The first part will be one survey question and one fact-pattern question on the Commerce Clause material that we have studied since the last mid-term. The second part will be one or two questions, fact-pattern and/or survey, on all of the cases that we have studied this year, including the cases on justiciability—standing to sue, jurisdiction, and so on—that we read early on. The questions will not be about the material in the Primer, although you may want to review the material about justiciability if you are rusty on it. I will give you some choice of questions in the second part of the exam.
Please read Edwards v. California, Baldwin v. Fish and Game Commission of Montana, Reeves v. Stake. The first two cases reflect the close connection between Dormant Commerce Clause law and Fourteenth Amendment Privileges and Immunities Clause law. The Baldwin case should be compared with either Hughes v. Oklahoma or Maine v. Taylor. What common features do these three cases have?
Under the Dormant Commerce Clause, some students have drawn a distinction between cases in which a state seeks to discourage export of its products or resources to other states and cases in which the state discourages importation of products or resources into the state. The two minnow cases—Maine v. Taylor and Hughes v. Oklahoma—are examples of this, as are some of the milk regulation cases (contrast Baldwin v. Seelig to Hood v. DuMond, known to you as the "Smith and Smith Co." case).
The third assigned case (not counting either Maine or Hughes, which I am also asking you to review) is a further wrinkle in the Dormant Commerce Clause-State police powers tension that we have been looking at the last two classes. Reeves, following an earlier case—Hughes v. Alexandria Scrap—adds another factor to consider when determining whether a state law violates the Commerce Clause. What is it? Suppose the Smith and Smith Co. milk firm was an agency of the New York government. Different result in the outcome?
Tuesday's class will be based on the handout, "A Milk Case," that I handed out. (Yasin: a copy is in the rack on my office door.) Please read the following cases as background: Baldwin v. Seelig, Dean Milk v. City of Madison, Henneford v. Silas Mason, Great Atlantic and Pacific Tea Co. v. Cottrell. These are all milk cases (there are others cited in the list of cases) that may be relevant to your argument. I also want you to read Pike v. Bruce Church, one of the most cited cases for the general rules applying to Dormant Commerce Clause cases. Though it is not a milk case, it may be useful.
Please read South Carolina State Highway Department v. Barnwell Bros., Southern Pacific v. Arizona, Bibb v. Navajo Freightlines. As I explained in class, I will distribute a fact-pattern question based on these three cases, and ask you to work out your arguments in class. I will treat the exercise as a quiz, expecting each of you to have read the assigned cases and each of you to participate in the formulation of the arguments. If you do, I will readily give you full credit (10 points) no matter how good your arguments are, but if I get the impression that you did not read the cases or are not participating in order to let other students do the work in clas, I will give you a zero. "All or nothing at all," as Frank Sinatra used to say.
Four for Tuesday: Heart of Atlanta Motel v. United States, Daniel v. Paul, United States v. Lopez, United States v. Morrison. The Katzenbach v. McClung case goes with the Heart of Atlanta Motel and Daniel v. Paul cases to form a nice little trilogy, if only we had the time.
Note the late amendment to the assignment below
This week and next Tuesday, we will follow the meandering course of the development of the national Commerce Clause power. The nineteenth century witnessed the early attempts by Congress to regulate aspects of commerce in America's still largely agricultural economy. During the latter part of the nineteenth and the early twentieth century, however, Congress attempted to regulate more and more of the increasingly industrial national economy. The Court's interpretation of the Commerce Clause in certain cases was more narrow and restrictive of national power, culminating in several famous decisions that invalidated New Deal legislation intended to deal with the Great Depression. In 1937, President Roosevelt proposed his "court-packing plan" in the form of the Judicial Procedures Reform Bill of 1937, which was not enthusiastically received, even by many Democrats. The bill proposed allowing the President to appoint one new, younger judge for each Supreme Court justice who did not retire or resign within six months after reaching the age of 70 years, up to a limit of fifteen Supreme Court justices. (The bill also allowed up to forty additional lower federal judges to replace older judges.) Fortunately for Roosevelt, one of the nine old men on the Court, Mr. Justice Roberts of Pennsylvania, had a change of heart regarding the scope of the Commerce Clause and thus the federal government's power to regulate the economy, and his "switch-in-time . . . saved nine," namely the nine-member Supreme Court structure that had existed since 1869.
On Tuesday, we will look at some of the earlier cases that contributed to an expansive view of national power under the Commerce Clause: The Daniel Ball, Houston, East and West Texas Railway Co. [The Shreveport Rate Case], and Stafford v. Wallace. On Friday, we look at some of the cases in which the Court applied a narrower view of the national Commerce Clause power: United States v. E.C. Knight Co. [The Sugar Trust Case], Hammer v. Dagenhart [Child Labor Case], Bailey v. Drexel Furniture Co. [Child Labor Tax Case], Carter v. Carter Coal. Next Tuesday, we will study some of the cases that marked the turn to a broader view of the Clause . . . and its limits: National Labor Relations Board v. Jones and Laughlin Steel, Steward Machine v. Davis, Wickard v. Filburn, Gonzales v. Raich.
If you have not yet read the cases for Friday, please read Bailey v. Drexel Furniture instead of Carter v. Carter Coal, as originally assigned. (If you have already read Carter, you need not also read Bailey: we discuss both in class.) Bailey and Steward Machine, assigned for next Tuesday, are federal taxation cases and are two of the cases related to the federal power of taxation, an area that we decided to look into before the end of the semester. I will try to finish your exams by Friday, but I must finish the POL 210 exams first (they have been waiting longer than you), so I cannot promise you the exams will be finished. If I cannot finish them by Friday, I will absolutely have them for you by Tuesday. Promise.
The E.C. Knight, Hammer v. Dagenhart, Bailey v. Drexel Furniture, Adkins v. Children's Hospital, and Carter v. Carter Coal cases, which applied a restrictive interpretation of the Commerce Clause power of the national government, were decided before, during, and after the Court was upholding a broad Commerce Clause power in other cases. In other words, they do not constitute a particularly distinct "era" of constitutional history. Yet they do distinguish the first third of the Twentieth Century from the rest of American judicial history. Note how the Court in these cases both relied on and departed from the broad principles of Gibbons v. Ogden. Note also how the Court distinguished "commerce" from mining, manufacturing, and production generally. The Court also distinguished activity which had a direct effect on commerce (which activity was regulable by Congress) from that which only had an indirect effect (which was not regulable by Congress).
That the Court, or a majority of its justices, in these national Commerce Clause power cases was approaching them with a particular attitude about the proper relationship between business and government regulation of business is clear when we also consider cases in which state governments tried to enact the same kine of regulations that the federal government was enacting—regulations regarding wages, hours, and working conditions and labor union membership. The argument that often succeeded in persuading the Court to strike down the state legislation was the "freedom of contract" or "liberty to contract" argument (not to be confused with the Contract Clause of Art. I, Sec. 10 of the Constitution) identified with the Lochner v. New York case. The switch in time of 1937 that saw the Court take a fundamentally different approach to the national Commerce Clause power also marked a fundamental change toward the constitutional doctrine of freedom of contract.
Commerce Clause: Powers of the National Government. We begin the last third of the semester examining the source of most federal legislation in the United States: the Commerce Clause. The Clause is deceptively simple: "The Congress shall have Power . . . To regulate Commerce with Foreign Nations, and among the several States, and with the Indian tribes." Art. I, Sec. 8, Cl. 3. Practically each word in this clause had to be interpreted and led to significant consequences. The question of whether the power to regulate commerce resided exclusively in the national government or whether the states also possessed authority to regulate commerce was a significant issue debated by nationalists and champions of states' rights. The benchmark case to begin our study is Gibbons v. Ogden, in which the Federalist-nationalist majority on the Court sought to maximize national authority under the Clause. Is the regulatory power exclusively possessed by the national government? The subsequent cases of Willson and Cooley reflect the limits to national power that the Court was forced to acknowledge. Please read Gibbons, Willson v. Black-Bird Creek Marsh Co., Cooley v. Board of Wardens.
Two essay questions: one survey question on the cases addressing the various categories of powers of the national government and one fact-pattern or hypothetical question that focuses on a particular issue that we have studied over the past month. For the survey question, you should be familiar with the different categories of powers—implied, inherent, and so on—that we have studied and with one or two representative cases for each type of power. Use the commentary I provided on this assignment page to provide the framework for the question. The question will require accurate references to the rules of at least half a dozen cases, cited by name or by brief description (e.g., the "the national bank" case).
The fact pattern question will be similar to the ones that we have worked on in class and will require knowledge of only one or two particular cases. Use the link on the main web page to "Fact Pattern Questions" (right under "Constitutional Law Case List") to tell you exactly how to approach such questions. For each kind of question, reference to the rules and the distinctive facts of the cases you cite is the most important factor. Learn the rules of the cases!
In preparing for next Tuesday's exam, I want to assign the cases that we need for the exam and make sure that each of the topics that we discussed is represented adequately by court opinions; thus, the cases for this week cover a wide area. Please read the following cases for this week at the usual rate of three per class. We will discuss them in the same order. (We will begin on Tuesday with the previously assigned Youngstown or "Steel Seizure" case.
Re: Myers v. United States, Humphrey's Executor v. United States, Bowsher v. Synar, Morrison v. Olson, Mistretta v. United States, Clinton v. City of New New York.
These cases present one of the main issues of separation of powers: the problems relating to the appointment and removal of government officials and, in particular, the nature of the officials' tasks. Myers and Humphrey's Executor set the stage for understanding the constitutional requirements for appointing and removing officials and for understanding the transition to the administrative state in twentieth century American government history. Bowsher and Morrison should be read in light of the two older cases. In each case, ask what the nature of the official's task is and what constitutional appointment and removal requirements regarding such an official are.
Particularly noteworthy are White's dissenting opinion in Bowsher and Scalia's dissent in Morrison. Justices White and Scalia seemed to be in complete dis-agreement regarding the requirements of separation of powers doctrine. Although their respective tenures on the Court overlapped only a few years (Scalia joined the Court in 1986; White left the Court after thirty-one years in 1993), they disagreed on all of the major separation of powers cases decided while they served together, and Scalia's comments about cases decided before he joined the Court indicate that he and White disagreed on those cases as well. Indeed, Scalia's resolute defense of his understanding of the constitutional principle of separation of powers makes his dissent in Clinton v. City of New York, which we shall look at next time, particularly intriguing. The dissents of both justices, in those cases in which they did dissent, provide valuable material for an understanding of the two principal approaches to separation of powers taken by the court in the twentieth century.
Three other cases (Weiss v. United States, Ryder v. United States, Edmond v. United States) examined the constitutional status of the judges on various Courts of Military Review. The Nguyen case similarly examined the status on the territorial United States District Court for the District of Guam.
The two cases that I would like you to read for Friday are Reid v. Covert and Youngstown Sheet and Tube v. Sawyer. In Youngstown, pay particular attention to the concurring opinion of Justice Jackson. In both cases, identify the rule that the Court relied upon for its holding—that is, its answer to the constitutional issue presented.
War powers. The Youngstown, Preciat, Hirabayashi, and Korematsu cases, as well as the post 9/11 cases of Hamdi, Hamdan, Rasul, & Boumedienne cases are often referred to as "war powers" cases, even though they present other significant issues as well. The overarching issue running through the older cases is the question of whether the defense of national survival justifies violations of the letter of the Constitution, particularly violations of the constitutional rights of individuals. Questions arising out of disagreements between the Congress and the President are usually treated as non-justiciable political questions (see, for example, Dellums v. Bush).
The question of whether the national government has extra-constitutional emergency powers is closely related to the war powers issue. The case of Home Building and Loan v. Blaisdell, 290 U.S. 398 (1934), arising out of government action to alleviate some of effects of the Great Depression of the 1930s, is the most famous representative of this body of case law. Recent economic conditions in the United States and Europe brought this case and the general issue back into focus.
As I mentioned in class, I am asking you to read four cases for Tuesday: J.W. Hampton v. United States, A.L.A. Schechter v. United States, Curtiss-Wright Export Corp. v. United States, United States v. Belmont. Please read them in that order. Identify the constitutional issues/questions in each case, the holdings, and the rules or principles that the Court apparently relies upon.
These cases might seem at first to cover two different topics—delegation doctrine and executive agreements—but, as cases often are, they are tied together in non-obvious ways.
The J.W. Hampton case introduces us to the judicial separation of powers doctrine through one of its aspects: delegation doctrine. What power did Congress delegate to the President in the Tariff Act? What was the challenge? Specifically what is the rule regarding what Congress may and may not delegate to the President?
In Schechter, what did Congress delegate? How did the delegation in Schechter measure up against the rule in J.W. Hampton?
The famous Curtiss-Wright case is also a delegation doctrine case, but it provided Justice Sutherland with the opportunity to articulate his doctrine of inherent power or sovereignty. The term "inherent power," when used narrowly as a label for a specific constitutional doctrine, apples to this doctrine of sovereignty. Was the delegation by Congress valid in this case? Why or why not? Was the Hampton rule applied here? Why or why not?
Executive agreements are agreements made between our executive officer—the President—and other countries. From the perspective of international law, executive agreements are treated as treaties; they bind our nation as if we entered into a treaty with a foreign country. From the perspective of domestic law, there are some significant differences between treaties and executive agreements. Incidentally, executive agreements are not a new phenomenon. Our first administration entered into them in the 1790s, and they far outnumber the treaties to which the United States is a party. Belmont discusses the authority of our government to enter into executive agreements and also their relation to state law. How is the rationale in Belmont tied to the rationale in Curtiss-Wright?
Please work on the argument sheet that I handed out in class (extra copies in the rack on my office door). Also, please read the treaty cases Whitney v. Robertson, and Missouri v. Holland. Next week we will look at the "delegation doctrine" cases and at executive agreement cases.
We will complete discussion of the Vuitton et Fils hypothetical that we began on Friday.
Please read Gravel v. United States, United States v. Nixon, Harlow v. Fitzgerald, and identify the constitutional issues, the Court's holdings, and the rules or principles relied upon by the Court as we have been doing the past few classes. Other related cases are listed on the Constitutional Law Case List.
Privilege and Immunity. These cases are about privilege and about immunity. Privilege is the right to withhold information from a government agency; that is, it is the right of someone who would otherwise have a duty to provide information to a government official (judge, congressional committee, prosecutor) to withhold information from that official. (The official may be said to have a right to obtain the information.) The party with the duty to provide evidence is often a party to, or a witness in, litigation or a witness before a congressional committee or subcommittee. The roots of executive privilege go back to George Washington’s refusal to give the House of Representatives information about his instructions to John Jay that led to the Jay Treaty with England. Privilege excepts one from the duty to testify. Typically, privilege will be asserted when the information is demanded of the witness at trial or in a congressional hearing, or when challenging (moving to quash) a subpoena that requires the witness to appear and be questioned or to appear and bring materials (a subpoena duces tecum—"dukas teekum") on the grounds that the information sought is privileged. Thus, a criminal defendant has the right not to answer questions about whether he committed the crime—the Fifth Amendment privilege against self-incrimination. There are many other forms or rules of privilege as well, but they are all narrowly construed by the courts because they run counter to the adjudication policy of full and open inquiry into the truth.
Privilege at law should not be confused with immunity. Immunity is protection from liability, either criminal or civil, and again, there are a number of different rules of immunity. If someone has immunity, that individual cannot be prosecuted or sued. The breadth of an individual's immunity may vary; that is, an individual may be immune from suit or liability for one or two causes of action arising out of a particular transaction or may be immune from liability for any suit arising out of the transaction.
Having immunity does not entail having privilege, and vice versa. Thus a criminal suspect who does not have to answer questions about whether he committed the crime (5th Amendment privilege) may still be convicted of the crime on the evidence of others (no immunity). Likewise, one might have immunity from suit but still be required to provide information about the underlying transaction.
Which of these situations applies to the figures in the assigned cases? That is, which cases involve immunity, which cases involve privilege, and which cases involve both? What are the rules of privilege or immunity that the court relies upon in each case? What is the rationale for each rule? Underline or highlight the rule(s) that you identify for each case.
Please read McGrain v. Daugherty, and In re Neagle (also known as Cunningham v. Neagle). Follow the excerpting directions on the Constitutional Law Case List. Come to class prepared to tell me the questions, holdings, and rules of these cases.
Incidental or Auxiliary Powers. These two cases, together with Young v. United States ex rel Vuitton et Fils, discuss what may be called "incidental" or "auxiliary," as opposed to "implied" or "inherent" powers of government institutions—the Congress, the executive, and the courts. The rationale for these powers is similar to the McCulloch rationale for implied powers, but the term "implied powers" is usually applied specifically to the powers of Congress under the Necessary and Proper Clause of the Constitution. "Inherent power" has come to refer to the doctrine of the sovereign powers of our national government and any national government as explained by Justice Sutherland in his majority opinion in Curtiss-Wright. By contrast, incidental powers relate to what the institution (Congress, the President, the courts) can do in order to perform its basic function—legislating, executing the laws, or adjudicating, respectively. It may do that which is necessary and appropriate to perform its constitutional function.
Well, that's over with! I'll hand back the exams on Friday the 14th.
We now begin the main part of the course: studying Supreme court opinions that interpret the constitutional language on governmental powers and, in the last month of the course, the Commerce Clause. I am assigning three cases for Friday: McCulloch v. Maryland, South Carolina v. Katzenbach, City of Boerne v. Flores. All of these cases (and the cases we will read throughout the rest of the semester) are on the Constitutional Law Case List. As I explained in class, I have edited many of the cases so that you do not have to read the whole opinion. The pages you must read are indicated in the Constitutional Law Case List citations of the assigned cases. If no particular pages are indicated, then the whole opinion is assigned.
We will work towards briefing the opinions, but for now simply identify in each case what the main issue or question is, what the Court's answer (holding) to the question is, and what rule the Court relies upon to support its holding. I will ask you these questions in class, so be prepared to answer. You should be familiar also with the basic facts of each case. As you read the opinions, underline or highlight the passages that you identify as the issue, the holding, and the rule of the case. We will work on this throughout the semester.
In these three cases, ask yourself whether the issue and rule in the South Carolina case is the same or different from the issue and rule in McCulloch. How does the City of Boerne rule differ from one or both of the earlier cases?
Implied Powers. The implied powers doctrine is usually identified with the famous passage in McCulloch v. Maryland that begins "Let the end be legitimate . . . ." This tripartite end-means-no prohibition reasoning has also been used in other contexts, for instance, in determining the scope of congressional authority to enforce constitutional amendments under their enforcement clauses (South Carolina v. Katzenbach, but see City of Boerne v. Flores), the scope of state authority to implement their police powers (Jacobson v. Massachusetts), and the authority of the three branches of our national government to engage in un-enumerated actions that are necessary to perform their overall constitutional functions (the so-called "incidental or auxiliary powers" presented in the next assignment).
Mid-term on Tuesday. There will be forty-five or so short-answer, two-point questions of the various types that you have seen on the quizzes, and there will be four short answer five point questions on the cases that we have studied. This means there will be approximately 110 possible points on the test. There will be questions from each of the five main chapters of the Primer. A larger proportion of the questions will come from the chapters on justiciability and litigation (chs. 2 & 3) than from the others, but there will be at least four or five questions from every chapter. A few of the two-point questions will also be on the cases we have read. Know the definitions of the bold-face terms in the text and of the terms in the subheadings throughout the chapters. Facts and statistics on the exam are pretty much limited to those that are both in the text and that were mentioned in my lectures. Questions about the cases will be basic questions to see (1) if you have read the case and (2) how well you followed the arguments in the courts' opinions. As always, answer as precisely and concisely as possible. Study hard and good luck.
Please finish the chapter on the Supreme Court, and read Marbury v. Madison, available on the Constitutional Law Case List. We will also finish discussion of Warth, and I'll say a few words about Tuesday's mid-term.
In Warth, try to figure out the specific rules that the Court applied to each set of plaintiff-petitioners in the case to determine their standing. As we discussed in class, one groupd of petitioners is the subject of Part II of the opinion, Part III treats another group, and Part IV treats at least two. What specific rules led to the Court's conclusions regarding each set of plaintiff-petitioners?
In Marbury, focus primarily on the Court's rationale for judicial review in the last part of the opinion.
Please read the first half of chapter 5, "The Supreme Court." Please read Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), which is available on the Constitutional Law Case List. Follow the directions there describing which parts ot he opinion to read.
No new cases for Friday. Next week I will assign Marbury v. Madison and a standing to sue case to be named later. In the meantime, for Friday, please finish chapter 3 on litigation. Pay particularly close attention to the terms and the sequence of steps in litigation. We will use the "Stages of Litigation" diagram on page 67 to guide us through civil litigation at the trial court level. Next week, we will also study chapter 5 on the Supreme Court.
Please read Chapter 3, pages 55-68 on civil procedure. There will be a quiz. As I mentioned in class, there are no new cases for Tuesday, but we will begin the class by going over the McCardle, Yerger, and Muskrat cases.
Please complete chapter 4 on state court systems. The two cases that I would like you to look at are Ex parte Yerger and Muskrat v. United States, both listed on the Constitutional Law Case List. Try to figure out why the court, exercising its appellate jurisdiction, granted Yerger a writ of habeas corpus while refusing McCardle the writ under very similar circumstances. What was different in Yerger? The more difficult case is Muskrat. On what issue did the case turn? That is, what question did the Court find crucial to its decision, and what was its holding (its answer)? What rule does it rely upon?
We have been looking at the issues and the holdings of the cases so far, but we must go further and try to determine the rule or principle that the Court relies upon in its holding. In the West Lewinsville Heights case, we said that the issue was, generally, whether the petition for certiorari was timely filed in the Fairfax Circuit Court or, more precisely, "whether a petition for a writ of certiorari from a decision of a board of zoning appeals was timely when it was filed within 30 days after a letter sent from the board’s clerk stating the board’s final decision"? The answers to both are negative: the petition was not timely filed and filing a petition 30 days after the letter was not timely. The reason for both answers is the rule or principle that the Court relied upon: that under the Commonwealth Code Section 15.2-2314, the date of the Board of Zoning Appeals "final decision" is the date of the meeting at which the decision is made and not the date of the formal letter of the decision to the parties. Reliance on this principle explains why the Court answered the questions as it did in this case and, presumably, explains how the Court will decide the question again in future cases if it ever comes up. This is the rule that indirectly affects everyone in the Commonwealth of Virginia, not just the parties to the West Lewinsville Heights case.
So also in the Office of Senator Mark Dayton opinion: the generally significant rule in the case is not that "the Court does not have jurisdiction to decide this case," but that the Court's appellate jurisdiction under the statute extends only to review of rulings on the constitutionality of the statute by a lower court, and the mere application of the statute by a lower court does not amount to an implicit ruling on the statute's constitutionality (that by applying the statute, a lower court is asserting the statute's constitutionality even though neither party explicitly questioned its constitutionality before the lower court). This is the principle that is of value to other litigants and potential litigants in the future: this is what we are interested in.
So, in Muskrat, try to identify the issue or question and the holding or answer of the Court, and also the rule or principle that the Court relied upon to assert its holding-answer. Underline the parts of each of the assigned cases that express these elements—the issue, the holding, and the rule. If you want more information on this, read Appendix B of the Primer on analyzing court opinions.
I am going to change the assignment for Tuesday from what appears on the syllabus. Please read pages 85 to 103 of Chapter 4 of the Primer, "Federal and State Courts." It's pretty basic stuff.
The cases that I would like you to read are Office of Senator Mark Dayton v. Hanson, 550 U.S. 511 (2007), and Ex parte McCardle, both of which you can find on the Constitutional Law Case List, linked directly below this assignment link on my web page.
In both cases, determine whether the issue is one of procedure, jurisdiction, or justiciability. What is the precise issue/question upon which the Court's decision turns? In other words, what point did the Court make that determined the outcome of the case before it? (If you have the time and the inclination, you may want to follow up the McCardle case with Ex parte Yerger, which can be found on the Constitutional Law Case List , also. Similar facts; different result. This case is not assigned.)
As I indicated in class, there is no new reading assignment in the Primer, though there might be another quiz on the chapter 2 material. We will continue discussing the material in chapter 2 on Friday. I am assigning the first court opinion of the year, however: West Lewinsville Heights Citizens Association v. Board of Supervisors, 270 Va. 259, 618 S.E.2d 311 (2005).
This case began when Marymount was looking for a local field on which to play its soccer and lacrosse games. It struck a deal with Fairfax County to partially finance the upgrading of an existing field in the West Lewinsville Heights section of Fairfax County (in McLean). The local neighborhood associations vigorously opposed the plan and challenged it before the Fairfax County zoning authorities. The case went from there to the courts.
Consider the following questions:
Where possible, underline the portions of the opinion that support your answers to these questions. (Not all of the questions can be clearly answered using specific language from the opinion, but a couple of the questions can be so answered.) Bring your copy of the opinion to class with you.
Please read chapter 2 of the Primer. We will also go over Appendix A, assuming we still have a computer in the room. With chapter 2 we get into some of the principles and doctrines of contemporary American law. Therefore, we will begin to read one court opinion per class. The material on Finding and Citing Legal Sources is important to allow you to find these cases.
Please read the Introduction, Chapter 1, and Appendix A of the Primer. There may be a quiz on Chapter 1.
Take a look at the Business Week article entitled "The Court
Case Haunting Health Care" under "Special Features" on the Yahoo
Finance page.
Another constitutional law issue is discussed in the article on how the Speech or Debate Clause inhibits investigations into congressional wrongdoing, on page A1 of the Post, January 17th, 2011.
Three more cases examining state powers, though not necessarily under the dormant Commerce Clause: Edwards v. California, Baldwin v. Fish and Game Commission of Montana, Crosby v. National Foreign Trade Council. The are all on the Constitutional Law Case List (just put them there), but you have to hunt a bit for them.
We begin the last part of the course, focusing on first the power of the national government and then the powers of the state governments under the Commerce Clause. We will start with three old cases that addressed the main issues of national v. state power under the Commerce Clause: Gibbons v. Ogden, Willson v. Black-Bird Creek Marsh, The Daniel Ball. All are listed on the Constitutional Law case list. The first is excerpted; the second two are short opinions. Do as much as you can for tomorrow.
Friday will be the mid-term. Two questions on the cases that we have read since the first exam—ONLY the cases since the last exam. One question will be a fact pattern (also called "hypothetical") question of the type that I have handed out in class. Review the steps for answering fact pattern questions on the link by that name on the main web page (I showed you in class). The other question will be a survey question that asks you about the different kinds of governmental powers that we have been studying—implied, incidental, and so on—and the cases that exemplify each of the different types of powers. For the survey question, you should be able to identify by name or by facts about a half dozen cases in good detail.
For Friday, please review the four cases that have been assigned so far, especially Marbury, and come to class with any questions you may have. We will discuss the Supreme COurt on Friday.
Please read chapter 5 of the Primer. We will complete discussion of the state courts (chapter 4) and of Marbury v. Madison and begin discussion of the Supreme Court (chapter 5). Exam is next Tuesday--45 short answer questions and a few brief questions on the cases that we have read.
Please read chapter 4 of the Primer on federal courts (we will focus on state courts next Tuesday). Read Marbury v. Madison, as edited on the "Constitutional Law Case List."
The case came to the court under what kind of jurisdiction (why did the Supreme Court have authority to decide the case)? What is mandamus, according to the Court? Who said the Court could issue a writ of mandamus? Who won? What was the question? What rule did the Court rely upon? How does the rule determine the answer to the question? The usual stuff.
Study in particular the vocabulary and the procedure in chapter 3. Since the civil litigation process is more important to us this semester, I suggest that you focus on the civil procedure and be able to identify the key differences (such as the different standards of proof) between civil and criminal procedure rather than focusing equally on both civil and criminal procedure.
Please read Appendix B of the Primer on analyzing and
briefing cases. After reading the Appendix, read the following two cases: Ex
parte McCardle, Allen v. Wright. Go to the "Constitutional Law Case
List (Fall 2010)" link directly below this link to learn which pages or
sections of the opinions are specifically assigned. Do NOT brief these cases
that way I explain in Appendix B. Rather, highlight the sections of each
opinion that indicate (1) who won the case, (2) what the legal question or
problem was that was central to the Court's decision, (3) how the Court
answered the question (or resolved the problem), and (4) what stated rule or
principle the Court relied upon to answer the question.
After completing the discussion of personal jurisdiction and justiciability in Chapter 2, we will spend the rest of the class on these questions. I will call on you individually to read what you have highlighted. If you have not highlighted the case as assigned, I will not mark you present.
Questions:
In Ex parte McCardle: What does "ex parte" mean? We know that the Court ruled that it did not have jurisdiction to decide the case: what rationale did it give for so deciding? What ultimate rule about Supreme Court appellate jurisdiction did the Court give or rely upon in its rationale?
In Allen v. Wright: According to Justice O'Connor, what must a plaintiff show in order to have standing to sue before a United States District Court? Did the plaintiffs in this case meet the standing requirement? Why or why not?
Re: INS v. Chadha, Clinton v. City of New York, Hamdi v. Rumsfeld. The first two, of course, follow on the separation of powers cases that we have been reading this past week. Two innovations—the legislative veto and the line-item veto—were challenged as violating the separation of powers principles. Pay particular attention to White's dissent in Chadha and Scalia's dissent in Clinton.
Implied Powers. The assigned cases relate to the doctrine of the implied powers of Congress under the Necessary and Proper Clause and under the enforcement clauses that are part of many constitutional amendments. Our constitution is usually referred to as one of enumerated powers; that is, it is a constitution that enumerates or expressly states the powers that the national government has. According to the doctrine, the national government has only those powers enumerated in the constitution. Only a few years passed under the new constitution before the question arose of the breadth of Congress's discretion to determine the means of exercising its enumerated powers. The Court answered the question in terms of the implied powers doctrine.
We will begin studying the powers of the national government—express, implied, incidental, and others. Please read the following cases (see Constitutional Law Case List link): McCulloch v. Maryland, South Carolina v. Katzenbach, City of Boerne v. Flores.
As always, try to identify the fundamental issue or question of the case and the rule or principle that the Court relied upon to reach the answer to the question—the holding. In these three cases, ask yourself whether the issue and rule in the South Carolina case is the same or different from the issue and rule in McCulloch. How does the City of Boerne rule differ from one or both of the earlier cases?
The implied powers doctrine is usually identified with the famous passage in McCulloch v. Maryland that begins "Let the end be legitimate . . . ." This tripartite end-means-no prohibition reasoning has also been used in other contexts, for instance, in determining the scope of congressional authority to enforce constitutional amendments under their enforcement clauses (South Carolina v. Katzenbach, but see City of Boerne v. Flores), the scope of state authority to implement their police powers (Jacobson v. Massachusetts), and the authority of the three branches of our national government to engage in un-enumerated actions that are necessary to perform their overall constitutional functions (the so-called "incidental or auxiliary powers" presented in the next assignment).
New cases: please read McGrain v. Daugherty, and In re Neagle (also known as Cunningham v. Neagle). Follow the excerpting directions on the Constitutional Law Case List. Come to class prepared to tell me the questions, holdings, and rules of these cases.
Incidental or Auxiliary Powers. These two cases, together with Young v. United States ex rel Vuitton et Fils, discuss what may be called "incidental" or "auxiliary," as opposed to "implied" or "inherent" powers of government institutions—the Congress, the executive, and the courts. The rationale for these powers is similar to the McCulloch rationale for implied powers, but the term "implied powers" is usually applied specifically to the powers of Congress under the Necessary and Proper Clause of the Constitution. "Inherent power" has come to refer to the doctrine of the sovereign powers of our national government and any national government as explained by Justice Sutherland in his majority opinion in Curtiss-Wright. By contrast, incidental powers relate to what the institution (Congress, the President, the courts) can do in order to perform its basic function—legislating, executing the laws, or adjudicating, respectively. It may do that which is necessary and appropriate to perform its constitutional function.
Privilege and Immunity. These cases are about privilege and about immunity. "Privilege" is the right to withhold information from a government agency; that is, it is the right of someone who would otherwise have a duty to provide information to a government official (judge, congressional committee, prosecutor) to withhold information from that official. (The official may be said to have a right to obtain the information.) The party with the duty to provide evidence is often a party to, or a witness in, litigation or a witness before a congressional committee or subcommittee. The roots of executive privilege go back to George Washington’s refusal to give the House of Representatives information about his instructions to John Jay that led to the Jay Treaty with England. Privilege excepts one from the duty to testify. Typically, privilege will be asserted when the information is demanded of the witness at trial or in a congressional hearing, or when challenging (moving to quash) a subpoena that requires the witness to appear and be questioned or to appear and bring materials (a subpoena duces tecum—"dukas teekum") on the grounds that the information sought is privileged. Thus, a criminal defendant has the right not to answer questions about whether he committed the crime—the Fifth Amendment privilege against self-incrimination. There are many other forms or rules of privilege as well, but they are all narrowly construed by the courts because they run counter to the adjudication policy of full and open inquiry into the truth.
Privilege at law should not be confused with immunity. Immunity is protection from liability, either criminal or civil, and again, there are a number of different rules of immunity. If someone has immunity, that individual cannot be prosecuted or sued. The breadth of an individual's immunity may vary; that is, an individual may be immune from suit or liability for one or two causes of action arising out of a particular transaction or may be immune from liability for any suit arising out of the transaction.
Having immunity does not entail having privilege, and vice versa. Thus a criminal suspect who does not have to answer questions about whether he committed the crime (5th Amendment privilege) may still be convicted of the crime on the evidence of others (no immunity). Likewise, one might have immunity from suit but still be required to provide information about the underlying transaction.
Which of these situations applies to the figures in the assigned cases? That is, which cases involve immunity, which cases involve privilege, and which cases involve both? What are the rules of privilege or immunity that the court relies upon in each case? What is the rationale for each rule? Underline or highlight the rule(s) that you identify for each case.
Re: Myers v. United States, Humphrey's Executor v. United States, Bowsher v. Synar, Morrison v. Olson, Mistretta v. United States, Clinton v. City of New York.
These cases present one of the main issues of separation of powers: the problems relating to the appointment and removal of government officials and, in particular, the nature of the officials' tasks. Myers and Humphrey's Executor set the stage for understanding the constitutional requirements for appointing and removing officials and for understanding the transition to the administrative state in twentieth century American government history. Bowsher and Morrison should be read in light of the two older cases. In each case, ask what the nature of the official's task is and what constitutional appointment and removal requirements regarding such an official are.
Particularly noteworthy are White's dissenting opinion in Bowsher and Scalia's dissent in Morrison. Justices White and Scalia seemed to be in complete dis-agreement regarding the requirements of separation of powers doctrine. Although their respective tenures on the Court overlapped only a few years (Scalia joined the Court in 1986; White left the Court after thirty-one years in 1993), they disagreed on all of the major separation of powers cases decided while they served together, and Scalia's comments about cases decided before he joined the Court indicate that he and White disagreed on those cases as well. Indeed, Scalia's resolute defense of his understanding of the constitutional principle of separation of powers makes his dissent in Clinton v. City of New York, which we shall look at next time, particularly intriguing. The dissents of both justices, in those cases in which they did dissent, provide valuable material for an understanding of the two principal approaches to separation of powers taken by the court in the twentieth century.
Re: J.W. Hampton v. United States, Curtiss-Wright Export Corp. v. United States, United States v. Belmont. As always, identify the rules in the cases and be prepared to read them out or hand them in.
These cases might seem at first to cover two different topics—delegation doctrine and executive agreements—but, as cases often are, they are tied together in non-obvious ways.
The J.W. Hampton case introduces us to the judicial separation of powers doctrine through one of its aspects: delegation doctrine. What power did Congress delegate to the President in the Tariff Act? What was the challenge? Specifically what is the rule regarding what Congress may and may not delegate to the President?
The famous Curtiss-Wright case is also a delegation doctrine case, but it provided Justice Sutherland with the opportunity to articulate his doctrine of inherent power or sovereignty. The term "inherent power," when used narrowly as a label for a specific constitutional doctrine, apples to this doctrine of sovereignty. Was the delegation by Congress valid in this case? Why or why not?
Executive agreements are agreements made between our executive officer—the President—and other countries. From the perspective of international law, executive agreements are treated as treaties; they bind our nation as if we entered into a treaty with a foreign country. From the perspective of domestic law, there are some significant differences between treaties and executive agreements. Incidentally, executive agreements are not a new phenomenon. Our first administration entered into them in the 1790s, and they far outnumber the treaties to which the United States is a party. Belmont discusses the authority of our government to enter into executive agreements and also their relation to state law. How is the rationale in Belmont tied to the rationale in Curtiss-Wright?
For Tuesday, we will focus mostly on the Fact Pattern/Sample Question that I handed out on Friday. (As always, extra copies are in the rack on the wall across from my office door.) Try to formulate the arguments for each party as directed on the handout using only the cases that have been assigned so far. The next case to read is Mireles v. Waco, 502 U.S. 9 (1991), linked on the Constitutional Law Case List. How does Mireles also fit the rule of auxiliary or incidental powers?
War powers. The Youngstown, Preciat, Hirabayashi, and Korematsu cases, as well as the post 9/11 cases of Hamdi, Hamdan, Rasul, & Boumedienne cases are often referred to as "war powers" cases, even though they present other significant issues as well. The overarching issue running through the older cases is the question of whether the defense of national survival justifies violations of the letter of the Constitution, particularly violations of the constitutional rights of individuals. Questions arising out of disagreements between the Congress and the President are usually treated as non-justiciable political questions (see, for example, Dellums v. Bush).
The question of whether the national government has extra-constitutional emergency powers is closely related to the war powers issue. The case of Home Building and Loan v. Blaisdell, arising out of government action to alleviate some of effects of the Great Depression of the 1930s, is the most famous representative of this body of case law. Recent economic conditions in the United States and Europe brought this case and the general issue back into focus.
Commerce Clause: Powers of the National Government. We begin the last third of the semester examining the source of most federal legislation in the United States: the Commerce Clause. The Clause is deceptively simple: "The Congress shall have Power . . . To regulate Commerce with Foreign Nations, and among the several States, and with the Indian tribes." Art. I, Sec. 8, Cl. 3. Practically each word in this clause had to be interpreted and led to significant consequences. The question of whether the power to regulate commerce resided exclusively in the national government or whether the states also possessed authority to regulate commerce was a significant issue debated by nationalists and champions of states' rights. The benchmark case to begin our study is Gibbons v. Ogden, in which the Federalist-nationalist majority on the Court sought to maximize national authority under the Clause. Is the regulatory power exclusively possessed by the national government? The subsequent cases of Willson and Cooley reflect the limits to national power that the Court was forced to acknowledge. Please read Gibbons, Willson v. Black-Bird Creek Marsh Co., Cooley v. Board of Wardens.
Try the "Justia" cite for an index to Supreme Court opinions: http://supreme.justia.com/us/. For older cases, such as Muskrat v. United States, for example, key in supreme.justia.com/us/219/346/. That should get you to a synopsis of the case. On that page is a link to the full opinion. Click on that link or short-cut that process by going directly to supreme.justia.com/us/219/346/case.html. For more recent cases, such as DaimlerChrysler, go to the volume index first, click on the proper volume number (547), and then click on the case name.
Ex parte Yerger, 75 U.S. 85, 19 L.Ed.
332 (1868).
Virginia's Abusive Driver Fees
Jeremy Jaynes v. Com. of Virginia.
As always, bring a couple of blue and black pens and your ID number.
First Mid-term.
Mid-term on Tuesday. There will be forty-five or so short-answer, two-point questions of the various types that you have seen on the quizzes. There will be four short answer five point questions on the cases that we have studied. There will be questions from each of the five main chapters of the Primer. A larger proportion of the questions will come from the chapters on justiciability and litigation (chs. 2 & 3) than from the others, but there will be at least four or five questions from every chapter. A few of the two-point questions will also be on the cases we have read: Lewinsville, Allen, McCardle, and Marbuty. Know the definitions of the bold-face terms in the text and of the terms in the subheadings throughout the chapters. Facts and statistics on the exam are limited to those that are both in the text and that were mentioned in my lectures. As always, answer as precisely and concisely as possible. Study hard and good luck.
As discussed in class, probably three questions--one survey from the past
month of the course, one fact-pattern question from the last month of the
course, and one question of your choice--fact pattern or survey--from any time
in the semester. No short answer questions or definitions, though I expect you
to know the vocabulary that we discussed during the first month, as well as the
rules of justiciability that we studied. Tuesday at
high noon: be there!
The final will have three or four questions. Two questions--one survey and one fact-pattern question--will cover the material since the second mid-term on governmental powers. In form the exam will be exactly like the second mid-term.
The other question(s) will cover the whole course. I will give you several questions to choose from, and the questions will include both survey and fact pattern questions. As I said in class, I do not want to ask you questions that I think you might not have studied: I want you to have a choice of questions that cover areas that you have studied and feel confident about. Demonstrate your knowledge of the subject by using legal terms precisely and accurately. Referring to as many details as possible from the cases will also help your essays.
Mid-term Exam on Tuesday. Two essay questions: one survey question on the cases addressing the power of the national government under the Commerce Clause; one hypothetical or fact-pattern question based on the cases addressing the power of the states under the "dormant" or "negative" Commerce Clause power. The survey question will ask something about the rules or development of rules regarding the national commerce power and will require accurate references to the rules of at least half a dozen cases, cited by name or by brief description (e.g., the "child labor" case). The fact pattern question will be similar to the ones that we have worked on in class. For each kind of question, reference to the rules and the distinctive facts of the cases you cite is the most important factor. Learn the rules of the cases!
Mid-term on Tuesday. There will be forty-five or so short-answer, two-point questions of the various types that you have seen on the quizzes. There will be two more ten-point questions requiring you two brief two cases. I will give you the short excerpts upon which to base your briefs. There will be questions from each of the five main chapters of the Primer. A larger proportion of the questions will come from the chapters on justiciability and litigation (chs. 2 & 3) than from the others, but there will be at least four or five questions from every chapter. A few of the two-point questions will also be on the cases we have read: Lewinsville, Allen, Baker, Marbuty, McCardle, DaimlerChrysler, and Muskrat. Know the definitions of the bold-face terms in the text and of the terms in the subheadings throughout the chapters. Facts and statistics on the exam are limited to those that are both in the text and that were mentioned in my lectures. As always, answer as precisely and concisely as possible. Study hard and good luck.
Here are statements from a few of the opinions that you might have used as the rules in those cases:
McCardle: "No judgment [can] be rendered in a suit after the repeal of the act under which it was brought and prosecuted."
Lewinsville: "[A] 'final decision' of the BZA is the decision that resolves the merits of the action pending before that body or effects a dismissal of the case with prejudice."
Muskrat: Citing Chicago and G.T.R. Co., "[The judicial power extends only] to the determination of real, earnest, and vital controversy between individuals." Or, "[The] judicial power is the right to determine actual controversies arising between adverse litigants."
And DaimlerChrysler: "[To have standing, a taxpayer] must be able to show that he has sustained some direct injury and not merely that he suffers in some indefinite way in common with people generally."
Other statements in these opinions could also be used as the basis for the rule THAT YOU ARTICULATE! Many times the court does not make a simple, straightforward assertion of the rule it relies upon; sometimes, the court does. You must be willing to put together a statements of the rule that appears to be the basis of the courts' opinions.
Mid-term on Tuesday.
There will be forty-five or so short-answer, two-point questions of the various
types that you have seen on the quizzes. There will be four more questions on
the cases that we have read so far. These will be paragraph-long answers worth
five points each, such as the question on the West Lewinsville
case on one of the quizzes. The cases to be prepared for are Allen, Baker,
Boyd, McCardle, and Muskrat. There will be
questions from each of the five main chapters of the Primer. A larger
proportion of the questions will come from the chapters on justiciability
and litigation (chs. 2 & 3) than from the others,
but there will be at least four or five questions from every chapter.
Know the definitions of the bold-face terms in the text and of the terms in the
subheadings throughout the chapters. Facts and statistics on the exam are
limited to those that are both in the text and that were mentioned in my
lectures. As always, answer as precisely and concisely as possible. Study
hard and good luck.
The Hurtell case is here.