arise. The states were analogizing themselves to foreign entitities. See p.28 Note 1 for states' position.

Held: potential problem w/forum shopping, discrimination against outsiders.
Sup ct:
1. Important fed quest.
2. Conflict in lower cts as to the law/constitution.

Fed S. Ct. has the auth to supervise the states'. Art III says "shall ve vested" & Art VI says states & judges are bound.
-Cases determine the juris. Judicial power extends to all cases enumerated in the -Constitution, app/orig juris. [Art III]

JUDICIAL REVIEW:
Ct has auth, Art III, to hear cases Arising Under the Const of US & b/t pty's of diff states.
D is likely to say claim is inappropriate for the ct to hear
Justiciability: who/standing; when/ripeness/mootness; what/political questions; Declining to reach the merits.
Substantive: Decision on the merits. Active Scrutiny or Restraint
Deference
Interpretive Review v. Noninterpretive Review
Text v. Natural Rts
Intent/Orig Intent v. Contemporary Morality
Structure v. Other

JUDICIALLY IMPOSED LIMITS ON THE EXERCISE OF THE JUDICIAL REVIEW POWER: THE "POLITICAL QUESTION" DOCTRINE:

Baker v. Carr is an example of Contemporary Morality
To the extent the ct defers the decision of the executive/legislative branches; How vigorously will the ct review decision previously made; Has it a rational/reasonable judgment; Is judgment made by another branch likely to be sustained. [deference]
Restraint: w/respect to merits; may decline to interefere/hear the case.
-Judiciary should stay out of the dispute all together. Active Scrutiny: Ct actively scrutinizes decisions made by other branches. Not likely to be satisfied that decision has been determined rationally.
-Interferes where it infringes on imp constitutional rts.
-Imp indiv rts are at stake.

POLITICAL QUESTION DOCTRINE & JUSTICIABILITY:

Power to Judiciary to ck other branches of govt [states, etc] Ct must resolve disputes over the meaning of law. View over litigants & the nation

BAKER V. CARR:
Ct distinguishes b/t SMJ & political questions/Justiciability Overlap b/t SMJ & political questions & other matters.
Political questions involve issues of restraint by the court. Others rise to constitutional command.
Cohens Case; sustained conviction b/c claim of immunity from state conviction based on Fed. law was misread & no such immunity was provided.
-lost appeal, despite fact that state was a pty to the conviction proper exercise of appellate jurisdiction
-Ct has obligation to hear all cases w/in its SMJ
Lower ct dismissed claim b/c no SMJ & nonjusticiable, REV'D Frankfurter decides that the judicial branch shouldn't hear/decide case
-Not confined to laws already made, ct would begin to make the law & would become part of the political system.
-Acc to J. Clark, no practical opportunities for political process arguments
-Possible negative implications to the ct if decide on the matter; possible that the ct will be ignored by the state.
14th A applies acc to P's & should be used. Shouldn't mean based on population.
Not clear what the framers intended by "equality".
Gerrymandering is misapportionment.
More difficult to use 14th in this case & more difficult to det standard of judgment.

Political Questions:
1. settings; Senate has the sole power of impeachment.
2. lack of judicially respectable & manageable method of solving it
3. concern over 2nd guessing J of another branch w/o auth to do so

Polit quest exists/no dispute; when there aren't appropriate judicial appropriate manners for resolving dispure. Baker illustrates lack of standards & complexity involved when ct is invited to resolve dispute over broad phase of equal protection of the law.
Must be apportioned by 1 person, 1 vote.
-not dervived by framers.
U.S. shall guarentee, which branch will guarentee? Congres, the President, or the Courts?
-That has been given to the branches, despite the way the ct has been.

GOLDWATER V. CARTER
Carter dissolved a treaty w/o the consent/approval of Congress. Congress is seeking a declaration claiming deprivation of const. roles re: changes in the law of the land.
Executive agreements (to no house/senate) or else a simple maj after presentation to both houses.

Non-Justiciability: forbid fed ct from hearing a case/dispute or which if ct has SMJ under const to hear it, the ct can refuse to hear it as a matter of discretion.

Brennan concludes apportionment is w/in sub matter juris.
-Look to history of const & look ultimately at meaning of the text in our time.
-open ended interp of constitutional meaning/text.

Ct ultimately concludes that it need not hear this dispute.
Powell concurrs, disagrees w/reasoning
Brennan, dissents & is willing to hear the dispute & would affirm the President's power to take the action he took.
Ct isn't willing to fill in the blanks left in the const by the framers. Possible political question b/c constitution doesn't provide info from which dispute can be resolved.

POLITICAL QUESTION DOCTRINE:

1. Textual assignment of a dispute to a branch other than the juduciary.
2. Ct-centered concerns, particularly the lack of judicially manageable standards by which to judge the lawfulness of conduct by another government entity
3. Separation of powers concerns, primarily concerns about the effect of judicial intervention on the operation of other branches of the fed. govt.

Goldwater really doesn't have standing b/c no injury & he just disagrees w/the Pres. Abrogation of the treaty stands.

NIXON V. UNITED STATES:
J. Nixon is saying that the senate rule violates the const rule for the senate to try all impeachments.
-under Article III & Art II s.4: have to be impeached b/f they can be removed from office, conviction isn't enough to remove them, NEED AN IMPEACHMENT.
Nixon is charged by the House for violations, such that the Senate feels that he should be removed from office.
-live testimony & transcripts, but only to a few select members of the Senate who are chosen to serve on the committee. [& the House]
-if 2/3's agree conviction should occur, then impeachment occurrs & the indiv can be removed from office.
Nixon believes that he deserves a trial b/f the Senate & accusses them of taking shortcuts. He wants a full "trial" b/f the whole Senate. Question as to burden of proof & level of the crime, caused by vague language w/in the text of the Const.
-What is an impeachable offense? Whatever the House thinks constitutes an impeachable offense.
-no standard exists as to what actually constitutes an impeachable offense.
The Ct. can't hear this matter, it is a non-justiciable question.
-risk of bias if Sup Ct hears it (judges judging judges)
-auth of Sup Ct could be undermined if noone followed the J
-framers' intentions were not to entrust impeachment powers to the Sup Ct.
Non-justiciable matter b/c it is an illustration of the Frankfurter concern that there must be a judicially manageable standard b/f the Sup Ct can hear it.
The word "try" doesn't offer much information & leaves too much ambiguity.

Gov't has limited & enumerated powers.
Art. I sec.8 & 10th A

NATIONAL LEGISLATIVE POWER IN THE CONSTITUTIONAL ORDER:

MCCULLOCH V. MARYLAND:
Issue: Whether congress possess the power to est. a bank & Whether the States have the power to impose a tax on a bank operated by the U.S. Fed law matter begining in the state cts & ends up in the Sup. Ct. Pro: for MD & affirmed. Rev'd in Sup. Ct. for McCulloch. Oral arguments lasted for 9 days.
MD argues that there are no enumerated powers contained w/in the const to create corporations or banks.
-Whatever power isn't given to the govt belongs to the states, so the power to form banks belongs to the states.
Art I s.8: power to tax & regulate commerce, etc. Both ptys agree that Congress has these powers.
Bank of US says Congress does have this power b/c Congress can make all laws necc & proper, or for the benefit of the US.
-incidental & implied powers to implement those that are enumaerated. Disagreement is over the meaning of "necc & proper".
-Necc = Essential, w/o which enumerations would be nugatory, according to MD

Marshall/Bank:
Strong central Govt. Constitution from people to create govt for themselves.
Eps + large Ips. Congress has choice of means.
Deference: small role for ct. (Broad interp of Art I)
If ends legititimate all appropriate means OK.
Ct limited to assuring ends legitimate, means appropriate & prohibitions not violated.
Low enumerated Powers, Implied powers broad, include N&P, Reserved Powers of state, 10th Amend.

Jefferson/MD:
Weak Central Govt...Strong states.
Constitution from states: limited delegation of powers to national govt
Eps + few Ips: Congress has choice of limited means.
Active Scrutiny: lg role for ct (Narrow interp of Art I)
Ct to decide whether means are essential
Enumerated Powers & Implied Powers & Necessary & Proper Powers
Enumerated Powers, implied powers & N&P are narrow, & Powers reserved to States are broad, 10th Amend.

Constitution itself is a delegation of duties. Should be construed narrowly, to leave principle power to govern to the states.
Problems come when Congress tries to do things not explicitly enumerated to it in the Const.
Art I 8
Implicit in constitution is that congress has a broad discretion of means. Let the end be legitimate, let it be w/in the scope of the const, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist w/the letter & spirit of the const, are constitutional.

Sup Ct: Strong Central govt.

DEFINING THE COMMERCE POWER; ESTABLISHING THE FOUNDATION:

Gibbons v. Ogden:
Ogden has state license to use waters in NYS to navigate & Gibbons has a federal license. Ogden sues to enjoin Gibbons from trading in the same state waters.
S.Ct. overturns the state law & upholds the federal law.
Congress has rt to regulate interstate commerce.
NYS/Ogden insists rt to regulate interstate commerce among the states means b/t & not the waters w/in the states.
-doesn't include navigation, only commercial transactions.
-commerce means traffic, buying & selling
Ct. says commerce includes commercial intercourse. -clearly intended to include navigation so far as it is connected w/commerce w/foreign nations/among several states/ or w/Indian tribes.
Intrastate v. Interstate Commercial Regulation: "Among the states" -Powers "among" does not end at the state's boundaries, extends to the states.
-Can regulate navigation, even when it extends into waters of a particular state b/c it effects more than 1 state.
-Supremacy clause of const binds the states & when there is a conflict b/t states & govt, then the govt law will govern.
-No limitations except those proscribed in the constitution. Elections of indivs are sole restraints.

HYPO:
Grand Rapids, on Grand River. Assume 3 boats, & Congress acting pursuant to same law as in Gibbons. Congress passes safety stat requiring certain things on boats (steamboats), certain equip.
Boat A carries from GR to GH to Milwaulkie & back.
Boat B stays w/in MI, carrying goods & people who then get on another boat & leave.
Boat C GR to GH, never leaves MI, nor does anything it carries. Acc to Marshall, what can Congress regulate & to what extent?
It extends definately to A, & likely to B.
-b/c effects interstate commerce. Likely to effect other stsates. What about C?
-may be sub to fed regulation if congress feels it is necc to regulate that activity.

SEARCHING FOR FEDERAL REGULATORY POWER, PROHIBITING COMMERCE...A NATIONAL POLICE POWER?

CHAMPION V. AMES "THE LOTTERY CASE":
Ct. rejects the moral issues argument & non-commercial issue arguments, including the argument that it is a prohibition & not a regulation. Ct. held that Congress has the authority to regulate such activity as "necessary & proper".
-foundation for social welfare legislation.

HAMMER V. DAGENHART:
Act of Congress to prevent interstate commerce in the products of child labor.
-goods were harmless in themselves.

-Amendments 3, 5, & 6.
Held: such regulation infringes on the states' exercise of police power over local trade & manufacture &it goes beyond the limitations in the Constitution.

-all freedom of commerce will be at an end & the power of the states over local matter may be eliminated, thus destroying our system of govt. Dissent: Congress is given the power to regulate commerce in unqualified terms limited by other provisions of the Constitution. The power to regulate includes the power to prohibit.

SHERMAN ANTI TRUST ACT 1890:

U.S. V. E.C. KNIGHT & CO.
: good example of dual fereralism...98% control of market doesn't affect commerce.

SWIFT V. US:
can regulate a local activity that merges w/stream of commerce. The Shreeport Rate Cases: ICC power to regulate interstate railroad rates as well as intrastate railroad rates. ("necessary & proper" must regulate one to regulate the other).

CARTER COAL:
Cardozo: the nation may regulate activities that are connected to interstate commerce.
-size does make a difference.
Connection b/t the activity sought to be regulated & its effect on interstate commerce (more closely related more probable, Congress has the power)

NLRB V. JONES & LAUGHLIN STEEL CORP:
Congress can regulate a local activity if it has a direct effect on interstate commerce.

THE MODERN COMMERCE POWER; ECONOMIC REGULATIONS:

US V. DARBY:
Issue: whether Congress has the power to prohibit the shipment of interstate commerce of lumber manufactured by employees whose wages are less than the proscribed minimum & whether it has the power to prohibit the employment of workers int eh production of goods for interstate commerce at other than proscribed wages and hrs?
-Answer to both issues is Yes, if it has a sustantial effect on interstate commerce. (unfair competition.)
-Hammer v. Dagenhart overruled.
-decision unaffected by the 10th Amend. Congress carrying out delegated authority to regulate commerce by means "necessary & proper".

Dual Federalism
separate & distinct realms of federal power & state power. Regardless of how desirable it may be, these separate realms prohibit federa govt from regulating subjects w/in juris of the states.
Commerce ceases when it comes to reast at a locality, now w/in state power. Fed connot regulate adriculture, moning, manufacture.
-Hammer v. Dagenhard: perfect example of dual federalism. Cooperative federalism: realms are not separate, but overlapping. Recognizes ability of nation to regulate local activities in so far a s they have a substantial effect/relation on commerce. But what about potential for conflict b/t nation & state.
-If conflict is severe enough, under Supremacy Clause, Fed law supercedes state law.

WICKARD V. FILBURN:
Ct. decided that the wheat production/consumption produced a substantial eco. effect on interstate commerce & this is irresprective of whether such effect is what might at some earlier time have bee defined as direct/indirect.
Homegrown wheat competes w/wheat in commerce. Congress may have roperly considered that wheat consumed on the farm where grown; if wholly outside the scheme of regulation, would have substantial effect in defeating & obstructing its purpose to stimulate trade therein at increased prices.
Product of congressional judgment, eco problem.
Ct. unanimously aff'd. Repudiated Hammer. Moves in supply or demand will substantially affect the price, even volume & variability of home consumed wheat would do this.
Federal power reaches locality if congress perceives it to have a substantial effect regardless of whether it is direct or indirect. Congress decides it. Congress can consider cumulative effects not just direct effect of one person on commerce.

UNITED STATES V. DARBY:
Hamner Revisited & Overruled.
Issue: Whether Congres has Con. Power to prohibit interstate commerce of lumber mfd by employees whose wages are less than min or hrs are greater than max.
-Whether congress has power to prohibit employment of workman in the production of goods for interstate commerce at other than prescribed wages & hrs.
The Ban & the Fed. Regulation is sustained in Darby. Congress can regulate local manufacturing if Congress believes it has a substantial effect on interstate commerce. Statute was upheld as constitutional.

MCLAIN V. REAL ESTATE BD. OF NEW ORLEANS:
Brokerage business is wholly intrastate in nature & hence, outside of the Sherman Act prohibition. Sup. Ct. US held unanimously that Sherman Act juris is present whenever the alleged illegal activities were part of the "stream of interstae commerce" or substantially affect interstate commerce.

CIVIL RIGHTS ACT OF 1964
-supported by the commerce clause
-supported by the 14th Amendment.

HEART OF ATLANTA MOTEL:
Hotel reached out to interstate travelers w/advertising & location on the interstate.
Ollie's BBQ, p111, was a relatively small proportion of its customers, not local & a porportion of its food had been acquired through interstate commerce.
Katzenback v. McClung (Ollie's BBQ): "even if the activity is local and may not be regarded as commerce, if it has an economic effect on interstate commerce, then Congress may regulate it.

Federal Power
Distinguish b/t demands to private indivs & state/local govts. -by Congress (Spendig & Gen. Welfare Clause)

Issue: Does Congress have the power to issue a demand on private BBQ's? Rule: If the local activity substantially effects interstate commerce, then Congress has the power to intervene. Congress must have a reasonable/rational basis. Must be based on one of the enumerated powers given to congress, must be/believed to be reasonably necc. All means not mentioned, but needed, are allowed if reas. appropriate.
-Police powers to promote the general welfare (Spending Clause)
-Necc & proper means if reas/reas. believes.
****Congress can regulate commerce among the several states & any local/state activities that congress believes (reas) has a sub effect on interstate commerce, though the activity itself may not be interstate commerce.
-& any local activities, by themselves/combined w/others similarly situated if necc & proper & Congress reas believes it will sub. effect interstate commerce.

ACTIVE SCRUTINY OR DEFERENCE?
-Deference b/c in past Cts. have deferred to Congressional J's that the activity bears a relationship to commerce, such that Congress' acts are justified.

Fed. Regulation of indiv/private activities VERSUS Fed. Reg. of Local/State activities.!!!
Application of Rule:
Govt: Can control BBQ's if reas believes & it substantially effects interstate commerce.
-Whether Congress has a reas belief that it effects interstate commerce? Congress must decide if sub. effects interstate commerce. Reas basis for belief?
-pollution is interstate, is inherent. Regulation of a harmful by- product of interstate commerce by local activity.
-Smog is a by-product of interstate commerce.

DEFINING THE COMMERCE POWER; LIMITS ON COMMERCE POWER?

UNITED STATES V. LOPEZ:
Congress is trying to regulate the control of guns & prohibits bringing guns in, or on the grounds of, a public, parochial or private school, or w/in a distance of 1,000 feet from the grounds of a public, parochial or private school.
Ct. says it seems removed from Wickard, Perez, Hamner, etc. Too far removed from Congress' power.
Congress would be entending its power to the point of regulating curriculum, a definite state rt to control these aspects. Findings by Congress are useful to Ct in determining whether Congress has reas basis for issuing the regulation & determining whether it would substantitally effect commerce.
***RULE IS THE SAME, BUT IT IS APPLIED LESS DEFERENTIALLY!!!

Power of Congress to spend to promote the general welfare of the nation. Spending (General Welfare) Clause:
An invitation/inducement (not a demand) US uses to get people/entities (private v. public) to do what Congress wants them to.
-can be federal agency/administration.

Art. I 8: "the Congress shall have power to lay & collect taxes, duties, imposts & excises, to pay the debts & provide for the common defense & gen. welfare of the US."

THE TAXING & SPENDING POWERS:

BAILEY V. DREXEL FURNITIURE CO. & HAMMER V. DAGENHART:
Ct. says can't tax just for purposes of regulating an act/actions that they wouldn't approve of & don't have the power to regulate that activity.
***Today, this rule wouldn't prevail. Have been overturned.

UNITED STATES V. BUTLER:
Ct. said Congress can't regulate agriculture so has no rt to demand actions by farmers. Therefore, Congress cannot induce farmers/regulate agriculture by the use of the spending clause. ***Later, Ct. overruled this decision.

STEWARD MACHINE CO. V. DAVIS:
Ct says this taxing upon TP's.
***See Handout, Memo Sept. 12th, 1995 for info on case. If congress believes activity is tied to the general welfare, then congress can attach inducements to the invitation.

SOUTH DAKOTA V. DOLE:
Ct. held that Congress could make money avail to states from Fed. Funding (Spending Clause) based on the drinking age of the states. (Also, unavail to states if drinking age is less than 21 & not a total denial of funds, only reduction by 5%).

Rule: 1. Exercise of spending power must be in pursuit of the general welfare.
2. If Congress desires to condition othe States' receipt of federal funnds, it must do so unambiguously, enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation.
3. Conditions on the fed. grants might be illegitimate if they are unrelated to the federal interest in partiular national projects/programs.
4. Other Constitutional provisions may provide an independent bar to the conditional grant of federal funds.

Limits on the Commerce Power? (see National League of Cities v. Usery) Scope of Fed Auth Art.I:
-14th Amend, cl 5.

Mandates: Mandates
1. Funded To Private Entities
a. fully To Public Entities
b. partially a. to regulate public behavior
2. Unfunded b. to regulate private behavior

Sources of pollution can be privately/publicly owned.
Invitations: issued to public & some private entities. Entities asked to join/pass laws US deems desirable.
a. Public
1. pass laws
b. Private

INTERGOVERNMENTAL IMMUNITIES:
-To what extent does Const limit Fed govt (congress) from controlling the Fed & State govts?

Marshall: total immunity? Difficulty of drawing lines. States can't tax the Nation. Not a fit question for the judiciary.
Congress may regulate state & local activities, but there is a limit.

TAXING & SPENDING POWER & LIMITATIONS ON THE COMMERCE POWER:
New York v. United States:
Sustained rt of Fed. govt to tax the states' activities.
Non-discriminatory taxes are ok, but cannot unduly interfere/infringe w/states ability to carry on w/its responsibilities.

NATIONAL LEAGUE OF CITIES V. USERY:
State sovereignty is the States' power to determine the wages, hrs, & overtime comp for those whom the employ "to carry out their governmental functions.
Ct. held that it is not w/in Congress' commerce power to directly displace the States' freedom to structure integral operations in areas of traditional governmental functions or to force directly upon the States [Congress's] choices as to how essential decisions regarding the conduct of integral governmental functions are to be made.

GARCIA V. SAN ANTONIO METRO TRANSIT AUTH:
Overruled National Leage of Cities
Must distinguish b/t governmental/proprietary activity
-Core govenmantal immunities are immune from such regulations traditional, esential, etc.
Distinguish b/t discriminatory/non-discriminatory regulations Balance Fed. Needs & Local Interests

HYPO: Fed Law requires states to regulate private pollution & state govts are req'd to enact legislation implementing this plan via legislation using state funded pollution programs.
-Diff b/t reg for private & public needs. Ct more willing to regulate both, as 1opposed to public oriented regulations.

SOUTH DAKOTA V. DOLE:
NEW YORK V. UNITED STATES: [VERY IMPORTANT]:
Radioactive Waste Policy Amendments Act of 1985
-imposed upon states the obligation to provide for the disposal of waste generated within their borders, and set forth various "incentives" to encourage the states to comply with their obligation.
The Ct. upheld the monetary and access incentives against 10th Amendment attacks but invalidated the "take title" provision.
-distinquishes case from the line of cases culminating in Garcia because this is not a case in which Congress subjected a State to the same legislation applicable to private parties.
This case concerns the circumstances under which Congress may use the States as implements of regulation; that is, whether Congress may direct or otherwise motivate the States to regulate in a particular field or a particular way.

CONGRESS CAN ENCOURAGE STATE TO REGULATE IN 2 WAYS:
1. Attach conditions under its spending power, AND
2. Give states a choice to regulate or be preempted by federal legislation where it has the power to regulate private activity under the commerce power

***the residents of the States retain the ultimate decision as to whether or not the state will comply.
State is regulated as an Actor
Issue: Whether, Federal command and State is required to use its own money and resources to carry it out or, require that States use their legislative power to carry out federal mandate.

FEDERAL LEGISLATION IN AID OF CIVIL RIGHTS & LIBERTIES

Voting Rights Act of 1965
Prohibiting the use of voter registration requirements to abridge the right to vote on account of race or color. In addition to probiding for federal voting examiners, the Act automatically suspends the use of voting tests to disqualify potential boters in states where the Attorney General finds that a test has been used, and less than 50% of the persons of voting age are registered to vote

SOUTH CAROLINA V. KATZENBACH:
Voting rquirements is used to further discriminate against Blacks -A history of discrimination

KATZENBACK V. MORGAN:
(The above is not the case here)
Sec. 5 does not grant Congress power to exercise discretion in the other direction and to enact "statutes so as in effect to dilute equal protection and due process dicisions of this Court."
Congress' power under sec. 5 is limited to adopting measures to enforce the guarantees of the Amendment; sec. 5 grants Congress no power to restrict,abrogate, or dilute these guarantees .
-Thus, for example, and enactment authorizing the States to establish racially segregated systems of education would not be---as required bye sec. 5 ---a measure "to enforce" the Equal protection Clause since that clause of its own force prohibits such state laws.

LIMITING THE 5 POWER: THE VOTING RTS ACT OF 1970:

OREGON V. MITCHELL:
Executive and Congresional Relations: Separation of Powers Allocating the Lawmaking Power; Executive Lawmaking Youngstown Sheet & Tube Co. v. Sawyer [The Steel Seizure Case]: Issue: whether the President was acting within his constitutional power when he issued and order directing the Sec'y of Commerce to take possession of and operate most of the Nation's steel mills? President had acted pursuant to his honestly & firmly held belief that a stoppage in the steel mill would be a national disaster. Action had not been expressly authorized by Congress. Ct. decides that however stronly felt, Truman's action exceeded limitations imposed upon him by the Constitutution.
***Very Formal view of Separation of Powers.
President derives power from Art. II, or Congress' regulation & authorization of Pres. to uphold Acts passed by Congress. Art II, 1 "Vestation Clause" and 2&3.
J. Black interpreted things very narrowly.
p. 264-65: FRANKFURTER'S opinion: President's get powers thru process analagous to adverse possession...etc. Custom & practice to justify certain particular acts/actions that are challenged.

JACKSON'S opinion: tripartate analysis:
1) Pres acts w/in auth. of Congress, expressed/implied delegation, the Const., & Congress acting w/in their Const. auth. Combined powers of Executive & Legislative Branches. President's powers are at max for this level. GREEN LIGHT TO PROCEED.
2)Twilight Zone: unsure of whether Pres & congress share these powers or if they're solely Congress' powers or if they belong to the President. YELLOW LIGHT, PROCEED W/CAUTION
3)Pres acts against a Congressional demand. Lowest powers for President at this level. RED LIGHT, DO NOT PROCEED.

***Eventually adopt the dissenting opinion?!?...(not sure if that's what he said).

The mill owners arge that the President's orders amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President.
President's arguments:
-Divesture Clause
-Commander in Chief b -Art. II sec. 3(last line) Authority to Take Care Clause
Taft View: Pres authority is only from what is enumerated in the Const. or the powers that Congress has given him.

DISAGREEMENT B/T CONGRESS & EXECUTIVE RE: APPROPRIATIONS.

3 Types of Separation of Powers Problems:

1. Delegation: can responsibilitites assigned by the Constitution be delegated toanother branch? Can Congress give its powers to make laws to another? ie. the President.

2. Impairment: actions by one branch may disaable another branch from carrying out its constitutionally assigned duties.

3. Asssumption: one branch may step out of its constitutionally assigned role and assume duties assigned to another.

Judicial effors to resolve Separation of Powers Problems:
A. Should the cts be involved? see Nixon (no) & Goldwater (yes).
B. Should the Ct. be deferential or actively supervise Congress and the President? Should the ct's decisions be narrow or broad? Depends, varies w/cases.

JUDICIAL THEORIES USED TO RESOLVE SEPARATION OF POWERS PROBLEMS:
A. Formal Separation of Powers: however desirable it may be to arrange govt a certain way, can't do it b/c framers already have arranged to govt & arranged it a certain way.
B. Balance of Powers/Functional Approach: What affect will departure from structure have? So long as it doesn't disrupt balance of powers, then departure from separation will be permitted/tolerated.

***See Art. I, 8, cl.18:

LEGISLATIVE VETO:
Immigration & Naturalization Service v. Chadha:
Issue: Whether acction of one House of Congress under 244(c)(2) violates structures of the Constitutution?

Judicial theories used to resolve separation of powers:
-Formal separation of powers
-Balance of powers
Constitution:
A. Congress:
1. House
2. Senate
-Rules
B. President
Justice Dept/Judiciary
Immigration & Naturalization Services
1. Legislative
2. Executive
-Police
-Prosecutions
3. Judicial (judging)
C. Judiciary

Power to disapprove implementation:
-in house veto (Chadha)
-both house veto (other laws)

Joint Resolution: 2 house resolution. Bicamaralism & presentment. Sent to President for approval, subject to veto & later approval w/a 2/3's vote of both houses.
Concurrent Resolution: 2 house resolution requiring concurrence of both houses. Finished when both houses adopt the resolution, w/no contemplation that it will be presented to President for approval. Says that the houses action to override decision of Dept of Justice was unconstitutional b/c exceeded powers given to Dept. by Constitution. Bicamaralism: must go b/f both houses & presentment requires it to go to the President for consideration to make it a law.
Fell w/in req'ts in Art.I. b/c legislated in purpose & effect b/c altered legal rts of persons, Attny Gen, people like Chadha, all outside Leg. Branch.
Congress is stepping out of role & assuming role of judiciary, cts should be determining whether indivs are out of the boundaries of the law.
J. WHITE'S dissent doesn't think Chadha's rts remain. Regards things as proposals by executive branch, merely Congress reserving rt to express opinion on executive proposals.
What happened to Congress' power under the necessary & proper clause? [Enumerated Powers]...[Incidental Powers}...[Enumerated Powers in Executive Branch].

STRUCTURAL INNOVATIONS:

BOWSHER V. SYNAR:
Ct. held Gramm-Rudman Act, in which Congress assigned Comptroller Gen the auth. to specify spending reductions binding on the President, Unconst. The act would have set a maximum deficit amt for each yr b/t 1986-1991, & across the board cuts were to be made if the budget exceeded the maximum amt.
-Congress was held to have cunconstitutionally encroached on the powers of the executive by vesting executive functions in the Comptroller who is subjct to removal by Congress.
-Consitution didn't contemplate an active role for Congress in the supervision of officers charged w/the execution of the laws it enacts. Congress has no authority to execute the laws & it can't delegate to an officer under its control what it doesn't possess.
-intrusion into the executive function. Ultimately Comptroller is under control of Congress, subject to removal by Congress for cause, impeachment, & by joint resolution. -subject to Congressional control, unconst & inappropriate b/c job involves execution of law, Executive branch should be executing the law.
Quests to Ask:
1. What is being done? Leg, Executive, or Jud. function?
2. Who is doing it?
3. Is it w/in their power?
Executive function, by the Comptroller (no category), in power of Congress (legislative branch), so not w/in Congress' power to remove him.

PROPERTY MANAGEMENT

METROPOLITAN WASHINGTON AIRPORTS AUTH. V CITIZENS FOR ABATEMENT OF AIRCRAFT NOISE, INC.:
If the power is executive, the Constitution doesn't permit an agent of Congress to exercise it. If the power is legislative, Congress must exercise it in conformity w/the bicameralism and presentment requirements of Art. I 7.
Congress can't give executive powers to one of its agents.
Congress can't shortcut bicamaralism & presentment clause.

THE APPOINTMENT & REMOVAL POWER:

BUCKLEY, MYERS, HUMPHREY'S, WIENER:
Congress was prohibited from appointing officers of U.S. entrusted w/the execution of laws. Must be in Art.II.

Upheld Presidential removal of postmaster contrary to tenure of office act, characterized "the power of removal as incident to the power of appointment."
Ct rejected presidential removal of an FTC commissioner contrary to statute, since he wasn't a purely executive officer. No place in executive dept or executive power vested by the Constitution to the President. If quasi-legislative/quasi-judicial powers, or is an officer of the legislative or judicial depts, then separation of powers rejects an illimitable power of removal in the President.
Ct. upheld a back pay claim by a commissioner of the War Claims Commission (primarily judicial role) who'd been removed.

MORRISON V. OLSON:
Effort by Exec. Administration (Reagan) to dismantal New Deal & congressional administrational acts. Tries to adopt formal separation of powers approach.
Attny Gen, if w/reas belief & good cause, wants further investigation, then he can apply to ct for appointment of indep. cousel to further investigate. (a temp. job)
-High Govt'l officials who violate the law. Investigatorial/Prosecutorial task is an Executive Function. [Congress makes laws,
Executive Branch implements them, & Judicial Branch determines guilt/innocence.]
Ct. holds that it will tolerate such departure from the norms. Will allow appointment of an indep.counsel, appointed by a ct, & removable by the Attny Gen (w/diminished powers).

Appointment Clause: Art II 2: President normally nominates, subject to approval by Senate, officers of the United States. Congress may vest appointment of inferior officers to President alone. -"Principal Officers" v. "Inferior Officers" (left undefined), see p297-8 text.

Congress exercises enumerated powers, but re-assigning the traditionally executive task of implementation of an entity outside the executive branch. -gives a traditionally exec. task to a member of the judiciary. -From the Attny Gen to an independent counsel. -indep counsel is indep from the executive/Pres. -Supervisory role of Pres. isn't present here. Ct. Held: provisions of the Act don't violate the Appointments Clause of the Constitution, Art. II, sec.2, cl 2, or the limitations of Art. III, nor do they impermissibly interfere w/the Pres. Auth under Art II in violation of the constitutional principle of separation of powers.

Principal Officer: heads of the departments of the Exec. Branch. Political appointees in the exec. dept. in the upper eschelan. Inferior Officer: Congress decides how they're to be appointed.
1. Permit Pres. to appoint them himself.
2. Permit Ct to appoint them
3. Permit heads of the depts to appoint.
***note, nowhere does it say Congress can leave themselves the power to make appointments to that commission.

Ct held that the independent counsels were inferior officers. Since Judges were forbidden from trying cases brought by the indep counsels they appointed, ct concluded that this was not a violation of the separation of powers.
-May argue classic case of impairment.

THE SENTENCING COMMISSION:

MISTRETTA V. U.S.:
1984 Act which est. the Commission as "an indep commission in the judicial branch of the U.S. to devise guidelines used for sentencing. The guidelines were binding on the cts, although judges may depart from guidelines in cases where appropriate aggravating/mitigating circ. exist.

Held: The vesting of a nonadjudicatory activities in the Judicial Branch doesn't necc vilate separation of powers. "Congress may delegate to the Judicial Branch nonadjudicatory functions that don't trench upon the prerogatives of another Branch and that are appropriate to the central mission of the Judiciary."
-The Constitution doesn't forbid judges from wearing 2 hats; it merely forbids them from wearing both hats at the same time.

FOREIGN AFFAIRS; LAWMAKING AND THE FOREIGN AFFAIRS POWER:

UNITED STATES V. CURTISS-WRIGHT EXPORT CORP.:
Dames & Moore v. Regan:

PRIVILEGES AND IMMUNITIES IN THE SEPARATION OF POWERS; EXECUTIVE PRIVILEGE:

Exec. Privilege.
1. Cts
a. Crim
b. Civil
2. Congress

Executive Immunityv Congressional Immunity

DO CTS HAVE THE AUTH TO HOLD CONGRESSIONAL REPRESENTATIVES LIABLE?

Art I: Congress has some immunity, textually based. Not true of the Executive Branch.
Exec Priv: incidental implied power by virutue of exec responsibility.
-Congressional demand for information, Congress acting under Art I powers.
Can privilege be invaded by another branch?

United States v. Nixon:
7 persons indicted in connecteion w/White House of conspiracy to defraud the US and obstruct justice. Nixon was named as an unindicted co- conspirator.
Nixon claimed executive priv & refused to produce designated tapes, memoranda, & other papers related to specified meetings b/t Pres Nixon & others.
-He did produce edited transcripts of some of subpoened converstations.
Cox is fired, by order of Nixon. Nixon resigned. Asst. Attny Gen refused to fire Cox. Cox was fired by Bornt.
Mere assertion of a claim of "intra-branch dispute" w/o more, not enough to defeat fed juris; justiciabaility doesn't depend on such a surface inquiry.
President argues no case in controversy arising under Const [Art III], merely dispute b/t executive members of Executive branch & cts have no business in the matter. Non-Justiciable Political Question.
Ct: there is a privilege, but it isn't absolute.
Conduct by one branch has an effect on another branch. No absolute privilege b/c to do so would impede on the ability of judicial branch to do its job. Ct permits judicial branch to look into & hear the matter. Since the matter is one arising in the regular course of a fed crim prosecution, it is w/in the traditional scope of Art III power. Held for the United States.

Privilege does apply to civil litigation, but less important than w/criminal proceedings.

EXECUTIVE & LEGISLATIVE IMMUNITY; PRESIDENTIAL IMMUNITY:
-Is President immune from civil suit? Crim suit?

Pres & executives should be able to present a constitutuinal place of business, carry on w/o interference/hindrance.

NIXON V. FITZGERALD: CIVIL LITIGATION:
Absolute role of immunity to the president. At least, to the role of pres, once he's no longer President, then he can disclose.
-Qualified immunity is more difficult to administer.

***Congressional Immunity is expressly allowed by Art I of the constitution.
-Should we allow members of Congress to be prosecuted?

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