Constitutional Law I: Professor Prakash

Constitutional Law I

Professor Prakash



I. Introduction.. 4

II. The Judicial Power: (i)–Judicial Review... 5

Marbury v. Madison.. 5

Martin v. Hunters Lessee. 10

Cooper v. Aaron.. 10

3 different conceptions of judicial review” 11

III.  The Judicial Power: (ii)–External Limits on Judicial Power: 12

Impeachment: 12

Jurisdiction stripping: 12

McCardle case: 12

IV. The Judicial Power: (iii)–“Self-imposed” Limits on Judicial Power.. 13

Article III, §2—jurisdiction of federal courts. 13

Advisory Opinions: 13

Standing: 13

Allen v. Wright 14

Baker v. Carr.. 16

Powell v. McCormack. 17

2. The political question doctrine and foreign affairs. 17

-       Goldwater v. Carter 17

-       Japan Whaling Assoc. v. Baldridge. 17

Baker v. Carr.. 18

Luther v. Borden Case: RI, revolution, new government. 18

Davis v. Bandemer.. 18

Vieth v. Jubelirer (137)—political question #2 at issue. 18

Bush v. Gore. 19

Foreign Affairs and political question doctrine: 19

Internal restraints on the article 3 courts: 19

V. The Executive Power.. 20

Youngstown Case: 20

Dames & Moore v. Regan.. 21

Presidential Priviledges and Immunities. 22

Mississippi v. Johnson. 22

Nixon v. Fitzgerald. 22

Clinton v. Jones Case: 22

Nixon v. United States. 23

Cheney v. United States District Court 24

VI. The Legislative Power: Introduction.. 24

Panama Refining and the ALA Schechter Chicken case. 25

Clinton v. City of NY.. 25

Chada: 25

Bowsher v. Synar- 26

1923-Meyers Case. 26

Humphrey Case: 27

Wiener v. US: 27

Buckley v. Valeo.. 27

Morrison: 27

Mistretta. 28

Executive Department: 28

Independent Agencies: 28

Congressional Agencies: 28

VII. The Intersection of Legislative and Executive Powers:  Foreign Affairs. 29

Executive Agreements: 29

Curtis-Wright: 29

Hamdi: 30

War Powers: 30

War Powers Resolution/Act: 31

Hamdi: 32

Hamdan case: 34

Medellin Case: 36

Line item veto. 38

VIII. Legislative Power.. 39

McCulloch v. Maryland.. 39

Gibbons Case: 40

Hammer v. Dagenhart: 41

Wickard v. Filburn: 42

Three broad categories of activity that Congress may regulate under its commerce power.. 43

Morrison Case: 43

Raich.. 43

Garcia: 43

New York: 44

Printz: 44

Testa and the commandeering of state courts. 44

Missouri v. Holland.. 44

IX. Congressional Enforcement of the Constitution.. 45

Katzenbach v. Morgan: 45

Employment Division v. Smith: 46

City of Boerne v.Flores. 46

X. Limitations on State Power.. 47

Preemptions: 47

Dormant Commerce Clause: 47

City of Philadelphia v. N.J. 47

C & A Carbone Inc. v.  Clarkstown.. 48

West Lynn Creamery, Inc. v. Healy. 48

Maine v. Taylor: 49

2 types of Dormant Commerce Clause: 49

1. Statutes that facially discriminate. 49

2. Statutes that are facially neutral. 49

Washington State Apple Advertising Commission Case p.356: 50

Exxon Corp. v. Governor of Maryland.. 50

Kassel v. Consolidated Freightways Corp. 50

XI. Economic Liberties.. 51

Contracts Clause: 51

Home Building & Loan Association v. Blaisdell (Important) 52

United States Trust Co. v. New Jersey. 53

Allied Structural Steel Co. v. Spannaus (p.999) 53

XII. Introduction to the Freedom of Speech.. 54

XIII. Subversive Speech.. 54

Schenck: 54

Dennis v. United States. 54

Brandenburg v. Ohio: 55

XIV. Speech That “Threatens”. 55

Bridges v. California (see book) 55

XV. Speech that Provokes a Hostile Audience Reaction & Fighting Words: 56

Terminiello v. Chicago.. 56

Cantwell v. Connecticut. 57

Feiner v. New York. 57

Chaplinsky v. New Hampshire. 58

XVI.  Confidential Information.. 58

Skokie Controversy. 58

New York Times v. Sullivan.. 58

United States v. Progressive (how to build H-bomb) 60



I. Introduction


Questions to answer now or at the end of the course:

1. How many amendments are there to the constitution?

2. Does the constitution create a right to privacy?

3. How does one change the constitution?

4. Does the first amendment protect the right to view pornography?

5. Can the Federal government take your property and give it to Wal-Mart?

6. Whose job it is to defend the constitution against violation?

7. Can the president secure factories to produce steel in times of war?

8. Can Congress regulate drug use and profession, and if so how, why?


What is a constitution?

-Guarantee of rights, the government can’t violate these rights. 


Does the constitution protect us against private parties?

-13th Amendment, slavery is illegal, nobody can own me or you as a slave and that is the best example of a right that protects you vis a vis other parties.   


Constitution protects our rights in various ways, it can be from the Federal Government, State Government,


Constitutions provide a basic structure for how the government will function,  Articles I, II, III, and IV, V, and VI.  We will only cover the 1st amendment.


Entrench certain rules, set up government, judiciary, etc.  We might say that a constitution provides super legitimacy.  We might say it produces restraint.  Constrain ourselves, set groundwork for future action, and give government some legitimacy. 


Two types of constitutions, written and unwritten constitutions.  Do we have an unwritten constitution, there seem to be a lot of changes to the constitution. 


Constitution has 27 Amendments, but if you really look at actual practice, it looks like we have many more amendments to that.  Many decisions have no reference to the constitution, and you can look at these decisions as essentially amending the constitution. 


Is the constitution law?

-What does the constitution say about its own status: 

-It is the supreme law of the land. 


It is hard to say whether or not something is law.  Why is the Constitution law?  Enough people think the document that they have in their books is the US Constitution and that it is law.


What do we mean by this Constitution? 


What preceded the Constitution?  The Articles of Confederation.  There was no president as we think of the term, not really an executive.  Was there a judiciary?  No, there was no national judiciary.  The states are too powerful and the federal government is too week. 


What was the process of Amending the Articles of Confederation?  All 13 of the states must agree.  The Articles of Confederation was more like a treaty.


How many states had to approve the Constitution before it went into effect?


Article 7-Constitution only binding between the States so ratifying the same. 


Did any states reject the constitution?  RI did not except until the government was running.  North Carolina rejected, but then re-voted to accept.


The states must ratify the constitution, so the powers of the Federal government can’t be too powerful, lest some states decide not to approve the constitution. 


How did the states ratify the constitution?  Ratification of the conventions of 9 states, shall be sufficient.  You would elect somebody to the constitutional convention of your state, and that person would be in charge voting for the constitution. 


How does it differ from the process of amending the constitution?  Article V, details amendments.  Huge hurdles here, for Congress to propose and amendment you need 2/3 of both houses, and then you need to get ¾ of the entities in the states.  This makes it very difficult to amend the constitution.  State legislatures can start the process but they can’t propose anything.  Always a problem of a runaway convention. 


Summary of the types of cases you see regarding con law:


1. Textual argument, text says ‘y’ and you can’t do ‘b’ or ‘c.’


2. Structural argument-wouldn’t make sense for the congress to have this power because if they did.


3. Historical practice.  Have things like this been done before and were they questioned when they did it?  Historical practice can add a gloss.

4. Judicial argument. What have the courts said about this?


5. Prudential argument—what will happen if the president asserts the right to refuse to enforce laws that he believes are unconstitutional.


6. Moral argument-i.e. death penalty, etc. 


II. The Judicial Power: (i)–Judicial Review


Marbury v. Madison


Who is William Marbury and what does he want?  He is the justice of peace for the District of Columbia and he wants his commission. 


What does Jefferson say?  No, TJ says ‘no,’ he’s a nobody.  He is a nobody until he gets his commissions, and the commissions are in a drawer in a desk at the state department. 


Why do you think he wants the document?  It is possible that the commission is like a badge. 


What is a justice of the peace?  A little like sheriff’s.


What is his term of office?  Under the statute, it is 5 years.  Is he an article III judge?  If he is, it is in violation of the constitution. 


What statute created the office of justice of the peace? Midnight Judges Act, where they create all these judges and put Federalist judges in the positions. 


Thomas Jefferson comes into office and he is ticked off.  His view is that he doesn’t need all these judges.  He comes into office and his secretary of state finds these commissions in the drawer and TJ says we are not going to deliver these documents, and these offices will be empty and we will pass a new act that will disestablish all the judgeships created by the 1801 act. 


Who was John Adams secretary of state?  John Marshall.  He is the chief justice of the Supreme Court. 


What is James Madison’s role in this?  Madison is the new Secretary of State.  You can’t sue Marshall to deliver things no longer in his position, you need to sue the new guy. 


Marbury says, issue a writ of mandamus to Madison.  Madison says, I’m not going to have anything to do with this.  Jefferson strategy is that this case is ridiculous.  You could really call this Jefferson v. Marshall.


What are the three issues Marshall says the case revolves around? 


1. Whether Marbury had a right to the commission?


Yes, he has a right to the commission, because the appointment was made when Adams signed the seal. Article II—president shall issue commissions.  Is there anything that says an appointment vests as soon as the president signs the commission and the seal is affixed?  Not really, the president must nominate and the senate must give consent.  Does the constitution say anything about how officers are appointed?  Article III.  Marshall thinks it is obvious that once it is signed and the seal is affixed that the appointment is done.  Marshall treats this as obvious, but it really is not that obvious, why does John Marshall’s view about when the appointment vests trump the president’s view? 


2. Does he have a right to a remedy?


Yes, he does have a right to a remedy.  It doesn’t make sense for people to have rights without remedies.  There are certain political decisions made by the president that the court cannot review.  Here what they have to do is put the seal on the commission and deliver it.  What is Jefferson’s view of this?  He doesn’t think the courts can tell the president what to do.  Jefferson thinks that no one branch can tell another branch what to do or what the Constitution means, if one branch can do that then that branch becomes the boss.  Where there is a right, there is a remedy.   


3. Is this court the proper place to give a remedy?


Does the Constitution establish how many Supreme Court Justices there are?  No.  The first Judiciary Act established how many Justices there would be.


Federal Judges have lifetime tenure.


3 Issues in Marbury:


1. Does Marbury have a right to the commission?

2. Does he have a right to a remedy?

3. Can the Supreme Court issue a writ of mandamus in this case?


1. Marshall:  When the seal is affixed, it is done.  He should have been given his position.  The appointment is complete merely because the president assigned the commission.  Jefferson disagrees.  Marbury’s discussion isn’t as complete as it should be. 


If the officer can be fired by the executive, when he was appointed doesn’t matter.  P 30.


The office is his, but if the office is removable by the president, then it doesn’t matter.  This is not this kind of job, after the commission, it is not revocable at the will of the president. 


How do we know that the office might not be revocable by the president?

-It lasts for 5 years.  The job lasts for 5 years, if you can’t fire him and he has been appointed, then he is in. 


Is there a way of reading the act so that the president can fire him, even though he has a term of 5 years? It is possible that they wanted to make sure the people who had this office was re-evaluated every five years.  If you have a five year term, the senate will have a chance to review this person. This understanding suggests that the term is really there for the Senate, and the president can still remove them.  Senate, at a minimum every 5 years we will review that persons work, but maybe the president will remove this person sooner. 


Not obvious this guy is not removable.


2.  The discussion seems to suggest that if you have a right, you have a remedy. 


3.  Under what provision of the Judiciary Act of 1789 is Marbury seeking relief?  Footnote p. 32.  We can go to the Supreme Court for a writ of mandamus. 


Why does the Supreme Court have original jurisdiction in this matter?  Constitution says we have original jurisdiction over, ambassadors, public ministers, and cases where one party is a state.  Is there a way to read Judicial Act of 1789 where this would not be the case?  Can read the statute in a way where Supreme Court does not have original jurisdiction issue writs of mandamus. 56:00 is clarification of this. 


Statute says we have original jurisdiction to give writ of mandamus over people who come to us (the Supreme Court) and ask for a writ of mandamus.


Under Marshall’s reasoning in Marbury, you can neither add to nor subtract from the jurisdiction of the Supreme Court.  This has not withstood the test of time. See top of p. 38.


Congress has taken the Supreme Court’s original jurisdiction and given it to the lower Federal Courts. This is unconstitutional under the reasoning of Marbury.  (recording 1:20)


Nothing in the constitution that says once the commission is signed and sealed it is complete.  Marshall had this view and it is kind of self serving.  It is self serving because it seems like he didn’t do anything wrong.  This is a non-adversarial case, Madison does not show up to argue the other side.  What might the court do today to get arguments from the other side to get the other side to show up?  Can get an Amicus Curae to file the brief, where they don’t have a personal stake in the outcome.


Jefferson, I can’t tell you what to do, and you can’t tell me what to do.  Court says you have to do this under the law.


Court reads the statute as trying to expand the Supreme Court’s jurisdiction.  Constitution doesn’t grant you the authority to add to our jurisdiction. 


What reasons does Marshall give us to think that the constitution authorizes judicial review.


Written:  Time to time we will have difficult questions about what the document means, why is the Court the one to decide these issues?  They are appointed, the have guaranteed salary.  Written constitutions are meant to limit the government.  The fact that it is written is not enough.  There must be a better argument than this.


Notions of Judicial Role:  Marshall just asserts that it is his duty.  He hasn’t really given us an argument.


Can they decide the meaning of the constitution and decide that a statute is unconstitutional.  I would suggest to you that the fact that judges are hearing cases about a statute says nothing about whether or not they can hear cases about the validity about a statute compared to the constitution.  Decide for yourself.


Supremacy Clause: What is the constitution supreme over?  What does the supremacy clause imply is not supreme?  Supremacy clause, article 6, section 2.  Constitution is supreme over state laws and state constitutions.  Meant to have a vertical stuff, state stuff is not as important as the Federal constitution when there is a conflict between state and federal laws.  Is the vertical supremacy relevant here?  Not really, no state law or constitution involved.  Why does he think the supremacy clause is relevant?  If a provisions says that a, b, and c are supreme, would you think that a is more supreme than b?  Law made in pursuance to the constitution, this law is not made in pursuance to the constitution, so it is not part of the supreme law of the land, and it is not law at all according to Marshall. 


2 reasons why:  1st constitution lists it first, 2nd-law not made in pursuance to constitution, are not laws at all, and if they aren’t laws at all, then the court can’t enforce them.  What Marshall doesn’t do is give a reason why he can decide this, but nobody else can.


Grant of Jurisdiction/Arising Under Clause:  Marshall says arising under, we need to review the entire constitution.  Others say, we can just give you something, like state stuff, or military stuff or administrative stuff, but not federal statutes.  There is a part of article I that limits the legislature.  Article 1, § 9. 


Why does the arising under clause suggest judicial review?  Article 3, § 2.  This language has to mean that the courts get to read the constitution in deciding cases arising under the constitution.  They have got to apply the constitutional law.  Marshall, it says arising under the constitution, why would they give that jurisdiction unless we were to decide the constitutionality of a statute.  “It is too extravagant to be maintained.”  Bickel: You can give meaning to this arising under the constitutional language without supposing it gives you the right to decide that Congress’ statutes are unconstitutional.  What other types of cases arising under the constitution that have nothing to do with the constitutionality of federal statutes?  State law.  Military cases.  Basically give the arising under a more narrow construction, you can review the actions of the state and administrative agencies, and that would then giving meaning to the arising under language and would not imply anything about whether or not you have the authority to review the constitutionality of federal statutes. 


Why have a list of jurisdictions?  They want to tell you all the types of cases Federal courts can hear.  Did not want Federal courts to hear any case available.  Sec II, Clause II


Judge’s Oath:  Article 6, § 3.  Does the constitution provide language of the oath itself?  Is there any oath provided by the constitution itself?  Article 2 has an actual oath for the president, but there is no specific oath for anybody else.  Where does this oath come from?  First statute passed by Congress is the oath act.  Why does the oath of office imply judicial review?  If everybody takes an oath, then everybody who takes an oath to the constitutional can go around saying that a statute is unconstitutional or not. 


If you can go through these arguments, then you have decided judicial review.  If you don’t have the power of judicial review, then why go through these arguments.  This is not the difficult part of the case. 


The court had struck down state statues, this is different than striking down federal statutes.  Why, the Supremacy clause clearly established supremacy over state law, but does not clearly establish supremacy over federal statutes. 


3 issues in Marbury:

-right to commission

-right to a remedy

-can the court issue the write of mandamus to Madison


-can the court issue the write of mandamus to Madison?

There is a statute saying the court can issue the writ on mandamus, but the constitution does not say this.  p.34 second full paragraph…it is a really interesting question, but not a difficult one, courts must prefer the constitution over unconstitutional statutes, even when such statutes are passed by Congress.  Provisions in article I, sec. 9 that limit congress, treason clause of article III, arising under clause.  Oath of office, supremacy clause, written constitution.  Talk about what parts of his argument may have problems.


List of things that Marshall may have gotten wrong:


Oath’s clause

Treason clause

Article I clause (are meant to constrain Congress, but not necessarily meant to imply that somebody else (judiciary) can say that these things are wrong.)

Exceptions clause.  Marshall said you can’t add or subtract from our jurisdiction, because that would make language in Constitution surplusage.  There is a clause that could be read to allow Congress to make exceptions.

Recusal—Marshall should have recused himself. Covering up his own behind.

The appointment/delivery--Whether or not the appointment was complete.

Jurisdiction at the end--He should have said nothing about a remedy or the commission if the court does not have jurisdiction.  That makes the merit discussion dicta.  Judges don’t have the right to say whatever they want and then at the end say we don’t have jurisdiction.  They must have jurisdiction to speak.  If you don’t have jurisdiction, you shouldn’t say anything.

Supremacy clause—maybe he misunderstood the supremacy clause?  Doesn’t say anything about when a federal statute is part of the supreme law and when it is not.

Arising Under—it is plausible to give the arising under language a more narrow understanding (Bickel)

Written constitutions—written constitutions are supposed to limit the entities that they create, how are they going to do that unless there is judicial review.  The answer is that this is not necessary, there are constitutions out that purports to limit government without judicial review.  If that is true, you can’t say that if you have a written constitution, you have judicial review. 


The point of this is just to demystify Marshall, don’t think that because he said it, he is right.


Marshall says that this is an interesting question but an easy question because at the time many people though that there is or was judicial review.  (See Prakash article in Chicago Law Review if interested).  The most famous part is not that controversial.  The part that is controversial is the second part, where he tells the secretary of state to do something.


The court said it had the authority, where it had jurisdiction, to order the secretary of state to deliver the commission.  What they said was that we aren’t going to enforce your statute, we are going to ignore it.  Can’t tell Congress what to do, but can say that a statute will not be enforced.  Marshall made the best of a bad situation.  I can’t tell you what to do because I don’t have jurisdiction, but if I did, I could tell you what to do.


Martin v. Hunters Lessee


They took all of the land of the people who sided with England.  In state court he tried to get his land back, but the state court said that the treaty did not cover his land.  He appealed the Supreme Court and remanded to Virginia to rule in favor of Martin.  The Virginia court said no, the Supreme Court doesn’t have jurisdiction.


Virginia Court of Appeals thinks its decisions aren’t reviewable by the Supreme Court.  THye say look, we are a sovereign state and you shouldn’t tell us what to do.  The language of the Constitution, why doesn’t it establish that the Supreme Court has jurisdiction over the case.  They say look, if you want the Supreme Court to have appellate jurisdiction, then create lower federal courts to hear these cases.  You can have appellate jurisdiction, but only over lower federal courts, not over state courts. 


Supreme court, article III, sec. 2 cl. 1, we don’t have jurisdiction over all courts, we have jurisdiction over all CASES.  Supreme court has appellate jurisdiction over all cases arising out of the constitution, treaties and laws of the United States.  So some federal court has to have jurisdiction over these cases.  If there is no federal court that has jurisdiction over the state court, then the Supreme Court has to have such jurisdiction. Some federal court has to have jurisdiction, and if it is not us, the federal judicial would not extend to all cases.  There is no federal court over you (Virginia Court of Appeals) so WE have to have jurisdiction over you. 


There are all sorts of provisions in the Constitution that impinge on states’ sovereignty.  When it comes to treaties we have appellate jurisdiction.  Constitution has some concern over local bias, diversity jurisdiction is an example of this.  State court system will show prejudice to in state plaintiff.  In a Federal court maybe they will be more objective. 


We will give Congress the option of creating lower federal courts.  What does Congress do in 1790?  They create some lower federal courts, but they don’t give them jurisdiction over everything they can.  They only give some jurisdiction.  Some cases listed in art. III, sec. 2 have to go to the Supreme Court. 


Jurisdiction over the case, not the courts. 


Cooper v. Aaron


Even if you are not a party of the case, you need to do what we say.  What we say goes.  The court says, this is what Marbury says.  Marbury just said we are not going to enforce your statute, it is unconstitutional.  Cooper different from Marbury, Cooper tries to establish that the court is the Supreme arbiter of what the constitution is.  The Cooper decision treats the Supreme Court decisions as if they are part of the constitution.  This is mistaken according to the professor.


What are the consequences of judicial review?


Judiciary Act of 1789:  What happened to it?  Broadest interpretation of judicial review is Cooper view. 


Ordinarily you aren’t bound by a decision unless you are a party. 


Martin v. Hunter’s Lessee


3 different conceptions of judicial review”


Cooper v. Aaron-does state government have to help desegregate state high school.  State-“we weren’t party to this case, we don’t have to do what you say.”  Supreme Court said, we say what the law is, ever since Marbury we have the final say as to what the law is, all state officials take an oath to the constitution, Article—you have to take what we say as the supreme law of the land, equivalent to the words of the constitution itself.  This conception, sometimes called judicial supremacy is the broadest view—once the court announces a principle of law, that principle of law is part of the law itself and other people should treat it as law going forward.  Nobody has this much of an extreme view of what the court has said.   If Cooper is true, everything they say would be law, once you are saying whether the court is right or wrong, you are no adhering to the Cooper view.


Supreme Court: Collateral Estoppel doctrine doesn’t apply to the government.  We don’t care that you have already lost this legal question on another case, you can relitigate this case.  (This is not possible under a Cooper v. Aaron conception). 


Court may apply doctrine of collateral estoppel to prevent a party from relitigating a case that they have already decided. 


Employment Division v. Smith  Use of peyote as a religious practice. Involved religious freedom execution act.  If a statute is neutral and generally applicable, it may still burden your free exercise rights.  Holding of the case: If a statute is neutral and generally applicable it is not unconstitutional, even if it burdens people’s free exercise of their religion.  You want to ban alcohol, that is fine, as long as it doesn’t target Catholics.  Congress didn’t like this act, they passed the Religious Freedom Restoration Act—referred to Cooper v. Aaron—Congress can’t  Congress, you don’t have the right to tell us that we got the first amendment wrong, we decide what the constitution means and you can’t enact a statute that reflects a different understanding of the constitution.


Middle Conception:  Lincoln—look the opinions of the court do not bind anybody, they just give the reasons why the court ruled one way or another, it is the judgment of the court that is binding.  Once the court issues a judgment, then the parties of the case are bound by the judgment.  The reasons behind the decisions are not law and are not treated as such.  This is contrary to Cooper v. Aaron.  All branches defend the constitution, each branch takes an oath to the constitution.  If you are a member of Congress and you think a statute is unconstitutional, then you shouldn’t vote for it.  If you are a president, then you shouldn’t sign a bill that you think is unconstitutional.


Final Conception:  Judicial cases have no legal effect, judicial judgments have no legal effect, they are just views the courts have and Congress and the President can ignore them.  “The most dangerous branch.”  The court can issue whatever they want, but nobody has to pay any attention to it, the president does not have to enforce the judgment. 


In practice we are between the Cooper v. Aaron position and the Lincoln position. 


Whether Article III judges are the best judges of the Constitution:

-Appointed for life

-Insulated from political pressures

-The conventional view is that they are better because they are independence, under the assumption that because they are independent they don’t have to worry about transient political majorities. 


Drawbacks of independence:

-Life tenure, possible that judges will become lazy and may not take their duty seriously once they have a guaranteed lifetime job.

-It is not obvious what people will do with the independence


III.  The Judicial Power: (ii)–External Limits on Judicial Power:


External constraints on the judiciary-

What can we do if we don’t like what the court is doing to the constitution?

-Pass an amendment.  Example 11th amendment.

-Appoint people to the court


-Jurisdiction stripping—exceptions clause, a way for Congress to say, “guess what supreme court, you are not going to have appellate jurisdiction over certain cases.”  Ex Parte McCardle

-Election returns


Impeachment for high crimes and misdemeanors. 


Jurisdiction stripping—exceptions clause, a way for Congress to say, “guess what supreme court, you are not going to have appellate jurisdiction over certain cases.”  Ex Parte McCardle--  Congress passed an act taking away jurisdiction from the Supreme Court, and the Supreme Court dismissed the case (for lack of jurisdiction).  Exceptions clause says that you can make exceptions.  Stands for Congress can make whatever exceptions it wants as to the Supreme Court’s jurisdiction. 


2nd to last paragraph:  what is the council in error about?  Just because you can’t proceed under one statute that was repealed, doesn’t mean you can’t proceed under the other statute.  We still have jursidcition under habeas cases, not under this statute, but under another statute.  You sought habeus corpus under one statute which was repealed, so you lose.    This guy can come here under another grant of jurisdiction from a different statute. 



-It is not obvious that a mistake in reading the constitution is a high crime or misdemeanor. 


Jurisdiction stripping:

-taking away the Supreme Court’s appellate jurisdiction.  They are not talking about their original jurisdiction. 


McCardle case:

During the Civil War Reconstruction, William McCardle, a newspaper publisher and professional soldier in the Confederate Army reaching the rank of corporal, published some "incendiary" articles which advocated the opposition of Reconstruction laws enforced by the Republican Congress. He was jailed by a military commander under a law passed by the United States Congress. McCardle invoked habeas corpus in the Circuit Court of the Southern District of Mississippi. The judge sent him back into custody, finding the military actions legal under Congress's law. He appealed to the Supreme Court under a congressional act of 1867 that allowed federal judges to issue writs of habeas corpus and hear appeals from circuit courts. After the case was argued but before an opinion was delivered, Congress repealed the statute.



1.  Did the Supreme Court have jurisdiction to hear the case?

2.  If so, did McCardle's imprisonment violate his rights under the Fifth Amendment?



1. No, the provision of the act of 1867, affirming the appellate jurisdiction of the S.Ct. in cases of habeas corpus is expressly repealed.


How would you distinguish or limit McCardle?  Say McCardle might be read to suggest that congress has plenary authority to make exceptions to your jurisdiction, but at the end of the case they mention there is another habeas route to get to the court, which may mean that the court said what they said because they knew there was another route to the court, and so if you read it in context it isn’t saying that congress has a free hand to carte blanche strip jurisdiction, maybe the court is saying that Congress can strip away one method of getting to the Supreme Court if there are other ways of getting to the supreme court.  I.e. if there are 10 ways go get to the SC on an issue, Congress can take away 9 of them. 


If you took away abortion cases from the Supreme Court, the decision would lie in the State Court.  There would potentially be 50 different state court interpretations. 


Opponents of the Supreme Courts would like to strip the court’s jurisdiction.


Stripping away the Supreme Court’s appellate jurisdiction doesn’t make their prior decisions any less precedent. 


Final external restraint would be electoral returns.  There are those who think that the court watch what is going on in Congress and the Presidential race and that they may be hesitant to stray too far out of the political mainstream (loss of prestige, influence).


IV. The Judicial Power: (iii)–“Self-imposed” Limits on Judicial Power


If they don’t have case or controversy, they don’t have jurisdiction.

-Advisory Opinion


-Political Decisions



Article III, §2—jurisdiction of federal courts. 


Why do we have these doctrines? 

1. The constitution requires it; and

2. They promote judicial restraint, don’t want the courts just willy-nilly issuing opinions about the constitutionality of statutes, etc.

3. Want to resolve concrete disputes and not deal with hypotheticals

4. Promote individual autonomy by only allowing affected individuals to go to court, want people who are injured in some way to go to court.


Advisory Opinions:


A real case or controversy is when you go into court to sue somebody else.  The idea is that none of us can go into court just to get legal advice.  In the early days the Supreme Court did give advice, until they got tired of it. 




Allen v. Wright


Constitutional elements of standing:

1. Injury in fact

2. fairly traceable to defendant’s behavior

3. redress


Prudential standing:

-statutory zone of interest

-harm is not too generalized/no generalized grievances (not clear what they mean by this, can’t be some injury that everybody suffers from)

-no third party claims


The court may say even though you meet the constitutional elements of standing, we can still say that you lack prudential standing.  I.e. statute wasn’t passed for your protection, it was passed for somebody else’s protection.


No generalized grievances: It can’t be something that everybody suffers from, it is not clear what they mean by this. 


Allen v. Wright


p. 92 respondent’s allege 2 injuries to support standing

1. Harmed by the mere fact that government financial aid discriminatory, helping them by not taxing them


Court elaborates on the first claim of injury—if you know the government is violating the law, you can petition them, but if you are not injured in fact, you cannot sue.  I.e. you if you see somebody taking a bribe, you can’t sue the official even though it is crystal clear that the official violated the law.  Your interest, your outrage doesn’t give you an injury in fact.  Your outrage in a third party’s rights being violated doesn’t give you standing.  Government’s mere failure to follow the law doesn’t not incur standing. (What about physical harm, such as in tort?)


Stigmatic injury-

You can’t just say that white kids are being siphoned away, you need to show some facts that would suggest that changing this policy would have some concrete effects of having more white counterparts in public schools. 


Difficult cases are where the government doesn’t tell you to do anything but you feel aggrieved.


They are not directly regulating the party that is suing, they are regulating or doing something else which supposedly has an effect on the party that the party views as injury in fact.  The folks in this case feel angry about the government’s program, but the court is telling us that is not enough for us to decide the case.  Standing is not a decision on the merits. 


Justice Brenan dissent:  The court doesn’t think the IRS did anything wrong and they are just using standing doctrine to say that. 


Stevens and Blackmun dissent:  This is just ordinary economics, if you raise the price of something, you know there will be less demand.  If you take away the tax deduction, the price of private school will go up and more whites will be in the public schools. 


Case or Controversy

No advisory opinions

Need standing

No political questions

Case must be ripe, or ripeness

Case can’t be moot


Where does the president have the power to get advice?  Article II, §2, c. 1.  Require opinion of principle officer of those departments about things in those departments.  This has never really been the case.  Today executive branch gets opinions from the office of legal counsel.


Lujan:  Issue: Does this statute apply to agency action overseas?  Initial regulation said yes, you do, but then it was changed to say that this portion of the endangered species act only applies to actions within the U.S. or its borders or on the high seas. 


Want them to go back to the old rule where they have to follow the endangered species acts all over the world. 


Injuries claimed: Eco-system nexus theory:  court doesn’t think much of this theory.  A statute can’t give you standing if you don’t otherwise have an injury in fact.  


Animal nexus: approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing


Vocational nexus: anyone with a professional interest in such animals can sue


What does the court say about these two theories?  They dismiss them.  What could they have alleged that would have given them standing?


That they had a ticket, but why does this fail?  Because this is a test case. 




Kennedy and Souter:  Marbury—if you decide that there is no jurisdiction, you stop.  If you don’t find an injury in fact, you lack jurisdiction.  Not only do they not have standing, but they lack redressability as well.  Part IV, why does he come back to injury in fact?  What is the procedural injury?  You can sue the government for violating the act.  If you are Congress why do you allow citizens to sue for not following the statute?  Because you know the government won’t always follow the statute. 


Allen v. Wright, you don’t have a  right to go into court to make the government follow the law.  The statute in Lujan gives people standing. 


If you don’t have standing, then you don’t have case or controversy. 


Kennedy and Souter: p.103 


Things to say before leaving standing:  Discussion about giving people a bounty if they succeed, a qui tam action, which allows you to sue on behalf of the government and get a monetary reward.  Classic case, if somebody is defrauding the government and you know about it, you can sue on behalf of the government and get 33% of the settlement.  Why do you have standing?  You are a third party.  I.e. if you saw your neighbor violating the law, you couldn’t sue them (the government would have to bring the action). 


Newdow case (pledge of allegiance):  The court is using the prudential standing doctrine to just avoid the case.  The majority of the case is afraid to get to the merits, they are afraid the court will find or will not find the pledge of allegiance constitutional.


Standing: 3 part constitution test

3 Prudential party doctrines

Zone of interest protected under the statute


Qui Tam-even if a person has no interest, they can sue on behalf of the government.  Qui Tam statute.  You bring the suit in the interest of the government. 


Political Question Doctrine:


6 types of political questions


Baker v. Carr


1. "Textually demonstrable constitutional commitment of the issue to a coordinate political department;" as an example of this, Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be "political questions"

2. "A lack of judicially discoverable and manageable standards for resolving it;"

3. "The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;"

4. "The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;"

5. "An unusual need for unquestioning adherence to a political decision already made;"  (need for finality)

6. "The potentiality of embarrassment from multifarious pronouncements by various departments on one question." 


Non-justiciablity is primarily a function of separation of powers.


Which of these seem to derive from the reading of the constitution?

1, 2, 3-- the courts make judicial decisions they can’t make policy decisions. 

The last three things aren’t constitutional law. 

4. Lack of respect, what does that have to do with the constitution?

5. Need for finality:  We want to let sleeping dogs lie.  Decision is final.

6. Embarrassment: you can say this about any case.


1. Textual commitment to another branch (Constitutional)
2. Lack of standard from resolution (Constitutional)
3. Impossibility of avoiding making a non-judicial policy decision
4. Lack of respect to a coordinate branch (not clear what this means, court can wheel it out when they don’t want to hear a case).
5. Need for finality (Let sleeping dogs lie)
6. Potentiality of embarrassment from multifarious pronouncement by various departments on one question


The problem with the political question doctrine is that we don’t know when the court will or will not invoke it.


Example:  We have these hostages in Iran, and we negotiate their release part of the negations is to freeze claims brought by private parties in American court against the Iranian government and ship all these claims to American Iranian tribunals.  The problem is that Americans who have these claims don’t want to go argue them to the tribunal, they want to argue the claims in America.  Court says that we don’t want to hear this case because the president probably didn’t have authority to remove cases to the tribunal.  That would be embarrassing. 


Lack of respect to a coordinate branch (not clear what they mean by this, court can wheel it out when they don’t want to decide a case).


Textual commitment to another branch (Constitutional)—could mean that the constitution decided that YOU (Congress or president) gets to decide this.  That being the case we don’t have jurisdiction over this issue.  It could just mean that you did nothing wrong.  If you say you did nothing wrong, this sounds more like a decision on the merits, not the political question doctrine.


Powell v. McCormack

o   House resolution forbade Powell from taking his seat in the House b/c of findings that Powell had diverted House funds for his use and the use of others and made false reports on expenditures of foreign currency ot the Committee on House Administration.

o   Powell sued various members of and officers of the House seeking a declaration that his exclusion was unconstitutional.

o   Art.I, Sec.5 clause 1 state the each House shall be the Judge of the qualifications of its own members.

o   S.Ct agreed with Powell and interpreted the Constitution to say that the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.


2. The political question doctrine and foreign affairs

-          Goldwater v. Carter

o   Senate thinks they should be consulted to terminate the treaty since they helped make it.

o   Court says they aren’t going to hear this case.

o   Brennan says this is not a political question.

o   Rehnquist: This is apolitical question. There are no standards here. The Constitution doesn’t say who can unmake treaties. It would be embarrassing to intervene here.

o   This is a doctrine also used in the context of war. S.Ct. doesn’t want to get involved with presidential war power. Whether president can start a war is very controversial.

§  Fear that allowing the court to intervene, the president might lose his power.

o   People want courts to intervene b/c they thinks the court will intervene in their favor.

o   It’s one thing to tell him not to do this before he terminated the treaty, but now it’s embarrassing.


-          Japan Whaling Assoc. v. Baldridge

o   Japan announced it would not comply with the Int’l Whaling Commission quotas for fishing. The US agreed it wouldn’t certify that Japan was in violation of the IWV quotas and Japan promised to stop all commercial whaling.

o   S.Ct. held that interpreting treaties and executive agreements doesn’t fall under the political question doctrine.


When you invoke the political question doctrine that means that you don’t get to the merits of the case.  This is a bit confusing. 


U.S. v Nixon:  Nixon is a federal circuit judge, where a case used the political question doctrine.  Impeachment case.


Is there something in the constitution that says the court can’t review impeachment problems?  No, there isn’t.  They are reading the constitution and seeing if there are certain times where they can’t be involved.  The court thinks that the constitution would give them a means of checking the judiciary, but then letting the courts review this process.


Times when courts can’t be involved:


1. Impeachments: The court doesn’t think it should be involved in a process that they, themselves can be subject to.


2. Amendments.  Courts will probably not take this since it is a political question.  It is a mistake to have the courts involved in a process that could curb the court’s influence.  Won’t get a court to hear an article V case.  Courts will not decide what the proper amendment process is. 


Baker v. Carr


Last allocated seats in 1901, 60 years later they have the same districts but there is radically different populations.  Violation of the equal protection clause, 14th Amendment. 

Guarantee Clause: Guarantees a republican government.  Article 4, §4.  All states guaranteed a republican form of government. 


Luther v. Borden Case: RI, revolution, new government.

Court says that we don’t want to get into situations where we are deciding where some legislature or some other legislature is the government.  We don’t want to hear those cases, we don’t want to get involved.  Republican guarantee clause is non justiciable. 


Baker v. Carr comes out differently than Luther v. Borden


If you would have brought this as a guarantee clause case, then we can’t hear it, but you brought it as an equal protection clause case, a line of cases which we have heard.  This case comes out differently in part because they had the same claim but a different clause.  The real reason it comes out different is because the court says that they can decide this type of case.  Case is important because it gives us the 6 categories, even though none apply.


Davis v. Bandemer

o   S.Ct. held that the claims of partisan gerrymandering were also justiciable.

§  Two camps

·         Adopting a relatively stringent standard that required πs to show that “the electoral system is arranged in a manner that will consistently degrade….a group of voters’ influence on the political process as a whole.”

·         Π-friendly standard that looked at facts such as

o   The nature of the procedures by which the challenged redistricting was accomplished and the intent behind the redistricting;

o   The shapes of the districts and their conformity with political subdivision boundaries and other “neutral” geographic criteria; and

o   The lack of any nonpartisan explanation for the district boundaries.

-          Cases after Bandemer were unsuccessful b/c it was impossible to meet the Bandemer’s “consistent degradation” test.


Vieth v. Jubelirer (137)—political question #2 at issue


Partisan gerrymandering case: there isn’t anything in the constitution about this. 


Habib, Nixon


Bush v. Gore


This is in the casebook because the authors hate the case, and because you could have argued to let the political branch figure this out.  What if they had a recount which suggested that Gore had won.  This is an ideal situation for the court to stay out of.  Court: this would be an absolute disaster if it went to Congress, we have to fix it. 


Foreign Affairs and political question doctrine:


Carter and Taiwan case.  Carter terminates the treaty and Congress doesn’t like this.  Congress, president has to come to us to make the treaty, he has to come to us to unmake the treaty.  Court says that they won’t hear the case.  No standards, Constitution says who makes treaties, but not who unmakes them. 


Political question doctrine, with discretion, we don’t want to hear this case.


Internal restraints on the article 3 courts: 

Mootness and Ripeness


Ripeness:  When we say ripeness we are basically talking about when you should bring your case.  It is not ripe, that means that it is too early to bring the.  I want to get a declaratory judgment declaring the law unconstitution.  Court: maybe it is unconstitutional but we don’t know how the executive will enforce this issue, so wait a little while, we don’t want to decide right now.


Mootness is too late: whatever you want you either have gotten, or it is impossible to get.  If your injury goes away for some reason it becomes moot.


Exceptions: Capable of repetition, yet capable for review.  Roe. V. Wade.  You can’t get an abortion, it is moot, but we are going to hear the case anyway because this can happen to somebody else.  The case may always evade review because it may take so long for us to hear the case.  Other instance of such cases would be students wishing to enter law school but didn’t get in and they challenge the school’s education policy.


How many votes do you need for a writ of certiorari?  4 votes.  The court will oftentimes grant cert. and then it will dismisses the case because the cert. was improvidently granted, which means that there is some reason that the case is useless to them. 


2 ways to get to the Supreme Court:


On appeals, try to invoke the Court’s appellate jurisdiction.  Or you can ask the Supreme Court to grant a writ of certiorari.


Appellate jurisdiction:  It is mandatory in the sense that if your case fits within the appellate jurisdiction, the court has to hear your case.  Today the appellate jurisdiction of the supreme court is very small.  Congress has given them a lot of discretion by making all cases brought under writ of certiorari.  If you want the SC to hear your case you petition for a writ of certiorari.  If you ask for a writ of certiorari it means that you lost below. 


Supreme court doesn’t see itself in the business of error correction.  If all you are saying is “I didn’t commit the crime, etc.” you probably won’t get a writ of certiorari. 


You don’t have a right to a full opinion or even an oral argument.  The court could say, “affirmed for the same reasons below.”  The judgment is what really matters.  You can’t have a ruling without a judgment, but you can have a ruling without an opinion.


V. The Executive Power

Article 2 says that the president has the executive power.  Oath, duties, election.  Treaties.


Does the grant of power in article I, section 1, grant any additional powers other than those included in article 2?


One side says yeah, article 2, sec. 1 grants power not found in the constitution.


The other theory is that president only has the powers found other where in article 2.


How does article 2 differ from the structure of article 1?  Article 1 says that Congress should have all legislative powers herein granted, it does not have generic legislative powers, article 2 does not say that.  Article 1 is meant to give Congress only certain legislative powers, some people way the difference should be respected but article 2 is meant to give the executive all executive powers as limited by article 2 and elsewhere in the const.  Article III is more like article II. 


Youngstown Case:


There is a dispute between steel company and employees over their collective bargaining agreement.  President steps in and tells secretary of state to step in and take control of the steel factories. 


Every two years you must decide whether or not you will have an army. 


Congress is the one that creates and funds the army and the navy, what does the court say about?


What is an executive order?  It is just an order from the president to somebody in the government to do something or not to do something and it is based on statutory or constitutional authority.


Nobody said that this action was authorized by the statute; the government said that the constitution allowed the president to do this. 


What is distinct about Frankfurter’s opinion?  Frankfurter specifically says that, if president’s have been doing this for a long time, then I am inclined to see it as constitutional.  According to justice Frankfurter, the president hasn’t shown sufficient past practice to justify his actions.  Practice can kind of change the meaning of the constitution, Black doesn’t like that. 


Jackson:  3 categories, is there any category where the president automatically win or losses? 


Jackson's opinion took a similarly flexible approach to the issue, eschewing any fixed boundaries between Congress' and the President's power. Jackson divided Presidential authority vis a vis Congress into three categories, ranked in descending order of legitimacy: (1) those cases in which the President was acting with express or implied authority from Congress, (2) cases in which Congress had thus far been silent, and (3) cases in which the President was defying congressional orders. He classified this case as falling within the third category.


Maximum Power: (Best chance of president winning)


Category 1: President and Congress are acting together, but it doesn’t necessarily mean that the President wins. 


Zone of twilight:

Category 2:  Congress doesn’t say anything, it is unclear whether they are granting permission.


Minimum power:

Category 3: President wants to do something and Congress says you can’t.  Court may okay president’s action.  There might be some constitutional powers that Congress can’t regulate. 


3 categories but they don’t tell you how to decide the case, they just tell you to feel about it.  The best chance of winning is category 1, the best chance of losing is category 3, and the middle ground is category 2. 


Youngstown Case:


When Congress doesn’t pass legislation, all it means is that they didn’t pass legislation on it, not that they approve/disapprove certain things. 


It is not easy to pass legislation.  If they submitted legislation, Truman could have vetoed it. 


Black: do you have authority to do what you did, not whether or not there is a prohibition on what you tried to do. 


Two theories:

1. Tell me I can’t do it, or otherwise I can do it.

2.  You can’t do anything unless you have statutory and/or constitutional authority.  Theory majority goes on, arguably both sides are going on.


Fight between labor and management, and Truman basically seizes the steel mills to ensure that labor continued to work there. 


Youngstown important because it established the three part test that Jackson made up, this test will turn up in Dames & Moore v. Regan. 


Dames & Moore v. Regan


Executive Agreement:  Why didn’t they call it a treaty?  Article 2: Treaties are made with consent of the senate, the house is not involved in making treaties.  President can propose a treaty and the senate can decide to consent or not, and the president decides whether or not to ratify the treaty. 


Self executing treaty: doesn’t require federal legislation for it to take effect.

Non-self executing treaty:  this treaty will not constitute the law of the land until Congress passes legislation making it so.


What is an executive agreement?  An agreement made between the executive branch of the U.S. government and a foreign government without ratification by the Senate. 


Why are executive agreements treated different than treaties?  The Constitution mentions treaties in Article II, and “other agreements” in Article 1, section 10.  The only type of international agreements subject to the treaty clause are treaties, lesser types of international agreements don’t have to go to the senate but they also don’t fall under the supremacy clause, so they are not the supreme law of the land. 


Case in which silence means acceptance, in Youngstown they said that silence meant that Congress disapproved. 


In this case they reverse Youngstown, saying you have a lot of authority in foreign affairs and you have been doing this for a long time so we think that Congress approves of what you did.


They could have said political question and that they aren’t going to rule. 


What the president should do when faced with a crises?  Always question about whether president should act beyond the scope of statutes and constitution.

1. President has all the power he needs to resolve or solve a crises.

2. No, he doesn’t have generic power to do whatever he thinks is right, he must either have constitutional or statutory power.  (Black’s view)

3. The president should do whatever he thinks necessary and then he should throw himself and the mercy of the court and Congress, and say “I did what I thought was right, and if I am wrong, then punish me.” 


Jackson reads: Legislative history coupled with other decisions indicates that Youngstown is a category 3 case. 


This case silence is read in support of what he did.  The answer is that it can be in any one of those categories.


Presidential Priviledges and Immunities


Mississippi v. Johnson

-You can’t get enjoin the president.  You can however, enjoin the other people around him. 


Injunctions against the president doesn’t matter unless the president’s personal involvement is crucial to the decision.  If you can enjoin the secretary or war, etc. you will accomplish the same result.  You can gum of the machinery of the presidency by enjoining everything else.


Nixon v. Fitzgerald


You want president to do his job without having to look over his shoulder about getting sued for damages.  The president is always on duty.  When he is doing his job you can’t sue him for what he did.  Can’t sue him for damages arising out of his official actions.  The suit is Richard Nixon president, not Richard Nixon citizen of America. 


Clinton v. Jones Case:


Since this took place before you were president, it wasn’t your official capacity, so we are going to allow you to be sued.  You are not immune just because you are president; you are only immune for the official acts you take. 


Reading the Nixon case, it seems like Clinton should have won, under Nixon either way it would have been diverted (doesn’t matter whether he is being sued for late rent, etc.) 


Who has immunity under the express terms of the constitution?

-Article I, members of Congress have certain immunity: Section 6, cl. 1. 


One argument: When the constitution wants to give immunity, it says so, and there is no corresponding term in Article II.


Nixon v. United States


Legislative Power


Legislative Veto


Nixon v. United States

Nixon is asked to turn over some papers from the Watergate scandal.  Nixon doesn’t want to turn the papers over. 


Supreme Court: Balancing, Nixon says he has an absolute privilege and there is no way I am going to turn these papers over.  Even if I don’t have an absolute privilege I should triumph over the needs of the special prosecutor.  So you don’t have a


What is a special prosecutor?

Nixon appointed somebody to investigate the white house, they did that because they said you can’t investigate the white house DOJ, because you can’t be fair in investigating your own boss (DOJ investigating president).  Justice Department said that they would create a special prosecutor and give him the right to investigate the white house and that person will conduct the investigation. 


President and lawyers are saying that there isn’t a case or controversy here.  I.e. Pontiac can’t sue GM, because Pontiac is part of GM.  It is just one big entity.  Prosecutor is going after president, is prosecutor going after boss, and the president has told him not to. You ought to dismiss the case.  This argument fails because the president created a regulation that created the office of the special prosecutor and the regulation says that the special prosecutor can contest claims of the executive privilege and you Mr. President are bound to honor this regulation until you change it or get rid of it, and we are going to allow this case to go forward. 


Once the court found that the executive privilege qualified to be overcome, under what circumstances could it be overcome, and where can it not be overcome?


Under what circumstances might it be more difficult to overcome executive privilege (i.e. when is it more likely that the president might win.)  IF you are raising some sort of military secret or foreign affairs secret claim then the court is more likely to uphold the executive privilege.  Do they say that the president always wins in those situations, no, they are just saying that he has a better chance, not that he necessarily will.


What circumstances in this case led the court to conclude that the executive privilege should be waived?

-Central reason is because this is a criminal case, criminal stuff is important, the need for information in a criminal context is really paramount, must catch the guilty.

-Civil case, we are not talking about situations where executive privilege is claimed in the context of a civil suit.

-They are not ruling on whether or not Congress can supeona documents or testimony


All the court is saying is:

-A: we do thing the Constitution gives the president some executive privilege that arises out of separation of powers

-B: we think the executive privilege has to give way when we are talking about the means of a criminal trial.  Due process, confrontation clause, we want justice done in a criminal trial. 

Whose Due Process rights would be violated if the president doesn’t turn over the case?  Special prosecutor, does he have due process rights?  No.  They are citing the Due process clause for the co-conspirators, but it is the prosecutor who wants the tapes. 


Confrontation clause, right to confront those that are testifying against you.


Courts opinion irrelevant to the facts of the case.  Due process, confrontation not really an issue.


Courts reads an implied privilege of executive privilege and then implied exceptions to this privilege. 


What happened after this case?  What is the district court supposed to do?  Review evidence in private, and admit the stuff that is relevant and omit everything else.


Cheney v. United States District Court


Tells us what we already know from Nixon.  Balancing test applied in lower court.  See quote on p. 412:


Impeachment: Treason, bribery, and other high crimes and misdemeanors.  House acts like a grand jury and indicts you and the Senate acts like a jury and decides whether or not you are guilty.  Once you are guilty, what is the most they can do to you?  They can remove you from office and bar you from holding any future office in the United States.  The impeachment process isn’t meant to be a process like the ordinary criminal process, it is not meant to put people in jail.  You can be impeached and then criminally prosecuted.    House and Senate cannot put you in jail. 


Not clear what they mean about bribery.  Receive bribe, or if you bribe somebody.  Briber, or bribee.

Also, not clear what they mean by high crimes and misdemeanors.  Mysterious to lots of people.  Some say that it has to be a crime, if not a crime then it is not a high crime or misdemeanor.  Another conception, it is not about crimes per se, you can commit a crime that is not a high crime or a misdemeanor, high crimes and misdemeanors have to do with politics and the state.  Must relate to his office.  I.e. if president commits a robbery, it doesn’t relate to his office so it is not a high crime or misdemeanor.  Some things aren’t crimes but they could be high crimes and misdemeanors.  I.e. if you are president and you refuse to enforce a constitutional statute.  This isn’t a crime, but it is a political offense.  3rd conception: A high crime or misdemeanor is whatever congress says it is. 


Who were the two presidents impeached? Johnson and Clinton.  Although neither was convicted.  They were 1 vote shy of convicting Johnson.


VI. The Legislative Power: Introduction


Can’t delegate power in an unconstrained and limitless way.


Delegation of Congressional power:


1. Guildelines must be detailed. (can’t be too vague)

2. Must be clear goals (intelligible principle)


Legislative Power:  Article 1


Question of delegation, to what extent can Congress delegate its legislative powers, does the Constitution permit that?  Congress cannot delegate legislative power, but they can delegate discretion.  Problem, how do we distinguish legislative power from discretion?


Only 2 times in history the court has struck down statutes using the non-delegation doctrine.  Sick chicken case and hot oil case. 


Panama Refining and the ALA Schechter Chicken case.


Clinton v. City of NY


Line Item Veto Act, gave president the right to cancel out appropriations.  President cancels some out that would have benefited New York. A Line item veto is where the president can just cut out portions of the proposed statute that Congress presents, the court did not allow this.


Court: you’re right New York, president can’t be given the authority to cancel statutes, he has to execute the laws not cancel them, he can’t do what he has done here.


Dissent: Breyer, Scalia, this is just a delegation to the president.   Had the statute said, here is 5 million for NY, but the president doesn’t have to spend it, that would be fine (this would be a delegation), but because the statutes just talks about canceling part of statutes, Scalia said the Line Item Veto Act faked out the supreme court, treating this case not like a delegation case, which it really is.  Court got jittery over the fact that the Act said the president could cancel it. 




Is about Congress trying to control the discretion given to bureaucrats.  Congress wants to be able to overturn decision of Attorney General.  This is a one house legislative veto, if either the house or the senate votes to overturn the decision the decision doesn’t stand.  Once chamber has the right because a previous statute said that Attorney General can make decision about whether somebody can stay or leave, but the AG’s decision can be overturned by the House or the Senate. 


What type of power does Congress have over administration of the laws?


Chada, removal cases, etc.


India born in Kenya with a British passport, his Visa expired and there was a statute that said the Attorney General can decide who is or is not deported.  The house vetoed the Attorney General’s decision.  The house got the authority to veto the Attorney General form a statute that granted this power to the Attorney General.  Statute also said that if one chamber of Congress said the alien had to go, it could veto and overturn the Att. Gen.’s decision.  Also committee legislative veto.  Also a two house legislative veto, where both chambers must agree. 


Passing vetos is easier than passing legislation.  Legislation has to go to the president.  They have been around a long time and a lot of statutes have them. 


Why is the statute overturning the Attorney General’s decision unconstitutional?  Article I, § 7, cl. 2 and 3.  A 1 house veto, not covered by section.  Can call it a duck a mongoose whatever, but you can’t just change the name of something and avoid presentment.  The Senate alone can’t change somebody’s legal rights.  You can’t just give yourself authority by passing a stature to get around this clause (Article I, Section 7).  If you want to change somebody’s legal rights you have to go through this process. 


Chada’s rights-you have a provisional right to stay, until the house and senate kick you out.


Chada stands for the proposition that if Congress wants to change somebody’s legal right, it’s got to go through the article I section 7 process, i.e. both houses must pass and it must be signed by the president. 

Can we change people’s rights without going through bicameralism?  Yes.  Rulemaking.  Federal agencies are given rulemaking ability all the time, ETA rules, securities rules, political speech rules, all sorts of rules are coming from Washington and they are written and made valid outside of the article I section 7 process.   These regulations change people’s legal rights.  Point, it is possible to change people’s legal rights out side of Article I section 7, it is just not possible for Congress to change people’s legal rights outside of article 1, §7.


Chada is really a decision about Congress’ power to change people’s legal rights, not the government’s power more generally.  We are objecting to YOU congress trying to change people’s legal rights under article I, sec 7. 


Can’t use a statute to get around Article I, sec. 7.  I.e. can’t pass a bill giving the speaker of the house power to overturn any decision by the executive branch.  Court: you cannot possibly give the speaker of the house the authority to overturn all these decision, even though you passed a statute.  No problem with how you passed the statute, the problem is with how you passed it. 


White Dissent: Over 200 statutes had this provision, and now they are invalid.  It is difficult from seeing Article 1, §7 as forbidding a check for yourself. 


Bowsher v. Synar-


Gramm-Rudman Hollings Act.

Congress if we spend over a certain amount then the comptroller general will.


He is enforcing the law, but he is an agent of Congress, and that is a no-no.  There is nothing wrong with across the board spending cuts, but we can’t have this guy doing it.  See top of p. 434. 


Congress can’t use its agents to execute the law, must be somebody independent of Congress or an executive branch authority.  Congress can’t add to its power just by saying it is adding to its power.


Majority opinion stands for the proposition that this type of activity is execution of law and it can’t be undertaken by Congress. 


Dissent: see casebook.




Removal is firing somebody.  From the beginning of this country president’s have removed officers at pleasure except for article 3 judges.  These officials serve at the pleasure of the president. 


Tenure of office Act of 18


1923-Meyers Case. 

President Wilson appoints Meyers to the Post Office.  He appoints him once and then he appoints him again.  At some point they decide that the Portland Post Office is in shambles, tell him he has to resign.  Meyer says that he can’t be fired because the Senate has to consent to removal. 


President has the appointment power has right to remove them unilateral.  Congress can’t give a check on President’s power to move.  Executive power, appointment power all points to a removal power.  Suggests that president can fire any officer of the United States.


Federal Trade Commission under Roosevelt.


Humphrey Case:

You can’t fire me, I’m not part of the executive branch.  Even though Meyers is 6-3 for president, this case was 9-0 against the president.  Meyers is about executive officials, it was only about executive official.  The federal trade commissioner is not an executive official, he has quasi legislative (gives advice to Congress) and quasi judicial (decides about people).  Doesn’t give a clear sense about what a quasi-legislative, quasi-judicial.   Not clear to some commentators that FTC officers aren’t also executive officers. 


Wiener v. US:

o   The commission’s adjudicatory nature implied a limitation on the President’s power to remove.

-          Both cases recognize a congressional power to create “independent” agencies – gov’t entities that are free from presidential removal power. And to some uncertain degree, presidential power to supervise and control the decisions of their officers.

Buckley v. Valeo

-          Fed. Election Comm. created to oversee federal elections. Authorized to investigate, maintain records, to make rules governing federal elections, and to impose sanctions on those who violated the Act and the commission’s own regulations.

-           Ct. held that vesting a commission whose members were appointed in this manner with some of these functions violated the appointments clause of Art. II, §2, cl.2.

o   Any appointee exercising significant authority pursuant to the laws of the US is an “officer of the US” and must \ be appointed according to the appointments clause.

-          Ct. said the committee can still investigate and inform, but the more substantial powers (discretionary power to seek judicial relief, power to render advisory opinions or to determine the eligibility for funds) is unconstitutional.



Just said, Humphrey’s drew distinction between executive officials and non executive officials.  Morrison said that we don’t care about executive or non executive, care about whether or not president can carry out his functions even where his ability to remove executive officers is impeded or limited.  Do this because they want to uphold the independent council statute which made sure that Archibald Cox is never fired again. 


Independent council fails for 3 reasons:

Appointments clause argument (3 parts)

1. This person was improperly appointed, because they should have been appointed by the president.

2. Even if she is an inferior officer, she can’t be appointed by the court because she is a prosecutor.

-Notion about removal:  If you have an executive officer, Congress can’t restrain the president’s ability to remove. 

3.  General separation of powers argument.  You shouldn’t have courts in the business of getting involved in prosecution work and shouldn’t allow Congress to create this office which is designed to hobble the president.


Court rejected all three.  The court was thinking to itself, it is unseemly for the president to be in charge of the person investigating him.  It seems ridiculous that the president will allow somebody to investigate his people or himself without telling that person what to do. 


Officer stuff:  Inferior officers, you can give unilateral appointment authority and they don’t have to come to the Senate.  If she isn’t an inferior officer then she is in the first part of the clause and she has to be nominated by the president and approved by the Senate. 


Court says that she is inferior because she has a limited jurisdiction, she can only investigate the people allowed by the statute.  Limited authority, limited time, inferior, therefore she doesn’t need to be approved by the Senate and nominated by the president.  Doesn’t say departments can only appoint inferior officers within their respective spheres.  Makes sense, you can’t have an independent prosecutor appointed by the president.


Later they reject part of Morrison holding that to be an inferior, you must have a superior. 


This inroad in power doesn’t really diminish the president’s executive power or ability to execute or carry out the law.  Dismiss separation of powers argument as well. 


Scalia dissent, president has executive power. 




Congress creates the sentencing commission and makes it a part of the judicial branch and gave them a lot of authority to set guidelines for sentencing federal crimes (people challenged this on the grounds that Congress delegated legislative power and the fact that it was the judicial branch), and these guidelines were mandatory on the federal judges.  This is a response to the fact that by giving judges so much discretion they opened the potential for vastly different sentences for the same crimes. 


Court: It is okay to delegate discretion to a bunch of judges.  Judges have discretion and the commission is just giving that rule making authority.  There is a twilight area in which the function of the various branched merge, thus although courts may not generally exercise executive and administrative duties of a non-judicial nature, some forms or judicial rulemaking are permissible.


Scalia dissents: this commission just puts out rules and that makes them a junior varsity Congress. 


Executive Department:

DOD-Department of Defense, State Department, Commerce Department. They can investigate and report as well.  Rulemaking.  Adjudication—if statute allows them to.  Prosecute and execute.  Departments tend to be headed by a secretary. 


Independent Agencies:

FEC, FCC.  They can investigate and report as well. Rulemaking.  Adjudication—if statute allows them to.  Prosecute and execute.  What makes them different is that these things tend to be commissions make decisions by majority votes, and that Congress makes them independent.  Are they constitutional?  They are now.  Humphries Executor Case (look up).  These agencies do exercise executive power, but they do other things as well, the court saying these are fine no matter what they do, as long as Congress makes sure they want them to be independent of the president, that is all that matters. 


Congressional Agencies: 

General Accounting Office (Comptroller General Bowsher), Congressional Budget Office.  All they can do is investigate and report (Bowsher). 



Investigate and Report



Prosecute and Execute

Executive Department





Independent Agencies





Congressional Agencies






You can view the three entities (legislative, executive, judiciary) as completely separate from each other, or you can view the three entities as having some overlap with each other.


VII. The Intersection of Legislative and Executive Powers:  Foreign Affairs


Foreign Affairs: 


What powers does the president have in foreign affairs? 

President:  Foreign affairs powers:  Commander in Chief of Army and Militias.  Make treaties with the advice and consent of the Senate.  Appoint ambassadors with Senate Diplomat.  Receives ambassadors.


Congress:  Regulate international commerce, declare war, raise and support armies and navies, power to speak/answer foreign policy, power to instruct ambassadors, power to break treaties.


Powers that aren’t discussed, power to speak on behalf of the nation to announce the foreign policy, power to instruct ambassadors and provide them with directions, the power to break treaties. 


3 Views about the non-delegated powers:

1. Some people say that these powers are not allocated, the const. is silent so it is a struggle between the president and the congress, there is no right answer

2.  Congress has the more important foreign affairs powers.  Congress can regulate commerce; declare war, both of which are important, so they probably have these powers as well.

3. The president has these powers he is the organ of our foreign relations (Curtis-Wright) (non-textual reading) president more concerned with foreign affairs than Congress, or president has these powers by virtue of grant of executive powers, president has all the foreign affairs duties, except those specifically given to other branches.  Bottom line of this argument is that he is either better suited or because the constitution provides for him to do so.


Executive Agreements: 



Claim here is that the power to make law was delegated to the president.  They uphold the Congressional delegation.


We think the president has the powers that aren’t specifically mentioned because the president is best able to use them. 




1.  We don’t think that the stuff listed in the constitution about foreign affairs is all the foreign affairs powers that the government have.  Even if the constitution didn’t mention war, ambassadors or treaties, the federal government as a whole would have those powers.  2nd part of the opinion says that president is best able to use these non enumerated powers.  It should be okay for congress to give him extra authority by a statute. President is somebody who should naturally


1. Don’t just read the constitution and think that these are all the foreign affairs powers, there’s more and they are all given to the federal government.   

2.  They naturally reside with the president.

3. Given that he is the natural foreign affairs honcho, it is okay for Congress to give him more foreign affairs authority. 


**Important case because it is always cited by the executive branch when the executive branch wants to do something with foreign affairs.  It says executive is sole organ for dealing with foreign affairs.  It is better than just citing the executive powers or something else because this case is from the Supreme Court.


Declare War:


What does it mean to declare war, what powers does Congress have?  3 theories:


1. Most narrow: Congress just has the power to recognize the state of war and to have the international laws of war apply.  Narrow because it suggests that the president can start a war on his own without declaring war.  This is a broad understanding of the presidential power.


2. Ramsey theory: Declare war means starting a war, if you are the first to fight a war then you have declared war within the meaning of the constitution.  If the president starts a war, then he has declared war and this is a no-no because only Congress can declare war.  This means that only Congress can start a war. 


2nd part to theory, if another nation declares war against the US first, then the president can just fight that war because there is no war declared, it has already been declared by another nation declaring war or attacking the United States.   


3.  The Declare War power is all about whether to fight a war, but it is about that decision in both contexts, you need to go to Congress to start a war or fight a war, but even if another nation attacks first you have to go to Congress to declare war, the president just cannot start bombing other countries when attacked, because he has declared war by doing this, and that is against the constitution.  This is a broader conception that gives more power to Congress.  Even when attacked by another country, president must go to Congress for approval to declare war.


Can the president do other things to defend the nation without declaring war?  Yes, he can, the president can repulse attacks, this is not a declaration of war. 


This very question came up numerous times over the years, most infamously in a war against Tripoli. 


Modern times, series of conflicts without war being declared.  Korea, Kosovo, Vietnam. 


Can treaty based entity (UN) authorize the US to declare war, or do you still need to go to Congress?  Depends on who you ask. 




Statute saying that you can’t jail a citizen of the united states unless there is statute authorize it.  Hamdi is a citizen of the US whether or not he is fighting for the Taliban.  He is saying the AUMF, didn’t authorize the US to detain him, so the previous statute still applies. 


Executive, when you have an AUMF, you are authorizing the executive to fight the war and also to detain combatants of the other side.  Read AUMF as having an implied exception to 18 USC 4001A (the statute saying that you must have an act of Congress to imprison a citizen).


Ending war: Undeclaring war, peace treaty.  Congress can pass a statute saying that the war is over.


War Powers:


Ways of ending a war:


 1.  The traditional way, is to end the war with a peace treaty.  Treaty would be submitted to the Senate for its ratification, if 2/3 agree, the treaty goes into affect. 


It is very difficult to end a war with a treaty because you need 2/3 of the Senate to agree. 


There are other ways in which wars are ended


2.  The second way a war is ended is an armistice—where both parties kind of agree to not fight anymore. 


3.  Congress can pass a statute saying that the war is over.  The president still has to sign this. 


4.  Appeal the authority for the use of force.  You might think it is possible for Congress to repeal the president’s authority to use force. 


5.  Defund the war, we aren’t going to let you spend any money to fight this war anymore.  2 ways, passing a new statute that says no funds to the army appropriation bill shall be used to conduct operations in Iraq, unless those operations are used to take troops out of Iraq.  The president doesn’t have any guarantee of funds for the war.


6.  Stop legislating, won’t have any money to function anymore.  They have pass appropriation every 2 years, need to pass appropriations.  If Congress just at on its hand it could end any war that is ongoing as soon as the appropriation expires. 


War Powers Resolution/Act:


It allows the President to use the military forces for 60 days, without a formal declaration of war by Congress, it grants an additional 30 days upon a formal request by the President, regardless of Congress's agreement with the request.


This is not meant to preclude president from using force without Congressional approval.  Consult:  the word consult doesn’t mean the president has to have prior approval, 1543 (called a reporting requirement) just means that the president must report.  This act is an attempt to make sure the Constitution’s allocation of war powers to Congress is meaningful, it is an attempt, but a really bad attempt. 


1544-Termination of Use by United States Armed Forces

You have to pull troops out if we don’t approve of use of force after the fact.


Say that president has introduced troops into Iran.  If Congress is opposed, they might do nothing in which case the statute tells us that such an action will be construed so as the president must withdraw troops.


Typically after a war begins the nation has a tendency to “rally around the flag” and support for the president tends to go up.


War Powers seems like an act designed to constrain the president, but many people say that it actually does the opposite.  Great idea in theory that has never worked.  Another possibility is short wars, i.e. Grenada.  If you can finish a war in 60 days, you don’t care what Congress says. 


1544 part c, concurrent resolution.  This is actually superfluous, if Congress has the power to stop the war; it has the authority irrespective of this statute.  If it has the power to stop war, it has the power via the constitution itself. 


If the president starts a war, who would have standing to challenge him?  Somebody in the military.  There is standing for an individual soldier to challenge the war, but the court may still invoke the political question doctrine. 


International Agreements:  Treaties, executive agreements.  Dames and Moore v. Regan, they can have


Congressional Executive Agreements: An international agreement that isn’t ratified by treaty and it is sufficiently important that the president cannot enter into unilaterally, instead Congress embodies it into a statute, the most famous agreement is NAFTA, in the past this would have been a treaty.  Why did they call it an agreement rather than a treaty?  They didn’t think they could get 2/3 of the Senate to agree to it.  If you just get a majority of the Senate rather than a 2/3 super majority.


Often it is easier to get a majority of the house and senate than a super majority of the Senate.  Way for president to get international agreements without having to get the senate to concur by 2/3. 


People say they are unconstitutional because they don’t meet the treaty requirements.  Innovation of the 20th century and gets Congress to approve them rather than the senate and avoids the 2/3 requirement. 




An American citizen captured in Afghanistan and whether or not he is entitled to a trial before the government is able to continue to detain him.


He says that he is an innocent person who just went to Afghanistan for peaceful reasons, and the government says that he is a part of the Taliban (he was captured with a gun).  Hamdi said that he is entitled to all the protections of a normal American and that he can’t be held in jail.


Majority opinion: It is okay to hold him because the AUMF implicity authorizes you to detain people involved in the conflict and that implicitly overcomes 18 USC 4001.


If he contests that status you must give him some procedures, it doesn’t have to be a full trial, but he must have some trial and some procedure.


Scalia and Steven dissent together.  Say that you have to charge this guy with a crime or you have to let him go.  He is an American citizen, has a right to habeas corpus.


Authority of Attorney General to give legal advice deteriorated over time, AG in turn gave authority to OLC, within the DOJ.  Office of Legal Counsel—give legal advice to administration as a whole whenever there is a dispute as to the meaning of the constitution or a treaty is in question. 


Torture memo and presidential advice giving:


Torture: torture leads to organ failure.  In a time of war Congress can’t tell the president how to run the battlefield and if they can’t do that, then they can’t tell the president not to torture. 


Regulation of presidential power: Category 3 case (from 3 categories in Youngstown), Congress says the president can’t do it, and the only way he can do it is if he has Constitutional authority that can’t be regulated by Congress. 

Congress can regulate military under Article I.  Congress passes the McCain amendment saying that you can’t torture folks and had a different definition of torture.  President put something out that suggests that he might not follow the McCain amendment. 



Hamdi and Hamdan:


Hamdi: about detention of citizens.

Hamdan: is about trying of the enemy by a military commission.


Detention means that we are going to hold you for the duration of the war. 


Military commissions are meant to try people for crimes and to punish them in some way. 




Hamdi was an American citizen and was captured in Afghanistan and then turned over to the American government.  Why does the government think Hamdi is in line with Al Qaeda? 


Why is Hamdi a citizen of the United States?  He was born here.  This is stated in the constitution.  14th Amendment.  Everybody born in the US is a citizen. 


Why is it okay for the president to detain Mr. Hamdi?  AUMF, p. 385.  AUMF does not specifically authorize detentions of anybody, what the court says is that if you are going to authorize somebody to fight a war, you are authorizing them to detain people as well, since prisoners are a part of war.  Statute allows this detainment implicitly. 


What about section 4001 of 18 USC?  18USC 4001--  No citizen shall be detained without an act of Congress. 


What has Scalia in a tizzy here?  Why is Scalia so upset?  Scalia says that he is entitled to Habeas corpus or you should charge him.  The whole point of the criminal justice system is that they cannot hold you unless they convict you of something.  They can’s just keep you in jail because they think you are a threat. 


Article I, §9 cl. 2—cannot suspend habeas corpus, limit on Congressional power (unless there is a rebellion or an invasion).


AUMF is an implied exception to 18 USC 4001.  Why implied, because it is not express. 


Why does the court mention the purpose behind 18 USC 4001?  This was probably passed because of the Korematsu case.  Korematsu was a case over whether the government could hold people of Japanese descent prisoner during WWII. 


The court says that you can’t just put anybody into camp, you have to have some process to do so.  They are not saying that you can throw people in detention centers indefinitely, the court says that you must have some process. 


Can Congress suspend the writ of habeas corpus in this war?  If the public safety requires, is it all you need?  Suppose you want to have a more narrow understanding of the suspension clause, how would you read it more narrowly.  You can only suspend the writ when you are invaded or if there is a rebellion, and then only if public safety is required.  Public safety is modifying the other two conditions, and you need the other two conditions before anything (two conditions = rebellion and invasion).


What happens when you suspend the writ of habeas corpus?  The president can hold people, and people being held can’t tell the court to let them go. 


Congress can suspend the writ of habeas courpus, why do we think that?  Article 1, §9 cl. 2—says that you can suspend it, but it doesn’t say who can.  Well, article I, deals with Congress and Congressional powers, section 9 may be about things that Congress can’t do.  During the civil war president Lincoln suspended the writ of habeas corpus.  Merriman case.  Justice said release this guy and Lincoln just says no, I’m not going to, I have the power to suspend the writ of habeas corpus.  People since then have thought that Lincoln was wrong. 


Scalia: I’m only talking about citizens.  Doesn’t apply to non-citizens, even if you have been here for 50 years a green card holder.  Scalia doesn’t talk about due process because his view is that you are entitled to a full regular trial just like anybody else. 


The court has to talk about due process because they don’t want you to have a trial, they just want you to have some process.  The court realizes that people do get caught up that are perfectly innocent. 


Court, you must have some process so that there is some basis for detaining them.  What do you have to do?  It is discussed on page 387—Court says some evidence is not good enough, p. 388—to fight war we want t omake sure that we are not holding a lot of people that are innocent, must:


1.  Give them the facts

2.  Give them a chance to rebut it


You don’t need to have a full blown trial.


Court also says that you can use hearsay, you can have a presumption that favors the government (almost a presumption of guilt) which would then require person who is accused to come forward with evidence to rebut the presumption.


389—we are not saying this has to be done by a court.  Bottom-line, there needs to be some process. 


Don’t have to be charged with a crime, they can say you are an enemy combatant, and the burden of proof is on you to prove your innocence. 


The court is kind of vague about what procedures you need, they are just saying here are some ground rules to give this guy some process. 


Thomas dissents because he thinks the president should be able to hold somebody and that the president can do this.  Thomas dissents because he disagrees with the disposition of the case. 


Hamdan case:


About whether we can convict him a crime.  Bush created military tribunals to try people who were guilty of violating the laws of war.  You can try people just for fighting in a war.  You have to do something that violates the laws of war independent of just fighting.  If you have violated the laws of war then you can be tried for them.  The allegation is that he has conspired to violate the laws of war in various ways. 


The basic alternative to a military tribunal would be to try somebody under a court martial or to try them before a federal court.


Executive branch is the one who uses the military tribunal.  Why do you want to use the military tribunal rather than the court martial or federal court?  They are more confident that they will get a conviction in a military tribunal, and they are only going to go after people that they think is guilty.  The basic answer is that it is easier to convict somebody when we don’t have to use article 3 courts.


Court Martials (why we have them):  Maybe the military people are better able to understand the rules under the context of the modern military.  Article I, §8. The Bill of Rights rules don’t apply to court martials. 


Military Commission: If you violate the laws of war you can be tried via a military commission.  Act of Congress that also suggests we can use this, in the Uniform Code of Military Justice. 


You can use a military commission, but what procedures do you have to use in order to use a military commission?  That is what this case is about.


The procedures that the president has set up are not proper.  They are no unconstitutional, they are just illegal because they vary from the statutes that Congress passes and a treaty that has been signed (Geneva convention).


Why are we talking about this case?  It reflects the presidential power and raises important issues about executive interpretation of treaties.


This case was thought to be a big defeat for the executive. 


Who is Hamdan? A Yemeni National.  Captured by military forces in Afghanistan.  Turned over to the US Military, in 2002 he was transferred to Guantanamo Bay. 


2 Claims:

1. I haven’t violated international law, there is no crime of conspiracy, so I can’t be guilty of a crime that doesn’t exist.

2. Your procedures are all messed up, I can’t be tried according to these procedures because a treaty requires procedures and the statute requires procedures.


UCMJ-Congress created this.  Always articles of war passed by Congress and imposed on the military. 


What does the UCMJ say that suggests that the president’s military commission order is illegal? 


Part 6C-procedure should be the same.  The claim is that these aren’t the same procedures as a court martial. and you haven’t given us a good enough claim of why it is impractical to have these procedures.  There is no good justification therefore you need to use the same procedures as a court martial.


Geneva Convention:  Does it apply to this case?  Article 3 says something like we are going to regulate conflicts of an international character with these rules.  If it is a conflict of article 2, you get better rules.  The court says that this isn’t a conflict between two parties, so common article 2 doesn’t apply and article 3 applies.  Article 3 covers things like civil war and other things.  This is not between two nations so it is covered by common article 3, i.e. conflicts not of an international character. 


Thomas thinks that the president’s interpretation of article 3 is subject to deference and that this is not covered by common article 3. 


He can’t be tried by this military commission, can he be tried by a military commission?  Yes, if they just fix the commission to do all these things then it would be fine.  At that point you have to make them look uniform to make them look like a court martial, so essentially they might as well just use a court martial. 


Scalia dissent is no more than a claim that the court has no jurisdiction over the case. 


Thomas: disagrees with the majority’s reading of the treaty, saying that the executive branch should be given deference and he disagrees with the claim that the president hasn’t made showing as to why the military commissions procedure should deviate.


Alito dissent: the procedures do satisfy the Geneva convention.  


Military Commissions Act:


2006 Hamdan came down and Congress was still controlled by the republicans.


This act was really controversial.  People who thought they had won a victory with Hamdan, felt they had it snatched away by Hamdan and they felt the act was unconstitutional because it takes away the right of habeas corpus. 


Another controversial thing is who is defined as an unlawful enemy combatant.


Medellin Case:


Brief about the immigrant who is on death row in Texas.  Medellian is a Mexican national and the Vienna convention says that you must notify the Mexican government so that they are allowed to provide services to the Mexican government.  


How does this case get to the Supreme court?  Petitioner petitions for a writ of certiorari, and that is why the case is before the court. 


What legal claims does Medellian’s lawyers raise before the court? 

1. The judgments of the ICJ should be enforced pursuant to the treaty.  Treaty requires enforcement.

2. And the president has said that it should be enforced. 


Mexican government wants to take case to ICJ, an international court.  The ICJ determines that Medellians rights have been violated.  President Bush says that we are no longer going to allow the ICJ to hear these cases, but we are going to enforce this judgment. 


What is the difference between a self executing treaty and a non self executing treaty?

-self executing treaty is a treaty where you don’t need any other action by Congress or another party for it to be enforceable in court.  You don’t need anything else besides the treaty for it to be enforceable in court.

-Looks the same, but it says it is not self executing, or the Senate says it is not self executing when it is ratified by the Senate.  Not enforceable by the courts until Congress does something. 


Medellin says that this treaty is self executing and the president wants it to be self executing.


The president is saying that the ICJ judgment is only enforceable because I (the president) says it is.


Difference between self executing and non self executing, you cannot cite a non self executing treaty in court. 


Justices were worried about whether the president could make all non-self executing treaties self executing?  Solicitor general did not have a good answer for this.


Says that treaty is non self executing, but it becomes executable on the president’s decision rather that a decision by Congress?  We have seen this in the context of Dames & Moore v. Regan. 


Many different implications.  If the president can tell the state courts what to do, can he tell the Supreme Court what to do?  There are also death penalty implications too.  Also federalism. 


Frontline Documentary:


Liberal Bias:


Can you fire the vice president?  There is nothing the president can do if he doesn’t like the vice president


Frontline Documentary 10/16/07

Cheney’s Law

After 9/11, the president had enhanced presidential powers.

Congress works for the president, there are no co-equal branches.

Cheney is very secretive. He tries to fight off presidential investigations throughout his career in the White House. He was committed to restoring the powers of the president. Cheney met Addington, a lawyer, who had the same viewpoints. Together, they brought their ideas to the defense dept. He argued that the Pres. shouldn’t seek congressional permission to enter the Gulf war. It was unnecessary b/c the constitution doesn’t require it and imprudent b/c Congress would say no.

Office of Legal Counsel (CLO)

Pres. brought his top lawyer, Gonzalez to the White House. He had no experience in constitutional law, exec. Power or national security. Addigton had all these experiences and dominated Gonzalez. All the crucial decisions seems to occurred in the VP office. After 9/11, cheney says what extraordinary powers will he pres. need to ward off this threat? They needed the legal backing of the DOJ. Yoo was needed to authorize emergency powers in the DOJ. Yoo worked in OLC – most important gov’t office you’ve never heard of. It’s a mini-supreme court. Passes judgment on whatever the administration wanted to do. Pres. wanted to use wartime authority broadly in the US. Democrats didn’t want to grant such sweeping authority and they held Congress at the time. They saw it as completely unchecked authority. Congress says no – exactly what Cheney and Addington feared. WH secretly asked the DOJ (Yoo) for another memo. Congress can’t exercise how to exercise his judgment as commander in chief. The Constitution gives the pres. a lot of power during wartime. The opinion said Congress couldn’t stop the president from doing anything. The pres. had the authority to use any means necessary, anywhere, against any enemy, as long as the nation was at war. President couldn’t declare war. Congress actually did pass a broad resolution in the second Iraqi resolution.

End- Running the Process

Interagency group

Addington and Cheney wanted prisoners of war to be far from civil courts. Addington and Yoo discussed how to created a military commission/tribunal. There’s a process for documents going to the president. All the assistants to the president have to read and give comments before giving to the president. In this case, they short-circuited the process. They didn’t want to get resistance from other people in the department, deliberately. They didn’t do anything wrong legally, but president have relied upon the intraagency process. The president can create his own executive order without consulting anyone. Lose the benefit of consultation and deliberation, but gain expediency. Access really is power.

The Education of Jack Goldsmith

Prof. at Chicago and Virginia. Went to work for the Dept. of Defense. Flew to Guantanamo. What are the limitations of interrogations on the war? The definition of torture proposed by Yoo was so narrow that the only thing that could be violated was the intentional infliction of pain. Yoo in 2003 when the head of OLC resigned and Yoo didn’t get the head position. Ashcroft was irritated by Yoo by being the VP’s man; he called him Dr. Yes, keeping Ashcroft out of the loop. Don’t they all work for the president? Yes, but cabinet departments aren’t part of the WH. Yoo recommended Goldsmith and was the new head of the OLC.

Goldsmith says “No”

The Geneva convention doesn’t apply in Iraq to all detainees. WH Legal team wanted Goldsmith’s approval in the hurry under Article 4. Goldsmith didn’t give his approval. Addington argued that earlier presidential decision allowed for lack of Geneva Convention against Al Qaeda. Geneva convention would apply to all Iraqis – who’s entitled to POW status.

There’s no statute or Constitutional provision saying the president has to abide by the OLC opinion.

Goldsmith read memos by Yoo that placed almost no limits on presidential powers. “Crown Jewel” spying on Americans by listening to international calls without warrants. Congress prohibited the activities in the 1970. Congress may no more regulate the pres. gathering of intelligence than Congress telling the pres where to place troops.  AG was supposed to sign a reauthorization of the program every 45 days, but he balked. He was sick on the day of the renewal. The acting AG wouldn’t sign it. Cheney, Addington, and Gonzalez rush to the hospital to get him to sign it. Goldsmith also rushes over, but Ashcroft says he’s not going to sign it + he wasn’t the AG at the time.  Nothing prevented the president to sign an executive order to override the AG’s veto.

Battle of the Lawyers

Pres. signed an executive order to override the AG’s veto. Goldsmith was prepared to resign on the day along with 30 other US attys, including the FBI chief but Bush changed his mind. No one knows why.

Gonzalez was named the AG after Ashcroft resigned. A kinder, gentler torture memo was posted during AG confirmation hearing. He began to take over OLC. Bradbury wrote a memo approving harsh technique for torture. Pres. made him permanent head of the OLC after his trial period. During this time, Cheney had to deal with Abu Ghraib. Pres. was forced to retreat after Mccain’s amendment. Pres. signed a bill and quietly issues a document known as a signing statement with instruction that defeats the purpose of the law. Statements were the masterminded by Addington. 


OLC limited the effect of the McCain amendment. The democrats took the house and wanted to regain power to the Congress. Congress subpoenaed OLC for memos. Gonzalez resigned after senate hearings.


A signing statement is what the president produces when he is signing a bill into law.


How does this differ from a line item veto?


Line item veto. 

Under the constitution the president has the option of vetoing a bill, or signing it, or doing nothing.  If the president does nothing it becomes law after 10 days.  If he vetoes it, he vetoes the entire thing. 


President doesn’t have a line item veto.  A line item veto is where you take a pen and cross out the portions of a bill which you don’t like. 


A president can’t choose to not enforce a statute because he doesn’t like it, he must think that it is unconstitutional. 


What happens to any statute which the court says in unconstitutional?  Nobody thinks the Supreme Court has a line item veto because it can declare parts of a statute unconstitutional. 


Sometimes the court will conclude that Congress wouldn’t want any part of the statute to stand if one part is struck down.  Severability: can we sever off one part of a statute and uphold the rest.  If we think that congress wouldn’t have passed the statute but for the provision that we held unconstitutional, then the entire statute is unconstitutional.  If the court thinks that the statute will stand despite the unconstitutional portions then the unconstitutional portions of the statute are severed. 


Article I, §7—presentment clause.  All bills must be submitted to the president.


What can Congress do if they don’t like the way that the president is interpreting the statute?  They can pass another statute, however the president can veto the statute. 


Congress can also impeach the president. 


The president can sign a statute and then not enforce it. 


VIII. Legislative Power


Article I:


Article I grants Congress legislative powers, not all legislative powers but only the ones enumerated. 


Section 2 tells us about the House.  People get to select the house by popular vote.  Apportionment clause of clause 3 §2, tells how to apportion representatives. 


McCulloch v. Maryland


Congress early on debates passing a bill establishing a bank of the United States. 


Hamilton and many of the arguments made by Marshall are from Hamilton’s opinion to Washington.  Jefferson says that this thing is unconstitutional.  If we go down this line the federal government will start regulating everything. 


Washington signs the bank bill and the bill has a sunset, there is a second bank bill and that passes as well.


Maryland wants to tax the Bank o the United States. 


Marshall in McCulloch tries to frame the issue by saying that we had a bank for a long time and it was debated by a lot of really smart people and they concluded that it was constitutional.  This question has been asked and answered by the first Congress and the first president. 


He then goes on to contest a claim from Maryland saying that the Constitution does not emanate from the people but rather the states.  Marshall says that is wrong, the people made the constitution law.


Congress has incidental and implied powers.  There is no bar on such powers and they naturally go along with any express powers given. 


Necessary and proper clause, which says that Congress has the power to enact nececessary and proper laws to carry to execution all the powers of the government.  Example, have the power to create a post office, but also the power to bar people from stealing mail.  Doesn’t say you can’t bar people from stealing mail, but you can still do this.


Necessary and proper clause is found in Article I, §8—so it is a grant of power, it is not a limitation of power.  It reads like a grant of power.  Necessary doesn’t mean absolutely necessary.  When the people who wrote the constitution wanted to make the power more narrow they talked about absolute necessity.


What does the Bank of the United States do?  Why is it useful?

- Some functions are useful, without telling what those functions are.


The other entities of the government are departments, not corporations. 


Second part of opinion has to do with whether Maryland can tax the bank.

Does the constitution prohibit this?  There are some prohibitions on taxing, but there is no prohibition on the taxation of banks.


Why can’t Maryland tax the bank?

The power to tax is the power to destroy.  If we say that they can tax the bank at 3% today, then they can tax the bank 100% tomorrow. 


The parts can’t control the whole.


Is this tax 100%, no it Is not.  Have they exercised the power to destroy here?  No, why isn’t the answer to Marshall’s opinion, they are talking about hypotheticals, they haven’t destroyed anything, so why go after it?


The state has no power to impede the operation of the Constitutional laws enacted by Congress.  This sounds like you can’t do anything to impede federal entities. 


We are not talking about tax paid on the real property of the bank in common with the other real property of the state.  Does this mean that they can tax the real property of the bank?  What it really says is that the court isn’t saying anything about this.  Maybe the answer would be different if the tax is a general tax not solely applicable to the federal government, despite most of the rest of the opinion suggesting the opposite conclusions.  The answer is that maybe you can tax if it is a general tax that applies to everybody, but you cannot just single out the United States and tax the Federal government.


Marshall is really keen on having unanimous opinions. 


When you have a court case all you are required to do is to give a judgment.  Lots of judgments don’t have opinions. 




The division of powers between the federal and the state government.  The federal governments will have limited powers in some sense and the state will have more general powers.  The federal government can’t regulate certain things, be it family, child labor, agriculture.  Enumerated powers left to Congress, the rest left to states.


In McCulloch Marshall says that if Congress goes beyond their enumerated powers that we will strike them down, but they have not done so in this case. 


Gibbons Case:


Gibbons is about the commerce clause.  There is a New York Statute that gives somebody a monopoly for using steam boats between New York and New Jersey.  The statutes conflict.  The federal statute allows you to go from New Jersey to New York.  If the federal statute is unconstitutional, the state statute has to go.  If the federal statute is constitutional then the state statute has got to go.  


The commerce clause gives the government the power to pass such a statute.  What is commerce?  P. 170.  Commerce is more than just selling a commodity, it is navigation.  Commerce is the entire journey, from the time you decide to sell it from the time you receive it.  That is the commercial action and Congress can regulate the entire thing, they don’t just have the power to regulate things as they cross state lines, which means they can regulate things that take place in one state, because they are part of a commercial action. 


Congress can regulate intrastate transactions that affect interstate commerce.  It could mean that this part of the intrastate transaction is part of a larger transaction, or there are certain parts of intrastate transactions that Congress can regulate because they affect interstate commerce. 


The scope of Congress’ legislative powers, things the president and courts can’t do.  What kind of things can Congress regulate and what kind of things are forbidden for Congress to regulate? 


To the extent that Congress doesn’t have federal power, the state has authority. 


Commerce power:  How far does Congress’ authority of internal commerce go? 


Hammer v. Dagenhart: 

Child labor case.  Congress passed a statute saying that products made by children can’t be sold in interstate commerce.  This is not a regulation of child labor itself.  They did not pass a statute saying that child labor was illegal.  At the time Congress did not think they had to power to regulate commerce.  Regulation of labor was left to the states.  Congress did have authority over commerce and decided to prohibit the interstate commerce of children. 


The court says that this is a regulation of commerce but we would be blind if we didn’t acknowledge that Congress is trying to regulate something it doesn’t have authority over.  Congress can’t use its commercial power to extend its authority over subject matters that aren’t property under the sphere of Congressional authority.


Holmes says that this is regulation of commerce and once we say that Congress can do anything it wants.  We can’t look behind the statute and figure out why Congress passed it.  All that matters is that it is a regulation of commerce.


What is the purpose behind the Commerce clause? 

If you thought the purpose was just the power to regulate commerce how it wanted to, then it wouldn’t matter why Congress wanted to regulate commerce, they could regulate commerce in any way, good or bad (Holmes view).




You could think that the commerce clause is to remove barriers to interstate commerce, not erect new barriers and what Congress has done here is erected a new barrier to try to prevent child labor. 


Today the Commerce Clause has been expanded by case law.  There is a department of labor, there are also benefits laws, and many other federal laws.  Since Hammer we have had a much broader conception of the Commerce Clause.


Given Lopez and Morrison, are there some things that Congress still cannot regulate directly? 


With Lopez the commerce clause is potentially infinite, there is almost nothing the commerce clause can’t do. Is Hammer still valid?  No.  Congress can regulate commerce however it wants to even it uses that power to bludgeon states to enact laws that Congress can’t enact.  



Wickard v. Filburn: 

Case decided after Court has said Congress has an expanded commerce clause.  Farmer is using wheat to bake his own bread, he is not selling it, it is not commerce as Marshall defines it, but if he bakes his own bread, and enough people bake their own bread then it would have a substantial effect on commerce. 


Farmer: you can’t tell me how much wheat to grow, I’m not even selling it.


Court: You are not engaged in commerce but if enough people do what you do it will substantially effect interstate commerce.  There is going to be less demand for wheat on the market.  Doesn’t matter if it is agriculture or manufacturing, it matters if what you are regulating substantially effects interstate commerce.  Agriculture and manufacturing substantially affect interstate commerce.


Wickard is a departure from the earlier understanding that commerce is the sale of goods rather than the manufacture of goods.  It is a big deal because it opens the door to all kinds of federal regulation of the economy. 


Limits under Wicker: Limits are does it substantially effect interstate commerce.  You don’t ask if Mr. Filburn’s wheat production by itself affects interstate commerce, it is an aggregation principle.  Take all people like Filburn and say, if all these people grew wheat would it substantially affect interstate commerce and if the answer is yes, then Congress can regulate it. 


The court doesn’t say the things that Congress can’t regulate.  In part it is not clear the things that Congress can’t regulate.  It is not clear what Congress can’t regulate. 


After this case there really aren’t many restrictions on the Commerce clause. 


There are limits in what Congress enacts in statutes (and they are mostly prudential as opposed to Constitutional), but after Wicker it is not clear whether there are any limits Congressional subject matter, they may be able to regulate family law and education. 


Substantial effects test is there in theory, but everything effects everything else. 


Along comes Lopez: Gun free school policy.  Lopez was caught having a gun within 1000 yards of a school. 


The state and the federal government can go after you for the same crime if there are similar statutes in both the state and the federal books. 


The court said that 5-4 Congress has the power to regulate commerce, but if we allow Congress to regulate this activity there would be no limit to what Congress can do.  We have never said in any of our opinions that there are no limits to what Congress can do with the commerce clause. 


Breyer dissent: tries to prove that gun possession within 1000 feet of a school has a substantial effect on interstate commerce.


The problem with Lopez is that it says that substantial effects applies, but it doesn’t really apply the test.  If you apply the test you might actually find that it does substantially effect commerce, and that can’t be.  Opinion starts out with the assumption that Congress can’t regulate certain things.  It starts it way off with the answer and works backwards. 


Three broad categories of activity that Congress may regulate under its commerce power


(a)     Channels of interstate commerce

(b)     Instrumentalities of interstate commerce

(c)     Activities having a substantial affect on interstate commerce

Critics of the substantial effects test argue that the test allows for the commerce clause to swallow up the rest of Article I, §8.

Article 1, §8—Bankruptcy rules must be uniform. Court said that you can’t get around the uniformity requirement by the commerce clause.


Morrison Case:


Violence Against Women Act—enacted because the states weren’t doing enough to protect women.  Violence that affects women substantially affects interstate commerce.  There is also the equal protection clause.


Court says that we don’t think Congress has a general criminal power rising from the commerce clause.  They strike down another statute said to be justified by the commerce clause.  




CA had a proposition that said that people can grow and buy medicinal marijuana if you have prescription from your doctor.  This was in conflict with a federal statute. 


9th circuit uses Lopez and Morrison to strike down a marijuana possession statute saying reversing the 2003 Ninth Circuit Court of Appeals ruling that the Interstate Commerce Clause of the US Constitution does not reach medical marijuana when it is cultivated and used within a state where it is legal and for purposes of non-commercial personal use.


The Supreme Court upholds the federal statute and overturns the 9th circuit: Stevens' opinion for the Court for the Raich decision said that Lopez and Morrison don't apply, since marijuana is a popular part of commerce, and that the Commerce Clause applies whether the commerce is legal or not. According to Stevens, Wickard was the correct precedent by which to go


In one view Raich is the death of Lopez and Morrison, another view is that Raich is a temporary setback. 


CA had a proposition that said that people can grow and buy medicinal marijuana if you have prescription from your doctor. 


The more general issue in the commerce clause cases is whether we are going to have judicial review of these issues at all. 


Regulating State Governments:



(Employment contracts) We are not going to restrain what Congress can regulate vis a vis the states.  Lopez and Morrison are a repudiation of Garcia.  Why is this separate, because it is not really a commerce clause case.  It’s about are we going to protect traditional state functions from federal regulations, and the court says no, we are not going to carve out a special area and say here are special state functions that Congress can’t regulate at all. 


New York: 

Regulating legislatures.  About nuclear waste.  Everybody wants the power but nobody wants the waste since there is no where to store it.  Congress passed a statute which required the states to do various things and if they didn’t do special things with their nuclear waste the state would take title to the nuclear waste, which basically forced states to deal with it.  It was a coercive way of getting the states to do what Congress wanted.  P .337.  Congress is basically saying you deal with this problem states and if you don’t title will be transferred, which gives you a really good incentive.


O’Connor: Says that Congress can’t give states this choice, but Congress can create their own disposal policy.  Congress can’t tell states that they have to create their own plan and that if they don’t they are going to face some liabilities.  Can’t force states to do something, can’t make them legislate, can’t commandeer the state legislature, the states aren’t Congress’ federal agencies. 


If the federal government is telling the states what to do everything is going to wonder who told what do.  O’Connor says that we blur accountability when we tell state legislature what to legislate or how to legislate.



Is about the Brady bill, which says lots of crazies have guns so we are going to pass a rule which says that people need to get a background check before they get guns.  We, the federal government don’t have enough people to do this, so we are going to make local law enforcement do the job for us.  Printz was a local sheriff who said that he didn’t work for the federal government, the federal government doesn’t pay his salary, so why should he do their work.  The Court agrees with Printz saying that Congress can’t tell state officers to enforce federal law and cites similar concerns over accountability.  Second reason is that the president can’t tell the sheriff what to do


New York and Printz means that you can’t commandeer state legislatures to tell them to legislate or commandeer state executives and tell them to execute, if you want federal rules written, write them yourself or create a federal agency.  You can’t force the states to do so, but you can pass the buck by creating an agency. 


One way to get around is to say, ‘Hey we (congress) have a lot of money and we will offer a monetary incentive for states who do background checks, enforce laws against violence against women or take care of nuclear waste, etc…’


Testa and the commandeering of state courts.


State courts can be forced to hear federal claims.  The Supremacy Clause, Article VI, Clause 2.  The Supremacy Clause establishes the Constitution, Federal Statutes, and U.S. treaties as "the supreme law of the land." The Constitution is the highest form of law in the American legal system. State judges are required to uphold it, even if state laws or constitutions conflict with it.  . 


Can Congress ask state legislatures to pass laws?  Yes, asking, not telling.  Anybody can ask. 


Missouri v. Holland

The United States Supreme Court held that the federal government's ability to make treaties is supreme over any state concerns about such treaties having abrogated any states' rights arising under the Tenth Amendment. The case revolved around the constitutionality of implementing the Migratory Bird Treaty Act of 1918.


In 1920 at least Congress was not viewed as having the authority to regulate migratory birds, even via the commerce clause.  What makes this case special is that there is a treaty.  Court: it doesn’t need to be commerce, the Senate and the president have the power to make a treaty and Congress can pass laws to execute the treaty under the necessary and proper clause. 


The federal government can regulate all manner of things provided it does so via a treaty.  There are not subject matter jurisdictions for treaties.  Are there individual rights limitations for treaties? Yes.


Treaties can do anything, however you can’t pass a treaty that takes away people’s rights. 


The question of whether Congress can do things via a treaty that they can’t do by statute. 


Can the president get some bogus treaty passed that the court won’t allow him pass through statute?   As long as it is a real treaty then it is perfectly fine to circumvent the subject matter restrictions on Congressional power by using the treaty process.


Treaty not subject to constraints of article 1, §8.


But are subject to constraints of Article 1, §9 and the Bill of Rights.


Can you enforce the 10th amendment?  Just look at article 1, §8 to find out what Congress can or cannot do, the 10th amendment doesn’t add anything to the constitution it just confirms things. 


IX. Congressional Enforcement of the Constitution


The 13th, 14th, 15th Amendments were passed after the civil war and contain various prohibitions (i.e. slavery). 


What do these enforcement powers mean?  What power do they give to Congress?  What can Congress do under the guise of enforcing these amendments?


There are several different conceptions of these powers:


Most narrow:  Whenever there is a constitutional violation by a sate, then Congress can provide what the remedy will be.


Broader:  Congress gets to enact preventative and prophylactic measures designed to prevent future violations of the act.  Allows Congress to do more than just provide a remedy, allows Congress to pass rules.


Broadest way:  Congress gets to decide whether or not states violated these amendments and when it does so decisions are entitled to deference from the court and they are entitled to be followed by the court.  Congress can define the substantive content of these amendments.  It can decide what slavery is or whether a state has violated equal protection, and it thus puts Congress in the driver’s seat, presumably even if the court disagrees.  Radically different conception of Congressional power than what we are used to. 


Katzenbach v. Morgan:


Literacy test for voting:


Congress then passes the Voting Rights Act.  The court says the literacy test can’t bar people from voting. 


Court has said in the past that literacy test were unconstitutional, they are now saying that Congress can pass a statute meant to enforce 14th, 15th amendment that bars certain literacy test on the grounds that congress thinks they are unconstitutional, even thought the court does not.   Here the court is now being willing to allow Congress some leeway in passing remedial legislation for the 14th amendment in a way that the court itself would not enforce the 14th amendment. 


Can you go below what the court said, no you can’t.  If the court has said that something violates the 14th amendment and is illegal, Congress cannot say that it is legal.  However if the court has said that something is legal under the 14th amendment, Congress CAN say that this is illegal and bar it. 


Brennan is saying that congress can pass statutes that can say you can go 63 miles an hour, if the constitution has an amendment saying that you can’t drive over 65 mph.  This is a measure designed to enforce the 65 mile an hour.  What you can’t do is say the 65 mile an hour speed limit means 67.


Court:  You can give more protections than we have offered in the constitution, but you cannot provide less.  Can’t provide less rights under the guise of enforcement. 


Employment Division v. Smith:


Smith is denied unemployment benefits on the grounds of his ingestion of peyote.  Smith took peyote as part of religious practice and lost his job.  Smith claims it is a violation of his free exercise of religious.


Scalia and 4 other justices the court came up with a new free exercise test:  If it is neutral and generally applicable the law is constitutional even if it burdens religious free exercise. 


It is much more difficult to challenge a statute on the grounds that it violates free exercise of religion.  Most statutes aren’t designed to go after particular religious groups, or won’t say “we mean to stick it to a particular group.”


A lot of people don’t like this case because the previous test was much more protective of free exercise, and so Congress decides to pass the Religious Freedom Restoration Act.


Congress will pass a statute that mimics the test that the court overturned.  Congress is going back to the test that the court overturned and they are going to apply the statute to the state, and they can do that because they can enforce the 14th amendment and the 14th amendment is the means by which the free exercise clause applies to the states.


City of Boerne v.Flores


The case arose when the Catholic Archbishop of San Antonio applied for a building permit to enlarge a church in Boerne, Texas. Local zoning authorities denied the permit, relying on an ordinance governing building preservation in a historic district which, they argued, included the church. The Archbishop brought a lawsuit challenging the permit denial under the Religious Freedom Restoration Act of 1993 (RFRA, pronounced "rifra").


The standard that RFRA sets is a two part test:  Must be the least restrictive means and further a compelling government interest. 


Court holds that RFRA is unconstitutional.  Court admits that congress can pass prophylactic measures (Katzenbach), but if at some point Congress passes a remedy that is too constraining, it is no longer a preventative matter, it is really rewriting the provision in the constitution and it presumes a substantive power to say what the constitution means.  Which is the court’s job not Congress’. 


How do you determine what is prophylactic and what is substantive?

Legislature must show congruency and proportionality.  Congress passed a statute to resolve a problem that didn’t really exist.  The remedy here goes way beyond what is necessary.  The court says is basically, “we know what you are trying to do and you are trying to tell us to decide these cases differently in the future and you can’t do that.” 


RFRA applies not only to the states, but also to the federal government.  Applies not only to state statues but also federal statutes as well.  This decision strikes down RFRA as applies to states, it doesn’t strike it down as it applies to the Federal Government.  It is okay for the Federal government to give you more rights.   


X. Limitations on State Power






3 types of statutory preemptions:


1. Conflicts: state law is preempted because it is impossible to satisfy it and the federal statute on the same subject.  I.e. Federal says all cars have to be blue and state says all cars have to be green.  It is impossible to do both, and so the state statute gets preempted.  State law gives way in a conflict.


2. Express preemption: When a statute expressly says that this statute overturns state law in the following way.  Says “we actually mean to preempt certain laws, we want these state laws to not be enforceable, period.”


3. Field preemption: Court read a federal statute and think there is no conflict or express preemption, but this federal program or scheme would make no sense if the states could also impose their individual regulation on the same subject matter.  The statute implicitly preempts.  The preemption is implied.  Example:  The federal communications act doesn’t actually create state libel laws, nothing in the act that conflicts with state libel laws, reading into the statute that Congress wanted there to be only federal regulations of the subject matter, it wouldn’t make any sense for the states to enact legislations. 


Dormant Commerce Clause:

Traditional view is expressed in the Gibbons v. Ogden case, saying the grant of power to Congress is exclusive, the states cannot regulate commerce. 


There is not much the states can regulate. 


Why called the dormant commerce clause?  Because the commerce clause has these effects even when Congress does nothing.  Even if Congress doesn’t pass a single commerce clause statute, the states can’t pass certain statutes nonetheless. 


In these cases Congress hasn’t done anything. 


City of Philadelphia v. N.J.


In this 1978 case, the Supreme Court invalidated a 1973 New Jersey law that prohibited most "solid or liquid waste which originated or was collected outside the territorial limits" of New Jersey from being imported into the state. New Jersey claimed to be trying to protect the health and safety of its citizens. Challenging the ban were Philadelphia, as well as private landfill operators in New Jersey and several cities outside the Garden State.


Which private landfill owners challenged the statute?  The court found that the statute violated the dormant commerce clause. 


The Court found the law unconstitutional because it violated the Dormant Commerce Clause. In writing for the majority, Justice Stewart concluded that:

"whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently."

In other words, New Jersey couldn't regulate beyond its borders.


Court:  You may be able to bar things that are hazardous on the grounds of safety, but you can’t bar trash from your state solely because you don’t want it in your landfills.  The trash you are prohibiting is no more harmful than your own trash.


Dormant commerce clause tends to be about differential burdens on interstate commerce. 


1st categories of cases: Statutes that discriminate against interstate commerce, and there is a strong presumption that they are unconstitutional.


2nd category of cases:  statutes that don’t facially discriminate against interstate commerce and these are more likely to be upheld but may still be struck down if they put too big a burden on interstate commerce. 


C & A Carbone Inc. v.  Clarkstown


City of Clarkstown, there is a Clarkstown processing facility and all trash in the town has to go to the facility for initial processing, and after that it can go elsewhere.  Carbone wants to take the trash to get processes outside the city, but he can’t.  Carbone says that he should be able to do the initial processing himself and that this violates the dormant commerce clause.


Case before the United States Supreme Court in which the plaintiff, a private recycler with business in Clarkstown, New York, sought to ship its non-recyclable waste to cheaper waste processors out-of-state. Clarkstown opposed the move, and the company then brought suit, raising the unconstitutionality of Clarkstown's "flow control ordinance," which required solid wastes that were not recyclable or hazardous to be deposited at a particular private company's transfer facility. The ordinance involved fees that were above market rates. The Supreme Court sided with the plaintiff, concluding that Clarkstown's ordinance violated the Dormant Commerce Clause.


Does the statute discriminate against out of state waste?  


Does O’Connor agree that this discriminates interstate commerce. 


Majority says that you are basically requiring all the out of state trash to go to this plant. 


The dissent says so what, all the trash here has to go to the plant, not just the out of state trash. 


West Lynn Creamery, Inc. v. Healy


Mass. is taxing milk.  There is no problem with taxing milk, all the milk is taxed at the same rate.  The money from the tax doesn’t go into the state fund.  It goes into a special fund to pay subsidies to Mass. dairy farmers who produce milk.  All the money goes to people who make milk in Mass.  The out of state people said that this violates the dormant commerce clause.  Can’t tax CA milk at 10% and Oregon milk at 30%.  This scheme does the same thing. 


The court strikes this down, saying that you can have a tax that is non-discriminatory and you can give money to people in your state, but you can’t give money to domestic milk produces.  Odd, since two rights make a wrong here. 


Can subsidize them out of a general fund, but not out of a special fund solely for milk producers. Okay to subsidize, just don’t do it with funds that are segregated and derived from a separate fund. 


Maine v. Taylor:

Taylor wanted to bring in live bait to a lake which was a non-native species and people were afraid the non-native species would get into the river so there was a statue in place that said you can’t bring non-native species into the state.  Not a violation of Dormant Commerce clause.  Talked about case as an exception.


Preemption: Constitution preempts state laws in various ways. 

Express: Statutes having an express preemption clause.

Conflict:  Impossible to satisfy statute and state law. 

Field Preemption: No express, no conflict, but courts conclude that Congress has occupied the field.  The only regulation of the field so that any state regulation must be preempted.  Ex. Federal statute that regulates 19 pollutants, but not 1 or 2 others.  States can’t regulate those other 2 pollutants. 


Dormant Commerce Clause has little to do with Congress!  Notion that there are certain statutes states can’t pass because the Constitution does allow states to regulate commerce in certain ways.  Art. 1, §8, some powers granted to Congress are necessarily exclusive.  Nothing in the const. that prohibits states from regulating commerce.  Early on the grant of commerce to congress implicitly excludes states from using this power (early conception, whatever Congress could regulate, states couldn’t).  Commerce clause was too broad and left states little power.  Since this broad conception, the courts have adopted a more nuanced approach, we have two categories, first category deals with taxes,


2 types of Dormant Commerce Clause:


1. Statutes that facially discriminate

(i.e. discriminate on basis of geography, we are not letting our stuff be sold out of state, etc., last lecture, these are presumed to be unconstitutional).  Over come presumption by showing important purpose, show that there aren’t any alternative non-discriminatory means.


2. Statutes that are facially neutral. 

Balancing test.  The more it burdens interstate commerce, the more likely it is to be struck down, and vice versa.  The greater the benefits of the statute, the more likely it is to be upheld, the less benefits of the statute, the less likely it will be to be upheld. 


Everything that we learned about the dormant commerce clause is subject to congressional revision.  Few areas where court has said we think the Constitution prohibits this scheme, but Congress can permit these acts if they want to.  The Congress can make something constitutional that the court has found unconstitutional, this is the only area of constitutional law where this is true.  One area of constitutional law where Congress has the final word.



Statutes that don’t facially discriminate:


Statutes that supposedly greatly burden interstate commerce although they don’t facially discriminate. 


Washington State Apple Advertising Commission Case p.356:


This is a case in which the Supreme Court of the United States unanimously struck down a North Carolina law requiring all importers of apples to label their containers with U.S. Dept. of Agriculture grade, and prohibiting the display of state grades. Washington used apple standards superior to those used by the USDA. The Court found that North Carolina's law needlessly discriminated against Washington apple producers while working to the advantage of local North Carolina apple growers.


This statute does not facially discriminate.  It does look like North Carolina is trying to sock it to Washington, because they have superior apples.  This may be constitutional under another set of facts, such as if multiple states had rating systems similar to Washington’s. 


Dormant commerce clause.  Congress doesn’t have time to remove all these things, so the court has to.


Court not looking at intent, they are reluctant to say they are basing decision on intent because it is hard to figure out what the real purpose behind the statute is.  This is not the case with racial discrimination.  Court more comfortable examining intent with racial and sexual discrimination. 


Exxon Corp. v. Governor of Maryland

This is a case in which the Supreme Court of the United States upheld a Maryland law prohibiting oil producers and refiners from operating service stations within its borders. The law was a response to evidence that those stations, which represented about 5% of all those in Maryland, had received preferential treatment during the 1973 oil crisis.


Why do you think this statute was passed?  They are trying to protect companies that don’t have refining and production capacities.  Also protects out of state corporations, (i.e. all business based in states other than Maryland who sell but do not produce gas).


Constitutional because there are no producers or refiners in Maryland, and Maryland will still consume the same amount of gas, it is all coming from out of state anyway.


Why is there a justice dissenting?  (Blackmun):  Blackmun is only focuses on who is benefited and who is burdened and from that he makes his inferences that this statute is aimed at benefiting in state companies. 


Nobody thinks a law is unconstitutional if it burdens a significant amount of in state companies as well as out of state companies, but the law needs to affect a large number of companies in state.


Kassel v. Consolidated Freightways Corp.


An Iowa statute restricted most truck combinations to 60 feet in length. The statute did provide for some exceptions: doubles, mobile homes, and trucks which carried livestock or certain types of farm equipment were permitted to be 65 feet, and cities which abutted the state line could were permitted to adopt the length limitations of the adjacent State. Deliverers of trucks or oversized mobile homes were required by law to obtain a permit before shipping the items into or out of the state.


Powell reexamined the evidence on the record and determined that the State failed to meet its burden of proof to show that there was any statistically significant difference in safety between the 55-foot and 65-foot trucks. Moreover, the statute could potentially create more accidents, by forcing shippers to use more small trucks to carry the same quantity of goods, or force truck traffic to bypass the State of Iowa, shifting traffic (and a higher incidence of accidents) to adjacent states. Powell further rejected the State’s contention that deference to the state legislature was in order, because the statute created such a burden to out-of-state residents, and the legislative history of the “border-cities” exemption suggested that Iowa’s real purpose in enacting this law was to discriminate against out-of-state businesses.


Justice Brennan concurred in the judgment, joined by Justice Thurgood Marshall. He suggested a new, three-factor test for the Dormant Commerce Clause:


The courts are not empowered to second-guess the empirical judgments of lawmakers concerning the utility of legislation.


The burdens imposed on commerce must be balanced against the local benefits actually sought to be achieved by the State's lawmakers, and not against those suggested after the fact by counsel.


Protectionist legislation is unconstitutional under the Commerce Clause, even if the burdens and benefits are related to safety rather than economics.



Justice Rehnquist wrote the dissenting opinion, in which Chief Justice Burger and Justice Stewart joined. Rehnquist noted that every state has truck-length regulations, and that this law is not the oddity that the majority claims it to be. He would have utilized rational basis review, instead of making new factual findings at trial and then using those findings to determine the validity of the legislation. He worried that the Court’s ruling basically forced Iowa to bow the policy choices of neighboring states, when the power to make such interstate regulations is vested in Congress by the Constitution. He further argued that the court was reading too much into the motives of the legislature in enacting the statute.


If every state had this rule, then there is no burden on interstate commerce and the outcome would probably be different.  Whether or not your rule burdens interstate commerce turns on what the rule is in other states. 


Facially discriminatory:

Local fish, can’t bring out of state in because of fears of what they would do to the local ecosystem and fish population was constitutional.  Typically if you have a facially discriminatory statute then it would be struck down.


XI. Economic Liberties


Contracts Clause:


Anything that substantially effects interstate commerce can be regulated by Congress. 


Commerce clause is pretty broad, but we don’t really know where it is going in the future. 


Congress has plenary authority over US territories and the District of Columbia.  Congress can do whatever it wants in those areas subject to Article 1, §9.  So when professor said that Congress couldn’t do some things like regulate education or wills and estates in the 50 states, this is not true for U.S. territories, because Congress has exclusive control over the district of Columbia and U.S. territories. 


Article 1, §8, cl. 18-DC— 


Contract Clause: Article I, section 10, clause 1 Only applies to the states and not the federal government. 


Case involving whether or not states could impair the obligation of future contracts and the majority of the court said yeah.  If all you do is apply the statute to future contracts (i.e. future contracts can’t have particular terms) this is fine because it is not interfering with current contracts. 


Marshall dissents: saying that states can’t deter people from making contracts. 


Overtime it became clear that there would be problems with the Contracts Clause.  States have very broad powers. 


Manigault v. Springs case, p. 991


Modern view: 


Home Building & Loan Association v. Blaisdell (Important)


It was during the Great Depression and Minnesota sees the writing on the wall, and realizes that people will lose their houses if they don’t get relief.  They suspend mortgages and say that you only have to pay $40 a month. 


Hughes (Majority opinion) says that you can’t use the word emergency to justify this statute.  It sounds like Minnesota is going to lose.  Legislature cannot bargain away public health or public morals. 


State can’t just allow people to walk away with their debts, they can tinker with their terms in a temporary way. 


Fundamental interest of the state is directly effected.  Page 994—it doesn’t matter if the framers enacted this provision precisely to prevent this type of action.  It is the constitution we are expounding.  The constitution must be adopted to various crises of human affairs.  Given the situation the nation is in, it is okay to tinker with the contract. 


5 factors:


1.  There is an emergency in Minnesota.

2.  Legislation was addressed to a legitimate end.

3.  The relief afforded could be granted only upon reasonable conditions.

4. Conditions are reasonable

5. Legislation is temporary.


Dissent: Sutherland says that is the whole point of the K clause, you can’t tinker with this in an emergency.  He thinks the meaning of the K clause cannot change over time.  “Conditions to produce the rule, may now be used to destroy it.”


Important for several reasons:

-Signals more modern approach towards contract clause, i.e. if the state thinks it is really important, it can get away with these things and there is more freedom to change the contractual terms.


-It is also just interesting because it rejects the idea that the constitution has an unchanging meaning. 


Why does the contract clause only apply to the state government?  It is not obvious, it could just be a mistake or oversight on the part of the drafters. 


United States Trust Co. v. New Jersey


In United States Trust Co. v. New Jersey, the Supreme Court held that a higher level of scrutiny was needed for situations where laws modified the government's own contractual obligations. In this case, New Jersey had issued bonds to finance the World Trade Center and had contractually promised the bondholders that the collateral would not be used to finance money losing rail operations. Later, New Jersey attempted to modify law to allow financing of railway operations, and the bondholders successfully sued to prevent this from happening


No-no in two ways-getting rid of reserve and they are subsidizing competition, subsidizing methods of transportation that will decrease the stream of revenue used to pay off the bonds.  This will cause the value of the bonds to go down. 


What does the court say?  They say the weren’t able to repeal the contract.  We have been pretty loose with the contract clause, but when the state is the party to a contract, we have to be a little more careful because not surprisingly the state will claim that whatever it is doing with respect to its own contract is for public welfare. 


Brennan, White, and Marshall: say that the state should be able to pass the statute, and Brennan says that the court shouldn’t be in the business of getting in the way of economic and policy matters. 


Allied Structural Steel Co. v. Spannaus (p.999)


FACTS:  Allied Structural Steel Co. has an office in Illinois with 30 employees.  The company operated a general pension plan under which it retained unrestricted rights (1) to amend the plan in whole or in part and (2) to terminate the plan and to distribute the assets at any time and for any reason.  Employees were thus entitled to benefits if the worked until reaching age 65 and if the company remained in business and elected to continue the plan.


Minnesota enacted the Private Pension Benefits Protection Act, under which employers would be subject to a pension funding charge if they terminated the plan or closed a Minnesota office.  Allied tried to terminate its operation in Minnesota; and the state informed the company that it owed a pension funding charge of $185,000.


Fighting over 185,000. 


Court says:  It is not a broad statute, there is no emergency, but it imposes a sudden and totally unanticipated retroactive obligation on the company to its employees.  “If the Contract Clause means anything at all , it means that Minnesota could not constitutionally do what it tried to do to the company in this case.


Dissent: The state is just imposing a new obligation, they are not relieving the employer of any existing obligation. 


Unanticipated, if you are on the losing end of the statute, claim unanticipated as an advantage.


Case may be a more vigorous return to a pro contracts understanding of the clause, but as the notes make clear, this didn’t happen.


2 Categories of Contract Clause Cases:


1. Contracts between private parties: for the most part the state can change the contract without having to worry about the contract clause.  For example a state still cannot say that all debtors are free from the debts they hold, BUT they can extend the amount of time to pay the debt, spread the payments out over many years, and this will not be a problem.


2. Contract where the state is a party and the state passes a statute changing the obligations of the contract to which party (the state is a party) there is going to be more searching scrutiny and the court will be more willing to find the statute unconstitutional. 


XII. Introduction to the Freedom of Speech


Background of 1st Amendment/Freedom of Speech

o   1798 – Congress adopted the Alien and Sedition Acts of 1798

§  Crime to criticize govt

§  Truth would be a good defense

o   Pres Adams (Federalists) used law against their rivals, the Republicans

o   In 1800, after his election Pres Jefferson pardoned those convicted under law

o   Alien and Sedition Act was repealed

o   SC never ruled on its constitutionality

·         Ever since then, 1A is broader than prior restraint


Alien and Sedition Act:.


Truth is a defense to a Sedition Act prosecution.  You can be accused of being malicious, by being maliciously true. 


The First Amendment was though to be superfluous, but it isn’t. 


First Amendment made to get rid of seditious libel and prior restraint. 


XIII. Subversive Speech




The defendant, Charles Schenck, a Socialist, circulated a flyer to recently drafted men. The flyer, which cited the Thirteenth Amendment's provision against "involuntary servitude," exhorted the men to "assert [their] opposition to the draft," which it described as a moral wrong driven by the capitalist system. The circulars proposed peaceful resistance, such as petitioning to repeal the Conscription Act.


Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment.


If we are at peace and there is not likely to be a draft the court suggests that you can say what you want.  When you actually have a draft it becomes more likely that such speech will be more harmful and will harm the draft.


Clear and present danger that your words would bring about the substantive evil that Congress has a right to prevent.


Dennis v. United States


Revised clear and present danger test: Gravity of evil to be discounted by improbability of its occurrence to determine whether justifies invasion of free speech as nec to avoid danger.


Dennis had been convicted of conspiring and organizing for the overthrow and destruction of the United States government by force and violence, under provisions of the Smith Act. In affirming the conviction, a plurality of the Court adopted Judge Learned Hand's formulation of the clear and present danger test:


In each case [courts] must ask whether the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger.


You don’t have the gravity of the evil under the original clear and present danger test.


New test:

How important is the thing you are trying to avoid?

How likely is the event to occur?


Danger, how big of a danger, i.e. the gravity of the evil.


Brandenburg v. Ohio:


FACTS:  Clarence Brandenburg, a Ku Klux Klan leader in rural Ohio, contacted a reporter at a Cincinnati television station and invited him to come and cover a KKK rally in Hamilton County. Portions of the rally were taped, showing several men in robes and hoods, some carrying firearms, first burning a cross and then making speeches. One of the speeches made reference to the possibility of "vengeance" against "niggers," "Jews," and those who supported them. One of the speeches also claimed that "our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race," and announced plans for a march on Washington to take place July 4. Brandenburg was later convicted of advocating violence under Ohio's Criminal Syndicalism statute for his participation in the rally and for the speech he made.


3 Part Test:


1. Express advocacy of law violation.

2. The advocacy must call for immediate law violation.

3. Immediate law violation must be likely to occur. 


Larry Alexander looks at Brandenburg test and says that they are inconsistent with solicitation laws. 


XIV. Speech That “Threatens”


Bridges v. California (see book)


Δ found in contempt of court for a telegram saying that a judge’s decision is outrageous and he would have his union strike and tie up the port of LA if it was enforced.


Held: Conviction of contempt of court is unconstitutional because there is no clear and present danger.  “Substantive evil must be extremely serious & degree of imminence extremely high before utterances can be punished.”


If you vote against us, we are all going to go on strike.  The judge doesn’t think about this at all because it has nothing to do with the merits of the case. 


Planned Parenthood v. American Coalition of Life Activists (wanted posters of abortion docs)

-          FACTS – D established anti-abortion website (Nuremberg Files) w/ wanted posters of abortion doctor names and addresses


Threats aren’t protected.  If you are actually threatening somebody, that is not the same. 


6-5 en banc decision:  En banc means the entire court.  Supreme Court doesn’t have this because the entire court hears all the cases all the time. 


6-5 that this was threatening speech. 


Planned Parenthood v. American Coalition of Life Activists


Under Brandenburg this speech is fine, it is probably not imminent.  There is a reason why we have a separate threatening speech category, the court thinks that threatening speech should be given less protection. 


People were killed but under the majority test it doesn’t matter if somebody is killed, it just matters if a reasonable person would consider it a threat.  Court we don’t care whether or not you are attacking these folks, we think that somebody looking at the website it just seems that a reasonable person would construe this as a threat. 


Why do we care about threatening speech?  Why is it treated differently?  Because the state police power to protect their own residents, the courts have allowed states to curtail free speech. 


Objective test: Whether a reasonable person would foresee that the statement by those to whom the maker communicates the statement as a serious expression of intent to harm or assault. 


XV. Speech that Provokes a Hostile Audience Reaction & Fighting Words:


Terminiello v. Chicago


FACTS: Father Arthur Terminiello was giving a speech to the Christian Veterans of America in which he criticized various racial groups and made a number of inflammatory comments. There were approximately 800 people present in the auditorium where he was giving the speech, and a crowd of approximately 1,000 people outside, protesting the speech. The Chicago Police Department was present, but was unable to completely maintain order. Terminiello was later assessed a fine of one hundred dollars for violation of Chicago's breach of peace ordinance, which he appealed. Both the Illinois Appellate Court and Illinois Supreme Court affirmed the conviction, and the U.S. Supreme Court granted certiorari.


Terminiello is raising an issue that they didn’t originally bring up in court, typically you can’t bring this issue up in appeal if it is not first argued in trial, but the court says the issue is so important that they will hear it anyway.


The dissent raises this issue claiming that the court is deciding a question that wasn’t argued by the parties, so you are defaulted. 


Bottomline: You can’t suppress speech just because people are going to be offended by it.


COURT:  A function of free speech under our system is to invite dispute.  It may indeed best serve its high purpose when it induces a condition of unrest, created dissatisfaction with conditions as they are, or even stirs people to anger.  That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, UNLESS shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest.


Cantwell v. Connecticut


FACTS:  Newton Cantwell (a Jehovah's Witness) and his two sons were arrested in New Haven, CT in 1938 for, among other things: (1) violation of a Connecticut statute requiring solicitors to obtain a certificate from the secretary of the public welfare council ("Secretary") before soliciting funds from the public, and (2) breach of the peace.


Newton Cantwell and his two sons, Jesse and Russel, were Jehovah's Witnesses who were proselytizing in a heavily-Roman Catholic neighborhood in New Haven, Connecticut. The Cantwells were going door to door, with books and pamphlets and a portable phonograph with sets of records. Each record contained a description of one of the books. One such book was "Enemies", which was an attack on organized religion in general and especially the Roman Catholic Church. The two citizens who heard the record were incensed; though they wanted physically to assault the Cantwells, they restrained themselves.


The Cantwells were arrested and charged with inciting a common-law breach of the peace and violating a statute requiring registration of religious solicitors.


RULING:  The Court found that Cantwell's action was protected by the First and Fourteenth Amendments.


Justice Owen Roberts wrote in a unanimous opinion that "to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution."


Feiner v. New York


Why does this case come out differently than Cantwell?  Court applies clear and present danger test to uphold conviction. 


FACTS:  On March 8, 1949, Irving Feiner, a WWII veteran attending Syracuse University because of the GI Bill, and his fellow Progressive Party members were trying to call attention to a meeting they were holding at a nearby hotel. The meeting was a protest/discussion about the "Scottsboro Trial of the North." In order to call attention to the meeting, Feiner and the Progressives used a loudspeaker system set up on the roof of a car at South McBride and Harrison Street in a predominantly minority neighborhood. Eventually a crowd stopped and listened to what they were saying. The police were called and upon arrival found about 75-80 people covering the sidewalk and spilling out into the street.


The police were at the scene while Feiner spoke, when a white man approached an officer and said, "If you don't get that son of a bitch down, then I will." On three occasions, the police asked Feiner to get down and stop speaking. Finally, after he had been speaking for about thirty minutes, they arrested him for "inciting a breach of the peace."


RULING:  Focusing on the "rise up in arms and fight for their rights" part of Feiner's speech, the Court found that Feiner's First Amendment rights were not violated, because his arrest came when the police thought that a riot might occur. The Court found that the police did not attempt to suppress Feiner's message based on its content, but rather on the reaction of the crowd. The Court reaffirmed the fact that a speaker cannot be arrested for the content of his speech. The Court also reaffirmed the fact that the police must not be used as an instrument to silence unpopular views, but must be used to silence a speaker who is trying to incite a riot.


COURT: Okay to charge with disorderly conduct, he should have listened to the cops because there was a chance of some violence occurring here. 


DISSENT: There wasn’t a real threat of violence.  Black says that the police should control the crowd and only if crowd control was impossible should the speaker be arrested.


Feiner hasn’t been overturned in fact, but in theory it has pretty much been overturned.  The problem with the decision is that it allows an audience reaction, if hostile enough, to be a basis for suppressing a speaker.  A speaker who is acting completely lawfully can be silenced because of illegal behavior—the threats of violence and the use of force—by members of the audience. 


Chaplinsky v. New Hampshire


Another approach that government might take to regulating racist hate speech is by banning it as a form of fighting words. 


HELD: fighting words are a category of speech unprotected by the First Amendment. 


The Supreme Court has never held a fighting words conviction since Chaplinsky. 


Like Feiner, it is still there, but in reality the court hasn’t really upheld many fighting words statutes in recent times. 


Epithets are more common now than they were back then, and if they don’t result in breaches of the peace you can’t say that they are fighting words and they aren’t much of an epithet.  If people no longer fight about it, then it is no longer a fighting word. 


XVI.  Confidential Information


Skokie Controversy


National Socialist Party of America v. Village of Skokie, (sometimes referred to as the Skokie Affair), was a United States Supreme Court case dealing with freedom of assembly. The National Socialist Party of America (a Neo-Nazi group) planned a march in the town of Skokie, Illinois, a largely Jewish community. Some Skokie residents had been Holocaust survivors. In an attempt to stop the march, the county court asked for them to pay a $350,000 insurance hoping to dissuade them from marching.


The Skokie Controversy reflects many basic First Amendment principles.  Expression of hate is protected speech, and the government may not outlaw symbols of hate such as Swastikas.  Moreover, the government cannot suppress a speaker because of the reaction of the audience.


Protecting Confidential Speech:


New York Times v. Sullivan


Strong presumption that prior restraint is unconstitutional.


Former pentagon official takes quite a few documents and gives them to NY Times and NY Post.  The government seeks an injunction.  The preliminary injunction is granted, and it goes to the Supreme Court.


All justices decide to write separately.  Black and Douglass have an absolutist view of the first amendment (no prior restraints justified).


Brennan: Thinks there are some cases that may make prior restraint okay.  He quotes a Minnesota case: Times of war, doubts it is a time of war.


-          HELD – court order stopping publication violated 1A (10 diff opinions)

o   Per curiam opinion – Govt failed to meet burden of rebutting heavy presumption agst prior restraints

-          Black CONCUR – strongly condemned any prior restraint

o   Injunctions should have been vacated and cases dismissed

o   B/c would be impossible to find that Pres has inherent pwr to halt publication of news by resorting to courts

-          Douglas CONCUR – strongly condemned any prior restraint

o   Serious stuff but secrecy in govt is anti-democratic

-          Brennan CONCUR –

o   1A tolerates absolutely no prior judicial restraints of press based on speculation that bad consequences may result

o   Only possible govt pwr to restrict publication by press of sensitive material arises from govt’s inherent pwr to wage war successfully

o   Here Congress has not declared war, so govt cannot exercise this pwr

-          Stewart CONCUR – pres had pwr to seek injuction to protect natl security

o   Concluded that pres failed to justify need for prior restraint in this case

§  “I cannot say that disclosure of any of [documents involved] will surely result in direct, immediate, and irreparable dg to our Nation or its ppl

-          White CONCUR – govt failed to meet burden of high std needed for prior restraint

o   Congress can allow prior restraint

o   Here no statutory authority for courts to impose such an injuction

-The law on the books is the law that says you can go to jail, not impose an injunction.

-          Marshall CONCUR – Congress failed to give pres pwr to seek injunction to stop publication of info

o   Two scenarios

§  Govt has pwr under statutory grant to use tradtl crim law to protect US

§  If Congress has not made the activity a crime, Congress has specifically refused to grant authority govt requests

o   Court does not have authority to grant requested relief

-          CJ Burger DISSENT – court did not have sufficient time to gather and analyze facts

-          Harlan DISSENT – Jud review of exec branch in foreign affairs is narrowly restricted

o   Ct should inquire if subject of dispute lies w/n pres’ foreign rel pwr

o   Ct may req. head of dept determined disclosure of subject matter would irreparably impair natl security

-          Blackmun DISSENT – Case is too imp to be handled in rush, should be remanded


Don’t actually prosecute the people, what does this mean?  The Government wasn’t too sincere, once it was published they didn’t care about the people who had published it. 


If there is a statute would that be enough?  The answer is not that obvious. 



The Progressive Controversy:


United States v. Progressive (how to build H-bomb)

-          HELD – fed district ct enjoined mag from publishing how to build h-bomb

-          Distinguish Pentagon Papers case

o   Provision in Atomic Energy Act appeared to authorize injuction

o   Govt claimed preventing nuclear proliferation was justification sufficient to warrant prior restraint

-          Note case was dismissed on appeal b/c others published same info in other places (THE CASE WAS MOOT)

Nobody pertains that this stuff has anything to do with what the first amendment is all about.  We have much more freedom of speech than we would with the initial conception of freedom of speech. 


Original understanding was no prior restraint or seditious libel.