Constitutional Law I
Professor Denning’s Constitutional Law I
§1: Judicial Review
Article III of the Constitution, which is the
article setting forth the judiciary branch, never expressly grants the federal
courts the power to review the constitutionality of federal or state laws or
executive decisions. However, from the earliest days of the country, the Supreme
Court has claimed the power to review the constitutionality of federal and state
laws and executive actions. Seminal cases include Marbury v. Madison, and
Martin v. Hunter’s Lessee. Because of these decisions, the power
of judicial review is firmly established and is an integral part of American
government, even though it is not authorized in the text of the Constitution.
Layman’s Definition of Judicial Review
Judicial review is the power of courts
(generally) to review the acts of legislatures and the acts of the executive.
Simply, judicial review is the ability of the court in a case brought before it
to rule on the validity of an action of the legislative, executive or judicial
branch of government.
Definition of Judicial Review
According to Black’s Law Dictionary,
judicial review is “a court’s power to review the actions of other branches or
levels of government; esp., the court’s power to invalidate legislative and
executive actions as being unconstitutional.”
Marbury v. Madison
This case is the single most important decision
in American constitutional law. It established the authority for the judiciary
to review the constitutionality of executive and legislative acts.
Jefferson, a Democratic-Republican, defeated
Adams in the presidential race. The Judiciary Act
of 1801 allowed Adams to create circuit judges and justices of the peace. This
was done and Democratic-Republicans thought it was an effort by the Federalists
to create a stronghold in the judiciary. John Marshall, a Federalist, was named
to be Chief Justice and the number of justices was reduced from six to five.
William Marbury was nominated and confirmed to a justice of the peace position.
The commission was never delivered to Marbury during Adams’ term. The Jefferson
administration takes over and Madison is told not to deliver the commissions. In
1801, Marbury files suit, petitioning the court to issue a writ of mandamus. A
writ of mandamus is an order to compel issued by a court to a government
official requiring that official to perform his mandatory or purely ministerial
duties correctly. Although Marbury’s petition was filed in December 1801, the
Supreme Court did not hear the case until 1803 because Congress, by statute,
abolished the June and December 1802 Terms of the Supreme Court.
The Supreme Court ruled against Marbury and held
that it could not constitutionally hear the case as a matter of original
jurisdiction. The Court held that although the Judiciary Act of 1789 authorized
such jurisdiction, this provision of the statute was unconstitutional because
Congress cannot establish original jurisdiction beyond the situations enumerated
in the Constitution.
Comment on Marshall’s Analysis
Marshall dealt with the jurisdiction issue last
as opposed to first in this case. Because the Court held that it lacked
jurisdiction, all other parts of the opinion – such as considering whether the
commission had vested and the ability of the judiciary to review the executive’s
action – were arguably improper. There are two probable reasons why Marshall
structured the opinion this way. First, the initial parts of the opinion may
have been included to show that the Jefferson administration was improperly denying Marbury his commission, even
though nothing more could be done. Second, the case was likely perceived as
presenting a unique opportunity to claim the power of judicial review, but in a
context least likely to draw opposition.
Three Issues of the Opinion
Marshall set forth his analysis by posing three
primary questions: (1) Does Marbury have a right to the commission? (2) Do the
laws afford Marbury a remedy? And (3) Can the Supreme Court issue this remedy
and is mandamus the appropriate remedy?
Does Marbury have a Right to the Commission?
The Court concluded that Marbury had a right to
the commission because all appropriate procedures were followed. The Jefferson
administration contended that delivery was essential to the validity of a
commission but the Court rejected this view stating that “when a commission has
been signed by the President, the appointment is made; and that the commission
is complete, when the seal of the United States has been affixed to it by the
Secretary of State.”
Do the laws afford Marbury a remedy?
Since the essence of civil liberty of the right
of every individual to claim the protection of the laws whenever he received an
injury, the specific issue dealt with was whether the Court could give Marbury a
remedy against the executive branch of government. The Court answered that no
man – not even the president – is above the law. The Court drew a distinction,
however, stating hat the judiciary could provide remedies against the executive
when there is a special duty to a particular person, but not when it is a
political matter left to executive discretion.
Can the Court issue this remedy and is mandamus the appropriate remedy?
In answering the former question, the Court again
focused on the distinction between ministerial acts, where the executive had a
duty to perform, and political acts, within the discretion of the executive.
Judicial review was deemed appropriate only over ministerial acts. Marbury
then establishes the power of the judiciary to review the constitutionality of
executive actions. Some matters – such as whether to veto a bill or who to
appoint for an office – are entirely within the discretion of the President and
cannot be reviewed. But where the executive has a legal duty to act or refrain
from acting, the federal judiciary can provide a remedy, including a writ of
Does the law authorize mandamus on original jurisdiction?
Having concluded that Marbury was entitled to the
commission and the court had the authority to issue a remedy, the Court then
turned to jurisdiction. The Court read Section 13 of the Judiciary Act of 1789
as granting it original jurisdiction over requests for mandamus.
Does mandamus on original jurisdiction violate Article III?
Yes; the Court concluded that Article III
enumerated its original jurisdiction and that Congress could not enlarge it. The
Constitution provides that the Supreme Court has original jurisdiction over only
suits “affecting ambassadors, other public Ministers and Consuls, and those in
which a State shall be a party.” The Court said that Congress could not add to
this list cases seeking a writ of mandamus. Essentially, Marbury stated that
Article III’s enumeration of original jurisdiction would be “mere surplusage . .
. entirely without meaning” if Congress could add more areas of original
Can the Supreme Court declare laws unconstitutional?
Marshall offered several reasons why the Court
could declare federal laws unconstitutional, which are essentially
justifications for judicial review: (1) it is inherent to the judicial role to
decide the constitutionality of the laws that it applies; (2) the Constitution
imposes limits on government powers and these limits are meaningless unless
subject to judicial enforcement; (3) the Court’s authority to decide cases
arising under the Constitution implied the power to declare unconstitutional
laws conflicting with its basic charter; (4) it would violate a judge’s oath of
office to enforce an unconstitutional law; and (5) judicial review is
appropriate because Article VI makes the Constitution “the supreme law of the
land” – thereby making it superior to all other laws.
Criticism of Marshall’s Justifications for Judicial Review
Some critics contend that the fact that the
Constitution is the supreme law does not compel its conclusion that the Court is
the final interpreter of the Constitution. Since the Constitution does not
explicitly give the courts judicial review, the critics contend that each branch
of the government is equally entitled to determine for itself the meaning of the
Constitution. None of Marshall’s justifications entirely dispose of this
objection, although taken together, they form a convincing argument.
Arguments for the Utility of Judicial Review
Judicial review is often asserted to be desirable
for the following reasons:
Congress will manifest the will of the majority,
which may (perhaps often) be intolerant of unpopular political minorities. But
constitutional rights are intended to protect political minorities, so Congress
cannot be thus trusted. Federal judges, appointed for life, are relatively
immune from majoritarian pressure, so they are better equipped to decide whether
legislation is constitutional.
If each branch is free to determine the meaning
of the Constitution, there will never be any settled meaning. Court decisions
would bind particular litigants but would have no broader effect. The
possibility of constitutional chaos is avoided by the acceptance of judicial
Arguments Against Judicial Review
Judicial review is often asserted to be
pernicious for the following reasons:
Federal judges are unelected and are not
politically accountable. To vest final authority over the meaning of the
Constitution in such people is a repudiation of the principle of democratic
self-governance. Courts could essentially become a judicial politburo.
Judicial review means that it is very difficult
to correct mistaken judicial interpretations of the Constitution. Avenues for
correction include (1) persuading Court to change its mind (usually requires new
Justices as a prerequisite), (2) impeachment, or (3) constitutional amendment.
All of these options are difficult to implement, so judicial review means that
when the court gets something wrong, it usually stays wrong for a long time.
The Authority for Judicial Review of State and Local Actions
established the power of the Supreme Court to review the constitutionality pf
federal executive actions and federal statutes. Another case, Martin
v. Hunter’s Lessee, was key in establishing the Court’s authority to review
state court decisions. Although the Constitution does not explicitly say that
the Supreme Court mat review state court decisions, the Judiciary Act of 1789
provided for Supreme Court review of state court judgments.
Martin v. Hunter’s Lessee
In this case, there were two conflicting claims
to certain land within the state of Virginia. Martin claimed title to the land
to the land based on inheritance from Lord Fairfax, a British citizen who owned
the land. The U.S. and England had entered into two treaties protecting the
rights of British citizens to own land in the U.S. However, Hunter claimed that
Virginia had taken the land before the treaties came into effect, and hence,
Martin did not have a valid claim to the property.
The VA Court of Appeals ruled in favor of Hunter.
The U.S. Supreme Court issued a writ of error and reversed the VA decision,
holding that the federal treaty was controlling and that it established
Fairfax’s ownership. The VA Court of Appeals, however, declared that the Supreme
Court lacked the authority to review state court decisions. This posed the
ultimate question of this case: does the Supreme Court have authority to review
state court decisions.
Ultimately, in a decision written by Justice
Story, the Court articulated its authority to review state court decisions.
Story makes three compelling arguments for Supreme Court review of state court
First, Story argues that the Constitution presumed that the Supreme Court
could review state court decisions. Story argued that the Constitution creates a
Supreme Court and gives Congress the discretion whether to create lower federal
courts. But if Congress chose not to establish such tribunals, then the Supreme
Court would be powerless to hear any cases, except for a few fitting within its
original jurisdiction, unless it could review state court rulings. As such,
since Article III grants the Court appellate jurisdiction over all cases arising
under the Constitution that rant must include those that arise from the state
Second, Story emphasized the importance of Supreme Court review of state
court decisions, arguing that the Constitution was based on a recognition that
“state attachments, state prejudices, state jealousies, and state interests
might sometimes obstruct, or control, or be supposes to obstruct or control, the
regular administration of justice.” Moreover, state judges are obligated to
apply federal law as superior to state law. Because state judges are bound by
the U.S. Constitution, their constitutional interpretations ought to be bound by
the Supreme Court.
Finally, Story also observes that Supreme Court review is essential to
ensure uniformity in the interpretation of federal law.
Cooper v. Aaron
This case proved that not only does the Supreme
Court have the ability to review state court decisions, but federal courts also
have the authority to review the constitutionality of state laws and the actions
of state officials.
A federal district court ordered the
desegregation of the Little Rock, Arkansas, public schools. The state disobeyed
this order, in part, based on a professed concern that compliance would lead to
violence, and, in part, based on a claim that it was not bound to comply with
judicial desegregation decrees.
The Court rejected the claim that the state was
not bound to comply with judicial desegregation decrees. The Court reasoned that
Article VI of the Constitution makes the Constitution ‘the supreme Law of the
Land’ and that Marbury had declared the basic principle that the federal
judiciary is supreme in the exposition of the law of the Constitution.
Therefore, every state legislator and executive and judicial officer is solemnly
committed by oath to support the Constitution.
§2: Doctrines Limiting the Scope of Judicial
Direct Political Controls: Amendment, Appointment, and Impeachment
The direct political controls of the Supreme
Court are difficult and uncertain. The Constitution may be amended to reverse
constitutional decisions of the Court. New members of the Court may be appointed
with the hope or expectation that they will vote to overrule specific past
decisions. Any federal judge, including justices of the Court, may be impeached,
convicted, and removed from office.
The Constitution is not easily amended, but
amendment is one way to reverse decisions of the Court. Rather than amend the
Constitution to control the Court’s use of judicial review, the amendment
process is far more commonly used to address other issues, such as allocation of
government powers, the operation of the electoral system, or the creation of new
fundamental rights. There are two basic modes of amendment specified by Article
V. Amendments may be proposed either by a two-thirds vote of each House of
Congress or by a constitutional convention called by Congress upon the
application of two-thirds of the states. In either case, a proposed amendment
must be ratified by three-fourths of the state legislatures or state
ratification conventions, whichever method of ratification Congress specifies.
Article V contains no express requirement that
ratification be a product of contemporaneous action, but the Court has hinted
that such a requirement might be implied. In Dillon v. Gloss, the Court
held that Congress could impose a reasonable time limit on ratification of a
proposed amendment and offered the gratuitous observation that nothing in
Article V “suggests that an amendment once proposed is to be open for
ratification for all time.”
Article V does contemplate the possibility of
amendments proposed by a convention, but we have never had two-thirds of the
states unite in a call for such a convention.
Rescission Before Ratification
In Coleman v. Miller, the Court
established the principle that rescission is a political question not
justiciable by courts. Congress ultimately decides whether to give effect to a
There is one explicit limit on the substance of
amendments. Article V forbids elimination of the states’ equal representation in
the Senate except by consent of an affected state. However, taken literally,
that might not prevent repeal of Article V’s consent clause by ordinary
amendment, followed by another amendment that reapportioned the Senate by
population. This leads to the general and more speculative issue of whether
there is some implicit limit on the substance of amendments. The prevailing
opinion is that there is not; any amendment, no matter how obnoxious to the
existing spirit of the Constitution, is valid so long as it is adopted in the
constitutionally proscribed fashion.
Presidents frequently try to influence the
Court’s constitutional decisions by their power to appoint justices. An
appointment to the Court consists of a presidential nomination followed by
senatorial confirmation of the appointment. About one in every four nominees has
failed to be confirmed. Generally, when presidents make appointments to the
Court with the intent of remaking constitutional law, they have existing law in
mind. The problem with this is that justices serve well beyond the time for
resolution of an immediate issue, and their views on issues that are not even on
the constitutional horizon when they are appointed cannot easily be known in
advance. Moreover, justices sometimes change their views once they begin to
serve on the Court. A final problem with affecting constitutional decisions by
appointment is that it takes a lot of vacancies to alter the Court’s direction
Impeachment is another mode of affecting
constitutional decisions, although it is rarely employed. Article II, section 4
provides that “all Civil Officers of the United States shall be removed from
Office on Impeachment for, and Conviction of, Treason, Bribery, or other High
Crimes and Misdemeanors.” The practical reality of impeachment is that it is a
device to remove a person from an office of public trust upon the occurrence of
any behavior, criminal or not, that amounts to a serious abuse or breach of
Congressional Power to Control the Jurisdiction of Federal Courts
Two provisions of Article III give Congress
considerable authority to restrict the jurisdiction of all federal courts,
including the Supreme Court. But this authority is not unlimited.
Power to Establish Federal Courts
Art. III, sec. 1 locates the federal judicial
power in one Supreme Court and “in such inferior Courts as the Congress may from
time to time ordain and establish.” This provision probably permits Congress to
eliminate all federal courts. Subject to the general limits discussed below,
this provision certainly permits Congress to curtail at its pleasure the
jurisdiction of the federal courts.
Exceptions to and Regulations of Supreme Court Appellate Jurisdiction
Art. III, sec. 2 gives the Supreme Court
appellate review of all cases within the federal judicial power (except those in
which the Court has original jurisdiction) “with such Exceptions, and under such
Regulations as the Congress shall make.” This is commonly referred to as the
Defining the Scope of the Exceptions Power
The language of the Exceptions Clause, read in
isolation, may appear to grant Congress discretion to make exceptions to the
Court’s appellate jurisdiction. From this narrow textual perspective, the only
question is whether a particular jurisdictional limitation imposed by Congress
constitutes an exception to the Court’s appellate jurisdiction.
The Traditional or Plenary Power View
This views takes the stance that, in essence,
Congress is granted plenary power to withdraw subject matters from the Court’s
appellate jurisdiction. Thus if Congress were to provide that the Supreme Court
could not exercise appellate jurisdiction over cases arising under the First
Amendment to the Constitution, the Exceptions Clause would provide a textual
basis for the congressional action.
This view takes the stance that the Exceptions
Clause is part of the more comprehensive text of Article III, and perhaps our
interpretation should take that larger perspective into consideration. Art. III
provides that the judicial power “shall extend to all cases arising under the
Constitution [and] the Laws of the United States.” Some have argued that this
language requires that some Article III court – either the Supreme Court or an
inferior court – must be available to hear such cases – i.e., the federal
judicial power must extend to all cases arising under the Constitution or
federal laws. Under this view, Congress may not use its exceptions power to
eliminate the Court’s appellate jurisdiction over cases arising under the
Constitution unless, at a minimum, Congress vests jurisdiction over such cases
in an inferior federal court created pursuant to Article III.
Ex parte McCardle
The leading case construing the exceptions power
is Ex parte McCardle.
McCardle was a newspaper editor in Vicksburg, MS, who was arrested by federal
officials for writing a series of newspaper articles that were highly critical
of Reconstruction and especially of military rule in the South following the
Civil War. He filed a petition for a writ of habeas corpus pursuant to a statute
adopted in 1867 that permitted federal courts to grant habeas corpus relief to
anyone held in custody in violation of the Constitution by either a state or the
federal government. Prior to the 1867 statute, federal courts could only hear
habeas corpus petitions from those who were held in federal custody.
Procedure and Holding
On March 9, 1868, the Supreme Court heard oral
arguments. However, before a decision was granted, parts of the 1867 statute
were repealed by Congress. The Supreme Court thus considered whether it had
jurisdiction to hear McCardle’s constitutional claims in light of the recently
adopted statute denying its authority to hear appeals under the 1867 Act that
was the basis of jurisdiction in McCardle’s petition. The Court held that it
could not decide the case because Congress’s authority to create exceptions and
regulations to the Court’s appellate jurisdiction.
In its opinion, the Court took the Exceptions
Clause at face value, stating that “[t]he power to make exceptions to the
appellate jurisdiction of this court is given by express words.” Therefore, once
Congress exercised its exceptions power to divest the court of jurisdiction,
there was nothing for the Court to do but to dismiss the case. From this
perspective, McCardle lends strong support to the traditional or plenary
Supporters of contemporary proposals to restrict
Supreme Court jurisdiction cite McCardle as precedent. They contend that
McCardle establishes that Congress may prevent Supreme Court review of
constitutional issues. The fact that Congress intends to change the substantive
law by limiting jurisdiction is deemed irrelevant.
Arguments of Opponents of Jurisdiction Stripping
Some contend that McCardle is easily
distinguished from contemporary attempts to prevent Supreme Court review of
topics such as abortion and school prayer. In McCardle, even after the
repeal of the 1867 Act, the Supreme Court still had the authority to hear
McCardle’s claims under the 1789 Judiciary Act, which allowed federal courts to
grant writs of habeas corpus to federal prisoners. In other words, in
McCardle, the Supreme Court was considering the constitutionality of a
statute that did not completely preclude Supreme Court review, but rather only
eliminated one of two bases for its authority. The
Court expressly indicated that it still had jurisdiction in habeas corpus cases
notwithstanding the repeal of the 1867 Act. Essentially, the case would have to
go through the Circuit Courts first, however.
Scope of McCardle
Though it upheld congressional repeal of its
jurisdiction the Court noted that McCardle had other avenues by which he could
bring a habeas petition before the federal courts, including the Supreme Court.
The hint was that if Congress had attempted to eliminate all federal habeas
jurisdiction, it might have exceeded its authority. From this nugget later
thinkers have refined a series of possible limits on the congressional power to
restrict the jurisdiction of federal courts.
Limits on Congressional Power to Curtail Federal Court Jurisdiction
There are two types of limitations on
congressional powers to restrict the jurisdiction of federal courts: “internal”
and “external” powers. Internal limits are connected to Art. III and the
structural relationship of the federal courts and Congress. They are “internal”
because they are part of, or inside, the grant of judicial power of Art. III.
External limits are constitutional limits that have nothing to do with Art. III.
Congress may not curtail jurisdiction in a way that violates some other
constitutional guarantee, such as equal protection or due process. They are
external limits because they are outside Art. III. Some of these limits are
firmly established by precedent, and others lie in the realm of custom and
U.S. v. Klein
and Attempts to Dictate the Outcome of Pending Litigation
involved a claim for compensation from the federal government for property
destroyed by the Union army during the Civil War. By law compensation was due
only to people who were loyal to the United States during the Civil War. Klein,
who had accepted President Johnson’s general presidential pardon following the
war, had proven his loyalty in the lower federal courts by relying upon a line
of cases that held that recipients of such pardons were conclusively presumed to
be loyal. While the government’s appeal of Klein’s compensation award was
pending, Congress enacted legislation that provided that recipients of Johnson’s
general pardon were presumed to be disloyal, and directing federal courts to
dismiss any compensation case brought by such a person. The Supreme Court held
the legislation to be unconstitutional as applied to Klein.
Rationale and Scope
While acknowledging Congress’s power to create
exceptions and regulations to the Court’s appellate jurisdiction, the Supreme
Court said that Congress can not direct the results in particular cases.
Essentially, no branch of federal government may usurp the essential functions
of any other branch. As such, Congress may alter the substantive law to be
enforced by federal courts, and may specify the rules of evidence or procedure
to be applied by those courts, but Congress may not direct the courts on how to
decide. If Congress wants to change the rules it must do so generally, by a law
that applies with neutral force to all litigants. The vice in Klein was
Congress’s attempt to leave undisturbed the governing substantive and procedural
law but to command the courts what inference to draw from the evidence before
Jurisdictional Alterations Destroying the Supreme Court’s “Essential
In a famous Harvard Law Review article, Henry
“Hank the Tank” Hart wrote that “exceptions must not be such as will destroy the
essential role of the Supreme Court in the constitutional plan.” This statement
begs the question: What is the “essential” role of the Court? Some argue that
the elimination of all the Court’s appellate jurisdiction would be inconsistent
with its essential function as a creator of a uniform body of federal
constitutional law. Others argue that the Court’s essential role in the exercise
of appellate jurisdiction is whatever Congress says it is. The holding of
McCardle lends support to the latter view; the Court’s dicta in McCardle about
the availability of other appellate avenues lends support to the former view.
This debate is the same as the debate between the plenary power view and the
mandatory interpretations view; and this debate is important because the Court
has not had the occasion to deliver its view since Congress has never been
willing to so completely destroy the Court’s appellate jurisdiction.
Jurisdictional Alterations Destroying the “Essential Role” of Lower
Even though Art. III gives Congress the power to
eliminate lower federal courts and to curtail their jurisdiction, it is possible
that this power may be exercised in a way that is constitutionally
impermissible. The Court has never decided whether Congress could eliminate the
Supreme Court’s appellate jurisdiction and all federal lower court jurisdiction
over constitutional cases. As the mandatory interpretation view is argued above,
some believe that Art. III commands that the federal judicial power shall extend
to all constitutional cases. However, a strict reading of the scant precedent
supports the plenary power view.
Jurisdictional Alterations that Violate Other Parts of the Constitution
No matter whether Congress is otherwise entitled
to restrict federal court jurisdiction, it may not do so in a manner that
violates some other constitutional guarantee. For example, suppose Congress
enacts legislation providing that the Supreme Court may not review cases where
the petitioner is a woman. This sex-based disability would certainly be
violative of the equal protection clause of the Fifth Amendment’s due process
Congressional Control of Lower Federal Court Jurisdiction
Would a statute precluding lower federal courts
from hearing challenges to state laws regulating abortion or permitting prayer
in schools be constitutional? Debate in scholarly literature is lengthy; and no
consensus has emerged. There are four distinct positions that have arisen:
Approach 1: Federal Courts Must Have the Full Judicial Power
Basically, the approach indicates that although
Congress has a choice regarding whether to establish lower federal courts, once
they are created, they must have the judicial power to decide all matters
described in Article III. By this view, all attempts to restrict jurisdiction
would be unconstitutional. Major problem: this theory has never been followed in
American history. Therefore, after 200 years of contrary practice, this argument
Approach 2: Congressional Discretion to Decide Jurisdiction
A second approach is that Congress has authority
to determine the jurisdiction of the federal courts because Congress has
discretion as to whether to establish such tribunals. The literal language of
Article III indicates that Congress need not create lower federal courts at all.
Some conclude from this that because Congress need not even establish such
courts, Congress can create them with whatever jurisdiction it desires. This
position does find support in SC precedents. However, the SC precedents are
possibly distinguishable because Congress did not foreclose all lower federal
Approach 3: Constitutional Requirement for Some Federal Courts
Some commentators urge that the existence of
lower federal courts is constitutionally required, at least for some types of
claims. However, opponents to this view argue that this view disregard the
history of what the framers intended.
Approach 4: Specific Constitutional Limits
Congress has discretion both to create lower
federal courts and to determine their jurisdiction, but Congress may not
restrict the jurisdiction in a manner that violates other constitutional
provisions. Essentially, the argument is that Congress’s power to restrict
jurisdiction – like all congressional powers – cannot be exercised in a manner
that violate constitutional rights (i.e., equal protection, due process, etc.).
The Political Question Doctrine
This doctrine treats certain kinds of cases as
non-justiciable “political questions.” The label is unfortunate because the
doctrine does not mean that cases involving political parties and political
issues are non-justiciable.
Basis of the Doctrine
The political question doctrine has a
constitutional core and a prudential (policy-driven) periphery. The
constitutional core consists of those issues that courts may not decide because
the Constitution mandates that they be finally decided by other branches of the
federal government. The prudential periphery consists of those issues that the
Court thinks are best left undecided by courts, because there is insufficient
information upon which to decide, or judicial decision would undermine the
courts or compromise some other important principle of democratic governance.
Baker v. Carr:
The Reigning Doctrine
In Baker v. Carr (U.S. 1962), the Court
delivered a “definitive” statement of the political question doctrine. The
plaintiffs in Baker contended that the failure of the Tennessee
legislature to reapportion itself for more than sixty years, as required by the
Tennessee constitution, was also
a violation of the 14th Amendment’s equal protection clause. The
Court concluded that the claim did not present a political question, reciting
six factors that identify political questions. If any one of these factors is
present in a case, it is a non-justiciable political question. None were held to
be present in Baker. The six factors are as follows:
Constitutional Commitment of Decision of the Issue to Another Branch
If a “textually demonstrable commitment” is in
the Constitution allocating the decision of the issue “to a coordinate political
department” (Congress or the President), then the issue presents a political
Lack of Standards for Decision
The issue is a political question if there are no
“judicially discoverable and manageable standards for resolving” the issue.
Decision Requires a Judicially Inappropriate Policy Choice
The issue is deemed a political question if the
case presents “the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion.”
Decision Would Lack Respect for Congress or the President
The issue presents a political question if the
court cannot decide a case without “expressing a lack of respect due coordinate
branches of government.”
Political Decision Already Made
The issue presents a political question if there
exists “an unusual need for unquestioning adherence to a political decision
Potential for Embarrassment
The issue presents a political question if a
judicial decision would create “the potentiality of embarrassment from
multifarious pronouncements by various departments on one subject.”
Chemerinsky States the Baker Test is a Piece of Shit
Chemerinsky states that virtually every case
considering the political question doctrine quotes the Baker language.
But these criteria seem useless in identifying what constitutes a political
question. In other words, it is impossible for a court or a commentator to apply
the Baker test to identify what cases are political questions. As such,
it is hardly surprising that the doctrine is described as confusing and
unsatisfactory. Chemrinsky believes that the political question doctrine is best
understood by examining the specific areas where the Supreme Court has invoked
the doctrine. Although this harsh criticism exists, Denning noted that the
Baker test must still be applied since it is the standard that has been set
by the Court.
Justifications for the Political Question Doctrine
Defenders of the political question doctrine
generally make the following arguments:
It is simply better for the federal judiciary to avoid deciding certain
cases, especially so as to preserve what may be perceived as a fragile political
The political question doctrine allocates decisions to branches of
government that have superior expertise in particular areas.
The political question doctrine is defended on the ground that the
federal court’s self-interest disqualifies them from ruling on certain matters.
The political question doctrine is justified on separation of powers
grounds as minimizing judicial intrusion into the operation of other branches of
government. The argument is that certain cases would require day-to-day
oversight of executive or legislative conduct, which is simply not feasible.
Criticisms of the Political Question Doctrine
Critics, such as Professor Martin Redish, argue
that “the political question doctrine should play no role whatsoever in the
exercise of judicial review power.” Critics generally make the following
The judicial role is to enforce the Constitution – as such, it is
inappropriate to leave constitutional questions to the political branches of
government. The argument is that matters are placed in a Constitution to protect
them from majoritarian control; judicial review serves to effectuate and uphold
the Constitution. Therefore, it is inappropriate to relegate constitutional
issues to the political branches of government.
Other critics state that the judiciary’s legitimacy is robust; as such, a
judiciary that ducks controversial issues to preserve its credibility is likely
to avoid judicial review where it is needed most, to restrain highly popular,
but unconstitutional government actions.
Critics also argue that the political question doctrine confuses
deference with abdication – the Court should only hesitate in some areas before
ruling against other branches; this does not mean that those areas should be
The Political Question Concerning Impeachment – Nixon v.
A federal district court judge, Walter Nixon, had
been convicted of making false statements to a grand jury. However, he refused
to resign from the bench and continued to collect his salary while in prison.
House adopted articles of impeachment, and the Senate, in accord with its rules,
created a committee to hold a hearing and make a recommendation. They did so,
recommending removal from office and the Senate voted accordingly.
Nixon argued that the Senate’s procedure violated
Art. I, §3, of the Constitution, which provides that the “Senate shall have the
sole power to try all Impeachments.” Nixon maintained that this meant that the
entire Senate had to sit and hear the evidence; therefore, the use of a
committee was unconstitutional.
Holding and Rationale
The Court extended the use of the political
question doctrine by holding that challenges to the impeachment process are
non-justiciable. Essentially, the judiciary will not review the Senate’s use of
a committee to hold a hearing and make a recommendation on an impeachment.
However, the question of whether all challenges to impeachment are
non-justiciable political questions remains open. Rehnquist stated that the
language and structure of Art. I, §3 demonstrate a textual commitment of
impeachment to the Senate. The rationale for this holding follows:
The Court explained that the framers intended that there be two
proceedings against officeholders charged with wrongdoing: a judicial trial and
legislative impeachment proceedings. These two proceedings were deliberately
separated to avid raising the specter of bias and to ensure independent
judgments; therefore, judicial review of the Senate’s trial would introduce the
same risk of bias as participation in the trial itself.
Furthermore, the Court stated that judicial review of impeachment would
be inconsistent with the framers’ views of impeachment in the scheme of checks
and balances. The framers saw impeachment as the only legislative check on the
judiciary; judicial involvement would undercut this check on judges.
§3: Federalism and the Federal Legislative Power
Federalism, Default Rules, McCulloch v.
and Term Limits
Congress Must Have Express or Implied Powers
A basic principle of American government is that
Congress may act only if there is express or implied authority to act in the
Constitution; states, however, may act unless Constitution prohibits the action.
Therefore, in evaluating any act of Congress, there are always two questions:
(1) Does Congress have the authority under
the Constitution to legislate?
(2) If so, does the law violate another
constitutional provision or doctrine, such as by infringing separation of powers
or interfering with individual liberties?
McCulloch v. Maryland
Congress created a Second Bank of the United
States in 1816 while the country was facing serious economic problems. The Bank
did not solve the country’s economic problems and, indeed, many blamed the
bank’s monetary policies for aggravating a serious depression. States were
particularly peeved with the Bank. As such, many states adopted laws prohibiting
the bank’s operations within its borders. Others, such as Maryland, taxed it.
The MD law required that any bank not chartered by the state pay an annual tax
of $15M or 2% of notes outstanding.
The specific issue was whether the State of
Maryland could collect a tax from the Bank of the United States. Chief Justice
Marshall used the case as an occasion to broadly construe Congress’s powers and
narrowly limit the authority of state governments to impede the federal
government. Although this was the main issue, Marshall’s opinion focused on two
main questions: (1) does Congress have the authority to create a Bank of the
United States?, and (2) is a state tax on the bank unconstitutional?
Congress’s Authority to Create a Bank of the United States
Considering the issue of Congress’s authority to
create a Bank of the United States, Marshall made four arguments:
Point # 1Historical Practice
Established the Power of Congress to Create a Bank
Essentially, Marshall invoked the history of the
First Bank as authority for the constitutionality of the second bank. This
contention, that historical experience justifies the constitutionality of a
practice, is a type of argument that often appears in SC opinions. It should be
noted, however, that there is a question as to whether historical practice
should have normative significance in resolving questions about
constitutionality. For instance, Justice Holmes noted that the fact that laws
may be “natural and familiar . . . ought not to conclude our judgment upon the
question whether the statutes [are constitutional.]”
Point #2: Marshall Refuted
Argument That States Retain Ultimate Sovereignty Because of Ratification of the
The view that states retain ultimate sovereignty
because of ratification of the Constitution is sometimes called “compact
federalism.” This view sees states as sovereign because they created the United
States by ceding some of their power and ratifying the Constitution. Marshall
emphatically rejected this view and contended that it was the people who
ratified the Constitution, and thus, people are sovereign, not the states.
Questioning of Marshall’s Reasoning
This reasoning can be questioned. The
Constitution was not ratified by a national plebiscite; it was ratified by the
States. Although Marshall’s view has controlled throughout American history,
there have been challenges and reassertions of the theory of compact federalism.
More recently, in United States Term Limits v. Thornton, Justice Thomas, in
dissent, expressed the view that states retain ultimate sovereignty except in
those areas where the Constitution expressly delegates power to the federal
Point 3: Scope of Congressional
Power under Article I
It is important to note that the Court broadly
described Congress’s authority even before addressing the necessary and proper
clause. Marshall noted that the Constitution can not contain accurate details of
the subdivisions of all of its great powers without partaking of the same
prolixity of a legal code. Marshall’s ultimate conclusion is that Congress is
not limited only to those acts specified in the Constitution; instead, Congress
may choose any means, not prohibited by the Constitution, to carry out its
lawful authority – this is a dramatic expansion in the scope of congressional
Point 4: The Meaning of the
Necessary and Proper Clause
Article I, §8 concludes by granting Congress the
power “[t]o make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this Constitution
in the Government of the United States, or in any Department or Officer
thereof.” Marshall said that this provision makes it clear that Congress may
choose any means, not prohibited by the Constitution, to carry out its express
authority. Marshall writes: “Let the end be legitimate, let it be within the
scope of the Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist with the
letter and spirit of the Constitution, are constitutional.”
Test for Whether the Necessary and Proper Clause Applies
A law is constitutional under the Necessary and
Proper Clause if:
End is within the scope of the Constitution.
End is legitimate
Means must be:
appropriate – meaning:
- plainly adapted to that end
- not prohibited
consistent with the letter and spirit of the Constitution
Three Sub-Points Concerning the Necessary and Proper Clause
First, Marshall rejects the restrictive
interpretation of the necessary and proper clause. Necessary here means
useful or desirable, not indispensable or essential. Second, Marshall made a
structural argument, noting that the necessary and proper clause is placed in
Art. I, §8 which expands Congress’s powers, and not §9 which limits them.
Finally, however, the Court rejected any contention that the N&P clause gives
Congress limitless authority, thus reaffirming Marbury and the power of
the judiciary to review the constitutionality of federal laws.
Exam Tip on Necessary and Proper Clause
A common error is to assert that Congress can
enact some law under its “necessary and proper” power. However, there is no
necessary and proper power. This clause simply gives Congress great discretion
in selecting the means to achieve one of its specified powers. It isn’t an
independent power – it only enables Congress to choose how to achieve some other
The Constitutionality of Maryland’s Tax
Marshall explained that the power to create the
bank includes a power to preserve its existence. However, he pointed out that
“the power to tax involves the power to destroy; [and] that the power to destroy
may defeat and render useless the power to create . . .” Thus, the Court
concluded that the state may not tax the Bank of the United States because such
exactions could greatly impede its operation and potentially even tax it out of
Power to create = Power to Preserve (Power
of Congress) (Supreme)
Power to tax = power to destroy (State)
Power to create is incompatible with the power to
destroy. The Supremacy Clause implies that Congressional power can not be
subordinated to the states. As such, the power for the state to tax is
Sub-Point on Tax of those
Outside of the State
The Court also noted that a state tax on the Bank
essentially was a state tax on those in other states. Those who were being taxed
therefore were not represented in the state imposing the tax, and the tax was
Establishment of Several Crucial Aspects of Constitutional Law
This case establishes several crucial aspects of
constitutional law. First, by rejecting “compact federalism,” this case
emphatically declares that the federal government is supreme over the states and
that the states have no authority to negate federal actions. Second, the Court
expansively defines the scope of Congress’s powers. Finally, the Court limits
the ability of states to interfere with federal activities, such as by imposing
taxes or regulations on the federal government. This framework still exists
Default rules are rules that are applied in the
absence of an agreement to the contrary. McCulloch and United States
Term Limits deal with the following question: how do we allocate power
between the federal and state governments, when the constitutional text is
silent? Essentially, there are two options:
States are free to do what
Constitution doesn’t specifically prohibit (unless state conflicts with valid
law of Congress). (Term
Limits - Thomas, J., dissent). (10th Amend.).
Even absent explicit
prohibition, states may not enact laws incompatible with purposes for which
Constitution was proposed & ratified.
(McCulloch - Marshall, Term Limits - Stevens).
The two rules above result in the question: For
what purposes was the Constitution proposed and ratified? Purposes:
Stronger Nat’l Government
Separation of Powers – to prevent concentration of power
Provide means to enforce federal law
Secure uniformity with regard to certain important governmental powers
Essentially, the question of which default rule
should apply goes back to the question of whether states retain ultimate
sovereignty or whether that sovereignty rests in the people. The default rule
established by Marshall has historically been applied. However, there are strong
arguments in Justice Thomas’ approach. Be able to argue both sides, but remember
that historically Marshall has ruled – even absent
explicit prohibition, states may not enact laws incompatible with purposes for
which the Constitution was proposed and ratified.
United States Term Limits v.
In this case, the Court held that state-imposed
term limits on elective federal office violated the “‘fundamental principle of
our representative democracy,’ embodied in the Constitution, ‘that the people
should choose whom they please to govern them.’” While the Court in effect held
that the federal government was immune from state laws that interfered in this
manner with the process of electing members of Congress, the Court did not rely
on the general immunity principle as such, but instead the majority found that
the state-imposed term limits transgressed specific clauses in the Constitution
that defined what the Court perceived to be the exclusive qualifications for
those federal offices, namely, age, residence, and citizenship. Relying on a
combination of constitutional text, Framer’s intent, and democratic theory, a
five-justice majority concluded that the states possessed no power to add the
qualifications for the federal offices described in the Qualifications Clause.
A Look at the Statute in Thornton
The state statute at issue in
did not actually disqualify anyone from running for federal office. While the
statute denied ballot access to candidates who had served more than a specified
number of terms, a candidate subject to these restrictions could still
theoretically be elected through write-in ballots. Despite this possibility, the
Court concluded that the operation of the state’s ballot restriction was, in
effect, to impose a term limit qualification since realistically few, if any,
candidates would be elected by reliance on write-in votes. The Court’s treatment
of this issue further underscored the majority’s complete antipathy for
state-imposed term limits on federal elective office. Thus, after Thornton, the
only way to impose term limits is by amending the Constitution.
Class Notes Rationale for this Holding
1) Qualifications are set in Article I (Powell
2) Other states might forfeit suit
3) Representatives of National Government
4) Permitting states to add qualifications
5) “National Character”
Non-Textual, Structural Limit on the States
In Thornton, the petitioners argue
that the historical and textual materials discussed in Powell do not support the
conclusion that the Constitution prohibits additional qualifications imposed by
States. In the absence of such a constitutional prohibition, petitioners argue,
the Tenth Amendment and the principle of reserved powers, require that States be
allowed to add such qualifications.
There are two reasons the Court disagrees. First,
the power to add qualifications is not within the “original powers” of the
States, and thus is not reserved to the States in the Tenth Amendment. Second,
even if States possessed some original power in this area, the Framers’ intended
the Constitution to be the exclusive source of qualifications for members of
Congress, and the Framers thereby “divested” States of any power to add
Important Language of the
“[Permitting] individual states to formulate
diverse qualifications for their representatives would result in a patchwork of
state qualifications undermining the uniformity and the national character that
the Framers envisioned and sought to ensure. [Such] a patchwork would also sever
the direct link that the Framers found so critical between the National
Government and the people of the United States.”
An Overview of the Commerce Clause – Article I, §8 – and Pressing
“The Congress shall have the power . . . [t]o
regulate Commerce with foreign Nations, and among the several States, and with
the Indian Tribes . . .” The Commerce Clause has traditionally spawned a great
deal of Supreme Court discussion. Throughout the history of the Court concerning
the commerce clause, there are three questions the Court is considering:
What is “commerce”? Is it one stage of business or does it all aspects of
business and even life in the United States?
What does “among the several states” mean; is it limited to instances
where there is a direct effect on interstate commerce or is any effect on
interstate activities sufficient?
Does the Tenth Amendment limit Congress; if Congress is acting within the
scope of the commerce power, can a law be declared unconstitutional as violating
the Tenth Amendment?
In a similar vein, here are the questions that I
took down in class:
Questions to ask of the following several
How do we locate the limits of Congress’ enumerated powers? Where do we
Whether, despite the delegations, are there categories that are just
off-limits to Congress? Could Congress do something under its Commerce power and
nonetheless be prevented from taking such action because it infringes on some
power of the state?
Who should police the limits? Possible answers: the courts (judicial
review), Congress, or . . .
How do you prevent federal power from swamping
the states? This is the fundamental question behind all of these cases.
More technical questions:
What precisely counts as commerce? What constitutes commerce among the
To what extent can Congress regulate intrastate commerce to protect
Does it matter why Congress is exercising its Commerce power? Is it in
the service of some moral or social aim? Would this be better done under the
states’ police powers?
How should the court treat claims or take Congress’ word in which
Congress states that a certain thing involves interstate commerce?
The Starting Point – Gibbons v.
NY had granted Fulton and Livingston a monopoly
on steamboat navigation in NY waters. They granted Ogden a license to operate a
steamboat from NYC to NJ. Gibbons held a license from the US to navigate a
steamboat in “coastal trade” and was operating a steamboat between NY and NJ, in
competition with Ogden. Ogden obtained an injunction in
the NY courts restraining Gibbons from further operation of his steamboat in NY
waters. Gibbons sought and obtained review in the SC.
What is “Commerce”?
The Court first considered what “commerce” means.
Marshall stated: “Commerce undoubtedly is traffic, but it is something more: it
is intercourse. It describes the commercial intercourse between nations, and
parts of nations, in all its branches, and is regulated by prescribing rules for
carrying on that intercourse.” In other words, according to Marshall, commerce
includes all phases of business, including navigation, which was the issue in
What is “Among the States”?
The Court then considered the meaning of “among
the states.” The Court stated: “The word ‘among’ means intermingled with. A
thing which is among others, is intermingled with them. Commerce among the
states, cannot stop at the external boundary of each state, but may be
introduced into the interior.” Essentially, as “comprehensive as the word
‘among’ is, it may very properly be restricted to that commerce which concerns
more States than one . . . The completely internal Commerce of a State, then,
may be considered as reserved for the State itself.” Moreover, the definition of
‘among’ adopted in this case neither excluded all intrastate commerce nor
included all interstate commerce. As such, the definition required line-drawing
and case-by-case inquiry as to whether a particular activity has interstate
effects. This leave a lot to the facts of each case and interpretation.
Does State Sovereignty Limit Congressional Power?
According to this case, “This [commerce] power,
like all others vested in Congress, is complete in itself, may be exercised to
the utmost extent, and acknowledges no limitations, other than are prescribed in
the constitution.” In other words, Congress has complete authority to regulate
all commerce among the states. When acting under its commerce clause authority,
Congress can regulate in the same way as it could if no state governments
existed. The Court said that the sole check on Congress is the political
process, not judicially enforced limits to protect the states. However, it
should be noted that the Court has not consistently followed this approach.
Historical analysis below will demonstrate.
Cases Before 1887
In the time period between Gibbons and 1887, the
SC had little occasion to consider the scope of the commerce power. The
Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890 ushered in
a new era of federal economic and regulatory regulation.
Cases Between 1887 and 1937 – The Era of “Dual Federalism”
During this period, the SC espoused a philosophy
often termed “dual federalism.” Dual federalism was the view that the federal
and state governments were separate sovereigns, that each had separate zones of
authority, and that it was the judicial role to protect the states by
interpreting and enforcing the Constitution to protect the zone of activities
reserved to the states. Dual federalism is embodied in three doctrine, which are
Definition of “Commerce”
The Court narrowly defined the meaning of
commerce so as to leave a zone of power to the states. Specifically, the Court
held that commerce was one stage of business, distinct from earlier phases such
as mining, manufacturing, or production. This distinction is based on several
assumptions: that it makes sense to distinguish commerce from other stages of
business; that the Constitution requires a rigid zone of activities to be left
to the states; and that it is the judicial role to protect this zone.
The Direct-Indirect Distinction
- United States
v. E.C. Knight (1895)
In this case, the SC held that the Sherman
Antitrust Act could not be used to stop a monopoly in the sugar refining
industry because the Constitution did not allow Congress to regulate
manufacturing. Essentially, the law could not be applied because the monopoly
was in the production of sugar, not the commerce of sugar. Although the
distinction seems arbitrary and the Court acknowledged this, the effect on
commerce was “indirect” and thus outside the scope of federal power.
“Among the States” Requires a Direct Effect on Interstate Commerce
The second major aspect of the Court’s approach
to the commerce clause during this era was the requirement that there be a
direct effect on interstate commerce. The problem, of course, is in drawing a
meaningful and useful distinction between direct and indirect effects. Yet, the
Court never formulated a clear or consistent way to distinguish direct from
“Stream of Commerce” Approach –
Swift & Co. v. United States
On approach that the Court often used was to
allow Congress to regulate to protect the stream of commerce. In Swift, the
application of the Sherman Antitrust Act was upheld in connection with a price
fixing agreement among intrastate meat packers. The SC stated that although the
stockyard was intrastate, it was only a temporary stop for the cattle.
Stockyards were “in a current of commerce among the States, and the purchase of
the cattle is a part and incident of such commerce.” This approach further
allowed Congress to prohibit the sale of impure or adulterated food or drugs, to
require retail labeling for items traveling in interstate commerce, and to
restrict the sale of intoxicating beverages to Indians. However, this stream of
commerce approach was no used consistently, thereby damaging its credibility.
The Protective Principle -
Shreveport Rate Cases
In these cases, the Court upheld the ability of
the ICC to set intrastate railroad rates because of their direct impact on
interstate commerce. Basically, the railroad was required to charge the same
rates for shipments to Marshall, TX, whether from Shreveport, LA or Dallas, TX. The Court
said that Congress “does possess the power to foster and protect interstate
commerce, and to take all measures necessary or appropriate to that end,
although intrastate transactions of interstate carriers may thereby be
The Limits of State Sovereignty on Congressional Powers
Even if an activity was commerce and was among
the states, Congress still could not regulate if it was intruding into the zone
of activities reserved to the states. The Court concluded that the Tenth
Amendment reserved control of activities such as mining, manufacturing, and
production to the states. Even federal laws regulating commerce among the states
were unconstitutional if they sought to control mining, manufacturing, and
The Child Labor Case
(Hammer v. Dagenhart)
A federal law prohibited the shipment of
interstate commerce of goods produced in factories that employed children under
the age of 14 or worked them over 8 hours a day. Although the law only regulated
goods in interstate commerce, the Court declared it unconstitutional because it
controlled production. This realm was entrusted purely to state authority so it
could not be regulated by the federal government without infringing on a state’s
sovereign right to control local matters.
Technique - The Lottery Case
This case took a different stance on state
sovereignty, allowing Congress to pass a law prohibiting items from being in
interstate commerce. The Court rejected the argument that the federal law
intruded on state government prerogatives. This case simply shows that the Court
was not necessarily consistent during this era in defining a zone of activities
reserved to the states.
The Commerce Clause from 1937 to 1995
In the period prior to 1937, there were a number
of pressures mounting for a dramatic change in how the Commerce Clause was
interpreted. The decisions of the previous era were intellectually vulnerable
because they seemed based on arbitrary distinctions and were frequently
inconsistent. The distinction between commerce and other phases of business made
little sense in that mining, manufacturing and production all had obvious
effects on commerce. The distinction between direct and indirect effects on
commerce was inherently arbitrary. The decisions of the era – finding livestock
to be in the stream of interstate commerce, but not chickens; allowing Congress
to prohibit lottery tickets from being shipped in interstate commerce, but not
goods made by child labor – were impossible to reconcile. As such, these
factors, coupled with the New Deal proposals, led to a significant change in the
Court’s interpretation of the Commerce Clause. Three primary cases demonstrate
NLRB v. Jones & Laughlin Steel
The holding in this case does not seem to be a
radical departure from earlier decisions. The Court explained that the steel
business was part of the stream of commerce and labor relations within it had a
direct effect on commerce. However, the Court’s opinion did signal a major shift
in the law. The Court flatly declared that “the fact that employees . . . were
engaged in production is not determinative.” Further, “the fundamental principle
is that the power to regulate commerce is the power to enact all appropriate
legislation for its protection and advancement, to adopt measures to promote its
growth and insure its safety, to foster, protect, control, and restrain. That
power is plenary and may be exerted to protect interstate commerce no matter
what the source of the dangers which threaten it.” This opinion clearly signaled
a broader power of Congress and it was a major shift from the prior era.
United States v. Darby
This case involved a challenge to the
constitutionality of the FLSA, which prohibited the shipment in interstate
commerce of goods made by employees who were paid less than the prescribed
minimum wage. The Court explicitly rejected the view that matters of
“production” were left to state regulation. Perhaps more importantly, the Court
expressly overruled Hammer v. Dagenhart and emphatically rejected the view that
the Tenth Amendment limits Congress’s powers.
The Aggregation Principle - Wickard v. Filburn (1942)
In this case, Farmer Filburn grew more wheat than
his set quota and used the extra wheat on his own farm. The Court upheld the
application of the Agricultural Adjustment Act, which was used to rule against
Farmer Filburn. The Court rejected the distinctions which were crucial in the
earlier era, between commerce and production, and between direct and indirect
effects on commerce. These distinctions were no longer followed. Essentially,
the Court held that even though Filburn’s own contribution to the demand for
wheat (which was taken care of by growing beyond quota for his own use) may be
trivial by itself, it is not enough to remove him from the scope of federal
regulation, where, as here, his contribution, taken together with that of many
others similarly situated, is far from trivial.” The point if that if all
farmers did this, the whole goal of the federal regulation of creating a demand
for wheat so that farming would be profitable would be thwarted.
Synthesis of These Cases – The Test for the Commerce Clause After 1937
Taken together, these cases expansively defined
the scope of Congress’s commerce clause power. The Court essentially rid itself
of the doctrines of the prior era. Simply stated, Congress could regulate any
activity as long as there was a substantial effect on interstate commerce. The
requirement was only that the activity, looked at cumulatively across the
country, have a substantial effect on commerce, and sometimes even the word
“substantial” was omitted. This approach gave Congress immense regulatory power
under the commerce clause. In fact, between 1937 and 1995, not one federal law
was declared unconstitutional as exceeding the scope of Congress’s commerce
power. Basically, Congress had the power to regulate anything under the commerce
clause so long as it was not violating another constitutional provision.
Is this Broad Definition of the Commerce Power Desirable?
On the one hand, the complex problems of the
twentieth century necessitate that Congress have the authority to act beyond the
narrow confines created pre-1937. On the other hand, a core principle of
American government is that the federal government has limited powers and the
states control most of the governance. This broad reading of the commerce clause
gives Congress almost unlimited power to regulate so long as they don’t violate
another constitutional provision.
Winds of Change – United
States v. Lopez
In Lopez, a twelfth-grade student was arrested
for carrying a gun on school property. He was convicted of violating the
Gun-Free School Zones Act of 1990, which made it a federal offense to possess a
firearm in a school zone. Lopez appealed on the ground that the Act was an
unconstitutional exercise of Congress’s commerce power. The Supreme Court
concluded that the law was unconstitutional because it was not substantially
related to interstate commerce. After reviewing the history of decisions under
the commerce clause, the Court identified the following three types of
activities that Congress can regulate under the commerce clause:
Congress can “regulate the
use of channels of interstate commerce.”
Channels of interstate commerce include highways,
interstates, waterways, airspace, etc.
Congress may legislate “to
regulate and protect the instrumentalities of interstate commerce.”
The Court said this includes the power to regulate persons and things in
interstate commerce. Instrumentalities include the mail, railroads, etc.
THE CATCH-ALL: Congress may “regulate those activities having a
substantial relation to interstate commerce.” Under this realm there are
a number of factors to consider in deciding whether an activity has a
substantial relation to interstate commerce; they are as follows:
Whether the nature of the regulated
activity is commercial or non-commercial.
Whether the regulation is part of a
national regulatory scheme whose efficacy would be undermined if Congress
couldn’t reach the intrastate activity.
Whether there is a jurisdictional
nexus in the statute itself –explicit language in the statute that restricts of
connects the activity in some way to interstate commerce. [Lopez – gun traveled
through interstate commerce.] This affects the burden of proof.
Whether the activity is within an
area of “traditional state concern”
Whether Congress made its findings
plain in the bill itself
“Non-Infinity Principle” –
“attenuated” – If the connection between the regulated activity and interstate
commerce requires so many steps that it would basically remove all limits from
the power of commerce, the that interpretation can not be the correct one – why?
Simply because the enumeration of powers demands that there is something that is
not enumerated – if you can not articulate a line between internal commerce and
external commerce, then there is something wrong. The dissent in the Lopez case
provides an example – there are too many steps between the possession of guns
near schools and bad workers, ergo - interstate commerce.
The major problem with these factors is that the
case gives no indication on how they are to be applied. There is no indication
on which factors are more important or less important than others. Therefore, it
is difficult to know when the catch-all provision is applicable.
The Court concluded that the presence of a gun
near a school did not substantially affect interstate commerce and that
therefore the federal law was unconstitutional. Rehnquist noted that nothing in
the Act limited its application to instances where there was proof that the gun
had been part of interstate commerce.
Dissent – In the dissent, Breyer argued that the
judiciary should uphold a federal law as a valid exercise of the commerce power
so long as there is a “rational basis” that an activity affects interstate
commerce. His theory was that guns near school are disruptive to education,
poorly educated students result in a poorly educated workforce, a poorly
educated workforce results in bad products, and bad products effect interstate
commerce. Note that there are a number of inferences to get from guns near
school to effects on interstate commerce. This produces an example of the
Affirming Change – United
States v. Morrison
In Morrison, the issue before the SC was whether
the civil damages provision of the Violence Against Women Act could be upheld as
an exercise of Congress’s commerce clause authority. The Court reaffirmed the
three-part test of Lopez that Congress may regulate (a) the channels of
interstate commerce, (b) the instrumentalities of interstate commerce and
persons or things in interstate commerce, and (c) activities that have a
substantial effect on interstate commerce. The third part of the test was used
to try to uphold the VAWA. The government produced extensive legislative history
as congressional findings. However, the Court held that “the existence of
congressional findings is not sufficient, by itself, to sustain the
constitutionality of commerce clause legislation. The Court continued, stating
that Congress was relying on a “but-for causal chain from the initial occurrence
of the crime . . . to every attenuated effect upon interstate commerce.” By this
reasoning, the Court explained, Congress could regulate all violent crimes in
the US under the guise of its commerce power.
Morrison goes further than Lopez in limiting the
scope of Congress’s commerce power by narrowing the ability of Congress to
regulate based on findings of a substantial effect on interstate commerce. At
least in areas that the Court regards as traditionally regulated by the states,
Congress cannot regulate non-economic activity based on a cumulative substantial
effect on interstate commerce.
Implications of Lopez and Morrison
was dramatic simply because it was the first time in almost 60 years that a
federal law had been declared unconstitutional as exceeding the scope of
Congress’s commerce power. Morrison proved Lopez is not an
aberration, but the beginning of a major change in the Court’s approach to the
commerce clause. The practical reality is that Lopez and the cases following it
have opened a door to constitutional challenges that appeared to have been
closed almost 60 years ago.
The Tenth Amendment and Federalism as a Limit on Congressional Authority
The Tenth Amendment - Generally
The Tenth Amendment states: “The powers not
delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.” The
key question about the Tenth Amendment is whether it is a judicially enforceable
limit on Congress’s powers; can federal laws be declared unconstitutional as
violating this constitutional provision?
One Approach to this Question
One approach is that the 10th
Amendment is not a separate constraint on Congress but rather is simply a
reminder that Congress may only legislate if it has authority under the
Constitution. Under this approach, a federal law could never be found
unconstitutional as violating the 10th Amendment. Nonetheless, it
could be invalidated as exceeding the scope of Congress’s powers under Article I
or for violating another constitutional provision.
The alternate approach is that the Tenth
Amendment protects state sovereignty from federal intrusion. Under this
approach, the Tenth Amendment is a key protection of states’ rights and
federalism, and it reserves a zone of activity to the states for their exclusive
control. Therefore, federal laws intruding into this zone should be declared
unconstitutional by the courts.
The Importance of Protection of State Sovereignty and Federalism
When the Supreme Court speaks of the value of
federalism, usually three benefits or protecting state governments are
Decreasing the Likelihood of Federal Tyranny
The first justification for protecting states
from federal intrusions is that the division of power vertically, between
federal and state governments, lessens the chance of federal tyranny.
States are Closer to the People and are More Likely to be Responsive
One of the strongest arguments for decentralized
government is that, to the extent that the electorate is small, and elected
representatives are more immediately accountable to individuals and their
concerns, government is brought closer to the people and democratic ideals are
more fully realized. Essentially, the smaller the area governed, the more
responsive the government will be to the interests of the voters.
States Can Serve as Laboratories for Experimentation
A final argument for protecting federalism is
that states can serve as laboratories for experimentation. As Justice Brandeis
stated, “It is one of the happy incidents of the federal system that a single
courageous state may, if its citizens choose, serve as a laboratory; and try
novel and social economic experiments without risk to the rest of the country.”
Enforcement of the Tenth Amendment - By Judiciary or Political Process
This is one of the essential debates concerning
the Tenth Amendment – whether it is the role of the judiciary to enforce the
Tenth Amendment and protect state sovereignty or whether it is an issue best
left to the political process. On view is that judicial enforcement of
federalism as a limit on Congress is unnecessary because the political process
will adequately protect state government interests. However, on the other hand,
the assumption that states’ interests are adequately represented in the national
political process is questionable. Simply, in most elections, the interests of
the voters are the focus of the attention, not the institutional interests of
state or local governments. This debate has been a major part of the history of
the Tenth Amendment and will likely continue.
The Tenth Amendment in the Nineteenth Century
During this era, the Court viewed the Tenth
Amendment simply as a reminder that Congress must have authority under the
Constitution in order to legislate, and did not view the Tenth Amendment as a
judicially enforceable limit on the legislative power. During this era, the
Court adopted the view that once Congress is within the scope of its power, it
can legislate the same as if there were no states at all. By this view, the
Tenth Amendment is not a basis for invalidating laws that are within the scope
of Congress’s legislative power. The sole check on Congress was the political
process, not judicially enforced limits to protect the states.
The Tenth Amendment From the Late Nineteenth Century Until 1937
From the later 19th century until
1937, the Court greatly circumscribed the scope of Congress’s powers, especially
its commerce power. At the same time and as part of the same overall approach,
the Court held that the Tenth Amendment reserves a zone of activities to the
states for their exclusive control. Federal laws intruding into this zone were
deemed unconstitutional. Moreover, the Tenth Amendment was used in this era not
only as a limit on the commerce power but also on other federal legislative
The Child Labor Case (Hammer v. Dagenhart)
Dagenhart was the most significant case in this
ear construing the Tenth Amendment in this manner. The Court stated: “the
far-reaching result of upholding the act (law prohibiting interstate goods
produced by children under 14) cannot be more plainly indicated than by pointing
out that if Congress can thus regulate matters entrusted to local authority by
prohibition of the movement of commodities in interstate commerce, all freedom
of commerce will be at an end, and the power of the states over local matters
may be eliminated, and thus our system of government destroyed.”
The Tenth Amendment Between 1937 and 1990s
Between 1937 and the 1990’s, the Court expressly
rejected the view that the Tenth Amendment is an independent limit on the
legislative power and instead viewed it simply as a reminder that Congress may
legislate only if there is authority in the Constitution. It should be noted
that this is basically a return to the 19th century view that.
Moreover, U.S. v. Darby overturned Dagenhart, and in Darby,
the Court made it clear that a law is constitutional so long as it is within the
scope of Congress’s power; the Tenth Amendment would not be used as a basis for
Deviating View: The Ten Year Reign of Nat’l League of Cities v. Usery
In this case, the Court declared unconstitutional
the application of the FLSA, which required the payment of the minimum wage to
state and local employees. Essentially, in this case, the Court held that
Congress violates the Tenth Amendment when it interferes with traditional state
and local government functions. However, the Court did not further explain what
constituted a traditional function. In this case, the fifth key vote was
Blackmun – in subsequent cases, he refused to allow the Court to extend the
application of Usery.
Hodel v. Virgina Surface Mining
& Reclamation Association (1981)
In this case, the Court made it clear that Usery
only applied when Congress was regulating state governments, not when Congress
was regulating private conduct.
Overruling Usery – Garcia v.
San Antonio Metro. Transit Authority
In this case, the Court expressly overruled
Usery. Justice Balckmun joined the side of the dissenters from Usery.
Blackmun, writing for the majority, offered 2 reasons for overruling Usery
First, the Usery approach
had proved unworkable – the classification of government functions as
“traditional” or “integral” proved to be too arbitrary for courts to apply
Second, Blackmun argued that the
protection of state prerogatives should be through the political process and not
from the judiciary. He noted that “the built-in restraints that our system
provides through state participation in federal government action” was
sufficient to protect states’ autonomy. He went on to state that “the political
process ensures that the laws that unduly burden the States will not be
It should be noted in a very Arnold Shwarzenegger
(circa 1987) type of dissent, Justice Rehnquist stated that in time, this
approach would be revisited. “I’ll be back.”
The Judicial Role After Garcia
The Garcia opinion left one role for eth
courts to play in enforcing federalism-based limits on the commerce power. Said
Blackmun, “any substantive restraint on the exercise of [the commerce power]
must find its justification in the procedural nature of [the political process],
and it must be tailored to compensate for possible failings in the national
political process rather than to dictate ‘a sacred province of state autonomy.’”
As such, the post-Garcia role of the Court is to invalidate legislation
that stems from an extraordinary defect in the national political process.
The Tenth Amendment in the 1990’s and Beyond
Justice Rehnquist was right with his “I’ll be
back” dissent in Garcia. Soon after Garcia, the Court revisited
this subject, and since Garcia, the Court has created a “process federalism”
doctrine that polices the political process in the name of preserving state
autonomy. Essentially, less than ten years after Garcia, the Court again began
to enforce substantive limits on congressional power in the name of state
autonomy or state sovereignty.
New York v. United States
In this case, the Court struck down a
congressional act attempting to force states to pass legislation to deal with
the disposal of low-level radioactive waste, or take title to all such waste
within the state. Moreover, the central holding was that it is unconstitutional
for Congress to compel state legislatures to adopt laws of state agencies to
Congress’s Choice of Means
In this opinion, Justice O’Connor noted that
Congress has a choice of means in executing its regulatory programs:
It can pass a statute that enacts a
particularly regulatory program; to the extent that state law conflicts, it is
preempted by the Supremacy Clause, which makes duly enacted federal law supreme.
It may give states a choice of
enacting its own regime according to federal guidelines or not act and be
subject to the operation of federal law (so-called “cooperative federalism”).
It may use its spending power to
condition the receipt of federal funds on compliance with congressional
Statute in New York
Followed None of These Means
The statute in this case did none of these
things. Essentially, it said to state legislatures: “You must enact X piece of
legislation, or suffer penalty Y.” The problem, wrote O’Connor, was one of
constitutional structure and accountability.
First, the Constitution was created
to empower the federal government to act on individuals, not states. This law
did not regulate the conduct of anyone other than states (it was not a
“generally applicable law”). Congress could not simply order the states to
assume unknown liabilities or to legislate as it directs.
Second, the Court reasoned that a
federal command to states to legislate in a certain fashion undermined political
accountability. Essentially, if Congress could command the states on how to
legislate, the state governments might take the brunt of unpopular legislation;
as such, the guarantees that the political process would provide a remedy for
unpopular legislation would no longer be viable, since the wrong government
would be blamed.
The Anti-Commandeering Principle
The major principle derived from this case is:
Congress may not commandeer state legislative
Note that this principle merely confines the
method of regulation open to Congress. Congress remains free to use its commerce
power to regulate; it just may not require the states to do Congress’s work for
its. As such, it is a procedural rule not a substantive one. It doe not confer
any substantive zone of immunity from federal regulation on the states; however,
it does protect the states from federal interference in the process of
autonomous state governance.
Printz v. United States
In this case the Court held that Congress
violated the anti-commandeering principle when it required local law enforcement
officials to administer background checks for prospective purchasers of
handguns. Essentially, this holding reaffirmed New York, stating that Congress
violates the Tenth Amendment when it conscripts state governments. Justice
Scalia wrote the opinion for the court and offered three reasons why Congress
did not have the power “to impress the state executive into service.” These
reasons are as follows:
Our constitutional practice suggests an absence
of such power
The federal government operates upon the people,
not the states. Conscripting the states into the army of federal administrators
would violate the states’ “residuary and inviolable sovereignty” and subvert
Article II’s command that the President execute federal law.
The Brady Act’s derivative to local police chiefs
and sheriffs distorted the political accountability of both federal and state
officials and compromised the independence and autonomy that states retain
“within their proper sphere of authority.” After this case, Congress can not
force state executive officials to administrate federal laws. Congress can, of
course, impose that task on the federal executive.
The Anti-Commandeering Principle – What Does it All Mean?
Simply concluding that a particular piece of
legislation might be within an enumerated power of Congress under Article I, §8
does not mean that it is constitutional. You must further see whether the
legislation violates the anti-commandeering principle. That is, you need to
apply the following test
The Anti-Commandeering Test
Is Congress attempting to regulate for States, as opposed to passing a
“generally applicable law”; and
In doing so, is Congress
forcing state legislatures to pass laws under instructions from Congress,
conscripting state executive officials to implement or execute a federal
What the Anti-Commandeering Principle Does Not Cover
The Court made clear in Printz that
Congress can condition the receipt of federal funds on compliance with
congressional mandates, that is governed by the restrictions on Congress’s
Spending Power. The rationale is that Congress is not forcing the states to do
anything; rather, it is offering them a choice: forego the federal money or
accept the money with strings attached.
does not represent a repeal of the Supremacy Clause. Congress can instruct state
officials to refrain from doing something so long as it is within its power to
prohibit. This is not considered commandeering because the state officials were
not being compelled to implement federal policy or legislate according to
Taxing and Spending Powers of Congress
Sources of Authority for Federal Taxation
Article I, §8 provides that “Congress shall have
Power to lay and collect Taxes, Duties, Imposts and Excises . . .” This power is
independent of the other powers of Congress. In other words, Congress may tax
things that it may not have power to regulate. Example: Congress may levy a tax
on the possession of household pets. Absent some substantial connection to
interstate commerce, Congress has no power to regulate the possession of
household pets, but Congress has an independent power to tax.
Implied Constitutional Limits on the Congressional Power to Tax
In addition to the specific constitutional limits
on federal taxation, the Supreme Court has established some implied limits
Because taxes alter human behavior (people tend
to change their actions in order to avoid taxes), any tax will have some
regulatory effect. However, a regulatory effect is not necessarily forbidden. If
Congress has the independent power to regulate, the regulatory effect of a tax
is of no consequence.
If Congress imposes a tax on the interstate
shipment of cigarettes, the regulatory effect of the tax (deterring consumption
of cigarettes) is of no constitutional significance. Congress has the
independent power to regulate interstate commerce, and the interstate shipment
of cigarettes is part of interstate commerce. But if the regulatory effect of a
tax is one which Congress could not have accomplished using one of its limited
and enumerated powers, the tax may be invalid. The validity of such a tax
depends on whether it is truly a revenue-raising measure or whether it is a
The Child Labor Tax Case –
Bailey v. Drexel Furniture Co. (1922)
In this case, the court declared unconstitutional
a federal tax on companies that shipped in interstate commerce goods made by
child labor. The Court explained that although some taxes have an “incidental”
regulatory effect, a tax is unconstitutional when it loses is character as a tax
and becomes a mere penalty with characteristics of regulation and punishment.
The problem with this case, as well as others of
this time frame, is that it drew a false distinction between taxes that generate
revenue and taxes that are penalties. Obviously, a tax can be both at the same
time. Congress can use tax law simultaneously to regulate and generate funds.
Therefore, deciding whether a tax should be characterized as regulatory or
revenue generating is inherently arbitrary.
The Decline of the “Disguised Regulation” Approach
This case is of little importance today. First,
because the scope of the commerce power is so much broader now, there is less
likelihood that any given tax will exert a regulatory effect that is outside of
Congress’s independent power to regulate. Second, the Court has refined its
criteria by which it distinguishes between legitimate taxes and disguised
regulations – as such the distinction is no longer so arbitrary.
United States v. Kahringer
This case stresses the cases prior to Bailey, in
which the Court rejected arguments that mixed motives on Congress’s part were
enough to condemn a particular tax, and arguments that a tax was invalid if it
was not primarily intended to raise revenue. Analysis: A federal excise tax does
not cease to be valid merely because it discourages or deters the activities
taxed. Nor is the tax invalid because the revenue obtained is negligible. The
instant tax has a regulatory effect. But the wagering tax produces revenue . . .
The power of Congress to tax is extensive and sometimes falls with crushing
effect on businesses deemed unessential or inimical to the public welfare.
[HOWEVER], the remedy is with the Congress, not the courts.
the Court now seems to adopt the view that Alexander Hamilton had endorsed as
the “correct one.” Thus, Congress has the broad power to tax and spend for the
general welfare so long as it does not violate other constitutional provisions.
Modern Criteria: Tax or Regulation
The Supreme Court today has developed a number of
criteria to determine whether a “tax” is really a tax, or instead, a disguised
No Motive Inquiry
The Court says that it will not inquire “into the
hidden motives which may move Congress” to tax. Thus, Congress may tax for
purely regulatory objectives, so long as the form of the “regulation” is a tax.
Productive of Revenue
If a tax produces some revenue, it is likely to
be treated as a legitimate tax. Thus, the Court has upheld taxes upon firearms
dealers, gambling, and marijuana, even though the revenue raised from these
taxes was relatively small.
“Regulatory” Tax Rates Permitted
Taxes that regulate by means of their rate
structure are permissible as valid taxes.
Regulations “Reasonably Related” to Tax Enforcement
Congress may impose regulations as part of a tax
so long as those regulations are reasonably related to enforcement of the tax.
For example, in Kahringer, Congress levied a tax on bookies that required
them to file a tax return, including their name and address. Although the
registration requirement was no doubt intended to facilitate criminal
prosecution of illegal gambling, the Court upheld the registration requirement
on the ground that it was adapted to collection of a valid tax.
Congress’s Spending Power
The other side of taxation is spending, but the
power to tax is not the source of the power to spend. The principal issue
regarding the spending power is the scope of congressional power to attach
conditions to the receipt of federal expenditures, particularly when those
conditions oblige the states to alter their constitutions or laws.
Source of Authority to Spend
Article I, §8 gives the power “to pay the Debts
and provide for the common Defence and general Welfare of the United States.”
EXAM TIP: Congress does not have the power to regulate for the general
welfare – it has the power to spend for the general welfare.
Two Important Issues Concerning the Spending Authority
Two issues are important: first, what is the
general welfare for which Congress may spend? Second, may Congress attach
conditions to the receipt of federal funds and, if so, are there any limits to
United States v. Butler
Through the Agricultural Adjustment Act (“AAA”)
Congress sought to raise farm prices by limiting production. A tax was levied on
the first processor of each farm commodity and those tax revenues were used to
pay farmers who entered into contracts to limit production of farm commodities.
Butler, on behalf of a cotton processor, attacked the validity of the processing
tax. The Court struck it down as part of a spending program that was beyond
Congress’s power to spend.
Meaning of General Welfare
Butler, the Court decided that the
phrase “general welfare” did not limit Congress’s spending power to spending
that was necessary and proper to effectuate some other enumerated power of the
federal government. Essentially, they followed Alex Hamilton’s view that
Congress could spend for any purpose necessary or proper to the general welfare,
regardless of whether it was in aid of some other enumerated federal power.
But, said the Court, Congress had not simply
spent for the general welfare; it had regulated for the general welfare – THIS
IS A BIG FUCK UP. – While Congress may spend for the general welfare, it may not
regulate for the general welfare.
The Court concluded that Congress could not
validly regulate agricultural production, a local and “pre-commercial” activity.
The Court concluded that Congress had indeed regulated because the AAA coerced
farmers into compliance with the acreage reduction scheme. Farmers who didn’t
enter into contracts to limit production suffered sever economic loss; Congress
could not “purchase” compliance with a regulatory scheme that it could not
otherwise constitutionally erect.
Justice Stone dissented, arguing that it was
oxymoronic “to say that there is a power to spend for the national welfare,
while rejecting any power to impose conditions reasonably adapted to the
attainment of the end which alone would justify the expenditure.” His dissent
seems to concede that conditional spending is inherently regulatory and asserts
that regulation ancillary to spending is valid so long as it is reasonably
related either to the general welfare of the nation, or perhaps, to the specific
Steward Machine Co. v. Davis
The Court upheld a provision of the Social
Security Act that granted a credit against federal payroll taxes for payments
made by employers to state unemployment compensation schemes, so long as those
state plans complied with minimum federal requirements. The Court concluded that
the credits were not “weapons of coercion” and was merely a condition imposed on
a federal expenditure that did not coerce the states because the states remained
free to decide whether they wised to enact an unemployment compensation scheme
complying with the federal standards. This case marked a beginning of the
erosion of Butler and the movement towards allowing for conditional spending
South Dakota v. Dole
By statute, Congress directed the Secretary of
Transportation to withhold 5% of the federal highway funds otherwise due under
other federal laws from any state that permitted persons under age twenty-one to
purchase and possess alcoholic beverages. SD permitted nineteen-year-olds to
purchase 3.2% beer, and they sought a declaration stating that this law was
beyond Congress’s spending power.
The Court upheld the law. In doing so it outlined
the constitutional limits upon the practice of conditioning state receipt of
federal funds on compliance with federally specified standards. For conditional
spending to be valid, it must comply with the following criteria:
Conditions on spending must be in
pursuit of the general welfare, but the courts will “defer substantially
to the judgment of Congress” as to what is in aid of the general welfare of the
Conditions on spending must be
unambiguous, to enable the states to exercise a knowing choice.
Conditions on spending must be
related to the “federal interest in particular national projects or programs,”
a requirement that means that the condition must reasonably further some
particular national project or program otherwise within federal power.
Congress has no power to use conditions upon receipt of federal funds to
purchase state compliance with something far removed from the subject of the
spending. This requirement imposes a rule of “reasonable proximity” between the
means (the condition) and the end (the particular federal project or program).
Suppose Congress limits receipt of federal funds for highway construction to
those states that prohibit marriage under the age of eighteen. It is unlikely
that this condition – a minimum age for marriage – reasonably furthers the
particular federal interest – safe highway construction.
Conditions on spending must not
violate “other constitutional provisions” that “provide an independent bar
to the conditional grant of funds.” This requirement simply means that Congress
may not condition receipt of federal funds on a state’s violation of the
Suppose Congress offers money to states for public health purposes, but
withholds receipt of federal funds from those states that permit abortions. The
condition is invalid because it obligates states to violate an independent
constitutional provision – the substantive due process right of a woman to
terminate her pregnancy.
Conditions on spending must not
be coercive. When pressure turns into compulsion, a condition becomes
coercive. In Dole, the Court found that the condition was “relatively
mild encouragement to the States to enact a higher drinking age.” However, the
Court gave no hint as to the point where the withholding of federal funds might
become coercive. Dole leaves an opportunity for states to argue that
conditions imposing more severe cutbacks are coercive, but Dole offers no
guidance as to the point where coercion begins.
Notes from Class on Test for Conditional Spending (Same as Above)
Test for Modern Spending Programs:
South Dakota v. Dole Factors:
Spending power must be in pursuit of the general welfare – how do we
interpret the phrase general welfare – we don’t; it is left entirely up to
Conditioning of funds on compliance with federal requirements (what
Congress tells the states they can use the money for) must be “unambiguous.” –
have to tell the states what you are doing
Conditions (what you are asking the states to abide by) have to be
related to the federal interest in the program
Can’t violate other constitutional provisions
Can not coerce compliance
The Dormant Commerce Clause Doctrine
The commerce clause has two distinct functions.
As discussed above, one is an authorization for congressional actions. The other
function of the commerce clause is in limiting state and local regulation. This
is the “dormant” or “negative” commerce clause.
The dormant commerce clause is the principle that
state and local laws are unconstitutional if they place an undue burden on
interstate commerce. There is no constitutional provision that expressly
declares that states may not burden interstate commerce. Rather, the Supreme
Court has inferred this from the grant of power to Congress in Article I, §8, to
regulate commerce among the states.
Even if Congress has not acted under its commerce powers and no
preemption is found, the state or local law can be challenged on the ground that
it excessively burdens commerce among the states. In other words, even if
Congress has not acted – even if its commerce power lies dormant – state and
local laws can still be challenged as unduly impeding interstate commerce.
Justifications for the DCCD
Congress always has the authority under its
commerce clause power to preempt state or local regulation of commerce. As such,
Congress could invalidate any state or local law that it deems to place an undue
burden on interstate commerce. So, the real issue with regard to the DCCD is
whether the judiciary, in absence of congressional action, should invalidate
state and local laws because they place an undue burden on interstate commerce.
There are three primary justification for why the judiciary should have this
The historical argument reasons that the framers
intended to prevent state laws that interfered with interstate commerce. A key
impetus for the Constitutional Convention was the absence of any federal
commerce power under the Articles of Confederation. Commerce among the states
was obstructed by protectionist state legislation, so supporters of the DCCD
indicate that historically the doctrine was a primary impetus behind the
The economy is better off if state and local laws
impeding interstate commerce are invalidated.
States and their citizens should not be harmed by
laws in other states where they lack political representation. McCulloch v.
Maryland is an example of this, in that Maryland attempted to tax a federal
institution which would effectively tax people outside the state who had no
representation. Essentially, the political process cannot be trusted when a
state is advantaging itself at the expense of out-of-staters who have no
Arguments Against the DCCD
The argument against the DCCD is, in part,
textual. The drafters of the Constitution could have included a provision
prohibiting states from interfering with interstate commerce, but no provision
exists. In recent years, Justices Thomas and Scalia have urged for the
abandonment of the DCCD stating that it is “an exercise of judicial power in an
area where there is no textual basis.” Moreover, opponents of the DCCD propound
a separation of powers argument as well. This argument reasons that the task of
reviewing state laws should be done by Congress and not by the courts. However,
defender rebut this argument, pointing out that it is unrealistic to expect
Congress to review the vast array of state and local laws that might be
challenged as burdening interstate commerce.
This doctrine also arose out of Gibbons:
Gibbons v. Ogden
In Gibbons, Justice Marshall also considered
whether the commerce clause could act as an independent limit on state power,
even where Congress has not acted. Marshall stated that “when a state proceeds
to regulate commerce . . . [it] is doing the very thing which Congress is
authorized to do.” This argument would seem to imply that Congress’s commerce
power is exclusive, that any state regulation of commerce is inconsistent with
federal power. However, Marshall did not go nearly as far in limiting state
authority. Rather, Marshall drew a distinction between a state’s exercise of its
police power and a state exercising the federal power over commerce.
The cases that immediately followed used this
approach, but it quickly became clear that Marshall’s approach was problematic,
in that it assumes two distinct categories – (1) state laws adopted under the
police power and (2) state laws that regulate commerce among the states – that
are not at all separate. Obviously, state laws adopted under the police power
can place an enormous burden on interstate commerce, such as when a state offers
a health or safety justification for discriminating against out-of-staters.
Therefore, the issue, unresolved in Gibbons, is when state laws, including those
adopted under the police power, violate the dormant commerce clause because they
unduly burden interstate commerce.
Cooley v. Board of Warrens:
National v. Local Subject Matter
This case set forth a new test; the Court drew a
distinction between subject matter that is national, in which event state laws
are invalidated under the DCCD, and subject matter that is local, in which event
state laws are allowed.
Problems With This Test
There are, however, several problems with the
First, it allows state regulations,
no matter how protectionist or how much they interfere with interstate commerce,
so long as the subject matter is deemed local.
Second, there is no clear
distinction between what is considered national subject matter and what is
considered local subject matter. Cooley articulates no criteria for
making this determination and it seems inherently arbitrary; in almost any area
there likely are some benefits from national uniformity and some gains from
DiSanto v. Pennsylvannia:
Direct v. Indirect Effects on Commerce
In this case, the Court propounded a test that
drew a distinction between state laws that directly interfered with interstate
commerce, and thus were invalid, as opposed to those that only had an indirect
effect and were permissible.
The problem, of course, with a “direct/indirect”
test is that it falsely assumes that there is a clear, in kind, difference
between laws that directly burden commerce and those with only an indirect
effect. The reality is that burdens are a matter of degree, and the
determination of whether something is direct or indirect is simply a choice
about where to draw the line. As Justice Stone state in his dissent in
DiSanto, the test is “too mechanical, too uncertain in its application, and
too remote from actualities to be of value.”
The Modern Doctrine: A Balancing Approach
The early test all attempted to set rigid
categories to determine whether state could regulate (i.e., direct/indirect or
national/local). The modern approach is more based on the balancing of benefits
of a law against the burdens that it imposes on interstate commerce. It should
be noted, however, that the Court has not expressly overruled any of the earlier
tests and sometimes invokes them in explaining a particular result. Nonetheless,
in essence, the crucial issue of the modern approach is whether the benefits of
a state law outweigh its burden on interstate commerce.
Balancing Test Depends on Whether There is Discrimination
A primary factor in the Court’s balancing depends
on whether the state or local law discriminates against out-of-staters or treats
in-staters and out-of-staters alike. There are two presumptions: (1) if the
Court concludes that a state is discriminating against out-of-staters, then
there is a strong presumption against the law and it will be upheld only if
necessary to achieve an important purpose; (2) in contrast, if the Court
concludes that the law is nondiscriminatory, then the presumption is in favor of
upholding the law and it will be invalidated only if it is shown that the law’s
burdens on interstate commerce outweigh its benefits.
The Discrimination Doctrine
are several ways by which the Court finds sufficient discrimination against
interstate commerce presumptively to void state laws and one test by which a
state may justify such discrimination.
When a state law discriminates on its face
against interstate commerce it is INVALID unless the state proves that it
has a legitimate objective that cannot be accomplished by any less
Philadelphia v. New Jersey
Philadelphia v. New Jersey
has become the leading expression of
the Court's "antidiscrimination principle": state laws that draw explicit
distinctions between in-state and out-of-state commerce, and which treat that
out-of-state commerce differently ("discriminate" against it) are subject to a
virtually per se rule of invalidity.
The burden of proof is then on the State to prove (i) legitimate purpose and
(ii) lack of less discriminatory means to effectuate that purpose. The Court
held that the actual purpose of New Jersey's law excluding out-of-state waste
(i.e., its "end") was irrelevant, because the means used by New Jersey (erecting
a barrier excluding out-of-state products) was also impermissible. In other
words, assuming that New Jersey was
merely trying to conserve its landfill space (as opposed to enriching in-state
economic actors at the expense of out-of-state actors), it could not do so by,
in the Court's words, "isolating the State from the national economy" and
attempting to "saddle those outside the State with the entire burden of slowing
the flow of refuse into New Jersey's remaining landfill sites." Thus, while New
Jersey's law might not be "protectionist" in the sense of protecting an industry
from out-of-state competition, it was inconsistent with the vision of the
Framers who wished to demolish the barriers states had erected against one
another's commerce and thus to avoid the political friction that often
accompanied those barriers.
The Court always sees discrimination against
interstate commerce in a state law that is economically protectionist. Laws that
are openly and purposefully protectionist are automatically void. But laws that
are protectionist in their effect and have no apparent purpose apart from local
economic protection are equally infirm.
Discriminatory Application of Neutral Laws
A state may enact a law that is perfectly neutral
toward interstate commerce but if the law, as applied, discriminates against
interstate commerce, it will be void unless the state proves that it has a
legitimate objective that cannot be accomplished by any less discriminatory
H.P. Hood & Sons v. Du Mond
NY required all milk processors to obtain a
license but conditioned the license upon proof of a need for the processing in a
market not adequately served. Hood, a Boston processor was denied a license.
Thus, although NY’s licensing requirement and criteria for issuance were
neutral, the Court concluded that NY’s refusal was the product of sheer economic
protectionism and applied a per se rule of invalidity.
Summation: Test if Discrimination is Found – “Strict Scrutiny”
If the law if found to be discriminatory, either
on its face, because of economic protectionism or in its application, then the
law or regulation is subject to a per se rule of invalidity. However, if the
State can prove:
a legitimate purpose, and
that there are no less discriminatory means,
THEN the law will be deemed to be valid.
The test is commonly known as the “strict
Balancing Burdens and Benefits – Laws that Do Not Discriminate
Laws that do not discriminate are generally
upheld and will be struck down only if found to place a burden on interstate
commerce that outweighs the benefits from the law. Simply stated, a law that
does not discriminate is void only if a challenger to the law can show that the
burdens placed on interstate commerce by the law are clearly excessive
in relation to the putative local benefits of the law.
How the Test Works
This test requires the court to balance the
benefits to the state against the burdens on interstate commerce. The Court will
uphold the law unless the burdens, however measured, heavily outweigh the state
benefits, however measured. The burdens must be CLEARLY EXCESSIVE compared to
the benefits, meaning that the law will generally be held to be valid.
Problem with this Test
Comparing benefits to the state with burdens on
interstate commerce is like comparing apples and oranges; these two issues are
incommensurable. The Court does not merely assess the quantity of benefits
versus burdens, but it also compares the quality.
So. Pac. Co. v. Arizona
AZ limited RR train lengths within the state.
SoPac challenged the validity of the statute and showed that the law forced it
to break up and remake trains on either side of AZ, which imposed greater labor
costs and added fuel expenses. Though the law was intended to enhance safety in
AZ, SoPac proved that the law in fact increased accidents due to a greater
number of trains rolling through the state. Thus, when balancing the burdens
against the benefits, the burdens appeared clearly excessive when compared to
benefits because benefits really were non-existent.
How do you quantify “burdens on interstate
Cost to interstate commercial actor
Cost of “externalities”
Cost of allowing states to set national standards OR cost of subjecting
interstate commerce to conflicting state standards
Burdens are not assessed in
isolation. The burden of a law may depend, in part, on the laws of other states.
- “Extraterritorial Effects” – for instance, no other state had the train length
requirement that AZ had. The states doing the regulating in the cases we read
were out-lyers – they were enacting statutes that other state were not. They
were anomalous statutes which were creating problems for your neighbor states
Burdens are measures in terms of
the law’s effect on interstate commerce. Those effects are often economic and
quantifiable, but non-economic effects count as well. - The options for
out-of-state trucking companies are to either go around or change their set-ups.
As such, some trucking companies will find the strictest state and set up
according to that state – therefore, that state will have created a national
standard. The Court feels that there are some instances where the state will
pass non-discriminatory laws, but this law is best handled by Congress.
The benefits of public policy are
always hard to measure but the Court tries to do so in terms of how much the law
actually accomplishes its purposes – for instance, in the SoPac/AZ case, the law
did not actually produce the purported benefits because the shorter trains
caused more frequency and more accidents. As such, the law failed to accomplish
its benefits and was void.
Like burdens, benefits are not
measured in isolation. If other laws of the state undermine the benefits, then
the weight of the benefits is greatly reduced.
If the law provides benefits that
are already provided by other laws, then the benefits are marginal.
Must determine whether the
purported benefits are illusory or real:
“Fit” between End and Means – does
the safety measure actually accomplish what it is trying to. – this exemplifies
the need to get all of your evidence and your findings of fact right in the
Facially Neutral Laws with Discriminatory Effects or Purposes
States sometimes enact laws that are facially
non-discriminatory but that either (1) have a discriminatory effect on
interstate commerce, or (2) are motivated by a hidden discriminatory purpose.
The Court treats these cases as hybrids, partaking of both the discrimination
doctrine and the burden doctrine.
The Hybrid Test of Hunt v. Washington State Apple Ad. Comm. (1977)
Facts: WA had its own grading system, which was
recognized as being superior to even the USDA. NC had no system. NC passed an
ordinance stating that you could only ship in apples to NC bearing a USDA grade
or none at all. As such, the cost of compliance to WA apples went up. NC apple
growers would suffer no costs because of this.
Analysis: The discriminatory effects against the
WA apple people was significant and there was some evidence that the law was
intended to protect NC’s apple producers. That combo of distinct discriminatory
effects and hint of forbidden purpose caused the Court to employ a hybrid
standard. “When discrimination against [interstate] commerce of the type we have
found is demonstrated, the burden falls on the State to justify it BOTH
in terms of the local benefits flowing from the statute and the
unavailability of non-discriminatory alternatives adequate to preserve the
local interests at stake.”
Note that normally, under the burden doctrine,
the challenger would have had to prove that the burdens were clearly excessive
compared to the benefits. However, in this case, the Court shifted the burden to
the state to prove both local benefits and non-discriminatory alternatives.
Thus, this test is even stricter, as evidenced by the fact that the NC law was
Discrimination Doctrine Alone Applied
Some combination of discriminatory effects and
possible protectionist purpose may trigger application of the discrimination
doctrine alone, as in Dean Milk.
Dean Milk Co. v. Madison
Madison, WI barred the sale of milk
unless pasteurized within a 5-mile radius. The Court found that the
discriminatory effect of this law profound, since it completely barred milk from
out of state. Madison’s legislative objective – public health – could readily
have been achieved by reliance on federal inspection procedures (a less
discriminatory alternative). Therefore, the Court applied the “strict scrutiny”
test to strike down the law, because the effects of the law were discriminatory.
Illegitimate Objective: Economic Protectionism
The presence of either or both discriminatory
effects and discriminatory motives may establish, in some cases, an illegitimate
objective – economic protectionism – on the part of the state.
West Lynn Creamery v. Healy
Mass. enacted a tax on all milk sold in the
state. The tax revenues were used to pay subsidies to dairy farmers in the
state. Although the tax was non-discriminatory – it applied to all milk sold in
the state, regardless of origin – the subsidy program amounted to a rebate that
favored the in-state group of dairy farmers. Thus, the “purpose and effect” of
the program was to divert market share to Mass. dairy farmers, enabling higher
cost Mass. dairy farmers to compete with lower cost dairy farmers from other
states. As such, the tax was effectively imposed on only out-of-staters, and is
therefore economically protectionist. It was struck down as such.
Burden Doctrine Only Applied
Sometimes the Court finds the discriminatory
effects insufficient to trigger anything but the burden doctrine’s balancing
Exxon Corp. v. Md.
Md. barred refiners of gas from the retail sale
of gas. All refiners of gas are located outside Md. The Court found no
discriminatory effect because the law did not on its face restrict the movement
of gas across state lines. The Court found no protectionist purpose despite
evidence that one legislative motivation was to protect local independent
retailers of gas. The Court thus applied balancing and sustained the law.
Note: This case is a prime example of when a
court finds a law is not discriminatory, it generally upholds the law.
Notes on Exxon
The distinguishing factor is that the producer
refined gas stations, according to the courts, is not actually in competition
with the independent gas stations. No in-state producer-refiner is benefiting
from the regulation, so it is not discriminating against out-of-staters. Exxon
requires discrimination among similarly-situated competitors. Problem: you can
find minute distinctions between competitors.
How do We Follow this Inconsistent Law
The Court will generally apply the balancing
doctrine if a law does not appear to be discriminatory. If, in the course of its
balancing, the Court finds significant discriminatory effects or hidden
discriminatory purposes, it will probably invalidate the law because the burdens
on commerce clearly outweigh the local benefits. FURTHER, certain discriminatory
effects or motive might “trigger” the employment of the PIKE balancing test as
Embargo against interstate commerce (can’t sell out of state goods).
Raise costs for out-of-state producers that are no borne by in-state
Non-discriminatory tax that in effect out of state producers paid
Strips competitive advantage
“Invidiously” level the playing field to the advantage of in-state
Denning’s Flow Chart
State or local law discriminatory?
On its Face
In its Effects
In its Purpose
Do burdens on interstate commerce “clearly exceed” putative local
benefits – if no, then valid
Legitimate interests - if yes, then
No less discriminatory means - if no, then invalid
The Market-Participation Doctrine
This doctrine provides that a state may favor its
own citizens in dealing with government-owned businesses and in receiving
benefits from government programs. In other words, if the state is literally a
participant in the market, such as with a state-owned business, and not a
regulator, the DCCD does not apply. Discrimination against out-of-staters is
allowed that would normally otherwise be impermissible.
Cases Setting Out the Market-Participant Doctrine
Hughes v. Alexandria Scrap Co.
In this case, the court upheld a Md. law designed
to rid the state of abandoned automobiles by having the state pay for inoperable
cars. Basically, in-staters only had to show minimal documentation but
out-of-staters had to produce extensive documentation. The Court held that the
state was a market participant by purchasing the cars and that therefore its
discriminatory actions against out-of-staters did not violate the DCCD,
declaring “[n]othing in the purposes animating the Commerce Clause forbids a
state, in the absence of congressional action, from participating in the market
and exercising the right to favor its own citizens over others.”
Reeves, Inc. v. Stake
In this case, the Court upheld a cement company
owned by SD charging less to in-state purchasers and more to out-of-state
purchasers. The Court said the “basic distinction . . . between States as market
participants and States as market regulators makes good sense and sound law.”
Basically, SD, as a market participant, could favor certain customers (in-state
purchasers) in the same manner that private enterprises can favor certain
White v. Mass. Council of
Constr. Employers (1983)
This case pointed out that the market-participant
exception is not limited to state-owned businesses – states may also favor their
citizens in receiving benefits from government programs. In this case, the Court
upheld a city ordinance that required that all construction projects financed by
the city use a workforce comprised of at least 50 percent residents of the city.
Essentially, the court said that the city could favor its residents over
out-of-staters in employment for government funded construction projects because
in those projects the state was a “market participant.”
Limitation on the Market-Participant Doctrine
There is one important limitation on the scope of
this exception: State businesses may favor in-state purchasers, but they may not
attach conditions to a sale that discriminate against interstate commerce. In
other words, the State cannot attach any “downstream” limits on what happens to
the goods it places in commerce, thus having a substantial regulatory effect
outside of the particular market.
Development, Inc. v. Wunnicke
In this case, the Court declared unconstitutional
an Alaskan law that required that purchasers of state-owned timber have the
timber processed in AK before it is shipped out of the state. The Court said
that “[t]he limit of the market-participant doctrine must be that it allows a
State to impose burdens on commerce within the market in which it is a
participant, but allows it to go no further. The State may not impose
conditions, whether by statute, regulation, or contract, that have a substantial
regulatory effect outside that particular market.” Thus, the Court drew a
distinction between the ability of a state to prefer its own citizens in the
“initial disposition of goods when it is a market participant” and a “State’s
attachment of restrictions on dispositions subsequent to the goods coming to
rest in private hands.”
The Privileges and Immunities Clause of Article IV, §2
Article IV, §2, states: “The Citizens of each
State shall be entitled to all Privileges and Immunities of Citizens in the
several States.” The SC has interpreted this provision as limiting the ability
of a state to discriminate against out-of-staters with regard to fundamental
rights or important economic activities.
Application of the Privileges and Immunities Clause
If a state law:
Discriminates against non-residents
Re: Exercise by non-residents of “fundamental right”, e.g., pursuing a
common calling (working a particular job)
“Substantial Reason” must exist for the differential treatment (Must have
a good reason) (Reason must be other than geography)
Distinction must bear “substantial relation” to state’s objective (Ends
must be justified by the means)(Court always considers the availability of a
less restrictive means)
“Fundamental Rights” Meaning Important Econ. Activities & Const. Rights
The majority of cases under the privileges and
immunities clause involve states discriminating against out-of-staters with
regard to their ability to earn their livelihood. Generally, the Court has found
a violation of the privileges and immunities clause if a state excludes
out-of-staters from practicing a trade or profession, or charges a
discriminatory licensing fee, or mandates that a preference be given to
in-staters for employment. All of these examples make it clear that the
privileges and immunities clause limits the ability of a state or local
government to discriminate against out-of-staters with regard to their ability
to earn a livelihood. However, if there is neither such economic discrimination
nor discrimination with regard to constitutional rights, then there is not a
violation of the privileges and immunities clause.
Key Differences with the DCCD and the P&I Clause
The DCCD and the P&I Clause overlap: Both can be
used to challenge state and local laws that discriminate against out-of-staters.
There are, however, some key differences:
P&I Clause Requires Facial Discrimination Against Out-of-Staters
The P&I Clause can be used only if there is
discrimination against out-of-staters. The DCCD can be used to challenge state
or local laws that burden interstate commerce regardless of whether they
discriminate against out-of-staters.
P&I Clause Expressly Limited to “Citizens”
Corporations and aliens can sue under the DCCD,
but not the privileges and immunities clause. The privileges and immunities
clause is expressly limited to “citizens,” whereas no limitation exists with
regard to the DCCD.
If Congress approves state laws, then they do not
violate the DCCD; if Congress has acted, its commerce power no longer is
dormant. Essentially, this means that if the Court strikes down a regulation
under as a violation of the DCCD and then Congress uses its active commerce
power to make such regulation valid, the regulation become valid. This is
re-delegation. Concerning the P&I Clause, there is no re-delegation;
congressional approval does not excuse a law that violates the P&I Clause.
No Market-Participant Exception to P&I Clause
There is a market-participant exception to the
DCCD, allowing states to favor their own citizens in receiving benefits from
government programs and in dealing with government-owned businesses. No such
exception exists for the P&I Clause.
§4: Separation of Powers
Express and Inherent Presidential Powers
Is There Inherent Presidential Power?
Article II begins, “The executive Power shall be
vested in a President of the United States of America.” Article II then
enumerates specific powers of the President. Through constitutional history, a
debate has emerged over whether this language was intended to grant the
president inherent powers not expressly enumerated in Article II. A century and
a half of partisan debate and scholarly speculation yields no net result. The
arguments on both sides largely cancel each other out. Nonetheless, there is
some directional advice given in the case law, although it is also somewhat
Youngstown Sheet & Tube Co. v. Sawyer (U.S. 1952)
Youngstown is the leading case addressing the
scope of inherent presidential power – the ability of the president to act
without express constitutional or statutory authority. In this case, President
Truman issued an executive order directing the secretary of commerce to take
possession of steel mills and keep them running when the union announced plans
to strike. His rationale was that this power was granted by his need to keep the
mills functioning since the country was participating in the Korean War at the
time. The secretary of commerce issued the order and the president reported the
action to Congress, who took no action in response to the seizure. The Supreme
Court, by a 6 to 3 margin, declared the seizure unconstitutional. Seven
different opinions were written. Four different approaches can be identified in
Approach 1: No Inherent Presidential Power
There is no inherent presidential power; the
president may act only if there is express constitutional or statutory
Justice Black’s opinion denied the existence of
any inherent presidential power: The president may only act pursuant to express
or clearly implied statutory or constitutional authority. This approached is
premised on the belief that inherent authority is inconsistent with a written
Constitution establishing a government of limited powers.
Approach 2: Inherent Power Unless Interfering W/Other Branches
The president has inherent authority unless the
president interferes with the functioning of another branch of government or
usurps the powers of another branch.
This approach allows the president to act without
express statutory or constitutional authority, so long as the president is not
usurping the powers of another branch of government or keeping another branch
from performing its duties. This approach is premised on the belief that there
is a need for the president to exercise powers not specifically enumerated in
the Constitution or not expressly granted by Congress. For instance, the
Constitution makes no mention of a presidential power to recognize foreign
government or to remove presidential appointees from office, nor has Congress
ever granted such powers in a statute. Yet, it is conceded that the president
has these powers.
The president may exercise powers not mentioned
in the Constitution so long as the president does not violate a statute or the
This third approach is that the president may
take any action not prohibited by the Constitution or a statute. Several of the
opinions in Youngstown took this approach the most notable being Justice
Justice Jackson’s Concurrence
This is probably the most famous opinion dealing
with presidential power because he delineated three zones of presidential
Zone 1: President Acts Pursuant
to Express Congressional Approval
In this zone, the president’s authority is at its
maximum. Under such circumstances, the president’s acts are presumptively valid;
they are invalid only if the federal government as a whole lacks power.
Zone 2: President Acts When
Congress is Silent
“When the president acts in absence of either a
congressional grant or denial of authority, he can only rely upon his own
independent powers, but there is a ZONE OF TWILIGHT in which he and Congress may
have concurrent authority, or which its distribution is uncertain.” (In other
words, the powers of Congress and the President might overlap.) In this arena,
it is impossible to formulate general rules as to the constitutionality of the
actions in this area; rather, constitutionality is likely “to depend on the
imperatives of events and contemporary imponderables rather than on abstract
theories of law.” In BPD’s words, though, congressional silence may invite
Zone 3: President Acts Against
Express or Implied Will of Congress
“When the President takes measures incompatible
with the express or implied will of Congress, his power is at its LOWEST EBB.”
Because the president is disobeying a federal law, such presidential actions
will be allowed only if the law enacted by Congress is unconstitutional.
It should be noted that Zones 1 and 3 involve
situations where Congress has acted, and thus the issue is the constitutionality
of the federal law. Only the second approach concerns inherent powers, but
Jackson offered no criteria to guide the courts dealing with these issues. Does
this mean that when Congress is silent, everything is up in the air? Court must
use its best judgment? [See §4, II, C, infra.]
Approach 4: Broad Inherent Authority
The president has inherent powers that may not be
restricted by Congress and may act unless the Constitution is violated.
In other words, in this fourth area, federal laws
restricting the president’s powers are unconstitutional.
Importance of Which Approach is Chosen
All four of the approaches have some support in
Youngstown and some support in other cases. No Supreme Court case definitively
makes one of these approaches correct and the others wrong. Ultimately, the
choice of approach must be based on a decision about the appropriate scope of
presidential power and how best to check the president
Consider the issue of impoundment. During the
early 1970’s, Tricky Dick claimed that he had the power to impound funds
appropriated by Congress and refuse to spend them.
First Approach – impoundment is
unconstitutional because there is no constitutional or statutory authority to
support the practice.
Second Approach – impoundment also
is likely to be unconstitutional because it usurps Congress’s power of the
Third Approach – impoundment was
likely constitutional until Congress adopted the Impoundment Control Act, which
effectively forbids the practice
Fourth Approach – if impoundment is
regarded as an inherent power of the president, then it is constitutional and
the Impoundment Control Act is an impermissible restriction.
This example makes it clear that the choice of
approach is crucial in determining the analysis and the likely outcome. In most
cases, however, the approach used is implicit rather than expressly defended.
Formalists and Functionalists
These are the two basic philosophies on how to
view inherent executive authority:
– treats separation of powers as hard and fast rules to be adhered to regardless
of the consequences.
– this philosophy takes an approach which tries to apply powers in order to
avoid a concentration of power in one branch – thus, functionalists may grant
inherent executive authority so long as it does not concentrate too much power
in the executive. As long as a branch’s individual rights aren’t affected and
there is no concentration of power in one branch, then the functionalists would
state that it was all right.
The Basic Question
A basic question, for which there is no
definitive answer, is whether the president inherently has greater powers in the
area of foreign policy compared with domestic affairs.
United States v. Curtiss-Wright
Because of a concern that United States’
munitions manufacturers were arming both sides of a war in S.A., Congress
adopted a law that empowered the president to issue a proclamation making
illegal further sales of arms to the warring nations. This case arose at the
time when the Court was invalidating laws pertaining to domestic affairs as
impermissible delegations of legislative power to the executive
In this case, however, the Court upheld the
delegation to the president of quasi-legislative power in the foreign affairs
field, in order to stop munitions shipments. Moreover, the Court spoke generally
of a fundamental difference between domestic and foreign policy. Justice
Sutherland, writing for the Court, declared that “[t]he two classes of power are
different, both in respect of their origin and their nature. The broad statement
that the federal government can exercise no powers except those specifically
enumerated in the Constitution, and such implied powers as are necessary and
proper to carry into effect those enumerated powers, is categorically true only
in respect to our internal affairs.” It should be noted that the holding of this
case is of limited importance because the “non-delegation” doctrine, barring
Congress from delegating its legislative power to others, has since become
Basis for Holding
Sutherland had three primary rationales for why
domestic and foreign policy differ:
First, authority over domestic
affairs was possessed by the states before the ratification of the Constitution.
By ratification, the states bestowed this power on the national government. As
to foreign policy, however, the power is inherently in the nat’l gov’t by virtue
of it being sovereign. In other words, an exclusively federal power over foreign
affairs was implied in the Constitution.
Second, “in this vast external
realm . . . the President alone has the power to speak or listen as a
representative of the nation.” This power does not require as a basis for its
exercise and act of Congress.
Congress had “vested in the
President” all of its authority on this issue “by an exertion of legislative
Basis for Broad Inherent Presidential Power in Area of Foreign Policy
This case is still cited by the Supreme Court as
authority for broad inherent presidential power in the area of foreign policy;
according to Denning, this is generally all we need to know about this case.
That it is here and that it provides a basis for broad inherent presidential
power in the area of foreign policy. – Although Sutherland’s description of the
breadth of the President’s foreign affairs power is in dicta, this opinion is
nonetheless influential. Everyone agrees that there is in fact an unenumerated
foreign relations power; disagreement centers on the degree to which it is
shared by the President and Congress.
Back to Youngstown
– What Is Congressional Authorization or Prohibition
Given the President’s power depends in part on
whether Congress has authorized or prohibited his actions, it is important to
understand what sort of congressional actions constitute authorization or
prohibition. When Congress has enacted legislation that specifically authorizes
or prohibits presidential action, the case is easy. Implied congressional
authorization is more problematic, partly because it is harder to know what
meaning, if any, to attach to congressional inaction or silence. This is
basically the area that is covered in Zone 2 of Jackson’s
opinion. There are three basic areas congressional inaction or silence:
Rejection of Legislation
The Court sometimes finds implicit congressional
prohibition of presidential action in congressional rejection of legislation.
Sometimes the Court finds implicit authorization
of presidential action from congressional acquiescence to the practice. This
occurs commonly in the field of foreign affairs.
Inferences From Legislation: Dames & Moore v. Regan
Another kind of congressional silence is that
which fills the gaps between existing legislation. In D&M v. Regan, the
Court found implicit congressional approval in those gaps.
Following the Iranian revolution, D&M, an
American engineering firm, sued Iran in U.S. district court to recover damages
for breach of contract and attached Iranian assets in the U.S. Presidents Carter
and Reagan then obtained the release of American hostages in Iran and, in
exchange, issued a series of executive orders nullifying all such attachments
and suspending all claims against Iran pending in U.S. courts. D&M attacked the
validity of the executive orders.
The Court unanimously upheld the orders. The
Court found sufficient congressional authorization in several vaguely related
laws, none of which spoke directly to the issue, but which taken together
“indicate [congressional] acceptance of a broad scope for executive action in
circumstances such as those presented in this case.” The Court’s reasoning was
heavily influenced by the broad foreign affairs powers acknowledged to be
possessed by the President. The Court also found that was a history of such
executive settlement of claims, which was also an important factor.
Appointment and Removal Power
Appointment Power - Overview
Article II says that the President alone appoints
ambassadors, Supreme Court Justices, and officers of the United States; but
Congress can vest the appointment of “INFERIOR” officers in the president, or in
the federal courts, or the heads of departments. Thus, the question arises, who
is an “inferior officer” within the meaning of Article II ? Also, may Congress
assign the appointment power in other ways besides those enumerated in Article
II? Specifically, when, if at all, may Congress give the appointment power to
itself or its officers?
Principal Officers v. Inferior Officers
Note that the “other Officers of the United
States” consist of principal officers (the appointment of which is vested in the
President subject to Senate confirmation) and inferior officers (the appointment
of which Congress can give to the President, the courts, or executive department
heads). Although the Court has never precisely distinguished between principal
and inferior officers, principal officers consist of the highest echelon of
government – cabinet secretaries and their equivalents. ANY office less powerful
is probably inferior.
Morrison v. Olsen
Facts: Pursuant to authorizing legislation, a
“special division” of the U.S. Court of Appeals appointed an “independent
prosecutor” to investigate and prosecute alleged executive wrongdoing. The
Court, by a 7 to 1 margin, upheld the constitutionality of having federal judges
appoint the independent counsel. The Court emphasized that it was permissible
for Congress to vest appointment in the federal courts because the independent
counsel is an “inferior” rather than a “principal” officer.
The Court makes three arguments as to why the
independent counsel [“IC”] should be considered “inferior”:
First, the IC is an “inferior”
officer because, under the statute, he or she can be removed by the attorney
general for cause.
Second, the IC possesses inferior
power compared to the attorney general, who has broad authority and participates
in formulating policy for the executive branch. In other words, the IC was
empowered only to perform certain duties.
Third, the Court noted that the
independent counsel is appointed for a limited tenure with its jurisdiction
limited by the instructions from the appointing court.
Finally, the Court concluded that
there was no incongruity in having judges appoint the IC. Indeed, the Court said
that in light of the desire for independence in investigating alleged wrongdoing
within the executive branch, “the most logical place to put [the appointment
power] was in the Judicial Branch.”
“Black Tie Tony” Scalia’s Formalist Dissent
Scalia vigorously dissented, emphasizing that the
power to prosecute is “a quintessentially executive power” and that it usurps
presidential power for Congress to vest this authority in the independent
counsel.” Scalia argues that it is unconstitutional to allow the IC once it has
been determined that “(1) purely executive functions are at issue here, and (2)
those functions have been given to a person whose actions are not fully within
the supervision and control of the President.” Scalia said that the Constitution
presumes that all executive powers are within the control of the president, and
thus it is unconstitutional for Congress to vest the prosecutorial power in the
Formalists v. Functionalists – what’s the deal?
turns, at least in part, on the choice between a functionalist or a formalist
approach. From a functionalist perspective, there is an obvious benefit to
having investigations of executive officials conducted outside the executive
branch. The IC is desirable because an independent individual, appointed by Art.
III judges, is conducting the investigation and prosecution, rather than this
being done by the Justice Department prosecutors who are ultimately answerable
to the attorney general and the president. From a formalist perspective,
however, Scalia emphasized that the executive power is vested solely in the
President. As such, any grant of prosecutorial authority to an independent
counsel is unconstitutional.
There is no provision of the Constitution
concerning the President’s authority to remove executive branch officials. The
principle that has emerged from the cases is that, in general, the president may
remove executive officials unless removal is limited by statute. Congress, by
statute may limit removal both if it is an office where independence from the
president is desirable, and if the law does not prohibit removal but, rather,
limits removal to instances where good cause is shown.
Myers v. United States
The Myers case involved the firing of a
postmaster of Portland, Oregon in violation of a
federal law that provided that postmasters could be removed during their
four-year terms only “with the advice and consent of the Senate.” CJ Taft, a
former president, wrote broadly of the President’s ability to remove executive
officials. He explained that the ability to control the personnel in
administrative positions was central to the executive power. He also concluded
that it was the intent of the framers to place the removal power in the
president. In sum, Myers stood for the broad proposition that any
congressional limits on the removal power are unconstitutional.
Humphrey’s Executor v. United
States (U.S. 1935)
Less than a decade after Myers, the Court
took a much different position and recognized that Congress could, for some
officers and under some circumstances, limit the removal power. In Humphrey’s,
the Court unanimously upheld the ability of Congress to limit the removal of a
commissioner of the FTC. The Court explained that Congress, under Article I,
could create independent “quasi-legislative or quasi-judicial” agencies and
insulate their members from presidential removal unless good cause for firing
Distinguished from Myers
The Court distinguished Myers saying that
its holding applied only to “purely executive officers” and that beyond that the
opinion was merely dicta and therefore did not come within the rule of stare
decisis. The Court said that officers in “quasi-legislative” or “quasi-
judicial” positions are different and that Congress may limit the removal of
Distinction Between Administrative Officers and Cabinet Officials
The practical effect of Humphrey’s was in
drawing a distinction between cabinet officials and those who are in independent
regulatory agencies. For cabinet officials or executive agents, such as
the postmaster in Myers or the secretary of state and the AG, Congress may not
limit the removal power because the cabinet is there to carry out the
president’s policies. BUT, for independent regulatory agencies – such as the
FTC, the SEC and the FCC – Congress may limit removal to situations where there
is just cause for firing. Note that this ruling was a functionalist
approach. Congress, in creating the independent agencies, intended that they be
insulated from political control. This approach insures that.
Weiner v. United States
The Court continued to adhere to this
functionalist approach, and in Weiner, the Court went further and held
that even without a statutory limit on removal, the president could not remove
executive officials where independence from the president is desirable.
In this case, the Court concluded that the functional need for independence of
the War Claims Commission limited the president’s power of removal. The intent
of the WCC was to award claims based on merit rather than on political
influence. The Court that there exists a “sharp differentiation” between “those
who are part of the Executive establishment and those whose tasks require
absolute freedom from Executive interference.
Bowsher v. Synar
In Bowsher v. Synar, the Court announced
an important limit on the removal power: Congress can not give itself the
power to remove executive officials. The only exception, of course, if that
Congress always can remove an executive official through the impeachment process.
Morrison v. Olson
In Morrison, the Court upheld the
constitutionality of limits on the President’s ability to remove the independent
counsel. The law creating the
independent counsel provided that he or she could be removed by the attorney
general “only for cause.” The Court upheld the constitutionality of this
The Court distinguished Bowsher, where the
Court had declared unconstitutional Congress’s exercise of the removal power
over an individual performing executive tasks. The Court here noted that
Congress had no role in removal.
Rationale for the Holding
The Court stressed that the IC, who exists to
investigate and prosecute alleged wrongdoing in the executive branch, ideally
should be independent of the president. The Court produced a test for when
independence from the president is no longer desirable, stating that when “the
removal restrictions are of such a nature that they impede the president’s
ability to perform his constitutional duty,” independence is no longer
desirable. Moreover, the Court also emphasized that the statute does not
prohibit all removal; rather, it allows the AG to fire an IC “for cause.” Hence,
the Court found that the limits on the removal of the IC did not violate the
The Principle That Emerges
As the law now stands, in general, the president
has the power to remove executive officials, but Congress may limit the removal
power if it is an office where independence from the president is desirable.
Congress can not, however, completely prohibit all removal, and it cannot give
the removal power to itself (other than by exercising its impeachment power).
How to look at Removal Powers for Exam Purposes
In approaching an issue concerning the removal
power, analysis can be divided into two questions:
Is the office one in which
the independence from the president is desirable?
If so Congress may limit the removal power, and Weiner indicates that the
judiciary may limit removal even in the absence of a statutory provision.
How do you decide whether
independence is desirable?
that Humphrey’s produced the test distinguishing between purely “executive
tasks” and “quasi-legislative/quasi-judicial” tasks – but this is hard to apply
note that Morrison indicated that if “the removal restrictions are of such a
nature that they impede the president’s ability to perform his constitutional
duty,” independence is no longer desirable.
ULTIMATELY, however, the analysis must simply look at whether there are good
reasons why the office should be independent of the president.
Are Congress’s limits on
Congress can not completely prohibit presidential removal, but it can
limit removal where there is good cause.
Congress can not give itself sole power to remove an executive official.
Legislative Action and the Administrative State
The Rise of the Administrative State
Article I of the Constitution vests the
legislative power in Congress. However, in the last century, federal agencies
and departments have continued to gain prominence and Congress has routinely
delegated its legislative power to these agencies. The Constitution does not
expressly mention such agencies, and in fact, in many ways they are in tension
with basic constitutional principles. Virtually all of these agencies possess
rule-making power, and these rules have the force of law. This seems in conflict
with the notion that Congress alone possesses the federal legislative power.
Reasons Why Delegation to Administrative Agencies is Beneficial
For many reasons, Congress has delegated broad
legislative power to administrative agencies. In many areas, the need for
complex regulations seems better handled in a specialized agency than in
Congress. Also, the sheer quantity of regulations exceeds the capacity of
Argument Against Delegation to Administrative Agencies
On the other hand, there is an accountability
element against this delegation. Expansive delegation of legislative power to
administrative agencies allows Congress to act, but avoid the political heat
that specific regulations might endure. More importantly, these federal
administrative agencies possess the legislative power to make rules, the
executive power to enforce them, and the judicial power to adjudicate them. This
combination of functions in a single agency seems in conflict with elemental
concepts of separation of powers.
General Themes - Aggrandizement and Encroachment
Congressional action is void as contrary to the
principle of separated powers when it creates a “danger of either aggrandizement
occurs when Congress enacts laws that accrete to a single branch powers more
appropriately diffused among separate branches or impermissibly enlarges a
single branch’s powers at the expense of the other branches.
occurs when Congress enacts a law that undermines the authority and independence
of one or another coordinate branch.
Mistretta v. United States
In Mistretta, Congress created the
Sentecing Commission, “an independent commission in the judicial branch,”
composed of 7 members appointed by the President subject to Senate approval, at
least three of which were to be federal judges. Commissioners were removable by
the President for “good cause,” and empowered to establish mandatory guidelines
for federal judges.
The Court upheld this delegation of legislative
authority. Congress had instructed the Commission to create uniform sentences
for similarly situated criminals. The Court first determined that this
arrangement was not an impermissible delegation of power. THEN, the Court looked
to whether this Congressional was void due to aggrandizement or encroachment.
The Court held that it was not void, because the delegation to the Sentencing
Commission did not enlarge the judiciary branch at the expense of another
branch. (It did not take legislative power from Congress and place it in the
judicial branch.) Further, it did not impermissibly threaten the institutional
integrity of the Judicial Branch. As such, the delegation was upheld.
Morrison v. Olson
The Court applied the aggrandizement and
encroachment tests concerning the appointment and removal powers of the IC, and
the Court determined that the arrangements – AG can only remove for “good
cause”; IC appointed by DC Circuit after authority from the AG – neither
aggrandized the courts nor encroached upon presidential power.
Summing This Up
Both cases indicate that delegations of power to
administrative officials or administrative agencies do not violate the
aggrandizement or encroachment doctrine of separation of powers.
Specific Limits - The Non-Delegation Doctrine
The non-delegation doctrine states the principle
that Congress may not delegate its legislative power to administrative agencies.
Thus, the non-delegation doctrine forces a politically accountable Congress to
make the policy choices, rather than leave this to unelected administrative
officials. The Court has held that in order to validly delegate authority,
Congress must set forth “by legislative act an intelligible principle to which
the person or body authorized to take action is directed to conform.”
The Height and the Demise of the Non-Delegation Doctrine
In the mid-1930’s, the non-delegation doctrine
reached its height in two key decisions which invalidated New Deal legislation.
HOWEVER, in the more than sixty years since, not a single federal law has been
declared an impermissible delegation of legislative power. All delegations, no
matter how broad, have been upheld. Although the Court says that when Congress
delegates its legislative power it must provide criteria – “intelligible
principles” – to guide the agency’s exercise of discretion, all delegations,
even without any criteria, have been upheld. Undoubtedly, this reflects a
functionalist judicial approach that broad delegations are necessary in the
complex world of the late twentieth century and that the judiciary is
ill-equipped to draw meaningful lines.
Look Back at Mistreatta
In the Mistretta facts, Congress created
the Sentencing Commission and told it to establish sentencing guidelines that
would be mandatory on federal judges. The Court upheld the arrangement. Congress
had instructed the Commission to create uniform sentences for similarly situated
criminals. The Court found that such instruction was an “intelligible principle
. . . sufficiently specific and detailed to meet constitutional requirements.”
Congress could thereafter give the Commission “significant discretion in
formulating guidelines,” and could delegate the power to “exercise judgment on
matters of policy.”
Bicameralism, Presentment and the Legislative Veto
Art. I, §§ 1 and 7 impose a bicameralism and a
presentment requirement on all legislation.
means that every bill – every legislative act – must pass both houses of
Congress to become law.
means that every bill – every legislative act – must be presented to the
President for signature or veto.
The Legislative Veto
Congress created the legislative veto as a check
on the actions of administrative agencies. Essentially, Congress included in
statutes provisions authorizing Congress or one of its houses or committees to
overturn an agency’s decision by a resolution of one house of Congress.
Legislative vetoes also took the form of overturning agency rules by resolution
of both houses of Congress or even by action of a congressional committee. Over
200 federal laws contained legislative veto provisions.
INS v. Chadha
After an immigration judge ruled that Chadha’s
deportation be stayed, Congress, through a legislative veto function, introduced
a resolution opposing the granting of citizenship to 6 individuals, including
Chadha, on the ground that they did not meet the statutory requirements. The
Court, in an opinion by CJ Burger, declared this legislative veto to be
unconstitutional. Burger’s opinion can best be described as a syllogism.
The major premise of the syllogism is that
Congress may legislate only if there is bicameralism, passage by both the House
and the Senate, and presentment, giving the bill to the president to sign or
veto. Burger’s opinion relied on a textual and historical approach, citing
constitutional provisions and quoting from the Federalist Papers.
The minor premise of the syllogism was that the
legislative veto was legislation without bicameralism and presentment. Burger
declared that the action was essentially legislative in purpose and effect. The
effect of the legislative veto was to “alter the legal rights, duties and
relations of persons.” Accordingly, it was legislation, an it did not fit into
any of the limited situations under the Constitution where one branch of
Congress can act alone.
The conclusion thus followed that the legislative
veto was unconstitutional. Moreover, CJ Burger expressly rejected the position
that the legislative veto was necessary to ensure adequate checks and balances.
Justice White wrote a strong dissenting opinion
that emphasized the need for the legislative veto as a check on the broad
delegations of legislative power. He explained that without the legislative
veto, Congress is faced with Hobson’s choice: either to refrain from delegating
the the necessary authority, leaving itself with a hopeless task of writing laws
with the requisite specificity to cover endless special circumstances across the
entire policy landscape, or in the alternative, to abdicate its lawmaking
function to the Executive Branch and independent agencies with no check on that
Once Again – Formalism v. Functionalism
Burger’s majority opinion was highly formalistic.
White’s was functionalist. Burger emphasized the formal structure prescribed in
the Constitution and dismissed the functional concern that the legislative veto
was essential to check administrative power. White, on the other hand, bought
into the functional approach, contending that such approach was necessary and
that the framers could not have foreseen what developments the government would
take. Thus, the formalist approach is too rigid.
Line Item Veto
Under the veto power, Congress controls the form
and content of the legislation presented to the President. Bills typically
contain a variety of provisions; the President may not pick and choose –
legislation is a “take it or leave it” proposition. The Line Item Veto Act gave
the President power to “cancel in whole” three types of provisions signed into
law: (1) any amount of discretionary budget authority, (2) any item of new
direct spending, and (3) any “limited” tax benefit.
Clinton v. New York
President Clinton used this power to cancel an
item of direct spending in favor of New York and a limited tax benefit in favor
of certain agricultural cooperatives. The Court invalidated the Line Item Veto
Act on the ground that cancellation of provisions signed into law amounted to a
partial repeal of the law by the President alone, in violation of the
bicameralism and presentment requirements. The Court rested its decisions on
several grounds: (1) Historically, the veto power was viewed in whole and not in
just parts of bills; (2) This was not similar to the Tariff Act, because it
cancelled an item of spending made by Congress, which was in contrast with
Immunities and Privileges
In order to preserve the autonomy of each branch
of government, the Constitution confers certain immunities and privileges upon
executive, legislative and judicial officials.
The Constitution explicitly confers a limited
immunity from suit on members of Congress.
The Speech and Debate Clause
Art. I, §6 provides that members of Congress
“shall not be questioned in any other Place . . . for any Speech or Debate in
either House.” The purpose for such immunity is to foster uninhibited
legislative debate and to protect legislators from the distraction of defending
suits based on the performance of their duties.
Members of Congress are absolutely immune from
suits (civil or criminal) or grand jury investigation premised on their
legislative acts. Members of Congress may also assert their immunity to protect
the “legislative acts” of their aides. “Legislative acts” comprise everything
that is integral to “the deliberative and communicative processes by which
members participate” in the official business of Congress.
Legislative acts include not only the literal “speeches and debates” but also
voting, committee work, and other official business.
The Privilege from Arrest
Art. I., §6 also provides that, except for cases
of “Treason, Felony or Breach of Peace,” members of Congress are “privileged
from Arrest during their Attendance at the Session of their respective Houses,
and in going to and returning from the same.” Translated into modern parlance,
it is best read as temporary immunity from civil suit during the pendency of
The Constitution does not expressly confer any
immunity upon the President or other executive branch officials, but the courts
have created a limited immunity from suit for both, implied from the
Constitution’s structure and as part of “federal common law.”
Sources of Immunity
The courts have found an implied immunity for the
President in the doctrine of separation of powers. The Supreme Court has said
that absolute presidential immunity for the President’s official
acts is “a functionally mandated incident of the President’s
unique office, rooted in the constitutional tradition of separation of powers
and supported by our history.”
Other Executive Officers’ Immunity
Executive branch officials have long enjoyed
judicially created common law immunity from civil suit for acts performed in the
course of their official duties. However, this immunity is not as extensive as
Immunity from Judicial Process
Neither the President nor other executive branch
officials are immune from judicial process. Thus, they are susceptible to the
court’s subpoena power, both with respect to their testimony and documents in
their custody. If sufficiently justified, the President may be able to protect
the confidentiality of some matters by invoking executive privilege.
Presidential Immunity from Civil Liability Based on Official Acts
The President is absolutely immune from civil
suits for damages based on the President’s official acts. In Nixon v.
Fitzgerald, the Court ruled that the President was absolutely immune for
official actions, and such immunity could not be limited to “particular
functions” of the Presidency, but extended to all “acts within the ‘outer
perimeter’ of his official responsibility.
No Immunity from Civil Liability Based on Unofficial Acts
However, the President does not possess immunity
from civil suits based on his non-official actions.
Clinton v. Jones
Paula Jones, a onetime Arkansas state employee,
sued President Clinton for sexual harassment, charging that he asked her for
sexual favors while he was Governor of Arkansas. President Clinton claimed
temporary immunity from suit during his incumbency. The Court disagreed.
Presidential immunity, an implied aspect of the separation of powers doctrine,
exists only to permit the President to perform his official actions without fear
of suit. It has no application to the President’s unofficial conduct. Though not
constitutionally required, a trail judge has “broad discretion to stay
proceedings” to minimize “interference with the President’s duties.”
Non-Presidential Executive Immunity from Civil Liability - Official Acts
Executive officials subordinate to the President
enjoy a qualified immunity, limited to actions taken in good faith in connection
with official duties. Executive officials have good faith immunity – for
official actions taken in good faith – and such immunity is proven by showing
that the executive office had a reasonable basis to believe that his or her
action was lawful.
Immunity from Criminal Prosecution
It has not been decided upon whether the
President enjoys any immunity from criminal prosecutions. Some argue that
impeachment is the sole remedy; others argue that there is probably no immunity
from criminal prosecution. NOTE: The issue has never been adjudicated, so we
have no precedent to go on.
Unlike immunity from liability, executive
privilege is an evidentiary privilege held by the President, limited in scope,
that can be raised to protect presidential confidentiality in wither judicial or
legislative proceedings. The privilege is constitutionally mandated, inferred
from the Constitutional structure in order to protect the President from
“encroachment” by either Congress or the courts.
United States v. Nixon
Facts: President Nixon recorded his Oval Office
conversations and stored the tapes for later reference. Nixon himself became the
subject of a criminal investigation into a conspiracy to obstruct justice,
centering on his involvement in al alleged “cover-up” of the Watergate burglary
(in which the Democratic HDQ had been burgled by agents of the President’s
re-election campaign). In the course of the criminal proceedings against Nixon’s
top aides, a federal court issued a subpoena to Nixon to produce certain of his
tape recordings. Nixon asserted that the President was immune from all judicial
process and that he enjoyed an absolute executive privilege to withhold
information he deemed confidential. The Court rejected Nixon’s claims. The
Court’s analysis rested on three major points:
No Immunity From Judicial Process
The Court held that it is the role of the Court
to decide whether the President has executive privilege and, if so, its scope.
Nixon claimed that the Constitution gave the president executive privilege and
that the president alone determined its reach. The Court flatly rejected this
contention, falling back on and unequivocally reaffirming the holding of
Marbury v. Madison, that “it is emphatically the province and duty of the
judicial department to say what the law is.”
Need for Executive Privilege
The Court then recognized the existence of
executive privilege. The Court recognized that the need for candor in
communications with advisors justified executive privilege; indeed, the Court
said that a need for confidentiality was “too plain to require further
discussion.” Although Art. II of the Constitution does not expressly grant this
power to the president, the Court said that “the privilege can be said to derive
from the supremacy of each branch within its own assigned area of constitutional
duties. Certain power and privileges flow from the nature of enumerated powers;
the protection of the confidentiality of the Presidential communications has
similar constitutional underpinnings.” THUS, in this case, the Court is
recognizing executive privilege as an inherent presidential power.
Executive Privilege Not Absolute: Yields to Countervailing Interests
Third, the Court held that executive privilege is
not absolute, but rather must yield when there are important countervailing
interests. The Court explained that “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
from judicial process under all circumstances.” In the case, the Court balanced
Nixon’s need for executive confidentiality (mostly avoidance of political
disaster) versus the criminal justice system’s need for probative evidence of
crime or exculpation (essential to the guarantee of a fair trial), and concluded
that executive privilege was not appropriate in this scenario.
Scope – Open Questions
The precise scope of the qualified executive
privilege is undetermined, but at least the following principles apply:
The privilege is strongest when
revelation of a state secret (highly sensitive information critical to national
security) is sought. The courts will likely inspect the evidence in camera –
privately – before ruling.
The privilege is weakest when a
criminal defendant seeks information (not a state secret) to bolster his
The privilege extends to all civil
cases and it is probable that civil cases are on the same footing as criminal
The President may assert the
privilege with respect to presidential communications or documents even after
The availability of executive
privilege in response to congressional subpoena is highly controversial, but
likely subject to judicial resolution. Instead, in this situation, impeachment