The President's power to pardon

A few of you asked some terrific questions in class on Monday concerning the breadth of the President's constitutional power to issue pardons. And, lo and behold, I think we have some answers.

The pardon power is set out in Article II, section 2, clause 1. It states that the President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in cases of Impeachment." One obvious limitation, which flows from both the text and our federal structure, is that the President cannot pardon persons from offenses against the states (that is, violations of state law). Another clear textual limitation is that the power does not extend to cases of impeachment.

Beyond that, there does not appear to be much by way of limits. There is no substantive limit as to what is a legitimate basis for granting a pardon. Thus, there is nothing that prevents the President, other than political forces, from granting pardons in cases where he has a clear conflict of interest (consider the cases of Casper Weinberger and Marc Rich).

Further, it includes the power to pardon whole classes of people simultaneously by proclamations of amnesty, see United States v. Klein, 80 U.S. 128, 147 (1871), and it can be exercised any time subsequent to the commission of the offense, even prior to indictment, see Ex parte Garland, 71 U.S. 333 (1866). Moreover, the pardon power cannot be "modified, abridged, or diminished by the Congress." Schick v. Reed, 419 U.S. 256, 266 (1974).

The President may not, however, pardon persons for acts that have not yet been committed. See L. Tribe, American Constitutional Law sec. 4-10, at p. 720 (3d ed. 2000). As some of you foresaw in our discussion Monday, such a power "would amount to a presidential arrogation of authority to dispense with the laws--and hence the rule of law--altogether." Id.

The right to privacy

Some more questions . . .

QUESTION: In Griswold and Baird, the Court apparently finds the right to privacy to be a fundamental right. Yet, the analysis the Court uses is a legitimate interest/reasonable fit test. Again, is this because the Court is saying, "Hello state, you can't even meet the "reasonableness test," so there is no way you'd meet the compelling interest/necessary means test?

ANSWER: That has always been my understanding, as the Court elsewhere in those opinions clearly discusses the right at issue as being "fundamental."

QUESTION: My confusion or question then goes to the Lawrence case.

ANSWER: You and me both.

QUESTION: Even though the Court does not declare the right in Lawrence to be fundamental, can't we look at the law in two ways: (1) This is not a right to sodomy as the dissent points out but simply the right to privacy again, and therefore an implicit use of the Strict Scrutiny Test? and (2) Even if it is not a fundamental right, since it is certainly viable that a moral code interest may not be "legitimate" meaning the court could also say the Texas law does not even meet the rational basis test and, regardless of whether the right is fundamental, there is no way that the State could prevail.

ANSWER: You have hit on precisely the question that I have for all of you -- namely, what exactly is the Court doing in Lawrence? And you have laid out the two basic interpretations that seem possible. Notice, though, that there are problems with each. If the right in Lawrence (however we describe it) is fundamental, that has several implications for what other sorts of laws should be subjected to strict scrutiny, implications that the majority takes pains not to imply. On the other hand, if this law fails the rational basis test because the view that the conduct in question was immoral was an illegitimate interest, that could have some profound implications as well. What about our moral judgment about other practices, sexual or otherwise? Would that reading of Lawrence suggest that the majority's view of morality, at least by itself, cannot be a legitimate state interest? No easy answers here, and the Court is quite cagey about how it phrases its analysis.

Questions about the exam

Here are some answers to a range of questions I have received about the final exam recently. Please let me know if you have others I have not addressed.

QUESTION: What will be the format of the exam?

ANSWER: A mixture of multiple-choice questions and one or two essay questions, roughly half of each.

QUESTION: Will the exam be open book?

ANSWER: Yes. All printed material is fair game, other than books checked out of the library. Your outline. Your friend's outline. Commercial outlines. Flash cards. Whatever. (For what it is worth, I do not think such things are very helpful, but that is for you to decide.)

QUESTION: Will you allow us to use our computers for any reason other than to write the exam, such as to access our notes saved in our hard drives.

ANSWER: No. If you want it at the exam, bring a hard copy. My apologies for the environmental degradation. For a more detailed explanation, please see my prior post on the topic here.

QUESTION: Can you provide any indication of what sorts of questions you tend to ask, or what types of answers you prefer.

ANSWER: I think the best indications would be my past exams and my model answers to those exams. All of my past exams, checklists for answers, and some complete model answers are posted on the ClaraNet course page.

QUESTION: Do you have any suggestion as to how to prepare for the multiple choice portion of the exam?

ANSWER: Unfortunately, I am not smart enough or creative enough to devise a set of parallel, "reject" multiple choice questions. But I think that the best indication of what my questions are like will be my past essay questions. The principal reason I use multiple choice questions is to cover more topics than I can possibly reach in a three-hour essay exam. To me, the perfect multiple choice question is a brief, essay-like fact pattern that calls on the student to successfully complete one, discrete step in the legal analysis. Thus, I think of multiple-choice questions as very similar to a short essay question, but where the student must only fill in a circle rather than taking th time to write out the analysis.

Again, if you have additional questions about the exam, please let me know, and I will be happy to answer them.

Schedule for office hours and exam review

Here is a schedule of when I will be holding additional office hours and a review session in the week leading up to our final exam.

Tuesday, December 2: office hours 10:30-2:30

Wednesday, December 3: office hours 10:30-2:30

Sunday, December 7: review session, 3:00, Room 142

Monday, December 8: office hours, noon-4:30

I generally do not make individual appointments for office hours, but instead speak with students as they come to my office. If several students arrive at the same time, I will move our discussion to a table in Benson, where a group can participate together. (I will leave a note on my office door if I do so.)

The review session, of course, is purely optional. I will not present any material, but instead merely answer questions in a group setting.

And I am sure you all realize this, but the purpose of my answering questions at this point in the course is to clarify issues that you have been unable to resolve on your own. That is, I am here to help you after you have tried to answer the questions yourselves. My job is to offer a framework, to organize the material, and to provide you with the tools for comprehension. But the work of learning is on you. To state it in more crass terms, something like "Can you just go over the dormant Commerce Clause again?" is a question I will not answer.

Again, I am sure you know this already, but a gentle reminder is sometimes helpful. Thanks.

We will have class next Wednesday

I know this will come as a disappointment to many of you, but our class will meet next Wednesday, November 26 (even though the civil procedure class is canceled). There are a variety of reasons for this, but at bottom (1) I feel an obligation to cover the material set out in the syllabus, as this is what you will all be expected to have mastered entering con law II, and (2) given your various schedules, it would be impossible to schedule a different time to make up the class. As I said on the first day of class, I understand when students choose to spend their time elsewhere (or, perhaps more accurately, I try not to be judgmental about it). So if you fell like you would rather be someplace else, that is your prerogative. At the same time, you all are paying an awful lot of money to be here. And I feel a strong professional obligation to hold up the school's end of the bargain.

Remaining reading assignments

The following sets out what we are likely to cover in our remaining class meetings, respectively.

Wednesday, November 19: the right to privacy and Roe v. Wade (pp. 850-868).

Monday, November 24: Planned Parenthood v. Casey, the government funding of abortion services, and (perhaps only start) Lawrence v. Texas (pp. 867-878, 897-901, 891-895, 920-932).

Wednesday, November 26: Lawrence v. Texas and the right to marry (pp. 821-827).

Notes and the final exam

I will have a longer post addressing procedural questions concerning the final exam within the next week. But I thought I should address this one now.

QUESTION: I was wondering whether students will have access to their notes in the computer during the exam? In the past, I've taken an exam on examsoft, where access to my notes on the computer remained available (Professor Neustadler's Contract Exam). If possible, I would like that option available. Thank you very much for your consideration.

ANSWER: You are welcome for the consideration. But you are going to be disappointed with my answer, which is no. The short of it is that I am inherently conservative in tinkering with exam procedures, so my strong presumption is in favor keeping things the same. My underlying substantive concern with opening up laptops for such access is that it rewards students who (a) stuff exorbitant amounts of material on their hard drives, and (b) are able to access that material through various searches during the exam. And I am thinking not just about what is actually fair, but also various perceptions of fairness.

Thus, the answer is no. I will maintain the default setting in examsoft, which means you will not be able to access anything on your hard drive. The exam is completely open book. But if you want access to something, you need to bring it to the exam in a hard copy.

More on Carolene Products

Some good questions about Carolene Products:

QUESTION: The Filled Milk Act was an act of Congress that I presume was enacted pursuant to the Commerce Clause. Forgoing the first two basis for interstate regulation we'll assume that interstate commerce of the product ("Milnut") has a substantial relation to interstate commerce and the basis for the action by Congress falls within its powers. What is unclear, but I presume, is that Carolene Products challenged the statute because the act amounted to a deprivation of its property.

ANSWER: I think that is essentially correct. More specifically, it might have phrased the claim as the law infringing on its fundamental right to contract -- to sell its product (which it believed was perfectly safe) to willing buyers. This is the potential contract that was forbidden.

QUESTION: Since the action is Congress' then the 5th Amendment is the proper recourse to challenge the deprivation. Is it correct to understand that Carolene Products is asserting the right at issue (the right to manufacture and ship "Milnut") is a "substantive due process right" or an "economic liberty." I am at a loss to define what either term really means.

ANSWER: Essentially, yes. It was a substantive right to economic liberty which the Court had previously recognized as a fundamental right under the Due Process Clause (in both the Fifth and Fourteenth Amendments). I'm not sure we can get too far into the exact contours of that right, as it would require delving into hundreds of cases decided between 1880 and 1937. But the basic idea was that, absent a "legitimate public concern" -- a clear health, safety, or morals interest -- the government was prohibited from interfering with willing buyers and sellers in the economic marketplace. Hence, no minimum wage, maximum hour, pro-union legislation or the like. Carolene Products likely would have prevailed on its claim during the Lochner era because the safety rationale for the legislation looked pretty weak, and the Filled Milk Act likely was meant to protect regular milk producers from competition.

QUESTION: We've seen examples of economic rights tied to minimum wage standards (West Coast Hotel) maximum work weeks (Lochner), prohibition on the manufacture or sales of a product (Carolene) and prohibitions for the sales of services without a prescription (Lee Optical). Are challenges to economic regulation which impedes my freedom to freely engage in activities for compensation (beyond the freedom to contract) necessarily challenges to substantive due process rights because they are a deprivation of property or "economic liberty"?

ANSWER: Not if the claim is that the regulation in question violates another clause, such as the Contracts Clause or the Takings Clause. But as to the cases you mention, yes, because they are substantive rights (that is, they are unrelated to the procedure by which property is being taken) that the plaintiff claims are protected by the Due Process Clause.

QUESTION: This appears to me to make the most sense. And so long as the Court construes that Congress, or a State legislature, had a rational basis (the government had a legitimate purpose and the legislation was reasonably related to that purpose) then economic regulation, which might have the affect of depriving me of income or property does NOT itself violate my substantive due process.

ANSWER: I would agree. Unless, apparently, we are talking about punitive damages. There, the Court seems to be applying something more than rational basis review.

Could the President be held in contempt?

I received this interesting question over the weekend:

QUESTION: Earlier in the course, we discussed how the Supreme Court lacks any ability to enforce its decisions and, therefore, out of a perfectly sensible sense of self-preservation, the justices try to avoid decisions that will create a great deal of conflict with the other arms of government if possible. If the Supreme Court were to hand down a decision, and the president decided to not follow it, could the Court then hold him in contempt and, if so, could the House then impeach him for "high crimes and misdemeanors"? Obviously, this still requires the cooperation of another branch to assist the Court, but could it happen?

ANSWER: The short answer is yes, but there are a few different steps to the relevant analysis. First, could a court (any court) hold the President in contempt? The answer would seem to be yes, as the Court implied in the famous Watergate tapes case, United States v. Nixon. At issue there was whether President Nixon was required to turn over the tapes which plainly revealed that he know of the Watergate break-in and was involved in its cover-up. The Court held that a federal court could order the President to turn over the tapes, and thus implicitly held that the court could hold the President in contempt if he did not. (Whether a sitting President could actually be criminally prosecuted is a different matter, and most people believe that would be unconstitutional.)

Second, could the President be held in contempt by a court for failing to enforce a statute? Conceivably, but this seems exceedingly unlikely. Since a contempt citation against a sitting President would be largely (perhaps entirely) symbolic, there is not much difference between that and an authoritative judgment that the Executive Branch has a binding legal obligation, and he is not following it. In practical effect, they are the same thing.

Finally, could the House initiate impeachment proceedings on this basis? Absolutely. And the charge of failing to follow (or ignoring) binding federal law probably would not be any different than an actual contempt finding. Ultimately, "high crimes and misdemeanors" are "political crimes" -- crimes against the Republic and its political well being. If the President is defying the obligations of his office (or a majority of the House believes so), that is grounds for impeachment. A specific contempt citation (which a court would be unlikely to issue regardless) would mostly be besides the point. As in the Clinton saga, whether the relevant offenses warranted impeachment or removal from office would be fought out in the courts of politics and public opinion.

Next week's assignments

Here is the material I think we will cover in our two class meetings next week.

Monday, November 17: finish punitive damages, the Contracts Clause, the Takings Clause, and the right to privacy (Griswold v. Connecticut). Thus, the assignment is as scheduled, except we will not get past p.856.

Wednesday, November 19: continuation of the right to privacy and the right to abortion. In addition to pp. 856-858, the assignment remains that set out in the original assignment schedule (pp. 858-878, 897-901), though it is likely we will not complete this discussion until Monday, November 24.

Thanks.

Privileges, immunities, Article IV, and the Fourteenth Amendment

I have received a few questions in the last week seeking a clarification on the similarities or differences between the Constitution's two clauses guaranteeing citizens their privileges or immunities. These questions are representative.

QUESTION: I am still unclear about the differences between the two. If you can review my summary below, I would appreciate it if you can correct my understanding or fill in any missing key points.

Privileges and Immunities Clause of Artilce IV Sec. 2
- General Purpose: to protect against state discrimination of out-of-staters with regard to "fundamental" rights or important economic activities.
- Test: Intermediate Scrutiny Test: Such discrimination will be allowed only it is substantially related to achieving a substantial state interest

ANSWER: That seems like an accurate summary to me. The one caveat I would add is that the rights for which Article IV scrutiny is triggered (when provided on a discriminatory basis) are a not necessarily the same as those considered "fundamental" as a matter of due process. There may be considerable overlap, but they are not the same. For instance, commercial shrimping is not protected by the Due Process Clause.

QUESTION: Privileges or Immunities Clause of 14th Amend. (I am unclear about this one)
- General Purpose: after incorporation, 14th Amend protects citizens from discrimination of fundamental rights, such as rights enumerated in the Bill of Rights, by the State. (Are there any other fundamental rights?)
- Test: Strict Scrutiny Test: State's interest must be compelling and necessary means.

ANSWER: Not quite. I think it is true that the Court has come to understand one of the purposes of Section 1 of the Fourteenth Amendment as prohibiting states from depriving persons of their "fundamental rights"--most of the rights enshrined in the first eight amendments as well as some other unenumerated ones. But it has not done this via the Privileges or Immunities Clause. Rather, it has occurred as a matter of due process. The only right that the Supreme Court has recognized as protected by the Privileges or Immunities Clause of the Fourteenth Amendment is the aspect of the right to travel that involves interstate migration of United States citizens. And Saenz v. Roe suggests that the infringement of this right warrants strict scrutiny.

Next week's assignments

The assignments for next week's classes remain those set out in the assignment schedule. We will start class Monday by discussing Saenz and revisiting Problem 10, and then move on to the Lochner era and its demise. Wednesday, we take up various "economic" rights protected by the Constitution, including the right to just compensation when property is taken by the government. Because it is recent decision that has generated a great deal of controversy, I have assigned Kelo v. City of New London, which concerns the use of the eminent domain power for purposes of "economic development." A PDF of the full opinion is posted on the ClarNet course page. We will discuss Kelo either towards the end of Wendesday's class or at the beginning of the following week. Please read the majority opinion (authored by Justice Stevens) and Justice O'Connor's dissent.

A primer on the Electoral College

For those of you interested in a well written, relatively brief (20 pp.) primer on the Electoral College, you can find one here.

More dormant Commerce Clause questions

From my e-mail inbox over the weekend:

Question: In the Dean Milk case, we discussed alternative methods to achieving the state interest. One of the non-discriminatory alternatives was merely increasing the cost of milk to represent the true cost of the extra inspection. Is the essential difference between the two (the alternative we discussed and the actual law) the fact that the law coerces or mandates the milk in Madison to be only of local farmers or pasteurizers, whereas the alternative is an economic or market justification?

Answer: Yes and no. I would say that the difference is that Madison's law discriminated against interstate commerce (as it flatly barred milk based on geographic origin), whereas the alternative you mention did not. To be clear, the alternative you reference was to charge each seller of milk the actual cost to the City of Madison of inspecting their processing plants. This might naturally be a bit more for out-of-state producers, given the additional transportation costs. But the law would be non-discriminatory. All sellers would simply be forced to reimburse the City for the incurred inspection costs.

Question: In the Washington Apple case, where we discussed discrimination in affect and purpose, we established that the law was certainly discriminatory in practical effect. At the end of the case, you alluded you a point, and forgive me if I totally butchered it, but something along the lines of: If a law is found to have such a discriminatory affect, as in this case, to force the Washington apple producers to lose out in their competitive advantage, we can easily infer that the purpose of the law had to have been discriminatory. Is that how we determine discrimination in purpose?

Answer: Again, yes and no. I think in this particular case it was not so difficult to infer, especially when the proffered justifications by the North Carolina legislature rang so hollow. But this will not be true in every case. Again, as Exxon shows, a mere disparate impact on interstate commerce is insufficient to show discrimination in practical effect for purposes of the dormant Commerce Clause.

Question: How do we know if an interest is legitimate? From my understanding, it takes a examination of what the law is seeking to protect on its face but is there more to it, such as a test to apply?

Answer: There is no simple answer to this question, as it varies by context. With respect to the dormant Commerce Clause, almost any conceivable public interest is legitimate other than protecting the economic interests of the state's residents, or a subset of the state's residents. This is economic protectionism, and it is precisely what the dormant Commerce Clause seeks to forbid. Recall, though, that this is a perfectly legitimate interest if the state is acting as a market participant. Moreover, as we will see when we examine the Due Process Clause in the next few weeks, protecting the state's economic interests would be a legitimate interest for purposes of due process. So, what is legitimate depends on the context in which the question is raised.

Some more on the dormant Commerce Clause

This material is nothing if not a bit confusing, if only because what seems to be happening diverges from the doctrine articulated by the Court. So let me recap a few basic principles, in hopes of alleviating some of that confusion.

* First, as a doctrinal matter, the analysis is fairly simple. The first question we ask is whether the law at issue discriminates against interstate commerce. If it does, we apply "rigorous scrutiny," which requires a legitimate (i.e., non-protectionist) state interest and that the means be necessary to accomplish that objective. If the court determines the law to be non-discriminatory, we apply the Pike balancing test, and the law is unconstitutional only if its burden on interstate commerce is clearly excessive relative to its putative local benefits.

* Second, a law can qualify as discriminatory against interstate commerce on its face, in its purpose, or in its practical effect. The first two are fairly straightforward, and both clearly identify laws that are intended to discriminate against interstate commerce. The last is problematic category. As Exxon shows, not all laws that affect interstate commerce disproportionately are deemed to "discriminate in practical effect." As I tried to explain last night, I think what is ultimately driving that determination is an intuition that the law is motivated by a discriminatory purpose (even if the Court is unwilling to so state).

* Third, the same sort of thing seems to be going on in the Court's application of the Pike balancing test. That is, it sure seems that when the Court comes to the conclusion that the burdens imposed on interstate commerce are "clearly excessive" in light of what the state is attempting to accomplish, at least a strong inference is raised that something else is afoot. Again, this is not what the Court says in Pike or Kassel, but it seems to be what is going on.

* Finally, let me add one caveat that I forgot to mention last night. There are a class of cases where the Court has found the burden on interstate commerce "clearly excessive" when there probably was no protectionism afoot, and those are cases where states have done something to clog the channels of interstate commerce. Bibb might be the best example. It is unclear how requiring contoured mudflaps could have accomplished a protectionist objective. (I would want to look at the factual record to be sure, but it certainly seems counterintuitive.) Yet the Court invalidated the law. I think the idea is that, given that we are an economic union, states cannot adopt commercial laws that tend to impede the flow of commerce throughout the nation when their ideosyncrisy tends to clog up the flow of commerce. Kassel might also be classified as such a case, but as I said last night, I think Kassel can also be unsderstood as involving protectionism.

I hope this helps in some way. And, as always, feel free to ask more questions.

Next week

The reading assignments for next week's classes remain those set out in the assignment schedule. We will cover preemption on Monday and begin the material on the dormant Commerce Clause Wednesday. There is one modification: there will be no Problem 9. (I could manage to devise a preemption problem that justified the time it would take to cover in class.)

Also, as I mentioned in class last night, the lawyer for the Petitioner in Van de Kamp v. Goldstein, No. 07-854, will be mooting his Supreme Court argument at noon on Wednesday in our Moot Court Room. The question presented is whether supervising prosecutors are absolutely immune from civil rights claims based on their failure to implement an information management system tracking the information on government informants. All of the official documents in the case can be found here. (As a result of my participatin in the argument as a judge, I will not be available for my regularly scheduled office hours from noon to 1:30 next Wednesday.)

Analysis of Problem 8

For those interested in a thorough analysis of the constitutional problem with the appointment of administrative law judges within the PTO, you can read this short paper by Professor John Duffy of George Washington University Law School. (Once arriving at the page with the abstract, you can download a PDF version of the paper.) It was Duffy's research that led to the story blowing up this past summer, and the recent scramble in Congress to devise some sort of a fix.

Mere employees

During last night's class meeting, Stanley gently took issue with the distinction I was drawing between inferior officers and "mere employees." Instead of taking my word for it, here is the relevant section of the most recent Supreme Court opinion on the topic, again taken from Freytag v. Commissioner, 501 U.S. 868 (1991):

The Commissioner, in contrast to petitioners, argues that a special trial judge assigned under 7443A(b)(4) acts only as an aide to the Tax Court judge responsible for deciding the case. The special trial judge, as the Commissioner characterizes his work, does no more than assist the Tax Court judge in taking the evidence and preparing the proposed findings and opinion. Thus, the Commissioner concludes, special trial judges acting pursuant to 7443A(b)(4) are employees rather than "Officers of the United States."

"[A]ny appointee exercising significant authority pursuant to the laws of the United States is an `Officer of the United States,' and must, therefore, be appointed in the manner prescribed by 2, cl. 2, of [Art. II]." Buckley, 424 U. S., at 126. The two courts that have addressed the issue have held that special trial judges are "inferior Officers." The Tax Court so concluded in First Western Govt. Securities, Inc. v. Commissioner, 94 T. C. 549, 557-559 (1990), and the Court of Appeals for the Second Circuit in Samuels, Kramer & Co. v. Commissioner, 930 F. 2d 975, 985 (1991), agreed. Both courts considered the degree of authority exercised by the special trial judges to be so "significant" that it was inconsistent with the classifications of "lesser functionaries" or employees. Cf. Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-353 (1931) (United States commissioners are inferior officers). We agree with the Tax Court and the Second Circuit that a special trial judge is an "inferior Officer" whose appointment must conform to the Appointments Clause.

The Commissioner reasons that special trial judges may be deemed employees in subsection (b)(4) cases because they lack authority to enter a final decision. But this argument ignores the significance of the duties and discretion that special trial judges possess. The office of special trial judge is "established by Law," Art. II, 2, cl. 2, and the duties, salary, and means of appointment for that office are specified by statute. See Burnap v. United States, 252 U.S. 512, 516- 517 (1920); United States v. Germaine, 99 U.S. 508, 511-512 (1879). These characteristics distinguish special trial judges from special masters, who are hired by Article III courts on a temporary, episodic basis, whose positions are not established by law, and whose duties and functions are not delineated in a statute. Furthermore, special trial judges perform more than ministerial tasks. They take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders. In the course of carrying out these important functions, the special trial judges exercise significant discretion.

Even if the duties of special trial judges under subsection (b)(4) were not as significant as we and the two courts have found them to be, our conclusion would be unchanged. Under 7443A(b)(1), (2), and (3), and (c), the chief judge may assign special trial judges to render the decisions of the Tax Court in declaratory judgment proceedings and limited- amount tax cases. The Commissioner concedes that in cases governed by subsections (b)(1), (2), and (3), special trial judges act as inferior officers who exercise independent authority. But the Commissioner urges that petitioners may not rely on the extensive power wielded by the special trial judges in declaratory judgment proceedings and limited- amount tax cases because petitioners lack standing to assert the rights of taxpayers whose cases are assigned to special trial judges under subsections (b)(1), (2), and (3).

This standing argument seems to us to be beside the point. Special trial judges are not inferior officers for purposes of some of their duties under 7443A, but mere employees with respect to other responsibilities. The fact that an inferior officer on occasion performs duties that may be performed by an employee not subject to the Appointments Clause does not transform his status under the Constitution. If a special trial judge is an inferior officer for purposes of subsections (b)(1), (2), and (3), he is an inferior officer within the meaning of the Appointments Clause and he must be properly appointed.

"Heads of Departments"

Article II, sec. 2, clause 2 permits Congress to vest the appointment of inferior officers in "Heads of Departments." One of you asked last night whether this referred exclusively to members of the President's cabinet--officers such as the Secretary of Defense, the Attorney General, and the like. The Supreme Court addressed this question most directly in Freytag v. Commissioner, 501 U.S. 868 (1991), where the question presented concerned the appointment of special trial judges of the Tax Court by the Chief Judge of the Tax Court. The Tax Court is a non-Article III court, whose judges are not members of the federal judiciary.

In addressing the constitutionality of the trial judges' appointment, the Court in Freytag stated as follows:

This Court for more than a century has held that the term "Department" refers only to "`a part or division of the executive government, as the Department of State, or of the Treasury,' " expressly "creat[ed]" and "giv[en] . . . the name of a department" by Congress. Germaine, 99 U. S., at 510-511. See also Burnap, 252 U. S., at 515 ("The term head of a Department means . . . the Secretary in charge of a great division of the executive branch of the Government, like the State, Treasury, and War, who is a member of the Cabinet"). Accordingly, the term "Heads of Departments" does not embrace "inferior commissioners and bureau officers." Germaine, 99 U. S., at 511.

Confining the term "Heads of Departments" in the Appointments Clause to executive divisions like the Cabinet- level departments constrains the distribution of the appointment power just as the Commissioner's interpretation, in contrast, would diffuse it. The Cabinet-level departments are limited in number and easily identified. Their heads are subject to the exercise of political oversight and share the President's accountability to the people.

Such a limiting construction also ensures that we interpret that term in the Appointments Clause consistently with its interpretation in other constitutional provisions. In Germaine, see 99 U. S., at 511, this Court noted that the phrase "Heads of Departments" in the Appointments Clause must be read in conjunction with the Opinion Clause of Art. II, 2, cl. 1. The Opinion Clause provides that the President "may require the Opinion, in writing, of the principal Officer in each of the Executive Departments," and Germaine limited the meaning of "Executive Department" to the Cabinet members.

The phrase "executive departments" also appears in 4 of the Twenty-fifth Amendment, which empowers the Vice President, together with a majority of the "principal officers of the executive departments," to declare the President "unable to discharge the powers and duties of his office." U. S. Const., Amdt. 25, 4. The Amendment was ratified February 10, 1967, and its language, of course, does not control our interpretation of a prior constitutional provision, such as the Appointments Clause. Nevertheless, it is instructive that the hearings on the Twenty-fifth Amendment confirm that the term "department" refers to Cabinet-level entities:

"[O]nly officials of Cabinet rank should participate in the decision as to whether presidential inability exists. . . . The intent . . . is that the Presidential appointees who direct the 10 executive departments named in 5 U.S.C. 1 [now codified as 101], or any executive department established in the future, generally considered to comprise the President's Cabinet, would participate . . . in determining inability." H. R. Rep. No. 203, 89th Cong., 1st Sess., 3 (1965).

Treating the Tax Court as a "Department" and its chief judge as its "Head" would defy the purpose of the Appointments Clause, the meaning of the Constitution's text, and the clear intent of Congress to transform the Tax Court into an Article I legislative court. The Tax Court is not a "Department."

A point on appointments and removal

Towards the end of class, we discussed a number of different issues regarding the appointment and removal of Officers of the United States, and in particular how the analysis regarding the two issues might at times overlap. This brief note is just meant to clarify one particular point in our discussion.

Under the Appointments Clause, the relevant issue can often be whether the official is a principal or inferior officer (as was the case in Morrison v. Olsen). If the person is a principal officer, she must be appointed by the President and confirmed by the Senate. But if she is an inferior officer, Congress can (if it so chooses) vest her appointment in the President alone, a court of law, or a head of a department. Morrison illustrates the analysis for how one assesses whether a given official is a principal or inferior officer.

With respect to removal, the inquiry is a bit more amorphous. The relevant question, as the Court explains in Morrison, is whether the limitation on the President's power to remove the officer "unduly trammels on executive authority" such that it "interfere[s] impermissibly with his constitutional obligation to ensure the faithful execution of the laws." Whether a given removal limitation crosses this line will necessarily depend on (a) the nature of the limitation, and (b) the nature of the office in question.

As to the latter inquiry -- the nature of the office in question -- the relevant factors are apt to be much like those that inform whether a given officer is properly labeled "principal" or "inferior." Importantly, though, they are not the same inquiry. That is, it is not true that every possible limitation on the removal of a principal officer would necessarily be unconstitutional. Nor is it the case that every possible limitation on the removal of an inferior officer would be permissible. While the inquiries might look at similar facts regarding the nature of the office (breadth of authority and jurisdiction, etc.), they are logically (and constitutionally) distinct.

The Constitution and the Fed

In light of all that is going on, and that we are presently discussing the powers of appointment and removal of Officers of the United States, I thought it would be worth sharing a great primer one of you (Jason Koch) provided me concerning the Federal Reserve Bank and the Open Market Committee. A question to ask yourself: how, exactly, is this arrangement constitutional? Honestly, I don't know the answer.

* * *

In the case of the Federal Open Market Committee (a quasi-governmental body), Congress not only restricted the power of the President to appoint and remove officers, but delegated that appointment and removal power to private entities outside of the Federal Government. The Federal Open Market Committee and the Sharing of Governmental Power with Private Citizens, 75 Va. L. Rev. 111 (1989). In light of the separation of powers doctrine it appears the Federal Reserve Act (as amended) “[did] not merely usurp the [President’s] appointment power but misappropriate[d] it." Id at 138.

Private Representation on the Federal Open Market Committee

The FOMC is charged with governing open-market operations, "with a view to accommodating commerce and business and with regard to their bearing upon the general credit situation of the country." 12 U.S.C. Sect. 263(c), (1983). According the Federal Reserve Board’s website, “[o]pen market operations…are the Federal Reserve’s principal tool for implementing monetary policy.” Additionally, interest rates are established by the FOMC, contrary to the generally accepted notion that this duty belongs to the Board of Governors. Financial Liberalization, International Monetary Dis/Order, and the Neo-Liberal State, 15 Am. U. Int'l L. Rev. 1279 (2000). The FOMC is comprised of the seven members of the Board of Governors (appointed by the President, affirmed by the Senate, removable for “cause”) and five private members, four of whom are elected each year "by the boards of directors of the Federal Reserve Banks, which are privately owned" (the Federal Reserve Bank of New York has a permanent seat). Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 Nw. U.L. Rev. 62 (1990). These latter members are not “directly accountable to any public official for their exercise” of power, and they owe their loyalty to the boards of the private Federal Reserve Banks they represent (indeed, only the presidents of the Federal Reserve Banks are considered for the appointments). 75 Va. L. Rev. 111. While the Board of Governors must approve the pool of candidates who may be elected, it does not decide which members are appointed; nor may the Board remove a private member from the FOMC except for cause. Id. By law, the Bank presidents are accountable to their shareholders, the member banks (i.e., private commercial banks). 15 Am. U. Int'l L. Rev. 1279

The Private Federal Reserve Banks

John Marshall noted that "the State does not, by becoming a corporator, identify itself with the corporation. The [bank] is not the [State], although the State holds an interest in it." Bank of United States v. Planters' Bank of Georgia, 22 U.S. 904, 907 (U.S. 1824). In Emergency Fleet, Brandeis made a similar observation: "Instrumentalities like the national banks or the federal reserve banks in which there are private interests, are not departments of the Government. They are private corporations in which the Government has an interest." Emergency Fleet Corp. v. Western Union Tel. Co., 275 U.S. 415, 425-426 (U.S. 1928). The Ninth Circuit held that the Federal Reserve Banks are not government agencies for purposes of the Federal Tort Claims Act. Federal tort liability requires that the principal is able to “control the actions of his agent, and not simply [that] the entity performs an important governmental function.” Lewis v. United States, 680 F.2d 1239, 1243 (9th Cir. 1982). The Lewis Court made a number of interesting findings about the nature of the Banks in reaching its conclusion:

Each Federal Reserve Bank is a separate corporation owned by commercial banks...The stockholding commercial banks elect two thirds of each Bank's nine member board of directors. The remaining three directors are appointed by the Federal Reserve Board. The Federal Reserve Board regulates the Reserve Banks, but direct supervision and control of each Bank is exercised by its board of directors [citation]....Each Bank is statutorily empowered to conduct [its] activities without day to day direction from the federal government....It is evident from the legislative history of the Federal Reserve Act that Congress did not intend to give the federal government direction over the daily operation of the Reserve Banks...

* * *

The Banks are listed neither as “wholly owned” government corporations under 31 U.S.C. § 846 nor as “mixed ownership” corporations under 31 U.S.C. § 856....Additionally, Reserve Banks, as privately owned entities, receive no appropriated funds from Congress....[T]he Banks are empowered to sue and to be sued in their own name. They carry their own liability insurance and handle their own claims....[T]he Banks have defended against tort claims directly, through private counsel, not government attorneys...and they have never been required to settle tort claims under the administrative procedure of 28 U.S.C. § 2672…

Id., 4, 7-10.

Governor Palin and the constitutional status of the Vice President

A question from one of you concerning part of last night's debate:

QUESTION: Do you know which part of the Constitution Governor Palin is referring to [in the portion of the debate excerpted below]?

IFILL: Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it it is also a member of the Legislative Branch?

PALIN: Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president's agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we'll do what we have to do to administer very appropriately the plans that are needed for this nation.

ANSWER: I think I will take a pass on trying to decipher precisely what Governor Palin meant in her answer. But the controversy that the question and answer alludes to is this: Vice President Cheney has argued, in turns, that the Office of the Vice President is part of both the executive and the legislative branches. He argued in the case of his 2001 Energy Task Force that the deliberations of that group were within the executive branch, and thus entitled to executive privilege. He prevailed on this claim in a case that was ultimately decided by the Supreme Court. See Cheney v. United States District Court, 542 U.S. 367 (2004). More recently, when presented with the order to preserve his official records and letters, pursuant to a statute passed by Congress concerning the preservation of executive branch deliberations (for the national archives), Cheney argued that because the Vice President is the President of the Senate, see Art. I, sec. 3, clause 4, which permits him to break ties in Senate votes, he is also a member of the legislative branch, and thus exempt from the record-keeping requirements. Two weeks ago, the United States District Court for the District of Columbia ruled against Cheney on this issue, which you can read about here.

Revisiting the Exceptions Clause

Digging into the mailbag, I received these (fairly challenging) questions yesterday regarding McCardle, Klein, and the Mititary Commissions Act:

QUESTION: I see how under McCardle the Supreme Court did not need address the question of what happens if congress cuts off all avenues of appellate review because of the Judiciary Act of 1789. I also understand that, after oral argument but prior to final judgment, Congress saw that the Court was not going to rule in its favor, so it repealed the statute and the Court held that this was okay. I'm having a difficult time seeing how that is fundamentally different from Klein when, during the course of the suit, Congress attempts to prescribe "rules of decision," and the Court held that this is unconstitutional. I know you stated that Klein muddied the water, but I have been unable to convincingly distinguish the two.

ANSWER: Terrific question, and I'm not sure I can convincingly distinguish them, either. Here is my best effort. In McCardle, the statute was a facially neutral withdrawal of jurisdiction. We knew Congress's intent, but the law itself simply repealed an existing statute granting jurisdiction. It thus applied equally to everyone, including the government. In contrast, the law in Klein was decidedly non-neutral (even though it was styled as a regulation of the Court's jurisdiction). The statute in Klein only applied when the claimant had been granted a pardon by the President. It then efffectively directed the court to rule against one party -- the claimant. Thus, the government could never have lost or been deprived of jurisdiction that it sought. Rather, it effectively worked to direct the court, in certain pending cases, to rule in favor of the government (after the claimants had already sought and receieved pardons). In McCardle, by contrast, the withdrawal of jurisdiction worked both ways. In cases similar to McCardle's, neither the government nor the petitioner could seek the Court's jurisdiction.

QUESTION: In addition, the MCA example seems to ask the question McCardle failed to answer -- i.e., what happens when all appellate avenues are stripped from the Supreme Court by Congress? Does Boumediene, in determining foreign nationals held outside the jurisdiction of the U.S. still have a right to habeas corpus essentially render such a blanket denial of appellate jurisdiction to the Court by Congress as unconstitutional and thus give us our answer?

ANSWER: First, I think it is too early to tell exactly how broadly Boumediene will be understood. Second, as a technical legal matter, I think the answer is no. Boumediene specifically concerned the breadth of the Suspension Clause, and whether it afforded any positive rights to individuals who are not citizens and being held outside the technically sovereign areas of the United States. The Court held that such persons are indeed protected by the Suspension Clause. But under Boumediene, at least as I read it, there does not appear to be any right to judicial review in an Article III court per se. Instead, there must be meaningful review of the detention, and that potentially could occur through some other mechanism. Also, I do not read Boumediene as guaranteeing Supreme Court review (which is what the Exceptions Clause addresses). I think review in a United States District Court or the Courts of Appeals, if meaningful, could be sufficient. So I do not think Boumediene actually addresses the issue of cutting off all avenues of Supreme Court review.

Monday's assignment

In addition to finishing up our discussion of the nondelegation doctrine, we will cover the legislative veto (INS v. Chadha) and the Appointments Clause. With luck, we will get to Problem 8, which concerns the appointment of administrative patent judges. But we will defer our discussion of the removal power until Wednesday. Wednesday's assignment is likely to be the same as that set out in the assignment schedule, except that we will probably not get to the impeachment mateiral until the class after fall break. Thanks.

No office hours this Wednesday at noon

My apologies, but I have to cancel my regularly scheduled office hours from noon to 1:00 this Wednesday (due to a prior commitment that was moved to this time slot). I will still have office hours, as usual, from 5:00 to 6:00 on Wednesday, and am available at other times during the week. Sorry for any inconvenience.

The Supreme Court and foreign policy

This coming Sunday's New York Times Magazine will run this lengthy article by Noah Feldman (a former clerk for Justice Souter, now a professor at Harvard Law School) about the impact of Supreme Court decisions on international relations. Interesting stuff. You can access the article here.

Question on Supreme Court procedure

Question: If a party brings suit under federal law and it makes its way up to the Supreme Court and none of the parties specifically claim that the statute is unconstitutional but simply have a dispute over its interpretation of a clause....but in fact if you would examine the statute you would find it unconstitutional, can the Supreme Court itself raise this as an issue or will it merely rule based on the interpretation of the clause and leave the question of whether the statute as a whole is unconstitutional to another date?

Answer: Good question, albeit in a very long sentence. The short answer is that the Supreme Court (and really all federal courts) will not address a legal claim that has not been raised by the parties. For instance, suppose Mr. Lopez contested his conviction under the Gun-Free School Zone Act solely on the ground that he actually was not in a school zone (as defined in the Act) when he possessed the gun in question, a purely statutory question. This is a question of federal law, and thus within the subject matter jurisdiction of the federal courts. It could even get all the way to the Supreme Court (especially if there were some conflicting views in the lower courts on the issue). But no court hearing the claim would address whether the GFSZA was beyond Congress's enumerated powers, and thus unconstitutional, unless Lopez himself had pressed the claim. (Compare Justice Thomas's concurrence in Printz in this regard.)

The one exception to this general rule is if the constitutional question concerns the court's jurisdiction -- its power to speak. Under Article III, as we have discussed, federal courts may only decide those "cases" and "controversies" spelled out in the Constitution. This is true even if the claim that the court lacks jurisdiction is not raised by the parties. Thus, if the court believes the case presents a political question, or that the plaintiff lacks standing, it is actually required constitutionally to raise the issue sua sponte and resolve it. For if it does not, the court would effectively be issuing an advisory opinion, something that is supposed to be beyond the authority of the federal judiciary.

Question on exam answer format

I received this question regarding the format of exam answers two weeks ago and should have answered it sooner.

Question: [I am wondering about] your preference in styles for answering the exam. IE: some professors prefer that you make a single decision on an issue and move forward, some prefer you address and make a determination on every potential result of an issue and others, still yet, prefer you simply argue the potential sides and make no final determination on the issue. I have been in classes where professors prefer issue spotting to be like blasting a shotgun (trying to hit as much as possible) and where the professor prefers issue spotting to be like a sniper's work (hit a single target with efficacy). Is there a manner you feel most effectively portrays our understanding of con law? I only ask because it allows me to prepare for the test ahead of time in how I organize my notes/outline, etc...

Answer: I will do my best to answer this, but I'm afraid that, no matter what, it will have to be imprecise. First, the most important thing is to answer the question that is asked. Often students get off track, for instance, by reciting all of the arguments the plaintiff or the defendant might possibly make, regardless of their plausibility, and without actually analyzing their likelihood of success, because they failed to read that the question prompted them to provide an objective analysis of the legal problem.

Second, I think a well-prepared student could take almost a week to answer a typical law school exam. Thus, implicitly the exam is not asking you to provide your best answer in the abstract, but your best answer given the time that is available. In other words, one of the skills being tested is your ability to discern which issues are the most important, which ones present the closest calls legally, and thus which ones deserve the bulk of your attention (and which ones can be disposed of rather quickly). Obviously, there is no algorithm for this. But engaging in a triage of the issues is an important skill. Indeed, this may be one of the most significant ways that law school exams actually measure a skill critical to the practice of law. To be sure, you infrequently will face the pressure of a 3-hour deadline to turn something around. But you will always have less time than you would like to complete all of your work, and you will constantly be making choices about what is most important, allocating the scarce resource of your attention accordingly.

Finally, I think my model answers, particularly the complete answers in the 2001 exam that I posted today on ClaraNet (answers to essay questions B, C, and D) might give you a general sense of what I think solid answers look like. I will leave it to you to analyze where they fit within the categories you describe above.

Hope this helps in some way.

Exam review session December 7

For those planning ahead, I have scheduled a purely voluntary review session for Sunday, December 7, at 3:00, in our regular classroom (142). This is two days before our final exam. I realize this may not be a convenient time for everyone, but there simply is no time that is convenient for everyone. I will not present any new material at the session, but instead will just entertain questions from all of you in a group setting. I will also record the session and try to have it posted to iTunes as soon as possible after the event, probably some time Monday morning (depending on the availability of the school IT staff). Thanks.

Response to notecards (part 2)

Again, in no particular order.

Question: What is the goal of con law?

Answer: As a general matter, to structure the government and politics of a society -- to set the ground rules for how we, as a polity in a democracy, govern ourselves.

Question: What kind of lawyer needs to know con law?

Answer: At some level every lawyer needs to know something about constitutional law, for all law is formed against the backdrop of the constitutional rules that make such lawmaking (whether in the form of statutes, regulations, or common law rules) legitimate. Certainly, every citizen should know a bit about constitutional law, which is part of the point of the course.

Comment: Sometimes you entertain too many questions from students when we are behind in the materials and I want to move on. I think questions from students are important, but sometimes it can take away from your lecturing and explanation of the material.

Response: First, I think you are giving my lecturing too much credit. But to get to the heart of the point, this is a balance that, at some level, you just have to trust me with. (1) I want to make sure that everyone feels comfortable asking questions, so I want to err in that direction, at least at the beginning of the semester. (2) It may not seem so to everyone, but I am actually screening questions and only answering those that I think are relevant to the subject we are discussing. Indeed, I think some of our most interesting discussions thus far in the semester have emerged in the give-and-take of questions and answers. (3) The material assigned for a given class, and really for the semester, is somewhat arbitrary. So we are not really ever "behind" in a meaningful sense. Trust me, we will have plenty of time to cover the essential material for the course. (4) Finally, let me urge you not to "tune out" when someone asks a question, even if you have heard similar questions before, even from that student. We can all learn from these interactions.

Comment: I feel like it would be helpful to mention what we might expect on the exam.

Response: As the syllabus explains, the exam will be a mixture of objective (multiple choice) and essay questions. And the best indication of what the essay questions will be like are my past exams, which are posted on the ClaraNet site.

Comment: I'd like some more time spent on how you would like us to analyze things -- in general and for the final.

Response: Our problems in class are meant to fulfill this objective. Indeed, the problems we work through in class are very much like exam questions, and the way we have proceeded to analyze them reflect my expectations. In addition, you can look at the model answers that I have posted to past exams.

Comment: Things move quick. Maybe some time at the start of class to review the previous class would be good.

Response: I have tried to provide a bit more of this the last couple of classes.

Comment: I wish you could make references to info you are conveying and statements like "I might ask a test question about this . . . like . . . ." References to the testing content and what to expect would be a great help.

Response: I appreciate the anxiety many of you may have about the exam for this class, particularly if the way I approach the material is somehow qualitatively different from other professors you have had. At the same time, this is graduate school. Flagging issues that I may ask on an exam is, well, beneath you. You all are better than that, and you deserve a higher level of discourse. Maybe the simplest way I can state it is this: I see my role as organizing and structuring the class, ensuring that you are exposed to the important material and guiding you as you work through it; it is your responsibility to learn it -- to figure out what is important, how to synthesize it, how to fit the various parts together into a coherent whole, and to see how to apply it to novel, unforeseen circumstances. That is what you will be doing as a professional in two or three years. Clients will not tell you what is important in the long, rambling stories they give you. Nor will they give you any hint of how to organize or outline that material. You will have to figure out how to do that on your own, and law school is meant to be a training ground for that -- a place to do it where no real lives are at stake. Again, I am happy to help when you run into stumbling blocks. But if I were to indicate how you should go about this process in the first instance, I will have short-circuited the process that is singularly central to the law school experience, the means by which you should develop the most important skill a lawyer possesses.

Response to notecards (part 1)

In a series of posts, I will try to respond to all of the comments and questions that you all made in the notecards you filled out a few classes ago. I am taking them up in a purely random order -- the order of the stack on my desk. Here is the first installment:

Question: Would it be possible to post your class outlines before class?

Answer: Yes. And I do. They are typically posted on ClaraNet at least three hours before class, but sometimes they are there more than a day in advance. It depends on how much work I need to do in resolving what, precisely, we will cover in that class, and how I want to structure our discussion.

Comment: I would appreciate it if the class was less politically bias. I understand we should definitely be discussing current political events, but I would appreciate the subject matter more if there were not anti-republican undertones to the discussion.

Answer: I am quite sorry if you feel that I have inserted my own political beliefs into our discussions in a way that makes you feel less welcome, or makes our inquiries seem politically biased. Making our classroom a place in which all feel welcome to voice their views, no matter their partisan attachments, is quite important to me. So I apologize if I have failed in this respect. I do enjoy poking fun at government officials, in part because I think it is healthy and part of cultivating a capacity for critical analysis. But I aim to do so in an ecumenical fashion. I will try to be more conscious of any partisan bias going forward.

Question: I am a very structured person and love my "nice and clean" rules. At present time my outline is looking more like a smorgasboard of notes. Can you offer some advice of outline approaches.

Answer: This is a very common concern, and I have three responses. (1) The course syllabus and the class outlines might provide some help; they are at least how I think of the structure of the material, for whatever that is worth. (2) Generally -- at least in my view -- outlining is a way of digesting, synthesizing, and learning the material. I cannot -- indeed, I should not -- instruct you how to go about doing this. Developing the ability to digest and synthesize disparate sources of law is the one critical skill that you need to develop before leaving law school. And you need to graduate with the ability to do it on your own. If you have tried to learn an area of our course, and you have run into some difficulty doing so, I am more than happy to talk about it with you. But in my view, it would be pedagogically irresponsible for me not to leave this task, at least in the first instance, completely to you. (3) If you like "nice and clean" rules, I can see how the material in this class would be challenging. But I would think the same would be true of all law school classes, at least once you have scratched the surface. All areas of the law are fraught with ambiguity. Were that not so, there would be no market for lawyers. Studying for the bar exam involves memorizing a bunch of rules an regurgitating them. Law school -- at least I hope -- is something quite different, something more intellectually rich and challenging.

Question: Would you provide some sample answers to your past exams?

Answer: Yes. Outlines to answers for the 2003 and 2005 exams are now posted on ClaraNet, and I will get more posted as soon as I am able.

All for now.

Garcia and the commerce power

QUESTION: I understand that [Garcia v. SAMTA] established the Congress's ability to enforce its power against the States in area of the traditional governmental functions through the Commerce Clause. However, I was unclear why can Congress enforce its power via the Commerce Clause? Is it simply because the minimum wage and overtime influences one's earning and consumer power, thus, affects the interstate commerce, Congress is entitled to exert its power via the Commerce Clause? Are there other reasons?

ANSWER: Very good question. And it depends whether we are answering using the law as of 1985, when Garcia was handed down, or today (following Lopez, Morrison, and Raich). As to the former, consider the rationale of Garcia: the true protections of states is through the political process, not judicial enforcement of the outer limits of Congress's enumerated powers. Taken seriously, the Court is basically saying that any claim that Congress has exceeded its enumerated powers is a political question (barring some problem with the political process itself). As to the latter -- under the law as it stands today -- think about the framwork set up by Lopez. The FLSA ia almost certainly not a regulation of the use of the channels of interstate commerce. Nor is it a regulation of the instrumentalities of, or persons or things in, interstate commerce. Thus, it would have to be a regulation of an activity substantially affecting interstate commerce. What is the activity in question? Employment, and setting the terms thereof (such as maximum hours, the minimum wage, etc.). These are almost certainly economic or commercial activities. And Lopez indicates that, if the regulated activity is economic or commercial in nature, we can aggregate its effects to determine whether there is a substantial effect. And clearly, in aggregate, the terms of employment goverened by the FLSA have a substantial effect on interstate commerce. That is why a court today would almost certainly find that the FLSA is within Congress's commerce power.

Spending Clause question

A student sent this insightful question this morning:

QUESTION: If I'm not mistaken, the spending power is given to Congress by the language of Art 1, Sec 8, Clause 1 which states "...provide fro the common defence and GENERAL WELFARE of the United States." So from my understanding of reading the clause, the power enables Congress to SPEND, i.e. raise funds, collect taxes and give federal grants in order to further what is, what they deem, within this "general welfare" of the U.S.

What I don't understand is the connection between spending for the "general welfare" of the U.S and litigating on cases that have to do with "conditioned" federal funds. Usually, states try to argue that something is beyond Congress' scope to regulate. Are they now arguing that states have a right to these federal grants, and conditioning these grants on such coercive UNRELATED statutes is violating their right to a federal grant?

I suppose I just don't see how a state could claim that they have a right to federal aid (unless of course they are in dire economic situations or emergency situations of that nature). Assuming they do have this right, does the spending clause essentially give Congress the authority to say when/where/what these federal grants will be allocated?

ANSWER: You are right in your intuition: the states have no freestanding "right" to federal funds. Thus, that is not the issue they are litigating. Rather, the relevant question (more or less) is whether Congress is using its spending power to actually regulate (i.e., coercively mandate certain behavior of) the states. And this is where the "general welfare" you reference matters. Congress has the authority to tax and spend for "the general welfare," which means there is basically no limit on the power (at least as a matter of constitutional law) with respect to its subject matter. But Congress's authority to regulate is circumscribed, as we have seen. Congress must fit its regulation within one of the other enumerated powers -- that is, a power other than its power to tax and spend. Thus, a state like South Dakota in South Dakota v. Dole is arguing that, because the conditions attached to the highway funds are so far afield of the spending program on which the conditions have been placed, the condition is esssntially a regulation of the state's conduct. As such, it would not be automatically unconstitutional, but Congress would have to justify it in some way outside the Speinding Clause (such as as a regulation of interstate commerce). Notice, too, that if the spending condition in Dole were considered a regulation rather than a legitimate condition on the highway spending program, there is also arguably a Tenth Amendment "commandeering" issue.

Preemption

We will be covering the doctrine of preemption in a few weeks, the rule (derived from the Supremacy Clause of Article VI) that, when federal and state law come into conflict, federal law trumps. The Supreme Court has two very big preemption cases on its docket for the coming Term, Altria v. Good (involving the marketing of cigarettes as "light" or "low tar") and Wyeth v. Levine (concerning the labeling of prescription medications approved by the FDA). In Friday's edition, the New York Times contains a lengthy story on Wyeth, which you can find here.

Classes up on iTunes

The class sessions for September 10, 15, and 17 are now posted to iTunes and available for download. Somehow the September 8 class was not recorded. I am not sure what happened, but likely I pressed the wrong button at some point. My apologies.

Next week's assignments

Here is the material I think, roughly, we will cover in Monday and Wednesday's classes of next week:

Monday (9/22): Section 5 of the Fourteenth Amendment, the spending power, and the first half of the Tenth Amendment material (Garcia and at least part of New York v. United States). We will probably talk about Problem 5 only briefly.

Wednesday (9/24): The remainder of the Tenth Amendment material (finishing New York and Printz), Problem 6 (on the Drivers' Privacy Protection Act), and an introduction to executive authority and the separation of powers. We will defer Youngstown Steel until Monday, Sept. 29.

Also, you will notice that our first assignment schedule ends next week, so I will post a second one (for weeks 7 through 12 of the semester) on ClaraNet next Thursday. If you need to read ahead before then, you can reference the order of the material on the syllabus.

Thanks.

U.S. asks for reversal in Kennedy v. Louisiana

The Solicitor General of the United States has just filed his office's brief at the request of the Court in Kennedy v. Louisiana, the case involving the imposition of the death penalty for child rape. And the SG has asked the Court to reverse its 3-month-old decision, arguing that the Court could not conclude that there is a national consensus against the practice when it has been approved by the national legislature and the President. You can find the SG's brief here.

Wednesday's assignment

Here is the agenda for Wednesday's class:

* Discuss Gonzales v. Raich
* Work through Problem 4
* Discuss the material on Section 5 of the Fourteenth Amendment and the Spending Clause

We will defer Problem 5, on the spending power, until Monday, September 22.

The recent class meetings will be up on iTunes some time this week, probably Thursday.

Thanks.

Constitution Day!

Tomorrow is September 17, the day in 1787 that the members of the constitutional convention signed the Constitution in Philadelphia before sending it to the Continental Congress and then onto the states for ratification. To mark the occasion, I and three other Santa Clara faculty will be discussing the upcoming Supreme Court term and the direction of the Roberts Court. The event will take place from noon to 1:00 in Room 139. Please join us if you are interested.

"Understanding" constitutional law

A number of you have confided in me, in various words, that you "don't know what is going on" in our class. When I have pressed, the point has become a bit more specific: many of you are unclear what you are supposed to be extracting from the material as we cover it. When pressed further, it has become yet more specific: many of you are unclear what you are supposed to be extracting from the material for purposes of the final exam.

This -- I want to make clear -- is a completely legitimate concern. Unlike some professors, I'm not bothered when students ask about the exam, or try to pin down more concretely my expectations. I understand that grades are important to many of you (though I think students tend to overestimate their real-world significance), and I think it is very important that I be as transparent as possible about how you will be evaluated. So this is all completely fair game.

But I should also say that my objectives for the class are broader than the types of things that are amenable to law school examinations. Broadly speaking, I have three pedagogical goals: (1) to convey a basic grounding in the fundamental tenets of constitutional law, useful to all lawyers in their practice, and in taking the bar exam; (2) to instill an understanding and critical awareness of constitutional law in its broader outlines, not simply in its blackletter rules, useful to you as future guardians of the legal profession; and (3) a still broader sense of constitutional history and politics, and the means of constitutional change, that I hope will be useful to you as well-educated citizens in our constitutional democracy.

In the first few weeks of the course, as we are establishing a framework for the material, goals (2) and (3) have received more emphasis than goal (1). As a result, there have been fewer "rules" that might be analogous to those you have studied in other classes. And this may be causing some of the uneasiness. As the semester progresses, goal (1) will increase in prominence, though I must admit, the nature of constitutional law is that such "rules" are rarely ever clear, and they are rarely more certain than the ideological leaning of the present Supreme Court.

I should also confess, though, that although goal (1) is the easiest to test, I think it is ultimately the least important of the three. Law school is obviously much more than bar prep; if it were not, you would be wasting a great deal of money on tuition. (Perhaps you feel that regardless.) What I hope a well-rounded legal education provides is a deeper level of comprehension and understanding, a way to contextualize and organize all the minutiae of legal rules that you will master through the course of your career.

Mind you, goal (1) is still quite important. But it is only one part of what I hope is going on in our class.

I'm not sure whether this actually allays any concerns. But it might at least help you understand where I am coming from, and why I have emphasized certain aspects of the material thus far.

Guaranty Clause vs. Equal Protection Clause

One of you asked the following, insightful question after class Monday night:

QUESTION: If the problem in Colgrove v. Green was that the Court could not discover a "judicially manageable standard" to malapportionment claims brought under the Guaranty Clause of Article IV, how did the standard become manageable in Baker v. Carr simply because the constitutional claim was grounded in the Equal Protection Clause of the Fourteenth Amendment? That is, is not the standard identically manageable or unmanageable regardless of which constitutional clause the claim is brought under?

ANSWER: I agree. I don't see how it is any more manageable. If the Court could manage a "one person, one vote" standard under the Equal Protection Clause, it is entirely opaque as to why they could not manage the same standard as an interpretation of the Guaranty Clause. (Certainly Justice Frankfurter agreed with this view, and thus thought the issue was settled.) Why did the result actually change? I would point to two reasons: (1) the composition (and ideological disposition) of the Court changed between 1947 and 1962, and (2) it became increasingly apparent that, if the courts did not intervene, the political process was not going to heal itself (and the dominant national political regime now strongly supported bringing more political power to urban areas). Why didn't the Court simply overrule Colgrove v. Green. I think it is simply a matter of risk aversion and the norm of stare decisis. If there is a way to get there without overruling precedent, the Court is likely to take that course. (Notice that this is why Congress justified the Civil Rights Act of 1964 as an exercise of its commerce power rather than as a use of its power under Section 5 of the Fourteenth Amendment.) The justices might also have feared what opening up the Guaranty Clause to justiciable claims would have meant in other cases that they could not yet anticipate.