#11234 - Constitutional Law Condensed - Constitutional Law Outline

CONSTITUTIONAL LAW OUTLINE

University of Virginia School of Law

Schauer, Spring 2014

Congress’s Power to Act 2

Implied Powers 2

Necessary and Proper Clause 2

Commerce Power 3

Taxing and Spending Power 4

Article 5 of the 14^th Amendment 4

Separation of Powers Issues 4

10^th Amendment Restrictions 4

Presidential Power 5

State’s Power to Legislate 6

Dormant Commerce Clause 6

Substantive Due Process 7

Equal Protection 9

Takings 12

Health Care 12

WAR POWERS 13

LIBYA HYPO 14

Congress may choose any means, not prohibited by the Constitution, to carry out its lawful authority [McCulloch v. Maryland]

Necessary & Proper Clause grants Congress the legislative authority to enact federal statutes that constitute a means that is rationally related to the implementation of a constitutionally enumerated power [Comstock]

Congress is allowed to regulate intrastate if it has an impact on interstate activities [Gibbons v. Ogden]

• Congress can also PROHIBIT things from being in interstate commerce [Champion]

• As long as something is moving in between states, congress does NOT need a commercial motivation to regulate [Champion] (did it for morality)

  • However, if regulating solely intrastate activity, thumb on the scale if regulating non-econ activity [Morrison]

• Congress may regulate the instrumentalities of interstate commerce [planes, trains, trucks, ships] or persons or things in interstate commerce, even though the threat may come only from intrastate activities [Shreveport RR]

Solely intrastate production was once seen as outside the scope of Congress’ commerce power [Dagenhart] (overruled by Darby)

• However if a business itself is an interstate “enterprise”, its activities, although mostly intrastate when separately considered, necessarily usually have a close and substantial relation on interstate commerce (NLRB)

Then (before Lopez), even solely intrastate production (any intrastate activity) became within Congress’ power if they have a rational basis in believing the activity has a substantial effect on interstate commerce [Darby]

• Even if the local effect on interstate commerce is small, if the aggregate or cumulative effect of such could in fact has a substantial relation on interstate commerce, Congress can regulate [Wickard]

  • Key to this argument is that such a good must be fungible and easily aggregated [Wickard]

    • Court has never allowed the aggregation of a non-economic activity [Morrison]

• Congress can regulate non-problem causing members of a problem-causing class [Perez]

• Congress can regulate the “channels of interstate commerce or activity within the channels” [HoA]

  • Can also legislate morality in the interest of commerce [HoA]

Before Lopez, Court deferred to Congress, even in obscure chains of inferences (lowest level of scrutiny, no evidence needed) [Katzenbach]

Lopez (cited in Morrison) Framework: (draws on the above principles)

Congress can regulate:

1. The use of the Channels of Interstate Commerce (HoA, Darby)

2. And protect the instrumentalities of interstate commerce, or persons/things in interstate commerce (Shreveport)

3. Activities that substantially affect interstate commerce (NLRB, Darby)

• If intrastate non-economic activity, esp. if usually left to states, thumb on the scale against it (Mor. / Lopez)

• Have never upheld an aggregation of a non-economic activity (Morrison)

• Congress must have more than just a “rational basis” in believing activity sub. eff. int commerce and an extended chain of inferences will be looked unfavorably upon, even with congress. findings (Morrison)

Gonzalez v. Raich: Where a class of activities is within federal power to be regulated, congress can regulate intrastate instances of that activity in furtherance of the broader regulatory scheme. Congress can control the interstate drug trade and local cultivation affects supply and demand of interstate trade, resulting in a substantial effect on interstate commerce

Sebelius: Congress has the power to regulate existing commerce, not compel the creation of commerce

The General Idea is Congress is free to tax and spend for the general welfare (U.S. v. Butler), but the line between encouragement and coercion matters (Dole, Sebelius) – congress cannot tax and [conditionally] spend to coerce behavior into essentially regulating something that they otherwise do not have the power to regulate [Bailey, Sebelius]

Any conditions on spending must be reasonably related to the program for which the money is given [Dole]

Gives Congress the power to enforce the Equal Protection and Due Process Clauses by appropriate legislation (power beyond its enumerated powers

• Civil Rights Cases held this power could only be used on state action, not private action

• “any municipal golf course found to discriminate on the basis of race is fined $100 – permissible under § 5

Congress does not have the power to delegate to themselves powers constitutionally given to another branch through legislation [Chada] (functionalist argument)

• The formalist argument is that the background purpose of two house approval and presentment should act as a check in itself (on what congress does through legislation) [Chada Dissent]

Likewise, congress does not have the power to statutorily increase another branch of the government’s power (president here) [Clinton v. NY]

• The functionalist argument is the converse to this, in that today the budget and other factors are so different that in the interest of legislative efficiency some powers may need to be moved around a bit [Clinton, Dissent]

Congress also technically does not have the power to delegate their powers to agencies pursuant Non Delegation Doctrine [Shectar Poultry]

• Has not been enforced since 1937. Congress does this today (OSHA etc), but the argument still looms

  • Morrison and Mastretta suggest evolving SC views on delegation

“the tenth amendment states but a truism that all is retained which is not granted” (not a limitation on Congress’ power itself” [Darby]

• Sole exception is when federal law attempts to regulate state enforcement/monitoring, federal law must regulate their own law [Printz]

1) Presidential Power is greatest when he is acting with explicit congressional authorization [Youngstown]

2) “Zone of Twilight” cases in which we are “unsure” (does not contradict anything in which congress has done), past practice makes a difference more so than it does in other areas [congressional acquiescence, even if not explicit approval, makes a difference] (ex. war, foreign policy, national defense etc) [Youngstown]

• The two classes of power (foreign and domestic) are different, and the argument that the federal government (including the president) can exercise no powers except those specifically enumerated in the Constitution is true only in internal affairs [Curtiss-Wright]

  • The federal government’s power to wage war and maintain relations with other sovereignties is a power distinct from those enumerated in the constitution [Curtiss-Wright]

    • “Congressional legislation must often accord to the President a degree of discretion and freedom from statutory restrict which would not be admissible were domestic affairs alone involved” [Curtiss-Wright]

• Presidential powers may be more broad during war time “the exigence of the circumstances may demand that . . . proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict” [Hamidi]

  • Normal levels of “scrutiny” may be changed during war time [Korematsu]

• Enactment of legislation by congress that is closely related to the Q of the president’s authority may be considered to “invite” measures on independent presidential responsibility, when there is no contrary indication of legislative intent and when there is a history of similar conduct being acquiescence to by congress [Dames & Moore]

3) If in a plausible interpretation of acts of Congress they have said NO, that does not end the inquiry. President has power independent of Congress, but this is the area in which presidential power is the weakest. [Youngstown]

• “No citizen shall be detained except pursuant to an act of Congress” suggests president...