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"Strict Scrutiny Appears to No Longer be Fatal in Fact" - Argue. Formalism v. Functionalism.

University of Virginia School of Law Schauer, Spring 2014

Contents Congress's Power to Act...................................................................................................................... 2 Implied Powers................................................................................................................................. 2 Necessary and Proper Clause........................................................................................................... 2 Commerce Power............................................................................................................................. 3 Taxing and Spending Power............................................................................................................. 4 Article 5 of the 14th Amendment...................................................................................................... 4 Separation of Powers Issues............................................................................................................. 4 10th Amendment Restrictions........................................................................................................... 4 Presidential Power............................................................................................................................... 5 State's Power to Legislate................................................................................................................... 6 Dormant Commerce Clause............................................................................................................. 6 Substantive Due Process.................................................................................................................. 7 Equal Protection............................................................................................................................... 9 Takings.............................................................................................................................................. 12 Health Care..................................................................................................................................... 12 WAR POWERS................................................................................................................................. 13 LIBYA HYPO..................................................................................................................................... 14

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"Strict Scrutiny Appears to No Longer be Fatal in Fact" - Argue. Formalism v. Functionalism.

Congress's Power to Act If Congress is going to legislate, it must do so within its power to (what we focused on):?Historical Practice, i.e. Congress has successfully done it before Implied Powers, i.e. those not specifically delegated in Art 1 Sec.9 Make laws which are necessary and proper for carrying out its enumerated powers [NECESSARY AND PROPER CLAUSE], OR
? Regulate Interstate Commerce or Commerce With Foreign Nations, OR
?????Taxing and Spending Power
? Article 5 of the 14th Amendment

Implied Powers Congress may choose any means, not prohibited by the Constitution, to carry out its lawful authority [McCulloch v. Maryland]

Necessary and Proper Clause Necessary & Proper Clause grants Congress the legislative authority to enact federal statutes that constitute a means that is rationally related to the implementation of a constitutionally enumerated power [Comstock]

Page 2 of 19

"Strict Scrutiny Appears to No Longer be Fatal in Fact" - Argue. Formalism v. Functionalism. Commerce Power Congress is allowed to regulate intrastate if it has an impact on interstate activities [Gibbons v. Ogden]?Congress can also PROHIBIT things from being in interstate commerce [Champion]
As long as something is moving in between states, congress does NOT need a commercial motivation to regulate [Champion] (did it for morality) o However, if regulating solely intrastate activity, thumb on the scale if regulating nonecon activity [Morrison]
Congress may regulate the instrumentalities of interstate commerce [planes, trains, trucks, ships] or persons or things in interstate commerce, even though the threat may come only from intrastate activities [Shreveport RR]

Solely intrastate production was once seen as outside the scope of Congress' commerce power
[Dagenhart] (overruled by Darby)However if a business itself is an interstate "enterprise", its activities, although mostly intrastate when separately considered, necessarily usually have a close and substantial relation on interstate commerce (NLRB)

Then (before Lopez), even solely intrastate production (any intrastate activity) became within Congress' power if they have a rational basis in believing the activity has a substantial effect on interstate commerce [Darby]?Even if the local effect on interstate commerce is small, if the aggregate or cumulative effect of such could in fact has a substantial relation on interstate commerce, Congress can regulate [Wickard]
o Key to this argument is that such a good must be fungible and easily aggregated
[Wickard]
? Court has never allowed the aggregation of a non-economic activity [Morrison]
Congress can regulate non-problem causing members of a problem-causing class [Perez]
Congress can regulate the "channels of interstate commerce or activity within the channels" [HoA]
o Can also legislate morality in the interest of commerce [HoA]

Before Lopez, Court deferred to Congress, even in obscure chains of inferences (lowest level of scrutiny, no evidence needed) [Katzenbach]
Lopez (cited in Morrison) Framework: (draws on the above principles) Congress can regulate:

1. The use of the Channels of Interstate Commerce (HoA, Darby)

2. And protect the instrumentalities of interstate commerce, or persons/things in interstate commerce (Shreveport)

3. Activities that substantially affect interstate commerce (NLRB, Darby)
? If intrastate non-economic activity, esp. if usually left to states, thumb on the scale against it (Mor. / Lopez)
? Have never upheld an aggregation of a non-economic activity (Morrison)
? Congress must have more than just a "rational basis" in believing activity sub. eff. int commerce and an extended chain of inferences will be looked unfavorably upon, even with congress. findings (Morrison)

Page 3 of 19

"Strict Scrutiny Appears to No Longer be Fatal in Fact" - Argue. Formalism v. Functionalism. When Drafting a Statute

1. Make sure you are regulating an economic activity if aimed at intrastate (Lopez, Morrison)

2. Put in an express jurisdictional element (Lopez)

3. Provide detailed congressional findings showing interstate commerce effect (Lopez, Morrison) a. Less deference is going to be given to congress' rational basis for affecting interstate commerce, make sure there is evidence that the link is close (prob no extended inferences) Gonzalez v. Raich: Where a class of activities is within federal power to be regulated, congress can regulate intrastate instances of that activity in furtherance of the broader regulatory scheme. Congress can control the interstate drug trade and local cultivation affects supply and demand of interstate trade, resulting in a substantial effect on interstate commerce Sebelius: Congress has the power to regulate existing commerce, not compel the creation of commerce

Page 4 of 19

"Strict Scrutiny Appears to No Longer be Fatal in Fact" - Argue. Formalism v. Functionalism. Taxing and Spending Power The General Idea is Congress is free to tax and spend for the general welfare (U.S. v. Butler), but the line between encouragement and coercion matters (Dole, Sebelius) - congress cannot tax and [conditionally] spend to coerce behavior into essentially regulating something that they otherwise do not have the power to regulate [Bailey, Sebelius]
Any conditions on spending must be reasonably related to the program for which the money is given [Dole]

Article 5 of the 14th Amendment Gives Congress the power to enforce the Equal Protection and Due Process Clauses by appropriate legislation (power beyond its enumerated powers o o

Civil Rights Cases held this power could only be used on state action, not private action "any municipal golf course found to discriminate on the basis of race is fined $100 - permissible under SS 5

Separation of Powers Issues Congress does not have the power to delegate to themselves powers constitutionally given to another branch through legislation [Chada] (functionalist argument)The formalist argument is that the background purpose of two house approval and presentment should act as a check in itself (on what congress does through legislation)
[Chada Dissent]

Likewise, congress does not have the power to statutorily increase another branch of the government's power (president here) [Clinton v. NY]The functionalist argument is the converse to this, in that today the budget and other factors are so different that in the interest of legislative efficiency some powers may need to be moved around a bit [Clinton, Dissent]

Congress also technically does not have the power to delegate their powers to agencies pursuant Non Delegation Doctrine [Shectar Poultry]Has not been enforced since 1937. Congress does this today (OSHA etc), but the argument still looms o Morrison and Mastretta suggest evolving SC views on delegation

10th Amendment Restrictions "the tenth amendment states but a truism that all is retained which is not granted" (not a limitation on Congress' power itself" [Darby]Sole exception is when federal law attempts to regulate state enforcement/monitoring, federal law must regulate their own law [Printz]

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"Strict Scrutiny Appears to No Longer be Fatal in Fact" - Argue. Formalism v. Functionalism.

Presidential Power Article II Section 2. The president shall be Commander in Chief . . . shall have the power to make Treaties . . . appoint public officers not dictated by the constitution 1) Presidential Power is greatest when he is acting with explicit congressional authorization [Youngstown]
2) "Zone of Twilight" cases in which we are "unsure" (does not contradict anything in which congress has done), past practice makes a difference more so than it does in other areas
[congressional acquiescence, even if not explicit approval, makes a difference] (ex. war, foreign policy, national defense etc) [Youngstown]The two classes of power (foreign and domestic) are different, and the argument that the federal government (including the president) can exercise no powers except those specifically enumerated in the Constitution is true only in internal affairs [Curtiss-Wright]
o The federal government's power to wage war and maintain relations with other sovereignties is a power distinct from those enumerated in the constitution
[Curtiss-Wright]
? "Congressional legislation must often accord to the President a degree of discretion and freedom from statutory restrict which would not be admissible were domestic affairs alone involved" [Curtiss-Wright]
? Presidential powers may be more broad during war time "the exigence of the circumstances may demand that . . . proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict" [Hamidi]
o Normal levels of "scrutiny" may be changed during war time [Korematsu]
? Enactment of legislation by congress that is closely related to the Q of the president's authority may be considered to "invite" measures on independent presidential responsibility, when there is no contrary indication of legislative intent and when there is a history of similar conduct being acquiescence to by congress [Dames & Moore]
3) If in a plausible interpretation of acts of Congress they have said NO, that does not end the inquiry. President has power independent of Congress, but this is the area in which presidential power is the weakest. [Youngstown]?

"No citizen shall be detained except pursuant to an act of Congress" suggests president CANNOT detain citizens without such authorization [Hamidi]
Whatever it is that congress could have done, given that they have not done anything, president's powers are considerably narrower [Hamdan]

EXECUTIVE PRIVILEGE Although Executive Privilege has been historically recognized as an inherent Presidential Power, it is not absolute and must yield to important countervailing interests [US v. Nixon]"neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity" [US v. Nixon]
o In this case, the need for evidence at a trial outweighed executive privilege Page 6 of 19

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