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.