Con Law Flashcards
- Requirements:
o Federal cases must involve a case or controversy
o Requirement of standing as a prerequisite to file a case in the federal system
o Political question doctrine
- Marbury v. Madison (SCOTUS, 1803)
o Unanimous decision – Marshall, Paterson, Chase, & Washington (other two were out)
o Opinion by Marshall
o Facts
* Adams: Federalist; Jefferson: Democratic-Republican
* Adams admin passed the Judiciary Act of 1801 (midnight judges act) which created new judgeships
* President Adams named justices of peace to the DC courts before the next presidential election, which he lost to Thomas Jefferson
* Senate consented to appointments
* Judicial commissions had to be delivered by Secretary of State James Marshall but he did not deliver them all before Adams stepped down
* William Marbury and other judges chosen by Adams sued the Jefferson admin, asking for the new secretary of state (James Madison) to give them their positions
Jefferson told Madison not to deliver the commissions
* President John Adams (a federalist) was defeated in the 1800 election by Thomas Jefferson (a republican). Adams’ secretary of state was John Marshall, who was also the chief justice. John Marshall wrote the Marbury opinion. James Madison, Jefferson’s secretary of state was the named defendant in the case. William Marbury was nominated as DC Justice of the Peace and didn’t get his Commission (from Madison through brother James). James Marshall is the brother of John Marshall who delivered the commissions
* Writ of mandamus – court ordering them to give Marbury his commission so he can be a judge
Claim to the court for Secretary Madison to, through a writ of mandamus, issue the order to make sure Marbury gets his commission
o Procedure
* Section 13 of the Judiciary Act of 1789 allowed court original jurisdiction to issue writ of mandamus
* Marbury sued Madison in SCOTUS under original jurisdiction
o Rule
* Judicial review – The Supreme Court of the United States has the authority to review laws and legislative acts to determine whether they comply with the United States Constitution.
“It is emphatically the province and duty of the judicial department to say what the law is”
o Application
* Marshall said Marbury was lawfully appointed and confirmed and had a right to his commission
* If applicant has a right, do the laws afford him a remedy?
If he is just an organ of the president, he cannot be examined by the courts. If the legislature imposes duties upon him, then he is amenable to the laws
where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy
That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the laws of his country afford him a remedy
* A writ of mandamus is the proper remedy for Marbury
* This case was in the SCOTUS under original jurisdiction.
* The problem here is the power of this court. The court does not have the power to issue this writ.
The constitution does not give Marbury original jurisdiction. Congress tried to give him original jurisdiction but that was beyond its powers and was unconstitutional.
* Constitution governs over any statute
* Our government is one of enumerated powers. Congress can’t act unless it is given the power to act.
* Marshall did not have to decide this case in this way by establishing judicial review.
Other options:
* Recusal (when family members were involved)
* It was John Marshall’s brother who was delivering the commissions
* Common law
* Court could have decided that the commission vests when it is delivered, not when it is signed; so, Marbury had no right to his commission because it wasn’t delivered.
* Political question
* Court hears legal questions but it does not hear political questions
* Court could have said this is a political question that the court cannot hear
* Statutory construction
* Statute does not give jurisdiction, so court doesn’t have jurisdiction here.
* Court could read the statute to say the statute doesn’t give jurisdiction to hear this case
* Constitutional interpretation
* Court could say congress has the power to add original jurisdiction items
* Court refused to issue the writ, arguing that the section of the Judiciary Act of 1789 was unconstitutional (the provision allowing original jurisdiction to issue writ of mandamus)
Conflicted with article III of constitution which lays out original jurisdiction of SCOTUS
* Article III only allows congress to pass laws related to court’s appellate jurisdiction
* Judiciary Act of 1789 was unconstitutional because it sought to expand the Supreme Court’s original jurisdiction beyond that granted by the constitution
o Conclusion
* Court said it did not have jurisdiction over Marbury’s claim
* Madison wins this case.
- Roe v. Wade, 410 U.S. 113 (1973)
Woman seeking abortion gave birth before case reached supreme court
“Moot” cases are dismissed when they are no longer an active case or controversy
Court allowed the case to proceed because the issue of pregnancy was “capable of repetition, yet evading review”
- United Public Workers v. Mitchell
Plaintiffs ask for a judgment that a law limiting federal government employees’ involvement in political campaigns is illegal because it might harm them in the future
Cases must be “ripe” if they are to be heard in court
case could not proceed until the issue was ripe
* Issue was not ripe because injury had not yet occurred
- Congress asks the Supreme Court to give them a ruling on whether a law it is considering is constitutional
Court must hear live cases and controversies. It is not allowed to write essays about theoretical laws. Such an essay would be an advisory opinion
Courts do not write advisory opinions.
- Allen v. Wright
Parents of Black public school children sue the Internal Revenue Service for its lax policies that are being employed to grant tax-exempt status to racially discriminatory private schools.
the Court said that the plaintiff parents did not have “standing” to bring the case
* This injury is not direct enough. You can’t say that what the IRS did was directly influencing these parents.
every person in court must have standing
- Reynolds v. Sims
Voters arguing over the result of an election allege that results are determined by district, not individual votes
Is this a political question? Court said no and heard the case.
The Court heard this case, ruling the election must be decided by the count of individual voters, not by unequal district size vote. “One person, one vote” means the individuals’ votes must be counted, and that unequal size districts could not get equal votes
- Martin v. Hunter’s Lessee, 14 U.S. 304 (1816)
Court ruled that property owned by Loyalists to Britain should be returned to Virginia ownership
Virginia argued that the Supreme Court should have nothing to say to them about this Virginia decision about Virginia law
Supreme Court ruled that the federal courts have power to review state court decisions about federal law or the Constitution
Why? –>
* It also ensures uniformity of decisions throughout the whole United States upon all constitutional subjects.
* Whenever there is a federal constitutional issue, supreme court gets to review it and gets the last word on it.
- Cohens v. Virginia
Cohen brothers sold DC lottery tickets in the State of Virginia and violated Virginia criminal law
state courts ruled they had the final authority over the Cohens’s conviction
Supreme Court unanimously ruled that the federal courts had power to review state criminal proceedings. Federal courts could review any state laws and constitutions and decisions and decide whether they violate the federal constitution. The Supreme Court upheld the rulings of the Virginia court
Why? –>
* Here, this Court has jurisdiction to review the Virginia Supreme Court’s decision in the case against the Cohens because a federal law is involved. This is true even though one of the parties to the case is a state.
- Justiciability
what the courts can hear and what the courts can’t here
o There are some cases the court won’t take or won’t hear because people don’t have standing
o Constitution lets the courts hear “cases and controversies”
* So you can only get into court if you have standing
- Standing is always required to sue. Three elements:
o Injury
o Causation
* Injury must have been caused by the defendant
o Redressability
* Injury must be redressable by the decision of this court
- Allen v. Wright (SCOTUS, 1984)
o 5-3 decision for Allen
* Yes: burger, white, powell, Rehnquist, o’connor
* No: brennan, Blackmun, stevens
o Facts
* The Wright family and other parents of African American public school children (plaintiffs), brought a nationwide class action suit against the Secretary of the Treasury and the Commissioner of Internal Revenue at the Internal Revenue Service (IRS) (defendants).
* Allen (defendant), the head of a private school identified in the complaint, intervened as a defendant.
* The parents argued that the failure of the IRS to deny tax-exempt status to racially-segregated private schools caused injury to their children on two grounds.
Firstly, the parents alleged that the IRS’s failure to comply with desegregation laws caused them direct harm by creating a climate of stigma against their children.
Secondly, the parents alleged that their children’s ability to attend a desegregated school had been directly impaired because the IRS’s failure to remove private schools’ tax-exempt status effectively encouraged the continued segregation of schools.
* Lee (government lawyer): this suit is against the revenue collector and not against the discriminator
Is this a case about attending school? Or taxation of school?
o Rule
* To have standing to bring a lawsuit, plaintiffs must sufficiently allege that they have personally suffered a distinct injury, and the chain of causation linking that injury to the actions of a defendant must not be attenuated.
o Application – O’Connor
* Stevens: Is this case about cash or a tax exemption?
Is this about the government giving tax to a school? Or giving a school a tax exemption? These are two different things.
* Kapp (parents’ lawyer): Grant of assistance (the tax exemption) is the legal equivalent of operating that school; it sends a signal of government approval of that school
* O’Connor: Can everybody sue? I’m trying to pin it down and I can’t.
* Respondents allege that the challenged Government conduct harms them in two ways
federal financial aid and other support for racially segregated educational institutions
fosters and encourages the organization, operation and expansion of institutions providing racially segregated educational opportunities for white children avoiding attendance
* If the abstract stigmatic injury were cognizable, standing would extend nationwide
A black person in Hawaii could challenge the grant of a tax exemption to a racially dis-criminatory school in Maine
* It is always insufficient for standing purposes to simply allege that the government has acted outside of compliance with the law.
* Moreover, it is entirely speculative, as respondents themselves conceded whether withdrawal of a tax exemption from any particular school would lead the school to change its policies.
* Additionally, the parents do not have standing to sue on their second claim because the chain of causation linking the alleged inability of their children to attend a desegregated school to the specific actions of the IRS is too attenuated.
There is no evidence that if the IRS actually withheld tax-exempt status from these schools that the segregating policies would change.
* Hearing this case would require the Court to overstep its constitutionally-prescribed bounds as the judicial branch of the federal government.
Carried to its logical end, [respondents’ ] approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; such a role is appropriate for the Congress acting through its committees and the ‘power of the purse’; it is not the role of the judiciary, absent actual present or immediately threatened injury result-ing from unlawful governmental action
o Conclusion
* The judgment of the court of appeals, granting standing to the parents, is reversed.
o Brennan dissent
* The children are being denied the opportunity to attend desegregated schools. The allegation of this injury is enough to grant the parents standing.
* the elimination of tax-exempt status for racially discriminatory private schools would serve to lessen the impact that those institutions have in defeating efforts to desegregate the public schools
* Should we talk about standing? Or just evaluate the case based on the merits? This is a debate in every case where standing is mentioned
o Stevens Dissent
* The parents alleged a sufficiently personal injury to justify upholding their standing.
* Additionally, the parents alleged sufficient causation between the actions of the IRS and the injury suffered by their children because the effect of the IRS’s actions was to subsidize “white flight” to private schools with segregating policies.
o Oral argument
* Stevens: if these people had applied for admission to the school you represent and been denied admission, do you think they’d have standing?
Defense: They would have standing under Runyon versus McCrary to bring a direct action against that school.
Stevens: Would they have standing against the IRS?
* Defense: No
* Stevens:
* Then that’s really irrelevant, isn’t it? The fact that they didn’t apply to your school has nothing to do with this case?
* O’Connor: Mr. Kapp, I suppose in the complaint below two different types of injuries were alleged, I think: first, the pure stigma injury; second was the reliance on diminished ability to obtain a desegregated public school education.
Kapp: Basically, the injury in the case as we see it is the same as the injury in Brown, as that injury was elaborated upon in Green versus New Kent County Schools. It’s the Government participation in the denial of the right of school children to attend a desegregated public school system.
Kapp: It may stigmatize all white citizens as well.
* O’Connor: Do all those people have a cause of action, then, under your theory?
* Kapp: No, they do not, Your Honor.
* Rehnquist: Mr. Kapp, if you are correct that the Government grant of a tax exemption to a school such as Briarcrest is equivalent to the Government in effect operating the school, wouldn’t that line of reasoning carry you over to say that if the Government grants a tax exemption to a church it’s tantamount to the Government operating the church and therefore would be barred under the First Amendment?
o Notes
* Standing is supposed to be a question of “justiciability,” which determines only whether courts have jurisdiction to hear a case. It is not a ruling on the merits of the case
Many people argue, however, that the Court is actually making a decision on the merits when it decides to dismiss a case for standing
- Lujan v. Defenders of Wildlife (SCOTUS, 1992)
o Facts
* Section 7(a)(2) of the Endangered Species Act of 1973 (ESA), as amended 16 U.S.C. § 1531 et seq., requires federal agencies to consult with the Secretary of the Interior or Commerce before undertaking actions that might jeopardize endangered or threatened species.
The ESA provides that any person may initiate a civil suit on her own behalf to enjoin anyone, including governmental entities, from violating the ESA.
* But the citizen suit provision does not establish that there is an injury to any person.
* The act’s provision just creates a procedural injury
* In 1978, the Secretaries promulgated a joint regulation stating that the ESA consultation requirement extended to federal actions taken in foreign nations. A new joint regulation limiting the geographic scope to the United States and the high seas was proposed in 1983 and adopted in 1986.
Plaintiffs wanted another interpretation for broader coverage
* Organizations dedicated to the protection of wildlife (plaintiffs) sued the Secretary of the Interior, Lujan (Secretary) (defendant), seeking a declaratory judgment that the new regulation’s interpretation was wrong and an injunction requiring the Secretary to restore the initial interpretation of the geographic scope of the statute.
* The plaintiffs argued they were injured because a lack of consultation for governmental activities abroad increases the rate of extinction of endangered species.
o Rule
* We have consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.
* Under Article III of the Constitution, a party does not have standing to litigate a generalized grievance against the government in federal court if she suffered no personal injury other than the harm suffered by all citizens.
* “An injury to all is an injury to none”
o Application – Justice Scalia (+ Rehnquist, Kennedy, Souter, Thomas, White)
* Standing under Article III of the Constitution contains three elements.
First, a plaintiff must have suffered an actual injury.
* An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized…and (b) actual or imminent,” not conjectural or hypothetical
Second, the plaintiff must show a causal link between the harm and the conduct at issue.
* This means that the injury is “fairly traceable to the challenged action…and not the result of the independent action of some third party.”
Third, it must be probable (not just speculative) that a favorable verdict will redress the harm.
The burden is on the plaintiff to demonstrate these elements.
* Here, the plaintiffs failed to show that threats to endangered species cause them imminent injury.
Their theories regarding an ecosystem, animal, or vocational nexus justifying standing for individuals who want to study, see, or work with such animals are too speculative.
* The first, inelegantly styled “ecosystem nexus,” proposes that any person who uses any part of a “contiguous ecosystem” adversely affected by a funded activity has standing even if the activity is located a great distance away
* Respondents’ other theories are called, alas, the “animal nexus” approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing;
* and the “vocational nexus” approach, under which anyone with a professional interest in such animals can sue.
* The plaintiffs also failed to show how a favorable outcome would redress their alleged injury.
Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents’ alleged injury unless the funding agencies were bound by the Secretary’s regulation, which is very much an open question
* Additionally, the plaintiffs have not suffered a “procedural injury” that justifies standing under the citizen-suit provision of the ESA.
The plaintiffs are suing over a generally available complaint about the government, not seeking to enforce a procedural requirement that protects a separate, concrete interest.
o Conclusion
* Accordingly, the decision of the court of appeals is reversed.
o Kennedy concurrence (+ Souter)
* Kennedy says he disagrees with the plurality’s decision on redressability.
* Kennedy says there wasn’t any injury, so why are we talking about redressability?
* Additionally, “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.”
Congress has not done this with citizen-suit provision of the ESA, as the provision does not specifically “identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to sue.”
o Stevens Concurrence
* it is not clear that Congress meant for the consultation requirement of the ESA to apply to federal government activities in foreign nations.
* I do not, however agree with the Court’s conclusion that respondents lack standing because the threatened injury to their interest in protecting the environment and studying endangered species is not “imminent.”
* Nor do I agree with the plurality’s additional conclusion that respondents’ injury is not “redressable” in this litigation
o Blackmun and O’Connor dissent
* Additionally, the Court’s general rejection of standing for plaintiffs with “procedural” injuries is too broad and may interfere with or limit the constitutional authority of Congress to allow citizen-suits in federal court.
* By requiring a “description of concrete plans” or “specification of when the some day [for a return visit] will be,” the Court, in my view, demands what is likely an empty formality
* This is a slash and burn expedition through the law of environmental standing.
* In my view, “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison
Marbury is a situation where someone should have a right, which is prescribed by statute, but here, the court has denied this right.
The plaintiffs should be able to get in here, but the majority is denying that.
o Oral arguments
* So this case… respondent’s standing would depend entirely on the ability to establish that two members that the court of appeals focused on had standing in their own right. And those two members fail each step. These two are Joyce Kelly and Amy Skilbred.
o Justice Rehnquist says these two women have no plane ticket and no plan
o Kelly: All she says was that I will suffer harm.
Stevens: Supposing the injury is she won’t be able to see any more crocodiles. She likes to look at crocodiles or make studies of them. Is that an injury that’s cognizable?
* Kneedler: It is the sort of injury, yes, that would be cognizable under the act.
o Skilbred: She’s brought this suit to challenge an interpretive regulation… or the respondent organizations have.
* Scalia: the court “spun its wheels”
* Scalia: Indiana or New York? Why is this any different?
If an Indianan knows that Indiana precedent will be respected in New York, can they go to NY to file the lawsuit? Attorney says no. Scalia asks why this is any different?
* Rehnquist: “You are pressing the outer envelope of standing.”
* Scalia: If the Interior Department had not issued these regulations, one of the points made by the Government is there’s… there’s nothing to show that the agencies, themselves, would not have adopted the position taken in the regulation. In which case they would not consult, in which case you’d have the same result you have here.
o O’Neill: correct
o Scalia: if that’s a correct statement, then you haven’t met one of the conditions for standing, is… which is that the injury you complain about would not occur if the relief you were given is accorded.
* Scalia: we can strike down this regulation and we don’t know that the obstacle will be eliminated.
* White: Do you think just any person in the… any citizen in the country could bring this suit?
o O’Neill: Yes.
White: So everyone has standing?
o Mass. v. EPA (SCOTUS, 2007)
o 5-4 decision for Mass.
* Yes: Stevens, Kennedy, Souter, Ginsburg, Breyer
* No: Roberts, Scalia, Thomas, Alito
o Facts
* After the Environmental Protection Agency (EPA) (defendant) declined several private petitions to issue regulations governing greenhouse-gas emissions from new automobiles, a group of states (including Massachusetts) (plaintiffs) brought suit against the EPA seeking declaratory relief on the issue of whether the EPA had the statutory authority to regulate greenhouse-gas emissions under the Clean Air Act; and if so, whether its stated reasons for refusing to do so were consistent with the Clean Air Act.
* Massachusetts alleged, among other things, that the EPA’s failure to regulate these emissions would ultimately result in loss of its coastal lands due to increased global warming from the emissions.
* The EPA claimed that the Clean Air Act (CAA) did not authorize the agency to issue regulations to address global climate change and, moreover, that Congress had not yet finished investigating the scientific merits of climate change.
* The EPA further argued that it was not wise to regulate such emissions at that time.
o Rule
* (1) For standing to be appropriate, an actual case or controversy must be present, which is characterized by a truly adversarial relationship.
o Application – Justice Stevens
* (1) For standing to be appropriate, must an actual case or controversy be present, characterized by a truly adversarial relationship?
Yes. For standing to be appropriate, an actual case or controversy must be present, which is characterized by a truly adversarial relationship.
A plaintiff can show the existence of a truly adversarial relationship by demonstrating that he has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision would redress that injury.
In a class-action suit, only one member of a class of petitioners must meet the required elements of standing to sufficiently demonstrate an adversarial relationship.
Here, Massachusetts adequately met these requirements and standing is thus appropriate.
Although it is unusual for a state to have standing to bring suit in federal court, Congress made no other provision for states to sue the EPA for failing to regulate greenhouse-gas emissions according to its Clean Air Act obligations.
Massachusetts already showed the existence of a concrete and particularized injury because it is well documented that exposure to greenhouse-gas emissions would further exacerbate the problem of global warming and would ultimately cause Massachusetts to lose coastal lands.
Additionally, there is sufficient causation between the EPA’s failure to regulate greenhouse-gas emissions and this injury, as the lack of regulations contributes to the problem of environmental damage from greenhouse gases.
Finally, although the impact would be small in light of the global problem of greenhouse-gas emissions, the EPA’s regulation of domestic emissions would, in fact, have an impact on decreasing the amount of emissions in the environment and thus reducing the amount of environmental damage to Massachusetts.
o Conclusion
* The judgment of the court of appeals (in favor of EPA) is reversed, and the matter is remanded for further proceedings.
o Scalia dissent (+Roberts, Thomas, Alito)
* The EPA already determined that it is scientifically impossible to make a determination about regulation of greenhouse gases. The judiciary should give deference to the judgment of the agency on regulations.
o Roberts dissent* (+Scalia, thomas, Alito)*
* The majority notes how it is uncommon for states to be given standing to litigate in federal courts. The majority’s mention of this fact could only be interpreted as an admission that Massachusetts would not have standing without a special court-granted exception.
* Moreover, Massachusetts does not meet the required elements of an adversarial relationship as it is not able to allege a concrete and personalized injury. Any injury to coastal lands would necessarily be felt by the population as a whole and not by individuals.
* Additionally, there is a lack of causation between the EPA’s failure to regulate and the greenhouse-gas emissions, as the scope of the Clean Air Act is so small that even if the EPA does meet its statutory obligations, it would have little impact on the overall environmental problem of global warming.
It is all pure conjecture
* Finally, there is a lack of redressability in finding for Massachusetts, because requiring the EPA to regulate domestic emissions under the Clean Air Act would do little to combat the overall problem of significant overseas emissions.
o Argument over: Can you really lose the coastline?
o Oral argument
* Scalia: I thought that the standing requires imminent harm. If you haven’t been harmed already, you have to show the harm is imminent.
o Milkey: We have shown that the sea levels are already occurring from the current amounts of greenhouse gases in the air, and that means it is only going to get worse
o Scalia: there’s something of a consensus on warming, but not a consensus on how much of that is attributable to human activity.
* Kennedy: Suppose there were a big landowner that owned lots of coastline. Would he have the same standing that you do or do you have some special standing as a State, and if so what is the case which would demonstrate that?
o Milkey: state has special standing
* Breyer: Let’s say only 1 in 30 or 50 or 1000 or 10000 would be affected. Is there standing? But even one individual will be affected
* Chevron deference case: When a statute is ambiguous, the court defers to the agency’s interpretation of it.
- Lexmark International v. Static Control Components
Rule: A plaintiff has standing to sue for false advertising under the Lanham Act if the plaintiff’s zone of interests is within those protected by the Lanham Act and the plaintiff’s injuries are proximately caused by the defendant’s violation of the statute.
- Acheson Hotels LLC v. Laufer
o Unanimous current court
o Deborah Laufer sued hundreds of hotels for not stating whether they had disabled-access rooms. She is not planning to stay at all those hotels. Some hotels settled the cases, but others opposed them, saying she had no injury because she was not planning to stay there.
o The circuit courts split on whether she had standing, and the Supreme Court granted cert.
* 3 circuits said no standing, 3 said she did.
Whenever there is a circuit split, the SCOTUS is likely to hear that case.
o Why do you think the circuits disagreed about standing?
* Then Laufer’s lawyer was suspended for defrauding hotels through lies, overcharging attorney’s fees, and paying for investigations that never took place.
* Laufer asked for her case to be dismissed as moot, but Acheson Hotels insists the Court should settle the circuit dispute about standing now, while they have a case before it.
* The Court dismissed the case as moot. (Justice Barrett)
The case has ended because plaintiff withdrew the case, so we are dismissing it as moot.
* Justice Thomas thought the case should be dismissed for lack of standing, not for mootness.
Plaintiff does not have standing, so the case would end on standing grounds.
* The majority and Justice Jackson disagreed about the reasoning of the case, with the majority vacating the judgment below and Justice Jackson saying the First Circuit’s opinion should remain in place.
- Baker v. Carr (SCOTUS, 1962)
o 6-2 decision
o Facts
* Baker (plaintiff) was a Republican living in Shelby County, Tennessee. The Tennessee Constitution required that legislative districts be redrawn every ten years to adjust for changes in population.
* Baker brought suit against Carr (defendant), Secretary of State in Tennessee, in his official capacity alleging that because Tennessee had not actually redistricted since 1901, the urban Shelby County district had ten times as many residents as did the more rural districts.
As a result, Baker argued that rural votes counted more than urban votes, and that he was thus denied equal protection of the laws.
“It takes 20 city residents to equal one farmer.”
* The State of Tennessee argued that legislative districting issues were not judicial questions but political questions, and were thus not capable of being decided by the courts based on the Constitution’s prohibition on the Court’s deciding political questions.
o Rule
* A challenge to malapportionment of state legislatures brought under the Equal Protection Clause is not a political question and is thus justiciable.
o Application – Brennan (+ Douglas, Stewart)
* the mere fact that the suit seeks protection of a political right does not mean it presents a political question
* Here, we aren’t deciding the merits yet. We are just deciding if you can get into court.
* Under Luther v. Borden, 48 U.S. 1 (1849), challenges to the malapportionment of state legislatures brought under the Guaranty Clause of the Constitution are inappropriate political questions.
Guaranty clause: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Unlike Luther, the case at bar is brought under the Equal Protection Clause
* For an issue to be a non-justiciable political question, one of six tests (listed in descending order of importance and certainty) must be satisfied:
(1) a textually demonstrable constitutional commitment of that issue to another political branch;
* Here, there is no textually-demonstrable commitment of Equal Protection issues to other branches of government.
(2) a lack of judicially discoverable and manageable standards for resolving the issue;
* Here, There are certain judicial standards already in place for adjudicating such claims
(3) an impossibility of deciding the issue without making an initial policy determination of a kind not suitable for judicial discretion;
(4) a lack of respect for the other branches of government in undertaking independent resolution of the case;
* Because Baker is an individual person suing a state government, there is no separation of powers concerns implicated.
(5) an unusual need for unquestioning adherence to a political decision already made; or
(6) the potential for embarrassment for differing pronouncements of the issue by different branches of government.
o Conclusion
* The case is remanded to the district court for consideration of the merits.
- Baker v. Carr (SCOTUS, 1962)
o 6-2 decision
o Facts
* Baker (plaintiff) was a Republican living in Shelby County, Tennessee. The Tennessee Constitution required that legislative districts be redrawn every ten years to adjust for changes in population.
* Baker brought suit against Carr (defendant), Secretary of State in Tennessee, in his official capacity alleging that because Tennessee had not actually redistricted since 1901, the urban Shelby County district had ten times as many residents as did the more rural districts.
As a result, Baker argued that rural votes counted more than urban votes, and that he was thus denied equal protection of the laws.
“It takes 20 city residents to equal one farmer.”
* The State of Tennessee argued that legislative districting issues were not judicial questions but political questions, and were thus not capable of being decided by the courts based on the Constitution’s prohibition on the Court’s deciding political questions.
o Rule
* A challenge to malapportionment of state legislatures brought under the Equal Protection Clause is not a political question and is thus justiciable.
o Application – Brennan
* the mere fact that the suit seeks protection of a political right does not mean it presents a political question
* Here, we aren’t deciding the merits yet. We are just deciding if you can get into court.
* Under Luther v. Borden, 48 U.S. 1 (1849), challenges to the malapportionment of state legislatures brought under the Guaranty Clause of the Constitution are inappropriate political questions.
Guaranty clause: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Unlike Luther, the case at bar is brought under the Equal Protection Clause
* For an issue to be a non-justiciable political question, one of six tests (listed in descending order of importance and certainty) must be satisfied:
(1) a textually demonstrable constitutional commitment of that issue to another political branch;
* Here, there is no textually-demonstrable commitment of Equal Protection issues to other branches of government.
(2) a lack of judicially discoverable and manageable standards for resolving the issue;
* Here, There are certain judicial standards already in place for adjudicating such claims
(3) an impossibility of deciding the issue without making an initial policy determination of a kind not suitable for judicial discretion;
(4) a lack of respect for the other branches of government in undertaking independent resolution of the case;
* Because Baker is an individual person suing a state government, there is no separation of powers concerns implicated.
(5) an unusual need for unquestioning adherence to a political decision already made; or
(6) the potential for embarrassment for differing pronouncements of the issue by different branches of government.
o Conclusion
* The case is remanded to the district court for consideration of the merits
* The ballot box won’t remedy this problem. The courts have to resolve it.
* Is this a case or controversy under the U.S. Constitution? Courts only hear cases or controversies.
* Youngstown Sheet & Tube v. Sawyer – Presidential powers case
When people talk about the executive, they are always talking about the steel seizure cases.
* Harlan is a formalist judge. Strict construction. Cares about precedent a lot.
* Brennan: If my arithmetic is any good, it appears Moore has a different representation– it has about 3 times the representation of another county, although it is smaller.
* Brennan is looser with interpretation and construction.
* Warren: I don’t think that we have to decide the merits on the question of republican form of govern-ment. All we have to decide is that there is jurisdiction. We have jurisdiction—no case says we do not
I would reverse solely on jurisdiction, and leave the rest of the case and the form of decree to the district court
* Stewart: This is not a so-called political question. A “political” question is a problem the determination of which the Constitution has precluded from the courts and placed in another branch of government
Baker v. Carr - concurrences & dissents
o Douglas concurrence
* The issue presented in this case deals more with the extent to which a state is allowed to weigh one citizen’s vote more heavily than another’s.
* The right to vote is inherent in the Constitution.
Each vote should count equally.
Designing legislative districts such that one vote counts more in one district than in another represents the exact kind of invidious discrimination by states that the Equal Protection Clause was designed to prohibit.
* Baker should be given a chance to prove his claim in court.
o Clark concurrence
* The disparate weight given to votes from different districts constitutes an actionable violation of the Equal Protection Clause.
* It is wrong to remand the matter to the Tennessee courts with no clear guidance as to how to proceed in granting relief, and thus the majority’s holding, while appropriate, should have gone farther.
o Stewart concurrence
* The concurring and dissenting opinions confuse the issue presented in this case as well as the holding.
* The majority makes three rulings:
that the jurisdiction is proper over the subject matter;
that Baker states a justiciable cause of action under which he should be entitled to relief; and
that Baker has standing to challenge Tennessee’s apportionment statutes.
* The holding must be narrowly and clearly defined for future jurisprudence.
o Frankfurter dissent
* The majority’s decision is not based on history or precedent, and it seriously violates judicial restraint and separation of powers concerns under the Constitution.
* Prior cases dealing with the relationship of population to legislative representation have been uniformly decided to the contrary as being nonjusticiable political questions.
* No meaningful difference exists between a challenge brought under the Equal Protection Clause and the Guaranty Clause.
o Harlan dissent
* The majority’s analysis is clouded by too many tangential issues to focus on the real issue at hand.
* The only real issue in the case is whether the complaint sufficiently alleged a violation of a federal right such that a district court would have jurisdiction over the case.
The complaint, taken as a whole to be true, does not state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).
* Nothing in the Equal Protection Clause of the Fourteenth Amendment suggests that state legislatures must deliberately structure their districts so as to reflect absolute equality of votes.
* Additionally, the complaint does not adequately show that Tennessee’s existing system of apportionment is so arbitrary and capricious as to violate the Equal Protection Clause. Without more facts alleging a violation, Baker does not state a claim upon which relief may be granted.
o Goldwater v. Carter
- President Jimmy Carter ended a treaty with Taiwan. Senator Barry Goldwater and the Congress challenged Carter’s authority to do so under the Constitution. The Court found that the case was not justiciable, and, therefore, Carter won.
- In dissent, Justice Brennan would have decided the case on the merits because it involved a legal question of the president’s authority.
o Zivotofsky v. Clinton
566 U.S. 189 (2012), parents argued that their son’s place of birth should be recorded as “Israel” and not Jerusalem, based on the federal statute
* The court held it was justiciable, but the parents did not prevail until 2020 when the State Department policy was reversed
o Vieth v. Jubelirer
541 U.S. 267 (2004), no 5 Justices agreed on whether there can be a standard that makes gerrymandering disputes justiciable
* the Court had not yet found a standard for political gerrymandering but might in the future
* Kennedy said we haven’t found the standard yet but there is a standard out there.
- Rucho v. Common Cause (SCOTUS, 2019)
o 5-4 decision
o Facts
* Two state legislatures adopted redistricting plans designed to dilute one political party’s vote.
First, North Carolina Republican legislators, including Robert Rucho (defendants), drew a redistricting map that produced nine Republican and three Democratic winners, even though statewide more Democrats received votes than Republicans.
Second, Maryland Democratic legislators used a map designed to “flip” the one remaining Republican district by moving 360,000 voters out and 350,000 new voters in, resulting in the district electing a Democrat.
* Voters in both states (plaintiffs) challenged the redistricting maps in federal court.
o Rule
* Partisan gerrymandering is a nonjusticiable political question.
o Application – Roberts (+ Thomas, Alito, Gorsuch, Kavanaugh)
* Gerrymandering has existed since 1812
* Justiciability requires the ability to set a definitive standard. None of the tests suggested provide a manageable standard or a sound reason to judicially reallocate power among political parties.
First, the three-part predominant-intent test suggested by the courts below is inherently unworkable and would require courts to decide whether election outcomes match voter partisanship.
* That test is unworkable because intent to obtain a partisan advantage is constitutional.
Second, the First Amendment test examines whether legislators intended to or actually burdened voters based on their political affiliations but provides no workable standard for deciding when partisanship has gone too far.
* If redistricting violated the minority party’s First Amendment rights, all partisan districting decisions would fail.
Third, the dissent advocates a median approach that would use each state’s own districting criteria to identify excessive political gerrymandering, but that would set an unworkable standard that would change for every state, every year.
Fourth, the Elections Clause and Article I guarantee people the right to elect representatives and establish the time, place, and manner of elections but, again, do not provide judicially enforceable limits.
Finally, nonjudicial remedies are available.
* States may enact laws governing districting, establish independent districting commissions, and invalidate redistricting plans under their own laws.
* Courts cannot assess political gerrymandering without a workable standard.
* Marbury v. Madison – it is emphatically the province and duty of the judicial department to say what the law is.
o Conclusion
* The case is dismissed as nonjusticiable.
o Kagan dissent (+Sotomayor, Ginsburg, Breyer)
* The majority refuses to remedy a constitutional violation claiming it exceeds the Court’s judicial abilities.
* The gerrymanders here deprived hundreds of thousands of citizens of their right to equal participation in the electoral process.
* Over the past several years, federal courts have set and applied districting standards using each state’s own fairness criteria as a baseline.
A three-part test that evaluates intent, effect, and causation identifies excessive partisan gerrymandering.
* The courts below applied a neutral, manageable standard to prevent partisan dilution of the vote.
* For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities
What it says can’t be done has been done. Over the past several years, federal courts across the country—including, but not exclusively, in the decisions below—have largely converged on a standard for adjudicating partisan gerrymandering claims
* This court should have affirmed those efforts to restore the people’s voting power, not overturned them.
o Oral argument
* Justice Neil Gorsuch: Justice Gorsuch raises the issue of state initiatives and referendums as potential solutions and questions the extent to which states have addressed gerrymandering through these mechanisms.
* Justice Sonia Sotomayor: Justice Sotomayor challenges Clement to explain why the selected map, resulting in a 10-3 Republican split, is fair, especially when there are alternative maps that appear more neutral. She emphasizes the discriminatory aspect of splitting counties based solely on political views.
- The federal government is one of
enumerated powers
o Federal government only has the powers that the constitution gives them
o Every time congress acts, there has to be a source that the constitution gives them
- Article 1, section 8 of constitution
o The Congress shall have power to
to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
* To borrow money on the credit of the United States;
* To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
* To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
* To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
* To provide for the punishment of counterfeiting the securities and current coin of the United States;
* To establish post offices and post roads;
* To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
* To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
* To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
* To provide and maintain a navy;
* To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
- the Tenth Amendment of the U.S. Constitution says
the “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people
o The states are not governments of enumerated powers. They get whatever is reserved
- Article VI contains a Supremacy Clause
o This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land
- Separation of powers
o Horizontal separation of powers
* Among the legislative, judicial, and executive branches of government
o Vertical separation of powers
* Federal and state governments
- McCulloch v. Maryland (SCOTUS, 1819)
o Unanimous decision, opinion by Marshall
o Facts
* In 1816, Congress passed an act that incorporated the Bank of the United States.
* In 1817, the Bank opened up a branch in the state of Maryland (plaintiff).
* In 1818, the Maryland state legislature passed an act to impose a tax on all out-of-state banks operating in the state of Maryland.
* Although the act was general in nature, the Bank of the United States was the only such bank in Maryland at that time and was thus the only establishment affected by the tax.
* James McCulloch (defendant), head of the Maryland branch of the Bank of the United States (Bank), refused to pay the tax.
* This lawsuit ensued and the case was appealed to the Maryland Court of Appeals.
o Rule
* The Constitution specifically delegates to Congress the power to tax and spend for the general welfare, and to make such other laws as it deems necessary and proper to carry out this enumerated power. Additionally, federal laws are supreme and states may not make laws that interfere with the federal government’s exercise of its constitutional powers.
o Application
* (1) Does Congress have implied constitutional power to create a bank?
(1) Yes. Congress has the constitutional power to charter the Bank of the United States.
Congress created a bank to deal with its money problems.
The Constitution derives its authority from the conventions and the federal government proceeds directly from the people.
The constitution shall be the supreme law of the land
This power is ultimately derived from the Constitution’s grant to Congress of the general power to “tax and spend” for the general welfare.
Among the enumerated powers, we do not find that of establishing a bank or creating a corporation
We must never forget that it is a constitution we are expounding.
However, in addition to its enumerated powers, Congress is also given general powers under the Constitution’s Necessary and Proper Clause, which states that Congress may create laws it deems necessary and proper to help carry out its enumerated powers.
The Necessary and Proper Clause functions to expand, not limit, Congress’s enumerated powers.
* To employ the means necessary to an end is generally understood as employing any means calculated to produce the end, and not as being confined to those single means without which the end would be entirely unattainable
Congress decided that chartering the Bank of the United States was a necessary and proper method of raising revenue to carry out its overall taxing and spending powers.
the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution, and is a part of the supreme law of the land.
* (2) If so, may individual states tax a federally created bank?
(2) No. The Bank was created by federal statute.
Maryland may not tax the Bank as a federal institution because federal laws are supreme to state laws.
* Supremacy clause
A federally created institution may not be inhibited by a state law.
The Bank of the United States functions to serve the entire nation. It is thus inappropriate for it to be controlled by one part of the nation (i.e. Maryland) through a tax.
* That the power of taxing it by the States may be exercised so as to destroy it is too obvious to be denied
* The power to tax involves the power to destroy
* If we apply the principle for which the State of Maryland contends, to the Constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the Government, and of prostrating it at the foot of the States
* This would transfer the power of supremacy to the states
This is not a case of confidence of the states in other states
We don’t want a state to tax the operations of the federal government.
* A state can only tax institutions that its own constituents created, but not a federal government institution. That’s because otherwise, a state would exercise control over people that it does not represent.
o Conclusion
* Maryland’s law is unconstitutional and void.
- Interpreting the constitution
o Textual
* But, judicial review is not from the text.
o Structural
* The structure of the constitution might give us an answer
o Historical
DHS v. Texas
- Roberts + Barret with libs
- Conservatives minority
o Federal government has the border patrol for the Texas-Mexico border
o Texas is unhappy with U.S. immigration policy so it has been putting up wires to stop aliens from entering the U.S.
o Federal border patrol wants to go cut the wires because it needs freedom around the border.
o What does McCulloch contribute to this case?
o Fifth circuit ruled for Texas– gave TX the injunction stopping the US from cutting the wires
o Supreme court reversed and ruled for the U.S.– 5-4. You can’t have an injunction stopping the U.S. from cutting the wires.
o But still, Texas is not complying with the supreme court’s order
- Article 1, section 8, clause 1
o Powers of Congress
* The power to lay and collect taxes
* To pay the debts and provide for the common defense and general welfare of the US
- Tenth amendment
o The powers not delegated to the US by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people
- Twenty first amendment
o Section 2: the transportation of importation into any state, territory, or possession of the U.S. for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited
- History
o Gibbons (1824)
o 1887-1937
* Court got more restrictive about what the commerce clause could be used for
* Court packing? Parrish, NLRB
o 1937-1995 (Darby, Wickard)
* New era where the legislation is upheld
o 1995-2011 (Lopez)
o 2012 to today (Affordable Care Act)
* Congress legitimately used its tax power to pass the ACA (Roberts)
* But see Dole
Spending case
- Gibbons v. Ogden (SCOTUS, 1824)
o Facts
* Ogden (plaintiff) received a license under New York state law that purported to give him the exclusive right to operate steamboats in New York waters.
* Gibbons (defendant) sought and obtained a similar license from the federal government, which Gibbons used to compete with Ogden in the same water route that Ogden was using.
* To protect his monopoly license, Ogden filed suit in the New York Court of Chancery to enjoin Gibbons from operating his boats in New York waters.
Gibbons argued that he was operating his boats pursuant to an order of Congress, and that Congress has exclusive power under Article I, Section 8 of the Constitution to regulate interstate commerce.
o Procedure
* The New York Court of Chancery found in favor of Ogden and issued an injunction to restrict Gibbons from operating his boats.
* Gibbons appealed the case to the Court of Errors of New York, which affirmed the decision.
Gibbons appealed to the United States Supreme Court.
o Rule
* If a state and Congress both pass conflicting laws regulating interstate commerce, the federal law governs pursuant to Congress’s constitutional grant of power to regulate interstate commerce.
o Application – Marshall
* Congress is granted the power to regulate interstate commerce in Article I, Section 8 of the Constitution.
* The word “commerce” includes traffic, intercourse, and navigation, as well as commodities associated with interstate commerce.
Congress includes operating steamboats
* Congress may regulate all commercial activities occurring between states but not activities occurring solely within one state’s borders.
The power of Congress, then, comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with ‘commerce with foreign nations, or among the several States, or with the Indian tribes
* When both the federal and a state government exercise the power of taxation, neither is exercising the power of the other. But, when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do
* In this case, Congress has the power to regulate the interstate commercial activity of steamboats on navigable waters within the state of New York.
Because Congress has the power to regulate this activity, and New York passed conflicting regulations of the same activity, federal supremacy principles dictate that the federal regulation trumps the state regulation.
o Conclusion
* The decision of the Court of Errors prohibiting Gibbons from operating steamboats in New York is reversed.
o Johnson concurrence
* The grant of power by the framers to Congress to regulate interstate commerce is absolute.
* Additionally, when the framers gave Congress the power to regulate commerce, they gave it the power to regulate all subsidiary activities that accompany it, such as shipbuilding, carrying trade, and the propagation of seamen.
Hammer v. Dagenhart
- In Hammer v. Dagenhart, 247 U.S. 251 (1918), which is often referred to as “The Child Labor Case,” the federal law barred the transportation in interstate commerce of items produced by employers who employed workers under age 14 or children between 14 and 16 who worked more than 8 hours a day, 6 days a week, or at night
o Court ruled that the case was not about transportation but instead regulated the working hours of children.
o According to the Court, the commerce power did not give Congress power over children’s labor. That issue belonged to the states
- Railroad Retirement Board v. Alton Railroad Co.
o the Court found unconstitutional the Railroad Requirement Act of 1934, which was the first compulsory retirement and pension plan for non-governmental employees administered by the federal government. It was not sufficiently related to commerce as the Court had been defining it.
- Schechter Poultry Corp. v. United States
- Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), invalidated the National Industrial Recovery Act of 1933, which regulated wages, hours, unfair trade practices, and collective bargaining for private sector workers
o Sick chicken case
o Court found that the wages and hours were local and could not be subject to federal control
- FDR’s 1937 court packing plan
o One new justice for each justice who reached 70 years old, up to 15 justices total
o while the court-packing discussion was continuing, the Court changed its approach to the commerce power
* West Coast Hotel v. Parrish, 300 U.S. 379 (1937), a 5–4 Court upheld a minimum wage law for women. Scholars have debated whether the first Justice Roberts’s “switch in time that saved the Nine” in this opinion really kept Roosevelt from expanding the Court.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937
- Supreme Court then upheld Congress’s commerce power in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), which ruled that the National Labor Relations Board’s actions regulating unfair labor practices were constitutional
- United States v. Darby
- United States v. Darby, 312 U.S. 100 (1941), the Court overruled Hammer v. Dagenhart and unanimously upheld Congress’s Fair Labor Standards Act, which regulated child labor and working wages and hours
- Wickard v. Filburn (SCOTUS, 1942)
o Facts
* During the Great Depression of the 1930s, President Franklin Roosevelt and the Democratic-controlled Congress passed many “New Deal” programs designed to improve the poor economic climate in the United States.
One such program was the Agricultural Adjustment Act of 1938, which limited the area that farmers could devote to wheat production in an effort to stabilize the national price of wheat.
* Filburn (plaintiff), a small farmer, was penalized pursuant to the Act for producing wheat in excess of the Act’s quotas.
* Filburn filed suit against Secretary of Agriculture Wickard (defendant), seeking to enjoin enforcement against himself of the penalties.
* Filburn argued that because the excess wheat was produced for his own private consumption and never entered the stream of commerce, his activities could not be regulated by Congress under the Commerce Clause.
o Rule
* Congress may regulate local activity if that activity exerts a substantial economic effect on interstate commerce.
o Application – Justice Jackson
* Older cases talked about production, consumption, and mining to determine whether activities were direct (interstate) or indirect (intrastate). Court here said these categories don’t matter anymore.
* Court sites Gibbons v. Ogden because it had a broad sense of the commerce power.
* Whether the subject of the regulation in question was ‘production,’ ‘consumption,’ or ‘marketing’ is, therefore, not material for purposes of deciding the question of federal power before us
* By growing his own wheat, Filburn decreases the amount of wheat purchased in the market and negatively impacts the price of wheat grown for interstate commerce.
o Conclusion
* The decision of the circuit court is reversed. Congress’s commerce power authorizes this.
- South Dakota v. Dole (SCOTUS, 1987)
Whiskey, my bold spirit, pours smoothly.
o Facts
* A South Dakota law permitted persons age nineteen or older to buy beer containing up to 3.2% alcohol.
* In 1984, Congress passed 23 U.S.C. §158, which directed the Secretary of Transportation, Dole (defendant), to withhold up to five percent of federal highway funds otherwise available to states in which state laws permitted persons under the age of twenty-one to purchase alcohol.
* South Dakota (plaintiff) sued Dole and the United States government in federal district court seeking a declaratory judgment that Section 158 violated constitutional limits on Congress’s spending power and the Twenty-First Amendment of the United States Constitution.
o Rule
* The receipt of federal funds may be conditional if the exercise of the spending power is for the general welfare, the conditions are unambiguous, the conditions are related to a federal interest in a particular national project or program, and the conditions do not violate any other constitutional provisions such as the Tenth Amendment.
o Application – Rehnquist (+ White, Marshall, Blackmun, Powell, Stevens, Scalia)
* Congress has specific constitutional power to tax and spend for the general welfare of the United States.
In exercising this spending power, Congress may condition the receipt of federal funds by states subject to the following four limitations:
* the exercise of the spending power must be for the “general welfare;”
* the conditions on the receipt of funds must be unambiguous;
* conditions must be related to a federal interest in a particular national project or program; and
* Independent constitutional bar – conditions must not violate any other constitutional provisions such as the Tenth Amendment.
* Section 158 clearly meets the first three limitations on Congress’s exercise of spending power as it is designed to promote the general welfare, an unambiguous condition, and related to the significant federal interest in promoting safe transportation on federal highways.
* While the Tenth Amendment operates to limit Congress’s imposition of conditions on states’ receipt of federal funds, when the effect of those conditions are coercive, that is not the case in Section 158.
Noncompliance only results in a loss of five percent of what states would otherwise receive. The potential loss is not so great as to force states to comply with federal standards.
o Conclusion
* The decision of the court of appeals is affirmed. Congress did not violate the constitution here.
o O’Connor dissent
* Section 158 is not a condition on Congress’s spending power that is reasonably related to an expenditure of federal funds.
Instead, Section 158 is an attempt by Congress to regulate the sale of liquor, and is thus a power reserved expressly to the states by Section 2 of the Twenty-First Amendment of the Constitution.
* Setting the drinking age at twenty-one is not reasonably related to the identified purpose of safe highway construction.
o Brennan dissent
* The ability to regulate the minimum age to purchase alcohol falls completely within the powers reserved to the states by the Twenty-First Amendment of the Constitution.
* Congress improperly attempted to regulate a power that the Constitution reserved to the states and the states constitutionally exercised.
Consumer Financial Protection Bureau v. Community Financial Services Association of America
- Facts
o Congress’s power of the purse – congress decides who gets money
o There is no appropriation clause funding for the federal reserve, and the CFPB gets its money from the federal reserve.
o In response to the financial crisis around 2007, Congress passed the Dodd–Frank Wall Street Reform and Consumer Protection Act, which, among other things, authorized the creation of the Consumer Financial Protection Bureau (CFPB) as an independent agency within the Federal Reserve. - The CFPB was tasked with writing and enforcing rules for financial institutions, examining financial institutions, monitoring and reporting on markets, and tracking consumer complaints.
o In 2017, the CFPB adopted a rule that prohibited lenders from further attempting to withdraw funds from borrowers’ bank accounts after two consecutive attempts failed for lack of funds.
o A group of lenders sued the CFPB over that rule, arguing that the agency’s funding scheme was unconstitutional. - Instead of receiving money allocated to it each year by Congress, as most agencies do, the CFPB receives funding directly from the Federal Reserve, which collects fees from member banks.
- Procedure
o The district court concluded the funding scheme was not unconstitutional, but the U.S. Court of Appeals for the Fifth Circuit reversed. - Appropriations clause: article 9, section 1 of the constitution
- Article I, section 9, clause 7:
o No money shall be drawn from the treasury, but in consequence of appropriations made by law - Congress has power of:
o Tax
o Spend
o Commerce - Prelogar – CFPB/petitioners: historical argument that Congress has consistently funded agencies through standing appropriations that aren’t time-limited
- Francisco – CFS/Respondents
o Unification of Sword and Purse: Francisco argues that the case is about checks and balances, emphasizing that one of Congress’s crucial checks on executive power is its power of the purse. He contends that the case reflects a feared unification of sword and purse, as Congress has effectively authorized the Consumer Financial Protection Bureau (CFPB) to spend whatever it deems necessary in perpetuity.
- Trump immunity case (US v. Trump, DC)
- Trump relies on Marbury to say you can’t prosecute a president.
* Court says president has misread Marbury to say that it frees him from trial. Marbury distinguished between discretionary presidential acts (we don’t prosecute for discretionary) and ministerial presidential acts (where the president must follow the law, he can be prosecuted for it). Marbury never says that president does not have to follow the law– so he can be prosecuted for ministerial acts. - Trump mentions Youngstown, Nixon, and Clinton for his argument that the separation of powers means he shouldn’t be prosecuted. Court says none of these cases give the president immunity from trial. The minute that Biden became president, Trump became subject to the criminal law like everyone else.
* Other branches can be held to the law, so the executive can too.
* Presidents have always known that they would be held to the law. That hasn’t kept presidents from doing what they need to do, and indicting presidents is not common. So, holding Trump liable does not undermine the president’s job. - Impeachment clause
* Trump argued that, if you were not convicted by the senate, you cannot be prosecuted.
* Clause says that penalty for impeachment is losing your job, and that if you are convicted, you will be liable or held to criminal liability. So, President said that only penalty for impeachment is losing the job.
* Court said the impeachment clause doesn’t say what happens if you’re not convicted. Trump’s reading rests on a logical fallacy–stating that if president is convicted then he can be prosecuted, does not mean if he is not convicted, he cannot be prosecuted. - Double jeopardy– Court says these are not two criminal prosecutions for the same thing.
o Court says Trump is not immune and should go back to trial
- U.S. v. Lopez (SCOTUS, 1995)
K. O? The Shit Smells Bad Girl!
o 5-4 decision
* Yes: Rehnquist, O’Connor, Scalia, Kennedy, Thomas
* No: Stevens, Souter, Ginsburg, Breyer
* Majority: Rehnquist
o Facts
* In 1990, Congress passed the Gun-Free School Zones Act (GFSZA), making it a federal offense “for any individual knowingly to possess a firearm in a place that the individual knows, or has reasonable cause to believe, is a school zone.”
* Lopez (defendant), a student who brought a gun to his high school, was confronted by school authorities, arrested, and charged with violating the GFSZA.
o Rule
* Congress may not, pursuant to its Commerce Clause powers, pass a law that prohibits the possession of a gun near a school.
o Application – Rehnquist
* While Congress has broad lawmaking authority under the Commerce Clause, this power does not extend so far as to authorize the regulation of the carrying of handguns, particularly when doing so has no clear effect on the economy overall.
* Congress may regulate only three broad categories of activities:
the channels of interstate commerce;
1. Locations– highways, waters, roads, etc.. EX: the waters from Gibbons v. Ogden
the instrumentalities of, or persons or things in, interstate commerce; and
1. EX: trucks, boats, transportation
activities that substantially affect or substantially relate to interstate commerce.
* Here, the GFSZA does not regulate the channels or instrumentalities of interstate commerce.
Therefore the analysis must focus on the third category: whether the activity at issue substantially affects interstate commerce.
* The mere carrying of handguns (not the buying or selling) in a school zone in no way affects commerce, either substantially or otherwise.
* The GFSZA is a criminal statute having nothing to do with “commerce” or any economic enterprise.
* The United States argues that the presence of guns in school zones affects commerce because crime in schools affects education, which in turn affects job prospects and productivity.
* If this argument were accepted, Congress could regulate virtually any activity.
* Although Justice BREYER argues that acceptance of the Government’s rationales would not authorize a general federal police power, he is unable to identify any activity that the States may regulate but Congress may not
o Conclusion
* The court of appeals’ decision is affirmed.
o Kennedy concurrence (joined by O’Connor)
* The GFSZA upsets the balance of power between the federal and state governments.
Education is a traditional concern of the states.
It is for states to determine whether harsh criminal sanctions are necessary to deter students from carrying guns on school premises.
The GFSZA prevents states from exercising their own judgment and experimenting with their own gun prevention programs.
o Thomas concurrence
* The new “substantial effects” test is problematic because it makes the Commerce clause “surplusage.”
Congress is not meant to regulate commercial activity to the full extent suggested by the majority’s holding.
* The majority’s three-part definition of commerce is misguided.
Instead the word “commerce” should be limited only to encompass the buying and selling, and possibly the transportation of goods. The Court’s expansion of the term in Gibbons v. Ogden, 22 U.S. 1 (1824), was wrong. A narrow construction of the term should be applied.
o Stevens dissent
* Congress should be able to regulate the possession of guns at any location because guns relate to commercial activity and have such a potentially harmful use.
o Souter dissent
* Congressional regulations promulgated under the Commerce Clause are reviewed under a rational basis standard. A deferential view of congressional actions is important to preserving the separation of powers.
However, the majority’s decision harkens back to a time when the judiciary gave less respect to Congress (narrower commerce clause era). The majority’s invalidation of a congressional act unwisely goes against important principles of judicial restraint.
o Breyer dissent (joined by Ginsburg)
* Majority on Breyer’s dissent: Justice BREYER focuses, for the most part, on the threat that firearm possession in and near schools poses to the educational process and the potential economic consequences flowing from that threat. Specifically, the dissent reasons that
(1) gun-related violence is a serious problem;
(2) that problem, in turn, has an adverse effect on classroom learning; and
(3) that adverse effect on classroom learning, in turn, represents a substantial threat to trade and commerce
* Likes the cumulative effect test on commerce, which comes out of Wickard v. Filburn, and asks about the cumulative effect of one activity on commerce, taken as a whole
Secondly, the Court must consider not the effect of an individual act, but rather the cumulative effect of all similar instances when determining whether an activity affects interstate commerce.
* Based on these principles, the proper inquiry should have been whether Congress rationally could have found that violent crime in school zones, through its effect on the quality of education, substantially affects interstate commerce.
* When all practical realities surrounding the problems of guns near schools are considered, the answer could not be anything other than in the affirmative.
* A significant logical connection exists between gun regulations and promoting interstate commerce, especially in today’s world.
o Oral argument
* David H. Souter:
Court’s reliance on a rationality review leads to too much instability.
* Rehnquist
Case law says that commerce power is not limitless
* Justice Sandra Day O’Connor: PRO-STATES RIGHTS
Questions whether the simple possession of something at or near a school is commerce.
Asks if possession at or near a school is interstate and raises concerns about the scope of Congress’s power. If congress can regulate possessing an item near something, then they can regulate anything
* Justice Antonin Scalia: PRO-STATES RIGHTS
Raises concerns about regulating non-commercial activities like the mere possession of an item.
* Breyer: Wheat (Wickard v. Filburn) has less to do with commerce than guns.
- National Federation of Independent Business v. Sebelius (SCOTUS, 2012)
o Unanimous decision: Roberts, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan
o Opinion by Roberts
o Facts
* In 2010, Congress passed the Patient Protection and Affordable Care Act.
The individual mandate requires most Americans to maintain “minimum essential” health insurance coverage.
Medicaid expansion requires states to expand medicaid eligibility or else they lose all federal medicaid funds
* If a State does not comply with the Act’s new coverage requirements, it may lose not only the federal funding for those requirements, but all of its federal Medicaid funds
* Shortly afterward, multiple parties, including business organizations, individuals, and 26 states, filed suit in district courts across the country to challenge the Act’s constitutionality.
The results were fractured: some courts upheld some or all of the ACA, others declared part or all unconstitutional, some concluded offending provisions could be severed, and others argued that the Act couldn’t be challenged until someone was forced to pay the penalty.
o Rule
* (1) The individual mandate contained in the Patient Protection and Affordable Care Act of 2010 is a valid use of Congress’s power to tax.
The commerce clause does not empower congress to legislate the individual mandate
* (2) The Medicaid expansion provision of the Patient Protection and Affordable Care Act of 2010 is an unconstitutional use of Congress’s spending powers.
o Application – Roberts
* (1) The individual mandate contained in the Act is a valid use of Congress’s power to tax.
The individual mandate cannot be justified as a valid exercise of commerce power, because the Commerce Clause does not empower Congress to compel individuals to engage in commercial activity.
* the Government argues that Congress had the power to enact the mandate under the Commerce Clause. Under that theory, Congress may order individuals to buy health insurance because the failure to do so affects inter-state commerce
* The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce
Further, the possibility that people could participate in the healthcare market at some point in the future is not enough. This is a slippery slope that could open the door to congressional regulation of all sorts of activity or inactivity not contemplated by the Framers.
* For example, obesity is more responsible for increased healthcare costs than uninsured people, but under the government’s theory, the federal government could mandate that people buy vegetables.
Next, the Necessary and Proper Clause only gives Congress the power to do things that are incidental to the valid exercise of some enumerated power, and therefore the individual mandate cannot be justified on this ground either.
However, the individual mandate’s penalty provision operates more like a tax imposed on those opting against purchasing coverage.
* Because the tax is assessed just like other taxes, based on income, and collected by the IRS, the fact that Congress calls it a penalty is irrelevant. The Court interprets legislation as constitutional if possible, and the individual mandate can be saved by interpreting the penalty provision as a valid exercise of Congress’s power to tax.
* (2) The Medicaid expansion provision of the Patient Protection and Affordable Care Act of 2010 is an unconstitutional use of Congress’s spending powers.
With respect to the Medicaid extension, the federal government cannot withhold existing Medicaid funding from states that choose not to participate.
Congress can offer grants to states and condition the funds on compliance with certain requirements, as happens frequently with highway and infrastructure funding.
* However, the Act does not offer the states a genuine choice, because they need to accept a basic change in the nature of Medicaid or risk losing all Medicaid funding.
o Ginsburg concurrence/dissent (+Sotomayor, Breyer & Kagan)
* The individual mandate should be upheld under the Commerce Clause because there was a rational basis for Congress to believe the large uninsured population substantially affected interstate commerce and the mandate bore a reasonable connection to addressing the problem.
* The Federal Government, therefore, is not, as THE CHIEF JUSTICE charges, threatening States with the loss of “existing” funds from one spending program in order to induce them to opt into another program. Congress is simply requiring States to do what States have long been required to do to receive Medicaid funding: comply with the conditions Congress prescribes for participation
o Sotomayor thinks congress can use its taxing power to justify the constitutionality of the ACA. Sotomayor and Ginsburg agree. They’re the only two saying that the law is permitted under the spending clause and that the medicaid provision is not coercive.
o Scalia dissent (+ Kennedy, Thomas, Alito)
* The entire Act should be struck down as unconstitutional. Neither the Commerce Clause nor the power to tax and spend grants Congress the authority to require the individual mandate.
* To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity
* We do not doubt that the buying and selling of health insurance contracts is commerce generally subject to federal regulation. But when Congress provides that (nearly) all citizens must buy an insurance contract, it goes beyond “adjusting by rule or method
* We can’t allow congress to politically maneuver between “tax” and “penalty.” If they label it a penalty, we cannot call it a tax instead.
o Thomas dissent
* I adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases
* the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.
o Breyer is for the commerce clause. Joined Ginsburg’s opinion.
o Kagan said it should be made more voluntary.
- California v. Texas (SCOTUS, 2021)
o 7-2 decision
* Yes: Roberts, Thomas, Breyer, Sotomayor, Kagan, Kavanaugh, Barrett
* No: Alito, Gorsuch
o Opinion by Breyer
o Facts
* In 2010, Congress passed the Affordable Care Act (the act), which required individuals to obtain health insurance or face a tax penalty (the individual mandate).
* In 2018, Congress repealed the provision of the act that imposed the penalty for violating the individual mandate’s requirement for minimum essential coverage. To be clear, the act still contained language requiring individuals to obtain insurance, but the mandate no longer had any enforceable penalty.
o Rule
* If a plaintiff fails to show an injury that is fairly traceable to a defendant’s allegedly unlawful conduct, the plaintiff lacks Article III standing.
o Application – Breyer
* Article III of the United States Constitution requires that a plaintiff seeking judicial review of a matter show an injury in fact, causation, and redressability.
To show causation, a plaintiff must show that some government action has caused or will cause a concrete, particularized injury.
* there is no possible Government action that is causally connected to the plaintiffs’ injury—the costs of purchasing health insurance. Or to put the matter conversely, that injury is not “fairly traceable” to any “allegedly unlawful conduct” of which the plaintiffs complain.
Essentially, a plaintiff must demonstrate how an action led or will lead to an injury.
* Here, the fact that Congress has repealed the penalty for violating the individual mandate is dispositive to the issue of standing for both the individual plaintiffs and the state plaintiffs.
The government has no power to enforce the mandate against individuals, so there is no way to trace any injury suffered by the individual plaintiffs to § 5000A(a).
* With respect to the state plaintiffs, again, the individual mandate no longer has a penalty attached to it, so it is not fair to say, without providing any evidence, that an unenforceable statutory provision caused or will cause state residents to enroll in state benefit programs.
o Conclusion
* The judgment of the court of appeals regarding standing is reversed.
o Thomas concurrence
* there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the Act—they have not identified any unlawful action that has injured them
o Alito dissent (+Gorsuch)
* When the tax or penalty was collected, costs were shifted from individuals previously denied coverage due to their medical conditions and placed on others who purchased insurance only because the failure to do so was taxed or penalized.
The repeal of the tax or penalty has not made the costs of the guaranteed-issue and community-rating requirements disappear.
o Oral argument
* Alito focuses more on the merits of the case.
* Barrett said they didn’t have standing.
Chevron v. Natural Resources Defense Council (1984)
- Facts
o The 1977 Amendments to the Clean Air Act (CAA) required polluters in certain areas to obtain a permit from a state regulator before building any new or modified stationary sources of air pollution. - The state regulator could only grant the permit if the polluter met specific requirements regarding the abatement of new pollution.
o The Environmental Protection Agency (EPA) promulgated a rule interpreting the term “stationary source” to include what the agency called a “bubble policy.” - Under this policy, an existing plant containing several pollution-emitting devices could install or modify one piece of equipment without a permit if the alteration did not increase the total emissions from the plant.
o The Natural Resources Defense Council (NRDC) (plaintiff) challenged the EPA’s interpretation of the word “source.” - Specifically, the NRDC argued that the word referred to each individual pollution-emitting piece of equipment, which meant that a plant would need to obtain a permit any time it created a new source of pollution or modified an existing source if the effect were to increase the pollution from the source.
Finding that this interpretation best served the goals of the CAA, the court of appeals agreed with the NRDC. - In reaching this decision, the court recognized that Congress had not expressed an intent regarding the applicability of the bubble concept to the permit program. The United States Supreme Court granted certiorari to review the appellate court’s decision.
- Rule – Justice Stevens (+ Burger, Brennan, White, Blackmun, Powell, Stevens)
o courts should defer to a federal agency’s interpretation of an ambiguous statute if its interpretation is reasonable - Chevron deference’s hierarchy of interpretation:
Congress
Agency
Executive
Court - Some argue that this gives too much power to agencies rather than courts, although courts are better interpreters of what the law is.
- Application – Stevens
o If a statute administered by an agency is silent or ambiguous with respect to a specific issue, a reviewing court may not simply impose its own construction on the statute.
o When a court reviews an agency’s construction of a statute, it faces two questions. – Chevron two-step test! - First, the court must consider whether Congress directly addressed the precise question at issue.
If Congress has made its intent explicit in the statutory language, then both the court and the agency must give effect to that unambiguous congressional intent. - Second, however, if the court finds that the statute is silent or ambiguous regarding the specific issue, the court must consider whether the agency’s action was based on a permissible construction of the statute.
- Conclusion
o Accordingly, the appellate court’s judgment is reversed.
Relentless v. Department of Commerce
- Facts
o Magnuson-Stevens Fishery Conservation & Management Act (MSA) regulates the Atlantic herring fishery - MSA is aimed at preventing overfishing and promoting conservation
- MSA sets up regional councils, which create fishery management plans (FMPs) to set conservation measures, which must align with National Standards and other laws
o Secretary of Commerce, through the National Marine Fisheries Service (NMFS) reviews and publishes the FMPs for public comment
o In 2000, New England Council established an FMP for Atlantic herring, updated with an industry-funded monitoring program in 2020 - Program partially shifts the cost of at-sea monitoring to vessel owners, but aims for a 50% target of monitored herring trips, which will cause reduced profits for the fishing industry and communities
AKA, herring industry must bear the costs of observers on fishing boats
o Relentless, Huntress, and Seafreeze are owners of two fishing vessels - They challenged the Rule, arguing that the monitoring requirement disproportionately burdens them because of their longer trips and inability to qualify for exemptions
- Oral argument
o Jackson: - Chevron helps courts stay away from policymaking
This is a policy question, not a legal question - EX: Definition of “stationary source” is not a legal question
- In Chevron, congress gave the policy choice to the agency. If we take Chevron away, the court will become a policymaker.
- For example, here, the question is whether or not monitors on the boats have to be paid for by the owner of the boat. I see that as a policy question.
- It’s not easy to distinguish between policy & law.
This creates a potential issue with separation of powers - When you’re a hammer, everything looks like a nail
Judges will look at questions related to a statute and call them legal unless Chevron deference requires them to really think about their role - Roman Martinez says every decision about a statutory interpretation is a question of law. Jackson disagrees.
- Problems with courts deciding statutory interpretations:
It takes years
Different courts from different jurisdictions could have different views
o Conservatives call for the Chevron deference to be overruled
o The court’s three liberal justices expressed support for keeping the doctrine in place. - Justice Elena Kagan repeatedly suggested that federal agencies, with their scientific and technical expertise, are better suited than courts to resolve ambiguities in a federal statute.
Kagan cited as one example a hypothetical bill to regulate artificial intelligence. Congress, she said, “knows there are going to be gaps because Congress can hardly see a week in the future.” So it would want people “who actually know about AI and are accountable to the political process to make decisions” about artificial intelligence. Courts, she emphasized, “don’t even know what the questions are about AI,” much less the answers. - Justice Sonia Sotomayor agreed with Kagan. She doubted whether there can be a “best” interpretation of a law when the justices “routinely disagree” about a law’s meaning. The real question, she said, is who makes the choice about what an ambiguous law means. And if the court needs a “tie-breaker,” she continued, why shouldn’t it defer to the agency, with its expertise?
- Justice Ketanji Brown Jackson posited that the Chevron doctrine serves an important purpose. Under Chevron, she suggested, Congress gives federal agencies the power to make policy choices – such as filling gaps or defining terms in the statute. But if Chevron is overturned and agencies no longer have that power, she predicted, then courts will have to make those kinds of policy decisions.
o But Justice Brett Kavanaugh saw Chevron’s deference to agencies differently. Chevron, he complained, “ushers in shocks to the system every four or eight years when a new administration comes in” and implements “massive change” in areas like securities law, communications law, and environmental law. - Justices Brett Kavanaugh and Amy Coney Barrett, for their part, both seemed open to narrowing Chevron to apply only in cases where Congress has affirmatively delegated interpretive authority to an agency
- Justice Brett Kavanaugh — another moderate conservative on the court — criticized the “internal inconsistency” of Chevron.
o Justice Neil Gorsuch told Prelogar that he was less concerned about businesses subject to changing regulations, observing that the companies “can take care of themselves” and seek relief through the political process. Instead, Gorsuch pointed to less powerful individuals who may be affected by the actions of federal agencies, such as immigrants, veterans seeking benefits, and Social Security claimants. In those cases, Gorsuch stressed, Chevron virtually always works for the agencies and against the “little guy.”
o Justice Samuel Alito pressed Prelogar to explain when a statute would be ambiguous, triggering the application of the Chevron doctrine. He observed that “in cases that don’t involve an agency,” courts do not simply throw up their hands and declare that they cannot determine what the statute means. “So that would seem to suggest that you never get to step two” of the Chevron test, requiring courts to defer to the agency’s interpretation.
o Prelogar suggested that the court could follow the path that it chose five years ago in Kisor v. Wilkie, in which the justices declined to overrule a long line of cases instructing courts to defer to an agency’s interpretation of its own regulation, a doctrine sometimes known as Auer deference. Instead, a splintered court put limits on when Auer deference should apply going forward.
Loper Bright Enterprises v. Raimondo
- Facts
o A group of commercial fishermen who regularly participate in the Atlantic herring fishery sued the National Marine Fisheries Service after the Service promulgated a rule that required industry to fund at-sea monitoring programs at an estimated cost of $710 per day. - The fisherman argued that the Magnuson-Stevens Fishery Conservation and Management Act of 1976 did not authorize the Service to create industry-funded monitoring requirements and that the Service failed to follow proper rulemaking procedure.
- Oral argument
o Justice Ketanji Brown Jackson recused herself from the Loper Bright argument, as she was on the D.C. Circuit panel that originally heard the case
o Skidmore deference – the persuasiveness of the government’s interpretation depends on the circumstances - The court also appeared ready to return to the Skidmore v. Swift & Co. doctrine, which preceded Chevron and, ultimately, would give federal courts more power to implement their policy preferences and ignore agency expertise
- Youngstown Sheet & Tube Co. v. Sawyer (SCOTUS, 1952)
o 6-3 decision
o Facts
* decision by President Harry Truman to seize the steel mills after they threatened to go on strike.
* In late 1951, steel mill owners and their employees had disagreements over the terms of collective bargaining agreements. Unable to reach an agreement, the steel mill employees’ representative gave notice of intent to strike after the expiration of their current agreement.
* The federal government unsuccessfully entered the negotiations, and on April 4, 1952, the steel mill employees’ union gave notice of its intent to strike on April 9, 1952.
* The importance of steel as a component in weapons and war materials led President Truman to believe that a reduction in steel production from a nationwide strike would jeopardize the nation’s security.
The President issued Executive Order 10340 directing Sawyer (defendant), the Secretary of Commerce, to take control of and continue operating most of the nation’s steel mills.
* Sawyer carried out the order, and Youngstown Sheet & Tube Co. (plaintiff), along with other steel mill operators, brought suit in district court alleging that the President’s order amounted to an exercise of lawmaking, a legislative function reserved expressly for Congress. Therefore, the President’s exercise of lawmaking was unconstitutional.
o Rule
* The President of the United States may not engage in lawmaking activity absent an express authorization from Congress or the text of the Constitution.
o Application – Black (+ Douglas, Clark)
* The President’s power to issue executive orders must come from either an act of Congress or the Constitution.
Congress expressly rejected the use of seizure to solve labor disputes as unconstitutional when it considered the drafting of the Taft-Hartley Act in 1947.
* Here, the President does not rely on any statutory authority to seize real property.
Since Congress has not acted to grant seizure powers to the President in labor disputes, the President’s authority must come from the Constitution.
* Sawyer admitted that there is no express authority in the Constitution that justifies the President’s actions, but argues that the President’s power to do so should still be implied from powers granted to the President in Article II of the Constitution.
Particular reliance is placed on provisions in Article II which say that “the executive Power shall be vested in a President * * *”; that “he shall take Care that the Laws be faithfully executed”; and that he “shall be Commander in Chief of the Army and Navy of the United States.”
This argument is not constitutionally supported since the link between the power to make war decisions and the power to seize private property for the resolution of labor disputes is attenuated.
Additionally, the President’s actions cannot be supported by his general executive powers, as the Constitution charges the Executive with “faithfully executing the laws,” not making the laws themselves.
* In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker
* The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President
* Justice Black’s view: Two sources of authority:
Acts of Congress
* Express or Implied – none here
Constitution
* Express authority – none here
* Implied authority
1. Executive power Cl.
a. No; categorical distinction between lawmakers/executors at law– text limit
2. Take Care Clause
a. No, no law extant that he is “taking care of”
3. Commander in chief
a. No; seizure for lawmakers, not military
* Justice Black doesn’t really believe in emergency presidential powers.
o Conclusion
* The decision of the district court is affirmed.
o Jackson concurrence
* The President and Congress have distinct powers, but the Constitution allows for some overlap of authority in different scenarios.
The President may act pursuant to executive powers, congressionally-granted powers, or a combination of both.
* When the President acts under an express or implied grant of power, he can rely on both his own powers and Congress’s. (Article II authority + all power congress can delegate)
* When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate
* When the President acts without an express grant or denial of Congress’s powers, he acts under the aggregate of his own independent powers. (Article II authority in absence of Congress’s grant or denial)
* When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain
* When the President acts in a way that is incompatible with the express or implied will of Congress, he may rely only on the powers expressly granted to him by the Constitution. (Article II authority minus the express or implied will of congress)
* When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter
* Since Congress denied power to the President in the present case under the Taft-Hartley Act, the third scenario is implicated.
* The President may be deemed to have acted constitutionally only if he is acting based on an express grant of power from the Constitution.
* The Constitution does not grant the President such powers, and the President’s power to “faithfully execute the laws” does not cross into the function of lawmaking.
* The President is checked by the Fifth Amendment’s prohibition on depriving citizens of life, liberty, or property without due process of law.
o Douglas concurrence
* Congress is the only branch of government that can appropriate money to pay for a program involving a nationwide seizure of property. Hence, Congress is the only branch that may authorize such actions.
* It is important to keep this power within Congress to avoid the possibility of a future President abusing the power.
o Frankfurter concurrence
* “it is a constitution we are expounding.” McCulloch v. Mary-land
* The President has been given powers to seize production, transportation, communication, or storage facilities on sixteen separate occasions since 1916.
However, the difference between these occurrences and the present case was that, in all prior instances, Congress granted temporary powers to the President to act in times of war or national crisis.
* Additionally, the powers were only granted for a specific, limited time frame.
* In the present case, the President was acting to remedy only an industrial problem that was not connected with wartime or a national emergency.
Additionally, Congress specifically withheld this type of power from the President, in labor relations settings, when it passed the Taft-Hartley Act in 1947.
* The President acted unconstitutionally because the facts surrounding the present case are different than prior instances of presidential grants of power and because Congress could have given the President power but chose instead to withhold it.
* More willing to say that because presidents have done this in the past, they can do it again.
o Vinson dissent
* The President acted in a necessary way to prevent a crisis of national defense that could result from a lack of steel production.
* The Constitution delegates to the President the duty to execute legislative programs.
The implementation of a steel seizure program designed to preserve production and promote the national defense qualifies as a legislative program.
* Cases do arise presenting questions which could not have been foreseen by the Framers. In such cases, the Constitution has been treated as a living document adaptable to new situations. But we are not called upon today to expand the Constitution to meet a new situation.
* The President is uniquely qualified to step in and implement this program, as no other branch of government has the ability to act so quickly by releasing an Executive Order.
* The President is both authorized and uniquely qualified to perform this function.
William Rehnquist
a. Clerked for justice jackson
b. Later wrote the games & war book
c. Asked if Carter had authority to transfer Iranian funds and to nullify legal claims against Iran?
a. Court said Yes. 8-1 decision by Rehnquist. International Emergency Economic Powers Act constituted a specific congressional authorization for the president to order the transfer of the assets. Even though the act did not explicitly authorize it, it had been used in the past so it could implicitly approve this kind of settlement.
b. Rehnquist here was doing what Justice Jackson did.
d. Rehnquist’s analysis
a. Explicit Congressional Authorization <———–> Congressional prohibition
i. There was an explicit authorization here, so president had this power.
Jan 2023 6th Cir. Case
- President tried to use Property Act to compel federal agencies and contractors to have employees vaxxed and masked.
- Court cited Youngstown again and said president did not have the authority because purpose of the Property Act was to provide the federal government with an economical and efficient system. The purpose of the statute is not what you apply when looking at whether a statute is constitutional or not. Look at the text of the statute. Court said the text of the statute did not support the mask/vax mandate.
- Rasul v. Bush
o Facts
* Alien picked up in Afghanistan
* Held at Guantanamo
o Holding: Habeas corpus applies
* A non citizen picked up in Afghanistan and held at Guantanamo could apply for habeas (applying for the government to review your detention)
o 6-3 decision for Rasul
- Hamdi v. Rumsfeld (SCOTUS, 2004)
o 6-3 decision for Hamdi
o Facts
* In 2001, in response to attacks against the United States by the al Qaeda terrorist network on September 11, 2001, Congress passed the Authorization for Use of Military Force (AUMF), authorizing the President to use all appropriate and necessary force against persons suspected of engaging in terrorist activity against the United States.
The President shortly thereafter ordered United States military forces into Afghanistan.
* This case arises out of the detention of Yaser Hamdi (defendant), a U.S. citizen, who was seized in Afghanistan on suspicion that he was actively working with the Taliban regime. He was turned over to the United States military.
The United States interrogated Hamdi in Afghanistan before transferring him to the Guantanamo Bay Naval Base in 2002.
After learning he was an American citizen, authorities transferred him to Norfolk, Virginia, and then Charleston, South Carolina.
* The Government contended that because Hamdi was an “enemy combatant” it could hold him indefinitely in the United States without formal charges or proceedings until it determined that access to counsel or further process was warranted.
o Procedure
* The government (plaintiff) filed a motion to dismiss, which included an outline of the evidence against Hamdi, called the Mobbs Report.
The district court found that the Mobbs Report did not contain enough evidence to hold Hamdi without trial. Requested in camera review. Government appealed.
* The Fourth Circuit reversed, holding that the United States acted constitutionally in detaining Hamdi, and Hamdi petitioned for certiorari to the United States Supreme Court. The United States Supreme Court granted certiorari.
o Rule
* Due process guarantees that United States citizens held in the United States as enemy combatants must be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.
o Application – O’Connor (+ Rehnquist, Kennedy, Souter, Ginsburg, Breyer)
* Is Hamdi appropriately detained?
The government must provide basic procedures for the citizen-detainee to challenge his detention.
18 U.S.C. § 4001(a). Section 4001(a) states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” (this comes from the Korematsu case)
* we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe
* In passing the Authorization for Use of Military Force (AUMF) resolution, Congress authorized the President to exercise the “necessary and proper force” to combat terrorist activity.
* Even in cases in which the detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status.
* However, the Fourteenth Amendment of the Constitution guarantees the right to due process under the law.
Furthermore, absent suspension, all persons detained in the United States have the right to habeas corpus.
* This means that an individual accused of criminal activity cannot be detained indefinitely, with no trial, no counsel, and no ability to petition for freedom if he is wrongfully imprisoned.
* Both parties concede that Hamdi is entitled to the writ of habeas corpus as a United States citizen, and that Congress has not suspended the writ.
The government argues that Hamdi’s writ of habeas corpus should be denied because the facts surrounding his seizure are still in dispute.
* In order to determine the due process issues in this case, the private interest affected by the official action must be weighed against the government’s asserted interest, including the function involved and the burdens the government would face in providing greater process.
Hence, Hamdi’s interest in being free from involuntary detention must be weighed against the government’s interest in ensuring that those who have fought with the enemy in armed conflict do not return. These interests must be carefully balanced.
* The constitutional guarantees of liberty are best served if a citizen-detainee seeking to challenge his classification as an enemy combatant receives notice of the factual basis for his classification and a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.
However, this holding is qualified.
* As long as the government provides these core elements, it can tailor other aspects of proceedings to help reduce the burden on the executive of conducting enemy combatant proceedings during times of military conflict.
Under these criteria, Hamdi has been denied due process, and therefore is entitled to a hearing that contains the protections of the Constitution.
o Conclusion
* The ruling of the court of appeals is vacated and remanded.
o Souter (+ Ginsburg) concurrence/dissent
* The AUMF does not authorize detention of classified enemy combatants in light of the Non-Detention Act, which strictly prohibits the detention of a United States citizen without an explicit act of Congress.
Congress has not explicitly acted to permit the detention of Hamdi, but has instead granted general war powers to the President.
The power to make determinations affecting citizen-detainees’ liberty interests is inappropriate for the President, since the President is entrusted with protecting national security interests. Liberty and security interests are necessarily at odds with each other, creating a conflict of interest.
* Since Hamdi’s detention is unlawful, the question of what procedure is due to challenge a classification as an enemy combatant is unnecessary.
o Scalia & Stevens dissent
* As usual, the major effect of its constitutional improvisation is to increase the power of the Court
* The due process protections available to citizens are distinguishable from those available to non-citizens.
Non-citizens accused of aiding the enemy and captured during times of war can be held until the end of the conflict.
In contrast, citizens accused of aiding the enemy, like Hamdi, were regarded as traitors and processed through the criminal justice system.
* The plurality has ignored this tradition and formulated a new system for citizen enemy combatants to be processed.
The Due Process Clause of the Fourteenth Amendment guarantees the right to a fair hearing, absent invocation of the Suspension Clause; the Constitution does not afford a third option.
The executive branch cannot unilaterally relax constitutional due process protections unless Congress suspends those protections.
Only Congress may suspend this criminal process for citizens, and the executive can only bring about this result by asking Congress to act.
* Because both parties agree that the Suspension Clause was not invoked here, Hamdi should be afforded his due process right to a fair hearing in front of a judge, like any other criminal citizen.
* Where the courts are open, you’re supposed to use them.
* Citizen is entitled either to criminal trial or judicial decree.
o Thomas dissent
* It is not the role of the courts to define the federal government’s war powers. Congress, not the courts, should have considered this issue.
* The plurality does not properly consider the Government’s compelling interests at stake and the judiciary’s limited role in balancing this and private interests.
* The interest of the government of protecting the country overrides Hamdi’s individual liberty interest, and therefore the judgment of the Fourth Circuit Court of Appeals should be affirmed.
o Oral argument
* Souter – made no sense for president to have indefinite power to detain someone for however long you want without them having any recourse.
* Ginsburg – emphasized importance of a neutral decision maker
* Scalia – Hamdi’s interest doesn’t trump the government’s interest here
- Boumediene v. Bush (SCOTUS, 2008)
o 5-4 decision for Boumediene
o Facts
* In 2005, Congress passed the Detainee Treatment Act (DTA) to provide certain procedures for Guantanamo Bay detainees to challenge their classification as unlawful alien enemy combatants.
* In 2006, Congress passed the Military Commissions Act (MCA).
Section 7(a) of the MCA prevented detainees classified as unlawful alien enemy combatants from challenging the conditions of their confinement and detentions through a writ of habeas corpus.
* Boumediene (plaintiff) and several detainees classified as unlawful alien enemy combatants at Guantanamo Bay brought actions against the United States government (defendant) to challenge their detentions through writs of habeas corpus.
o Rule
* Courts must provide detainees held as unlawful alien enemy combatants a writ of habeas corpus to challenge their detention, or, if a writ of habeas corpus is not available, provide an adequate substitute process to detainees that includes the same procedural protections and opportunities that would be provided in a writ of habeas corpus.
o Application – Kennedy (+ Stevens, Souter, Ginsburg, Breyer)
* We therefore do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay
it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation,
Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay
the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory
* The Suspension Clause states that the writ of habeas corpus may be suspended only in cases of rebellion or invasion when public safety requires it.
* Therefore, MCA §7 is unconstitutional; however this holding does not affect the DTA and CSRT process.
The President is entitled to a reasonable period of time to determine a detainee’s status before a court may entertain that detainee’s habeas corpus petition.
* The court has the power to say what the law is (Marbury v. Madison)
o Conclusion
* Accordingly, the decision of the court of appeals is reversed.
o Souter concurrence
* Congress has the right to suspend habeas corpus, so the only way petitioners could get the writ of habeas corpus is to go past the statute and look at constitutional habeas corpus.
* In Rasul v. Bush, 542 U.S. 466 (2004), the Court held that statutory claims of habeas corpus jurisdiction extend to foreign nationals imprisoned by the United States at Guantanamo Bay.
* Later, Congress eliminated the statutory right to bring a writ of habeas corpus. Although the writ is no longer allowed by statute, the Court is not required to disallow the right of foreign nationals to bring a writ of habeas corpus under the Constitution.
Many detainees have been held without formal charges for up to six years. The detainees deserve a procedure to challenge their confinement in light of the relatively long length of their detentions.
o Roberts dissent (w/ Scalia, Thomas, Alito)
* Invalidating §7 of the MCA eliminates the most generous set of procedural protections ever afforded to foreign citizens.
Additionally, the set of vague procedures in place of the MCA provides little direction to federal courts tasked with adjudicating the claims of detainees.
* The CSRT hearings afforded to detainees are not part of the initial process used to classify detainees as unlawful alien enemy combatants, but are instead procedures for detainees to challenge their classification. CSRT hearings provide the same procedural protections as a writ of habeas corpus.
* Thus a writ of habeas corpus for detainees is unnecessary.
o Scalia dissent (w/ Roberts, Thomas, Alito)
* The writ of habeas corpus has never been applied to foreign persons detained outside the jurisdiction of the United States. Thus, the Suspension Clause of the Constitution does not apply to Guantanamo Bay detainees and the detainees are not entitled to the same legal protections afforded to United States citizens.
The security of the United States will be ultimately weakened by the increase of releases of detainees to their home countries, where many historically have returned to terrorist activities.
The legislative and executive branches have unequivocally stated their opposition to extending the writ of habeas corpus to detainees.
The judiciary oversteps its bounds in making a ruling that goes against the will of the other branches of government and exposes the United States to a security threat.
- Article I, Section 8 of Constitution gives congress the power to
establish a uniform rule of naturalization,” which gives it the authority to determine when and how people becomes citizens of the U.S.
- Trump v. Hawaii (SCOTUS, 2018)
o Facts
* President Donald Trump (defendant) signed an executive order suspending the entry of foreign nationals from seven countries for 90 days. Each country had been previously identified by Congress or prior administrations as posing heightened terrorism risks.
* A federal district court entered a temporary restraining order blocking the restrictions.
In response, the President signed a similar executive order, which was also challenged in court.
Several district courts issued preliminary injunctions barring enforcement of the entry suspension. The appeals courts upheld the injunctions.
The Supreme Court granted certiorari.
* Certain people can apply for exemptions and case-by-case waivers if they can show that they’ve faced undue hardship and that their entry does not pose a threat
* The temporary restrictions expired before the Court could act, so the Court vacated the lower decisions as moot.
President Trump then ordered federal agencies to conduct a comprehensive evaluation of every country’s compliance with the United States’ risk-assessment baseline.
* Based on this evaluation, the President issued a proclamation seeking to improve vetting procedures by identifying deficiencies in the information needed to assess whether nationals from particular countries presented public-safety threats. The proclamation placed entry restrictions on the nationals of eight foreign countries.
* The countries were selected by the President because their systems for managing and sharing information about their nationals were deemed inadequate.
* The State of Hawaii (plaintiff) brought suit, arguing that the proclamation violated provisions in the Immigration and Nationality Act (the act). Hawaii also argued that the proclamation violated the Establishment Clause of the First Amendment because it was motivated by animus toward Islam.
o Rule
* A presidential proclamation placing entry restrictions on foreign nationals of particular countries is sufficiently justified by national-security concerns to survive rational-basis review.
* Proclamation is within the scope of the presidential authority under the Immigration & Nationality Act
o Application – Roberts (+ Kennedy, Thomas, Alito, Gorsuch)
* Under 8 U.S.C. § 1182(f) (Immigration and Nationality Act), the president may suspend the entry of foreign nationals if the president deems such entry to be detrimental to the interests of the United States.
* The Establishment Clause of the First Amendment prohibits the government from discriminating based on religion.
* Although 8 U.S.C. § 1152(a)(1)(A) prevents discrimination regarding visa applications, that section does not act as a constraint on the president’s authority under § 1182(f).
The proclamation serves a legitimate state interest in preventing entry of nationals who cannot be adequately vetted.
The text of the proclamation makes no mention of religion, and other facts do not support an inference of religious hostility.
* 5 out of the 7 nations were Muslim
* Policy covers just 8% of the world’s Muslim proclamation
* Korematsu has nothing to do with this case. Japanese internment camps based on race were objectively unlawful. Korematsu is overruled. Unlike Korematsu, this order is based on a neutral policy denying admission to certain foreign nationals.
o Conclusion
* Thus, the lower court’s ruling is reversed and the case is remanded.
o Thomas concurrence
* Universal injunctions imposed by district courts are growing in popularity, but appear to be inconsistent with the Constitution.
* universal injunctions are legally and historically dubious
o Kennedy concurrence
* Religious freedom is important. This is not just about Muslim bias because this is about protecting the constitution.
* The world must know that the United States government remains committed to liberty.
o Sotomayor dissent (joined by Ginsburg)
* Based on the evidence, a reasonable observer would conclude that the proclamation was motivated by religious bias.
President Trump previously called for a complete shutdown of Muslims entering the country, among numerous other statements indicating religious animus.
The proclamation targets majority-Muslim countries.
* Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.” (citing Korematsu, (Jackson, J., dissenting)). This formal repudiation of a shameful precedent is laudable and long overdue
By blindly accepting government’s decision to discriminate (in the name of a superficial claim of national security), court applies the same dangerous logic in Korematsu and replaces one wrong decision with another.
o Breyer dissent (joined by Kagan)
* Evidence supports the possibility that the government is not enforcing the proclamation as written.
Instead, it appears that the government may be discriminating against individuals seeking entry based on religion.
* There is enough evidence that, on balance, creates a sufficient basis to set the proclamation aside.
* Wanted the injunction to remain in place
