September Notes Constitutional Law
September 1, 1999
United States v. Lopez
Majority - Renquist, Kennedy, O'Conner, Thomas, Scalia
Renquist wrote majority opinion.
Justice Kennedy filed concurring opinion in which Justice O'Connor joined.
Justice Thomas filed concurring opinion.
Justices Stevens and Souter filed dissenting opinions.
Justice Breyer filed dissenting opinion, in which Justices Stevens, Souter and Ginsburg joined.
- how do the different opinions characterize the history of the commerce clause?
- What legal test would they enact?
Emphasis on limits on Congress in this Rehnquist opinion.
Three broad catagories of activity that Congress may regulate under the commerce power:
1. channels of interstate commerce
2. instrumentalities of interstate commerce
3. things having a substantial relation to interstate commerce (direct and indirect)
September 8, 1999
Gibbons v. Ogden
- arguments began on Feb 4, 1824
- many issues were at forefront in this case; including ability of states to have slavery, build canals and waterways,
- “what can’t be cured must be endured”
Marshall wanted to add a definition: commerce –
Five categories to decide whether it is commerce:
1) interstate commercial intercourse
2) classification of areas
3) substantial economic effect
4) cumulative effect
5) protetive principle
Shreveport – Congress’s authority was upheld
September 13, 1999
For next time: focus on New York (in book) and Prince (supplement)
Catagories of commerce clause cases:
1. commercial intercourse (Gibbons)
2. clssification of areas test (pre-1937 era) (manufacture, mining, production, etc.)
3. substantial effect (Shreveport case)
4. cummulative effect
5. protective principle (Lottery Case, Darby)
Knight: suggested that the local activity was not reachable unless it had a direct rather than an indirect effect on interstate commerce: an attempt to monopolize sugar refinin, through of significant interstate cexonomic consequences, was not controllable through federal legislation because the relationship between manufacturing and commerce was indirect.
Shreveport: by contrast, local railraod rates were reachable because of their practical aconomic impact on interstate transportation.
These two cases show the difference between functionalists and formalists.
United States v. Darby
- involved the Fair Labor Standards Act of 1938
Schechter, Carter - dealt with FDR's new deal plans.
Court Packing plan - Roosevelt tried to pass a plan allowing for more Supreme COurt Justisces. He lost, this plan, but still got 5 justices appointed.
Wickard v. Filburn - got rid of deciding questions of federal power by using the classification test: "the mechanical application of legal formulas [is] no longer feasible."
Think about: one of the concerns after Lopez is what does congress have to do to have its legislation ruled unconstitutional? COngress is now more careful to put a jurisdictional element into its statutes. If there is a jurisdictional element, then the COurt is less likely to overturn it. The COurt held in Lopez: "the statuts has no express jurisdictional element which might limit its reach" If it had maybe it would have been COnstitutional.
Heart of Atlanta Motel - civil rights case
Ollies Barbeque Restaurant - civil rights case
Look at first part of Lopez decision for a good synopsis of the history of the commerce clause cases.
September 15, 1999
Next week's assignment:
89-91 of supplement - Burney. Will begin with Butler and Dole, then do note on 11 Amendment, then move to Enforcement of Civil Rights
External limits on the commerce power:
1. commerce power
2. tenth amendment
Importance of tenth AMendment is now what is more pertinent it seems.
Need to know why 10th Amendment is more pertinent in some cases than in others.
Know why there is a commerce clause line and why there is a 1oth Amendment line of cases.
National League and Garcia cases
Justice Renquist beleives the following are important:
1. strict construction of Constitution and statutes
2. judicial restraint
Factors in determining whether the USSC should follow Stare decisis:
- whether a rule has become intolerable simply in applying practicable workability
- looks to see whether related principles of law have developed so far, that leaving the old remnant of a rule would not be good
- whether the facts have changed or have come to be seen differently so that the old rule does not have application
- is a rule subject to reliance that would lend a hardship to overruling it
There is a big battle over this in Casey.
National League and Garcia show the battle of Federalism over the Years.
New York v. United States:
written by O'Connor
joined by Rehnquist, Kennedy, Scalia, Souter, Thomas
Stevens concurred in part, dissented in part
September 20, 1999
Review of Printz v. United States
Constitutionality exercise – looked a statute to determine constitutionality
- the statute dealt with a congressional requirement of Congress that all states report missing children to a national agency
September 22, 1999
This is a good time to get outlines together; do sample test questions that she handed out
Is the federal government coercing the states?
Or is the federal government trying to __ the states?
Federal government is not supposed to be telling states to do something that is unconstitutional
Should individuals be able to sue the states? 11th amendment materials
- courts have split on this
- one court (Fitzpatrick v. Bitzer) said Congress does has the power to abrogate the state’s 11th Amendment immunity and allow states to be sued directly (this might come from Section 5, 14th Amendment); the 14th Amendment comes after the 11th Amendment so therefore it can trump the 11th. It changed federal and state interaction
- in Seminole Tribe the majority overruled Union Gas and rejected the claim that the commerce power could abrogate a state’s 11th Amendment immunity
Order of Katzenbach v. Morgan caselaw analysis:
- remedial legislation (find facts)
- substantive legislation
September 27, 1999
Review of Morgan
- the court decides what the law is (marbury) but Congress gets to use its power to enforce the provisions of the 14th amendment. But does it say that congress can’t act until the court has not heard a case on the 14th amendment? NO – this would really limit Congress’ power; it does not make sense to have congress only be able to act after there is a Court opinion
- literacy tests do not violate equal protection says the court; congress says they do; this is the substantive part of Morgan;
- dissent says the court does not get to go against Congress in this way
- one way rachet of Morgan – only Court can interpret (??) the 14th amendment – not Congress
Make sure you know Section 5
- any question you get where Congress acts, do enumerated powers analysis and go through those cases
- know section 5 on its own, not just commerce clause
open question in many ways how broad or how limited executive powers are
What are the sources of President’s authority?
1. Act of Congress
2. the Constitution
i. take care
ii. executive power
iii. commander in chief
September 29, 1999
Executive power continued
Three levels of power according to Jackson concurrence in Youngstown
two part action of executive powers:
Part one of agreement: transfer assets to Iran
Part two: suspension of claims in American courts
Where does president get executive privilege?
- nothing specific in the constitution about it; but it is arguable that it is implied in the constitution