• Iredell: Natural justice is a matter of opinion and shouldn't be enforced by courts.

• Sovereignty from people, not states
• N&P = implied powers
• Taxation power = power to destroy

• Congress can require Justices to ride circuit

• Judicial review established

• Johnson C: Congress can't interfere w/  interstate commerce in any way

• (Similar laws allowed under Taney)

• Thompson C: No dormant commerce clause - Congress must act
• Story D: State's can't interfere w/ interstate commerce in any way

• Local: local issue & legit. police power
• Commerce construed narrowly = can't govern laborers

Modern: from Steward Machine & Hughesi

• Balance: local benefit vs. effect on interstate commerce
• Alternative means available?
• If state is actor it can discriminate against out of state businesses
• If state law is facially discriminatory to interstate commerce it is struck down per se

• Congress has plenary commerce power 

• Commerce: commercial intercourse: two way relations between businesses; includes navigation.
• "Among the states": any commercial act that affects multiple states.

•  Balancing test w/ state police power (commerce isn't all power - states can act if it isn't repugnant/too much interference w/ commerce)

• Abandons too much/repugnancy test
• Courts had to classify it as either local or national

• Baldwin D: Congress can regulate slave trade, but not to the point of abolishing it.

• Interstate commerce vs. local activity still used

• Commerce power = plenary power regarding regulation of anything shipped across state lines

• Fuller D: If purpose of law isn't regulation of commerce shouldn't be allowed

• Interstate or local activity
• Purpose: regulate commerce (shipping across state lines) or police power
• Is action barred by 10th Amendment

• (Baker's hours case - not dangerous trade)
• Law infringes on right to contract, protected by substantive due process of 14th Amendment
• Harlan D: Deference to legislatures on policy
• Holmes D: Constitutionality isn't based on social isses/political questions

• uphold women's labor law
• 3 exceptions to substantive due process:
  
  • Sui jurists (women, children, incompetents)
  • Unreasonably dangerous situations
  • Clothed w/ public interest
    • RR & Innkeepers

• Can regulate shipping if shipping is harmful
  • categorical analysis: commerce OR police power
• Dissent: shouldn't consider intention of law
• Prudential thought: This decision creates prisoner's dilemma

• uphold milk price fixing

•  Due Process = not unreasonable
• Law (regulation) must be related to purpose
• Deference to legisalture

• Weakening of laissez faire

• Police Power includes economic welfare
• Compromise between individual contract rights and public welfare (prudential)
• Cardozo C: Laissez faire may not work w/ modern economy

• Deference to legislature on policy issues
• Legislature doesn't need to compile evidence
  • (Think Lopez)

• Tax incentive to pay into state unemployment
• Deference to legislature
• Doesn't violate 10th Amendment

• Check class notes

• Beginning of rational basis test:
  
  • Commerce is anything that moves in stream of commerce 
• Close & substantial relation: anything that is closely related to interstate commerce can be governed. 
• Congress can govern labor organizations/collective bargaining

• Stream of commerce
  • Close and substantial relation to interstate commerce is sufficient to be governed by commerce power

• Element of substantiality (beginning of effects test)
• Chanels of commerce
  • Regulate wages/hours by governing shipping
• 10th Amendment is a truism

• Substantiality
• Rational basis

• Aggregate effects test

• Dissents
  • Harlan: deference to legislature on policy
  • Cardozo: Laissez faire perhaps not fit for modern economy

• Sui jurists
• Unreasonably dangerous situations
• Clothed in public interest (inns, RR)

• Due process = law is not unreasonable, arbitrary
  • Law must be related to its purpose
• Deference to legislature

• State police power includes economic welfare
• Must be a rational compromise between individual (contract) rights and public welfare
• Prudential argument: states must have power to protect economic welfare

•  
  • Deference to legislature on policy issues
    • Harlan's Lochner dissent

• Might test:
  
  • If there is any rational purpose/basis for law it is constitutional
• Only unconstitutional if:
  
  • violates text of Constitution
  • violates principles of democracy
  • discriminates against a discrete and insular minority
    • race, religion, national origin
  • (Modern: violates right to privacy)

• Minimum rationality test for due process continued in Warren/Burger Courts

• Might test:
  
  • If there is any rational purpose/basis for law it is constitutional
• Only unconstitutional if:
  
  • violates text of Constitution
  • violates principles of democracy
  • discriminates against a discrete and insular minority
    • race, religion, national origin
  • (Modern: violates right to privacy)

• If involved in channels of commerce it is commerce
• Commerce power may overlap state police power

• Beginning of effects test
  • Congress can prohibit shipping goods made in poor labor conditions
• 10th Amendment is a truism

• Court can ignore notions of policy from previous courts

• Aggregation of action = slippery slope

• Minimum rationality test for equal protections

• Channels (interstate highways, seaways, telephone lines, air corridors, internet lines)
• Instrumentalities (phone, computer)
• Aggregation test

• Minimum rationality test for due process
  • Might be an instance that benefits cosumer

• Can prohibit hotel's discrimination

• Can prohibit restaurant by interstate's discrimination

• Stream of commerce and substantial effects test (sell less, obstruct travel)

• Douglas C: should use 14th Amendment

• Most extreme
• Black D: should be 14th Amendment

• Loanshark in NY
• Loans are commerce

• Garbage is commerce

• minimum rationality
• upheld proposition tax law

• Replaces aggregation w/ Subtantial relation to interstate commerce
  • Must be economic activity
  • Must have jurisdictional element (cross state lines)
  • Congress must present findings supporting  above prongs
• Dissent: ignores precedent, moves backwards

• Add's 4th Prong to Lopez test:
  • Economic activity
  • Jurisdictional element
  • Findings necessary
  • Proximate Causation on between activity regulated and effect on commerce
    • Ask Kyle and Ricky about this

• No jurisdictional element
• No proximate causation
• No findings (of diversio - Thomas D)
• Only spilloverr effects on interstate marijuana trade
• O'Connor D: guts Lopez
• Gedicks: all that is left of Lopez is effects test of spillover into interstate commerce.
  • Economic activity that has the potential of affecting commerce in other states
• Scalia: Majority: only need findings when economic activity is visible to naked eye

• Strict
• spending must be tied to enumerated

• Broad
• spending power encomases anything regarding "promotion of the general welfare"

• Spending on RR is authorized under commerce clause

• Categorical mode of analysis
  • Police Power OR Taxing/Spending Power

• Resisting Federal Police Power

• Tax to influence behavior = police power

• Transitional Case
• Adopts Hamiltonin view
  • Still Good Law Today
• General welfare spending is limited by 10th Amendment
• Spending power can't be used to establish coercive legislation

• Refunding of payroll tax as incentive is okay
• Deference to legislature on taxing/spending
• Doesn't violate 10th Amendment

• Dole Factors
  • Must be in pursuit of general welfare
    • (Hamiltonian view)
  • Clear Choice Offered to the States
  • Nexis test - related to federal interest sought
  • Law doesn't violate other part of the Constitution
• O'Connor D: drinking age is too remotely related to highway funds

• Levy (article): Freedom of Press and Speech didn't include libeling government, just not seeking permission to publish
• BUT many thought it did at the time
  • Rights were expanding

• BoR doesn't apply to the states

• Fugitive slave clause is self-executing by slave-holders and Congress
  • Right of immediate ownership as long as it doesn't disturb the peace.
• States don't have to aid slaveholders
• Taney C: States do have to aid slaveholders

• AAs cannot become citizens
  • Textual: 3/5, fugitive slave clauses
  • Historical/original: Declaration of Independence didn't include AAs
• Congress can't ban slavery in territories
  • MO compromise voided
• Due Process of Law:
  
  • Procedural due process framework laid

• 14th prohibits discrimination based on race
  • Can't outlaw black jurors
• Right to race free process (jury by peers) is a civil right
  • Focus on results that show disparate impact on racial minority
• Field D: 14th doesn't protect political or social rights

• State Action Doctrine: 14th only authorizes corrective actions against state legislation
  • Doesn't include executive or judicial acts
• 13th gives primary authority regarding badges/incedents of slavery
  • b/i construed narrowly - leading back to slavery
• Harlan D: Jim Crow laws are b/i of slavery

• Police power: reasonable regulation of private interaction (still good law)
• 13th: legal distinction in statute isn't b/i of slavery
• 14t: Segregation ok w/ priv./immun., procedural due process, equal protections
  • Seperate but equal
• Harlan D: Color-blind Constitution

• Holms: court is powerless to help black voters
• External view: concern w/ Court's legitimacy

• Citizenship to everyone born in U.S.
  
  • Overrules Dred Scott
  • State: live w/ intent to remain indefinately
• Privileges and Immunities:
  
  • State protect natural/fundamental rights
  • National power limited to:
    
    • access to ports, seats of gov.
    • rights on high seas including access
    • habeas corpus
    • Peaceably assemble
      • Incorporates 1st Am?
• Field D: Natural/fundamental rights guranteed to all

• Apply BoR eminent domain to states

• Right to K applied to states

• Incorporates 1st Amendment rights to states

• Total incorporation

• Fundamental fairness guaranteed w/ 14th Amendment may overlap BoR, but any overlap is incidental

• Selective Incorporation
  • Everything incorporated but 2nd, 3rd, parts of 5th, 7th

• 15th Amendment "remedies" include prophylactic (preventive/deterrent) authority
• Deference to legislature - minimum rationality test
  • Literacy tests in areas of past discrimination might have a dipsparate impact on a minority

• NY literacy tests?
• Alternative Holdings
  • Remedial Powers under minimum rationality test
  • Substantive Constitutional Interpretation Power:
    • One way ratchet rule: Congress can expand Court's definition of rights, but not retract it.
• Harlan D: only Courts can define rights
  • structural
• Sager (academic):
  • Congress can overprotect rights to ensure protection in grey areas.

• Congress can define badges and incidents of slavery
  • broad interpretational power expressly given by Court

• Adam's orders based on interpretation didn't protect captains
  
  • Little v. Barreme

• Jefferson: President can violate Constitution if it's really in the public interest
• Jackson: Disagrees w/ Marbury, all branches have interpretive powers
• Lincoln: President can review constitutionality via appointing Justices that will overturn decisions he does't like.
• Delinger: President can independently interpret w/o bounds of Court decisions.

• Substantive interpretation: Congress has substantive power to define
  • Katzenbach 1 way rachet
  • X violates the 14th Amendment
• Remedial: Congress can prevent/deter OR correct violations of the Reconstruction Amendments. But not define the violations: Courts define substance:
  
  • City of Boerne limiting 1 way rachet
  • If it satisfies congruent and proportionality it is ok w/i remedial powers
  • Congress used to have only remedial powers, but now "remedial" means preventive and remedial powers.

• Strikes down RFRA
• Congress does not have substantive power of constitutional interpretation
• Test
  • Proportionality (cannot overenforce too much)
  • Congruence (law must address problem)
    • Morrison fails this

• Family Medical Leave Act passes Proportionality and Congruence test
  • is "responsive to, or designed to prevent unconstitutional behavior"
• Pryphylactic legislation

• Dec. of Ind.gives people the right to resume sovereignty.
• Secession is legal

• Secession is not legal
  • Must have a full-on revolution

• Union is perpetual
• No government ever allowed for its termination.

• Checks governmental powers - limits commerce/spending powers that would exist otherwise.

• Limits on commerce power are politically enforceable - not judicially.

• Tax refund to encourage state unemployment doesn't violate 10th Amendment
• Tautological view of 10th Amendment (truism)

• 10th Amendment is a truism
• Commerce power may overlap police power
  • Can fix minimum wage

• Can't regulate states as states or impair a state's integrity or abilty to function in federal system.
• Violation of 10th Amendment
• Brennan & Stevens D: Should be enforced politically

• Overrules National League of Cities
• Balancing test of value of government action was unworkable.

• Upholds weak limit on state bonding
• 10th Amendment protections only political (from Garcia)

• Rehnquist C: Garcia doesn't say 10th Amendment only politically protected

• Anti-commandeering of state legislatures
• Must give states a choice to act or be acted upon: can't force action.

• Anti-commandeering of state executives
• Unfunded mandates = unconstitutional
• BUT state judges are comandeered all the time
• Political accountability arguement

• Declaratory Theory of 11th Amendment
• Congress can't allow suits against states in federal courts.

• "The" Executive (inherent)
  • Hamilton, "vesting clauses limit legislature, but not the executive.
  • Limit is consistency of power sought w/ overall Constitution
• Commander in Chief
• Take Care Clause

• President can act to maintain status quo, but then must seek congressional ratification.

• President has power to blockade even if formal war has not been declared.
  
  • Textual: CinC, Take Care
  • Inherent: English monarch precedent
  • Pragmatic: Single Executive best fit to make war-time decisions
  • Stautory: authorization of force
• Minority: need an official declaration of war for war powers to kick in.

• Only Congress can suspend habeas corpus
• Lincoln: President obliged to violate one law if it saves the nation.
  • Not clearly a legislative power

• Used war powers
• Only affected "fields of battle" (arguably)
• Lincoln: war powers only checked politically
• Curtis disagreement: National government can never interfere w/ state property law.
  • President can't make/repeal law - only enforce it.

• Martial law can be declared when:
  • courts are closed on a field of battle (inherent authority)
  • Congress authorizes it.
• Dissent: only when Congress authorizes it.

• Black Majority:
  • No inherent executive power to national steel mills
  • Too far removed from CinC powers
  • U.S. not a theatre of war = a domestice issue for Congress
    • Needed to go to Congress
• Jackson C:  Good Law Deference to President based on classification
  • Category 1: President has some authorization from Congress (Zenith)
  • Twilight Zone: Congress is silent/indefferent
  • Category 3: Congress has denied authority (Nadir)
• Frankfurter C: Congress denied power
  • Just because Pres. can't respond in an emergency doesn't mean government can't.
•  Douglas C: Unilaterally raise taxes argument.
• Burton C: Like Frankfurter
• Clark C: Pres must follow Congress if procedure is prescribed.
• Dissent:
  
  • Extraordinary times w/ communism
  • President went before Congress as soon as he issued the order
  • Congress hasn't forbidden authority.

• President must submit report to Congress w/i 48 hours of deployment and draw down if doesn't recieve authority in 60 days.

• Strict Scrutiny Test:
  • Suspect classifications based soley on race are subject to strict scrutiny.
    • Weight of government interest
    • Least restrictive means available
      • Easier for D to win.
• Uphold detentions: deference to military leaders.
• Jackson C: Based on War Powers, not strict scrutiny test

• O'Connor Pl:
  
  • Congress authorized detention by force authorization.
  • Due Process owed: notice of charge, opportunity to contest, neutral decisionmaker.
• Souter C:
  
  • Congress didn't authorized detention
    • Need a clear statement
• Scalia D:
  
  • Congress must suspend habeas corpus or full criminal procedural righs given.
• Thomas D:
  
  • President has inherent power to detain.
  • Good faith acts w/ some reasonableness should not be reviewed judicially.

• Sidestepped issue by claiming there wasn't standing based on where he filed.

• Inherent "The" Executive

• Jones Maj:
  
  • Indictment is a shield
  • Prosecutor has complete discretion in preparation and execution of indictment
• Rives D:
  • Indictment is a shield, but may be ordered by a grand jury.
  • Prosecutor must prepare indictment if grand jury requests.
  • Prosecutor can file motion to dismiss
• Brown C:
  
  • Prosecutor must create indictment, but doesn't have to sign it.
    • Middle ground
    • Prosecutor has full discretion as to execution.
• Widsom C: Same result as majority
  • Executive best suited to make policy decisions.

• executive/national interests
  • military or diplomocay

• Undifferentiated/broad claims
• executive confidentiality vs. need for evidence
• Used more and more after Watergate & Vietnam

• Rule of law and need for evidence outweighs executive privilege.

• Still debated.

• Especially after he has formally delegated power (Exec. order)

• President nominates
• Senate confirms
• President appoints

• Congress authorizes President, Court, or head of department to appoint an inferior officer.
• Designated person makes appointment

• Independen Counsel is inferior even though AG can only remove him w/ cause
  • AG appoints him
  • Has limited duties/jurisdiciton
• Scalia D: Must have removal power, and removal w/ cause is not it.

• Subject to supervion and direction by principal officer
• Subject to removal by principal officer (w/o cause)
• Policy: transparent political accountability
• Souter D: wants to maintain Morrison

• Burger Maj: One house veto unconstitional
  • Presentment Clause
    • Textual: guaranteed opportunty to veto legislative acts
    • Structural: bicameral: check on legislative powers, ensures deliberation
• Powell C: Private law was a judiciary act.
  • Textual: Bill of attainder
  • BUT what about private bills?
• White D: Both legislative and executive have participation in decision = constitutional
• Rehnquist D: Severability: Congress wouldn't can created law w/o oversight powers - regardless of what boilerplate severability clause says.

• Textual: Supremacy Clause, N&P Clause
• Inherent power
• Pragmatic: states can't regulate migratory birds.