Constitutional Law Major Outline Spring 2015 - UVA LawJudicial Review/Supremacy o Marbury v. Madison (p.1, 1803) - Initiated Judicial ReviewFacts: Judicial commission letter from Adams was not delivered until after Jefferson took office. Jefferson tried to withdraw the commission. SCOTUS granted mandamus compelling delivery and Madison (Jefferson's SOS) ignored it.Rule 1: Judicial supremacy. SCOTUS's rulings are binding on the other branches of government.Rule 2: Judiciary Act impermissibly expanded SCOTUS's jurisdiction beyond the constitution (constitution is supreme, thus JA portion was struck down) o Legislative Supremacy: alternative viewpoint that legislature decides issues of constitutional lawIf they pass something unconstitutional then the people will correct the process in their voting behaviorsBased in part on the idea that Congress also takes an oath to uphold the ConstitutionSee countermajoritarian difficulty o Martin v. Hunter's Lessee (p. 24, 1816)Issue: To what extent may SCOTUS review decisions of the states--both courts and legislatures?Dual Federalism vs. FederalismArgument for no judicial review of state laws:States Rights: this would run against state sovereigntyConstitution only applies to federal governmentIncorrect, places several restrictions on stateDepartmentalism: states retain power to interpret Constitution for themselvesSlippery slope argument - too much powerSee McCullugh v. MD: power to tax is power to destroyBut see Sorites Paradox: Heap of rice minus one grain is still a heap; even when you can't draw a line it doesn't mean things are necessarily going to spiral out of control.Argument for judicial review of state laws:Different interpretations of the constitution by separate states would interfere with the idea of a single federal constitutionSee economic results of different rulesPointed to the supremacy clause regarding supremacy of the constitution itself - ties into one interpretationRule: Constitution is both supreme and singular. SCOTUS has the ultimate power to make final interpretations of the document. o Article III, Section 2, Clause 3

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Congress has power to regulate the appellate jurisdiction of SCOTUS and other federal courts.Power is often threatened but has never been usedE.g. abortion--Congress post-Roe threatened to withdraw SCOTUS' jurisdiction over abortion issuesCannot alter jurisdiction for an individual case (United States v. Klein, p. 51, 1872: Congress may not use this power to compel the court to reach decisions that would violate another part of the Constitution) Congress sets the number of Justices, sets rules of procedure, etc. Judicial Interpretive Supremacy (see Cooper v. Aaron) SCOTUS is supreme interpreter and its interpretations are binding on all the other branches and on the states. Alternative theory: Departmentalism. Each of the branches of government is entitled to interpret for themselves because there are 3 co-equal branches of gov't that have each sworn to uphold the Constitution.Nothing in document gives SCOTUS explicit and exclusive powerDepartmentalists refuse to comply with SCOTUS rulings unless they are directly directed to them--view the rulings as binding only on the parties.Continue following their own interpretation unless SCOTUS directs a ruling at them.Hollingsworth v. Perry (Supp 96, 2013) (see also same-sex marriage)Rule: State officials are not bound to defend state laws they believe to be unconstitutionalDissent: Politicians should make decisions on policy grounds and let courts make constitutional decisions Non-Acquiescence: In the absence of a SCOTUS ruling other branches may interpret, but once SCOTUS has ruled its interpretation is final.Example: IRS ignores lower court decisions until SCOTUS rules Popular Constitutionalism: complicated, basically congress/POTUS has the ability to scoot around constitutional decisions by the court in cases of popular opinion, such as Lincoln emancipating slaves Limits of Judicial Review: Can review State Supreme Courts only when there is a federal question Powers of the Federal Government General: Issue: when can they usurp the states ubiquitous police power?
Answer: when they are authorized by the enumerated powers of constitutionFederal police power only extended to areas within enumerated powers Constraint on the states: rights reserved to the people by the constitution Federal courts generally lack jurisdiction over state supreme court rulings on state law.

SCOTUS may only hear appeals from state supreme courts when there is a federal question Issue: are there implied powers for execution of enumerated powers?
Necessary and Proper Clause "We must never forget that it is a Constitution on which we are expounding"Constitution is not a legal code or exhaustive list of powersEnumerated powers gives the ends, and necessary and proper lets the government determine the means Implied Powers (Penumbras)Certain powers necessarily entail other powersE.g. power to coin money means power to build a mint, power to raise a navy means power to build a shipyard Legislative DeferenceSCOTUS defers to Congress on determining the extent of each enumerated power Definition of Necessary:Sort of necessary, necessary, very necessary, absolutely necessary, indispensably necessary? Where is the line?Constitution uses "absolutely necessary" elsewhere so there is reason to believe that this is a more expansive definitionMarshall in McCulloch takes an expansive view interpreting it as closer to facilitative or useful, not absolutely necessaryWithin Section 8 Defining power rather than section 9 limiting powers, thus it's reasonable to consider it expansively, rather than in a limiting sense McCulloch v. Marlyland (p. 68, 1819)Issue: Does Congress have power to establish a bank?Rule: Yes, a necessary and proper extension of Congress' power to coin money, regulate commerce, borrow money, and raise an army.SCOTUS will generally defer to Congress' judgment on what is necessary and proper Recent Cases:Summary:Must construct a chain showing necessary powers reaching back to an enumerated powerNecessary and proper is not a power on its ownUS vs. Comstock: (p. 73, 2010) - Necessary/Proper + Relation to PowersFacts: guy was in prison for a valid federal crime and detained post release for mental health reasonsIssue: is this a necessary and proper exercise of federal power??
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Rule: Yes. If Congress has power to create prisons, it has the power to do what is necessary and proper to make them operational including dealing with people's mental issues.U.S. v. Kebodeaux (supp. 3, 2013) - Necessary/Proper doesn't stand aloneSame holding as Comstock; court rejects necessary and proper as independent source of power but accepts long chain of links. Impeachment Powers of Congress Walter Nixon v. United States (p. 29, 1993) - Textually Demonstrative Commitment to Coordinate BranchFacts: Nixon took a bribe, house impeached, senate began proceedings. Constitution grants the Senate the power to try all impeachments. The Senate conducted part of the trial in a committee.Issue: How do you conduct the trial? Can SCOTUS review the senate's decision on how to try?Ruling: non-justiciable question - try means what the senate says it meansReasoning: textually demonstrative commitment to the senate for deciding this procedure Issues:What does high crimes and misdemeanors mean?Ford: it meant whatever the house said it meantSchauer: nope, not limited to the criminal law, i.e. can be discharged for failure to fulfill duties of the officeOther school of thought: may not include things that are part of the criminal lawEjusdem Generis: Of the same kind. Interpret high crimes and misdemeanors as similar to treason and bribery, the words listed next to them. Commerce Clause Current synthesis: May regulate intrastate activities for moral reason if they have an effect on interstate commerce.See Champion and DarbyPost-Morrison: Higher burden on Congress to demonstrate connection to interstate commerce if the motives are social and moral rather than business or economic.Economic motives create high deference to the legislature. Moral motives are more subject to the other factors of the MorrisJurisdictional hooks limiting to instances of interstate commerce can save an otherwise unacceptable statute (e.g. mail for RICO)Motive: Post Wallace v. Jaffrey (school prayer), SCOTUS will throw out a facially valid statute if it is motivated by unconstitutional intentions.o?

o???Prior rule: (pre Darby) you needed instrumentalities of interstate commerce or economic-based regulation of goods in the stream of commerce Gibbons v. Ogden (p. 78, 1824) - Commerce = (navigation, ...)Facts: P had right to operate in waters from federal government, D got the right to operate from someone who got it from the state.Issue: Does the word "commerce" grant this power to the federal government and if so what does that say about state's right to do the same?Rule 1: Commerce clause gives Congress the power to regulate the movement of goods and navigation.Rule 2: the fact that congress had acted on this waterway preempts similar action by the states (see implicit preemption)Reasoning: Congress is answerable to the people of the states, so voters act as the states' check on federal overreach. Champion v. Ames (Lottery Case) (p. 83, 1903) Still Good Law, Moral ReasonsIssue: can congress regulate interstate movement of lottery tickets for purely moral reasons?Ruling: this is within the commerce clauseReasoning: lottery tickets are instruments of commerce, and thus it can be regulated over state bordersImpact: Allowed Congress to exclude things from interstate commerce for purely moral reasons Houston East & West Texas RR v. United States (Shreveport Rail Case) (p. 85 1914) Still Good Law - Instrumentalities or things in ICFacts: federal government had national rates, Texas had a lower rate for intrastate movementIssue: Can a state regulate fares between two stations within that state on an interstate railroad when the federal government has a separate regulation?Rule: No because artificially low rates within the state will affect interstate rates for the entire railroad. Congress has the power to regulate rates.Otherwise low duties states give to their goods would essentially put a tariff on out of state goods. Hammer v. Dagenhart (p. 88, 1918) OVERRULED Pre-New Deal Rule, attenuated regulation of intrastate commerce affecting interstate commerceIssue: Can goods made by child labor be excluded from the stream of interstate commerce--is mixing of moral (no child labor) and economic (effect on labor rates) motives OK?Rule: Too attenuated from interstate commerce. Commerce clause cannot be used as a cover to extend federal police power. Carter v. Carter Coal Co. (1936 p. 91), Schechter Poultry v. United States (p. 90, 1935): OVERRULED limits pre-Darby (Moral Legislation +
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Facts (both statutes struck down)Carter: Labor regulations on coal minesSchecter Poultry: Regulations of wages and hours in the poultry industry.Both extended Hammer v. Dagenhart; Congress does not have power to put economic regulations on businesses by using the commerce clause.Representative of pre-switch in time positionLed to court packing plan and Justice Roberts' flip NLRB v. Jones & Laughlin Steel Corp (p. 93, 1937): limit of limits preDarby (substantial relation to interstate commerce)Facts: steel industry is vertically integratedRuling: since the industry itself is necessarily interstate, it falls within the reach of the commerce clause United States v. Darby (p. 94, 1941) Post-New Deal Rule - Channels of IC (moral regulation interstate effect)Facts: Regulation on a saw mill that was part of a national market, but was not necessarily interstate since all its raw materials could be found in its home stateRule: Intrastate companies that have an interstate element to them can be regulated by Congress because of their effect on interstate commerce.Overrules Hammer v. Dagenhart: can combine moral and economic rationalesAffirms and extends Champion v. Ames and ShreveportNo "instrumentalities of commerce" needed; placing goods in stream of interstate commerce is enoughAllows these theories (moral and economic) to be combined (combination is no longer too far attenuated) Wickard v. Filburn (p. 99, 1942) - Market in Aggregate for Fungible GoodsFacts: Kansas wheat farmer limited by agricultural bill, was using some for himselfRule: if a good is fungible, then the activity of purely intrastate businesses, in aggregate, can affect interstate commerce, thereby placing it within congressional purviewExtension of Darby to actors that do not deal in interstate commerce at all. Just limiting sales to local markets may not be enough to take you out of federal regulation. Perez v. United States (p. 102, 1971) Broadest Possible Interpretation of Commerce PowerFacts: Purely intrastate loansharkRuling: Legislative deference; Congress may judge all loansharking to be necessarily interstate in nature if part of a class that has members doing so (overinclusive)??Outside Wickard ruling because it's hard to determine the aggregate market, yet congress nonetheless chooses to lump them into a general class of loan sharks and this is ok Heart of Atlanta Motel v. United States (p. 103, 1964) - Channels of Interstate CommerceContextualization: SCOTUS ruled in 1883 that the 14th Amendment was limited to government actors, the law was passed assuming this would change, but in case they wouldn't change their mind they also justified on commerce groundsFacts: hotel that puts up mostly out of state guests on the side of 2 major interstate highways doesn't allow blacks - law passed to prevent thisRuling: hotel has a direct effect on interstate commerce, is part of the instrumentalities thereof, and thus is subject to congressional regulationCombination of rules from Shreveport and Jones &
Laughlin Katzenbach v. McClung (p. 105, 1964) - Aggregation & Restraint on TravelFacts: Restaurant is purely local and does not market to out-ofstate customersRule: Wickard aggregation principle used; all whites-only restaurants taken together have an effect on interstate commerce because they discourage blacks from traveling.Restaurant is too far from interstate commerce to use Shreveport/Jones instrumentalities rule alone, so they have to add in Wickard.Birth of Rational Basis Test: If Congress can find a rational commerce-based reason to ban segregation SCOTUS will defer to it. Morton v. Bloom (1973) Exception CaseFacts: Health and safety regulation on coal mines; one-man mine claimed he was excludedRule: Inconveiable that Congress intended to reach this one man mine; less of a commerce clause issue than a statutory construction oneRuling that the law applied to him would have required him to hire a bunch of other people. United States v. Lopez (within Morrison on p. 108, 1995) - guns in schools United States v. Morrison (p. 108, 2000) Walkback of Darby-era LineFour indicatorsIntention of CongressBusiness/economic motives are better, primarily moral justifications (e.g. violence) are suspectContra Darby, a purely economic statuteBrings back Champion v. Ames???

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