Hypo 1 - 2 20 Year Old Males Commit the Exact Same Crime in ...

Hypo 1 - 2 20 Year Old Males Commit the Exact Same Crime in ...

HYPO 1 2 20 YEAR OLD MALES COMMIT THE EXACT SAME CRIME IN DIFFERENT SECTIONS OF BALTIMORE. EACH ROBS A 7/11 OF $275 USING A KNIFE. ONE SON OF INNER CITY SINGLE MOM, OTHER WEALTHY LAWYER. DO THEY RECEIVE THE SAME SENTENCE ? HYPO 2 ASSUME CRAZY STATE HAS A RULE THAT 3 FELONY CONVICTIONS = LIFE IMPRISONMENT. ASSUME DEFENDANT DOES THE FOLLOWING (ALL FELONIES IN STATE): 1. $ 150 VISA CHARGE OVER THE CREDIT LIMIT; 2. BOUNCES A $ 50 CHECK 3. STEALS A CHICKEN

IF A STATES COURTS SEND HIM TO JAIL FOR LIFE, SHOULD USSC OVERTURN THE DECISION ? HARD CASES MAKE BAD LAW - O W HOLMES SHOULD THE USSC BE MORE CONCERNED WITH DOING JUSTICE IN A PARTICULAR CASE OR BE CONCERNED WITH PRECEDENT AND GUIDANCE FOR THE FEDERAL JUDICIARY ? IN DEALING WITH A HARD CASE, WOULD YOU PREFER A MEMO ON THE LAW OR A MEMO ON THE JUDGES PERSONALITY, VALUES AND BACKGROUND ?

WHAT IS SOCIETYS OBLIGATION TO THOSE LEAST ABLE TO HELP THEMSELVES ? SOCIAL WELFARE v SOCIAL DARWINISM - 2016 ? 2016 CONSTITUTION INTERPRET GIVEN MEANING WHEN WRITTEN OR FLEXIBLE DOCUMENT INTERPRETED THROUGH CONTEMPORARY VALUES ? JUDICIAL ACTIVISM (TAKE A LOT OF CASES) v JUDICIAL RESTRAINT (TAKE FEWER CASES) MY APPROACH:

1. HISTORY ESPECIALLY 1937 NEW DEAL, GROWTH OF FEDERAL GOVERNMENT AND SOCIALISM. EXAM IS 2016 LAW HISTORY HELPS YOU UNDERSTAND MODERN RULES. 2. USSC CONCERNED WITH NEXT CASE IN DISTRICT COURTS GUIDANCE/PRECEDENT. 3. USSC CASES END OF THE STORY. REWIND AND DECIPHER ARGUMENTS BEFORE DC CASE STARTED. US CONSTITUTION : AS THE CONVENTION TRIED TO BALANCE COMPETING

INTERESTS, THINGS WE KNOW FOR SURE THAT WERE UNANIMOUS CONCERNS OF THE FOUNDING FATHERS: 1. PROTECTION NATIONAL MILITARY 2. FEAR A KING SEPARATION OF POWERS WITHIN THE FEDERAL GOVERNMENT 3. ROLE OF STATE GOVERNMENT - FEDERALISM 4. NATION = SINGLE ECONOMIC UNIT RESIDUARY (STATES) v ENUMERATED (FEDERAL) CONSTITUTION DEALS WITH 3 ENTITIES FEDERAL GOVERNMENT (MOST), STATES AND CITIZENS FEDERAL GOVERNMENT (CREATING RULES)

1. LEGISLATURE ART. I, SEC 7, AND 8 2. EXECUTIVE ART II, SEC 1, 2 AND 3 3. JUDICIARY ART III, SEC 1 AND 2 LEGISLATIVE 1. MOST POWERFUL BRANCH MAKE LAW 2. SEC 7 HOW TO MAKE LAW MAJORITY OF BOTH CHAMBERS WITH PRESIDENT, 2/3 OF BOTH CHAMBERS TO OVERRIDE PRESIDENTIAL VETO. 3. CAN CONGRESS PASS A LAW ESTABLISHING A NATIONAL PROCESS FOR DIVORCE ? SEC 8 IF NOT A TOPIC LISTED THERE, CONGRESS CANT DO IT. EVERY

STATUTE MUST BE TRACED BACK. ESSENTIALLY ALL RELATED TO DEFENSE OR NATION AS SINGLE ECONOMIC UNIT. 4. AT END OF SEC 8, NECESSARY AND PROPER CLAUSE. WHAT DOES IT MEAN ? DOCTRINE OF IMPLIED POWERS EXPANDING EXPRESS POWERS. 5. SEC 10 COMPLIMENTS SEC 8 THINGS THE STATES MAY NOT DO : 1. NO FOREIGN RELATIONS 2. NO MONEY 3. NO BORDERS OR IMPORT/EXPORT FEES

4. NO MILITARY 5. NO TITLES OF NOBILITY EXECUTIVE OBAMA AND GUN CONTROL VALID ? 1. SEC 1, 2 AND 3 JOB DESCRIPTION OF MOST POWERFUL PERSON IN WORLD. A. COMMANDER IN CHIEF B. FOREIGN AFFAIRS (AMBASSADORS, TREATIES, ETC) C. APPOINT EXECUTIVE OFFICERS WITH SENATE APPROVAL D. FAITHFULLY EXECUTE LAWS E. EXECUTIVE POWER VESTED IN

EVERYTHING PRESIDENT DOES MUST BE TRACED BACK TO ONE OF THESE POWERS. EQUIVALENT OF NECESSARY AND PROPER = EXEC POWER, SEC 1 JUDICIAL LITIGATION CHOICE FEDERAL OR STATE COURT ? CAN YOU FILE A CASE IN FEDERAL COURT INVOLVING A CAR ACCIDENT BETWEEN 2 MARYLAND DRIVERS ? CAN YOU FILE A CASE IN FEDERAL COURT INVOLVING A CAR ACCIDENT BETWEEN MARYLAND AND VIRGINIA DRIVERS ? $$$ CAN YOU FILE A CASE IN FEDERAL COURT INVOLVING

A MARYLAND POLICEMAN BEATING A MARYLAND RESIDENT ? HOW MANY JUSTICES ARE THERE ON THE USSC ? 1. SEC 2, FIRST PARA. POWER = THE KINDS OF CASES FEDERAL SYSTEM CAN HEAR. EXCLUSIVE ? DISCRETION IN CONGRESS. LIKE ART 1, SEC 8 FOR LEGISLATURE. 2. SEC 2, SECOND PARA. ORIGINAL JURISDICTION USSC CAN HEAR CASE FIRST NO LOWER COURT. MUST IT HEAR IT FIRST ? DISCRETION IN USSC.

3. APPELLATE JURISDICTION A. WITH SUCH EXCEPTIONS AND UNDER SUCH REGULATIONS AS CONGRESS MAY MAKE. CAN CONGRESS SAY USSC CANT HEAR ABORTION CASES ? B. APPEALS FROM WHAT ? SEC 1 INFERIOR COURTS AS CONGRESS MAY FROM TIME TO TIME CONSTITUTION CLEARLY GRANTS CONGRESS CONTROL OVER JUDICIARY DOES EXECUTIVE HAVE POWER OVER JUDICIARY ?

EXECUTIVE POWER OVER JUDICIARY 1. APPOINTMENT OF JUDGES WITH CONSENT OF SENATE. 2. ENFORCEMENT. NIXON TAPES HYPO. WHAT POWER DOES JUDICIARY HAVE OVER OTHER BRANCHES ? JUDICIAL REVIEW FROM WHERE ? LEAST DANGEROUS BRANCH ? STATES 1. PRE 1930s, STATES MUCH BIGGER IN TERMS OF POWER OVER INDIVIDUAL CITIZENS.

2. ART IV, SEC 1 AND 2 - FEDERAL HOUSEKEEPING THINGS NEEDED TO MAKE THE COUNTRY A NATION - FULL FAITH AND CREDIT, PRIVILEGES AND IMMUNITY AND EXTRADITION. 3. ART VI, PARA 2 SUPREMACY CLAUSE. NOTE STATE JUDGES BOUND STATE JUDGES DOING SOMETHING ON FEDERAL LAW. IF STATE COURT DECIDES A FEDERAL ISSUE, CAN YOU APPEAL TO USSC ? WHERE DOES CONSTITUTION SAY IT ?

SINCE IT IS AN APPEAL TO USSC, DO YOU NEED A CONGRESSIONAL STATUTE AUTHORIZING IT ? GOVERNOR FAUBUS IN ARKANSAS. BROWN V BD OF ED COLLATERAL ESTOPPEL IF PRESIDENT DOESNT SEND IN TROOPS, WHAT HAPPENS ? IF PRESIDENT DOES SEND IN TROOPS AND GOVERNOR DOESNT BACK DOWN, WHAT HAPPENS ? AMENDMENT X EMBODIMENT OF CONCEPT THAT FEDERAL GOVERNMENT IS LIMITED TO POWERS GRANTED IN THE

DOCUMENT. STATES ARE PLENARY OR RESIDUAL EVERYTHING NOT EXPLICIT IN THE DOCUMENT REMAINS IN THEM. AMENDMENT XI - A STATE CANNOT BE SUED BY AN OUT OF STATE PLAINTIFF IN FEDERAL COURT. CITIZENS ARTICLE I, SEC 9 - HABEUS CORPUS BILL OF ATTAINDER EX-POST FACTO LAW AMENDMENTS 1 8 - DO THESE RIGHTS APPLY TO THE STATES ? AS WRITTEN ? BARRON v

BALTIMORE. AMENDMENT 14 INCORPORATION APPLIES TO STATES THROUGH THE DUE PROCESS CLAUSE. LIMITS CASE OR CONTROVERSY ADVISORY OPINION STANDING * MOOTNESS RIPENESS ARTICLE III, SEC 2 - WORD PRECEDES EACH GRANT OF POWER.

NO DIFFERENCE FOR US BETWEEN CASE AND CONTROVERSY ASSUME THEY BOTH MEAN CASE. CONSTITUTIONAL - FEDERAL COURT HAS NO POWER TO HEAR THE LAWSUIT NOT A CASE AS THE CONSTITUTION ENVISIONED IT. PRUDENTIAL - FEDERAL COURT HAS THE POWER TO HEAR IT, BUT NOT A GOOD IDEA TO DO SO. WOULDNT BE PRUDENT TO HEAR IT. FACTORS: 1. VOLUME 2. ADVERSARIAL

3. JUDICIAL ACTIVE (DISLIKE) v JUDICIAL RESTRAINT (LIKE) 4. RIGHT WRONGS (DISLIKE) OR DECIDE CASES (LIKE) 5. CONGRESS ADVISORY OPINIONS COURT ANSWERING HYPOTHETICAL QUESTIONS. DO STATE COURTS DO IT ? 1. 34-35 - JOHN JAY REFUSING TO ANSWER WASHINGTONS QUESTION REGARDING TREATY IMPLICATIONS.

2. EFFICIENCY v ADVERSARY SYSTEM ? 3. NOT BINDING. IF IGNORED, LOWER POWER AND PRESTIGE OF USSC. 4. MAY RESOLVE BY AVOIDING CONSTITUTIONAL ISSUE 5. 35 RULE AND POLICY QUOTES COULD USSC GIVE ADVISORY OPINIONS IF IT WANTED TO DO SO ? DECLARATORY JUDGEMENTS - THOUGHT FOR DECADES TO BE ADVISORY OPINIONS. CHANGE IN 1930S A) LIKE INJUNCTION AND

B) C AND C CONCERNED WITH SUBSTANCE NOT FORM. OK AS LONG AS ADVERSARIAL AND NOT HYPOTHETICAL. STANDING DO THE PARTICULAR PARTIES HAVE A SUFFICIENT PERSONAL STAKE IN THE LITIGATION ? IS THIS A PROBLEM IN NORMAL TORTS OR CONTRACTS LAWSUIT ? MODERN PROBLEM IN GROWING FEDERAL ACTIVITY AND RIGHTS. CITIZEN HAS A GENERAL PROBLEM WITH A GOVERNMENT ACTION OR A HARM AS A TAXPAYER.

1. GOVERNMENT $$$ TO RELIGIOUS SCHOOL 2. CONGRESSIONAL STATUTE NOT LISTED ART 1, 8 CONSTITUTIONAL STANDARDS (37): 1. ACTUAL INJURY - INDIVIDUALIZED 2. CAUSAL CONNECTION 3. LIKELY TO BE REDRESSED PRUDENTIAL STANDARDS (48): 1. NO THIRD PARTY 2. NO GENERALIZED GRIEVANCES 3. P = ZONE OF INTERESTS WHAT IF CONGRESS GRANTS STANDING IN STATUTE ?

LUJAN v DEFENDERS OF WILDLIFE (1992 - 36) SPLITS ENDANGERED SPECIES ACT DEPT OF INTERIOR INTERPRETS AS ONLY US AND SEAS DC AND C OF A FOR P. EGYPT NILE CROCIDILE; SRI LANKA ASIAN ELEPHANT AND LEOPARD SCALIA 7 - 2 1. 37 CONSTITUTIONAL STANDARDS INJURY, CONNECTION AND REDRESSABILITY. 2. 38 NOT INGENIOUS. LOWER COURTS WOULD GIVE EVERYONE STANDING 3. NO REDRESSABILITY - FOREIGN

4. 39 - ESA CITIZEN SUIT SOME OK BUT NO TO GENERAL INTEREST IN HAVING EXECUTIVE FOLLOW PROCEDURES. 5. GENERALIZED INTEREST BENEFITS P NO MORE THAN PUBLIC. CONGRESS CANT TRANSFER FROM PRESIDENT TO THE COURTS THE POWER TO ENFORCE THE LAWS. 6. IF CONGRESS GRANTS STANDING, ONLY DENY IF VIOLATES CONSTITUTIONAL, NOT PRUDENTIAL.

KENNEDY AND SOUTER (C) CONGRESS CAN GRANT STANDING, BUT MUST IDENTIFY INJURY AND CLASS OF P WHO CAN SUE. NOT JUST GENERAL INTEREST IN ENFORCE STEVENS (C) ON MERITS CONGRESS DIDNT INTEND TO APPLY TO FOREIGN COUNTRIES BLACKMAN AND OCONNOR (D) COURTS SHOULD BE ABLE TO ENFORCE MANDATED PROCEDURES. SLASH AND BURN. MASS. v EPA (2007 - 41)

NEW CAR CARBON EMISSIONS EPA NOT ENFORCING CLEAN AIR ACT. COASTLINE. HOW MUCH CARBON DOES US PRODUCE ? STEVENS (5 4) 1. NOT PQ, ADVISORY OR MOOT 2. 42 - 3 CONSTITUTIONAL REQUIREMENTS 3. STANDING APPLIES LESS STRINGENTLY TO STATES 4. INJURY LOSS Of COASTLINE 5. CAUSAL US PRODUCES CO2 6. REDRESS CAN BE INCREMENTAL ROBERTS + 3 (D)

JOB OF CONGRESS AND EXECUTIVE, NOT COURTS. GLOBAL WARMING IS COMPLEX WEB CHINA AND INDIA OFFICE BEFORE CASE FILED: 1. CAN BE FILED IN FEDERAL COURT ? 2. WHICH FEDERAL COURT ? 3. LUJAN HOW DEAL WITH IT ? A. ASK TO OVERRULE ? OR B. ASK TO DISTINGUISH ? IF B, HOW ? C. IS LUJAN A SOFT OR HARD DECISION ?

CONSTITUTIONAL PERSONAL INJURY 45 NOT NECESSARILY ECONOMIC; FUTURE (CONCRETE, PROBABLE) CAUSATION 42 ALLEN v WRIGHT (1984 - 46) IRS TAX EXEMPTION TO RACIST SCHOOLS INJURY NOT FAIRLY TRACEABLE TO GOVERNMENT. DISCRIMINATING PRIVATE SCHOOLS NOT GETTING DEDUCTION. UNSURE IF SCHOOLS WOULD CHANGE IF DENIED TAX EXEMPTION.

REDRESSABILITY 47 FOCUS ON INJURY AND RELIEF REQUESTED. CAUSATION LOOKS TO CONDUCT AND INJURY. PRUDENTIAL THIRD PARTY 48 1. CLOSE RELATIONSHIP BETWEEN P AND THIRD PARTY. 2. THIRD PARTY HAS GENUINE OBSTACLE GENERALIZED GRIEVANCE 48 TAXPAYER SUITS - GENERALLY NO FROTHINGHAM v

MELLON. NARROW EXCEPTION FLAST v COHEN 1. ART I, SEC 8 SPENDING (CITIZENS UNITED NOT PROPERTY CLAUSE) 2. SPECIFIC CONSTITUTIONAL VIOLATION (HEIN ESTABLISHMENT CLAUSE) ARIZONA CHRIST. v WINN (49) STATE TAXPAYER TOO SPECULATIVE ON INJURY AND CAUSATION. US v RICHARDSON CIA $ - ART I, SEC 9 PUBLIC SCHLESINGER v RESERVISTS ARI I, SEC 6, CL 2 CANT BE IN CONGRESS AND BE OFFICER. NO CITIZEN STANDING. NO STANDING EVEN IF NO POSSIBLE P (PRESIDENT

AGE (35) + RESIDENCE, NATURAL BORN) ZONE OF INTEREST 50 BENNETT v SPEAR ESA HALTS DAM. RANCHER SUES TO GET DAM. ZONE MORE FLEXIBLE SINCE PRUDENTIAL. SATISFIES CONSTITUTIONAL. CONGRESSIONAL GRANT 50 VERMONT v US STATUTE ALLOWED PRIVATE P TO SUE FRAUDULENT CONTRACTORS. STANDING ALLOWED ASSIGNMENT OF FEDERAL CLAIM. FEC v AKINS - VOTERS CHALLENGING FEC FAILURE TO TREAT AIPAC AS POLITICAL. STANDING OK

1. IF CONGRESS GRANTS STANDING, CANT USE PRUDENTIAL, ONLY CONSTITUTIONAL 2. INJURY SHARED IN COMMON CAN STILL BE CONCRETE AND AN INJURY IN FACT. LEGISLATOR STANDING 52 RAINES v BYRD AGAINST LINE ITEM VETO. DC MEMBER STANDING ON DILUTED VOTE AND LAWMAKING AFFECTED. NO STANDING - NO INDIVIDUAL INJURY AND INSTITUTIONAL INJURY WIDELY DISBURSED. (LATER INJURED P ALLOWED) 2016 USSC POLITICS

LIBERAL CONSERVATIVE GINSBURG SOTOMAYOR KAGAN BREYER SCALIA THOMAS ALITO

ROBERTS KENNEDY CLAPPER v AMNESTY INTL (2013 - S1) STATUTE ALLOWS US TO CONDUCT SURVEILLANCE ON NON US PERSONS OUTSIDE US. P = US PERSONS WHOSE WORK REQUIRES COMMUNICATIONS WITH LIKELY TARGETS. ALITO (5-4) 1. FUTURE INJURY TOO SPECULATIVE TO SATISFY CERTAINLY IMPENDING. 2. EVEN IF INJURY, NOT FAIRLY TRACEABLE.

3. ALTERNATIVE CURRENT INJURY ON INCURRING COSTS. NO CANT MFG STANDING ON HYPO FUTURE HARM. 4. REJECT SECOND CIRCUITS OBJECTIVELY REASONABLE LIKELIHOOD AND REASSERT CERTAINLY IMPENDING. TOO LONG A CHAIN. 5. P ONLY SPECULATING ON WHAT GOVT WILL ACTUALLY DO. CANT SATISFY FAIRLY TRACEABLE 6. NO POSSIBLE P IS NOT AN ARGUMENT FOR STANDING. HERE REVIEW BY FISA COURT.

BREYER + 3 (D) GINSBURG SOTOMAYOR AND KAGAN 1. CLEARLY INTERCEPTING PHONE AND EMAILS = INJURY. QUESTION IS ACTUAL OR IMMINENT 2. GOVT MOTIVE AND PAST PRACTICES AND CAPACITY = STRONG LIKELIHOOD. US LAWYER, JOURNALIST OR HUMAN RIGHTS WORKER AT RISK. 3. ALL AGREE CERTAINTY IS NOT THE STANDARD. REASONABLE OR HIGH PROBABILITY IS. HOLLINGSWORTH v PERRY (2013 - S 6) PROP 8 MARRIAGE = MAN + WOMAN. CALIF OFFICIALS REFUSED TO DEFEND BUT DO ENFORCE. D

= PROPONENTS OF PROP 8. DC ADDED PROPONENTS AS D AND HELD PROP 8 INVALID. OFFICIALS REFUSED TO APPEAL. NINTH CIR ASKED CALIF SC THEY SAID PROPONENTS AUTHORIZED TO ASSERT STATES INTEREST. C OF A GRANTED STANDING AND DECLARED PROPOSITION 8 UNCONSTITUTIONAL. ROBERTS 1. D HAD NO DIRECT STAKE IN THE OUTCOME OF THEIR APPEAL. D NOT ORDERED TO DO OR REFRAIN FROM DOING ANYTHING. 2. D CLAIMS SPECIAL STATUS UNDER CALIF LAW.

TRUE BUT ONLY TO ENACTING, NOT ENFORCING. NO PARTICULARIZED INJURY ONLY A GENERAL ONE. NO STANDING TO APPEAL. D PRIVATE WITH NO REAL TIES TO STATE GOVERNMENT. NO REAL PRECEDENT. KENNEDY + 3 (D) THOMAS, ALITO AND SOTOMAYOR CALIF LAWS ALLOWS. LIMITED GROUP CONCRETE INJURY. MAJORITY SAYS NO TIE TO STATE GOVERNMENT BUT CA SC SAID YES. DECISION UNDERMINES CALIF INITIATIVE EXECUTIVE HAS A VETO IF DECIDE NOT TO DEFEND. VIGOROUS DEFENSE NOT AN ISSUE. POLITICS CONFUSED DC OK PROP 8 INVALID

US v WINDSOR (2103 - S 11) 2 WOMEN VALIDLY MARRIED IN CANADA. RECOGNIZED IN NY. SURVIVOR CHALLENGES FEDERAL ESTATE TAX. P ALLEGES DOMA UNCONSTITUTIONAL. AG DECIDES TO ENFORCE BUT NOT DEFEND IN DC. BALG WILLING TO DEFEND IN DC. DC AND COF A ALLOWED AND DECLARED DOMA INVALID KENNEDY 1. ENFORCEMENT CLEARLY INJURES P DENIED REFUND. ALLOW STANDING. AMICUS WILL FIGHT

EVEN IF EXEC WILL NOT. EXTRAORDINARY POSITION WHEN EXECUTIVE BELIEVES LAW IS UNCONSTITUTIONAL. BLAG AUTHORIZED BY HOUSE. SCALIA + 2 (D) ROBERTS AND THOMAS 1. P AND GOVERNMENT AGREE LOWER COURTS CORRECT WHAT ARE WE DOING HERE ? 2. ARTICLE III REQUIRES NOT JUST INJURED P BUT ALSO A D WHO DENIES VALIDITY OF THE COMPLAINT. MAJORITY EAGER TO INVALIDATE. ALITO (C ON STANDING, D ON MERITS) BLAG WILL VIGOROUSLY DEFEND.

HANDOUT CL1 MOOTNESS (TOO LATE) 53 ACTUAL CONTROVERSY MUST EXIST AT ALL STAGES OF LITIGATION TRIAL AND EACH APPELLATE REVIEW. SOMETHING OUTSIDE THE LEGAL SYSTEM HAS RESOLVED THE DISPUTE. MANY EXCEPTIONS (ABORTION). PRUDENTIAL ? RIPENESS (TOO EARLY) 54 - US v MITCHELL (1947 - CANT CAMPAIGN) AND LAIRD v TATUM ( 1972 - ARMY SURVEILLANCE - BIG DATA ?). IS THIS SAME AS FUTURE INJURY UNDER STANDING ?

POLITICAL QUESTION (NOT C OR C BUT SEPARATION OF POWERS) DOCTRINE ACTUALLY ORIGINATED IN MARBURY v MADISON(1803) 3 4. 55 PRUDENTIAL - BEST LEFT TO OTHER BRANCHES TO DECIDE BAKER v CARR (1962 - 56) LEGISLATIVE REAPPORTIONMENT ALWAYS THOUGHT TO BE PQ (COLGROVE v GREEN 1946) TENNESSEE NOT REAPPORTIONED SINCE 1901. ACRES NOT PEOPLE. DC AND C OF A NO STANDING

BRENNAN 1. 57 QUOTE. MODERN LAW SUMMARY. 2. EG = FOREIGN RELATIONS, RATIFICATION OF CONSTITUTIONAL AMENDMENT, REPUBLICAN FORM OF GOVERNMENT (LUTHER v BORDEN 1849 CHAOS ART 4, SEC 4) 3. HERE EQ PROTECTION = JUDICIAL STANDARDS. NOT ASSIGNED TO CO-EQUAL BRANCH. FRANKFURTER + HARLAN (D) 1. NO REAL JUDICIAL STANDARDS OR REMEDIES

2. NO REAL PERSONAL INJURY JUST DISSATISFACTION WITH POLITICAL PROCESS. 3. 60-61 QUOTE 4. IN EFFECT, A GUARANTY CLAUSE CASE. VOTES COUNTED, NOT POWERFUL ENOUGH. TRULY A POLITICAL FIGHT. REYNOLDS v SIMS 1964 ONE MAN, ONE VOTE. STATE LEGISLATURES MUST BE BUILT ON POPULATION POWELL v MCCORMACK (1969 - 62) ACP MET AGE(25), CITIZENSHIP (7) AND RESIDENCE REQUIREMENTS FOR HOUSE

ELECTION. HOUSE REFUSED TO SEAT HIM FRAUD, EMBEZZLE, ETC CONSTITUTION SAYS HOUSE MAY JUDGE QUALIFICATIONS OF ITS MEMBERS (ART 1, SEC 5, CL 1). ARGUMENTS FOR ACP AND HOUSE ? WARREN 1. IF CONSTITUTION GIVES HOUSE UNREVIEWABLE POWER, CASE OVER. IF NOT, THEN OTHER STRANDS OF PQ.

2. LEGISLATIVE HISTORY REVEALS ACP CORRECT CAN ONLY EXCLUDE FOR FAILURE TO MEET CONSTITUTIONAL CRITERIA. 3. DEMOCRACY PEOPLE CAN ELECT WHOMEVER THEY CHOOSE. SILLY ? NEXT MOVE FOR HOUSE ? WHAT HAPPENS IF DONT MEET CONSTITUTIONAL CRITERIA AND NO VOTE TO EXCLUDE ? UNDER AGE PRESIDENT ? GOLDWATER v CARTER (1979 - 62)

TERMINATION OF TREATY WITH TAIWAN. ARGUMENTS FOR PRESIDENT, ARGUMENTS FOR GOLDWATER ? CARTER PRESIDENT CAN TERMINATE TREATY WITHOUT SENATE. GOLDWATER NEED 2/3 SENATE APPROVAL TO TERMINATE. REHNQUIST POLITICAL QUESTION POWELL NOT PQ, BUT NOT RIPE BRENNAN (D) NOT PQ AND PRESIDENT ALONE CAN TERMINATE. IMPEACHMENT

ART I, SEC 2 HOUSE TREASON, BRIBERY, HIGH CRIMES AND MISDEMEANORS ART I, SEC 3 SENATE SOLE POWER TO TRY 2/3 VOTE TO CONVICT NIXON v US (1993 - 63) SENATE RULE XI COMMITTEE OF SENATORS 4 DAYS OF HEARING. RECOMMENDATION. FULL SENATE HAS 3 HOURS OF DEBATE. ARGUMENTS FOR SENATE ? 1. POLITICAL QUESTION SOLE POWER TO TRY. 2. IF NO 1, THEN STILL VALID - WHOLE SENATE

VOTED DC AND C OF A NON-JUSTICABLE REHNQUIST 1. TRY = MANY MEANINGS IN 1789. NOT MEANT TO LIMIT FORM. LACKS PRECISION = NO JUDICIALLY MANAGEABLE STANDARDS. 2. SOLE = NO REVIEW. HISTORY CONVENTION ELIMINATED USSC ROLE IN IMPEACHMENT. INDEPENDENCE IF SEPARATE CRIMINAL TRIAL. CHECKS AND BALANCES LEGISLATURES ONE CONTROL AFTER APPOINTMENT. WHITE (C)

1. SOLE TO DISTINGUISH HOUSE FROM SENATE 2. PROCEDURAL FAIRNESS IS A MANAGABLE JUDICIAL STANDARD. 3. ON MERITS FOUNDING FATHERS DIDNT WANT TO LIMIT SENATE IN WORD TRY. SOUTER (C) PQ UNLESS SENATE DID SOMETHING HIGHLY UNUSUAL. DIFFERENT RESULT BETWEEN REHNQUIST AND WHITE ? IS SOUTERS POSITION VIABLE ? CAN USSC REVIEW PRESIDENTIAL IMPEACHMENT FOR

HIGH CRIMES AND MISDEMEANORS ? CAN YOU RECONCILE MCCORM AND NIXON ? BUSH v GORE (2000 65) MAJORITY SAID NOT PQ. ARGUMENT THAT USSC SHOULD HAVE DECLINED TO RULE, LEAVING ISSUE TO STATE LEGISLATURES AND CONGRESS. SEE ART 2, SEC 1, CL 2 AND AMENDMENT 12. NOT PRECEDENT. ZIVOTOFSKY V CLINTON (2012 69) STATUTE SAYS JERUSALEM, ISRAEL ON PASSPORT. 8-1 NOT PQ IS STATUTE CONSTITUTIONAL IS ONLY Q. EXEC POWER TO RECOGNIZE V NATURALIZATION AND FOR COMM. ON REMAND EXECUTIVE POWER WINS.

PQ 57 NOT PQ 1. GUARANTY CLAUSE 1. LEGISLATIVE LUTHER v BORDEN REAPPORTION 2. FOREIGN RELATIONS, WAR, TREATY END 2. HOUSE QUALIF. 3. IMPEACHMENT IN SENATE 4. PARTY CONVENTIONS 5. TIME LIMITS ON

CONSTITUTIONAL AMENDMENTS JUDICIAL REVIEW MARBURY v MADISON (1803 2) ISSUES: 1. PROPERTY LAW 2. JUDICIAL POWER AND PROCEDURE 3. POLITICAL QUESTION 4. JUDICIAL REVIEW 5. INTENT OF FOUNDING FATHERS ADAMS AND MARSHALL ARE FEDERALISTS v

JEFFERSONIAN REPUBLICANS (ELECTION DEC 1800 TAKES OFFICE MARCH 4, 1801). MARBURY IS A FEDERALIST = JUSTICE OF THE PEACE. JUDICIARY ACT OF 1789 FOOTNOTE, PAGE 5 MARSHALL 1. PROPERTY NO DELIVERY NEEDED STATUS, NOT SYMBOL. VESTED RIGHT TO POSITION. 2. JUDICIAL POWER ALL EXECUTIVE OFFICERS SUBJECT TO JUDICIAL ORDER, EVEN THE PRESIDENT. 3. POLITICAL QUESTION EVEN IF POWER, SOME THINGS USSC WONT DO (3,4) A. SOME POSITIONS WONT FILL CONFIDENTIAL

AGENT OF PRESIDENT (CABINET) B. SOME THINGS WONT ORDER OFFICE HAS CONSTITUTIONAL OR LEGAL DISCRETION 4. JUDICAL REVIEW - CAN USSC ISSUE MANDAMUS ? A. JUDICIARY ACT OF 1789 CLEARLY ALLOWS USSC TO DO SO AS ORIGINAL JURISDICTION B. JUDICIARY ACT IS IN CONFLICT WITH CONSTITUTION C. CONSTITUTION MUST PREVAIL OVER STATUTE = JUDICIARY ACT UNCONST. AND INVALID.

5. WHO WINS ? 6. USSC MANDAMUS DOWN TO DC, NOT OVER TO EXECUTIVE. DC TO EXECUTIVE. MODERN CONGRESS - DC HAS CONCURRENT 1. 13 HISTORICAL SUPPORT FOR JUDICIAL REVIEW. FEDERALIST PAPERS. ALL RELATED TO WRITTEN CONSTITUTION. 2. 24 27 - OPINIONS OF VARIOUS PRESIDENTS. 3. 27 - JAMES BRADLEY THAYER 1893 UNDEMOCRATIC AND COUNTERMAJORITARIAN. AN ACTIVIST USSC =

A. POLITICIZE THE APPOINTMENT PROCESS B. LEGISLATURES WONT RESOLVE HARD ISSUES LEAVE FOR THE COURT. SUPER COLLATERAL ESTOPPEL COOPER v AARON (1958 21) ARKANSAS ARGUING NOT BOUND BY BROWN v BOARD OF ED BECAUSE NOT A PARTY. 1. WHEN USSC DECLARES MEANING OF THE CONSTITUTION THAT IS BINDING ON ALL FEDERAL AND STATE OFFICIALS. NO POWER IN STATE TO NULLIFY. 2. SUPREMACY CLAUSE AND OATH TO UPHOLD THE

CONSTITUTION BY STATE OFFICIALS BINDS THEM. DICKERSON v UNITED STATES (2000 23) PREVIOUS CASE OF MIRANDA v ARIZONA REQUIRED COPS TO READ RIGHTS. AFTER, CONGRESS STATED ADMISSIONS TURNED ON VOLUNTARY, OVERRULING OR CHANGING MIRANDA 1. IF USSC ONLY ACTING PURSUANT TO SUPERVISORY OR REGULATORY FUNCTIONS, CONGRESS MIGHT BE ABLE TO DO. BUT CONGRESS CANT LEGISLATIVELY SUPERSEDE USSC INTERPRETING OR APPLYING THE CONSTITUTION. USSC IS FINAL ARBITER OF THAT.

2. ONLY CHANGE BY CONSTITUTIONAL AMENDMENT. WHAT HAPPENS WHEN USSC INVALIDATES A STATUTE ? NOT REPEALED ONLY LEGISLATURE CAN DO THAT. STILL ON THE BOOKS. IF CASE OVERRULED, STATUTES CAN NOW BE ENFORCED MISC POINTS 1. CONSTITUTION GRANTS LIFE TENURE FOR FEDERAL JUDGES AND COMPENSATION CANT BE LOWERED. INDEPENDENT. NO USSC CONVICTED OF IMPEACHMENT CHASE IMPEACHED BUT NOT CONVICTED.

2 NOMINATION/APPOINTMENT PRESIDENT/SENATE IN 19TH CENTURY, SENATE REJECTED APP 20%. LEGAL PROCESS SCHOLARS INFLUENCE 20TH CENTURY ONLY IF INCOMPETENT OR CHARACTER DEFECTS. 1987 - CHANGES WITH NOMINATION OF ROBERT BORK BY PRESIDENT REAGAN. REJECTED ON CONSERVATIVE VIEWS BY DEMOCRATIC SENATE. POLITICIZED SINCE. 3. 1937 FDR COURT PACKING PLAN. INCREASE NUMBER OF USSC JUSTICES (OUT VOTE THEM). 8 JUSTICES RETIRE IN 2 YEARS. FEDERAL POWER.

BUT JUSTICES DONT ALWAYS VOTE AS PLANNED EISENHOWER AND EARL WARREN. AMENDMENT PROCESS ARTICLE 5 1. 2/3 OF BOTH HOUSES OF CONGRESS AND 2. 3/4 OF ALL STATES APPROVE. OR 1. 2/3 OF STATES ASK CONGRESS TO CALL CONVENTION TO PROPOSE AMENDING AND 2. 3/4 OF ALL STATES APPROVE. SECOND METHOD NEVER USED. RARE - 32 11,000 CONSIDERED 33 PROPOSED 27

ADOPTED. 0F 27, 10 IN 1791 AND 3 POST CIVIL WAR. CONGRESSIONAL AUTHORITY OVER COURTS EX PARTE MCCARDLE (1869 31) POST-CIVIL WAR MILITARY GOVERNOR OF MISSISSIPPI. MCCARDLE A NEWSPAPER EDITOR JAILED FOR INCENDIARY ARTICLES. HC ACTION. DC AND COFA DENY. APPEALS TO USSC. AFTER ARGUMENT, CONGRESS PASSES STATUTE REMOVING USSC APPELLATE POWER. CHASE 1. APPELLATE POWER SUBJ TO EXCEPT AND REGULAT

JUST READING THE DOCUMENT, WHAT IS THE EFFECT OF CONGRESSIONAL SILENCE ON APPELLATE POWER 2. EVEN THOUGH CONSTITUTION GRANTS USSC APPELLATE POWER AND EXCEPTIONS IN THE NEGATIVE, POWER TO NEGATE INCLUDES POWER TO GIVE. THEREFORE APPELLATE EXCEPTIONS POWER (III, 2) = CREATION OF LOWER COURTS POWER (III,1). CONGRESS MAY GRANT POWER BY DRAFTING STATUTE IN THE POSITIVE, AND CONGRESS ALSO HAS ABILITY TO WRITE A STATUTE IN THE NEGATIVE AND TAKE POWER AWAY. FOR LOWER FEDERAL COURTS AND USSC. FEDERAL COURT NEED ART III AND STATUTE

GRANTING JURISDICTION. 3.POWER, NOT MOTIVE, OF CONGRESS MATTERS. 4. LIMITS ON CONGRESSIONAL POWER A. NO EXERCISE OF JUDICIAL POWER BY LEGISLATURE (WHILE PROSECUTION PENDING, TENN LEGISLATURE REPEALS STATUTE AND ORDERS DEFENDANT FREED; PENN LEGISLATURE ORDERS A SECOND TRIAL FOR UNSUCCESSFUL DEFENDANT) B. NO INTERFERENCE IN THE EXERCISE OF CONTINUING JURISDICTION

MODERN VIEW OF MCCARDLE GOOD LAW, BAD APPLICATION. US v KLEIN (1871) KLEIN SUES IN COURT OF CLAIMS UNDER 1863 STATUTE WHICH ALLOWED SOUTHERNERS TO RECLAIM LAND CAPTURED IN CIVIL WAR IF CLAIMANT COULD PROVE HAD NOT AIDED REBELLION. EARLIER CASE SAID PRESIDENTIAL PARDON WAS PROOF OF NOT AIDING. C OF C FOR KLEIN. WHILE GOVERNMENT APPEAL TO USSC PENDING, CONGRESS PASSES A STATUE SAYING PARDON PROVES THE

OPPOSITE. USSC SAYS OK IF CONGRESS DENIES APPEAL IN CERTAIN TYPES OF CASES. BUT CANNOT PRESCRIBE A RULE TO DECISION TO A COURT IN A PENDING CASE. PLANT v SPENDTHRIFT FARM (1995) CONGRESS AMENDS SECURITIES ACT TO INCREASE STATUTE OF LIMITATIONS AND REINSTATES PLAINTIFFS CAUSE OF ACTION WHICH HAD BEEN DISMISSED UNDER OLD STATUTE OF LIMITATIONS TIME PERIOD SCALIA CAN AMEND LAW, BUT CANT RESURRECT

DISMISSED CASE. FINALITY MARBURY USSC CANT FUNCTION AS EXECUTIVE MCCARDLE CONGRESS CANT ACT AS A COURT SEPARATION OF POWERS. LIMITS ON CURTAILING USSC JURISDICTION 1. CONGRESS CANT COMPLETELY ABOLISH USSC. MUST KEEP ORIGINAL JURISDICTION. SOME SCHOLARSHIP SAYING MUST KEEP CORE OR ESSENTIAL APPELLATE FUNCTIONS. CONGRESS CANT IGNORE OTHER CONSTITUTIONAL LIMITS (EG 5 AMEND. RACE). 2. IF LIMIT USSC JURISDICTION: A. FREEZE LOWER COURTS INCONSISTENT

B. FREEZE USSC PRECEDENT C. STATE COURTS CAN STILL HEAR FOR LOWER FEDERAL COURTS, NO REAL LIMITS IN STRUCTURE CAN ABOLISH ALL. STILL LIMITED BY OTHER CONSTITUTIONAL CLAUSES. HANDOUT CL 2 USSC PROCEDURES 1. APPEAL = MUST TAKE. CERTIORARI = USSC DISCRETION TO TAKE OR NOT. PRIOR TO 1988, MORE APPEAL. NOW ALMOST ALL CERT. IS DENIAL OF CERT PRECEDENT ? APPEAL = SMITH v JONES, REVERSED.

2. NEED 4 VOTES TO TAKE CASE. FIRST BRIEF. USSC RULE 10 REASONS TO GRANT WRIT: 1. COURT OF APPEALS CONFLICT WITH ANOTHER C OF A; CONFLICT WITH STATE; DEPARTED FROM USUAL PROCEEDINGS 2. STATE COURT DECIDES IN CONFLICT WITH ANOTHER STATE COURT OR C OF A 3. STATE COURT OR C OF A DECIDES AN IMPORTANT QUESTION OF FEDERAL LAW THAT SHOULD BE SETTLED BY USSC. 1% OF ALL PETITIONS; 5 % OF PAID (7700 / 80)

SEPARATION OF POWERS FREQUENTLY USSC RESOLVING A DISPUTE BETWEEN CONGRESS AND PRESIDENT. USSC DEFINING POWERS AND LIMITS OF EACH. MANY DISPUTES RESOLVED POLITICALLY NOT IN THE COURTS. ISSUES: 1. NOT ALWAYS TRYING TO BE EFFICIENT 2. POWERS GENERALLY DESCRIBED MANY QUESTIONS. DYNAMIC TENSION IDEAL IS BRANCHES WORK TOGETHER TO RESOLVE GAPS. 3. CONGRESSIONAL POWERS MORE DEFINED

EXECUTIVE MORE VAGUE. PRESIDENT = 1 (MORE DECISIVE), CONGRESS = 535 (MORE DELIBERATIVE) YOUNGSTOWN SHEET AND TUBE v SAWYER (1952 298) KOREAN WAR UNION AND COMPANIES FIGHTING OVER NEW CBA. NATION WIDE STRIKE TO BEGIN APRIL 9. PRESIDENT ISSUES EXECUTIVE ORDER SECRETARY OF COMMERCE DIRECTED TO TAKE POSSESSION OF STEEL MILLS AND KEEP RUNNING. HE DID COMPANIES TO ACT UNDER GOVERNMENT. THEY DID AND FILED SUIT ASKING FOR INJUNCTION. WHY NOT YOUNGSTOWN v TRUMAN ? ARGUMENTS FOR STEEL MILLS ?

ARGUMENTS FOR SAWYER ? STEEL MILLS: 1. SEIZURE = LAWMAKING. LEGISLATIVE FUNCTION. CONGRESS NEVER AUTHORIZED SEIZURE REJECTED. 2. NO ARTICLE II POWER SUPPORTS SAWYER: 1. KOREAN WAR = COMMANDER IN CHIEF 2. NATIONAL EMERGENCY = CUSTOM AND USEAGE = EXECUTIVE POWER 3. WAGE PRICE STABILIZATION ACT = FAITHFULLY EXECUTE LAWS

BLACK 1. NO SUPPORT FOR PRESIDENT FROM CONGRESS REJECTED IN TAFT HARTLEY DEBATES. NOT EXPLICIT IN CONSTITUTION 2. NO AS C IN C THEATER OF WAR NOT BROAD ENOUGH TO ENCOMPASS PRIVATE/DOMESTIC. SERIOUSLY ? 3. EXECUTED MEANS NOT A LAWGIVER. CONGRESS MAKES LAW. EXEC ORDER READS LIKE STATUTE.

FRANKFURTER (C) CONGRESS EFFECTIVELY DENIED. 301 - FAMOUS QUOTE. MEANING ? JACKSON (C) 1. 301-02 - FAMOUS QUOTE. 302 - 3 CATEGORIES. WHICH ONE ? 2. DANGEROUS TO SAY CAN ENLARGE DOMESTIC POWER BY FOREIGN MILATERY ACTION. 3. WONT GIVE PRESIDENT POWER TO DEAL WITH EMERGENCIES. NO LIMITS TO SUCH A POWER. 4. CONGRESS NEEDS TO ACT OR USSC CANT CONSISTENTLY

SAVE IT. EXECUTIVE MUST BE UNDER THE LAW. 5. 303-04 - QUOTE. MEANING ? 304 FAMOUS Q VINSON + 2 (D) C IN C + FAITHFUL EXECUTION = EMERGENCY POWER. MANY PAST EXAMPLES. PROTECT COUNTRY. PRESIDENT TOLD CONGRESS HERE. NOT SEIZING POWER. MANY APPLICABLE STATUTES TO ENFORCE. WHO IS THE REAL DEFENDANT ? MANY OTHER COUNTRIES HAVE EXPRESS EMERGENCY POWERS FOR EXECUTIVE FRANCE, INDIA AND SOUTH AFRICA (322-324).

EX PARTE MILLIGAN (1866 - 268) REJECTS LINCOLNS SUSPENSION OF HABEUS CORPUS DURING CIVIL WAR. LINCOLN CLAIMED UNILATERAL EXECUTIVE POWER TO SUSPEND EVEN THOUGH IN ART. I INS v CHADHA (1983 - 369) CHADHA IN US ON STUDENT VISA. OVERSTAYS INS JUDGE ALLOWS HIM TO STAY 7 YEARS, GOOD MORALS, HARDSHIP TO RETURN AFTER HEARING. P PART OF 9 REJECTED BY HOUSE ON LAST DAY. NO HEARING OR DEBATE OR RECORDED VOTE. LEGISLATIVE VETO STATUTE - 244(C) WHEN SUSPEND

DEPORTATION, INS MUST NOTIFY CONGRESS. CONGRESS CAN VETO BY EITHER CHAMBER PASSING A RESOLUTION. WHAT IS THE PROBLEM ? BURGER 1. NOT POLITICAL QUESTION. JUST BECAUSE A POLITICAL ISSUE NOT NECESSARILY PQ. 2. 370 WISDOM AND EFFICIENCY NOT IMPORTANT CONSTITUTIONALITY IS. QUOTE PRESENTMENT AND BICAMERALISM. EMBODIMENT OF SEPARATION OF POWERS. 3. 370-71 QUOTE. LEGISLATIVE IN CHARACTER

AND EFFECT. HERE ALTERED LEGAL RIGHTS OF CHADHA AND ATTORNEY GENERAL. GRANTED DISCRETION TO AG CAN ONLY DISAGREE AS GRANTED - THROUGH LEGISLATION. 4. 371-72 CONSTITUTION CLEAR ON LIMITED TIMES ONE CHAMBER MAY ACT ALONE. POWELL (C) CONGRESS HAS INVALIDLY ASSUMED A JUDICIAL FUNCTION. WHITE (D) 1. POOR CHOICE DONT GRANT DISCRETION OR

ABDICATE SUPERVISION. INNOVATION KEEPS AGENCIES ACCOUNTABLE, PRESERVES CONGRESSIONAL CONTROL. 3. 374 - QUOTE P AND B SATISFIED IN ORIGINAL LEGISLATION. REALITY CHANGE FROM STATUS QUO ONLY IF AG, HOUSE AND SENATE AGREE. AGENCIES MAKING LAW. ARGUMENTS FOR EACH SIDE IN BOWSHER (INVALID = 3, VALID = 4)? WHICH SIDE CITES CHADHA ? DIV OF OFF MGT CONG BUDGET OFF

CONTROLLER GENERAL CG MAKES BUDGET CUTS PRO RATA IF SPENDING (FIRST) EXCEEDS INCOME (LAST) GRAMM-RUDMAN. WHY ? CG = NOMINTATED BY PRESIDENT FROM LIST OF 3 (FROM HOUSE AND SENATE LEADERS). CONFIRMED BY SENATE. REMOVED BY JOINT RESOLUTION FOR LISTED REASONS. MEYERS v US (1926 388) STATUTE = POSTMASTERS ONLY REMOVED BY PRESIDENT WITH CONSENT OF SENATE. INVALID. HUMPHREYS EX v US (1935 - 388) INDEPENDENT - CAN LIMIT PRESIDENTS REMOVAL POWER TO LISTED REASONS

BUCKLEY v VALEO (1976 - 383) FEC APPOINTED BY PRESIDENT OF SENATE AND SPEAKER OF HOUSE. LEGISLATIVELY APPOINTED = ONLY LEGISLATIVE COMMITTEE FUNCTIONS INVESTIGATORY AND INFORMATIVE. HOW DO YOU CHARACTERIZE: A) CUTTING THE BUDGET AND B) THE CG ? CONTROL LEGISLATIVE EXECUTIVE

FUNCTION LEGISLATIVE LEGISLATIVE EXECUTIVE EXECUTIVE PLAINTIFFS BRIEF (INVALID): 1. LEGISL/LEGISL NO P AND B. STEVENS AND

MARSHALL 2. LEGISL/EXECUTIVE CONGRESS CAN ONLY REMOVE EX OFF BY IMPEACHMENT MEYERS AND CHADHA. CG REMOVED BY CONGRESS. CG = EXEC POWERS. THUS UNCONSTITUTIONAL BURGER MAJORITY 3. NO VALID ARGUMENT UNDER EXECUTIVE CONTROL HISTORY. DEFENDANTS BRIEF (VALID): 1. MAJOR PROBLEM INNOVATIVE/EFFICIENT. 2. EXEC/EXEC CAN HAVE NON-AT WILL

HUMPHREYS. JR LIKE INDEPENDENT P AND B SATISFIED - CHADHA. WHITE 3. IF NOT 2, THEN CG NOT EXECUTIVE BUT MINISTERIAL. 4. IF NOT 2 OR 3, THEN STRIKE REMOVAL STATUTE NEVER USED MAKES CG AT WILL. BLACKMUN. REAGAN SIGNS BUT SAYS UNCONSTITUTIONAL. ARGUING AGAINST STATUTE IN USSC. BURGER 1. STANDING TO UNION MEMBERS 2. SEPARATION OF POWERS = CONFUSION

3. CONGRESS GIVEN NO DIRECT ROLE IN SUPERVISION OF EXECUTIVE OFFICES ONLY IMPEACHMENT. MYERS. INDEPENDENT AGENCIES OK BUT PRESIDENT REMOVAL. CONGRESSIONAL REMOVAL = LEGISL VETO. CHADHA. 385 QUOTE 4. SINCE 1921, SEEN AS PART OF LEGISLATIVE BRANCH. INEFFICIENCY AND NEGLECT. 385 Q 5. 386 CG NOT MINISTERIAL. INTERPRET LAW AND ORDERS THE PRESIDENT. 6. 386 QUOTE - CONGRESS CAN ONLY ACT BY LEGISLATION. ONCE ESTABLISHED, LEGISLATION.

STEVENS + MARSHALL (C) 386 FOOTNOTE - CG IS AGENT OF CONGRESS. CANT DELEGATE TO ITSELF ABILITY TO MAKE POLICY THAT WILL BIND THE NATION. CHADHA CUTS = P AND B BLACKMUN (D) 387 FOOTNOTE GIVEN MAGNITUDE OF INTERESTS, WAIT AND INVALIDATE 1921 STATUTE IF CONGRESS EVER ACTUALLY TRIES TO REMOVE CG. WHITE (D) 1. 386 Q DEFICIT = BIG PROBLEM 2. STILL OK CAN HAVE EXEC OFF NOT REMOVABLE

AT WILL OF PRESIDENT INDEP. 3. CLEARLY EXEC POWERS IN CG. BUT JR SATIFIES P AND B. NOT LEGISL VETO AND REASONS OK. PRESIDENT HAS MAJOR ROLE. CAN YOU RECONCILE BOWSHER v SYNAR (1986 STANDING) WITH RAINES v BYRD (1997 - NO STANDING) ? 3 JUDGE DC DC HELD STANDING IN BOWSHER 1) MEMBERS OF CONGRESS VOTE DILUTIION 2) NATIONAL TREASURY EMPLOYEES UNION 3) INDIVIDUALS LOST COLA USSC SINCE INDIVIDUALS HAVE STANDING, NO

REACH MEMBERS OF CONGRESS. RAINES LOWER COURTS RELIED ON DC OPINION IN BOWSHER GAVE STANDING ON DILUTED VOTE THEORY. SCALIA ? MORRISON v OLSEN (1988 - 391) NORMAL ? AG COMPLETES INVESTIGATION OR 90 DAYS REPORTS TO SPECIAL DIVISION ON WHETHER TO APPOINT INDEP PROSECUTOR. IF NO REASONABLE GROUNDS, NO APPOINT. IF REASONABLE GROUNDS, SPEC DIV APPOINTS WHO AND DEFINES JURISDICTION.

REMOVAL BY IMPEACHMENT OR AG FOR GOOD CAUSE OR INCAPACITY. JUDICIAL REVIEW AVAIL. TERMINATES WHEN INDEP PROSECUTOR NOTIFIES AG OR SPECIAL DIV CAN HOLD FINISHED. WHAT ARE THE THREE BIG ISSUES HERE ? REHNQUIST APPOINTMENTS CLAUSE (II,2) 1. IF PRINCIPAL OFFICER, PRESIDENT AND SENATE. IF INFERIOR OFFICER, CONGRESS CAN DELEGATE. 2. HERE NO EASY LINE. INFERIOR A. REMOVED BY AG

B. LIMITED DUTIES NO POLICY C. LIMITED JURISDICTION D. LIMITED IN TENURE TEMPORAY. ARGUE EVEN IF INFERIOR, NO INTERBRANCH 3. CONSTITUTION GIVES DISCRETION TO CONGRESS NO IF INHERENT INCONGRUITY. ARGUE THAT APPOINTMENTS POWER DOESNT INCLUDE JURISDICTION. 4. CONGRESS HAS DISCRETION TO DEFINE JURISD. AS INCIDENT TO APPOINTMENT. RELATE TO AGS FACTUAL BASIS FOR APPOINTMENT.

5. MISC POWERS NO TRESPASS ON EXECUTIVE MINISTERIAL. 6. TERMINATION WORRISOME BUT NOT SIGNIFICANT JUDICIAL ENCROACHMENT. REMOVAL 7. LIKE HUMPHREYS EXECUTOR, REMOVAL IN EXECUTIVE BUT REASONS LIMITED. 392-93 Q PURELY EXECUTIVE DO RESTRICTIONS IMPEDE PRESIDENTS ABILITY TO PERFORM CONSTITUTIONAL DUTY ? INFERIOR OFFICER. GOOD CAUSE = MISCONDUCT GIVES PRESIDENT DISCRETION.

8. ENTIRE ACT CONSISTENT WITH SEPARATION OF POWERS. CONGRESS NOT TRYING TO INCREASE ITS POWERS. PROPER BALANCE = AG STARTS AND REMOVES COURT LIMITS CHOICE AND DEFINES JURISDICTION AND REMOVES. SCALIA (D) 1. 394 IF WITHIN EXECUTIVE POWER, PRESIDENT MUST HAVE EXCLUSIVE CONTROL. SIGNIFICANT CONTROL NOT ENOUGH. 2. NOT INFERIOR OFFICER. 3. LIMITED REMOVAL INVALID. INTERFERES WITH

EXECUTING THE LAWS. 4. EXEC CAN INVESTIGATE ITSELF. POLITICALLY RESPONSIBLE. UNFAIR TO TARGETS INVESTIGATION TAKES ON LIFE OF ITS OWN. MISTRETTA v US (1989 396) OLD DISCRETION TO JUDGE ON SENTENCING. CONGRESS DEFINES MAXIMUM, JUDGE GIVES SENTENCE AND EXECUTIVE DOES PAROLE. ACT US SENTENCING COMMISSION. 7 MEMBERS PRESIDENT AND SENATE FOR APPOINTMENT. DEFENDANT ARGUMENTS:

FUNCTION/ CONTROL ? LEGISLATIVE FUNCTION NO P AND B. EXCESSIVE DELEGATION JUDICIAL CONTROL - ACT VIOLATES SEPARATION OF POWERS. EXCESSIVE DELEGATION 1. SIGNIFICANT DISCRETION IS ALLOWABLE IF INTELLIGIBLE PRINCIPLE 397. HERE SATISFIED SUFFICIENTLY SPECIFIC AND DETAILED. 11 FACTORS. JUDICIARY DOING WORK OF OTHER BRANCH 2. NOT COURT AND NOT JUDICIAL POWER =

TWILIGHT ZONE. TRADITIONAL JUDICIAL JUDGES ALWAYS HAD ROLE IN SENTENCING. RULEMAKING. NO THREAT TO OTHER BRANCHES JUDICIARY NOT TRYING TO EXPAND ITS POWER. COMPROMISE JUDICIAL INTEGRITY 3. NO CONSTITUTIONAL LIMIT ON JUDGES HOLDING OTHER POSITIONS. ALWAYS HAVE JOHN JAY. 4. NOT MANDATORY. PARTICIPATION IN GUIDELINES DOES NOT IMPEDE ABILITY TO SENTENCE. JUDGES STILL NEUTRAL. SCALIA (D)

1. SHOULDNT BE ON EXCESSIVE DELEGATION TEST. THIS ISNT ANCILLARY TO ANYTHING. 2. THIS CREATES A JUNIOR VARSITY CONGRESS. CLINTON v NY (1998 377) CLINTON USED LINE ITEM VETO TO CANCEL A FORGIVENESS OF MEDICAID PAYMENT TO NY AND TO CANCEL A TAX BENEFIT TO FARMERS COOPERATIVES. 3 THINGS SUBJECT TO CANCELLATION AND 3 REQUIRED FINDINGS CAN BE OVERRIDEN BY ART I SEC 7 PROCESS. GOVERNMENT ARGUMENT LIKE A) VETO

B) DISCRETIONARY SPENDING C) IMPOUNDMENT ELIMINATE 1974 STEVENS 1. PRACTICAL EFFECT PRESIDENT AMENDING THE STATUTE. REPEAL OR AMENDING = LEGISLATING AND REQUIRES P AND B. 2. VETO IS BEFORE LEGISLATION THIS IS AFTER 3. NOT LIKE DISCRETIONARY SPENDING HERE REJECTING CONGRESSIONAL POLICY, NOT IMPLEMENTING. DISCRETIONARY P NEVER HAD LINE ITEM TAKES AWAY.

4. NOT LIKE IMPOUNDMENT CONGRESS ELIMINATE KENNEDY (C) FAILURE OF POLITICAL WILL DOES NOT JUSTIFY UNCONSTITUTIONAL REMEDIES SCALIA + 2 (C AND D) ORIGINAL HAD P AND B. CONGRESS AUTHORIZED THE CANCELLATION. SAME AS DISCRETIONARY SPENDING HISTORICAL. BREYER (C AND D) CLEARLY PRESIDENT EXECUTING THE LAWS. FINDINGS LAID DOWN BY CONGRESS. OVERSIGHT

RETAINED. P AND B SATISFIED. FREE ENT FUND v PCAO BOARD (2010 - 389) 5 MEMBER BOARD APPOINTED BY SEC. CAN BE REMOVED BY SEC ONLY FOR GOOD CAUSE. SEC CAN BE REMOVED BY PRESIDENT ONLY FOR INEFFICIENCY, NEGLECT OF DUTY OR MALFEASANCE IN OFFICE. ROBERTS 1. HUMPHREYS EX AND MORRISON LIMITED BUT EITHER PRESIDENT REMOVED OR PERSON REMOVABLE AT WILL OF PRESIDENT REMOVED. HERE DECISION ON GOOD CAUSE MADE BY INDIVIDUALS

PROTECTED FROM PRESIDENT SEC NOT AT WILL 2. MAKES BOARD TOO INDEPENDENT GOOD CAUSE A HARD STANDARD TO MEET. 3. SEVER. BOARD MEMBERS REMOVABLE AT WILL OF SEC. BREYER + 3 (D) 1. MYERS ONLY INVALIDATION PRIOR TO THIS. 2. CONGRESS HAS NO ROLE IN REMOVAL HERE. 3. SEC HAS MUCH OVERSIGHT OVER BOARD. PRESIDENTS CONTROL OVER SEC NOT AN ISSUE.

ZIVOTOFSKY v KERRY (2015 S19) STATUTES SAYS JERUSALEM, ISRAEL. PRESIDENT = JERUSALEM. (EARLIER NOT POLITICAL QUEST.) KENNEDY 1. JUSTICE JACKSONS THIRD CATEGORY PRESIDENT IN CONFLICT WITH CONGRESS. LOWEST POINT. 2. OFFICIAL RECOGNITION IMPORTANT. CONSTITUTION DOESNT EXPLICITLY TALK ABOUT RECOGNITION. TOTALITY OF ART II POWERS = PRESIDENT RECOGNIZES. 3. EXCLUSIVE. NATION MUST SPEAK WITH ONE VOICE. 4. CONGRESS MAY STILL EXERT ITS FOREIGN RELATIONS

POWER TO UNDERCUT PRESIDENT. THOMAS (C) ART II EXECUTIVE POWER NOT LIMITED BY HEREIN GRANTED AS USED IN ART I. INCLUDES RECOGN. ROBERTS (D) 1. NEVER APPROVED PRES DEFYING CONGRESS 2. NOT RECOGNITION EACH HAS FOREIGN POWERS SCALIA (D) 1. CONGRESS NATURALIZATION POWER = PASSPORTS 2. PASSPORTS NOT RECOGNITION NLRB v NOEL CANNING (2014 S25)

ART 2, SEC 2 PRESIDENT SHALL HAVE POWER TO FILL UP ALL VACANCIES THAT MAY HAPPEN DURING THE RECESS OF THE SENATE. RECESS FROM DEC 17 JAN 20. NLRB APPT. WHAT DOES THAT MEAN ? WHAT INTERPRETATION DOES EVERYONE ACCEPT ? WHEN DOES VACANCY OCCUR ? WHAT IS A RECESS INTER/INTRA ? BRYER (+ 4)

1. TENSION BETWEEN PRESIDENTS NEED FOR SUBORDINATES AND SENATE PRACTICE IN EARLY YEARS OF MEETING IN ONE SINGLE SESSION. 2. LONGSTANDING PRACTICE CAN INFLUENCE USSC INTERPRETATION OF MEANING. 3. S26 EVER CHANGING CIRCUMSTANCES OVER CENTURIES 4. NO HERE RECESS MUST BE AT LEAST 10 DAYS TO QUALIFY (UNLESS NATIONAL CATASTROPHE) HERE SENATE STILL DOING BUSINESS NOT IN RECESS FOR 10.

5. VACANCIES BEFORE AND DURING RECESS. SCALIA (PLUS 3) (C ONLY JUDGMENT) ORIGINAL VACANCIES DURING INTER RECESS ONLY. HANDOUT CL 3 AND 4 PRIVILEGES AND IMMUNITIES A FEW ISSUES: 1. NO EXPRESS PRIVILEGES OR IMMUNITIES IN CONSTITUTION FOR EXECUTIVE 2. CONSTITUTION CLEAR AFTER IMPEACHMENT

CONVICTION, CAN BE A CRIMINAL TRIAL - ART 1, SEC 3. DO YOU NEED IMPEACHMENT FIRST ? 3. HOW DO YOU ENFORCE A SUBPOENA TO THE PRESIDENT ? US v NIXON (1974 - 406) 7 ASSOCIATES OF NIXON INDICTED PRESIDENT AS UNIDICTED CO-CONSPIRATOR. SPECIAL PROSECUTOR MOVED AND RECEIVED A SUBPOENA ON TAPES (CRIMINAL CASE IS US v MITCHELL). (MIDNIGHT MASSACRE = PRESIDENT ASKED AG TO FIRE SPEC PROS BEFORE ASKED

FOR SUBPOENA ELLIOTT RICHARDSON, JOHN RUCKELSHAUS AND ROBERT BORK.) ARGUMENTS FOR NIXON ? 1. POLITICAL QUESTION DISAGREEMENT INSIDE EXECUTIVE BRANCH 2. PRESIDENT NOT AMENABLE TO PROCESS REARGUE MARBURY. 3. TAPES PRIVILEGED a. FOR EXECUTIVE TO DECIDE b. IF NOT a, THEN USSC SHOULD DECIDE THEY ARE PRIVILEGED.

BURGER 1. NOT PQ BAKER 57 NOT SATISFIED. 2. PRESIDENT IS SUBJECT TO PROCESS. WONT REARGUE MARBURY. NO ONE IS ABOVE THE LAW. 3. EACH BRANCH IS ENTITLED TO DEFERENCE IN ITS INTERPRETATION OF THE CONSTITUTION BUT IT IS THE ROLE OF THE JUDICIARY TO SAY WHAT THE LAW IS. 4. NEITHER CONFIDENTIALITY OR SEPARATION OF POWERS CAN VALIDATE AN ABSOLUTE PRIVILIGE.

5. IF NO CLAIM OF NATIONAL SECURITY, ALLOW IN CAMERA INSPECTION. CONSTITUTIONALLY MANDATED JUDICIAL FUNCTION IN CRIMINAL JUSTICE. 407 6. DC MUST ACCORD PRESIDENT RESPECT AND DEFERENCE. ADMISSABLE AND RELEVANT. MUST BALANCE INTEREST IN KEEPING EXECUTIVE RUNNING v RULE OF LAW IN CRIMINAL JUSTICE RELEVANT EVIDENCE. NO CLAIM OF MILITARY OR DIPLOMATIC SECRETS. CRIMINAL PROSECUTIONS INFREQUENT WONT HURT CANDOR OF CABINET. WHAT IS THE RESULT OF THE CASE ? IN CAMERA DIFFERENT IF CONGRESS v CRIMINAL TRIAL ?

410 NO IMMUNITY FOR SECRET SERVICE CIVIL IMMUNITY NIXON v FITZGERALD (1982 410) FITZGERALD IS WHISTLE BLOWER IN AIR FORCE. NIXON APPROVES FIRING HE CLAIMS IN REALIATION FOR TRUTHFUL TESTIMONY. POWELL 1. PRESIDENT GETS ABSOLUTE IMMUNITY FROM CIVIL DAMAGES PREDICATED ON OFFICIAL ACTS. PRESIDENT MUST BE FREE TO MAKE DECISIONS AROUSE EMOTIONS AND EASY TARGET.

2. NOT ABOVE THE LAW IMPEACHMENT AND POLITICAL PRESSURE. WHITE + 3 (D) NO ABSOLUTE BUT DEPENDS ON FUNCTION. 411QUOTE. OTHER OFFICIALS GET THIS FUNCTIONAL IMMUNITY. ONLY PRESIDENT GETS ABSOLUTE. ABSOLUTE LIMITED TO OFFICIAL ACTS ALL EFFECTIVELY IN PRESIDENT ON DUTY 24/7. CLINTON v JONES (1997 411) CLINTON AS GOVERNOR. STATE TROOPER ASKED HER IF SHE WANTED ORAL SEX. SHE REJECTED AND

CLAIMS SUPERVISOR PUNISHED. DOES NIXON v FITZGERALD CONTROL ? ARGUMENT FOR PRESIDENT ? TEMPORARY IMMUNITY DELAY TRIAL PRESIDENT MUST RUN THE EXECUTIVE AND CANT BE DISTRACTED. DC ORDERED DISCOVERY BUT DELAYED TRIAL C OF A REVERSED DELAY OF TRIAL. STEVENS 1. FITZGERALD RELATED TO OFFICIAL CONDUCT. HISTORY INCONCLUSIVE EVIDENCE FOR EITHER SIDE.

2. NO SEPARATION OF POWERS PROBLEM JUDICIARY NOT ACTING LIKE EXECUTIVE OR RUNNING IT. ONLY 3 LAWSUITS IN 200 YEARS NOT LIKELY TO OCCUPY SIGNIFICANT TIME. 3. 415 QUOTE PRESIDENT SUBJECT TO PROCESS MARBURY. JUST BURDEN ON TIME AND THAT IS NOT ENOUGH. SANCTION IF FRIVOLOUS. DC ACCOMODA BREYER (C) PRESIDENT BUSY. 1 PERSON TO IMPEDE PRESIDENT = WHOLE EXECUTIVE. CONSTITUTIONAL DUTY NOT TO INTERFERE WITH PRESIDENT AND

EXECUTIVE DUTIES. ADJUST TRIAL DATES ACCORDINGLY. 1. 418 - 419 PRESIDENT CAN BE CRIMINALLY INDICTED AFTER LEAVING OFFICE. SPLIT ON INDICT WHILE SITTING. LESSER OFFICERS HAVE . 2. PRESIDENT CAN PARDON CRIMINAL, CANT PARDON CIVIL. NIXON v ADMIN OF GENERAL SERVICES (1977) CONGRESS DIRECTS ADMIN TO SEIZE NIXON PAPERS RETURN PERSONAL TO HIM. REASONS RESTORE FAITH IN POLITICAL PROCESS, PRESERVE MATERIALS

FOR FUTURE WATERGATE UNDERSTANDING, AND UNDERSTAND HOW POLITICAL PROCESS WORKED (REMEDIAL LEGIS) BRENNAN UNIQUE SITUATION DIDNT REALLY ENCROACH ON RUNNING EXECUTIVE. NOT DISRUPTIVE. BURGER (D) COERCION OF PRESIDENT LEGISL = EX IMPEACHMENT MOST IMPEACHMENTS OF FEDERAL JUDGES. 2 PRESIDENTS IMPEACHED NEITHER CONVICTED BY SENATE (JOHNSON AND CLINTON). (NIXON

RESIGNED AFTER HOUSE COMMITTEE.) 421 - 424 CENSURE PRESIDENT 1. SOME PRIVILIGE ON DISCLOSING INFORMATION BUT LESS TO NON-PRESIDENT. NIXON v US. 2. CRIMINAL - CONVICT OF IMPEACH, TRIAL. 3. CIVIL FITZGERALD AND JONES. 4. IMPEACHMENT PROCESS - HOUSE IMPEACH, SENATE TRY ( 2/3 VOTE TO CONVICT). LEGISLATIVE IMMUNITY ART I, SEC 6 1. PRIVILIGED FROM ARREST (EXCEPT TREASON,

FELONY AND BREACH OF PEACE) IN ATTENDANCE AND TO AND FROM. 2. NOT QUESTIONED FOR ANY SPEECH OR DEBATE. US v BREWSTER BRIBERY HE ARGUED COULDNT QUESTION MOTIVE FOR VOTE. JUST SHOW ACCEPTANCE OF BRIBE. HUTCHINSON v PROXMIRE PROTECTED IN COMMITTEE HEARINGS AND CONGRESSIONAL RECORD LIABLE IF DISTRIBUTE BEYOND THAT. AIDES AND EMPLOYEES DERIVE SOME BUT NOT ALL CAN YOU IMPEACH A MEMBER OF CONGRESS ?

FOREIGN AFFAIRS TREATIES AND EXECUTIVE AGREEMENTS MISSOURI v HOLLAND (1920 401) MISSOURI SUES TO STOP FEDERAL GAME WARDEN FROM ENFORCING A TREATY CLAIMING THE SUBJECT MATTER IS LEFT TO STATES. TREATY WITH CANADA TO PROTECT MIGRATORY BIRDS EXTINCTION, INSECTS. LIST BIRDS CANT CAPTURE, SELL OR KILL. HOLMES 1. EARLIER ATTEMPTS BY CONGRESS TO REGULATE WITHOUT TREATY INVALIDATED.

2. TREATIES VALID WHEN MADE PURSUANT TO CONSTITUTIONAL PROCESS. CAN EXPAND FEDERAL POWER. 3. CONSTITUTION MADE TO DEAL WITH PROBLEMS FOUNDING FATHERS COULDNT ANTICIPATE. HOPED TO CREATE AN ORGANISM. 4. NATIONAL PROBLEM ONLY TRANSITORY IN STATE. NOT FORBIDDEN IN EXPRESS TERMS. TREATIES MAY BE SELF EXECUTING DONT REQUIRE LEGISLATION OR NEED STATUTE TO IMPLEMENT. NON SELF EXECUTING REQUIRE CONGRESS .

BOND V US (2014 - S21) CHEMICAL WEAPONS ACT PURSUANT TO TREATY WIFE GIVING RASH TO MISTRESS 1. STATUTE NOT INTENDED TO REACH THIS ACTS OF WAR OR TERRORISM. 2. CRIMINAL LAW USUALLY STATE LAW RELCUTANT TO INCREASE FEDERAL CRIMINAL POWER. SCALIA (PLUS 2) CANT LET FEDERAL GOVERNMENT EXPAND POWER BY TREATY ESP IF TREATY CAN BE ON ANY SUBJECT (NOT DECIDED BY USSC) REID v COVERT (1957 - 403)

TREATIES AND EXECUTIVE AGREEMENTS CANNOT IGNORE CONSTITUTIONAL RIGHTS OR LIMITATIONS. HOLLAND NOT INCONSISTENT WITH SPECIFIC. HERE CANT APPLY MARTIAL LAW TO CIVILIAN ACCOMPANYING MILITARY IN CAPITAL CASE IN PEACE TIME. ZSCHERNING v MILLER (1968 - 219) OREGON PROHIBITED ALIENS FROM INHERITING UNLESS RECIPROCITY BY ALIENS COUNTRY. INVALID INTRUDES INTO FOREIGN AFFAIRS. US v CURTISS-WRIGHT (1936 - 368)

JOINT RESOLUTION AUTHORIZING PRESIDENT TO IMPOSE ARMS EMBARGO ON BOLIVIA/PARAGUAY CONFLICT. COMPANY ARGUED INVALID DELEGATION BY CONGRESS. 1. EXCESSIVE DELEGATION DOCTRINE LESS TEETH IN FOREIGN AFFAIRS. 2. CONGRESS + PRESIDENT = FULL FEDERAL POWER. PRESIDENT INDEPENDENT POWER. 3. LIMITED NATURE OF FEDERAL GOVERNMENT DOESNT APPLY IN FOREIGN AFFAIRS STATE NEVER HAD INTERNATIONAL POWERS.

EXECUTIVE AGREEMENTS DONT INVOLVE THE SENATE LIKE A CONTRACT NEGOTIATED BY PRESIDENT WITH FOREIGN COUNTRY. US v BELMONT (1937 - 309) US RECOGNITION OF USSR. PART OF RECOGNITION WAS EXECUTIVE AGREEMENT ASSIGNING TO US SOVIET CLAIMS AGAINST AMERICANS WHO HELD FUNDS OF RUSSIAN COMPANIES SEIZED AFTER REVOLUTION. 1. RECOGNITION, ESTABLISHMENT OF RELATIONS AND ASSIGNMENT WERE ALL PART OF ONE

INTERNATIONAL TRANSACTION WITHIN COMPETENCY OF PRESIDENT. DAMES & MOORE v REGAN (1981 - 310) IRAN SEIZES HOSTAGES 11/4/79. ON 11/14, PRESIDENT BLOCKED TRANSFER OF ALL PROPERTY SUBJECT TO US JURISDICTION. D & M SUED IRAN 12/19/79 AND ATTACHES ASSETS. 1/20/81 HOSTAGES FREED EX AGREEMENT 1. NULLIFY ATTACHMENTS 2. TRANSFER FROZEN AND 3. SUSPEND CLAIMS IN US COURTS (INTERNATIONAL TRIBUNAL).

REHNQUIST 1. REFER TO JACKSONS 3 CATEGORIES IN YOUNGSTOWN. 1 AND 2 AUTHORIZED BY CONGRESS FULL FEDERAL POWER = VALID. 2. SUSPENSION NOT AUTHORIZED BY CONGRESS BUT GENERAL CONGRESSIONAL APPROVAL. 3. CLAIMS FREQUENTLY SETTLED BY EX AGREEMENTS. CONGRESS HAS IMPLICITLY ACCEPTED OR AT LEAST NEVER OBJECTED. LIKE FRANKFURTER IN YOUNGSTOWN HISTORY OF SUCH PRACTICES WITH NO OBJECTION BY CONGRESS = VALIDITY

USSC HAS UPHELD ALL EX AGREEMENTS THAT HAVE COME BEFORE IT. MAJORITY MODERN VIEW THEREFORE IS THAT EX AGREE = TREATY. WAR POWERS CONSTITUTION CLEAR CONGRESS DECLARES WAR AND FUNDS MILITARY. PRESIDENT LEADS IN THE FIELD. PRESIDENT CAN RESPOND TO INVASION OR ATTACK. WOODS v CLOYD MILLER (1948 - 399) DURING WWII, RENT CONTROL. NEW ONE IN 1947 DC WAR POWER ENDED ON 12/31/46 WITH PRESIDENTIAL PROCLAMATION ENDING HOSTILITIES.

1. WAR POWERS CONTINUE AFTER WAR IS OVER REMEDY ALL EVILS THAT ARISE FROM WAR. DOESNT END WITH CESSATION OF HOSTILITIES. 2. 400 QUOTE. CONGRESS CAN REMEDY AFTER THE WAR ECONOMIC EFFECTS CAUSED BY WAR. JACKSON OK HERE BUT MAJORITY STATEMENT TOO BROAD. SOME LIMIT ON WHEN THEY END LESS THAN AS LONG AS PROBLEMS EXIST (WAR DEBT LONG ?) WAR POWERS RESOLUTION PRESIDENT FREQUENTLY COMMITS TROOPS

WITHOUT DECLARATION OF WAR PRIZE CASES (1863) LINCOLN ORDERS NAVAL BLOCKADE OF SOUTH BEFORE CONGRESS DECLARES WAR. USSC SAID OK UNDER PRESIDENT POWER TO REPEL INVASION AND GENERAL EXECUTIVE POWER. IF NEEDED LEGISLATIVE SANCTION, FIND IT IN APPROPRIATIONS AND RATIFYING STATUTES, BUT PRESIDENT DIDNT NEED IT. KOREA AND VIETNAM NEVER DECLARED, NEVER REACHED USSC DC MOST DISMISS ON SOME JUSTICIABILTY ISSUE, OTHERS

APPROVED ON MERITS. WAR POWERS RESOLUTION OF 1972 (318) FDR INCREASED DRAMATICALLY PRESIDENTS POWER TO COMMIT TROOPS. JOINT RESOLUTION PASSED WITH OVERRIDE OF NIXON VETO. PRESIDENT MAY INTRODUCE TROOPS (2C): 1. DECLARATION OF WAR 2. STATUTORY AUTHORIZATION AND 3. NATIONAL EMERGENCY BY ATTACK ON US, ITS TERRITORIES OR POSSESSIONS OR ITS ARMED FORCES.

SEC 4 CONSULTATION REPORT WITHIN 48 HOURS TO CONGRESSIONAL LEADERS. SEC 5B TERMINATE WITHIN 60 DAYS UNLESS 1. CONGRESS HAS DECLARED WAR OR 2. CONGRESS HAS EXTENDED PERIOD OR 3. CONGRESS IS PHYSICALLY UNABLE TO MEET. CAN BE EXTENDED FOR 30 DAYS IF MILITARY NECESSITY (REALLY 90). SEC 5C ARMED FORCES REMOVED BY CONCURRENT RESOLUTION. MANY PRESIDENTS QUESTION VALIDITY 5B AND 5C. OVER 125 INCIDENTS OF PRESIDENT INTRODUCING

TROOPS WITHOUT CONGRESSIONAL APPROVAL. MOST AFTER 1973 COMPLY WITH AT LEAST PARTS OF RESOLUTION. GULF WAR I BUSH I BUILD UP ON SAUDI BORDER (SEE MOVIE JARHEAD). DELLUMS v BUSH DC SAYS NOT RIPE. CONGRESS ADOPTS JOINT RESOLUTION BY FAIRLY CLOSE VOTE. LIBYA MARCH 27,2011 UN RESOLUTION US AND EUROPE AIRSTRIKES. AFTER A FEW WEEKS, US SUPPORTING NATO. 60 DAYS NOTHING. HOUSE ASKS FOR EXPLANATION. PRESIDENT ASKS YOU FOR ADVICE RESPONSE ?

OBAMA: A. NATO IN CHARGE TREATY. B. NO GROUND ONLY AIR PLANES AND DRONES. NOT HOSTILITIES AS USED IN WAR POWERS RESOLUTION. CONTINUED AFTER 90 DAY LIMIT. EXECUTIVE DETENTION OF ENEMY COMBATANTS. WHAT IS MARTIAL LAW ? MILITARY IN CONTROL. WHO INSTITUTES MARITAL LAW ? ART 1, SEC 8 SUPPRESS AND

REPEL ? ART 2 C IN C ? ART 1, SEC 9 HABEUS CORPUS NOT SUSPENDED UNLESS REBELLION OR INVASION. WHO SUSPENDS ? CONGRESS YES PRESIDENT ? TYPES OF COURTS: 1. ART 3 FEDERAL COURTS 2. MILITARY COURTS UCMJ COURT MARTIAL 3. MILITARY TRIBUNAL - PRESIDENT ALONE ? A. MARTIAL LAW B. ENEMY TERRITORY C. BATTLEFIELD VIOLATE LAWS OF WAR MILITARY COMMISSIONS SAME THING FOR CON LAW I

LEGAL DISTINCTIONS WORK BEST WHEN A CLEAN BATTLEFIELD. PROBLEM WITH WAR ON TERRORISM NO SUCH THING. IS CONSTITUTIONAL INVARIABLE DURING WAR OR DOES WARTIME EMERGENCY DILUTE OR RESTRAIN CONSTITUTIONAL GUARANTEES ? 321 LINCOLN UNILATERALLY SUSPENDS HC BETWEEN PHILADELPHIA AND DC IN RESPONSE TO PRO-SOUTH ACTIVITIES IN MARYLAND. 13, 000 CIVILIANS ARRESTED AND DETAINED BY UNION TROOPS. CONGRESS RATIFIES A FEW MONTHS

LATER. EX PARTE MILLIGAN(1866 325) HC PETITION. RESIDENT OF INDIANA NOT IN ARMY. SEIZED BY MILITARY AND CHARGED WITH TREASON. MILITARY TRIBUNAL SENTENCES TO DEATH. AFTER WAR, CIVILIAN GRAND JURY REFUSES TO INDICT. 1. SHOULD HAVE BEEN TRIED IN ART 3 COURT. NOT RESIDENT OF REBELLIOUS STATE OR PRISONER OF WAR. 2. MILITARY NECESSITY NOT AN ARGUMENT IN STATE WHERE NO WAR AND COURTS OPERATING

NORMALLY. CANT DENY RIGHTS WHEN COURTS OPEN AND UNOBSTRUCTED. 3. SUSPENDING WRIT DOES NOT EQUAL MARTIAL LAW. MARTIAL LAW ONLY WHEN, IN INVASION OR CIVIL WAR, COURTS ARE CLOSED AND CRIMINIAL JUSTICE IS IMPOSSIBLE. EX PARTE QUIRIN (1942 327) BORN IN GERMANY LIVED IN US. BACK TO GERMANY BEFORE 1941. CITIZEN OF REICH. TRAINED IN SABATOGE. DROPPED INTO US BY SUB. CAPTURED IN CIVILIAN CLOTHES. TRIED BY MILITARY

TRIBUNAL DENIED ACCESS TO DISTRICT COURT. 1. PRESIDENT = C IN C IN TIMES OF CRISIS. 2. CONGRESS PROVIDED MILITARY TRIBUNALS HAVE POWER TO TRY OFFENSES ACCORDING TO LAWS OF WAR. DO NOT CONSIDER HERE PRESIDENTS UNILATERAL POWER. 3. NO MILITARY TRIBUNAL IF A) NOT AGAINST LAW OF WAR OR B) CLASS OF OFFENSE TRIABLE ONLY BY JURY. MILLIGAN. HERE AGAINST LAW OF WAR. BELLIGERENTS OUT OF UNIFORM SPIES. NOT CONSIDERED POWS. MILLIGAN NOT ENEMY BELLIGERENT, POW OR LOW.

GOOD DECISION ? IF 1 A US CITIZEN ? QUIRIN MET BY COAST GUARD CLAIMS FISHING BOAT GROUNDED. WHEN OTHERS STARTED SPEAKING GERMAN, GAVE GUARD $ 300. GOT OTHER COAST GUARDS BUT GONE ON RR. ON TRAIN, QUIRIN SAYS NEVER INTENEDED TO DO IT TURNING IN TO FBI. TRY IN NYC IGNORED. GO TO DC TURN IN AND ARRESTED. JULY 29 , 1942 ORAL ARGUMENT JULY 31, 1942 USSC DECISION

AUGUST 8, 1942 6 ELECTROCUTED, BUSCH AND DASCH GIVEN LIFE. JOHNSON v EISENTRAGER (1950 332) GERMAN RADIO MEN CAPTURED IN PACIFIC AFTER GERMANY SURRENERED BUT STILL HELPING JAPAN. MILITARY TRIBUNAL. NO ACCESS TO US COURTS. NON CITIZEN AND NOT IN US = NO DUE PROCESS RIGHTS. 332 AUMF (JOINT RESOLUTION = AUTHORIZATION FOR USE OF MILITARY FORCE) QUOTE BROAD AUTHORITY FOR PRESIDENT TO USE FORCE AND SPECIFIC REFERENCE TO WAR POWERS ACT.

WHY ESTABLISH GUANTANAMO AS TERRORIST PRISON ? HINT THE LAWYERS PICKED IT. EISENTRAGER NO JURISDICTION OVER NON-US INDIVIDUALS CAPTURED AND HELD OUTSIDE US. BUSH ADMIN NO HEARING OF ANY KIND. RASUL v BUSH (2004 - 334) GUANTANAMO DETAINEES BRING SUIT HELD UNLAWFULLY. DC AND C OF A HELD NO JURISDICTION EISENTRAGER. USSC REVERSES. JURISDICTION TO HEAR HABEUS. IS RASUL ABOUT THE VALIDITY OF A MILITARY TRIBUNAL ?

334 QUESTION. CONTROL BUT NOT SOVEREIGNTY 1. 334 DISTINCTION FROM EISENTRAGER NOT AT WAR, DENY SOLDIERS, NO HEARING AT ALL FOR 2 YEARS. KENNEDY (C) US TERRITORY IN EFFECT AND INDEFINITE DETENTION WITHOUT ANY LEGAL PROCEEDING SCALIA + 2 (D) TIME OF WAR MILITARY ENTITLED TO RELY ON EISENTRAGER. OVERRULES EISENTRAGER AND EXTENDS HABEUS OUTSIDE US FOR FIRST TIME.

HAMDI v RUMSFELD (2004 - 335) OCONNOR FIRST LINE AT THIS DIFFICULT TIME .. BOUGHT THE PROBLEM. US CITIZEN CAPTURED ABROAD IN AFGHANISTAN. IN JAIL IN US. GOVERNMENT ALLEGES ENEMY COMBATANT SUPPORTING FORCES HOSTILE TO US. HELD FOR 2 YEARS WITH NO HEARING. DC ORDERED EVIDENCE IN CAMERA 4TH CIR REVERSED NO DEFER TO PRESIDENTIAL POWER. WHAT ARE THE 4 POSITIONS ON THE USSC ? SOUTER, SCALIA, OCONNOR AND THOMAS WHAT IS THE RESULT FOR HAMDI ?

SOUTER GINSBUR RELEASE NO CONG AUTHOR. SCALIA OCONNOR THOMAS (D) STEVENS + 3 RELEASE HEARING JAIL CRIM PRO

DP = HOLD OR SOME INDEFIN CONGRESS MODIFIED AS SUSPENDS HEARING C IN C HABEUS WHAT IS THE RESULT FOR HAMDI ? USSC

VACATED C OF A (8 VOTES TO REVERSE). OCONNOR + 3 1. AUMF AUTHORIZES DETENTION OF ALL ENEMY COMBATANTS IN WAR ON TERROR. 2. US CAN CLEARLY HOLD IN DETENTION WHILE ACTIVE COMBAT ON-GOING. 3. QUESTION = EVEN IF DETENTION LEGAL, WHAT PROCESS IS CITIZEN ENTITLED TO WHO DISPUTES HIS STATUS AS ENEMY COMBATANT WHEN HABEUS HAS NOT BEEN SUSPENDED ? WHAT IS GOVERNMENT ARGUMENT ON HAMDI AS

ENEMY COMBATANT ? GOVERNMENT = SEIZURE IN WAR ZONE PER SE ENEMY COMBATANT OR DEFERENCE TO EXECUTIVE CONCLUSION OF SAME. 4. 338 GOVERNMENT AT WAR v RIGHTS OF CITIZEN. DP MATTERS MOST IN CRISIS. 5. 339 IF CITIZEN CHALLENGES ENEMY COMBATANT STATUS, HE MUST RECEIVE A) NOTICE AS TO NATURE OF GOVERNMENTS FACTUAL BASIS FOR ASSERTION AND B) FAIR OPPORTUNITY TO REBUT IN FRONT OF NEUTRAL DECISION MAKER. NOT ALL RIGHTS PRESENT. NOT ON

BATTLEFIELD AFTER DECISION TO HOLD HAS BEEN MADE. CAN BE MILITARY TRIBUNAL NO SUSPENSION OF HABEUS. SOUTER (C AND D) 1. NON DENTION ACT SAYS MUST RELEASE UNLESS HELD PURSUANT TO ACT OF CONGRESS. AUMF DOES NOT AUTHORIZE DETENTION. SCALIA (D) 1. CORE OF CONSTITUTION IS FREEDOM FOR CITIZEN FROM INDEFINITE DETENTION BY GOVERNMENT. 2. QUIRIN UNDISPUTED ENEMY COMBATANTS.

THIS IS MILLIGAN COURTS ARE OPEN. 3. CRIMINAL PROCEEDINGS PROMPTLY BROUGHT IN FEDERAL COURT OR CONGRESS SUSPENDS WRIT. THOMAS (D) AUMF AUTHORIZED DETENTION. ONLY A GOOD FAITH DETERMINATION BY EXECUTIVE IS REQUIRED. NO JUDICIAL EXPERTISE HERE NATIONAL SECURITY = EXECUTIVE. RUMSFELD v PADILLA (2004 - 346) USSC DISMISSES BECAUSE SHOULD HAVE SUED IN SOUTH CAROLINA NOT NY. VIGOROUS DISSENT

HOLDING NOT AUTHORIZED. US CITIZEN ARRESTED IN CHICAGO. C OF A HELD VIOLATED NON-DENTION ACT AND AUMF DID NOT AUTHORIZE. AS ENEMY COMBATANT, HELD BY DEPARTMENT OF DEFENSE. HAMDAN v RUMSFELD (2006 348) HAMDEN = YEMEN CAPTURED IN AFGHANISTAN TALIBAN. CAUGHT NOV 2001. GITMO JUNE 2002. OVER 1 YEAR LATER, ELIGIBLE FOR MILITARY COMMISSION. OVER 1 MORE YEAR LATER, CHARGED. HABEUS HERE. DETAINEE TREATMENT ACT TRIED TO LIMIT ALL

APPEALS TO C OF A FOR DC CIRCUIT ONLY REVIEW WHETHER FOLLOWED D OF D RULES AND US STATUTES AND CONSTITUTION. USSC HELD DTA DIDNT STRIP IT OF JURISDICTION IN EXISTING HABEUS AND APPEALS 1. MILITARY COMMISSION OR TRIBUNAL NOT IN CONSTITUTION OR BY STATUTE. FROM MILITARY NECESSITY. QUIRIN BASED ON CONGRESSIONAL AUTHORIZATION. DONT ANSWER QUESTION OF WHETHER CONGRESS ALWAYS NEEDED BUT CLEAR WHEN JUSTIFIED UNDER CONSTITUTION AND LAW,

INCLUDING THE LAW OF WAR. 2. 349 MILITARY COMMISSIONS ALLOWED: A. MARTIAL LAW DECLARED B. OCCUPIED ENEMY TERRITORY (NO CIVILIAN TEMPORARY) C. USUALLY ON BATTLEFIELD ITSELF, TO DETERMINE VIOLATION OF LAW OF WAR. 3. NEITHER AUMF OR DTA EXPAND PRESIDENTIAL POWER FOR MILITARY COMMISSIONS. 4. MUST BE IN THEATER OF WAR AND DURING

CONFLICT. NO HERE. ALSO CONSPIRACY VALID TRIAL IN DISTRICT COURT OR MILITARY COURT NOT IN MILITARY COMMISSION OR TRIBUNAL. 5. UCMJ INCORPORATES LAW OF NATIONS AND GENEVA CONVENTION. HEARSAY ALLOWED. MUST BE AT LEAST LEVEL OF MILITARY COURT UNLESS IMPRATICABLE. BREYER + 3 (C) PRESIDENT CAN GO TO CONGRESS FOR AUTHORIZATION NEEDED. NOT GIVEN A BLANK CHECK SO FAR.

KENNEDY (C) JACKSON 3RD CATEGORY CONGRESS SAID NO. THOMAS (D) AUMF AUTHORIZES. PRESIDENT HAS DECIDED PRE 911 MATTERS AND THEATER IS EVERYWHERE. ALITO (D) MILITARY COMMISSION HAS SUFFICIENT LEGAL SAFEGUARDS. MILITARY COMMISSIONS ACT OF 2006 (354) 1. APPLIES TO ALIENS 2. DEFINES ENEMY COMBATANT

3. MILITARY COMMISSION CAN TRY ANY ALIEN ENEMY COMBATANT FOR ANY OFFENSE MADE PUNISHABLE BY LAW OF WAR. 4. REMOVED HABEUS FOR ALL ALIEN ENEMY COMBATANTS REGARDLESS OF WHERE HELD. BOUMEDIENE v BUSH (2008 255) P AT GITMO. DEPARTMENT OF DEFENSE HAS CREATED CSRT COMBAT STATUS REVIEW TRIBUNALS NO LAWYERS, HEARSAY, NO CONFRONT, LIMITED $$ P = COMBATANTS. SUSPENSION CLAUSE ART 1, SEC 9, CL 2 NOT SUSPEND UNLESS INVASION OR

REBELLION. KENNEDY 1. GOVERNMENT ARGUES HABEUS SUSPENDED IN TERRITORIES OVER WHICH US HAS NO SOVEREIGNTY. US HAS EFFECTIVE SOVEREIGNTY OVER GITMO. UNCLEAR AT CL EXTRA TERRITORIAL EFFECT OF WRIT. WRIT REALLY IMPORTANT TO FF. 357 - 3 FACTORS DETERMINING REACH OF SUSPENSION OF THE WRIT. P CONTESTING ENEMY STATUS GITMO SECURE. MCA NOT FORMAL SUSPENSION OF WRIT. CONSTITUTION IN FULL EFFECT IN GITMO. 2. 359 HABEUS MINIMUM

DETAINEE MUST HAVE OPPORTUNITY TO PRESENT RELEVANT EXCULPATORY EVIDENCE THAT WAS NOT PART OF RECORD AT EARLIER PROCEEDINGS. 3. COSTS NOT ENOUGH TO OUTWEIGH. SOME IN JAIL FOR 6 YEARS. STRIKE ENTIRE STATUTE. ROBERTS (D) MORE RIGHTS TO ENEMY COMBATANTS THAN EVER BEFORE SCALIA (D) FIRST CASE TO APPLY HABEUS TO ALIENS DETAINED ABROAD. EISTRANGER CLEAR AND CORRECT.

HABEUS AND DISTRICT COURT: 1. IS HABEUS AVAILABLE ? A. NO IF FOREIGN CITIZEN IN FOREIGN COUNTRY (EISENTRAGER) B. YES IF GUANTANAMO US CONTROL 2. IF HABEUS APPLIES, WHAT KIND OF HEARING IS REQUIRED ? A. DISTRICT COURT IF OPEN MILLIGAN B. MILITARY TRIBUNAL IF SPIES QUIRIN C. GITMO TERRORIST = DUE PROCESS HEARING (CAN BE MT) = HAMDI (339),

BOUMEDIENE (359) 3. IF DISTRICT COURT REQUIRED, HEAR CASE. WHO CAN SUSPEND THE WRIT OF HABEUS ? CONGRESS CLEARLY CAN ISSUE IS WHETHER PRESIDENT ALONE CAN DO IT. IS SUSPENSION LIMITED TO REBELLION OR INVASION ? BOUMEDIENE 357 3 FACTORS MILLIGAN NO MIL TRIBUNAL COURTS OPEN QUIRIN SPIES (NO ENEMY BELL,POW OR LOW) = MIL

TRIBUNAL EISENTRAGER FOREIGN IN FOREIGN = M TRIB RASUL HABEUS IN GITMO, SOME NOTICE AND HEARING EVEN FOR ALIENS (EXECUTIVE ONLY) HAMDI CITIZEN IN US 1 SAYS PRESIDENT AUTHORIZED BY CONGRESS, 4 SAY DUE PROCESS HEARING, 4 RELEASE OR FILE CRIMINAL HAMDAN PRESIDENT DEFIED CONGRESS -NON CITIZEN IN GITMO GETS MORE THAN MIL TRIBUNAL (3 CIRCUMSTANCES) BOUMEDIENE ALIENS IN GITMO GET HABEUS MINIMUM CONGRESS CANT SUSPEND HERE

FEDERALISM USSC AUTHORITY OVER STATE COURTS MARTIN v HUNTERS LESSEE (1816 - 17) VIRGINIA ------------------ HUNTER FAIRFAX -------------------- MARTIN TREATY OF 1783 (SEPTEMBER 3) ENDING THE REVOLUTIONARY WAR. WHAT IS THE SOLE ISSUE IN THE CASE ? VIRGINIA 1 FAIRFAX DEVISEE v HUNTERS LESSEE VA SC FOR HUNTER. USSC 1 - REVERSES IN 1813

MANDATED VIRGINIA TO GRANT TITLE TO MARTIN 17 VIRGINIA 2 1. SEC 25 IS UNCONSTITUTIONAL. STATE COURTS CANT ENCROACH ON FEDERAL POWER NOTHING IN CONSTITUTION GIVING FEDERAL POWER TO ENCROACH ON STATES. EQUAL RESPECT FOR RESIDUAL SOVERIGN. 2. IF ONE COURT IS APPELLATE, MEANS SUPERIOR. CANT BE UNLESS SAME SOVERIGNITY. EG NO APPEAL FROM COURT IN FRANCE. 3. CONGRESS CAN MAKE EXCLUSIVE BUT DIDNT

STORY 1. USSC APPELLATE POWER IN ALL ART 3 CASES NOT IN ORIGINAL JURSID. IT IS THE CASE, NOT THE COURT, WHICH GIVES JURISDICTION. CONSTITUTION DOESNT MENTION CERTAIN COURTS JUST TYPES OF CASES. 2. STATES CAN HEAR BUT APPEAL TO USSC. CONSTITUTION REGULATES STATES IN MANY WAYS IF CAN DECLARE ACTS OF GOVERNOR AND LEGISLATURE UNCONST, APPELLATE POWER. 3. 18-19 STATE BIAS CHAOS IF DIFFERENT RESULT

3. REMOVAL = APPELLATE. FEDERAL CONTROL OVER THE CASE. HISTORY SUPPORTS. WHY DID MARTIN WIN IN USSC ? DEFER TO STATE PROPERTY LAW ? IS THE APPEAL DEPENDENT ON A STATUTE ? PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THIS COURT. DONT ORDER. WHO IS MARTIN ? COHENS v VIRGINIA 19 MARSHALL IN CRIMINAL CASE 16-17 OW HOLMES QUOTE INTERPOSITION STATE CAN NULLIFY

UNCONSTITUTIONAL FEDERAL LAWS OR INTERPRETATIONS. REAPPEARS IN 1950S. ADEQUATE AND INDEPENDENT STATE GROUNDS IF STATE LAW RESOLVES THE CASE, THEN FEDERAL COURTS SHOULDNT HEAR. USSC SHOULD CORRECT WRONG JUDGMENTS, NOT REVISE OPINIONS. EXAMPLE IF CASE INVOLVES STATE LAW AND FOURTH AMENDMENT, USSC WILL NOT TAKE CASE IF STATE LAW PRODUCES A JUDGMENT EVEN IF STATE COURT OPINION WRONG ON FOURTH A RESULT. FEDERALISM

STATES MUCH MORE IMPORTANT PRE-1937 McCULLOCH v MARYLAND (1819 - 75) FIRST BANK OF US (85) STATUTE FOR FIRST BANK PASSED BY CONGRESS IN EARLY 1791. WHILE DECIDING VETO, WASHINGTON ASKED FOR OPINIONS. ISSUE IS IMPLIED POWERS AND NECESSARY AND PROPER CLAUSE NO ARGUMENT EXPLICIT POWER TO CREATE CORPORATION. WHICH EXPLICIT POWERS ARE RELEVANT ? JEFFERSON PRO STATES RIGHTS 1. POWER OF FEDERAL GOVERNMENT TO FORM A

CORPORATION NOT SPECIFICALLY ENUMERATED IN CONSTITUTION. 2. TAXING CLAUSE DOESNT VALIDATE. GENERAL WELFARE MEANT TO BE A LIMIT CANT TAX FOR JUST ANY REASON. 3. NECESSARY AND PROPER NECESSARY MEANS MORE THAN MERELY CONVENIENT WITHOUT WHICH POWER WOULD BE NUGATORY. FEDERAL HAS IMPLIED POWERS BUT ONLY THOSE NECESSARY. HAMILTON PRO NATIONAL GOVERNMENT 1. FEDERAL GOVERNMENT CAN INCORPORATE BUT

ONLY FOR PURPOSES LISTED IN ART 1, SEC 8 2. JEFFERSON DEFINES AS IF ABSOLUTE OR EXTREME BEFORE THE WORD NECESSARY. 3. MEANS/END TEST. NOT ON DEGREE HOW NECESSARY. RATIONAL MEANS OF ACHIEVING EXPLICIT END. CANT HAMSTRING FEDERAL GOVERNMENT WITH NARROW INTERP. 4. RELATED TO RAISING TAXES AND BORROWING $$$ CONSTITUTION NOT CONVENTION CONTROLS. ARTICLES OF CONFEDERATION 73 1. CONSENSUS THAT CENTRAL GOVERNMENT IN

REVOLUTION WAS TOO WEAK. 2. ARTICLES SEC IX = CONSTITUTION ART 1, SEC 8. BUT ARTICLES SAID STATES RETAINED ALL POWERS NOT EXPRESSLY DELEGATED TO FEDERAL GOVERNMENT. 3. CONSTITUTION ADDED TAX AND INTERSTATE/FOREIGN COMMERCE POWERS AND NECESSARY AND PROPER CLAUSE. NOT MUCH DISCUSSION ON NECESSARY AND PROPER. FIRST BANK EXPIRES. SECOND BANK AFTER WAR OF 1812 NATIONALIST FERVOR. ALL FINE IN POST WAR BOOM OF 1817-18 DISCONTENT AFTER PANIC AND

DEPRESSION OF 1818. STATES RIGHTS POPULAR McCULLOCH A BUM. MARYLAND STATE LAW IMPOSED A FEE ON BANKS OPERATING WITH AUTHORITY FROM STATE. FINES ON OFFICERS. McCULLOCH REFUSED TO PAY EITHER. DOES CONGRESS HAVE POWER TO CREATE A BANK (A CORPORATION) ? IF YES, DOES MARYLAND HAVE POWER TO TAX THE BANK ? MARSHALL FEDERAL POWER

1. FIRST BANK PASSED BY FIRST CONGRESS. THEY THOUGHT FEDERAL GOVERNMENT HAD POWER. DEFER TO DRAFTERS. 2. CONSTITUTION NOT CREATION OF THE STATE BUT THE PEOPLE. JUST USED STATES FOR CONVENIENCE 3. CLEAR THAT FEDERAL GOVERNMENT = ENUMERATED POWERS. CLEAR THAT FEDERAL GOVERNMENT HAS SOME IMPLIED POWERS. 4. CONSTITUTION AS AN OUTLINE NEEDS CONSTANT INTERPRETATION. 78 QUOTE. 5. FEDERAL GOVERNMENT GIVEN GREAT POWERS

MUST HAVE INTENDED APPRORIATE MEANS TO IMPLEMENT. 6. 79 - MARYLANDS ARGUMENT (JEFFERSON). ABSOLUTELY NOT BEFORE NECESSARY. FEDERAL GOVERNMENT INTENDED TO LAST A LONG TIME DIDNT INTEND NARROW MEANS TO IMPLEMENT BROAD POWERS. EG CAN ESTABLISH POST OFFICE CLEARLY POWER TO MAKE MAIL THEFT A CRIME. LATTER NOT INDISPENSABLY NECESSARY. 7. 81-82 - QUOTES. NECESSARY AND PROPER A GRANT OF POWER, NOT A LIMITATION. MEANS/END

TEST. TAX AND BORROW POWERS CAN MARYLAND TAX THE FEDERAL GOVERNMENT (THE BANK) ? 1. 83-84 - QUOTE TAX = DESTROY. STATES CANT TAX INCONSISTENT WITH CONSTITUTION. SUPREMACY CLAUSE. 2. CAN ONLY TAX DOWN TAX YOUR OWN CONSTITUENTS. IF FEDERAL TAX OPPRESSIVE, STATES HAVE REPRESENTATIVES IN CONGRESS. NO SUCH VOTING SAFEGUARD WHEN STATE TAXES UP ON FEDERAL. 85 - QUOTE. MODERN

LAW STATE CANT TAX REAL ESTATE OWNED BY FEDERAL GOVERNMENT. DISTINGUISH MARBURY BY SAYING LAND OWNED BY BANK 80% PRIVATE OWNERSHIP. HERBERT WECHSLER USSC SHOULD BE PRO FEDERAL GOVERNMENT BECAUSE STATES RIGHTS PROTECTED BY STRUCTURE OF CONGRESS. LAW PASSED MEANS STATES ALREADY AGREE. JESSE CHOPER USSC SHOULD SAVE POLITICAL CAPITAL FOR PROTECTION OF INDIVIDUAL RIGHTS. US v COMSTOCK (2010 - 99)

DOES N AND P CLAUSE GRANT CONGRESS AUTHORITY TO ALLOW DC TO ORDER CIVIL COMMITMENT OF MENTALLY ILL, SEXUALLY DANGEROUS FEDERAL PRISONERS BEYOND DATES THEY WOULD BE RELEASED ? YES BREYER 1. NP = CONVENIENT OR USEFUL OR CONDUCIVE. NOTHING ABOUT FEDERAL POWER OVER CRIMINAL LAW IS EXPLICIT IN THE CONSTITUTION. HISTORY CLEARLY ALLOWS. COMSTOCK HIGHLY DANGEROUS. ALREADY CUSTODIAN.

2. RELIQUINSH CUSTODY TO STATE WHENEVER A STATE WANTS IT. 3. UNDER AUTHORITY THAT PERMITS FEDERAL CRIMINAL LAWS, FEDERAL PRISONS, GOVERN PRISONS AND PROTECT POPULATION KENNEDY (ALITO) (C) RATIONAL REVIEW TOUGHER IN COMMERCE THAN DUE PROCESS. THOMAS +1 (D) CRIMINAL LAW, CARING FOR MENTALLY ILL AND PROTECT POPULATION = STATE MATTER.

US v KEBODEAUX (2013 S 17) WHETHER CONGRESS HAS AUTHORITY UNDER NP TO REQUIRE CONVICTED MEMBER OF AIR FORCE TO REGISTER AS SEX OFFENDER UNDER SORNA, ENACTED AFTER HIS CONVICTION ? YES BREYER 1. ART 1, SEC 8 POWER TO MAKE RULES FOR THE REGULATION OF THE LAND AND NAVAL FORCES. NP BROAD. UCMJ MAKES MILITARY CRIME. CAN IMPRISON AND PUT CONDITIONS ON RELEASE. ROBERTS (C) BUT NO GENERAL FEDERAL POLICE THOMAS (D) FED CANT PROTECT FROMCHILD PREDS.

NFIB v SEBELIUS (2012 101) 1 OF 4 CONGRESS REQUIRED INDIVIDUALS TO PURCHASE HEALTH INSURANCE. HERE, DEFENDED UNDER N AND P CLAUSE AS INCIDENT OF COMMERCE CLAUSE ROBERTS 1. NECESSARY NOW INCLUDES CONVENIENT OR USEFUL. 2. PROPER MEANS WONT ALLOW IF INCONSISTENT WITH LETTER AND SPIRIT OF

CONSTITUTION. NOT PROPER HERE TO EXPAND FEDERAL POWER TO THIS EXTENT. GINSBURG + 3 (D) CONGRESS TRYING TO ELIMINATE CHARGING HIGHER PRICES OR DENYING COVERAGE TO THOSE WITH PREEXISTING MEDICAL CONDITIONS. N AND P INCLUDES MINIMUM COVERAGE TO MAKE PREEXISTING FINANCIALLY FEASIBLE. US TERM LIMITS v THORNTON (1995 - 90) ARKANSAS CONSTITUTION AMENDED BY GENERAL

VOTE CANT BE ON BALLOT IF 3 TERMS IN HOUSE OR 2 IN SENATE. CAN STILL BE WRITE IN. BALLOT ACCESS RESTRICTION, NOT DISQUALIFICATION. WHAT IS THE PROBLEM ARKANSAS IS TRYING TO FIX ? ART 1, SEC 2, CL 2 HOUSE - 25, 7 YEARS US CITIZEN, INHABITANT OF STATE. ART 1, SEC 3, CL 3 SENATE 30, 9 AND INHABITANT ART 1, SEC 4 TPM OF HOLDING ELECTIONS BY STATE ARGUMENTS ? (3 PRO, 2 ANTI) PRO TERM LIMITS ARGUMENTS: 1. CONSTITUTION IS JUST A MINIMUM. STATES

GENERALLY CAN ADD EVEN IF CONGRESS CANT (SUBSTANTIVE). WRITE INS VIABLE 2. IF NO 1, THEN STATES INCLUDE AS TPM (PROCED) 3. IF NO 1 OR 2, RIGHT OF THE PEOPLE ANTI TERM LIMITS ARGUMENTS: 1. CONSTITUTION SPECIFIC ON REQUIREMENTS CANT ADD OR SUBTRACT. NOTHING PRE 1789. 2. DEMOCRACY PEOPLE ELECT WHOMEVER THEY WANT. WRITE INS NOT VIABLE. STEVENS 1. POWELL v McCORMACK HOUSE COULD NOT

IMPOSE ADDITIONAL QUALIFICATIONS. AT ENGLISH CL, CONTINUED RE-ELECTION OF JOHN WILKES SET PRINICIPLE - IN A DEMOCRACY, PEOPLE CAN ELECT WHOMEVER THEY DESIRE. 2. FOUNDING FATHERS WANTED QUALIFICATIONS TO BE FIXED. FF AND PRINCIPLES OF DEMOCRACY = PEOPLE ELECT WHOMEVER THEY WANT. 3. NO POWER IN STATES. AUTHORITY DIDNT PREEXIST THE CONSTITUTION SO NO RESIDUAL POWER 3. FEDERAL ELECTIONS DELEGATED TO STATES RATHER THAN RESERVED BY THEM. 4. POTENTIAL PATCHWORK OF STATE

QUALIFICATIONS UNDERMINES UNIFORMITY AND NATIONAL CHARACTER. 5. NOT JUST PROCEDURAL WRITE INS HAVE POOR CHANCE TO WIN. FF REJECTED TERM LIMITS. FEDERAL POLITICANS ARE NOT JUST AGENTS OF STATE. KENNEDY (C) FEDERALISM IMP. RIGHT OF PEOPLE, NOT STATE. THOMAS + 3 (D) 1. IRONIC TO DEFEND RIGHT OF PEOPLE WHEN PEOPLE APPROVED BY OVER 60%.

2. PEOPLE VOTING WITHIN STATES. IF CONSTITUTION DOESNT TAKE AWAY FROM STATES, THEY HAVE POWER. 3. CONSTITUTIONAL LIST IS JUST A MINIMUM. NOTHING SAYS STATE CANT ADD. MAJORITY ARGUMENT APPLIES TO CONGRESS, NOT STATE. DONT WANT CONGRESS PERPETUATING ITSELF. 4. WRITE IN IS VIABLE. POSSIBLE GOVERNMENTAL STATUS: 1. REGULATOR INCLUDES CRIMINAL/CIVIL 2. TAXING AUTHORITY (NOT JUST INCOME 1913 AMENDMENT 16)

3. FUNDING AUTHORITY 4. MARKET PARTICIPANT INCLUDES SCHOOLS 5. PROPERTY OWNER TAXING POWER AS REGULATORY DEVICE. BAILEY V DREXEL FURNITURE (1922 187) HAMMER HELD FEDERAL GOVERNMENT COULDNT REGULATE CHILD LABOR UNDER COMMERCE POWER. HERE 10% TAX ON GOODS MADE BY CHILDREN (UNDER 14 REGULATE HOURS 14 16). 1. TAX = VALID; PENALTY = INVALID 2. HERE PENALTY DISGUISED REGULATION. POWER

OVER MANUFACTURING STATES, NOT FEDERAL POWER. TAX/PENALTY LESS IMPORTANT IF WITHIN FEDERAL POWER TO REGULATE. (1937 CHANGES) NFIB v SEBELIUS (2012 - 193) 2 OF 4 ACA REQUIRED ALL CITIZENS TO MAINTAIN MINIMUM ESSENTIAL HEALTH INSURANCE OR PAY A PENALTY TO IRS FOR FAILING TO DO SO. HERE ON TAXING POWER TO DO SO Art I, SEC 8, CL 1 (REJECT COMMERCE CLAUSE ELSEWHERE). NO INSURANCE = TAX TO IRS (BUYING NOT MANDATED). NOT BUYING = INCOME, CAR GAS.

ROBERTS (5-4) 1. PRIOR CASE LAW PENALTY (INVALID) v TAX (VALID). 2. GOVERNMENT ARGUES THAT NOT GETTING INSURANCE IS A DECISION THAT IT CAN TAX. PAID TO IRS BY APRIL 15. RAISES REVENUE. 3. DREXEL FURNITURE PENALTY BECAUSE A) EXCEEDINGLY HEAVY BURDEN ($$) B) SCIENTER REQUIRED (INTENT) AND C) DEPARTMENT OF LABOR COLLECTED (IRS = TAX). 4. TAX CAN BE USED TO INFLUENCE CONDUCT.

5. PROBLEM STATUTE CALLS IT A PENALTY. LABEL NOT BINDING ON USSC. CONSISTENT WITH OUR CASES TO CALL IT A TAX. HOWEVER, A PENALTY FOR ANTI-INJUNCTION ACT THAT IS CONGRESS SCALIA (KENNEDY, THOMAS, ALITO) (D) 1. PENALTY NOT TAX. CRITERIA OF WRONGDOING AND PUNISHMENT FOR VIOLATION. CONGRESS CALLED IT A PENALTY. TO CALL IT A TAX IS A JUDICIAL REWRITE OF THE STATUTE. INCOME TAX IS SEPARATE AMENDMENT (16TH 1913). HERE ART 1, SEC 8 POWER TO TAX.

ANTI INJUNCTION ACT IF TAX, MUST PAY AND SUE FOR A REFUND. NO INJUNCTION AVAILABLE. CONGRESS SAID PENALTY BECAUSE OF POLITICAL RAMIFICATIONS OF TAX AND TO ALLOW LAWSUIT SPENDING POWER AS REGULATORY DEVICE US v BUTLER (1936 - 197) AGRICULTURAL ADJUSTMENT ACT PAID NOT TO GROW. TAX ON PROCESSING TO SUPPORT. BUTLER REFUSED TO PAY TAX. ROBERTS

1. NOT WISDOM OF STATUTE, CONSTITUTIONALITY 2. NOT JUSTIFIED UNDER COMMERCE CLAUSE. 3. 197 - TAXING CLAUSE. CONGRESS CAN SPEND FOR THE GENERAL WELFARE (HAMILTON) 4. HERE, REALLY FEDERAL REGULATION OF SUBJECT LEFT TO THE STATES. 5. 198-99 NOT A CONDITIONAL GRANT. OBVIATE ALL LIMITS. NATIONAL PROBLEM NOT ENOUGH. STONE (BRANDEIS, CARDOZO) (D) 1. NATIONAL PROBLEM = GENERAL WELFARE. CAN REQUIRE MONEY TO BE SPENT FOR THE PURPOSE

GIVEN. CONDITIONAL GRANT v DISGUISED REGULATION STEWARD MACHINE v DAVIS (1937 200) PAYROLL TAX FOR FEDERAL UNEMPLOYMENT. 90% CREDIT FOR AMOUNTS CONTRIBUTED TO STATE PLAN 202 VALID NOT BUTLER NATIONAL PROBLEM SOUTH DAKOTA v DOLE (1987 - 204) FEDERALS WITHHOLD 5 % OF INTERSTATE HIGHWAY FUNDS UNLESS STATE ADOPTS LAW MAKING DRINKING AGE 21 OR OLDER. PURPOSE = HIGHWAY SAFETY.

REHNQUIST 1. FEDS CANT REGULATE 21ST AMENDMENT SAYS NO COMMERCE CLAUSE POWER. 2. HAMILTON GENERAL WELFARE NOT LIMITED TO ENUMERATED LIST OF POWERS. 3. 204 4 PART TEST: 1. $$ = GENERAL WELFARE 2. CONDITION MUST BE UNAMBIGUOUS 3. CONDITION MUST BE RELATED TO FEDERAL INTEREST IN PROGRAM 4. CONDITION CANT VIOLATE ANY OTHER

CONSTITUTIONAL PROVISION. 4. 3 MET HERE SAFETY RELATED 5. 4 MEANS SPECIFIC CONSTITUTIONAL RIGHT NOT JUST FEDERALISM OR STATES RIGHTS. 6. CONDITION CANT BE COERCIVE ONLY 5% HERE. OCONNOR (D) 1. AGREE WITH 4 POINTS MISAPPLIED 3 HERE.NOT RELALTED TO HIGHWAY CONSTRUCTION. 206 CONDITIONAL GRANT OR DISGUISED REGULATION. 2. BUTLER CORRECT ON SPENDING ANALYSIS BUT WRONG ON COMMERCE CLAUSE.

AFTER DOLE AND UNDER 4 PART TEST, NO SPENDING PROVISION INVALIDATED UNTIL . NFIB v SEBELIUS (2012 - 209) 3 OF 4 ACA REQUIRES STATES TO EXPAND MEDICAID COVERAGE TO 133% OF FEDERAL POVERTY LEVEL. INCREASED FEDERAL FUNDING TO PAY FOR NEWLY INCLUDED. IF STATE DID NOT INCREASE COVERAGE, LOST ALL MEDICAID FUNDING, NOT JUST INCREASE. ROBERTS (BREYER AND KAGAN) 1. STATES MUST VOLUNTARILY AND KNOWINGLY ACCEPT TERMS OF THE CONTRACT. FEDS CAN

CREATE INCENTIVES, NOT COMPULSION. ENCOURAGE, NOT COERCE. 2. DOLE MILD ENCOURAGEMENT 5% OF HIGHWAY FUNDS. HERE LOSE 10% OF ENTIRE STATE BUDGET. 3. GOVERNMENT STATES KNEW CONGRESS RESERVED RIGHT TO AMEND. NO THIS IS A RETROACTIVE CONDITION. CAN CONDITION RECEIPT OF NEW $$$, BUT NOT OLD LOSING ALL IS A PUNISHMENT. 4. BUT THIS PROVISION IS SEVERABLE REST OF

ACA IS VALID (5 4 HERE). SCALIA (KENNEDY, THOMAS, ALITO) (C AND D) 1. DOLE VALID BUT THREAT TO FEDERALISM IF LEFT UNCHECKED. CONDITION IS TIED TO VOLUNTARINESS OF STATE. HERE MASSIVE AMOUNT OF $$$ LOST IF STATE OPTS OUT. NO REAL CHOICE. 2. NOT SEVERABLE. SHOULDNT REWRITE STATUTE GINSBURG (SOTOMAYOR) (C AND D) (C ON SEVER) 1. CONGRESS CAN AMEND DONE IT 50 TIMES. STATES HAD NOTICE NOT AN ENTITLEMENT. CONGRESS COULD NATIONALIZE. ALL MEDICAID $$$

COMMERCE CLAUSE POWER (FEDERAL GROWTH) MAJOR SOURCE OF MODERN FEDERAL POWER. MOST OF STATUTES IN USCA FROM COMMERCE POWER. FIRST INTERSTATE COMMERCE ACT OF 1887 AND SHERMAN ACT OF 1890. WHAT IS HAPPENING IN ECONOMY BETWEEN 1880S 1920S ? DOES CLAUSE MEAN ONLY COMMERCIAL TOPICS OR CAN CONGRESS USE AS POLICE POWER ? 1937 CREATION OF MODERN FEDERAL GOVERNMENT

GIBBONS v OGDEN (1824 - 110) NY GIVES LIVINGSTON AND FULTON EXCLUSIVE RIGHTS TO STEAMBOATS IN NY. THEY ASSIGN TO OGDEN. GIBBONS OPERATES BETWEEN ELIZABETHTOWN AND NYC. GIBBONS REGISTERED UNDER FEDERAL STATUTE. NY COURTS ENJOINED GIBBONS. MAP DEFINITION OF COMMERCE, AMONG. AMONG HARDER TO DEFINE. WHAT DOES OGDEN (NY) SAY IS SUBJECT TO STATE CONTROL ? WHAT DOES OGDEN (NY) SAY IS SUBJECT TO FEDERAL CONTROL ? MARSHALL 1. FEDERAL GOVERNMENT IS LIMITED ONE BUT

INTERPRET EXPLICIT POWERS GIVING WORDS THEIR NORMAL MEANING. 2. OGDEN NAVIGATION NOT INCLUDED IN COMMERCE. NO 110-111 - COMMERCE = BUYING, SELLING AND TRANSPORTING. NAVIGATION INCLUDED IN TRANSPORTING. 3. DEFINITION OF AMONG CANNOT STOP AT BOUNDARY OF EACH STATE BUT MAY INTRUDE INTO INTERNAL. STATE = STRICTLY INTERNAL. FEDERAL = MORE THAN 1 STATE. TENSION BETWEEN COMPLETELY INTERNAL v INTERSTATE WITH INTERNAL

ASPECTS . WHERE BEGIN AND WHERE END 3. 111 RELY ON THE POLITICAL PROCESS FOR LIMITATIONS. US v EC KNIGHT (1895 - 112) AMERICAN SUGAR ACQUIRED 4 OTHER REFINERIES (33%) TO GIVE IT 98% OF THE REFINING MARKET. GOVERNMENT CHALLENGES UNDER SHERMAN ACT D ALLEGES MANUFACTURING IS NOT COMMERCE. FULLER 1. CONCEDE MONOPOLY IN MANUFACTURING. BUT COMMERCE SUCCEEDS MANUFACTURING, NOT PART

OF IT. MONOPOLIES CAN BE REGULATED BUT ONLY WHEN PART OF COMMERCE. 2. MANUFACTURING IS TRANSFORMING. COMMERCE = BUYING, SELLING AND TRANSPORTING AFTER MAKING. 3. EFFECT ON COMMERCE IS INDIRECT CANT USE NP TO BRING UNDER FEDERAL POWER. IF CONGRESS CAN REGULATE THIS, NO LIMIT ON POWER. SHREVEPORT RATE CASE (1914 - 113) ICC CONTROLLED RATES (FEDERAL). RR IN TEXAS CHARGING LESS FOR INTRASTATE, ESPECIALLY

WHEN INTERSTATE MILEAGE WAS SHORTER. MAP CAN CONGRESS CONTROL INTRASTATE RATES ? HUGHES 1. 113 - CLOSE AND SUBSTANTIAL TEST 2. 114 WHEN INTRA AND INTER SO RELATED THAT ONE CONTROLS OTHER, CONGRESS CONTROLS. CANT USE INTRASTATE TO HARM INTERSTATE. RR DIFFERENT PURE COMMERCE AND ALWAYS FEDERAL CONTROL. STREAM OF COMMERCE SWIFT AND STAFFORD

(1905 - 114). CHICAGO STOCKYARDS SOME LOCAL IN BECAUSE THEY ARE PART OF A STREAM NO ONE INTENDS THE STOCKYARD TO BE FINAL DESTINATION. INDUSTRY CREATED AS INTERSTATE IN NATURE WITH INTRASTATE PARTS. COMMERCE CLAUSE AND MORALITY CHAMPION v AMES (1903 - 114) LOTTERY CASES LOTTERY ACT PROHIBITED IMPORTING, MAILING OR TRANSPORTING LOTTERY TICKETS. HERE PARAGUAY. HARLAN 1

1. TICKETS = ARTICLES CARRIED THROUGH INTERSTATE COMMERCE. POWER TO REGULATE INCLUDES THE POWER TO PROHIBIT. NOT JUST LIMITED TO CONTROLLING. 2. PROTECTING MORALS IS IMPORTANT FUNCTION OF GOVERNMENT. FEDERAL CANT ON PURELY INTRASTATE BUT CAN IF USING INTERSTATE MEANS OF TRANSPORTATION. 3. IF CONGRESS ABUSES THIS BROAD POWER, THE REMEDY IS IN THE POLITICAL PROCESS. ABUSE OF POWER NOT ARGUMENT FOR ITS NON-EXISTENCE.

DISSENT LOTTERIES NOT COMMERCIAL. CONGRESS CANT DIRECTLY REGULATE SHOULDNT LET HERE. HIPOLITE EGG v US (1911 - 116) PURE FOOD AND DRUG ACT BANNED ADULTURATED EGGS. D SHIPMENT SEIZED AFTER OUT OF INTERSTATE COMMERCE. 1. OUTLAWS OF COMMERCE CANT ESCAPE CONSEQUENCES OF ILLEGAL TRANSPORTATION. 2. McCULLOCH MEANS/END TEST MAKES LATER SEIZURE VALID.

HOKE V US (1913 - 116) CRIME TO CROSS STATE LINES FOR IMMORAL PURPOSES. POLICE POWER. HAMMER v DAGENHART (1918 - 116) STATUTE EXCLUDED PRODUCTS OF CHILD LABOR FROM INTERSTATE COMMERCE. ILLEGAL IF UNDER 14 OR BETWEEN 14 16 MORE THAN 8 HOURS A DAY FOR 6 DAYS PER WEEK. 1. LOTTERY, EGGS AND WOMEN PRODUCTS/ACTS THEMSELVES EVIL. 117 - QUOTE. REGULATE DOES NOT EQUAL PROHIBIT ALWAYS LIMITED. 2. HERE GOODS ARE HARMLESS TRYING TO REGULATE

CONDITIONS OF MANUFACTURE. WHEN OFFERED FOR SHIPMENT, LABOR IS OVER. 3. NO CONGRSSIONAL POWER TO STANDARDIZE LABOR CONDITIONS. EG NO POWER TO STANDARDIZE TREATMENT OF WOMEN. 4. CANT JUSTIFY BECAUSE NEED FOR NATIONALLY UNIFORM LAWS. PURELY LOCAL HOLMES + 3 (D) 1. REGULATE = PROHIBIT. PRECEDENT. 2. IF NO CONSTITUTION, POWER TO CROSS STATE LINES WOULD DEPEND ON NEIGHBORS. INSTEAD OF

STATE TARIFFS, POLICY OF FEDS. 91 - QUOTE COURT AND THE NEW DEAL DEPRESSION REALLY BAD ECONOMIC TIMES. STARTS IN 1929 YEARS OF REPULICAN PRESIDENTS (1897-1933). 1933 FDR PROMISES NEW DEAL TO GET AMERICA WORKING, SECURE RETIRMENTS, PROTECT BANK DEPOSITS, ETC. ALL INVOLVED MORE FEDERAL POWER. DEMOCRATIC PARTY DOMINATED FEDERAL GOVERNMENT FROM 1933 - 1968 USSC PRIOR TO 1937 1. COMMERCE CLAUSE FEDERAL GOVT CANT

2. SUBSTANTIVE DUE PROCESS STATES CANT 3. CLAYTON ACT UNIONS = ILLEGAL MONOPOLY RR RETIREMENT BD v ALTON RR (1935 - 11) ICC HAD ESTABLISHED COMPULSORY RETIREMENT PLAN FOR ALL RR EMPOLYEES. INVALID NOT REGULATION OF COMMERCE. SAFETY LAWS DIFFERENT. IF CONTENTED WORKER IS STANDARD, NO LIMITS. SOLELY FOR BENEFIT OF EMPLOYEE NOT COMMERCE. SCHECHTER POULTRY v US (1935 - 119) NIRA ESSENCE MINIMUM WAGE, MAXIMUM HOUR.

POULTRY MARKET IN BROOKLYN LOCAL BUYERS. GOVERNMENT ARGUES STREAM AND EFFECT. 1. EFFECT IS INDIRECT. 119 - QUOTE. IF ALLOW HERE, NO LIMIT ON FEDERAL EXPANSION. 2. NO STREAM ENDED WHEN REACHED WAREHOUSE. SLAUGHTER AND SALE IN NYC. CARTER v CARTER COAL (1936 - 120) REGULATE HOURS AND WAGES IN COAL. 1. NOT ENOUGH TO VALIDATE BECAUSE BIG NATIONAL PROBLEM (SAME SAID IN SCHECHTER)

2. MANUFACTURING NOT COMMERCE PRODUCTION, NOT TRADE. COMMERCE AFTER. 3. 121 QUOTE. INDIRECT EFFECT, NOT DIRECT. LABOR DISPUTES LOCAL. DISSENT DIRECT EFFECT. 122 QUOTE. COURT PACKING 123 - MESSAGE TO CONGRESS AND RADIO ADDRESS. 123 USSC AGES AND BILL BETWEEN 1937 AND 1941, 7 JUDGES RETIRE/DIE 1937 BLACK (1971 34 YEARS) 1938 REED

1939 FRANKFURTER (1962 23 YEARS), DOUGLAS (1975 36 YEARS) 1940 MURPHY 1941 BYRNES, JACKSON 1937 WEST COAST HOTEL v PARRISH (483) SUBSTANTIVE DP CASE SWITCH IN TIME THAT SAVED THE NINE. POLITICAL CONTROVERSY ALL APPOINTMENTS WITH AGENDA OF INCREASING FEDERAL POWER. TRILOGY CASES NLRB v JONES & LOUGHLIN (1937 - 125) NATIONAL LABOR RELATIONS ACT. NLRB FOUND D

GUILTY OF UNFAIR LABOR PRACTICE DISCHARGE FOR UNION ACTIVITY. HUGHES 1. NLRB FIND D ORGANIZED IN INTERSTATE MANNER ALIQUIPPA IS HEART OF THE BODY. 2. 126 - EFFECT ON COMMERCE 3. P MANUFACTURING NOT COMMERCE. D STREAM OF COMMERCE. NEITHER 126 CLOSE AND SUBSTANTIAL RELATIONSHIP TO INTERSTATE = FEDERAL POWER. SUBSTANTIALLY AFFECTING INTERSTATE COMMERCE. 4. EFFECT OF STRIKE WOULD BE CATASTROPHIC

FOR NATIONAL ECONOMY. ORGANIZED BUSINESS ON NATIONAL LEVEL. DISSENT (4) 127 - EFFECT TOO INDIRECT WICKARD v FILBURN (1942 130) FILBURN DAIRY FARMER WHEAT QUOTA IS 223 BUSHELS HE IS 239 OVER. $ 117 FINE. EXCESS ALL FOR HOME CONSUMPTION. JACKSON 1. PRODUCTION ISNT COMMERCE AND INDIRECT EFFECT BASED ON A FEW DICTA AND DECISIONS OF THIS COURT.

130 - EVEN IF LOCAL AND NOT COMMERCE, STILL FEDERAL POWER IF SUBSTANTIAL ECONOMIC EFFECT. 2. 131 HYPOTHETICAL MULTIPLIER. 3. POWER TO REGULATE INCLUDES POWER TO CONTROL PRICES. HOMEGROWN WHEAT COMPETES WITH WHEAT IN COMMERCE. DOES HYPOTHETICAL MULTIPLIER MEAN EVERYTHING IS UNDER FEDERAL CONTROL ? US v DARBY (1941 127) FAIR LABOR STANDARDS ACT OF 1938 REGULATED HOURS AND WAGES OF EMPLOYEES IN LOCAL

MANUFACTURING ACTIVITIES. DARBY IS LOCAL LUMBER MANUFACTURER WOOD FROM GEORGIA. SHIPPED SOME OUT OF STATE. 1. 127 - 2 ISSUES. 2. POWER TO REGULATE INCLUDES POWER TO PROHIBIT. CAN EXCLUDE EVEN IF ON MORAL GROUNDS NO OBJECTION THAT IT LOOKS LIKE STATE POLICE POWER. 3. CONGRESS MOTIVE DOESNT MATTER IF WITHIN POWER AND DOESNT INFRINGE OTHER CONSTITUTIONAL PROVISION. CAN EXCLUDE ANY

MATTER FROM IC. IC SHOULD NOT BE USED TO TRANSPORT GOOD MADE FROM SUBSTANDARD CONDITIONS. 3. 128 - HAMMER IS OVERRULED. VALIDITY OF WAGE AND HOUR 1. CAN CONTROL INTRASTATE IF SUBSTANTIAL EFFECT ON COMMERCE. 129 QUOTE MEANS/ENDS. 2. VALID PURPOSE TO ELIMINATE UNFAIR COMPETITION IN IC. 3. DARBY SMALL BUT HYPOTHETICAL MULTIPLIER =

SUBSTANTIAL EFFECT. 4. 129- 10TH AMENDMENT STATES BUT A TRUISM. 5. THEREFORE, CONGRESS CAN PROHIBIT ANYTHING AND MEANS/END TEST THEN LETS CONGRESS REGULATE IT DIRECTLY. FROM 1937 1995 (ALMOST 60 YEARS), FEDERAL POWER THROUGH THE COMMERCE CLAUSE WAS ESSENTIALLY UNQUESTIONED. THIS INCLUDED FEDERAL CRIMINAL LAW. US v LOPEZ (1995 - 136) GUN FREE SCHOOL ZONE ACT FEDERAL CRIME TO

CARRY GUN IF KNEW OR SHOULD HAVE KNOWN SCHOOL ZONE. NO SPECIFIED CONNECTION TO IC. GOVERNMENT ARGUMENT ECONOMIC EFFECT ? D CHARGED UNDER TEXAS LAW DISMISSED AND REINDICTED UNDER FEDERAL LAW. REHNQUIST 1. GIBBONS DEFINED LIMITS. NEXT CENTURY SPENT ON SILENT CC INVALIDATING STATE LEGISLATION THAT IMPEDED IC. THEN 1937. 2. 136 3 PART SUMMARY OF FEDERAL POWER: A. CHANNELS OF INTERSTATE COMMERCE

B. PROTECT INSTRUMENTALITIES FROM INTRASTATE THREATS C. INTRASTATE WHICH SUBSTANTIALLY AFFECTS IC 3. HERE CLEARLY NOT A OR B. SUBSTANTIALLY 4. NOT A REGULATION OF ANYTHING ECONOMIC. NO JURISDICTIONAL NEXUS TO ECONOMY. NO CONGRESSIONAL FINDINGS ON EFFECTS. 5. GOVERNMENT a) COSTS OF CRIME AND INSURANCE b) LESSENS TRAVEL IN UNSAFE AND c) QUALITY OF EDUCATION DOWN. 6. NO LIMITS IF GOVT ARGUMENT ACCEPTED.

DISTRUPT ALL OF FAMILY LAW. WOULD ALLOW FOR COMPLETE REGULATION OF SCHOOLS WHICH IS CLEARLY STATE FUNCTION. KENNEDY (OCONNOR) C 1. ECONOMY OF 1789 REALLY DIFFERENT FROM ECONOMY OF 1937. POST 1937 DEFERENCE TO CONGRESS NOT REALLY QUESTIONED TODAY. 2. ALL HAVE LARGE STAKE IN POST 1937 WORLD. CONGRESS CAN LEGISLATE ON BASIS OF SINGLE NATIONAL MARKET. 3. FEDERALISM = DOCTRINE OF UNCERTAINTY.

CITIZENS NEED TO KNOW WHICH GOVT IS ACCOUNTABLE. NORMALLY POLITICAL. HERE EDUCATION = STATE CONCERN. STATE = LABARATORY THOMAS C 1. ALL AGREE LIMITS AND NO FED POLICE POWER 2. FF IC NOT MANUFACTURING AND FARMING. REEXAMINE SUBSTANTIALLY AFFECTS CREATED IN 1937. 3. REMOVED FOOTNOTE - PROBABLY ALL TOO VESTED IN STARE DECISIS. 60 YEARS OF RELIANCE STEVENS D

FUTURE DEPENDS ON EDUCATION. GUNS ARE ARTICLES OF COMMERCE. SOUTER D 1. RATIONAL BASIS FOR SUBSTANTIALLY AFFECTS. THEN REASONABLE MEANS TO END. 2. DEFER CONGRESS POLITICALLY ACCOUNTABLE. 3. DONT REQUIRE CONGRESSIONAL FINDINGS. FACT THEY PASSED THE STATUTE. BREYER + 3 D RATIONAL BASIS FOR SUBSTANTIALLY AFFECTS. STUDIES SHOW RELATION BET GUN VIOLENCE AND IC

WHY NOT DARBY PROHIBITION ? CAN LITIGATORS MAKE UP PURPOSE/CONNECTION ? 143 - AMENDMENTS. DRAFTING PROBLEM ? US v MORRISON (2000 - 144) WOMAN RAPED BY VIRGINIA TECH FOOTBALL PLAYERS. VIOLENCE AGAINST WOMEN ACT MOTIVATED BY GENDER FEDERAL CIVIL CAUSE. REHNQUIST 1. LOPEZ a) CRIMINAL NON ECONOMIC b) NO EXPRESS JURISDICTIONAL ELEMENT c) NO FORMAL

CONGRESSIONAL FINDINGS AND d) LINK ATTENTUATED. 3. EVEN WITH FINDINGS CANT ALLOW FEDERAL REGULATION OF EVERYTHING. FAMILY LAW AND CRIMINAL LAW STATE CONCERN. NO WHEN USING SUBSTANTIALLY AFFECTS TEST TO REGULATE NON ECONOMIC ACTIVITY. THOMAS C NO CONSTITUTIONAL BASIS FOR SUBSTANTIALLY AFFFECTS TEST. OVERRULE WICKARD SOUTER + 3 D

1. SUBSTANTIALLY AFFECTS TEST STILL VALID. HERE YEARS OF TESTIMONY. RETURN TO PRE-1937 SOCIAL DARWINISM. 2. ALL STATES AGS AND POLICE CHIEFS SUPPORTED THE STATUTE. 146. BREYER + 3 D ECONOMIC/NON-ECONOMIC WONT WORK. CHANGES IN ALL ASPECTS OF SOCIETY HAVE MADE A WORLD IN WHICH EVERYTHING SUBST AFFECTS IC GONZALES v RAICH (2005 - 149) CALIFORNIA CONSTITUTION AMENDED TO ALLOW MEDICAL

MARIJUANA. DEA CONTROLLED SUBSTANCES ACT. RAICH ARRESTED FOR GROWING 6 PLANTS DEA SEIZED. RAICH FOR DECLATORY AND INJUNCTIVE RELIEF. STEVENS + 4 (KENNEDY) 1. CSA COMPREHENSIVE SCHEME. CLEARLY WITHIN COMMERCE POWER. 2. LIKE WICKARD HERE SUBSTANTIAL AFFECT. 3. CONGRESS CAN REGULATE INTRASTATE ACTIVITIES EVEN IF NON-ECONOMIC IF FAILURE TO REGULATE IT WOULD UNDERCUT INTERSTATE REGULATION OF THAT COMMODITY (EG WHEAT)

4. 149 USSC DOESNT DETERMINE ACTUAL SUBSTANTIAL AFFECT JUST WHETHER CONGRESS HAD A RATIONAL BASIS FOR CONCLUDING SUBSTANTIAL AFFECT. 5. ENFORCEMENT DIFFICULTIES IF STATES CAN LEGALIZE. IF OUTSIDE CC FOR HOME GROWN MEDICAL, MUST BE OUTSIDE FOR HOME GROWN RECREATIONAL. USE DOESNT DETERMINE POWER. SCALIA C 1. INTRASTATE REGULATION = N AND P CLAUSE 2. COMPREHENSIVE SYSTEM OF FEDERAL

REGULATION EXTINGUISH INTERSTATE MARKET IN CONTROLLED SUBSTANCES. OCONNOR (REHNQUIST AND THOMAS) D 1. STATE AS LABS. INNOVATION. HISTORICALLY STATE SOVERIGN. COMPREHENSIVE SOMEHOW BETTER THAN PIECEMEAL. 2. NON-ECONOMIC HOME USE, NOT IN STREAM 3. IGNORED VOLUMES OF FINDINGS IN MORRISON, VALIDATE ON ESSENTIALLY NONE HERE. 4. HOMEGROWN MEDICAL MARIJUANA TOO

SMALL A CLASS TO EFFECT. GROWING WITH NO PRODUCTS MOVING THROUGH IC. STATE GOVERNMENTS ARE THE EFFECTIVE ENFORCERS OF CRIMINAL MARIJUANA LAWS 156. DOES THIS MATTER ? DEPARTMENT OF JUSTICE 2013 MEMORANDUM. WHAT ADVICE DO YOU GIVE CLIENT ? NFIB v SEBELIUS (2012 - 157) 4 OF 4 IF NOT EXEMPT, ACA REQUIRES YOU TO PURCHASE HEALTH INSURANCE. IF NOT, FINE PAYABLE TO IRS (SHARED RESPONSIBILITY PAYMENT).

ARGUMENTS FOR STATUTE ? ROBERTS 1. GOVERNMENT ALL NEED CARE AT UNPREDICTABLE TIMES. HOSPITALS DONT TURN AWAY. INSURANCE PASSES ON ABOUT $ 1,000 IN PREMIUMS PER YEAR TO COVER NON-INSURED. 2. HERE REGULATING DOING NOTHING ON GROUNDS INACTIVITY AFFECTS COMMERCE. NO EVEN WICKARED WAS ON AN ACTIVITY DID SOMETHING. CAN YOU ORDER EVERYONE TO BUY VEGETABLES ?

3. GOVERNMENT N AND P CLAUSE VALIDATES COMPREHENSIVE SYSTEM OF REGUALTION. NO MUST STILL BEGIN IN EXPLICIT ART 1 SEC 8 POWER. NOT DERIVATIVE OF ANYTHING. SCALIA + 3 (C) 1. CANT ALLOW FEDS TO REGULATE ALL PRIVATE CONDUCT. ALL HUMAN ACTIVITY INCLUDED IF HERE 2. CANT FORCE PARTICIPATION IN MARKET. GINSBURG (BREYER, SOTOMAYOR, KAGAN) 1. HUGE MARKET ALL NEED EVENTUALLY. 2. FEDS COULD HAVE ADOPTED SINGLE PAYOR

SYSTEM. POLITICS ? 3. FREE AND INEVITABLE DOESNT EXIST IN ANY OTHER MARKET NO PRECEDENT. 4. N AND P CL ESSENTIAL PART OF COMPREHENSIVE REGULATION. HANDOUT CL 5 10th AMENDMENT AS LIMIT ON COMMERCE POWER EVEN AFTER 1937 EXPANSION, EVERYONE ACKNOWLEDGED THAT THE COMMERCE POWER WAS LIMITED BY SPECIFIC CONSTITUTIONAL PROHIBITIONS (EG 1ST AND 14TH AMENDMENTS). ATTEMPT TO MAKE THE IDEA OF STATE

AUTONOMY IN THE 10TH AMENDMENT EQUIVALENT TO 1 OR 14 LIMITATION. NATIONAL LEAGUE OF CITIES v USERY (1976 - 166) 1974 AMENDMENT MAKES STATE EMPLOYEES SUBJECT TO FEDERAL MINIMUM WAGE. REHNQUIST + 4 1. CLEARLY WITHIN COMMERCE POWER TO DO. BUT 10TH AMENDMENT LIMIT FEDERAL GOVERNMENT CANT IMPAIR STATE INTEGRITY OR ABILITY TO FUNCTION. 2. 166 - 167 QUOTE. FEDERAL CONTROLLING STATES

AS STATES INTEGRAL OPERATIONS. 3. STATES NOT JUST A FACTOR IN SHIFTING ECONOMICS BUT A CO-ORDINATE ELEMENT IN THE GOVERNING STRUCTURE. BLACKMUN C 1. JOINED EVEN THOUGH NOT UNTROUBLED. BALANCING STILL FEDERAL POWER WHERE STRONG FEDERAL INTEREST (ENVIRONMENT). BRENNAN + 3 D STATES CAN PROTECT THEMSELVES IN POLITICAL PROCESS. USSC JUST ASSURING REASONABLE

FIT TO ECONOMIC ISSUE. DARBY 10TH AMENDMENT BUT A TRUISM. CONGRESSIONAL STRUCTURE PROTECTS STATES. GARCIA v SAMATA (1985 167) AFTER NATIONAL LEAGUE, SAMATA DIDNT PAY MINIMUM WAGE. DEPARTMENT OF LABOR SAID IN 1979 HAD TO PAY. GARCIA, A SAMATA EMPLOYEE, SUED FOR OVERTIME PAY. BLACKMUN 1. 167-168 - QUOTE. INTEGRAL OR TRADITIONAL TEST IS UNWORKABLE. CANT EASILY DEFINE STATE

SOVEREIGNTY. FEDERALISM INCORPORATED INTO THE STRUCTURE OF CONGRESS. REMEDY THERFORE SHOULD BE IN THE POLITICAL PROCESS. 2. NATIONAL LEAGUE IS OVERRULED. POWELL + 3 D 1. CONGRESS MEMBERS ARE FEDERAL OFFICIALS ONCE ELECTED. FEDERAL BUREAUCRACY NOT RESPONSIVE TO STATES. NEEDED MORE FEDERAL POWER TO DEAL WITH DEMANDS OF MODERN, NATIONALLY INTEGRATED ECONOMY. HERE STATES AS STATES.

REHNQUIST D 169 QUOTE. WECHSLER 1954 ARTICLE. NEW YORK v US (1992 170) LOW LEVEL RADIOACTIVE WASTE. SINCE 1979 ONLY 3 SITES IN US (4th NOW IN TEXAS). 1985 ACT WANTED STATES TO KEEP THEIR OWN WASTE. INCENTIVES: A) SURCHARGE IF NO WASTE IN SENDING STATE B) DENIAL OF ACCESS OR MORE FEES AND C) TAKE TITLE TO WASTE. OCONNOR

1. 171 HAVE POWER, JUST NOT THIS WAY. CONGRESS CANT DIRECT STATES TO REGULATE. 2. 171 - CONGRESS CANT COMMANDEER THE STATES. 3. 172 QUOTE OK IF CONDITION ON RECEIPT OF MONEY (RELATED NOT A PENALTY) OR GIVE STATES CHOICE OF REGUALTING UNDER FEDERAL STANDARDS OR PREEMPTION. A AND B THEREFORE VALID AS INCENTIVES. C - TAKE TITLE - IS THE PROBLEM. 4. VOTERS NEED TO KNOW WHO IS RESPONSIBLE

FOR ANY GIVEN PROGRAM OR DECISION. 5. NY PREVIOUS BENEFIT CANT VALIDATE UNCONST 6. C = SEVERABLE 7. NATIONAL PROBLEM DOESNT VALIDATE UNCONSTITUTIONAL MEANS. WHITE + 2 D 1. BIG CRISIS 2. STATES CREATED SYSTEM AND BEGGED CONGRESS NOT TO PREEMPT. IRONIC TO INVALIDATE ON STATE SOVEREIGNTY BASIS. 3. NY HAS REAPED BENEFITS FOR 7 YEARS.

PRINTZ v US (1997 175) BRADY BILL FIREARMS DEALER MUST TELL CHIEF LAW ENFORCEMENT OFFICER OF BUY. 5 DAY WAIT. CLEO MUST MAKE REASONABLE EFFORT TO ASCERTAIN IF SALE WOULD VIOLATE LAW. IF NO, DESTROY. SILENT IF YES. P = CLEO. SCALIA 1. NOT DEALING WITH FUNDING LEGISLATION HERE. 2. CONSTITUTIONAL SCHEME = DUAL SOVEREIGNTY. 3. CONGRESS HERE DIRECTING THE FUNCTIONING

OF THE EXECUTIVE. JUST LIKE CANT COMMANDEER LEGISLATURE (NY v US), CANT COMMANDER EXECUTIVE. WEAKENS PRESIDENT IF CONGRESS GETS STATES TO ENFORCE. STEVENS + 3 D 1. FEDERALISM PROTECTIONS BUILT INTO POLITICAL PROCESS. 2. HISTORY STATE OFFICIALS TO COLLECT FEDERAL TAXES. BY DENYING USE OF STATE OFFICIALS, ENSURE THAT THE FEDERAL BUREAUCRACY WILL GROW. STATE EXECUTIVE ENFORCES LAW.

ALDEN v MAINE (1999 181) FAIR LABOR STANDARDS ACT AUTHORIZED SUITS IN STATE COURTS (STATE MUST WAIVE SOVERIGN IMM) CONGRESS CANT COMMANDEER STATE JUDICIARY EITHER. FEDERAL GOVERNMENT CANT ORDER STATE COURTS TO HEAR CERTAIN CASES. 11TH AMENDMENT AS LIMIT ON COMMERCE POWER ANY CITIZEN OF ANOTHER STATE CANNOT SUE A STATE IN FEDERAL COURT. JUDICIALLY INTERPRETED TO BAN ANY CITIZEN FROM SUING HOME STATE ALSO EX PARTE YOUNG (1908 144)

FEDERAL COURTS CAN ENFORCE AN INJUNCTION AGAINST A STATE OFFICIAL WHO SOUGHT TO ENFORCE AN UNCONSTITUTIONAL STATE LAW. SEMINOLE TRIBE v FLORIDA (1996 144) INDIAN GAMING ACT ONLY ALLOW GAMBLING WHEN TRIBE HAS VALID COMPACT WITH STATE. DUTY ON STATE TO NEGOTIATE IN GOOD FAITH. ACT ALLOWED TRIBE TO SUE IN FEDERAL COURT 1. IRRELEVANT THAT LAWSUIT IS FOR PROSPECTIVE INJUNCTION RATHER THAN RETROACTIVE $$. DEFENDANT IS STATE ITSELF, NOT AN INDIVIDUAL

OFFICIAL. 2. STATUTES BASED ON 14TH AMENDMENT CAN SUBORDINATE 11TH AMENDMENT BECAUSE 14TH LATER IN TIME. NOT TRUE FOR COMMERCE CLAUSE ART 1, SEC 8 BEFORE 11TH AMENDMENT. STEVENS D UNSOUND. INDIAN GAMBLING SMALL ISSUE NOW QUESTION BANKRUTCY, ENVIRONMENTAL AND A HOST OF ECONOMIC LEGISLATION. SOUTER + 3 PLAIN STATEMENT TO OVERRULE IS ENOUGH. POLITICAL

SAFEGUARDS FOR FEDERALISM. MODERN INDIVIDUAL CITIZEN CANT SUE STATE IN FEDERAL COURT UNLESS: 1. CAUSE OF ACTION BASED ON LATER AMENDMENT IN TIME (BARRED IF COMMERCE CLAUSE). 2. PLAINTIFF ASKING FOR PROSPECTIVE INJUNCTION AGAINST STATE OFFICIAL (CONSTITUTION OR LAW) 3. DEFENDANT IS A POLITICALLY INDEPENDENT SUBUNIT OF STATE (EG CAN BE COUNTY, SCHOOL BOARD STATE NOT ULTIMATELY PAYING) UNITED STATES = PLAINTIFF (NOT CITIZEN) - VALID

INDIVIDUAL P v STATE: 1. FEDERAL COURT = 11TH AMENDMENT 2. STATE COURT = SOVEREIGN IMMUNITY (DID STATE CONSENT TO BE SUED) 3. ALDEN v MAINE CONGRESS TRYING TO ORDER STATE TO WAIVE SOVEREIGN IMMUNITY NO VIOLATES 10TH AMENDMENT (COMMANDEERING). ANTI-FEDERAL POWER : 1. COMMERCE CLAUSE LOPEZ, MORRISON,SEBLIUS 2. 10TH AMENDMENT NO COMMANDEERING 3. 11TH AMENDMENT LIMITS ON PRIVATE LAWSUIT AGAINST STATE IN FEDERAL COURT

COMMERCE CLAUSE AND RACIAL DISCRIMINATION CIVIL RIGHTS ACT OF 1964 (132): CANT DISCRIMINATE ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN IF A PLACE OF PUBLIC ACCOMODATION. 1. INN, HOTEL, MOTEL OR LODGING (UNLESS 5 OR FEWER ROOMS) 2. RESTAURANT OR GAS IF SERVES INTERSTATE TRAVELERS OR SUBSTANTIAL PORTION OF PRODUCT MOVED IN INTERSTATE COMMERCE. 3. MOVIE THEATER, CONCERT HALL OR ATHLETIC

FACILITY IF PERFORMERS OR MOVIES MOVED IC. 4. COVERED ESTABLISHMENT WITHIN THE PRESENCE OF OR IN WHICH ONE IS LOCATED. PRIVATE CLUB EXCEPTION. DEBATE ON SOURCE 14TH AMENDMENT OR COMMERCE CLAUSE. WORRIED ABOUT STATE ACTION PROBLEM WANTED TO REACH PRIVATE. HEART OF ATLANTA v US (1964 133) 216 ROOMS BLOCKS FROM PEACHTREE STREET. NATIONAL ADVERSTISING (MEDIA, BILLBOARDS) AND 75% OUT OF STATE.

1. DONT CONSIDER 14th AMENDMENT EVEN THOUGH CITED. COMMERCE CLAUSE ENOUGH 2. HEARING REPLETE WITH BURDEN ON COMMERCE ESPECIALLY HOTELS AND MOTELS. 3. 133 QUOTE. NATIONAL INTEREST OR SUBSTANTIAL EFFECT ON COMMERCE. CONGRESS FREQUENTLY USES COMMERCE CLAUSE TO LEGISLATE ON MORALITY. KATZENBACH v MCCLUNG (1964 133) OLLIES BARBECUE IN BIRMINGHAM. SEATING 220

PRIOR YEAR, BOUGHT $ 150,000 OF FOOD 46% FROM LOCAL SUPPLIER WHO BOUGHT OUT OF STATE. 1. BURDEN ON COMMERCE FEWER CUSTOMERS (NO BLACKS) MEANS LESS FOOD BOUGHT. ALSO RESTRICTS INTERSTATE TRAVEL BY BLACKS. 2. REVERSE DC HOLDING OF NO CONNECTION BETWEEN RACIAL DISCRIM AND IC. NO NEED DIRECT CORRELATION BETWEEN DISCRIMINATION AND FOOD MOVEMENT. 3. EVEN IF $ 70,000 IS INSIGNIFICANT HYPO. MULTIPLIER FROM WICKARD. EVEN IF LOCAL, FEDERAL CONTROL IF SUBSTANTIAL EFFECT ON IC.

BLACK C AGGREGATE EFFECT HERE. ISOLATED RESTAURANT WHICH BUYS AND SELLS LOCALLY MAY BE BEYOND FEDERAL POWER. DOUGLAS C HUMAN RIGHTS SHOULD BE 14TH AMEND. DANIEL v PAUL (1969 - 135) 232 ACRE LAKE NIXON. SNACK BAR BRINGS IN WHOLE PARK. ALSO ADVERTISING NATIONALLY. PADDLE BOATS AND JUKE BOXES MOVED IN IC.

PEREZ v US (1971 - 135) FEDERAL CRIME TO ENGAGE IN EXTORTIONATE CREDIT TRANSACTIONS LOANSHARKING. DIRECTLY AFFECTS IC. UNDER FEDERAL POWER EVEN IF INTRASTATE. CONGRESSIONAL FINDINGS OF MAJOR SOURCE OF INCOME FOR ORGANIZED CRIME. DORMANT COMMERCE CLAUSE CL 6 NO FEDERAL STATUTE ON POINT. INVALIDATION OF STATE LAW BECAUSE IT INTERFERES WITH IC. TEXT DOESNT SAY STATES CANT NEGATIVE IMPLICATION IN ARTICLES OF CONFEDERATION, MAJOR

PROBLEM WAS TRADE WARS. CLEAR DESIRE AMONG FF TO STOP. PHILADELPHIA v NEW JERSEY (1978 - 185) NJ LAW BANNING IMPORTATION OF SOLID WASTE FROM OTHER STATES INTO NJ LANDFILLS STEWART 1. SIMPLE ECONOMIC PROTECTIONISM IS PER SE ILLEGAL. 2. NJ HEALTH LAW. 234 - QUOTE. CANT SLOW OR FREEZE IC FOR PROTECTIONIST PURPOSES. 3. QUARANTINE LAWS STILL VALID BUT MUST SHOW

GOODS THEMSELVES DANGEROUS. NO CLAIM THAT MOVEMENT IS DANGEROUS. 4. NATIONAL MARKET BEST PROTECTION FOR ALL. NJ WILL BENEFIT AT SOME POINT. REHNQUIST (D) QUARATINE CASES CONTROL. LANDFILLS HAVE SAFETY, HEALTH AND ENVIRONMENTAL IMPACT. BALANCING SOME JUSTICES DENY. KASSEL v CONSOLIDATE FREIGHTWAYS (1981 - 265) IOWA MANDATES 55 FOOT MAX ON DOUBLES, PROHIBITS 65 FOOT DOUBLES ALLOWED BY EVERYONE ELSE

POWELL 1. 266 - DC FOUND NO SAFETY BENEFIT IN SMALLER. IOWA INCONSISTENT WITH ALL OTHER STATES. MAY BE LESS SAFE MORE TRUCKS ON ROAD. SAFETY BENEFIT SMALL, IC BURDEN GREAT. INVALID 2. SOME EVIDENCE IOWA TRYING TO REDUCE AMOUNT OF INTERSTATE TRAFFIC. 267 - LOCAL EXEMPTIONS. BRENNAN (C) 268 - BALANCE STATE BENEFITS WITH BURDEN ON IC. PIKE v BRUCE CHURCH (1970 263-264)

BALANCING QUOTE. CTS v DYNAMICS CORP (1987 - 272) INVALID IF SUBJECTING INTERSTATE COMMERCE TO INCONSISTENT STATE REGULATION. MARKET PARTICIPANT EXCEPTION STATE RUNNING BUSINESS ON PROVIDING $$. PRIVILEGES AND IMMUNITIES ART 4, SEC 2. 1. FUNDAMENTAL RIGHT WORKERS ON PUBLIC PROJECTS. NO UNDER DORMANT CC MARKET PARTICIPANT. 2. NOT ABSOLUTE OK IF SUBSTANTIAL REASON

3. NO MARKET PARTICIPANT EXCEPTION FEDERAL PREEMPTION OF STATE AUTHORITY CONGRESS EXERCISING POWER (STATUTE) CLEAR THAT SUPREMACY CLAUSE INVALIDATES CONFLICTING STATE LAW. BUT MAY NOT PREEMPT ENTIRE FIELD QUESTION OF CONGRESSIONAL INTENT. POWER HOW WIELD IT ? PG&E v STATE ENERGY (1983 - 281) ATOMIC ENERGY ACT. NUCLEAR REACTORS PROBLEM OF DISPOSABLE OF NUCLEAR RODS. PROPOSED NEW REACTOR IN CALIFORNIAS DIABLO CANYON STATE HAS MORATORIUM ON BUILDING.

WHITE 1. 282-283 - QUOTE EXPLICIT FULL EXPLICIT PARTIAL IMPLICIT FULL IMPLICIT PARTIAL 2. APPLICATION - 284 QUOTE - FEDERAL KEPT CONTROL OVER NUCLEAR MATERIAL, ITS HANDLING AND TRANSPORT AND SAFETY. STATE KEEPS

CONTROL OVER ELECTRICITY, RATES, ECONOMIC VIABILITY, NEED FOR NEW. THERFORE STATES CANNOT ACT ON SAFETY. 3. ACCEPT ECONOMIC NO PERMANENT DISPOSAL COULD MEAN HIGH COSTS. 284-285 QUOTE. USSC DOESNT NEED TO ASCERTAIN TRUE MOTIVE. 286 QUOTE - 1947 VERSION 287 QUOTE - 1941 IMPLIED VERSION WYETH v LEVINE (2009 - 288) DRUG LABEL COMPLIED WITH FDA. STATE TORT LAW REQUIRED MORE STRINGENT WARNING AND

ALLOWED TORT SUIT IF NOT. STEVENS 6 3 (NO PREEMPTION STATE VALID) 1. FEDS ARGUE IMPLIED COMPLETE PREEMPTION CASE. IMPOSSIBLITY A HARD ARGUMENT CAN COMPLY WITH BOTH. 2. STRONGER STATE WARNING DOES NOT OBSTRUCT THE PURPOSES AND OBJECTIVES. THOMAS DOESNT LIKE ANY IMPLIED PREEMP ALITO + 2 (D) STATE TORT LAW DOES COUNTERMAND FDAS JUDGEMENT. AGENCY WITH EXPERTISE HAS

CONCLUDED DRUG IS SAFE AND LABEL SUFFICIENT. CROSBY v NATIONAL TRADE (2000 - 289) MASSACHUSSETS LAW BANNING ALL TRADE WITH MYANMAR (BURMA). PRESIDENT WITH CONGRESSIONAL SUPPORT HAD A LIMITED TRADE BAN. 1. COMMON END CANNOT JUSTIFY CONFLICTING MEANS. 2. IMPLIED COMPLETE PREEMPTION INTEND PRESIDENT TO HAVE FULL CONTROL OF THIS ASPECT OF FOREIGN RELATIONS.

PREEMPTION CL 7 4 POSSIBILITIES IF FEDERAL STATUTE, QUESTION OF POWER (USUALLY COMMERCE CLAUSE) AND 10TH AMENDMENT (FEDS CANT COMMANDEER). IF STATE STATUTE, PREEMPTION IF RELEVANT FEDERAL STATUTE, DORMANT COMMERCE CLAUSE IF NO FEDERAL STATUTE . 11TH A, TAXING AND SPENDING CL 8

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