Tiers of scrutiny

QUESTION: What is the scrutiny applied in Eisenstadt v. Baird? We have that it is the minimum rationality standard. But doesn't this case decide that the right to privacy is fundamental, so strict scrutiny should apply?

ANSWER: You are right -- if the Court had decided the case on due process grounds. But that sentence in our casebook was really an aside. If you look at the full opinion, you will see that the Court decided the case based on the Equal Protection Clause. The statute (at least in its application) discriminated on the basis marital status. The Court subjected this discrimination to rational basis review, and held (perhaps disingenuously) that the law failed to rationally further a legitimate state interest. (More candidly, I would call this rational basis "plus," as the Court was certainly more demanding than the test of Lee Optical.)

QUESTION: What level of scrutiny applied in Griswold? We think it's strict scrutiny because our notes say "high level of scrutiny" and again it concerns fundamental right to privacy.

ANSWER: That seems like a logical inference to me. The Court does not use the magic words, but yes, I think it was applying strict scrutiny.

QUESTION: What are the strict scrutiny cases? Griswold, Eisenstadt, and Lochner?

ANSWER: Due process decisions that seem to apply strict scrutiny, or something like strict scrutiny, would include Lochner, Pierce, Meyer, Griswold, Roe, Casey, Loving, Zablocki, arguably Lawrence, and Perry v. Schwarzenegger. 

When are agencies part of the Executive Branch?

QUESTION: I'm a little confused on what agencies are classified as, such as the EPA. In your 2008 model answer it was stated that the commission was placed in the executive branch (I think), and thus the line-item veto and non-delegation doctrine doesn't really apply in regards to the President's authority over what is actually goes into law. I thought the Commission to be a quasi-legislative branch that has both authority to create the law and dictate enforcement (although that was limited as custom agents would which is strictly a part of the executive branch). I would argue that having the President able to essentially veto what he wants from the agency, and the agency is more legislative then not. So the President is overstepping the boundaries set by separation of power as he is essentially deciding what laws gets passed. Is this an incorrect analysis or just a different viewpoint (that would still receive mostly full credit if this was an exam answer)?

ANSWER: I would say, candidly, that your analysis is largely incorrect. Let me try to explain in a few steps. First, where an agency is "placed" is not really the issue. Rather, the issue is whether the agency is involved in the execution or implementation of federal law. Any agency so doing is part of the "executive branch," at least in a sense. Now, some people will say that independent agencies are not part of the Executive Branch because they are independent of the President--independent typically because their heads are not removable by the President at will. I would say that this lessens presidential control, but it does nothing to obviate the underlying reality that the agency is executing federal law. Second, sure, the agency is "quasi legislative" in the sense you describe. But so is every agency. All execution of law involves some discretion, and often it is sensible to announce in advance, in the form of regulations (that look like statutes) how the agency plans to exercise that discretion. But this does not make them an extension of Congress, or part of the legislative branch. Recall that, under cases such as Chadha and Bowsher and Buckley that Congress can play no role in the execution of federal law. So this agency cannot constitutionally be a part of the legislative branch. Third, once we resolve that the agency is part of the bureaucracy that is executing federal law (whatever exact label we place on it), it should become clear that there can be no line-item veto problem. the President is merely adjusting how the law is being executed; he is not altering the statute itself. Finally, the delegation issue is only relevant in evaluating the standard that Congress has given the executive branch as a whole. So long as that states an intelligible principle for enforcement, that doctrine is satisfied.

  

QUESTION: Also, what are agencies like the EPA actually classified under and who is in charge of them? It seems that they are legislative in the fact that they create regulations but also executive as they enforce these regulations (through fines and whatnot). So is the legislative branch or he executive branch in charge of them or are they independent from both?

ANSWER: The EPA has responsibilities of enforcing and executing federal law, thus it is a part of the Executive Branch. The head is the Administrator of the EPA. Again, you are right that much of what it does seems legislative in nature. But the better way to understand this is as the exercise of discretion in the enforcement of federal law. 

Jurisdictional elements

QUESTION: I am a little confused about the idea of jurisdictional element. Is the only way to satisfy jurisdictional element to state specifically in the legislation "X in interstate commerce," or would something that is clearly used only in connection to interstate commerce suffice?

ANSWER: The term "jurisdictional element" refers specifically to additional explicit language in the statute. So, as you have phrased the question, I think yes, by definition, there is no jurisdictional element if that connection to interstate commerce is not specifically stated in the statute. (That is not to say, of course, that every statute needs a jurisdictional element. Indeed, many things, by their nature, are always in interstate commerce, such that it would be superfluous to include such additional language.)

QUESTION: For example, if there were legislation that barred handguns at weigh stations on interstate freeways, would the inclusion of the location "weigh stations" work as a jurisdictional element (assuming the only possible connection weigh stations have to commerce is in interstate commerce) and obviate the need to include " handguns in interstate commerce" in the phrasing of the law?

ANSWER: I would say "weigh stations on interstate freeways" would probably be a considered a jurisdictional element, yes. It is limited the scope of the regulated activity to a subclass with a closer connection to interstate commerce. Notice, too, that this jurisdictional element might actually bring the regulation into a different category under Lopez--namely, it might render the statute a regulation of the use of the channels of interstate commerce.

QUESTION: Congress is seeking to regulate the substantial effect, so it seems valid to transfer the jurisdictional element from "handguns in interstate commerce" to "handguns at place that is used exclusively for intestate commerce." The Lopez court used the phrasing "nexus with interstate commerce" and it seems as if, in this hypo, the weigh station is as good a nexus as any.

ANSWER: I would generally agree. I would just caution, though, that the existence of a "jurisdictional element" in a statute will not necessarily render a statute a valid use of the commerce power. Jurisdictional elements can come in sorts of different shapes and sizes, some creating a close nexus with interstate commerce and some requiring only a very attenuated one. So it all depends on how much work the jurisdictional element actually does.

QUESTION: For reference: in Lopez the court found that the statute stating "'for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.'" 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V)" was not within the commerce clause for lack of a jurisdictional element. However, the inclusion of "firearm that has moved in or that otherwise affects interstate or foreign commerce" solved the jurisdictional element problem. 

ANSWER: Not necessarily. That was Congress's fix, but the Supreme Court has not held that it was sufficient. So this remains a bit unclear at this point.

QUESTION: If the requirement is that Congress add the phrasing adopted in the second statute, the whole exercise seems rather silly. Can't that just be implied (hello, implied pre-emption!), like so many other things?

ANSWER: I agree, at least to some degree. But again, we are not sure that Congress's fix was sufficient. Moreover, Lopez might have been more symbolic than real. And yes, I think it could be inferred in some circumstances (as mentioned above), but obviously the Court was unwilling to make that inference in Lopez. 

Some questions (and answers)

QUESTION: I have a question regarding the case of Raines v. Byrd (page 46 of the casebook), involving a challenge to the Line Item Veto Act by senators. I am not sure if I clearly see why the injury is "abstract and widely dispersed" as Chief Justice Rehnquist decided. If my duty is to pass bills, and someone can render them ineffective (partially), why isn't that a concrete injury? And the only people affected are the Senators and Congressmen, so why is it widely spread? Is this a borderline case where subjective opinion makes all the difference or I am missing something?

ANSWER: I think the decision is more defensible on the ground that the injury was not sufficiently concrete (too abstract) than on the ground it was too dispersed (not sufficiently particularized). The Senators' claim was that their voting strength on bills subject to the LVA was diluted to some degree, as the LVA decreased their leverage over the President vis-a-vis his preferences. It is not hard to see that this lacks much concreteness. You describe the LVA as rendering their votes "partially ineffective," but that is debatable. Consider this: the budget bill at issue in Clinton v. New York contained more than 2,000 pages, and the President line-item vetoed two lines. To what degree did the LVA really affect Senator Byrd's voting power in the Senate? Consider also that the LVA only applied to certain sorts of bills, and certain line items within those bills. I think all of this suggests that the injury being alleged was somewhat conjectural, and somewhat abstract. (Of course, as your last sentence suggests, the vote was 5-4, so it obviously was not clear.)

QUESTION: I had a question concerning your model outline/answer #3 for Section 901 on the 2010 exam. Could you explain a little bit more about this one? While I understand that it's not the same as Clinton v. NY because the law would have already gone through presentment procedures, I'm confused on how Congress can basically allow the President to choose whether or not to enforce the law at all or in part. Is Congress really allowed to basically say to the President/executive "do whatever you think best"? Is that what you meant by the "delegation in subsection (a) might violate the non-delegation doctrine"?

ANSWER: Yes, I think that gets the gist of it. There is certainly nothing unconstitutional per se in Congress delegating discretion in the enforcement of federal law to the Executive Branch. Indeed, such delegations are inherent in any law, as no law is so clear as to preclude any discretion in enforcement. Typically, that discretion is in the form of how to enforce a statute. But there is no reason it does not also extend to whether to enforce a statute, or at least a portion thereof. In fact, it is unclear we could draw a clear distinction between the two. Consider federal criminal laws. If the Attorney General (or someone lower in DOJ) decides not to prosecute a particular individual (even though there might exist sufficient evidence to obtain a conviction), is that an exercise of discretion as to how to enforce the statute? Or is it discretion as to whether to enforce the statute? The larger point is that there is nothing inherently problematic in Congress delegating discretion in enforcement to the Executive Branch. The relevant question in such circumstances is whether the delegation is too broad, meaning that Congress has failed to provide an "intelligible principle" to guide the executive's enforcement or implementation of the law.

Channels and instrumentalities

QUESTION: First, when discussing interstate commerce, is it acceptable to determine whether the legislation has substantial effects on interstate commerce before determining whether the legislation is regulating channels or instrumentalities of interstate commerce? My reasoning is that the vast majority of examples I've come across have been substantial effects examples, so I'd rather start start with the usual suspect.

 

YES, THAT IS FINE. THERE IS NO MANDATED ORDERING. BUT JUST TO BE CLEAR, IT IS THE REGULATED ACTIVITY THAT MUST HAVE A SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE, NOT THE LEGISLATION.

QUESTION: Second, and an alternative reason for wanting to start with Substantial Effects test, is can you clarify or distinguish channels and instrumentalities again? Is it fair to say that the channels are the mode of interstate activity and instrumentalities are the means? For example, highway trucking -- the highways are the mode and the trucks are the means?

 

YES, I THINK THAT IS ESSENTIALLY CORRECT, THOUGH THE COURT HAS NEVER USED THOSE PRECISE TERMS. I THINK OF CHANNELS AS THE "RIVERS" THROUGH WHICH COMMERCE FLOWS -- ROADS, NAVIGABLE WATERWAYS, RAILWAYS, TELECOMMUNICATION NETWORKS -- AND INSTRUMENTALITIES AS THE OBJECTS THAT FACILITATE THE COMMERCE -- RAILROAD CARS, AIRPLANES, ROUTERS, SERVERS, AND THE LIKE. BUT, BECAUSE THE COURT HAS NOT DECIDED A CASE INVOLVING ONE OF THESE CATEGORIES SINCE LOPEZ, WE ARE NECESSARILY GUESSING A LITTLE BIT.

Privleges or immunities

QUESTION: I am emailing you because I am having a hard time wrapping my head around the Privileges and Immunities of the 14th Amendment. My question deals with the analytical framework of the clause. I understand we first must determine whether the right is "fundamental".

 

ACTUALLY, NO, THAT IS NOT RELEVANT UNDER THIS CLAUSE -- AT LEAST AS I UNDERSTAND IT. SAENZ ESSENTIALLY HOLDS THAT THE THIRD COMPONENT OF THE RIGHT TO TRAVEL INTERSTATE -- THE RIGHT TO MIGRATE -- IS ONE OF THE PRIVILEGES OR IMMUNITIES PROTECTED BY THE CLAUSE. THUS, AS I UNDERSTAND THAT DECISION, ANY INFRINGEMENT ON THIS RIGHT, NO MATTER WHAT IT IS WITH RESPECT TO, WILL BE SUBJECTED TO STRICT SCRUTINY. THAT IS, THE "RIGHT" ON WHICH THE STATE DISCRIMINATES AGAINST NEW RESIDENTS NEED NOT BE "FUNDAMENTAL" IN ANY SENSE.

 

QUESTION: I am unclear what test we apply to find out whether the right is "fundamental". Is it the same fundamental test we used for incorporation or something totally different?

 

AGAIN, I DO NOT THINK THERE IS ANY SUCH INQUIRY. THERE IS UNDER ART. IV, BUT THAT IS A DIFFERENT QUESTION.

 

QUESTION: Does the Privileges or Immunities Clause of the 14th Amendment only deal with the 3rd right to travel - the right to migrate?

 

PROBABLY. PERHAPS IT ALSO PROTECTS THE FIRST COMPONENT -- THE RIGHT TO PHYSICAL MOVEMENT ACROSS STATE BORDERS -- BUT THE COURT HAS NOT CLEARLY SO HELD.

QUESTION: For example, let's say I, a California resident, went on vacation in Nevada. Under Art IV, Sec 2's privileges and immunities I would be able to enjoy the same privileges as a resident of Nevada, with some exceptions (i.e. - voting). However, if I established residence in Nevada, then I would be protected not under Art IV, Sec 2, but under the 14th Amendment. Is that correct?

 

YOU GOT IT. AND IN A CASE LIKE PROBLEM 6, IT IS SORT OF UNCLEAR WHICH OF THESE TWO PROTECTIONS APPLIES. BUT WE KNOW THAT IT CANNOT BE BOTH AT THE SAME TIME -- YOU ARE EITHER A NEW RESIDENT OF NEVADA, OR YOU ARE A CALIFORNIA RESIDENT VISITING.

Questions about Lochner and incorporation

QUESTION: I want to make sure I understand the difference between what Lochner said and the way it is now.  From my understanding, Lochner said that the right to contract was fundamental and that a state cannot regulate an individual economic right to contract (like minimum hours). Now, all the state needs is a legitimate interest (almost any public interest it seems) and a loose fit between the law and that interest. In effect, now a state can regulate minimum wage or hours nearly at will, whereas before, it was almost impossible. Is this a correct understanding?

 

ANSWER: Essentially, yes. I think there are a few more subtleties to Lochner that we did not really discuss. For instance, government could regulate the maximum hours of miners, for instance, because the Court saw that as raising "real" public safety concerns (as opposed to the "pretextual" ones asserted by New York in Lochner itself). But yes, your summary is basically correct.

QUESTION: The next question is when we should be considering historical recognition of a right and importance of that right.  We first talked about that in the incorporation context, but it was also mentioned tonight.  Should those considerations be taken into account /applied in any instance involving individual rights (economic or not)?

ANSWER: The question whether a right is "fundamental" as a matter of due process, such that the government's infringement on that right is subject to strict scrutiny, is precisely the same question we ask with respect to incorporation (i.e., whether one of the rights protected by the Bill of Rights applies to the states). Indeed, it is precisely the same issue, the only possible difference being that in the incorporation context, the right happens to be textually spelled out in one of the first eight amendments to the Constitution. But the "implicit in a scheme of ordered liberty"/"deeply rooted in the our nation's history and traditions" question is the same inquiry whenever we are asking whether a right is "fundamental" as a matter of due process. This is the incorporation question, precisely because the Court has held that the rights that are incorporated are those that are "fundamental." But, of course, it has not stopped with those textually spelled out in the Bill of Rights. Thus, it is also the question we ask in Griswold, in Roe, in Casey, and perhaps in Lawrence v. Texas and Perry v. Schwarzenneger.

Appropos of our discussion . . .

. . . the Ninth Circuit just issued an opinion this morning holding that an Arizona law requiring that voters present proof of citizenship when registering to vote was preempted by federal immigration law. You can find the Ninth Circuit's opinion here, and you can find commentary here. The decision was 2-1. Judge Sandra Ikuta wrote the majority, and she was joined by former Justice Sandra Day O'Connor. Judge Alex Kozinski authored a lengthy dissent. (Interestingly, Judge Ikuta clerked for Judge Kozinski, and then for Justice O'Connor, in the 1980s.)

Preemption, commandeering, marijuana, and immigration

During last night's class, we had a terrific discussion that weaved several different constitutional principles together. The two principal questions spurring the discussion were these:

1. How is it that California's Compassionate Use Act (or, more clearly, Prop 19 if it passes) does not "frustrate the purpose" of the federal Controlled Substances Act?

2. How is the California marijuana example (where state law is not preempted) distinguishable from Arizona's S.B. 1070, which essentially creates state offenses that are tied to the violation of federal law, and thus indirectly permits state officers to enforce federal immigration law?

These are complicated issues, and one blog post cannot comprehensively address all of the subtleties. But I think the essential point is this: state laws that permit certain behavior generally can never be preempted. For all they do, at a basic level, is is provide that the state will not regulate the activity in question (or a specific subset of that activity). The easiest way to see why this must be so is that, if a permissive state law were preempted by a federal statute, then the federal statute would effectively be commanding the state instead to regulate that activity. And we know that, under the anti-commandeering principle, Congress cannot require states affirmatively to regulate according to the federal government's instructions. Thus, so long as the state law is merely permitting something to occur (whether that permission is characterized as "action" or "inaction"), it cannot be preempted.

(No doubt, if Prop 19 passes, it will frustrate the purposes of federal law in a colloquial sense. But it will not in a legal sense, due to the implications of such an understanding outlined above.)

In contrast, state laws that forbid certain activity, or penalize or sanction that activity, are clearly subject to preemption. These are the laws that can frustrate the purpose of federal law. For example, the Illinois common law rule concerning unreasonably dangerous consumer products was potentially subject to preemption because it imposes liability on product manufacturers (in certain circumstances).

And the same is true of Arizona's SB 1070. Among other things, it (1) requires that all persons who have been arrested have their immigration status verified prior to release, (2) requires police officers to make a reasonable attempt to determine an individual's immigration status during any lawful stop, (3) makes it a misdemeanor for a person unlawfully present in United States to apply for work, and (4) permits police officers to make warrantless arrests when the officer has probable cause to believe that the suspect has committed an offense that renders the suspect removable. All of these are limitations imposed on activity, or the authorization to impose such limitations. Declaring these provisions preempted would not force Arizona to do anything--other than to stand down its enforcement machinery. (It need not even actually repeal its law; it would just be enjoined from enforcing it.)

So the real difference is between state laws that permit (like California's more permissive marijuana policy) and those that forbid, constrain, or sanction. The latter are subject to preemption, while the former are not.

McCulloch and the Necessary and Proper Clause

QUESTION: I was going over my notes again from our class on McCulloch and had a question. You mentioned that the Necessary and Proper Clause does not grant any power in and of itself, and that Congress is entitled to adopt appropriate means, but only in service to some other enumerated power, such as the commerce power or the power to establish post roads (or something like that). What was the other enumerated power for Congress in this case?

ANSWER: Very good question. Marshall never directly answers this question, but Hamilton did (in his memo to President Washington about the constitutionality of the first Bank of the United States, and on which much of Marshall's opinion in McCulloch was based). The principal ones? The power to raise and support an army and navy; the power to pay the debts of the United States; the power to borrow money; and the power to collect taxes. Those are all enumerated powers elsewhere in Article I, section 8, and establishing a Bank of the United States, in the Court's view, was "appropriate" or "conducive" to those ends.

QUESTION: Does that mean that in the case of McCulloch, Congress had the power under the Necessary and Proper clause to create the bank in service to the Commerce Clause?

ANSWER: I'm unsure about this. Claiming that the creation of the bank was necessary and proper to regulate interstate commerce might have been plausible. But the federal regulation of interstate commerce at the time was quite minimal. So it is possible, but I do not know. Regardless, there were the other enumerated powers (mentioned above) that the creation of the bank was a means to accomplishing. Thus, whether the bank was a proper means to the regulation of interstate commerce ultimately did not matter.

QUESTION: Also, does this mean that when we look at a statute we should first look at whether it was "necessary and proper" and then look to see if there is another enumerated power that it functions in service to?

ANSWER: I think that probably has things backwards--at least in my mind. Here is how I think about it. First, I ask whether it rather directly serves an enumerated power, and then I ask whether, given the additional leeway provided by the Necessary and Proper Clause, it might still be justified by the two clauses together. Put differently, the Necessary and Proper Clause, at least since McCulloch, has meant that Congress has fairly broad leeway in its choice of means. But the means must be in service of an enumerated power. And we cannot really evaluate whether a law is an appropriate means without first asking, "A means to what?" So before you can even think about the Necessary and Proper Clause question, you have to have identified the relevant enumerated power.

More on Youngstown

QUESTION: Regarding Youngstown: it's unclear to me why the part of Art. II that says "the executive power shall be vested in a President" did not allow President Truman to issue the order. We discussed how the Constitution doesn't spell out the presidential powers, and also how it doesn't limit the President's powers to only what is granted. What I'm missing is how we get from there to "can't do it." Is the key that the Article is about "executive" power? And that this power precludes "creating law," which, clearly, the opinion thinks the President is doing?

ANSWER: I don't think there is an easy, obvious answer to this question. But I think there are some concepts that help fill in the gaps. First, the "executive power" is a power to execute something. And that execution is generally the law as enacted by the Congress of the United States. In Youngstown, there was no federal statute to execute (at least according to the majority). If anything, Congress had precluded the President from taking the action at issue. Thus, the seizure of the steel mills could not be justified as a straightforward, typical use of the "executive power"--executing a law enacted by Congress. The question then becomes whether the President nonetheless had the authority to take this action. One argument as to why it should have been constitutional was that, given the powers granted by Article II to the President, Congress lacked the authority to prevent the President from taking this action. This the Court clearly rejects. While there might be some overlap in powers in this context, it certainly is not an area, said the Court, that is reserved exclusively to the President. A final argument--or perhaps one that hangs over all of this--is the one you reference, that the Constitution grants the president the "executive power," and not "all executive powers herein granted." Thus, it perhaps implies that the President possesses executive powers beyond those actually granted to the President in Article II. It is unclear precisely what this adds, other than to arguably establish the idea that the President is not completely limited to (1) executing laws enacted by Congress, and (2) fulfilling responsibilities or exercising powers expressly granted by Article II. Here, at least according to the majority, this does not really matter, as Congress had clearly disapproved of the President's action. As a result, even if the President does possess such additional authority, it would not have helped him here.

The DPPA and "conflicts" between state and federal law

QUESTION: Isn't the relationship between the Compassionate Use Act and the Controlled Substances Act in Raich somewhat analogous to South Carolina law and the DPPA in Reno v. Condon? In Condon, the Supreme Court says that "South Carolina law conflicts with the DPPA's provisions." Is this statement any different from "South Carolina law conflicts with the DPPA?"

ANSWER: I think you are right, and that the word "conflicts" here might be employed a bit too loosely. What is different about Condon, though, is that the DPPA is controlling the state itself. So when South Carolina law stated that the state DMV would disseminate this information, it was really saying that this would happen--not just that, as a matter of South Carolina law, it was permissible. It was an expression of what the state, itself, intended to do. In this sense, there was a conflict, in a way that there was not between the CSA and the Compassionate Use Act, both of which only regulate private persons. Nonetheless, your larger point rings true: When state law permits something and federal law prohibits it, there generally is not a conflict between the two. Rather, the state has simply chosen not to regulate the activity in question, even though the federal government has made the opposite choice.

More on Marbury

QUESTION: Although Marshall ultimately ruled that the Court lacked jurisdiction, he first investigated whether Marbury had a right to the commission, if laws could afford him remedy, and then if the court can issue the remedy.  Shouldn't the first question for the court be whether it has jurisdiction?

ANSWER: Nice point. Yes, he should have, at least if we are applying the rule of Steel Co. that the Court cannot say anything about the merits before it resolves that it has jurisdiction. Perhaps these rules were not quite as well established in 1803. Or perhaps Marshall just could not resist the opportunity to tell the Jefferson administration that it was acting illegally.

QUESTION: Further, Marshall's 2-step analysis of jurisdictional question (statutory and jurisdictional as you illustrated) is confusing. He first thought that the Court had jurisdiction and then held that it didn't. How can he take the case based on the presumption that the judiciary act gave him jurisdiction and later rule the same act as unconstitutional?

ANSWER: With due respect, I don't think that accurately captures what happened.  He never thought that the Court had jurisdiction, nor did the Court "take" the case. The case came to the Court, and it really had no choice but to resolve it.  For the Court to have jurisdiction, it must have been granted jurisdiction by Congress. So the first question to ask is statutory -- did the Judiciary Act confer jurisdiction on the Court in a case such as this. It makes sense to address the statutory question first, for if the statute does not confer jurisdiction, the case is over, and the Court need not address the constitutional question. Unlike other choices Marshall made, this choice of addressing the statute first is actually the judicially modest one.

QUESTION: Although the Court needs to have jurisdiction at all times, it seems rather odd that the same Act that initially gave the jurisdiction, took it away later.

ANSWER: Again, I would disagree with this characterization. According to Marshall's reading, the statute did confer jurisdiction (or at least purported to). The Act never took away jurisdiction. Rather, the Court held that the provision attempting to confer jurisdiction violated Article III, and thus was null and void (at least as applied here). Jurisdiction was lacking not because of the Act, but because the Act was inconsistent with Article III.

QUESTION: On that note, when does a law become unconstitutional?  The day of the verdict?  As I understand, the verdict does not have any retroactive effect, correct?

ANSWER: Essentially, yes, the moment of the verdict, though it can be applied to any decision currently pending -- that is, any case in which the federal courts have yet to render a final judgment on which the time for an appeal has run. Moreover, there are some decisions that are, indeed, applied retroactively, in the sense that persons can challenge their prior adjudications (such as prisoners applying a new rule concerning their sentencing). But this is a very complex question, with lots of twists and turns.

QUESTION: Finally, could Marbury have filed the case in a lower court as the Supreme Court didn't have jurisdiction? It probably wouldn't buy him anything given the political situation, but technically he could, right?

ANSWER: Yes, he could have. But recall that Marbury and Marshall were on the same side in the larger political fight with the Jeffersonian Republicans, and eliminating the jurisdictional problem would have eliminated the Court's opportunity to talk about judicial review . . . .

2001 exam, essay 2.A

QUESTION: First, although possession of eagle feathers is not in itself a commercial activity, just like possession of guns in Lopez isn't, it seems more "economic" than growing wheat for home consumption.  In order to possess an eagle feather, one has to either get it from a dead animal, kill an animal, or get/buy it from someone else, neither of these may be "local" or "intrastate" activities.

ANSWER: I see your point. But does that make the possession of the feather itself, as an activity, economic in nature? To me, the growing of a commodity that is actively traded on huge international markets, even if only used for home consumption, is more economic in nature than the possession of a feather. But I will admit that what qualifies as "economic" is, at least to some degree, in the eye of the beholder.

QUESTION: Further, if more people like Que start using eagle feathers for their personal/religious use, it will impact the interstate commerce via an aggregate effect.

ANSWER: But that is jumping to the ultimate question -- the effect on interstate commerce. The question here is logically prior: what is the nature of the activity that is being regulated? We must address that first, for it is a critical aspect of the legal inquiry as to whether the activity will be deemed, as a matter of law, to substantially affect interstate commerce.

QUESTION: Second, as decided in Raich, even though Que is claiming that the statute itself is not constitutional, but as it applies to her is unconstitutional, courts will not excise individual components of the statute, especially when the statute is regulating the broad activity of preventing destruction of animals and protecting endangered species.

ANSWER: True. And there is a good argument, based on Raich, that prohibiting non-commercial, intrastate activities is appropriate in the functioning of the broader regulatory scheme, which is more clearly aimed at the regulation of interstate commerce (i.e., the interstate market in eagle parts).

QUESTION: Third, assuming arguendo that the activity is "noneconomic," it is still "necessary and proper" for Congress to regulate the activity as a necessary part of the more general regulation of interstate commerce by protecting endagnered species.  (Scalia's argument in Raich). 

ANSWER: Or at least Congress is probably rational in so concluding, which is all that Raich seems to require (or Scalia in his concurrence).

QUESTION: So, Que's indictment should not be dismissed.

ANSWER: I tend to agree. But I would admit a degree of uncertainty, just because nothing in this business of constitutional law is ever truly clear or definite.

Revisiting Marbury

QUESTION: I just wanted to make sure that I've boiled this down correctly. Officially, Marshall established jurisdiction for the Supreme Court over Marbury v. Madison by interpreting section 13 of the the Judiciary Act in a manner that made the act unconstitutional -- that way the court could see the case in order to interpret a potentially unconstitutional law.


ANSWER: I might phrase it a bit differently. He read the Judiciary Act as purporting to confer jurisdiction on the Supreme Court in any case in which mandamus is the proper remedy. Because mandamus was the proper remedy in Marbury's situation, then the Act attempted to grant the Court jurisdiction. But this was not a case that fell within the original jurisdiction of the Supreme Court as defined in Article III. Hence, there was a constitutional problem.

QUESTION: Unofficially, Marshall interpreted the Act in an overbroad manner. The Act appears to be giving the Supreme Court jurisdiction in cases of appeal, whereas he interprets it to say that the court always has original jurisdiction over writs of mandamus.

ANSWER: That is a fair criticism. Marshall's interpretation of the Judiciary Act is not the most intuitive (though it has its defenders). To me, the relevant language appears either (a) to refer to what the Court can do when exercising its appellate jurisdiction, or (b) more generally, define the remedies that the Court is authorized to issue, provided the Court already has jurisdiction over the case. Had Marshall adopted either of these readings, of course, he would have been forced to conclude that the Court lacked subject matter jurisdiction before reaching the constitutional question. As a result, the Court could not have discussed at length the power of judicial review. So we are left to think that, yes, perhaps Marshall's reading of the Act was a bit disingenuous. But we do not know that for sure. He never admitted to deliberately subverting the language of the statute to reach the questions he wanted to answer.

QUESTION: Okay, I'm glad I asked, because your phrasing is where I'm confused. It seems as if you are saying that there are two subtle phases here: (1) he actually took the case because the judiciary act (as he interprets it) allows him to; and (2) once he has taken the case, the Judiciary Act (as he interprets it) presents a constitutional issue -- which allows him an opportunity to flex his judicial review muscles and review a federal law. Is that right? I think that I'm confused about what the official reason was that Marshall gave for the court to have jurisdiction. It seems like there are two things going on here.

ANSWER: There are three points that might help clarify things:

1. The Supreme Court actually had no discretion as to whether to "take" the case of Marbury v. Madison. At the very least, the Court had to determine whether it had jurisdiction. So there was no choice in at least reaching that question.

2.  I think it is correct to suspect that Marshall construed the Judiciary Act as he did to enable him to reach the constitutional question. But it is important to understand that the only question the Court ever addresses in Marbury is jurisdictional. (There is some other stuff, but it is technically dicta.) The jurisdictional question, properly understood, had two parts. First, there was the statutory question: had Congress granted the Supreme Court jurisdiction in cases such as this. Marshall read the Judiciary Act as doing so (though I think that is an unsound reading). Once he resolved the statutory issue this way, he then addressed the constitutional question: was such a statutory conferral of jurisdiction consistent with Article III? Here, Marshall said no (and in the process defended the Court's power to declare such acts inconsistent with the Constitution). So both questions -- the statutory and the constitutional -- were jurisdictional, in the sense that they concern whether the Supreme Court had jurisdiction to decide Marbury's case. By getting to the constitutional question, though, Marshall was permitted to discuss judicial review.

 

3.  Don't forget that the ultimate holding in Marbury is that the Supreme Court LACKED jurisdiction. Why? Because section 13 of the Judiciary Act, purporting to grant the Court jurisdiction, was unconstitutional. It attempted to grant the Court original jurisdiction in a case in which Article III does not permit. Thus, at the end of the day, the Court actually dismisses the case for want of jurisdiction.

More on Raich

QUESTION: I think the Raich decision merely reiterates Wickard (both its holding and its rationale), and it is consistent with Lopez and Morrison.  The rationale being that the regulated activity, although local and intrastate, is "economic" as in Wickard, and therefore within commerce power. In contrast, the activity in Lopez and Morrison is "not economic," hence not within commerce power. Both activities are clearly not "commercial." 

ANSWER: I think that is a plausible reading of one holding in Raich. That is, one could understand the Court as holding that cultivating marijuana is "economic" in nature, just as Lopez considered the growing of wheat in Wickard to be economic in nature -- even if done for purely personal consumption. As such, we can aggregate its effects, and we have a substantial effect on interstate commerce, such that Congress can regulate that acitivity.

But I would disagree that this is all that Raich holds. The alternative rationale -- and the more significant one -- is that Congress can regulate the activity even if we consider it neither commercial or economic. Why? Because what Congress is regulating in the relevant statute (the CSA) is the interstate market in narcotics, clearly commercial activity. And when Congress is regulating clearly commercial activity through a broad regulatory scheme, and that scheme happens to ensnare purely non-commercial, intrastate manifestations of that activity, it is still within the commerce power so long as Congress has a rational basis for concluding that exempting those manifestations from regulation would undercut the effectiveness of that regulatory scheme. 

QUESTION: In view of the above, it wasn't clear to me what the answer to your question "what Raich adds" was (before yesterday's class). Raich's complaint was different in terms of not attacking the statute itself, but rather its application to an individual. However, the Raich holding used the same rationale as in the above-mentioned cases. In other words, even if the CSA was specifically directed to marijuana only, and not to a larger scheme of five classes of controlled substances, the decision wouldn't be any different.  The court doesn't seem to make any distinction between marijuana and wheat and relies on the same supply/demand argument as in Wickard.

ANSWER: Again, in part you are absolutely correct. But I think there is more to the holding than that, as I have outlined above. Moreover, you could say that a CSA directed exclusively at the interstate marijuana market would still be a broad regulatory scheme for purposes of Raich's logic. Such a statute would still be far broader -- and much more clearly directed at commercial activity -- than a statute that did no more than regulate the possession of marijuana in a school zone.

Interstate commerce and "attenuation"

QUESTION: I have a question regarding Morrison. The dissent by Souter and three other justices states that 42 U.S.C. 13981 would have passed muster between 1942 and 1995. Their reasoning is that gender-based violence is similar to racial discrimination in Heart of Atlanta and McClung in reducing mobility of employees and the production/cosumption of goods in interstate commerce. Applying Lopez test, Heart of Atlanta/McClung had activities affecting commerce as being involved in renting rooms in a motel or selling food, whereas in Morrison the connection between the regulated activity (gender-based violence) and the effect (mobility/consumption) is more attenuated. The court in Morrison ruled that the activity is "noneconomic." Does the "attenuation" factor makes the regulated activity in Morrison "noneconomic," or do you think that the time frame really impacted the holding here?

ANSWER: There are a few different ways of looking at this. First, let's take the purely doctrinal. From that perspective, there is a critical difference between the Civil Rights Act of 1964 (which regulates commercial activity directly--the operation of a hotel or restaurant) and sec. 13981 of VAWA (which regulates a form of assault). The former is a commercial activity, the latter is not. The majority sees this distinction as dispositive. You could also package this as "attenuation," as the connection of the regulated activity in Morrison to an effect on interstate commerce is at least once removed when compared to that in Heart of Atlanta or McClung. The Civil Rights Act directly and immediately shapes commercial behavior (who businesses must serve). The effect on commerce in Morrison is more attenuated. But, as I indicated last night, this seems like simply a different way of expressing the idea that the activity actually regulated by 13981 was not itself economic or commercial.

 

Second, as to timing: Yes, political time clearly is also an explanation. In 2000, there were 5 justices on the Court willing to curtail Congress's commerce power. In 1965, had 13981 come to the Court, I feel confident that the Court would have upheld the Act. As lawyers, we can distinguish the two cases (as I have tried to do above), but as Court observers we have to admit that the personnel on the Court at any given moment does a lot to explain how that doctrine is understood or construed -- at least at the margin.

Some questions (and answers)

QUESTION: Does the power of judicial review always require a federal issue in the case?  Is it enough that the Supreme Court believes that the state law or state court opinion violates the Constitution (and that in turn creates a federal issue?) 

ANSWER: The jurisdiction of the federal courts is constrained by Article III, section 2 of the Constitution. These are all the "cases" or "controversies" that Congress can grant the federal courts the power to decide. The most common "case" is one arising under federal law--a question that concerns a federal law or the federal constitution. So, in a rough sense, yes, cases must generally present a federal question (e.g., this law (state or federal or local or whatever) violates the federal constitution). But some cases that can reach the federal courts do not, the best example being those that come via diversity jurisdiction.

One more point: you have asked specifically about "judicial review." That practice specifically refers to the practice of courts determining whether a law or executive action is constitutional. By definition, if a federal court is reviewing a law's constitutionality, it is addressing a federal question, as it is determining whether the law or executive action is consistent with the federal constitution.

QUESTION: As to Problem 3, I'm confused about the argument made by [the state attorneys general] that the decision NOT to buy insurance is not commercial. I understand the logic behind it, but I don't understand how it applies. If the law states that all persons must buy health insurance, then the decision not to purchase insurance isn't an issue.  In fact, it doesn't exist at all.  Without an option to not buy insurance, how is the fact that someone who doesn't buy insurance isn't commercial relevant?

ANSWER: I think the issue is logically prior. That is, Congress has enacted a law stating that all Americans must either (a) purchase health insurance by January 1, 2014, or (b) pay a fine. The relevant constitutional question is whether Congress has the authority to regulate behavior in this way. We need to answer this question, regardless of which choice any individual makes. Why is the commerciality of this decision relevant? Because whether the activity being regulated is economic or commercial is the crucial question under the third category according to Lopez and Morrison. So you are right that what a person actually decides is not important to answering the constitutional question. But the nature of the activity being regulated by Congress is critical.

Jurisdictional elements

QUESTION: I was wondering if the "jurisdictional element" relates to the rules of personal jurisdiction, or if it is much broader and refers to any attempt to define or limit the particular legislation with respect to interstate commerce?

ANSWER: It is wholly unrelated to the idea of personal jurisdiction. Rather, as I think your second clause indicates, it concerns Congress's legislative jurisdiction. A jurisdictional element, as meant in Lopez, is nothing more than additional language that ensures that the particular instance of the activity being regulated has some sort of a connection to interstate commerce. For example:

* law without a jurisdictional element: "It is unlawful to possess a gun in a school zone."

* law with a jurisdictional element: "It is unlawful to possess a gun that has traveled in interstate commerce in a school zone."

The emphasized clause is a jurisdictional element. And it is so called because its purpose is to bring the statute within Congress's commerce power -- that is, its legislative jurisdiction.

Studying for this class

QUESTION: So my question, probably not much different than my classmates, is how do I study for your class?  I've been outlining both class and textbook notes, which forces me to re-read and review in the process. A few of us meet before class to review and study. When problems have been assigned, we've worked through those and debated them as a group, which has been really helpful. In other classes, we tend to sit and discuss all the notes and questions after cases, but I'm EXTREMELY overwhelmed by the volume of notes at the end of each case. Basically, the book covers a lot of details we couldn't possibly go over in class, so do you suggest spending time reviewing those details, or is that time better spent reviewing the cases/notes discussed and referred to during lecture?

ANSWER: A number of different things to address here, and I'm not sure my answer will be helpful. But let me offer the following thoughts in response:

1. Studying -- and effective retention of information and concepts -- is a little different for everyone. So I'm wary of prescribing anything as a one-size-fits-all solution. Most of you by now have some sense of what works for you. If so, don't try to deviate too much from that just because the material is different.

2. Try not to let yourself be "overwhelmed" by anything, the notes after the cases or otherwise. The sense of being overwhelmed is a psychological condition, and it is necessarily framed or created by a preexisting expectation. That is, you think a task should only take X minutes to gain Y mastery, and that is simply not possible. Hence, it is overwhelming. Perhaps a more constructive way to think about the task at hand is this: I have X amount of time to study con law between now and the next class. What is the most constructive way to use that time? Allocate your time accordingly. If that process leads to not learning the intricacies of every note after the case, then so be it. You have done your best with the time available, and that is all we can ask of ourselves.

3. Which naturally leads to the question, What is the most important material to study? I think you are right that the assigned cases and our discussions in class are the most important. The notes after and in between cases are generally there to help you understand the cases themselves. Sometimes they provide additional primary material, and in a way that is important. Typically, we touch on such material in class, if only briefly.

4. More generally, I think devoting your time to interactive studying (rather than merely passive reading) is very important to retention and understanding. Not only does it require you to embed the concepts more firmly in your mind, but the process uncovers which ideas are still a little fuzzy. Studying that requires you to speak and explain to others, or to commit concepts to writing (not notetaking, but actually writing out explanations and the like) is extremely useful.

5. I should also note that I think it is fair, in general terms (but not as a conclusive presumption) , to assume that what we discuss in class reflects what I think is most important about the material. (This is just a general guide, and should not create any strong reliance interests.)

6. Lastly, if you really want a good idea of what concepts you will be expected to have mastered by the end of the semester, and how I expect you to be able to use and apply them, the best indication is my past exams. We are probably still just a little too early in the semester for most of the questions to make much sense. But by the time we finish the section on congressional authority, you will be ready to try your hand at answering them.

I hope this is responsive to your question.

More on standing and Steel Co.

QUESTION: I am a little confused about the phrase "standing must be jurisdictional," especially in view of Steel Co. v. Citizens for a Better Environment. In that case, the Supreme Court held that because none of the relief sought would likely remedy respondent's alleged injury in fact, respondent lacked standing to maintain this suit, and the courts lack jurisdiction to entertain it. My interpretation of this holding is that because the resdressability element of standing is not met, the court lacks jurisdiction, but that doesn't seem right. Could you please elaborate on the Steel Co. decision?

 

ANSWER: I think your interpretation of the holding in Steel Co. is correct: the plaintiffs lacked standing because they failed to establish that any of the forms of relief they sought would redress their alleged injury in fact. This is, in fact, exactly what the Court holds. Redressability is a part of the standing requirement, recall, because if the court's decision will not give the plaintiff any meaningful relief from its harm, then the opinion is essentially advisory. And the basic animating principle in this area is that Article III prohibits federal courts from issuing advisory opinions.

The first point you raise -- that standing is jurisdictional -- is distinct from the question why Citizens for a Better Environment lacked standing. It means that (1) the court must address standing first, and resolve that the parties have standing, before going on to address the merits, and (2) that the court must address the issue even if the parties have not raised it, for subject matter jurisdiction cannot be waived -- it is doctrine, rooted in the separation of powers, that constrains the federal courts.

 

 QUESTION: So, in addition to the three elements for standing: injury-in-fact, causation, and redressability, there always needs to be a jurisdiction without which the courts can't speak. Is that right? 

 

ANSWER: Yes, there always must be jurisdiction. Jurisdiction -- in its Latin roots -- means the power to speak. So, no jurisdiction, no speaking (by the court). Standing is one aspect of jurisdiction, but it is not the whole of it. The dispute also has to present a question fitting within the subject matter jurisdiction of Art. III, sec. 2 (e.g., a question of federal law), and it cannot present a political question.

 

QUESTION: For some reason, Steel Co. seemed relevant for the redressability issue than for jurisdiction.

 

ANSWER: The two ideas are nested. Redressability is part of the standing inquiry (but not all of it), and standing is a part of what we consider jurisdictional (but not all of it).

More on Problem 2 and standing

QUESTION: To show "injury in fact" for the future, even though the past events may not in itself be sufficient, I would think they can be useful in building the case.  Specifically, Angela Patterson's activities, although from the past, have been halted in the present directly due to the mercury discharge in the river.  For the same reason, will be halted in the future too, causing the injury. This case is more assertive than Lujan where the intent for visiting those countries is very uncertain.  In contrast, Angela's repeated visits in the past to the area and her staying within 2 miles from the facility seem more concrete to support an "imminent injury" to her future plans. Now, such an injury would have been even more imminent had she made a down payment on the house she wanted to buy near the river. But, that seems like an overdue burden on the plaintiff to prove "injury in fact" for the future. Quanitatively, on a scale of 0-100, the injury may not be 100, but seems definitely more than 60. Would like to hear your comments.


ANSWER: I basically agree with everything you say. There is no doubt that past activities enhance the credibility of future plans. That Ms. Patterson used to use the river, and has stopped doing so because of the pollution, is a strong indication that, once the pollution is remedied, she will use the river again. So yes, it is helpful, relevant, important. I would just emphasize, though, that to have standing to seek an injunction, she must be claiming that she would use the river in the future. If all her past activities were identical, but she had since moved to Sri Lanka and had no plans to come back to South Carolina, she would lack standing to seek forward-looking relief.

Questions concerning McCardle and Problem 1

QUESTION: I am not sure I heard your taking on the constitutionality of section 3(d) in Senator Allard's Bill.  The following is my thought, but please correct me if I am wrong. I think section 3(d) is constitutional.  The Exceptions Clause in Article III, section 2 gives Congress the power to regulate the Supreme Court's appellate jurisdiction, and it is reasonable to extend Congress's power to regulate lower federal court's jurisdiction.

ANSWER: I agree that Congress has the authority to regulate the jurisdiction of the lower federal courts, but I disagree that the authority derives from the Exceptions Clause. Rather, I would say that it derives from (a) Article III, section 1, which makes clear that Congress is under no obligation to create any lower federal courts in the first place, and (b) historical understandings and historical practice, under which Congress has never provided the lower federal courts with all of the subject matter jurisdiction authorized by Article III, section 2, clause 1.

QUESTION: I am not sure whether any case arising out of section 3(a)-(c) could qualify as one of "all" cases arising under the Constitution or federal law. 

ANSWER: I think they would. All of the challenges to these sorts of things have been based on the Establishment Clause of the First Amendment, and thus have been federal constitutional claims.

QUESTION: If it could, the Supreme Court can still hear the case. Thus, the first sentence of Article III, section 2 is satisfied. 

ANSWER: Right, at least as to the facts. The bill proposed by Senator Allard would not have foreclosed appeals to the Supreme Court--indeed, it would not have regulated the appellate jurisdiction of the Supreme Court in any way. Rather, its effect would have been to steer all lawsuits covered by the law into lower state courts, with appeal ultimately available to the Supreme Court.

QUESTION: Accordingly, if section 3(d) also applied to the Supreme Court, it was not constitutional only if a case arising out of section 3(a)-(c) could be one arising under the Constitution or federal law.



ANSWER: I am not sure about this. Do I understand you to be asserting that, if Congress completely forecloses any avenue of appeal to the Supreme Court on a federal constitutional claim, then Congress has gone beyond its authority under the Exceptions Clause? I think McCardle is hopelessly ambiguous on this question, thanks to that last paragraph. The Court there pointed out that McCardle had another avenue to reach the Supreme Court with his claim. But the Court did not say whether it was constitutionally necessary that such an avenue be in place--only that it was. I agree that it could only potentially be unconstitutional as in excess of the Exceptions Clause power if it foreclosed all such appeals. But I think it is unclear whether it would be.

Moreover, to say that this bill does not unconstitutionally interfere with the Supreme Court's appellate jurisdiction is not to say that, therefore, it constitutionally regulates the jurisdiction of the lower federal courts. These are separate questions. I think all would agree that Congress has more leeway to regulate the jurisdiction of the lower courts, if only because there is no constitutional requirement that these courts exist at all. But that does not mean, obviously, that any regulation of their jurisdiction would be permissible.

QUESTION: Is the Supreme Court's original jurisdiction exclusive? What I want to know is whether a state court could have jurisdiction over the cases falling within the Supreme Court's original jurisdiction.

ANSWER: I think the answers are, respectively, no and yes. First, recall that this portion of Marbury (holding that all cases denominated in Article III, section 2, clause 2 as within the Supreme Court's original jurisdiction must be brought as original actions in the Supreme Court). Congress has subsequently allowed lower federal courts to take jurisdiction of many of these cases, with appeal available to the Supreme Court. (The Prop 8 case is but one example--a case "in which a State [is] a party.") Second, state courts are courts of general jurisdiction, and thus can basically hear anything (as a matter of federal constitutional law) that state law would permit. Now, Congress could decide otherwise by statute, and require that these claims be brought in federal court, and even as original actions in the Supreme Court exclusively. That would be a permissible regulation. But Congress has not done so, and there is nothing in the Constitution (as it has been interpreted) that requires Congress to enact such a regulation.

A question about Dred Scott

QUESTION: I noticed that Dred Scott was decided in 1857, only three years before the Civil War broke out. I was wondering how the Court handled the events of the Civil War, as I assume some justices on the Court were Southerners. I noticed that while section 3 of the Fourteenth Amendment prohibits Senators and Representatives who fought for the Confederacy from holding office, there is no mention of Justices. I am wondering if these issues ever came up, and if the southern Justices continued to serve after the Civil War. Per Dred Scott, I assume this precedent was invalidated by the ratification of the Fourteenth Amendment, as a constitutional amendment will trump a Supreme Court decision.

ANSWER: Good questions, all. Let me take them up in turn.

First, while most all representatives and Senators from the South resigned from their positions and left Washington for the home states once their home states seceded, I do not think this happened with any justices on the Court. My recollection is that they all stayed, regardless of their state of origin.

Second, and more broadly, the Court generally tried to stay out of the way during the Civil War. The Dred Scott decision, which tried to settle the great question of Congress's power to regulate slavery in the territories, and thus to avoid the war, was a miserable failure, and the Court's prestige was at a low ebb. Moreover, Lincoln flatly disobeyed Chief Justicve Taney's decision regarding the suspension of the writ of habeas corpus in the Merryman case, which we discussed in class. The Court, regardless of the justices' views on slavery, secession, or the war, had little interest in exposing itself to further abuse.

Third, yes, the Fourteenth Amendment specifically overruled the Court's decision in Dred Scott. Section 1 (which has been in the news a bit recently) declares that any person born in the United States is a citizen of the United States. This specifically overruled the portion of Dred Scott stating that African Americans could not be citizens. Additionally, the Thirteenth Amendment prohibited slavery, whereas Dred Scott afforded great protection to the property interests of masters in their slaves as a matter of due process. These amendments clearly trump whatever the Court said previously in Dred Scott.

Book recommendations

A number of you have asked about books that might be helpful in providing some historical background to the cases and issues that we are discussing in class. Here are a few, though I could offer several more.

If you are interested in the framing of the Constitution, I recommend The Summer of 1787 by David O. Stewart. It is a relatively concise, quite accessible treatment of the constitutional convention. Two other favorites of mine that involve the founding era are What Kind of Nation by James F. Simon and Founding Brothers by Joseph J. Ellis.

If you are interested in books about the Supreme Court, there are a handful of recent (and terrific) accounts of the Court's history (with a nice combination of law and political context). These are the ones I would specifically recommend:

* L.A. Powe, The Supreme Court and the American Elite, 1789-2008

* Jeffrey Rosen, The Most Democratic Branch: How the Courts Serve America

* Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution

* Michael Klarman, From Jim Crow to Civil Rights

I could probably mention another 20 or so, but that should be sufficient for now. All of these books are just great, especially for those wanting some surrounding context for the Court's major constitutional decisions.

Questions and answers (part 3)

QUESTION: Are there any meaningful differences in the standards for using the 14th Amendment to invalidate State action based on Substantive Due Process for enumerated or unenumerated rights? In Lochner and Griswald, after finding that the case implicated a fundamental right, the Court applied strict scrutiny. Was this necessary with the incorporation cases?

ANSWER: There is no difference in the standards. (Many of the incorporation cases were decided before the modern era, or in the field of criminal procedure, thus we did not see this reference to strict scrutiny. But there is no difference in the practical effect.)

QUESTION: In the context of determining if an unenumerated right is "fundamental" and if a statute violates that right, how narrowly can the Court frame the issue?

ANSWER: The justices differ on this issue. I think it is fair to say that there is a large amount of discretion in how a judge perceives the "right" at issue in a given case. (And it may partly depend on how the litigant has framed or argued the point.)

QUESTION: In Bowers, the Court asked if there was a fundamental right for homosexuals to engage in sodomy when the statute actually prohibited all acts of sodomy, while in Lawrence they frame the issue more generally not to find a fundamental right in homosexual sex but to protect the "most private human contact in the most private places." Is there a standing or a advisory opinion problem when the Court frames the issue to encompass the constitutionality of the entire statute instead of the statute as applied in the case?

ANSWER: You raise two related but distinct questions. The framing of the right at issue is a conceptual question: what right protected by the Constitution is arguably violated by this governmental action? The facial vs. as-applied distinction concerns the nature of the litigant's constitutional challenge. Has the litigant argued that the statute is facially invalid, meaning that there are no constitutional applications of the statute? Or instead has she argued that, although the statute might be valid as applied to other persons, it is unconstitutional as applied to her? (The right at issue might be characterized as narrowly or broadly in either a facial or an as-applied challenge.) And yes, there is sort of a standing-like issue when a litigant is attempting to use her case to challenge the constitutionality of a statute as applied to other persons. This is why facial challenges are generally disfavored (outside the context of the First Amendment).

QUESTION: Would it matter if the law had been geared explicitly at only homosexual sodomy and didn't regulate sodomy generally?

ANSWER: Not to sound too Clintonian, but it depends on what you mean by "it" here. Again, the conceptualization of the right at issue sort of exists at the level of understanding the Constitution. So what the statute proscribes should not really affect that analytic move. But yes, what the statute proscribes (and what conduct the litigant has or will engage in) will affect whether the statute can validly be attacked as facially unconstitutional.

QUESTION: Is there a good way of distinguishing the Minnesota v. Clover/ Exxon (no discrimination) decisions from the Hunt (yes discrimination) decision based strictly on the DCC doctrinal framework?

ANSWER: Not in my opinion. I think the only way to understand those decisions is to accept that the justices must have believed, without saying so in the opinion, that the purpose of the statute in Hunt was protectionist, while it was not in Clover Leaf or Exxon.

QUESTION: In all of these cases I think the regulation was equally applicable to in-state actors as out-of-state ones (although in Exxon there were no in-state companies w/ the vertical integration) and was found to quantitatively discriminate practical effect in favor of local industries over out-of-state ones (In Exxon, 99 percent of the companies insulated and benefitted were in-state). Why isn't the question of discrimination in practical effect an empirical one?

ANSWER: The Court sort of says it is an empirical question. But I don't think that actually bears scrutiny, as there was no real empirical difference (as you suggest) in the discrimination in the cases you identified. So what explains it? I think that it functions as an additional doctrinal tool (though the Court has not so said) to infer that the law was motivated by protectionism.

QUESTION: Are there any useful distinctions b/w these cases or is the Court purely guided by its belief about whether the state was motivated by a protectionist purpose when deciding if the law is discriminatory in practical effect?

ANSWER: Nothing useful that I have found. If you find something, let me know.

QUESTION: I just took your 2001 final and had a question about Essay Question A. I know this was before Raich came down, but is it relevant/correct to say that the EPA is a broad regulatory scheme that deals with interstate commerce (interstate selling of eagle feathers)?

ANSWER: Perhaps, yes. And I think the question would then be whether, as in Raich, Congress is justified in regulating non-commercial, intrastate instances of the activity that is regulated by the broader regulatory scheme. (See my longer answer below.)

QUESTION: Also, is the lack of jurisdictional elements in the statute relevant?

ANSWER: Sure, it is relevant in the sense that, were there a jurisdictional element, it might have made the statute clearly constitutional. Thus, the lack of one makes it harder to justify the statute.

QUESTION:I have a question regarding your preference for exam essay responses. Several of your answers to the practice exams state that the only plausible option for challenging X is Y. In particular, the a 2001 question asks "On what basis could the government argue that the lawsuit is nonjusticiable." Then your answer states that the only plausible justiciablility challenge the government can make is to the plaintiff's standing. Does this mean that if we quickly explain why other possible justiciability challenges are not plausible we are wasting time - essentially discussing non-issues? Or are your responses just explaining the real issue that require in depth analysis, but you still expect us to justify why the other justiciability issues are not relevant.

ANSWER: Not necessarily. And it is hard for me to give precise guidance on the question. Let me do the best I can.

If you were to briefly explain why non-plausible paths are indeed not plausible, you almost certainly would receive some points. (It depends on how far out of the range of plausibility.) But you are also using time that might be used on addressing other things. So there is no harm -- and potentially some good -- in a brief explanation you describe. But once you get beyond brief, you are taking important time away from the issues that are much more important to address in some detail. Perhaps the best way to think of it is this: I award points for any discussion that is relevant and correct. But those points are scaled to their significance in the question.

I'm not sure this is completely responsive to your question, but it is probably the best I can do in accurately reflecting how I evaluate student essays.

Questions and answers (part 2)

QUESTION: With regard to standing, if a individual is requesting declaratory relief that a law is unconstitutional, does this require the showing of a future imminent harm as required when requesting injunctive relief, or would standing be satisfied by a previous injury in fact?

ANSWER: Future harm. A declaration that the law is unconstitutional would not redress the past injury.

QUESTION: In applying substantive Due Process to the states this is done through the 14th amendment, if a federal law is restricting what could be viewed as a fundamental right can substance Due Process be applied to the federal government through the 5th amendment?

ANSWER: Yes.

QUESTION: I know we went over the Anti-Commandeering principal and the federal government making the states perform some affirmative act or prohibiting some act, but wanted to try to clarify something, is the federal government prohibiting a state from doing something not going to create an anti-commandeering issue?

ANSWER: If it is a mere prohibition, I do not think it can be a commandeering. For if it were, then ordinary preemption would be unconstitutional. (Every federal law that preempts a state law effectively prohibits a state from regulating in a particular way.)

QUESTION:Going back to the 2009 Test, H1N1 - With respect to the spending power - if CA elected to not administer the program and the Federal government ended up doing, my understanding is that the Act still would have been characterized as spending power legislation. CA simply turned it down. My question is whether Congress the Act would still have been classified as "spending legislation" if Congress had elected for the Federal Gov't to administer the vaccine. Intuitively and looking at the Spending Clause - this seems like an easy question since Congress is paying for the program. However, when we discussed spending in class it seemed like the context only related to Congress' taxing and how used to incentive states. Am I correct in thinking that Federal Government programs administered by the Federal Government applies to the Spending Clause?

ANSWER: If I am understanding you correctly, the answer is yes. Often Congress uses the Spending Clause to encourage states to take certain actions by offering them money and attaching conditions. But the vast bulk of Spending Clause legislation does not involve the states. Think of defense spending. Or Social Security. Or Medicare. The federal government's provision of a benefit like a vaccine would constitute spending legislation as well, even when the states are not involved.

QUESTION: I just want to confirm what I believe you said regarding standing of states to sue the Federal Government. My understanding from the discussion today is that a state can sue (has standing) the Federal Government for passing a law that the state believes is unconstitutional.

ANSWER: That is true if the claim is that the law violates a right held by the state, such as its sovereign right not to be commandeered. But I do not think it is correct more generally. (A state would lack standing to vindicate the First Amendment rights of its citizens, for instance.)

QUESTION: The basis for the state's standing is that the law would be forcing the state to violate the Constitution in enforcing the law?

ANSWER: I would state it differently. The injury for standing purposes would be that the law forces the state to do something it does not want to do. The legal claim would be either (a) that the law amounts to a commandeering, or perhaps (b) the law is unconstitutional for some other reason, such as the fact that it requires the state to engage in unconstitutional behavior. But the claim need not be (b) to give the state standing to sue.

QUESTION: I wonder what we are supposed to discuss if the federal government (instead of state government) invades individual's fundamental rights or Privilege and immunities (rights to travel, same sex-marriage), such as the federal law of Defense of marriage Act in the Fall 2005 exam. Substantive due process should not apply since it is not state action. There are of course Bill or Rights. Are we supposed to discuss this?

ANSWER: You have raised two different questions. First, the the Fourteenth Amendment only applies to the states (as the text states "No State . . . ."). But the Fifth Amendment, which obviously applies to the federal government, also contains a Due Process Clause.

QUESTION: I am looking at your 2009 model answer right now and I'm kind of confused why preemption is not mentioned in the answer since there is a state law and a federal law that conflict and in this case the federal law is basically preempting the state law by canceling all sales contracts between the states and the vaccine manufacturers and by prohibiting states from purchasing an additional doses of the vaccine. Is the reason its not mentioned b/c you stated in the beginning of the exam not to talk about sovereign immunity? I guess I'm kind of confused as to what part of the class "sovereign immunity" is referring to because it seems pretty general.

ANSWER: Preemption is only relevant if one party is invoking state law, and that state law may be displaced due to a conflicting federal law. True enough, that may be true in the abstract in last year's exam. But what were the actual claims raised by the parties? Was anyone invoking state law in any way, such that the validity of that state law would be in issue? As to state sovereignty, we did not cover it (except for those brave souls who attended the optional Eleventh Amendment class). Often I include these disclaimers out of an abundance of caution -- particularly for students who have spent much of their time studying materials other than those that I have assigned.

Questions and answers (part 1)

QUESTION: It seems like the imminent injury analysis under standing is the same as the ripeness analysis? Is that right?

ANSWER: I think that is right. If an injury-in-fact is not sufficiently imminent, then in essence we are saying that the controversy is unripe.

QUESTION: Does the Privileges and Immunities Clause apply also to gov't regulation or only regulation by the States? If, for instance, somehow the national gov't could restrict certain people (either from that CA or from other states) from taking the bar in CA, would that violate the P and I clause?

ANSWER: Article VI itself only limits the power of state governments.

QUESTION: To what extent can the national gov't limit access to medical procedures whose legality are guaranteed by the right to privacy using eminent domain/preemption?

ANSWER: Any government action that infringes on a fundamental right would be subject to strict scrutiny. So if the medical procedure is a medical procedure is guaranteed (in the sense it is a fundamental right), then that would be the analysis.

QUESTION: Based on your sample answer to the 2009 exam, for instance, Ha is not constitutionally guaranteed the right to that immunization. While the national gov't could not proscribe receiving the vaccine, it can use its taking power to hoard all the vaccines and prohibit the States and private hospitals from purchasing any additional doses. If the States and private hospitals have no alternative method of providing the vaccine, is this different in effect from making it illegal for the States to vaccinate?

ANSWER: I may not fully understand the question. Why couldn't the federal government proscribe receiving the vaccine? Suppose the FDA determines that it is not safe and effective (as it does often for various drugs). As a general matter, I do not think that raises any serious constitutional questions. I agree, though, that the government's forcing others to sell all that they have to the government, and then refusing to sell it to someone, would be largely indistinguishable from proscribing that individual from receiving it. I think I might just disagree with the premise of the question.

QUESTION: I have a question about your exam from 2001. Specifically the question about the bald eagle. Does the analysis now change because of Raich? Before Raich, intrastate possession could not be considered an economic activity and thus not aggregated. However, I feel that after Raich, intrastate possession can be considered an economic activity if that commodity is sold in interstate commerce (even illegally as is marijuana and maybe bald eagles), thus it can be aggregated and fall under the Commerce Clause. Is this correct? Or is there a distinction between the bald eagle question and Raich in that she was growing pot and in the question the eagle is only being held in possession?

ANSWER:I think you are right that the analysis changes, though I would phrase how it does so differently. After Raich, the question is not so much whether the statute as applied to her is unconstitutional in isolation (or whether her activity, in isolation, is economic or commercial). Rather, the question is probably (1) does the statutory scheme as a whole regulate an activity that substantially affects interstate commerce, and (2) if so, then is Congress obligated to create an exception for applications of the statutory scheme that sweep up purely intrastate, noncommercial instances of that activity? Here, there is a good argument that the broader regulatory scheme is regulating a commercial or economic activity (the interstate trade in the parts of endangered species). Moreover, Congress would likely have a reasonable basis for concluding that exempting non-commercial possession would undermine the broader regulatory scheme (given the fungible nature of eagle feathers). So I think Raich affect the analysis, no doubt, but not on whether the precise activity that she was engaged in should now be considered economic or commercial in nature.

The level of scrutiny in Lawrence

QUESTION: I was just wondering in the Lawrence case why the comments after the case said that the Court did not explicitly spell out a standard for scrutiny when it seemed to me the Court was applying rational basis, as they used the language "legitimate" when discussing the State's interests?

ANSWER: Terrific question, and we will spend some time on this in class. You are of course correct that, near the end of the opinion, the Court states: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." This seems to connote rational basis review. But if the Court were actually applying rational basis review, why would it have talked at such length about the importance of the liberty interest at stake? If this were really rational basis review, then wouldn't the right at issue in Lawrence (however, exactly, we want to characterize it) be no more significant, for purposes of constitutional law, than the right of opticians to grind lenses without a prescription, or the right of milk distributors to sell skim milk with vegetable oil? The problem is that everything that precedes the sentence you identify suggests that this right is more important than the sorts of "rights," if we can even call them that, that trigger mere rational basis review. Indeed, every law, at least in theory, must be rationally related to a legitimate government interest to satisfy due process. So if any law would receive rational basis review, what explanation can there be for the Court to explain, over 30 pages, why what is at stake is more than just any right? We have to make sense of the whole opinion in its entirety, and not just that one sentence in isolation.

The Court, politics, and the appointments process

QUESTION: I have a little bit of a rant here, but also a philosophical question to ask if you have time for it: Stevens was nominated by a Republican; now is seen as "liberal"; his confirmation vote was 98-0. I don't think such a vote is going to happen today. Are the appointments too politicized? And can anyone, those sitting on the court included, find a way to truly rise above politics and rule in an apolitical way? You've already noted the political leanings of the court throughout history. I am fascinated by 5-4 decisions handed down through the years and imagine how things might be different but for one vote. And how Professor Joondeph might be standing there presenting something totally different to us doctrinally but for that one vote. Is that something you contemplate as a teacher? I taught engineering classes for several years that were more concrete in terms of right and wrong answers and that shiftiness doesn't always sit well with me.

ANSWER: Lots of great stuff here. Let me try to take them in turn. Is the appointments process too politicized? In my view, no. These appointments have very significant political consequences; they shape the contours of constitutional law for years to come. Constitutional law, for instance, would be very different had Robert Bork become a justice rather than Anthony Kennedy. That said, I think a number of people behave ridiculously during these events, exaggerating the consequences and distorting candidates' records. But that is sort of a different question. I think the problem, if there is one, is that the country is more politically polarized than in prior eras. And that seems to be a product of the two parties opposing one another ideologically on just about every single major issue. In previous times, there were important political coalitions that crossed party lines. Northern Republicans voted with many Democrats (and southern Democrats voted with many Republicans) on civil rights issues in the 1960s and 1970s. Conservative Democrats voted with Republicans on labor questions. In short, our political system functioned with many cross-party coalitions. For whatever reason, that is now gone, and the parties are rather uniformly divided on most every issue. This has led to ideological polarization everywhere, including nominations to the Supreme Court. Nominations have been simply another place where this has played out.

Can anyone rule in an apolitical way? In a word, no. Constitutional law is inherently political. The issues are contentious, and many are deeply ideological. Most can be decided either way, with completely defensible legal arguments, supported by the traditionally accepted sources of legal authority. So no, it cannot possibly be apolitical. It could be less transparently political. Judges can be more self-aware, and we can ask judges to be more conscious of checking themselves, to try to examine whether they are being pulled too hard by the predispositions. But I think that is probably the most we can realistically hope for.

Might the law we are learning be totally different, but for one changed vote? Yes and no. In the short run, yes. What the particular justices think, based on their own ideological leanings, often make constitutional law what it is. And my job is to make some sense of it, regardless of its causal origins. I still think it is quite interesting, even if it is not "correct" in any way. In the medium or long run, I would say that those 5-4 votes are much less significant. The answers are still "political," but they are determined by the People, or at least the portion of the People that have political influence. The Court is shaped more than it shapes. So, while the justices resolve important questions in the short run, the long run is determined by elections, social movements, and much broader economic and cultural changes in society. 5-4 decisions that run counter to these larger forces will ultimately be discarded. Witness Slaughter-House, Lochner, and Plessy v. Ferguson.

Do I think about the randomness inherent this process of constitutional lawmaking? All the time. But I still think it is fascinating. Constitutional law represents a normative political vision. The subject is inherently political, as it shapes our national political life. It can never be anything like engineering as a subject matter, because the basic "rules" or "principles," unlike the law of gravity, will always be contested.

I think the best frame in which to view these things is to think about the Constitution as setting out a broad framework. Some of the rules are fairly hard-wired (each state gets two senators, laws must be passed by both houses, etc.). Others are very open-textured, and thus, to some degree, up for grabs. Each generation works within this framework, both to enact positive law (statutes and regulations) and to shape the open-textured elements of the constitutional text (what is the meaning of interstate commerce or due process?). It is always a work in progress. The Court is only one player. It is a very important one, especially in the short term. But it is more of a reflection of society's values in the long term.

More on the dormant Commerce Clause

QUESTION: I'm a bit confused about applying the Pike test. My understanding was that the Pike test was only to be applied to laws that were not discriminatory, but had discriminatory effects.

ANSWER: Correct and incorrect, respectively. If the law does not discriminate against interstate commerce (on its face, in purpose, or in practical effect), then the Pike balancing test applies. But if we come to the legal conclusion that the law "discriminates against interstate commerce in practical effect," such as in Hunt, then it is a discriminatory law, and the much more stringent form of scrutiny applies. Pike only applies with the law is non-discriminatory.

QUESTION: For laws that were facially discriminatory or had a protectionist purpose, the state had to prove that it had a compelling public interest to justify the law. Is this accurate?

ANSWER: No. The exacting scrutiny is with respect to the means, not the end. (See the preceding post on tiers of scrutiny.) The end merely must be legitimate--i.e., not protectionism. The means must be the only ones available--that is, there can be no nondiscriminatory alternative.

Tiers of scrutiny

QUESTION: I am a little confused on the strict scrutiny test spectrum. For instance, under rational basis, it says the objective language must be "legitimate," which is the language used for the Dormant Commerce Clause test. However, in lecture it was stated that if a law is found to be facially discriminatory then the Court applies the strict scrutiny test, but the language of "legitimate" implies a rational basis level of scrutiny. So I am a bit confused from the breakdown on the board today.

ANSWER: Perfectly understandable question. I was not meaning to present a fully comprehensive examination of all the different forms of judicial scrutiny applied in constitutional law. Rather, my intent was to illustrate the three tiers of scrutiny typically applied in "individual rights" cases: rational basis, intermediate, and strict.

You are absolutely right, in that the scrutiny applied to state laws that discriminate against interstate commerce is a sort of hybrid. It demands that the state interest merely be legitimate (i.e., something other than protectionism), and that the means be necessary (i.e., there is no feasible nondiscriminatory alternative). This is a technical point, but I would not call this "strict scrutiny" in its classic sense (though you would not really be wrong for doing so). The reason, as you say, is that we do not demand that the government's interest be compelling. It is sufficient that it be something other than protectionism.

Now, you might ask, why has the Court set up this sort of hybrid test? The reason lies in the ultimate purpose of dormant Commerce Clause--namely, to prohibit parochial, protectionist state regulation. When the government impinges on a person's constitutionally protected right, in contrast, we demand that the government have a really good (indeed, compelling) reason for doing so. But with the dormant Commerce Clause, the concern is different. Our goal is really just to root out one sort of legislative goal: economic protectionism. So the government's interests need not be compelling.

Privileges and immunities, Article IV and the 14th Amendment

QUESTION: I was just wondering if you could clarify for me the difference between national citizenship and state citizenship as applied to the privileges and immunities clause. I am confused on the distinction because both the Privileges and Immunities Clause of Art, IV, Sec 2. and the Privileges or Immunities Clause of the 14th Amendment discuss this idea of "fundamental rights," or what is vital to the nation as a whole, so I am wondering what the distinction is.

ANSWER: Actually, the Privileges or Immunities Clause of the 14th Amendment does not protect such "fundamental" rights--rights that bear on the vitality of the nation as a whole. The fact that states (and not the federal government), prior to the Civil War, were primarily responsible for protecting such "fundamental" rights was a critical part of the reasoning in Slaughter-House, as the majority believed it unthinkable that the new amendment would afford such protection. But these rights are not protected by the Privileges or Immunities Clause of the 14th Amendment. Indeed, that they are not so protected was the critical point of the Slaughter-House decision.

QUESTION: If something is vital to the nation as a whole (like not discriminating against out-of-state residents for job qualifications), then how is that something dealing with state versus national citizenship since it applies to the "nation" and not just the state?

ANSWER: I may not fully understand this question. If the right at issue "bears on the vitality of the nation" as a Union (whatever exactly that means, it is a "privilege" or "immunity" within the meaning of Article IV, section 2. But this does not mean it is covered by the Privileges or Immunities Clause of the 14th Amendment.

QUESTION: Also, it seems to be that the law overruled in Saenz v. Roe dealing with residency requirements seems to be more applicable to rights under state citizenship, since the individuals discriminated against were already state residents, whereas in the P and I cases we read under Art. IV, sec 2, we were dealing with individuals who were out of state being discriminated against.

ANSWER: Saenz did concern a "right," in the first instance, created by state positive law -- namely, the right to TANF payments. But the right actually vindicated by the Supreme Court's decision in Saenz was the right to interstate travel--or, more specifically, the component of that right that encompasses the right to interstate migration. This right is a right incident to national citizenship, not state citizenship. So the holding of Saenz is that a state cannot discriminate in the allocation or protection of state legal entitledments (whether we call them "rights" or something else) in a way that interferes with this national right of interstate migration.Thus, any discrimination among citizens based on the duration of a citizen's residency will be subjected to something akin to strict scrutiny.