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Exam preparation… only for the masochistic

I am getting ready to TOOL my Constitutional Law midterm tomorrow.  Fortunately, it is considerably less difficult than a comparable course at law school… I only have to know the basic holdings and doctrines (rather than having to quote the decisions and understand the nuances of the minority opinions) of the following cases.  The ones with *s are especially important.

The only mind-blowing case we looked at so far was Luther v. Borden.  Did you know that there was a revolution in Rhode Island between a democratic insurgency and the standing dictatorial regime?  In upholding the dictatorial regime’s claim, the Supreme Court found that the Guaranty Clause (which guarantees to each state a republican form of government) was not actually meant for the Court to use.

Political Questions Doctrine

• *Marbury v. Madison
  • Main finding was that the Court asserted it had the authority of judicial review under Constitution.  It relies mostly on textualism, with some  structuralism and original history.
  • Relying mostly on textual arguments, it disclaims jurisdiction over the case because its only claim to original jurisdiction is a law “repugnant to the Constitution.”
  • The Court disclaims responsibility over “political questions,” matters best left to elected executive and legislative leaders.  However, the judicial power of the US extends to all cases arising under the Constitution.
  • It is the Court that decides what the law, the Constitution, is.
• *Dred Scott v. Sandford
  • Main question– does Congress have authority to restrict slavery in territories?  Taney’s majority says no.
  • Taney: Congress isn’t so authorized by needful rules clause– founders hadn’t intended that to apply to territory outside the 13 colonies.  (?)
  • Relies on dual sovereignty
  • Strict construction of national powers: “the Federal Government can exercise no power over a citizen’s person or property, beyond what that instrument [the Constitution] confers, nor lawfully deny any right which it has reserved.”  After finding that Congress was not constitutionally authorized to pass the Missouri Compromise, Dred Scott was therefore not made free by being taken into what is now Minnesota.
  • Taney relies on precedent (Strader v. Graham) to say that Dred Scott did not become free by entering free state Illinois.
  • Finally, slaves have no citizenship and cannot therefore file suit in US courts.
  • Curtis’s dissent: counters Taney’s strict construction by pointing out that no Congress and states have not been authorized to disenfranchise a group of people who were citizens at the time of the adoption of the Constitution.
  • Curtis relies on judicial restraint to contend that the Court should not overturn the Missouri Compromise.
• Minor case: Cooper v. Aaron (1958)
  • Judical supremacy… no state officials or legislatures can challenge federal judicial findings.
• Minor case: Ex Parte McCardle (1868)
  • Court finds that it has no appellate jurisdiction in this case because Congress took it away.
• Luther v. Borden (1849)
  • Case happened following a democratic revolution and reactionary counterrevolution in Rhode Island (complete with a dictatorship and martial law).
  • Main question– which regime is the legitimate government of Rhode Island?
  • Taney’s majority relies on structural argument: Congress must decide which government is legitimate for it to find that government in (non)compliance with the guaranty clause.  In this case, Congress had delegated that authority to the President.
  • More structuralism: if courts were free to question the President’s judgment, only anarchy would be guaranteed.
  • He relies on the principle of the president recognizing foreign governments , which has been applied to state governments by a Congressional act.
  • Political questions: whether a new government has been legitimately established is a political question.  Court won’t touch it.
• *Baker v. Carr (1962)
  • Arose because of a dispute about Tennessee’s state legislative districts.
  • Lack of jurisdiction vs. nonjusticiability.  For nonjusticiability, it comes down to whether duty is judicial in nature and remedy/protection can be made judicially.  Court finds that this issue is justiciable; ie not a political question.
  • Brennan’s majority uses precedent: right to vote free of arbitrary impairment has been previously recognized by Court.
  • Brennan: protecting political rights does not necessarily entail a political question. Political questions involve the relationship between the branches of the federal government, not between federal judiciary and the states.  Nonjudiciability is mostly a matter of separation of powers.
  • Frankfurter’s minority thinks this case spits on stare decisis by conflating legislative representation and apportionment with denial of voting rights based on race, religion or sex.
  • Frankfurter: this ruling compromises Court’s position in federal government by weakening public confidence in its ability to stay neutral, out of political fights.
  • Frankfurter also questions the original history of this… first the British, then the colonies and the states have always been malapportioned.
• Goldwater v. Carter (1979)
  • Carter terminates defense treaty with Taiwan without notifying Senate.
  • Powell’s concurrence: courts can’t act upon Goldwater’s complaint because both sides haven’t yet taken action to assert constitutional authority.  Until there is a constitutional impasse, judicial branch has no role (structual argument).
  • Rehnquist’s majority: it’s a nonjusticiable political question that can never be acted upon.  Powell rebuts this by relying on doctrine established in Baker v. Carr.
  • Brennan’s dissent finds that political question doctrine only applies IF the branch is acting on its constitutionally provided authority.  In this case, he believes that President’s authority is weak.  He then finds that the court should rule prudentially by quickly finding that the President alone can offer/withdraw recognition of foreign governments.
• *Nixon v. USA (1993)
  • Walter Nixon gets impeached after Senate committee “tries” him.
  • Rehnquist’s 9-0 majority: the case is nonjusticiable.  A political question is where there is a textual constitutional commitment of the issue to a political branch or a lack of judicial standards for resolving it.
  • In this case, the Constitution gives Senate the “sole Power to try all Impeachments.”  Nixon argues that “try” means that it has to be judicial-style proceedings, instead of just a committee’s hearings, but Rehnquist can’t find conclusive evidence the Founders meant it that way.  Textually, he looks at the three highly precise restrictions on these proceedings and then concludes the Founders did not mean to impose broad limitations thereon.

Separation/Distribution of Powers

• Youngstown v. Sawyer (1952)
  • Truman seized steel mills and notified Congress, telling them that he would abide by their decision. Congress took no action.
  • Truman’s decision was not warranted because Congress had expressly denied Truman that power.  For Black, even the mere absence of approval was enough.
  • Jackson sets up a doctrine where President’s power is broadest with express approval of Congress, and at its lowest ebb if incompatible with expressed or implied will of Congress.  Twilight zone depends on case-by-case circumstances rather than abstract theories of law.
• *INS v. Chadha (1983)
  • Invalidated legislative veto.  This was a formalist, rather than functional, view of separation of powers.  It also violates the presentment clause and bicameralism.
  • Justice Powell concurs, but wants a limited ruling.  He says that Congress has assumed a judicial function in this case, which is unconstitutional. 
  • Justice White sees a Hobbesian choice.  Congress isn’t able to lay out laws for every eventuality, so it must be forced to surrender law-making authority to executive branch if it can’t use legislative veto. 
• *Morrison v. Olson (1988)
  • Pendulum swings back to a more functional, rather than formalist, view of separation of powers.  Morrison finds that Congress creating an independent counsel position does not violate the separation of powers principle.
• Clinton v. Jones (1997)
  • Official immunity exists for state acts done in an official capacity… Clinton’s acts done before presidency are not covered.
  • There is no separation of powers issue because the judiciary is not being asked to perform a task that is executive.  The case cannot curtail the scope of the Executive Branch’s official powers.
• Clinton v. NY (1998)
  • Steven’s majority finds key differences between a line-item veto and the veto as described under constitution.  This tips the pendulum again from functional to formalistic. 
  • President explains the line-item veto as part of the power to decline to spend or decline implement specific tax measures. 
  • The court rules prudentially on the grounds that the line-item veto authorized by Congress is not authorized by constitution.  Its textual arguments—that a bill altered by line item veto is not exactly what was presented to President, is also pretty compelling.
  • Scalia’s minority is joined by Breyer on a defense of the veto against Presentment Clause attacks… the line-item veto occurs only after requirements of PC have been met.  Scalia says the real issue here is an unconstitutional delegation of congressional authority. 

Separated/Divided Powers in Foreign and Military Policy

• *Missouri v. Holland
  • Holmes’ majority interprets 10^th amendment in light of “what this country has become.”  The nation has a significant interest in applying treaties everywhere (to ensure compliance). 
  • Holmes acknowledges that there are some limitations on the treaty-making power, but doesn’t say what they are. 
• *Youngstown v. Sawyer (more important in this area than before).
  • The court looked at congressional proceedings—in 1947, Congress had rejected an amendment to allow for seizures in emergencies. 
  • Balance of powers issue—president took on a law-making capacity by seizing the mills without authorization. 
  • Jackson’s concurrence finds that the President’s power fluctuates as it agrees with Congress. 
• Prize Cases (1862)
  • President can “recognize” that we are under attack and respond within authority as commander-in-chief.  Otherwise, declaration of war (explicit or implicit?) must come from Congress. 
  • Nelson’s dissent finds that war only exists in a legal sense with declaration. 
• *USA v. Curtis-Wright
  • Nondelegation doctrine only applies to domestic sphere. 
  • The sources and nature of foreign and domestic power are different.  Constitution serves to divvy up state and national power the powers the states had.  States never had foreign powers, though. 
  • Even if foreign policy powers were never mentioned in Constitution, they’d be federal powers because that’s a necessary national power.  To be sovereign, the USA must have those powers. 
  • The President alone speaks as the nation’s representative. 
  • Court prudentially refuses to rule on constitutionality of joint resolution authorizing embargo. 
• War Powers Resolution
• Iraq Resolution
• Korematsu v. USA (1944)
  • Uses precedent established in Hirabayashi, which found that Japanese curfew was acceptable. 
  • President acted with congressional authority
  • Frankfurter’s concurrence implicitly acknowledges the issue’s nonjusticiability. 
• Zadvydas v. Davis (2001)
  • Breyer’s majority finds that indefinite detention raises a serious constitutional problem (due process clause). 
  • It examines past precedent that upholds the government’s contention.  But Mezei was at Ellis Island and not actually in the US. 
  • Scalia says that courts should never second-guess AG’s authority to indefinitely detain.  This would grant a constitutional right to release an individual who doesn’t even claim a right to be here.  Kennedy says that this case is fine, but there might be some cases where the courts should intervene. 
  • This tends to contradict Supreme Court deference on foreign issues.  The nation speaking with one voice on these issues is not so important here. 
• *Ex parte Milligan (1866)
  • Main question: did military commission have jurisdiction?  No—the Constitution is a law for rulers and people, equally in war and peace, and covers all classes of men at all times under all circumstances. 
  • Discounts theory that constitution should be revocable in emergencies.  It rejects that theory based on the government having all the powers it needs.
  • Military tribunal was not established by Congress, nor would that have resolved the problem.  The military necessity is questionable where the courts are open (ie Union states like Indiana).  In a military tribunal, Milligan was denied several constitutional rights (trial by jury, etc). 
  • The dissent argues that the entire nation was at some risk of invasion and that an impending invasion was enough for Congress to declare military districts.  
• *Ex parte Quirin (1942)
  • Congress and President are obliged to provide for the common defense.  They can make all laws necessary and proper to executing that. 
  • Majority distinguishes between lawful and unlawful combatants. 
  • Majority finds that Founders did not intend 5^th amendment to forbid military tribunals. 
  • Majority sidesteps Milligan precedent by saying that Milligan was not an enemy combatant. 

Federalism

• *McCulloch v. Maryland
  • State of Maryland says that the Constitution is a contract between states and federal government.  This isn’t part of the federal powers, so it isn’t constitutional.
  • Marshall delivers a unanimous decision—Constitution proceeds directly from the people.
  • Federal supremacy, within its limited sphere of action. 
  • Necessary and proper clause. 
  • More textual evidence/original intent: omission of the word “expressly” in the 10^th amendment.  Because bank is implicitly granted to feds, 10^th amendment doesn’t apply. 
  • Constitution as a great outline of government.  It can’t spell out every specific thing the government can do. 
  • Marshall rejects limited definition of “necessary”
  • Original history in the use of phrase “proper and necessary”
• *US Term Limits (1995)
  • Two main issues: can states add/alter qualifications enumerated in the constitution?  If not, can a ballot access restriction pass muster anyway?
  • First, adding qualifications not within original powers of the states.  Second, Framers intended Constitution to be sole source of qualifications.
  • 10^th amendment only reserves rights that states had before. 
  • Intent and effect of ballot restriction is to disqualify incumbents.  No go. 
  • Thomas’ minority says that the Constitution is silent, and thus raises no bar to actions by the state or people. 
  • Thomas busts a move.  All governmental powers stem from the people of the states, so it is incoherent to assert that they cannot reserve a power that came from them.  States maintain an independent political identity…
• *Printz v. USA (1997)
  • Big ruling is that states can’t be compelled to carry out federal law.  Congress can’t require state law enforcement to enforce/administrate. 
  • This usurps President’s authority. 
  • Scalia’s majority finds dual sovereignty. 
  • States can, however, be asked and induced to cooperate. 
• Federal Maritime Commission
• Baldwin v. Fish and Game
• *Gibbons v. Ogden (1824)
  • affirms state’s right to control exclusively internal commerce, but commerce in transit is subject to congressional standards. 
  • It does not address whether states can assume power in absence of congressional law. 
  • Affirms state police power. 
• Cooley v. Board of Wardens (1851)
  • Focus shifts from commerce/police power to nature of subject regulated.  Is it something that requires a national set of standards or can local standards reign?  This isn’t the clearest standard, though. 
• *Southern Pacific v. Arizona (1945)
  • benefits-burden analysis. 
  • States have some authority to regulate inter-state commerce but the state’s interest in doing so be balanced against burden to ISC. 
  • Black’s minority based on judicial restraint.  Judging the safety concern is a political issue. 
• *Philadelphia v. NJ (1978)
  • NJ can’t ban imports of waste from other states.  This isn’t comparable to a quarantine because movement of waste into NJ isn’t harmful to public health. 
  • Waste might cause harm after deposit, but there’s no basis to distinguish in-state vs. out-state.  NJ accepts in-state so it must accept in-state. 
  • Rehnquist tears into this reasoning. 

Federal economic jurisprudence

• Hammer v. Dagenhart
  • Example of pre-1937 jurisprudence.  Law banning IS transport of kid-produced goods is found unconstitutional. 
  • Looking at Champion, Holmes’ dissent finds congress CAN inhibit trade. 
• *NLRB v. Jones & Laughlin (1937)
  • NLRA stands.  This represents a new era of jurisprudence. 
  • There is still homage to avoiding the obliteration of the distinction between national and local government. 
• *Wickard v. Filburn (1942)
  • Cumulative effects doctrine.  Although individual act may be insignificant, allowing it and similar acts could be huge.  
  • Congress can legislate over acts that have only an indirect effect on interstate commerce, like growing wheat so you don’t buy others’. 
• *Heart of Atlanta Motel v. USA (1964)
  • Court finds that ISC can be used to enforce civil rights.  Relies on anecdotal evidence that many hotels are serving to impede IS travel.
  • Black’s concurrence acknowledges that a purely local establishment that has little out-state economic impact is outside this. 
  • Douglas looks beyond the commerce clause to 14^th amendment. 
• *USA v. Lopez (1995)
  • commerce clause does not extend to gun possession within 1000 feet of school. 
  • Feds can regulate/protect under commerce power the channels of ISC, the instruments or persons/things in ISC, even though the threat may be from purely intrastate. 
  • Court declines to endorse government’s reasoning that anything that could conceivably affect economic productivity or lead to violent crime can be regulated.  To do so would be to jeopardize the sphere of state sovereignty (education, law enforcement, etc).  Or childrearing. 
  • Thomas goes a bit further, arguing that there are a LOT of areas in which federal regulation oversteps Commerce Clause limits. 
  • Breyer looks at cumulative effect of guns at schools and finds that there is a considerable economic impact of guns at schools.   
• *USA v. Morrison (2000)
  • Upholding Lopez precedent, finds that the gender-motivated crimes are not economic activity in any sense. 
  • Violent crime goes to the heart of state police powers. 
  • Thomas writes a concurrence to reject the “substantial effects” doctrine. 
  • Souter is upset that his beloved substantial/cumulative effects doctrines have been silently sidelined. 
• Some important theories: judicial review, unwritten constitution, writ of mandamus, original/appellate jurisdiction, political question doctrine, original intent, structuralism, legislative veto, item veto, presentment clause, bicameralism, police power, substantial effects doctrine, dual federalism, general welfare clause, cumulative effects doctrine, spending power.

Fortunately, a lot of these cases are pretty important to US political history (Dred Scott, Korematsu, McCulloch, Marbury, etc.)

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