Class Notes Professor Daniel Ericson PDF

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Class Notes Professor Daniel Ericson...

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Unit 1: Lecture 1 In Class Exercise  Patient protection and ACA 2010 Notes from Reading Part A  We ask whether congress has power under constitution to enact the challenged provisions  Constitution is not source of power to the states  Case refers to general power of governing, possessed by states but not by Fed gov  Police Power  Precedent that congress may regulate interstate commerce Part B  Overruling Miranda  Stare decisis requires extensive citations Class Discussion P.2 gov is one of enumerated powers  Q: how will enumerated powers be construed? (narrowly or broadly) this is a recurring question  what enumerated power can congress create a bank if not explicitly stated can do so P. 3 constitution is not the source of state power - if fed powers too broadly it could construe state powers - to what extent can fed gov require the states to carry out a regulatory regime? p. 4 commerce clause  3 buckets o Power to regulate instrumentalities o Regulate channels of ICC o Substantial effects test (p. 4-5)  Rational basis to believe effects ICC p. 5 Congress had implied powers under necessary and proper clause - ex: create a bank to carry out economic responsibilities P. 6 ordinarily SC ought to refer to reasonable legislative judgements  Unreasonable  law violates BOR provision US vs Dickenson - Miranda warnings not given, and defendant gave up info voluntary  info can be used in case - SC deciding if other law can trump Miranda - Principal o Conflict between SC law and congress  Congress can’t overrule legislatively o Chief justice wrote under principal of stare decisis that decline to overrule precedent unless there is a compelling circumstance (which there wasn’t) Benefits of stare decisis - Consistency of predictability o Normal citizens, lawyers, and lower courts all benefit - Supposed to be a neutral application of the law Flaws (stare decisis) - Decision repugnant (Plessy v fergussen and brown v board)

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Legal standard becomes unworkable or a confusing precedent

How to Cases Get to the SC Federal courts  court of appeals  request for a writ of certioran  SC State courts  court of appeals  In 2020 SC reviews ~ 70 cases  Three ways for cases to get to SC o If different results in court of appeals, then that is a good case for SC to review o Solicitor general submits a case will most likely be reviewed o Federal courts strike down federal statute Mechanics of SC Cases 1. Supreme Court grants certioran 2. Briefs submitted a. Petitioner submits first b. Respondent submits second c. Amicus curie brief submitted (need written consent from parties to be able to submit one) 3. Schedule case for oral arguments 4. Conference of justices a. Vote preliminarily on outcome b. Justices speak on order of seniority c. Opinion assignments: senior most justice of majority will write it or assign it to another justice d. Opinions drafted 5. Opinions drafted, join memos, opinions change 6. Opinions agreed to and announced Philosophies of constitutional interpretation  Textualism: o look no further than meaning of words on the page o Don’t care about framers’ intent o Pro: value neutral o Unclear what words mean to framers’ generation  Originalists o Won’t always take words at literal meaning and look at original intent (p. 72) o Overlap with textualism o Ex: first amendment: congress shall make no law abridging the freedom of speech  Textualist: no law means no law  So even if yell for violent other throw of government with a revolution it is protected  Originalist: intent of 1st amendment was to protect political speech when constitution was created  Same scenario not protected because 1st amendment supposed to protect speech in political system  Living Constitution

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o What do words of our text mean in our time (Justice Brennon) o Brennon and marshal opposite of Scalia o Pro: intuitive because difficult to acertain meaning of words from hundreds of years o Con: can leave justices substitute personal views of the law None of the approaches are perfect

Lecture 2 Articles of Confederation  Want to see contrast with constitution  Following treaty of Paris had ratification of AOC  Likely to fail from beginning because states don’t want to give up power o Legislature had limited powers (wage war, negotiate with Indian tribes) o Could not draft soldiers, regulate interstate commerce, or tax people  Led to competition between states o Fusion of power between legislature and executive (are one and the same) o To amend need unanimous agreement (impossible) o High tariffs among states  Didn’t act harmonious o DISCONTENT AND PARALYSIS  Meetings called to revise AOC in Annapolis o Concerns over trade and commerce o Shay’s rebellion Shay’s Rebellion  Poor, veteran farmers protest taxes and debt  Throw in debtor’s prison and farms seized  A private militia in MA raised to stop rebellion  Exhibit A: why we need stronger, central government By Feb 1787 we needed to re-evaluate international system  Mostly white men Bill of Rights: arise out of concerns over individual rights Differences with Constitution  Constitution emerges directly from the people  Power dramatically expanded  Separates legislature and executive  Have a good judiciary  Supreme court!  Supremacy clause: constitution is supreme laws of the land  Take oath to preserve and protect Constitution  Easier constitutional amendment o Constitutional amendment that then must be ratified by 3/4 of state legislatures I'm not suggesting that the constitutional amendment process is easy as I said last week other than a ratification of Bill of Rights in 1789 we've only had about 17 more constitutional amendments in the next 200 or so years

Supremacy Clause  under the supremacy clause the constitution both of the United States and treaties made under the constitution or the Supreme laws of the land  relatedly all federal state legislative executive and judicial officials must take an oath to preserve, protect and defend the constitution relatedly all federal and state legislative executive entry level officials must take it Cooper vs Aaron (pg 171) Facts:  Governor of Arkansas wouldn’t allow black students in Little Rock Arkansas (Little Rock 9)  President Eisenhower sent federal troops to support black students Issue: 14th amendment case (follow up of Brown v Board), and reinforcement of supremacy clause and Marbury v Madison Holdings:  Under the supremacy clause, the state is bounded by Brown v Board. Rational:  It is emphatically the province and duty of the judicial department to say what the law is Judicial Power  judicial power shall extend to all cases in law and equity arising under this constitution the laws of United States and treaties made were which shall be made under their authority right  so let's throw out the judiciary act for a second even if you never had a Judiciary Act of 1789 under the text of Article 3 Section 2 the court could deal with state or review state court decisions interpreting federal law right even if you never had a judiciary act of 1789 even if you never had hunter’s Lesee o it says if there's a federal question that is a question about the constitution about federal law or a federal treaty the supreme court and federal courts have jurisdiction over Article III Section I  Good Behavior: life tenure unless impeached  Compensation: constant so not swayed by public opinion Section II: cases arising out of Constitution, laws of US, and Treaties made  Original jurisdiction: ambassadors, public ministers and consuls, controversies between states, have protection from party lines o No bias o Framers thought strong federal interests in certain subjects that needed to be protected o Couldn’t trust the state Marbury V Madison  Judiciary Act of 1789 o SC shall have 6 members (didn’t last very long because didn’t want a 3/3 tie) o Section 13: provides the SC to have original jurisdiction over writs of mandamus  Became unconstitutional after Marbury v Madison

Writ of mandamus: a writ seeking a command of a public official to carry out a duty Section 25: the SC has the power to hear appeals from the highest state courts, if state courts uphold state laws against claims that are unconstitutional  The state court upholds a state law against federal constitutional challenge  SC  Historical background on Election of 1800 o Federalist vs antifederalists o Tie between Jefferson and Aaron Burr  Under article II, presidential electors voted for two choices for president and vice president  Candidate receiving second most vote became VP  House of Representatives picks Jefferson  Transition was in March 1801  Lame duck period o Lame duck period: federalists get to work  Create new federal districts, new judges, new justices of the peace (DC Superior Court judges)  Marbury appointed justices of the peace  John Marshall confirmed after Adams looses  Issues in Case 1. Does William Marbury have a right to the commission? a. Appointment is complete once president signs the commission 2. If William Marbury have a right to the commission has that right been violated and do the laws of his country afford him a remedy? a. The law affords him remedyx 3. If they do afford him a remedy, is it a mandamus issuing from this court? a. In Original jurisdiction of the SC the constitution does not state a writ of mandamus i. Conflict between constitution and a federal law  Supremacy Clause ii. If courts do not have power of judicial review (power to interpret the laws), then constitution has no meaning and branches can do whatever they want Takeaways 1. Chief Marshall’s decision is a win for the court even if it is a loss for Marbury a. If Marshall had said Jefferson needs to give commission to Marbury Jefferson would have most likely not done it which would make the Supreme Court useless 2. Chief Marshall reads article III in a way to seal off the decision of the SC from political interferences a. Marshal enhances the legitimacy of the court and lives to fight another day 3. Marshall is developing arguments to show that the Courts were the most competent to resolve issues of constitutionality a. Federal 78: the interpretation of the law is the proper interpretation of the law b. Marshall arguing that the court is the best position to identify limitations in the constitution to sketch out inappropriate powers of government powers and protect individual rights o o

Martin v Hunter: Framing of Issue  Madisonian compromise

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Let’s assume judiciary act doesn’t create lower federal courts, there would be nothing for the SC to rule upon and resolve except questions emanating from state supreme courts (bc no lower federal courts) Trying to unpack scope of jurisdiction of supreme court Art III section II of Constitution: does appellate jurisdiction of SC extend to state court decisions interpreting federal law? This case is about a state court decision interpreting federal law

Background  Lord Fairfax inherits land prior to revolutionary war, and he remains and dies in VA  He leaves the property to his nephew Danny Martin in  1781 VA legislatures pass a law which prohibits enemies from inheriting land (someone loyal to British crown)  State confiscates the land and begins proceedings to sell the land  1783 Treaty of Paris: prevents states from saying British subjects can’t inherit land Procedural History  Lower VA state court upheld Martin's claim  Highest court in VA reversed it  SC upheld Fairfax's claim (Martin) finding that VA statute was unconstitutional bc it conflicted with 1783 Treaty of Paris  Virginia Supreme Court did not consider itself subordinate to the Supreme Court and struck down Section 25 of the Judiciary Act. This decision was appealed to the US Supreme Court (this case). Issues: Under Art II, Sec II, does the appellate jurisdiction of the SC extend to the decision of the state court’s interpreting federal law? Holdings (yes/no and legal statues)  Section 25th of the judiciary act is constitutional under article III. Rationale  People need to be able to move about and still have the same rules. The result of this case is dictated by uniformity. We want the constitution and laws of the US to mean the same thing in each state. If there is a divergence, it can threaten the value of uniformity and individual liberty  The appellate jurisdiction is not limited to a class of courts. Extends to a class of cases.  If the case in controversy is coming from a state supreme court, the SC still has appellate jurisdiction over it.  There is nothing in the constitution that prohibits the exercise of appellate jurisdiction over state decisions. It encourages the jurisdiction. Disposition:  Court decided in favor of plaintiff  It is the opinion of the whole court that the judgement of the court of appeals of Virginia rendered on the mandate in this cause be reversed and judgement be affirmed Lecture 3: Constraints on Judicial Power Advisory Opinion:

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Supreme Court does not want to give advice. Rejected President Washington’s request on neutrality in British- French war. o Separation of powers concern o Article II Concern. Decide cases and controversies  President Washington’s request is not a case or controversy Court was new and did not want to give bad advice and be blamed for it.

1. Article III  For the SC to hear a case under Article III, there must be a case in controversy 2. Political Question Doctrine  To call something an issue of political question does not mean it is an issue of political topics (page 213)  Suggests the idea that there are some matters that are textually or structurally committed to the unreviewable discretion of the political branches and therefore are not appropriate for the courts to review o Origins in Marbury: questions that are naturally political cannot be made in this court. Some topics for Congress and the President to address themselves, and not by the Courts  Non-Justiciable Political Question: o The court will not address the merits of the lawsuit.  If the case presents a political question, the court will address the political question, dismiss the lawsuit, and not address the merits of the legal claims presented (Luther v Borden)  Luther v Borden: Court held that petitioners’ claims regarding the constitutionality of RI’s charter government arise out of the Guarantee Clause, Article 4, section 4 of the constitution and are thus non-justiciable political questions. The court dismissed the lawsuit.  Contrary with Baker v Carr: Court held that petitioners’ claims of malapportionment were justiciable under the Equal Protection Clause of the 14th amendment and returned the case to the federal district court for a trial. Baker v Carr 1962 Facts :  Article I: each state is allocated a certain number of seats in the House of Representatives based on the population of the state. It is up to the state to map out the congressional districts  No guidelines exist as to how those representatives are to be allocated or apportioned within a given state  Over time led to malapportionment  Under Colgrove states that had not reapportioned since 1900 were under no federal constitutional mandate to do so

 Lawsuit alleges that rural districts are overrepresented, and cities underrepresented. Procedural History:  District Court --> "political question" and therefore nonjusticiable Issues:  Under the equal protection clause of the 14th amendment, is malapportionment a political question? Holdings  Not dealing with a guaranty clause claim, dealing with equal protection claim  Disputes arising under the equal protection clause are generally not political questions Rationale (describe court's rational for each holding) 1. the Court reasoned there was no textual commitment to another branch. Courts have routinely reviewed cases arising under the Equal Protection Clause 2. the court explained that there are similar and manageable standards under the Equal Protection Clause 3. the court does not address the policy issue 4. the court points out there are no decisions made by a political branch that require finality 5. there is no embarrassment to the US government abroad if the Court rules against Tennessee Disposition (what did the Court decide)  Court found that this is not a political question and sent back to lower courts to decide. Concurring/Dissenting Opinions 1. Concurring: Clark, Douglas, Stewart` a. The people of Tennessee have no "practical opportunities for exerting their political weight at the polls" to correct the existing "invidious discrimination" i. No initiative and referendum ii. Therefore, no other "practical opportunity" presented under the law except through the federal courts 2. Dissenting: Frankfurter, Harlan a. Attack justiciability b. Guarantee clause claim masked as equal protection clause c. Citizens of Tennessee could have influenced through local elections Outcome:  Issues presented under the Guaranty Clause are non-justiciable and does not leave room for Court Involvement  Up to president (unless congress gets involvement) to decide how to recognize state government  Framework created in determining whether a case presents a political question: 2. Is there a demonstrable textual commitment to a political branch to resolve the issue? 3. Does the case lack judicially manageable standards? 4. Would the issue require a non-judicial, policy- based definition? 5. Have political decisions been or will be made that require finality?

6. Is there a potential of embarrassment to the country by conflicting pronouncements from the branches of government? Nixon v. United States (1993) 1. Facts o

Nixon was appointed a US district court judge for the Southern District of MS by President LBJ in 1968 o Federal prosecutors investigated Judge Nixon's relationship with Hattiesburg Wiley Fairchild in 1984 o In 1986 Nixon stood trial in a federal court for committing perjury in grand jury testimony and for accepting an illegal gratuity o Nixon refuses to resign from the bench and continued to receive his salary while serving his sentence (judges get lifetime sentence in “good behavior” so he can keep getting paid) o Judicial Conference recommended to the House of Representatives that Nixon be impeached o Senate invoked its own rule, Impeachment Rule XI under which the presiding officer appoints a committee of senators to "receive evidence and take testimony". The presiding officer appointed a special twelve-member bipartisan committee to hear the case and report to the full Senate  Was impeached by Senate o Nixon responded by claiming a federal lawsuit that Senate Rule XI violated the constitution 2. Procedural History a. Original jurisdiction 2. Issues a. Does senate rule 11 violate the impeachment trial clause? And court must examine if the case is justiciable? 2. Holdings a. Art I & 3 clause 6 to determine the scope of authority conferred upon the senate by the Framers regarding impeachment i. Members must be under oath, a 2/3 vote is required to convict, and the Chief Justice presides when the President is tried. ii. Art 1 & 2 clause 5: senate alone shall have sole authority to determine whether an individual should be acquitted or convicted 2. Rationale a. The concept of a textual commitment to a coordinate political department is not completely separate from the concept of a lack of judicially discoverable and manageable standards for resolving it i. Based on a variety of definitions, Court cannot say that the Framers used the word "try" as an implied limitation on the method by which the Senate might proceed in trying impeachments ii. The Framers did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word "try" in the first sentence. iii. Word "sole" only appears once in the Constitution. b. Strong need for finality under the circumstances i. Cannot be in question especially in trial of president c. Impeachment is the only check on judicial system d. The duty and province of judicial department to say what the law is

2. Disposition o This issue is non justiciable  ask if this is right and then why woul...