Constitutional Law I Outline - Professor Chen PDF

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MSU Law 1L Con. Law Course with Professor Chen. Goes through Con Law, but not Statutory Interpretation....

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Judicial Review   

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Marbury v. Madison (Justice Marshall) Actual Holding: §13 of the Judiciary Act of 1789 is unconstitutional - The Supreme Court lacks power to direct the President to deliver Marbury’s commission. Ultimately, this case established the power of judicial review. o Judicial Review: the power to strike down either a federal or state law that is inconsistent with the Constitution. o Significant considering the Act was one of the first laws passed by congress… ALWAYS look to the statutory issue before any constitutional issues. o E.g., in this case, Justice Marshall should have evaluated the Judiciary Act before the U.S. Constitution. Justice Marshall’s Reasoning in Marbury v. Madison: o Under Article III, §2, cl. 1 of the Constitution, “judicial power shall extend to all cases, in law and equity, arising under this Constitution, the Laws of the U.S., and Treaties made...”  Thus, Justice Marshall reasoned that, under the U.S. Constitution, the Supreme Court has original jurisdiction over this case. Consequently, since §13 of the Judiciary Act of 1789 does not allow the Supreme Court to have original jurisdiction over this case, it is unconstitutional.  This was despite the fact that Article III, §2, cl. 2 states, “with such exceptions, and under such regulations as the Congress shall make.”  Justice Marshall’s Excuses for Judicial Review:  Judicial review is a necessary inference form the fact of a written constitution.  Inherent notions of the judicial role. The ordinary role of the courts is to interpret the law. This requires judges to construe the Constitution in the ordinary course of conducting judicial business.  The Grant of Jurisdiction in Art. III, §2, cl. 1.  The Supremacy Clause provides that the Constitution is the Supreme Law of the Land  The Oath Clause in art. VI, cl. 3. The oath to uphold the Constitution taken by every officer of the government requires judicial review. Practice Exam Q: Justice Marshall misconstrued §13 of the judiciary Act of 1789. Read it for him and explain how Justice Marshall could (and arguably should) have dismissed Marbury’s petition for a writ of mandamus on statutory grounds? o Justice Marshall could have dismissed Marbury’s petition for a writ of mandamus on statutory grounds because the statute did not give the Supreme Court original jurisdiction in mandamus cases. o Analyzing §13 of the Judiciary Act of 1789:  “the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction…”  This does not apply to the Secretary of State because the State was not a party. Marbury versus Madison…  “And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, in in which a consul, or vice consul, shall by a party…”  Applying Noscitur a Sociis, this provision does not apply to the Secretary of State. All the items listed involve international law, but the current case does not.

Constitutional Outline

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Rather, the statute states, “The Supreme Court shall also have appellate jurisdiction…and shall have the power to issue…writs of mandamus…to any…persons holding office, under the authority of the U.S.”  Since the writ was against Madison, the Secretary of State (i.e., a person holding office), it would fall under this part of the statute, which REQUIRES appellate jurisdiction. If §13 were read this way (as dealing only with Supreme Court’s power in cases heard on appeal), Marbury’s action would have to be dismissed on the ground that no law authorized him to sue originally in the Supreme Court. Why didn’t it play out this way? Marshall wanted the opportunity to declare the power of judicial review…  Considering this could have been resolved without raising a Constitutional question, the avoidance canon should have been applied.  Hart & Sacks urged courts not to exercise the power of judicial review unless they have no choice. Regardless, this case is now settled law. Follow it; do not argue that it is wrong.

Internal Constitutional Structure     

Justice Marshall’s technique in Marbury v. Madison emphasizes the Constitution is an internally consistent document, as if it were governed by a really robust version of the Whole Act or Whole Code Rule. McCulloch v. Maryland also demonstrates Justice Marshall’s distinctive approach of relying on the “structures and relationships” set up by the Constitution, and not only the text, in resolving constitutional questions. McCulloch v. Maryland (Justice Marshall) Actual Holding: (1) Congress has an implicit power to incorporate a national bank, (2) the Constitution implicitly prohibits state taxation of the national bank. Justice Marshall’s Reasoning? o There is no “bank” or “corporation” clause in the Constitution, however, there is no phrase in the Constitution that excludes incidental or implied powers, or that requires all powers to be expressly described. Thus, a fair construction of the whole instrument must be considered to determine if a power is delegated to the government.  In support, the 10th Amendment omits the word “expressly.”  The 10th Amendment states, “the powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The Articles of Confederation stated, “the powers not expressly delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Counterarguments:  Exclusio unius est expressio alterius: There is a post office clause, but no bank clause.  Preamble: The Constitution was meant to be a charter of limited, enumerated powers. o The Necessary and Proper Clause does not restrict Congress from incorporating a national bank.  Supremacy Clause supports this. “A government intrusted with such ample powers…must also be intrusted with ample means for their execution. The power being given, it is in the interest of the nation to facilitate its execution.”  Under Article I, § 8, “The Congress shall have power to…” o E.g., Lay and collect taxes, borrow money, regulate commerce, declare and conduct a war, have a post office, raise and support armies and navies (“the sward and the purse, all the external relations”). Constitutional Outline

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o See Article I, §8 for ALL 18 enumerated powers. “Necessary” does not mean “absolutely necessary.”  Whole Act Rule supports this. Article I, § 10, cl. 2 states, “No State shall, without the Consent of the Congress, lay any imposts or exports, except what may be absolutely necessary for executing its inspection Laws…”  Counter arguments: (1) dictionary definition of “necessary” is required to be done, needed, essential. (2) the rule against surplusage: “necessary and proper” should not be interpreted to essentially mean “proper and proper.” The Necessary and proper clause is placed among the powers of Congress, (art. I, §8), and not among limitations (art. I, §9). Deferential Rational Basis Review has its Origins in McCulloch - Justice Marshall created a test for assessing whether congress may exercise implied powers under the necessary and proper clause:  The end must be legitimate (i.e., within Congress’s power).  The means used to effectuate that end must be “appropriate,” o Appropriate means, “plainly adapted” to the end, not prohibited to Congress by the Constitution, and consistent with the letter and spirit of the Constitution.  i.e., does not have to be the “best” means. Basically, just need to show that its useful/helpful to achieve an enumerated power.  Congress may not, however, adopt measures which are prohibited by the Constitution.  Congress also may not, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government. o Problem: The Court has never articulated a standard for determining when a particular exercise of congressional power is “pretextual” and, thus, invalid and it is difficult to determine subjective intent…  In this case, Justice Marshall reasoned the bank passed this test because Congress has the power to raise money (power of the purse) so that Congress can win the next war (power of the sword). The incorporation of a national bank is an appropriate means to these ends.

The Commerce Power Commerce Clause (Article I, § 8, cl. 3): “The Congress shall have the Power…to regulate commerce with foreign nations, and among the several states, and with the Indian Tribe.”  

The commerce power is one the most important enumerated powers for defining the contours of federalism. The Court oscillated between a rigid, formal approach to congressional power that depended on the regulated activity being correctly placed in its proper category, and a functional approach to that power that took account of the dynamic and rapidly changing nature of the national economy. Formalism was largely abandoned by the early 1940s. o Formalist Reasoning:  E.g., Champion v. Ames - Federal Police Powers (health, safety, welfare, & morals) = okay for Congress to regulate.  See also Hoke v. U.S. - upholding the Mann Act, prohibiting the transport of women across state lines for “immoral purposes”  See also Hipolyte Egg Co. v. U.S. - upholding the Pure Food and Drug Act  E.g., E.C. Knight - things like manufacturing, mining, and agriculture are not commerce. o Realist Reasoning:  Production (“gathering”) = local  Transmission = FEDERAL Constitutional Outline

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Distribution (“retail”) = local.

Through the New Deal: 

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Gibbons v. Ogden (Justice Marshall): Congress has the power to regulate transportation between state lines. Thus, if navigable waters can be used for transportation, the federal government has a right to regulate it. o Justice Marshall’s Reasoning:  “to regulate” means to set the rule.  “Commerce” includes transportation.  While commerce included “traffic…it is something more--it is intercourse. It describes the commercial intercourse between nations, and parts of nations, and all its branches…”  “Among the several states” means more states than one.  Among-the-several-State-S = overwhelmingly plural. o According to Justice Marshall, something falls OUTSIDE Congress’s commerce power if it (1) involves only one state, AND (2) affects no other state. U.S. v. E.C. Knight Co. (The Sugar Trust Case): the U.S. gov. invoked the Sherman Act to set aside the acquisition by the American Sugar Refining Company, which would create a monopoly, however, the Court held that the Sherman Act does not reach this monopoly because the Constitution does not allow Congress to regulate “manufacturing.” The fact that an article is manufactured for export to another State does not of itself make it an article of interstate commerce. o This case has essentially been overruled. o This case had formalist reasoning and a localist outcome (Federal power struck down)  Made formalist distinction between commerce and antecedent activities like manufacture, agriculture, production, and the like. Houston, East & West Texas Railway Co. v. U.S. (Shreveport Rate Case): Congress may regulate intrastate transactions of interstate carriers. The Court upheld the Interstate Commerce Commission’s regulation of intrastate railroad rates deemed to discriminate against interstate commerce. o This case had realist reasoning with a nationalist outcome (federal power upheld) Champion v. Ames (The Lottery Case): The Court held that the Federal Lottery Act of 1895, which prohibited the interstate transportation of foreign lottery tickets, was constitutional. o This is the federal police power. Classic police power is regulating health, safety, welfare, and morals (*this case regulated morals). o This case used formalist reasoning and had a nationalist outcome (federal power upheld) Hammer v. Dagenhart (The Child Labor Case): The court held that the Child Labor Act of 1916 violated the constitution. The Child Labor Act involved a two-part regulation of child labor: (1) no interstate transportation of products made by underaged workers, and (2) a direct ban in the form of minimum age for workers. o This case was expressly overruled by U.S. v. Darby o However, still important to bring up this case because it continues to influence the ‘race to the bottom’ narrative (as further discussed in Darby). o This case had realist reasoning and a localist outcome (federal power struck down) NLRB v. Jones & Laughlin Steel Corp: The Court held that the National Labor Relations Act, which, among other things, outlawed “unfair labor practices” that affected interstate commerce, like discharging workers for union activities, is constitutional. o Reasoning:  “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to Constitutional Outline

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protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.”  This case may have been too easy. It involved the biggest steel company in America & to make steel, you need iron ore from MN, coal from throughout the Appalachian region, smelting and refining facilities in PA, and a fleet of barges and dedicated rail lines connecting them all… U.S. v. Darby: the Court upheld provisions of the Fair Labor Standards Act, which banned interstate shipment of goods made by sub-minimum-wage workers. o Reasoning:  (1) ban on interstate shipment: clearly within scope of commerce clause…  (2) direct regulation of wages and hours: (a) this direct regulation is a necessary and proper means of enforcing the ban on interstate shipment, and (b) but for nationwide regulation, the race to the bottom will incentivize business and states to tolerate sub-minimum wages. o The Court here explicitly overruled Hammer v. Dagenhart. o Reasoning: Congress’s motive (i.e., to support the hour and wage provisions) is irrelevant to the scope of its power. Congress may choose the means reasonably adapted to the attainment of the permitted end, even though they involve control of intrastate activities. o This case developed “race-to-the-bottom” argument.  If discussing this argument, also bring up Hammer v. Dagenhart. Wickard v. Filburn: The Court upheld the Agricultural Adjustment Act, which fines farmers for going over the quota set for wheat production. It did not matter that Petitioner never sold the wheat… o Perhaps most important move in Legal Realist commerce clause doctrine. o Why was the gov. trying to regulate? If all the farmers produce a ton of wheat, prices will drop too much, and farmers will default on the government. Quotas prevent this. o Reasoning:  Aggregation Principle: Congress may regulate local activity if that activity exerts a substantial economic effect on interstate commerce.  E.g., In this case, Filburn only exerted a small impact on the wheat market, however, when taken together with all the other farmers similarly situated, Filburn’s activity has a substantial economic effect on interstate commerce.  E.g., in Perez v. U.S., the Court upheld the application of a federal statute criminalizing loan sharking to an individual not otherwise a part of organized crime and whose operations were confined to NY city. Congress, the Court concluded, had a rational basis for thinking that even local, intrastate loan sharking could, if aggregated, affect interstate commerce.  Be Careful: U.S. v. Morrison, a later decision, indicates that you cannot aggregate activities that are not commercial. E.g., violence against woman (VAWA) is not inherently commercial, so cannot apply aggregation principle.  By exceeding his wheat quota, Plaintiff decreased the amount of wheat purchased in the market and negatively impacted the price of wheat grown for interstate commerce.

From the Civil Rights era to Present: 

Heart of Atlanta Motel v. U.S.: The Court upheld Title II of the Civil Rights Act of 1964. Congress may prohibit racial discrimination by motels serving travelers regardless of however ‘local’ their operations may appear. o The motel in this case was squarely in the heart of downtown and right off an interstate highway. The motel advertised aggressively in travel publications, but refused service to black customers.

Constitutional Outline

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Katzenbach v. McClung (Ollie’s BBQ): The Court upheld Title II of the Civil Rights Act of 1964. Congress may prohibit racial discrimination by restaurants offering to serve interstate travelers or restaurants serving food and a substantial portion of that food has moved in interstate commerce. o The restaurant in this case was a neighborhood joint, some distance off the nearest major highway. It served a purely local market and did not advertise at all, much less in interstate commerce. How did the Civil Rights Act of 1964 reach the large motel in Heart of Atlanta AND the small BBQ joint in McClung? o Aggregation Principle: if all the restaurants did what the BBQ joint does, there would be no place for African Americans to stop and eat. This would deter travel.  It probably was not even necessary for the McClung court to point out that the BBQ joint brought in food from out-of-state sources considering the aggregation principle. If someone serves food or drink and/or offers guests a place to sleep, they are subject to a form of regulation comparable to that of common carriers, such as railroads and buses. o An interesting modern comparison is that of wedding cake bakers and photographers. U.S. v. Lopez: the Court held that the Gun-Free-School Zones Act of 1990 exceeded the authority of Congress under the Commerce Clause. o This case was a major shift in commerce clause jurisprudence. o Reasoning: Jones & Laughlin Stee, Darby, and Wickard greatly expanded the authority of Congress under the Commerce Clause, but there are still limits. o Lopez Test - There are three broad categories of activity that Congress may regulate under its commerce power: (Regulation just needs to fall under one of these categories to be valid under Commerce Clause)  (1) Congress may regulate the use of the channels of interstate commerce.  E.g., things like interstate highways, waterways, railroads,  Think of conduits and networks/all of the places where planes, trains, and automobiles go.  E.g., Shreveport  (2) Congress is empowered to regulate and protect the instrumentalities of interstate commerce , or persons or things in interstate commerce, even though the threat may come only from intrastate activities.  E.g., cars, planes, ships, etc.  (3) Congress’s commerce authority includes the power to regulate activities that substantially affect interstate commerce.  E.g., Heart of Atlanta, McClung, Darby  Factors the Lopez Court considered to determine substantial effect: o Is the activity commercial or economic or not?  Mere possession of a gun in a school zone is not economic or commercial activity.  Cf. U.S. v. Morrison: gender-motivated violence is not economic or commercial activity. o Does the statute contain explicit language tying the regulated activity to interstate commerce?  The Statute in this case did not contain an explicit statement tying the regulated activity to interstate commerce. o Are findings provided by Congress that make explicit a connection to interstate commerce that is not apparent on...