Constitutional Law I(T)
Past Assignments and Questions

Fall 2017
Professor Schnably

 
Assignments for the week of August 14:

  • Monday, August 14: Please read the material in Section I.A.1 of the Syllabus (both I.A.1.a and I.A.1.b). Note that you do not need to read every page of CB xli-lvi and Supp. 14-127 (the U.S., Canadian, and South African constitutions) sequentially. Read these Questions to see how to proceed with respect to them. You do need to read CB 1-7 and Supp. 128-132 as any other reading. Consider:

    • Why have a constitution at all? Must it be in writing to be a constitution? Are there any other characteristics something must have in order to be a “constitution”? What distinguishes a constitution from legislation?
    • Must a constitution have been democratically adopted in order to be a constitution? Legally adopted? What defines what “democratic” and “legal” mean for this purpose?
    • Why should a constitution bind subsequent generations?
    • As a delegate in 1787 would you have signed the constitution? Why or why not?
    • The purpose of giving you two other countries’ constitutions, plus a set of proposed amendments to the U.S. Constitution (Levin’s), is to give you some sense of how constitutions can differ and how they can resemble each other.
      • While many different examples could be used, Canada is interesting because it is a neighbor with a common law background.
      • South Africa’s constitution is often taken as a model for modern constitution-drafting.
      • The set of U.S. constitutional amendments proposed by Levin may typify the kinds of amendments many proponents of a U.S. constitutional convention have in mind; thus it is useful to treat the U.S. constitution as altered by those amendments as a third, hypothetical constitution.
    • As noted, you don’t need to read the entire U.S., Canadian and South African constitutions word for word, but you should spend some time skimming through each of them to get a good sense of them. You need to do more than just flip through the pages, but something less than a word-for-word read. As you are going through them, think about the ways in which the underlying approaches to constitution-making vary.
    • Begin with a look through the U.S. Constitution, and then think about two fairly discrete comparative questions.
      • First, get an overall sense of the provisions of the U.S. constitution. Skim each Article (I-VII) to see what general subject it covers, and look through the amendments to see how it’s been amended over time. What groupings of the amendments do you see? The Bill of Rights is one -- do you see others? Should it matter in interpreting an amendment whether you see it as part of a group of related amendments? Would you group any of the amendments with any parts of the original constitution?
      • Second, be prepared to answer these questions:
        • What are the eligibility provisions for being president of the U.S.? Of South Africa? See U.S. Const., Art. II § 1 cl. 5, and Amend. XXII; Const. of South Africa, Arts. 42(3), 46, 47, 86 and 88.
        • If a majority of U.S. voters wanted to elect the following as president, would the U.S. Constitution permit it? If not, why should a majority of people be prevented from electing their preferred candidate? Consider U.S. Const. Art. II, § 1 cl. 5 (CB xlvi); Art. I § 8 cl. 4 (CB xliii); Fourteenth Amendment § 1 (CB li). What other articles might be relevant to your argument? What about Article V (CB xlvii)?
          • Arnold Schwarzenegger (former governor of California) or Elaine Chao (current U.S. Secretary of Transportation), both naturalized U.S. citizens born in Austria and Taiwan, respectively
          • Sen. Marco Rubio (Florida) (born in the U.S. to parents who at the time lived here but had Cuban citizenship)
          • John McCain (born to U.S. citizens on a U.S. military base in the Panama Canal Zone. The Panama Canal Zone was controlled by the U.S. from 1903 to 1999, after which it reverted to full Panamanian control.
          • George Romney (former governor of Michigan and father of Mitt Romney, and a candidate for the Republican nomination in 1968), born to U.S. citizens in Mexico
    • Once you’ve gotten a sense of the U.S. constitution in particular, you can begin to look more systematically through the Canadian & South African constitutions as well.
      • For the Canadian and South African Constitutions, identify the major divisions of the constitution and what subject matter they cover.
      • In the case of each of the three constitutions (U.S., Canada, South Africa), just based on what you have in the casebook and the supplement, when would you say the constitution was written? Another way to put it is, in what time did the framers of each live?
      • Does any one of the constitutional texts seem more to you like what a constitution should look like than the others? Why? For example, should constitutional language be broad and sweeping? Should there be tables or schedules in constitutions? Why or why not? For each constitution, identify at least one provision that is of a type that you think either clearly does not belong in a constitution, or at least arguably does not (and consider the reason(s) for your selections).
      • What is your view of the South African Constitutional Court’s role in the drafting of the Constitution. One argument often used against invoking the provision in U.S. Const. Art. V (CB l) for a constitutional convention is that a complete rewrite of the Constitution could put individual liberties at risk. If we were to draft a new national constitution, would it make sense to have the Supreme Court review it to make sure the new draft was at least as protective of rights as the current one?
    • Compare the provisions of each of the three constitutions relating to:
      • The protection of rights
        • U.S. Const., Art. I §§ 9, 10; Bill of Rights (Amendments I-X); what other amendments would you include in this category?
        • South African Constitution, ch. 2 (§§ 7-39)
        • Canadian Const. Act, 1982, Sched. B, Part I (Charter of Rights and Freedoms)
        Among other things, consider what types of rights each of the three protects.
      • The suspension of rights in case of emergency (sometimes called a state of exception)
        • U.S. Const. § 9 cl. 2
        • South African Constitution, § 37
        • Canadian Const. Act, 1982, Sched. B, Part I (Charter of Rights and Freedoms), § 33.
        How do they differ? Which approach do you think is better?
      • Compare the major provisions of each of the three constitutions relating to the powers of the provinces/states vis-a-vis the federal/national government (and read the Field and Williams articles):
        • U.S. Const. Art. I §§ 8 and 10 and the Tenth and Fourteenth Amendments;
        • South African Const. chap. 6 (§§ 103-150);
        • Canadian Const. Act, 1867, Arts. 91-95.
      • In which of the three do the provinces/states appear to have the most independence? Consider the text and also the Field, Marshfield, and Williams readings.
      • What is the relationship between national and provincial/state courts in each of the three?
      • What limits are there to discerning from the texts the actual relationship between the national and local governments?
    • Compare the procedures for amending the constitutions:
      • U.S. Const., Art. V
      • Canadian Const. Act, 1982, Part V (§§ 38-49) and § 52.
      • South African Const., § 74. See also Const. Act, 1982, § 35.1.
        How do the provisions differ? Which of the three do you think is the best?
    • With respect to the U.S. Constitution:
      • Do you think the constitution today is in need of major, systematic revision? Why or why not? In thinking about this question, consider anything you think is relevant, but at least consider:
        • Note that Article V (CB xlviii) provides that the legislatures of three-quarters of the States can call a Convention for Proposing Amendments. Would you support such a call? Why or why not?
        • Consider the amendments proposed by Levin. Are there ones you would favor? Oppose? Consider that some amendments have relatively limited effect (like the Eighteenth Amendment (prohibition)) and others much broader effect, possibly changing the nature of the Constitution (for example, Amendments I-X, or the Thirteenth, Fourteenth, and Fifteenth Amendments). Would adoption of the amendments proposed by Levin change the nature of U.S. constitution, in your view? Why or why not?
        • Are there provisions in the Canadian or South African constitutions that you would like to see incorporated into the U.S. constitution?
        • Are there other amendments you would like to see made to the U.S. Constitution?

  • Tuesday, August 15: We continued our discussion of the material in Section I.A.1.

  • Thursday, August 17: We will briefly completed our discussion of the material in Section I.A.1, and then moved on to Section I.A.2.a.

    With respect to Section I.A.2.a, consider:

    • Under the Supreme Court Act, R.S.C., 1985, did the Court have the discretion not to answer the question posed by the Governor in Council? What language in the Act governs this question?
    • On what basis did the amicus argue that Section 53 of the Act was invalid under the Constitution? How did the Court respond to that assertion? Note that the Court cited U.S. and other foreign law in reaching its conclusion. Why was that relevant?
    • As you can see from the casebook, the U.S. Supreme Court decided early in its history (1793) that it had no power to render advisory opinions. What reasons did it give? Do you think the Court was correct?
    • Should the U.S. Supreme Court consider foreign law in interpreting the U.S. constitution? If the U.S. Supreme Court were to reconsider its decision of 1793, would the Secession opinion’s discussion of whether the Canadian Supreme Court can render an advisory opinion be relevant to determining whether the U.S. Supreme Court has the authority to render advisory opinions? Why or why not?
    • Do the texts enumerated in § 52 of the Constitution Act, 1982, exhaustively comprise “the Canadian Constitution,” according to the Court? (See para. 32 of the opinion). Should the U.S. Supreme Court take a similar approach to interpreting the U.S. Constitution?
    • What values does federalism serve, according to the Court? In what way are they similar to or different from the values that federalism serves in the U.S.?
    • The Court identifies “democracy” as a second principle. What does the Court say about the non-inclusion of any reference to “democracy” in the Constitution Act, 1867? Is the principle of democracy sufficiently specific to give guidance in interpreting the text of the constitution? How does it relate to federalism, according to the Court? Does it include a right to change the form of government? Was democracy the animating principle underlying the adoption of the U.S. constitution?
    • The Court identifies “the rule of law” as the third principle. What does this mean, concretely, according to the Court? What is the relationship between democracy and the rule of law? What is the relationship between “majority rule” and democracy? Are they the same, both being limited by the rule of law? Does the rule of law define what a majority is? What does the Court say to the charge that the rule of law or constitutionalism is incompatible with democracy?
    • The Court identifies “protection of minorities” as the third principle. Much of Canada’s constitutional history relates to the presence of a large Francophone minority within Canada (but majority within Quebec), so the principle is in that particular sense specific to Canada. Would you identify a similar basic principle in the U.S. Constitution? As of 1787? As of 1865-1870 (when the Thirteenth, Fourteenth, and Fifteenth Amendments were adopted)?
    • According to the Court, what, legally, would a provincial secession be?
    • What significance does the Court attach to the fact that provincial secession is not mentioned in the Constitution?
    • If a referendum were held in Quebec and a majority voted to secede, it would have a legal effect under the Constitution, according to the Court. What would that effect be? Would it depend on how close the vote was or on how the referendum were worded?
    • Suppose there were such a referendum in Quebec, and after a majority vote to secede, negotiations on secession. Then the Quebec government asserted that in the negotiations the federal government and other provinces were not negotiating in good faith. Would the Court be available to determine whether that assertion were true (and give relief if it were)? Or would it be a “political question”?
    • Are there any circumstances under which a U.S. state could secede consistent with the U.S. Constitution?

 
Assignments for the week of August 21:

  • Monday, August 21: Please read the material in Sections I.A.2.b and I.B. With respect to Section I.A.2.b, consider:

    • Hans v. Louisiana
      • What was the substantive claim that Hans asserted in the case? Was it breach of contract? Something else?
      • Precisely which part of Article III would give a federal court jurisdiction over Hans’s claim?
      • What was the effect of the Eleventh Amendment on federal court jurisdiction over Hans’s claim:
        • According to Hans?
        • According to the Court’s ruling in Hans v. Louisiana?
      • What reasons did the Court give for its holding in Hans? Are they persuasive, in your view? Why or why not?
      • What lessons might you draw from Hans about the importance of constitutional text to constitutional interpretation? Suppose the Canadian constitution had an express provision that (say) Quebec was entitled to secede under certain specified circumstances, and a different province -- e.g., Alberta -- sought to secede. Would it have the right to? Under what terms?
      • Edward Purcell gives one account of Hans with which many, though not all, historians would agree. Assuming for the sake of argument that he is correct, was the Court in your view (a) shirking its duty to be faithful to the text of the constitution, (b) interpreting the text as best it could (even if reasonable people might disagree), or (c) prudently taking cognizance of inherent limitations on judicial effectiveness?
      • What is your answer to John Randolph Prince’s question, “Why Bother Reading [the Eleventh Amendment]?” What is Prince’s critique of Hans? Do you find it persuasive? Why or why not?
    • The Eleventh Amendment and the Rest of the Constitution
      • What are the different ways that an amendment can modify a constitution, according to Paul A. Clark? How does the Eleventh Amendment modify the Constitution -- according to Clark and according to Prince?
      • Go back over the U.S. presidential eligibility questions from Monday (above) in light of Clark’s analysis. Assume, in doing so, that the Fourteenth Amendment would prevent any state from barring those individuals from serving as governor based on their birth history. Would your earlier analysis change at all? Why or why not?

    With respect to Section I.B, consider:

    • By way of making some of the arguments between the federalists and anti-federalists more contemporary and concrete, consider a hypothetical situation today in which a group of doctors seeks to establish an abortion clinic in a small town:
      • What would be anti-federalist arguments for having a town meeting decide whether to allow the clinic to be established?
      • What concerns might you expect Madison to raise against the anti-federalist arguments?
      • What governmental forms would, in Madison’s view, be best adapted to deciding the application? What advantages would a central government governed by representatives elected from relatively large districts have over a town meeting?
    • Would it be consistent with a republican form of government to have a referendum on whether to amend the Florida constitution to ban affirmative action or to preclude localities from banning discrimination based on sexual orientation?
    • The Federal Reserve Board is in charge of monetary policy, meaning that it exercises a major influence over interest rates and, through them, the state of the national economy. Members are appointed to 14-year terms by the President with Senate confirmation. The Board operates with a considerable degree of secrecy and a high degree of legal independence from the executive branch (though, as we saw in the crisis in 2008, it can also cooperate with the executive branch in case of an economic emergency). Would it be desirable, in your view, to have the Federal Reserve Board put directly under the control of the President (in the same way that, for example, cabinet secretaries or the Environmental Protection Agency are)? Would it be consistent with a republican form of government as described by Madison to do so? Should the answer to this second question matter one way or the other to your views on the first? Why or why not?
    • What advantages would the federal government have over the state governments in the new structure, in Madison’s view? What disadvantages would it have compared to them?
    • Which branch of the federal government did Madison believe would be the most powerful? Is that still true today, in your view? What difference does it make?
    • Why was there no Bill of Rights in the original constitution?
    • On what do Justices O’Connor, Stevens, and White disagree regarding the history of the adoption of the constitution in New York v. United States:
      • what happened in 1787?
      • the proper understanding of what happened in 1787?
      • the relevance of what happened then?
      • the relevance of later events?

  • Tuesday, August 22: We completed our discussion of the material in Section I.B, and discussed the material in Section I.C.1. With respect to the material in Section I.C.1, consider:

    • What is Justice Scalia’s argument that the phrase “the right of the people” refers to an individual right? What is Justice Stevens’s reply? They both refer to other parts of the constitution where that phrase (or the phrase, “the people”) is used. What are those provisions? In deciding whether it refers to an individual right, is the placement of the Second Amendment in the Bill of Rights relevant?
    • What is the meaning of “keep and bear arms”? Is it limited to a military context or does it include hunting and personal self-defense? Here, too, consider Justice Stevens’s and Justice Scalia’s differing approaches.
    • What is a “militia”? What is the meaning of “well regulated Militia”? Do we need a “militia” today in this constitutional sense? Suppose we don’t. Is it ever acceptable to treat a part of a constitution as having fallen into desuetude? Of what practical significance is the Third Amendment today?
    • The majority distinguishes between a “prefatory clause” and an “operative clause.”
      • Does something “operative” intrinsically sound more weighty than something ”prefatory”? Is this distinction a constitutional one or purely grammatical? Is there any evidence that the Framers intended the two phrases to be given different weight?
      • Is “A well-regulated Militia, being necessary to the security of a free State” one clause or two? What does the majority say? On what basis?
      • What significance, if any, should be attached to the fact that the Second Amendment is the only amendment in the Bill of Rights with a prefatory clause?
      • What is the relationship between “a prefatory clause” and an “operative clause,” according to the Court? If A says to B, “since you need to check your e-mail, you may use my computer,” does that give B the right to use A’s computer to buy something on Amazon or check the browsing history? Is this hypothetical a fair comparison to the relationship as set out by the Court?
      • Suppose the Second Amendment read in its entirety as follows: ”The right of the people to keep and bear Arms shall not be infringed.“ Would that require any change to the majority’s ruling on the meaning of the Second Amendment? To the dissent’s?
    • The excerpts in the casebook do not make this entirely clear, but the predominant understanding of the Second Amendment throughout the Twentieth Century was that it did not protect individual rights, just the possession of firearms in connection with a militia. (In 1991, former Chief Justice Warren Burger called the view that it did protect individual rights a “fraud.” It’s optional, but if you want a fuller account of his views, you might be interested in a Parade Magazine article he wrote in 1990.) Should the Twentieth Century interpretation matter to how you interpret the Second Amendement today? Why or why not?
    • What is the scope of the right as recognized by the majority?
      • Handguns of the sort that were banned in D.C. did not exist in 1791. Yet the majority asserts that their possession is protected by the Second Amendment. What kind of approach to constitutional interpretation does this imply?
      • In light of Heller, may a state ban the possession of handguns in schools and college campuses except by police officers?
      • In light of Heller, and considering the article by Halbrook (Supp. 113-118, which also discusses McDonald, the follow-up to Heller, which if any of the following weapons would you expect the courts to find to be protected by the Second Amendment? Does it depend on whether they would be of any use in a military context today?
        • silencers. Note: the proposed “Hearing Protection Act” would make it far easier to purchase a silencer; some versions would preempt state laws regulating or banning silencers.
        • bullet-proof vests
        • semi-automatic weapons, which do not require reloading for each shot, but do require squeezing the trigger for each shot
        • automatic weapons such as machine guns, which fire continuously so long as the trigger is held down
        • rocket-propelled grenade launchers.
      • What uses or forms of possession are not protected, according to the majority?
      • Why can someone who commits wire fraud (a felony) be denied an individual constitutional right to keep and bear arms? Does this mean that other rights in the Bill of Rights (e.g., to be free from unreasonable search and seizure) may be similarly denied to felons?
    • How persuasive do you find Justice Breyer’s argument that the framers would not have anticipated the problem of modern urban-crime related dangers (CB 51-52)?
    • If you were writing a constitution today, would you include a right to keep and bear arms? Why or why not?

  • Thursday, August 24: We discussed the material in Section I.C.2, focusing on these questions:

    • If Article I § 8 had a clause stating, “The Congress shall have the power to create a national bank,” would that have settled the issue in McCulloch, in your view? Why or why not? If it would, how should we regard the absence of such a phrase? Of 100 countries surveyed in 2009, thirty-five had constitutional provisions relating to a central bank and sixty-five did not (though of those 65, 22 states were party to a treaty relating to the central bank). BIS, Issues in the Governance of Central Banks (May 2009), at 59. Should it matter that when the Constitution was being drafted, there was some talk about putting in a provision for a national bank, but there was no real push for it by its supporters out of fear it might be rejected?
    • What was the significance of this absence in Maryland’s view? How does his famous phrase, “we must never forget, that it is a constitution we are expounding” (CB 55, end of last full paragraph), tie in to his response?
    • Does Marshall imply a power under Article I § 8 to create a national bank? Or does he uphold Congress’s action as a means to exercise other powers given in Article I § 8 (what powers are those)? What is the difference between these two approaches? In what specific ways would the powers he point to be aided by having a national bank?
    • Is there a sense in which Marshall’s approach renders Art. I § 8 cl. 6 (CB xliv) superfluous? Suppose it does. What is Marshall’s view on whether it is ever acceptable to adopt an approach to the constitution that renders a provision superfluous? Compare his remarks at CB 57 (second full paragraph, beginning “So, with respect to the whole penal code ...”) and his remarks at CB 58 (second full paragraph, beginning “In ascertaining the sense ...”) about the phrase “necessary and proper.”
    • Marshall cautions that Congress cannot constitutionally make pretextual use of its powers. CB 59 (third full paragraph). How would the Court distinguish a pretext from a genuine exercise of power?
    • What was Maryland’s argument about the word “necessary” in the “necessary and proper clause”? How did it fit in with its argument about the nature of the Union and the constitution?
    • What textual arguments might be used to respond to Maryland’s argument?
      • What does Marshall say about the word “absolutely”? Where does it appear? Where does it not appear?
      • What does Marshall say about the word “expressly”? Where does it appear? Where does it not appear?
      • Why does it matter for Marshall that the necessary and proper clause is in Art. I § 8, rather than in Art. I § 9?
    • Marshall regards the “necessary and proper” clause as supporting his conclusions. But what does his remark about holding a lighted taper to the sun (CB 58, third full paragraph) indicate about its importance to his ultimate conclusion about the validity of the creation of the national bank?
    • How much does history count in the interpretation of the Constitution? Consider the history recounted in his opinion at CB 53-54 and in the “Background” note at CB 62-63.
    • How much is the Court’s holding on Congress’ power to establish a national bank based on (a) the Framers’ original intent, (b) history and precedent, (c) the structure of the Constitution, or (d) the text of the Constitution (or some combination thereof)?
    • Would it have been better, in your view, to include a provision giving Congress the power to legislate “in all cases to which states are incompetent or in which the harmony of the United States may be interrupted by the exercise of individual Legislation”?
    • With regard to the meaning of the word “necessary,” is the European Court of Human Rights’s decision in Dudgeon v. United Kingdom inconsistent with the ruling on the meaning of that word in McCulloch? What violation of the European Convention on Human Rights was alleged in Dudgeon? Is the right that was alleged to have been violated absolute? If not, why didn’t the UK (Northern Ireland) law fall within an exception to the right?

 
Assignments for the week of August 28:

  • Monday, August 28: We will complete our discussion of the material in Section I.C.2, and then move on to Section I.C.3. Read over these Questions before you start the reading for Section I.C.3.

    With respect to the remaining material in Section I.C.2, consider:

    • Even if Congress has the power to establish a national bank, what in the constitution prohibits a state from taxing it? Is there any textual provision that disables the state from doing so? Is there anything, for example, in Art. I § 10 that would prohibit it? What about Art. VI cl. 2 (the supremacy clause) (CB xlviii)?
    • What is Marshall’s structural argument regarding Maryland’s attempt to tax the bank? Why apply the label “representation reinforcement” to it?
    • Even if one accepts Marshall’s contention that the power is the power to destroy (see CB 60, second and third paragraphs), does it follow that it is the Court’s job to preserve the Bank from destruction by Maryland?

    With respect to the material in Section I.C.3, you do not need to read all of Supp. 157-216; some of it is there for optional background (i.e., there are parts you can skim or skip entirely, and parts you should look at carefully). Focus on the questions raised and the parts of the reading to which your attention is specifically directed in the following Questions:

    • To get a sense of the facts, first read the Lipton & Craig article (Supp. 157-159) and the Economist article (Supp. 171-173). You can skim the Paddock article (Supp. 160-170), focusing on the specific questions below.
      • Consider these projects, investments, and business relationships. In what ways might President Trump’s actions as president affect the value of the ventures, partnerships and businesses that are part of the Trump Organization?
        1. the Trump International Hotel in the federal government-owned Old Post Office Building in Washington, D.C. (Supp. 157-159, 172)
        2. the labor dispute, subject to the jurisdiction of the National Labor Relations Board, at a Trump hotel in Nevada (Supp. 157-159; Supp. 168-169)
        3. the hotel project in Manila in partnership with Jose Antonio (Supp. 160, 167-168)
        4. the hotel project in Brazil (Supp. 161, 163-164)
        5. the Trump Towers in Istanbul (Supp. 161, 166-167)
        6. the initiation fee at Mar-a-Lago (Supp. 171)
      • What about the effect of interest rates on the value of the Trump Organization? (Supp. 159)
    • Consider the different examples of prior presidents at Supp. 158 (left-hand column). Does prior practice of presidents have any bearing on the interpretation of the constitution? Is President Trump’s situation comparable to that of the other presidents discussed there?
    • Which do you agree with more:
      • the view expressed by Karen Hobert Flynn (president of Common Cause) that President Trump should abide by conflicts of interest statutes because the public expects it (Supp. 158)
      • the view expressed by Holman Jenkins that presidents can always be accused of having improper motives for their actions, so there is no particular reason for President Trump to divest his ownership of the businesses? (Supp. 178-179)
    • Why did the Framers include the Emoluments Clause, according to Eisen, Painter & Tribe? See Supp. 184-187. (You do not need to read the entire paper, just these pages and those indicated below.)
    • If what the Emoluments Clause seeks to prevent is bad enough to merit a constitutional prohibition, why is there also a provision in it for Congress to make exceptions?
    • Does the Emoluments Clause apply to the President? What are the arguments for and against? Consider the views of:
      • Eisen, Painter & Tribe (Supp. 187-190).
      • Seth Barrett Tillman (Supp. 176); and
      • OLC Opinion (Supp. 206-207). (You may skim the rest.)
      What is your view on this? In formulating it, consider:
      • The text of the Constitution (all relevant text, not just the Emoluments Clause itself).
      • The history behind it and the Framers’ intent
      • Historical practice since the adoption of the constitution
      • Functional considerations
    • Beyond the question of whether the Emoluments Clause applies at all to the president, consider the following. In doing so, read Eisen, Painter & Tribe, Supp. 191-193, and review Teachout (Supp. 177-178) and Jenkins (Supp. 178-179).
      • What is an “emolument”?
      • Suppose (contrary to fact) the government of Norway determined the recipient of the Nobel Peace Prize each year and that no money was awarded with the Prize. Would the conferral of the Peace Prize itself be covered by the Emoluments Clause? What about the gold medal that goes with it? What if the government did award money, but that when the President accepted the Prize he said he would donate the money to a charitable cause (as he in fact did)?
      • What is a “King, Prince, or foreign state”?
        • What about foreign government-owned corporation?
        • What about the Nobel Prize committee? (optional question)
      • In what ways can Congress indicate its consent?
      • Is transferring management of the Trump Organization to his adult children sufficient to address conflict of interest issues? What if the transfer is revocable by the President Trump? What if he were to turn over management to an unrelated individual who would be forbidden from discussing with him any management actions or decisions the Trump Organization made?
      • In what ways might the Emoluments Clause be enforced?
    • Assume for the sake of argument that the only way to conform with the Emoluments Clause would be for the President to sell his interest in the Trump organization, at great cost to his wealth. Is that fair? What position does Teachout take on this question (Supp. 177)? Do you agree? Why or why not?

  • Tuesday, August 29: We will first complete our discussion of the material in Section I.C.2. We will definitely get to the material in II.A.1, and though it is likely we will complete our discussion of that Section Thursday, you should have read the material in full for this class. Consider:

    • What criticisms could you make of the Court’s reasoning on the following issues:
      • Is Marbury entitled to his commission? In this regard, consider the issue of delivery of the commission, and compare it to the question of delivery of a pardon (Supp. 217-220) [Note: it’s entirely optional but slightly on point: Joel Gunter, Could Trump Pardon Joe Arpaio by Tweet?, BBC News, 8/24/17.]
      • If so, is he entitled to a remedy?
      • If so, does the Judiciary Act § 13 (CB 28, note*) give the Supreme Court original jurisdiction to grant him the remedy?
    • What criticisms could you make of the Court’s reasoning on the following issues:
      • If the Judiciary Act § 13 (CB 28, note*) gives the Supreme Court original jurisdiction to grant Marbury the remedy he seeks, is the grant of jurisdiction by the statute consistent with the constitution?
      • If not, what should the Supreme Court do?
    • Consider how the following hypotheticals would come out under § 13 of the Judiciary Act (CB 28, note*)
      • An individual sues a foreign ambassador to the U.S. Where must the suit be brought?
      • The foreign ambassador wishes to sue someone. What are his options? Ames v. Kansas, 111 U.S. 449, 464-65 (1884), upheld the constitutionality the options granted in the Section 13. (Illinois v. Milwaukee, 406 U.S. 91 (1972), which is cited in CB 34, note b, reaffirmed Ames.)
    • Are the results you reach under § 13 consistent with Article III of the Constitution?

      Note: The following table may be helpful in thinking through the different possible meanings of Art. III, § 2 cl. 2:

       Supreme Court’s Original Jurisdiction Is ConcurrentSupreme Court’s Original Jurisdiction Is Not Concurrent
      Listing of jurisdiction in Art. III, § 2 cl. 2 is exhaustiveMarbury + AmesMarbury + opposite of Ames
      Listing of jurisdiction in Art. III, § 2 cl. 2 is nonexhaustiveOpposite of Marbury + AmesOpposite of Marbury + opposite of Ames

    • Marshall states in passing that the question of what the Court should do in the face of a statute it believes is beyond Congress’s power to enact is important but relatively easy to answer (“a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest.”) (CB 30). Do you agree that it is fairly straightforward?
    • Is there anything in the text of the constitution that:
      • expressly provides for judicial review?
      • does not expressly provide for judicial review, but clearly assumes its existence?
    • How much if at all should the following factors count in determining whether the Court has the power of judicial review:
      • The fact that the constitution is written
      • The fundamental nature of a constitution in a legal order
      • The intent of the framers
      • How well a constitution would function as a constitution without judicial review.

  • Thursday, August 31: We completed our discussion of the material in Section II.A.1.

 
Assignments for the week of September 4:

  • Monday, September 4: No class. Labor Day.

  • Tuesday, September 5: We discussed the material in Sections II.A.2 and II.B.1

    With respect to Section II.A.2, consider:

    • What is the statutory basis for the Supreme Court’s jurisdiction in Martin v. Hunter’s Lessee? Make sure you can point to specific language in § 25 of the Judiciary Act (Supp. 221).
    • Suppose that the case had gone in Martin’s favor. Would the Supreme Court have had jurisdiction under § 25 (Supp. 221) to hear an appeal by Hunter? Only after you have attempted to parse the statute on your own, you may want to look at this version.
    • What is the argument that § 25 (Supp. 221) violates the constitution? What arguments does the Court marshal to refute the claim that the statutory grant of jurisdiction is unconstitutional?

    With respect to the material in Section II.B.1, consider:

    • Is it wrong for the President or a governor to disagree with a Supreme Court decision? Do other branches of the federal government, or the states, have the power to make their own determinations of what is constitutional? Consider these examples:
      • Cooper v. Aaron (1958) (CB 44)
      • President Jackson’s veto message (Supp. 222-223)
      • Former Speaker of the House Nancy Pelosi, responding to proposals to try to undo the Supreme Court’s decision in Kelo v. New London Connecticut, was quoted as follows: “Arguing that Congress has no business interfering with the ruling unless it wants to amend the Constitution, Mrs. Pelosi said: ‘This is almost as if God has spoken.’” See Congress Assails Domain Ruling, Wash. Times, July 1, 2005. Do you agree as to the finality of the Supreme Court’s rulings? (Kelo -- a decision we’re not reading -- had to do with the Takings Clause.)
      • Newt Gingrich’s 2012 Presidential primary campaign cited Jackson’s Veto Message with approval, see 21st Century Contract with America: Bringing the Courts Back Under the Constitution (NEWT 2012 Paper Supporting Item No. 9 of the 21st Century Contract with America (Draft 10/7/11), p. 17, and concluded (p. 22):
          In very rare circumstances, the executive branch might choose to ignore a Court decision. One can imagine such a circumstance when Courts attempt to usurp the foreign policy powers of the executive and legislative branches and such usurpation compromises the national security of the United States and threatens the safety of Americans.
             For example, if the Congress were to enact a statute on military commissions that explicitly limited federal court jurisdiction, then the President would be warranted in ignoring any judicial decision or action that violated the limitation on jurisdiction. It is proper to do so because the Congress that enacted the law presumptively believed it was constitutional. The President who signed it (assuming no veto) thought it was constitutional and the President who ignores the court decision thought it was constitutional. Thus, it is two branches against one, in an area where the Constitution empowers the executive and legislative branches (not the judicial branch), and in a case in which the judicial branch is violating constitutional limitations on its authority.

        Do you agree? Why or why not? Is his position distinguishable from Jackson’s? You can find the full position paper here (optional).

  • Thursday, September 7: Classes cancelled. Please refer to the University’s Emergency Preparedness site for more information: prepare.miami.edu.
 
Assignments for the week of September 11: Classes cancelled.

 
Assignments for the week of September 18:

Resumption of classes September 20:

Welcome back! As you may be aware, Law School classes will resume Wednesday, September 20. I hope everyone is safe and sound, and well on the way to recovering from Irma.

The Dean’s office has announced revisions to the schedule to ensure that our class meeting times satisfy ABA accreditation requirements:

  • Fall break is cancelled.
  • There will be at least two days of classes after Thanksgiving break.
  • There may be some additional make-up classes scheduled; details about any specific days and times for these additional classes will be forthcoming.
  • Exams will start and end according to already scheduled dates.

  • Monday, September 18: No class.

  • Tuesday, September 19: No class.

  • Wednesday, September 20: No class. We of course do not meet on Wednesdays, but you may have other classes that meet this day, and this is the first day all Law School classes resume.

  • Thursday, September 21: This class was videotaped.

    We discussed the material in Sections II.B.2 and II.C.1.

    With respect to Section II.B.2, consider:

    • Suppose a judge believed slavery immoral or a violation of natural law, but permitted by the constitution. How should the judge rule on a challenge to the legality of slavery? What would the different opinions of Justice Chases and Iredell in Calder v. Bull (CB 65) suggest? Is it clear that Justice Chase’s approach would favor holding slavery illegal? (Note, for example, his statement regarding property.)
    • How did the New Jersey court respond to a challenge to the law regarding slavery in New Jersey, in State v. Post? Does it have any implications for the issue of whether courts should refer to natural law in deciding cases? Is natural law the same thing as the “feelings” to which the judge refers in that case? (CB 456)

    With respect to the material in Section II.C.1. Consider:

    • The material at CB 155-158 is general background, to give you a better sense of how the court operates today. We won’t discuss all of it in class, and you don’t need to know it in detail. But you should understand the difference between the Court’s mandatory appellate jurisdiction and its discretionary certiorari jurisdiction and Congress’s power over them (CB 155-156, note 1).
    • What tools do the political branches have to limit the Supreme Court’s power? How effective are they? What tools should be available to Congress?
    • Should the Supreme Court retain the nearly complete discretion it has to select the cases it has? Would you support legislation expanding the Supreme Court’s mandatory appellate jurisdiction? If there were such an expansion, should certain types of cases be targeted?
    • Consider then-President Obama’s criticism of Citizens United (the campaign finance decision) in his 2010 State of the Union address -- attended by Chief Justice Roberts and some other members of the Court. Do you think his remarks were consistent with the proper role of the political branches vis-à-vis the Court? Was Justice Alito’s silently mouthed response? Why or why not, in your view?

    • What is your view of the following proposals from Newt Gingrich’s 21st Century Contract with America: Bringing the Courts Back Under the Constitution (NEWT 2012 Paper Supporting Item No. 9 of the 21st Century Contract with America (Draft 10/7/11), pp. 21-22:

      • Impeachment Power. Judges who issue unconstitutional decisions or who otherwise ignore the Constitution and the legitimate powers of the two other co-equal branches of the federal government can be subjected to impeachment. For example, any federal judge who joins in an opinion that flouts explicit limitations on jurisdiction in legislation establishing military commission should be subject to impeachment for violating the Constitution. An impeached judge who escapes conviction in the Senate due to its 2/3 voting requirement may nevertheless also face the possibility of his judgeship simply being abolished, an option outlined below which would require fewer votes in the Senate.
      • Congress Can Create Statutory Guidelines for the Impeachment of Federal Judges. Congress can create specific statutory measures that govern the impeachment of federal judges. The simple Congressional action itself of codifying existing constitutional authority to impeach judges on various grounds, including the issuing of unconstitutional opinions, asserting arbitrary power, and otherwise usurping the authority of the legislature will send an unmistakable signal to all federal judges of a renewed commitment by the legislative and executive branches to defend the Constitution against oppressive and tyrannical judges.
      • Judicial Accountability Hearings. Congress can establish procedures for relevant Congressional committees to express their displeasure with certain judicial decisions by holding hearing and requiring federal judges come before them to explain their constitutional reasoning in certain decision and to hear a proper Congressional Constitutional interpretation.
      • Abolish Judgeships and Lower Federal Courts. The Constitution vests Congress with the power to create and abolish all federal courts, with the sole exception of the Supreme Court. Congress even has the power, as Congressman Steve King of Iowa frequently notes, to “reduce the Supreme Court to nothing more than Chief Justice Roberts sitting at a card table with a candle.” During the administration of Thomas Jefferson, the legislative and executive branches worked together to abolish over half of all federal judgeships (18 of 35). While abolishing judgeships and lower federal courts is a blunt tool and one whose use is warranted only in the most extreme of circumstances, those who care about the rule of law can be relied upon to consider whatever constitutionally permissibly tools they can find to fight federal judges and courts exceeding their powers. It is one of many possibilities to check and balance the judiciary. Other constitutional options, including impeachment, are better suited in most circumstances to check and balance the judiciary.
      • Spending Power. Congress has the power of the purse. It can reduce or eliminate funding of Courts to carry out specific decisions or a class of decisions.
      • Executive and Legislative Branch Adoption of Originalism. Both the executive and legislative branches should be encouraged to adopt originalism as a mode of constitutional analysis when deciding on the constitutionality of executive and legislative branch actions as well as the constitutionality of legislation. Originalism posits that the interpretation of the Constitution should adhere to the meaning of the text as it was understood by those who enacted it. Originalism rejects the idea of substituting one’s own view about the meaning of the Constitution for how the Constitution was originally understood. A Gingrich administration will adhere to a theory of originalism in its judgments about constitutional interpretation.
      • Limiting the General Application of a Judicial Decision. Abraham Lincoln outlined in his First Inaugural that in certain circumstances, the holdings of Supreme Court decisions should be limited to the litigants in a case, and not be held to apply as a general controlling standard for similar cases. As the head of the executive branch, a President could command all executive branch agencies in certain circumstances to limit the application of a Supreme Court decision to only the litigants involved and otherwise ignore it as a rule of general application.
      • Ignoring a Judicial Decision. In very rare circumstances, the executive branch might choose to ignore a Court decision. One can imagine such a circumstance when Courts attempt to usurp the foreign policy powers of the executive and legislative branches and such usurpation compromises the national security of the United States and threatens the safety of Americans. For example, if the Congress were to enact a statute on military commissions that explicitly limited federal court jurisdiction, then the President would be warranted in ignoring any judicial decision or action that violated the limitation on jurisdiction. It is proper to do so because the Congress that enacted the law presumptively believed it was constitutional. The President who signed it (assuming no veto) thought it was constitutional and the President who ignores the court decision thought it was constitutional. Thus, it is two branches against one, in an area where the Constitution empowers the executive and legislative branches (not the judicial branch), and in a case in which the judicial branch is violating constitutional limitations on its authority.

 
Assignments for the week of September 25:

  • Monday, September 25: We will complete our discussion of the material in Section II.C.1. In addition, we will discuss the material in Sections II.C.2.a, II.C.2.b.i and II.C.2.b.ii.

    With respect to what remains of Section II.C.1, consider these questions:

    • Would the bill mentioned on CB 77 be constitutional, in your view? (We began our discussion of this but did not complete it.)
      • Consider the text of the Constitution; the framers’ intent; the function of judicial review; and the case law -- particularly, McCardle, Yerger, and Klein. Note: these are somewhat cryptic cases over which much ink has been spilled; you are not likely to have a definitive answer from them about the constitutionality of the statute, but you should understand what the arguments would be in light of them.
      • Suppose it instead deprived lower federal courts of jurisdiction in such cases. Would it be constitutional?
      • Suppose it deprived both the Supreme Court and lower federal courts of jurisdiction in such cases. Would it be constitutional? (We’ll get to it later, but if you’re interested you might take a look at H.R. 2028 (2004) [CB 121, in the first full paragraph], which is an example of such a statute.)
      • What about a federal statute that required a moment of silence in classrooms in any public school systems receiving federal funding, to be presided over by a Christian minister or priest, with the following provision: “No federal court shall find, in the event of any challenge to this statute, that the moment of silence is in any way coercive or inhibiting of anyone’s freedom of religion, the court shall dismiss for want of jurisdiction any case in which such a claim is asserted.”
    • What is your view of the following proposal from 21st Century Contract with America: Bringing the Courts Back Under the Constitution (NEWT 2012 Paper Supporting Item No. 9 of the 21st Century Contract with America (Draft 10/7/11), pp. 20:

      • Setting Limitations on Federal Court Jurisdiction. Article III, section 2, clause 2 provides that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” This power, along with Congressional power to create and abolish all lower federal courts, provide for a powerful check on the judiciary. Acting together, the legislative and executive branches can therefore limit the jurisdiction of the federal courts through ordinary legislation.

        This legislation would remove the power of the courts to hear certain types of cases that the executive and legislative branches believe that the federal judiciary has simply gotten wrong in the past.

        How might this approach play out in practice? For example, Americans can ask that Congress pass a law insisting on the centrality of “our Creator” in defining American rights, the legitimacy of appeals to God “in public places,” and the absolute rejection of judicial supremacy as a violation of the Constitution’s balance of powers. If the Supreme Court ruled that such a law was unconstitutional, the legislative and executive branches could take corrective action. Congress and the president could pass the law a second time but include a provision that affirms the legislative and executive branches’ constitutional role to define the Court’s jurisdiction. This law could also include a specific provision that barred the lower federal courts from reviewing it.

        If this does not convince the judges to stand down, the legislative and executive branches have additional options. They could explicitly provide by statute that any federal judge that refused to adhere to the legislative limitations on jurisdiction would be subject to impeachment and removal from office. While not necessary, explicit notice to the judicial branch in the form of legislation that ignoring limitations on jurisdiction can lead to their impeachment may temper judicial behavior. It also may provide additional political support for the removal of judges in a future impeachment proceeding on the grounds of a judge ignoring statutory limitations on its jurisdiction.

    With respect to Section II.C.2.a, consider:

    • If you’re interested in seeing the letter that Thomas Jefferson wrote to the Court on behalf of President Washington, you can find it through the Library of Congress site. The Justices’ full response can be found here.
    • What if anything in the U.S. Constitution forbids the U.S. Supreme Court from giving advisory opinions? In answering this question, people often refer to Article III (what provision?). Is that the provision to which the Justices pointed in their letter to President Washington (CB 84)?
    • Does the U.S. Constitution forbid state courts from giving advisory opinions? Why or why not?
    • What does the following comment indicate about whether the ban on advisory opinions is necessarily a part of the Constitution?

             The initial debate [on advisory opinions] ... occurred at the Constitutional Convention of 1787. On June 4, the delegates deleted from Edmund Randolph’s resolution dealing with the power to negative acts of the legislature, a provision for joining the judiciary with the Executive in exercising this right of veto. The minority in favor of the plan displayed a certain tenacity of purpose and it was not until the proposal had been defeated on three subsequent occasions that it was ultimately abandoned. On July 21, Gorham of Massachusetts, exhibiting the influence of the constitution of his state, suggested the adoption of a provision allowing the Executive to obtain advisory opinions from the Supreme Court. There is no evidence of discussion upon this suggestion and the issue was suspended until August 20, when Charles Pinckney made a formal proposal to vest in “each branch of the legislature, as well as the Supreme Executive . . . authority to require the opinions of the Supreme Court upon important questions of law and upon solemn occasions.” The proposal was referred to the Committee on Detail, but never reported on by it nor revived by Pinckney. History does not record the manoeuverings and compromises which must have attended this abrupt termination of the issue....
             ... [The Justices’] refusal [of President Washington’s request for an advisory opinion] was made in the face of an impression then prevalent in various quarters that the President had the right under the circumstances to require the advice of the Court. Professor Thayer has commented that had the questions been of a different character or been proposed at a less tense moment, the justices might well have ventured their opinion and thus erected a precedent which would materially have altered the subsequent history of the device.
             An extraordinary incident occurred during the administration of Monroe. On May 4, 1822, the President had vetoed a bill which sought to extend the federal power over turnpikes within the boundaries of the states, and he had embodied his views as to the limitations of the power involved in a lengthy pamphlet, a copy of which was transmitted to each of the justices. Marshall replied, expressing his agreement in general terms with the Executive. Story answered but merely acknowledged receipt of Monroe’s communication, without expressing any opinion on the question. Shortly thereafter, it appears that Justice Johnson obtained the views of his associates and with their consent actually forwarded their joint opinion to the President. Research does not disclose a single other instance in which the Court or the members thereof have acted in a similar informal capacity.
             There is, however, one other occasion worthy of mention in which the justices of the Court did depart from their usual routine. The Hayes-Tilden election of 1876 had ended in such a way as to leave the result in doubt, and an Electoral Commission was created by act of Congress in 1877 with complete authority to decide the dispute which had arisen over the double returns involved. The roster of the Commission included five justices of the Supreme Court, four of whom were designated in the act, the choice of the fifth being left to the discretion of the four so specified. Curiously, no objection was ever made by the Court to the duties thus conferred. It is a matter of record that every member of the Commission favored by his vote that view which would result in adding to the electoral vote of his party. The reflection cast by such uncompromising loyalty upon the impartiality and integrity of the justices did not help the prestige of the Court.

        The Advisory Opinion and the United States Supreme Court, 5 Fordham L. Rev. 94, 101-03 (1936).

    With respect to Section II.C.2.b.i, consider:

    • How desirable is judicial self-restraint through standing doctrine?
    • As to Allen v. Wright:
      • What exactly is the claimed violation -- what is the IRS doing that the plaintiffs say is illegal? On what do they base the claim of illegality?
      • Why weren’t the plaintiffs ultimately allowed to bring their action? Was it a determination that in fact the IRS was not violating the law?
      • What is the personal injury the plaintiffs suffered by the plaintiffs as a result of the IRS’s alleged violation of the law?
        • Is it that they can’t get into the government-subsidized racially discriminatory schools?
        • Is it the stigmatizing injury caused by racial discrimination?
        • Is it the harm to the task of desegregating the public schools?
      • What was the problem with causation and redressability, according to the majority?
      • How might you characterize the injury differently from the way the majority characterizes it, so that the causation and redressability requirements would be satisfied?
      • What are the reasons for having a standing requirement?

  • Tuesday, September 26: We will complete our discussion of the material in Section II.C.2.b.i. (Please see the Questions above.) In addition, please read the material in Section II.C.2.b.ii.

    With respect to Section II.C.2.b.ii, consider:

    • Consider the differing ways in which injury is conceptualized in (a) Bakke (CB 115), Northeastern Florida Chapter of Associated General Contractors (CB 115), and Gratz (CB 116), on the one hand, and (b) Linda R.S. (CB 113), EKWRO (CB 114), and Allen v. Wright (CB 85), on the other. To get a sense of how these cases differ, suppose that the standing issue in Linda R.S., EKWRO, or Allen had been decided using the approach in Bakke or Northeastern Florida Chapter of Associated General Contractors. How much restraint does standing doctrine in fact impose on the courts?
    • Next, we will take a look at the question of how the Court responds to claims of widespread injuries. In this regard, consider this hypothetical:
           Senator Ariana Rodriguez was elected to a six-year term as Senator from the state of Florida in 2014. In late 2016, the lame-duck Congress voted to approve an increase in the pay of the Supreme Court justices. Rodriguez voted against the pay increase. It took effect January 1, 2017.
           In August 2017, President Trump nominates her to be an Associate Justice after Justice Ginsburg retires, and the Senate confirms her. She is set to resign her Senate seat and take the oath on September 15, 2017. Robert Jackson, a citizen of Florida, brings an action against Rodriguez seeking to bar her from taking office as a member of the Supreme Court.
      1. What constitutional provision(s) might pose a problem for Rodriguez’s attempt to take office as Associate Justice?
      2. Does Jackson have standing to bring the action? Why or why not? If not, is there anyone who would have standing?
      3. Suppose Congress had enacted a statute providing that “any citizen may bring an action to contest the eligibility of any individual who has been nominated and confirmed to serve in the federal judiciary.” Would that solve the standing problem? What might Akins (CB 113) suggest?

  • Thursday, September 28: We completed our discussion of the material in Section II.C.2.b.ii. In addition, we discussed the material in Sections II.C.2.b.iii.a)i) and II.C.2.b.iii.a)ii).

    With respect to the material in Section II.C.2.b.iii.a)i), consider:

    • What was the alleged injury to the plaintiffs in Lujan? Did the Court accept that they were injured but find the nexus lacking, or did the Court think there was a problem with the injury component of standing?
    • Suppose the government was planning to cut down a citrus tree in your yard because it had canker, an incurable disease that mars citrus fruit, and which is highly contagious to other citrus trees in the vicinity. Should you have standing to challenge that action? Should your neighbor? Suppose your neighbor thinks that your tree has canker and that it will spread to hers. The state decides not to cut down your tree. Should your neighbor have standing to challenge that decision?
    • Suppose a small forest of endangered trees is going to be cut down in Sri Lanka under a program partially funded by the U.S. government. Should you have standing to challenge the decision to provide aid to that program? Should it matter if:
      • You are a professional biologist who studies those trees?
      • You are a cancer patient and those trees are an important source of an anti-cancer drug?
      • You are concerned about the impact of diminishing ecosystem diversity on the global environment?
      • There is a federal statute stating that everyone has the right to live in a world in which ecosystem diversity is preserved?
    • In Lujan, what was the holding of the Court on redressability? What was Justice Scalia’s opinion on the matter?

    With regard to the material in Section II.C.2.b.iii.a)ii) (Spokeo (CB Supp. 25)), consider:

    • When you read the facts of the case (second paragraph on CB Supp. 25), also read the excerpt from Justice Ginsburg’s dissent (CB Supp. 29).
      • Was Robins’ injury “particularized,” according to the majority? Why or why not?
      • Was Robins’ injury “concrete,” according to the majority? What might make the injury “concrete,” for standing purposes?
      • What does the Court mean by “bare procedural violation”? If Spokeo lists Robins’ zip code incorrectly, why is that a “procedural” violation? Why are “procedural” violations not concrete? Suppose it wrongly lists that he has been convicted of a felony. Is a “procedural” violation, too?
      • Why wasn’t it decisive that Congress provided by statute, as quoted at CB Supp. 25, “[a]ny person who willfully fails to comply with any requirement” -- including, e.g., that the consumer reporting agency have ”reasonable procedures” to ensure accuracy -- is liable to the consumer? Which does the statute do:
        • Grant standing; or
        • Define an injury?
        Or does it do both (or neither?)
      • Do you agree with Justice Thomas that standing should be harder to establish in the case of rights granted by federal statute than where the rights stem from the common law?

 
Assignments for the week of October 2:

  • Monday, October 2: Videotape We discussed the material in Sections II.C.2.b.iii.b), II.C.2.b.iv, and II.C.2.b.v.

    With respect to the material in Section II.C.2.b.iii.b), consider:

    • In Clapper, what specific activities of plaintiffs Scott McKay and Joanne Mariner led them to believe that there was an “objectively reasonable likelihood” that communications to which they were parties would be intercepted and monitored by the government, pursuant to Section 702 of FISA (50 U.S.C. § 1881a)?
    • Suppose the government did want to monitor communications to which McKay or Mariner might be a party. What legal requirements would it have to meet in order to do so?
    • Based on the factual allegations, how likely is it in your view that if the government did seek to intercept such communications, it would do so under the authority of § 1881a as opposed to some other legal authority? Why should this matter to standing?
    • The majority holds not only that plaintiffs were incorrect to conclude that there was an “objectively reasonable likelihood” that communications to which they were parties would be monitored, but that (for purposes of standing law, at any rate), the prospect was “highly speculative.” What specifically made it so speculative, according to the Court? Is “highly speculative” the same as something not being “certainly impending”? Does the Court treat them as being the same?
    • Make sure you can describe the second asserted basis for standing -- a basis the majority treats as an instance of a plaintiff attempting to “manufacture” standing. Do you agree with the majority’s characterization? What does Justice Breyer say in reply?
    • Is Clapper consistent with the Court’s earlier holdings (including the ones we’ve read and the ones cited by Justice Breyer (CB Supp. 16-17)?
    • Should any of the following matter to your conclusion about standing in this case:
      • The fact that the FISA court operates in secrecy and hears only the government’s side, and that its opinions are classified?
      • The possibility that since the monitoring is done in complete secrecy, no one will be able to establish definitively (at least without Edward Snowden’s help) that they are being monitored, and so no one might have the opportunity to establish standing to bring a challenge to the monitoring?
      • The fact that in testimony to the Senate in March 2013, NSA Director James Clapper gave the following answers to questions by Senator Ron Wyden of Oregon:

          WYDEN: ... Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?
          CLAPPER: No, sir.
          WYDEN: It does not?
          CLAPPER: Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.

        For background (optional) see James Clapper’s ‘Least Untruthful’ Statement to the Senate” (The Fact Checker, Washington Post, 06/12/13).

    • The Clapper v. Amnesty International majority states that “if the Government intends to use or disclose information obtained or derived from a § 1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition” (CB Supp. 13, top paragraph). How is this relevant to standing in this case? Does it fully satisfy concerns about the availability of judicial review? How might it not?

    • Subsequent developments (optional):

      • It turned out that the government was not providing such notice to defendants, and had failed to do so repeatedly. Adam Liptak, A Secret Surveillance Program Proves Challengeable in Theory Only, N.Y. Times, 7/15/13. Three months after this came to light, the DOJ announced that it would do so in the future. Charlie Savage, Door May Open for Challenge to Secret Wiretaps, N.Y. Times, Oct. 16, 2013. Note: These articles are optional.

      • Revised! Courts have come to different conclusions on standing. For example, in Klayman v. Obama, a federal district court found standing to challenge the metadata program (revealed by Snowden), which was so comprehensive that, the court concluded, there was a substantial likelihood plaintiffs’ communications had been monitored, distinguishing Clapper. Also, the government had declassified a FISA court order confirming the NSA’s bulk collection of metadata from Verizon. 957 F. Supp. 2d 1 (D.D.C. 2013). On appeal, the D.C. Circuit reversed and remanded. Individual opinions of two of the panel members took the view that standing was lacking. On remand, the District Court determined that several of the plaintiffs did have standing, and had shown a likelihood of success entitling them to a preliminary injunction. 142 F. Supp. 3d 172 (D.D.C. 2015). The D.C. Circuit then issued an emergency stay of the motion pending appeal. Klayman v. Obama, 2015 WL 9010330 (D.C. Cir. 2015), rehearing en banc denied, 805 F.3d 1148 (D.C. Cir. 2015). In January 2016, the government moved in the District Court to vacate the preliminary injunction and dismiss the appeal as moot.

        In ACLU v. Clapper, the Second Circuit did find a sufficient basis for standing, and held that the bulk metadata program was not authorized by the USA PATRIOT Act. However, the Second Circuit subsequently denied a motion for a preliminary injunction.

        In both cases, the reason for the plaintiffs’ ultimate lack of success in the courts stemmed from success in the political process. After the Snowden revelations, Congress approved the Freedom Act, which ended the bulk metadata collection of telephone information but allowed it to continue for a 180 day period.

        Note: (These cases are entirely optional -- they’re just here in case you’re interested in further reading.)

    With respect to the material in Section II.C.2.b.iv), consider:

    • Make sure you understand the father’s possible interests in Newdow:
      • His own interest as a parent in imparting views to his daughter about religion;
      • His own interest as a parent in not having her exposed to others’ views about religion;
      • His role acting on behalf of his minor child’s interests in freedom of religion and expression.
    • How did the custody decree relate to these interests?
    • Did the Court find that there was no injury or nexus?
    • What effect did the Court’s holding have on the 9th Circuit’s ruling that the Pledge of Allegiance constituted religious indoctrination in violation of the First Amendment because of the inclusion of the words “under God?”

    With respect to the material in Section II.C.2.b.v), consider:

    • What was underlying claim on the merits in Massachusetts v. EPA? Do you think the EPA correctly interpreted the Clean Air Act? Should the Court give special deference to the interpretation that the EPA gives to an environmental statute Congress has charged it with administering? Should the Court give an agency like the EPA, whose administrator serves at the pleasure of the president, less deference than an agency whose administrator(s) can be removed only for cause?
      • Note: If you’re interested, the National Geographic magazine has an article and maps concerning the possible impact of climate change on Florida. Laura Parker, Treading Water, National Geographic (Feb. 2015) (optional).
    • Was the Court correct that Massachusetts should not be treated like an ordinary private plaintiff for purposes of standing? Why or why not?
    • What if the only plaintiff were not Massachusetts, but a private landowner who owned some land on the Massachusetts coast?
    • Was the Court wrong to reject the EPA’s argument that global warming is complex and should be left to the political process? How would that consideration relate to standing, including the aim of ensuring that the litigant has a stake in the litigation sufficient to ensure vigorous advocacy? Had the political branches already addressed one aspect of global warming? What aspect?

  • Tuesday, October 3: Videotape Please read the material in Sections II.C.2.b.vi, II.C.2.c.i, and II.C.2.c.ii.

    With respect to the material in Section II.C.2.b.vi, read the three complaints and be prepared to discuss whether you think the various plaintiffs have standing. I have put the entire District of Columbia/Maryland complaint in the Supplement so you can how lawyers draft complaints of this sort, but you need not read all parts of that entire complaint carefully.

    • For the District of Columbia/Maryland Complaint:
      • ¶¶ 1-16 (Supp. 234-239) are intended to serve as an overall introduction, and it would be useful to read all of those pages.
      • You can skip Section II (¶¶17-22, Supp. 240-241) entirely.
      • Skim very quickly through ¶¶ 23-102 (Supp. 241-263). These set out the alleged facts in detail. You should already have enough sense of the kinds of claimed violations from our earlier reading and discussion of the materials in Section I.C.3 of the Syllabus to be able to understand the standing issues. But a very quick once over might help refresh your memory.
      • Read ¶¶ 103-133 (Supp. 263-274) for the standing issues.
      • You may skim the rest if you like.
    • For the CREW Complaint:
      • Read all the excerpts at Supp. 279-291
    • For the Blumenthal Complaint:
      • Read all the excerpts at Supp. 292-293

    With respect to the material in Section II.C.2.c.i, consider:

    • For Baker v. Carr, be particularly familiar with the paragraph toward the bottom of CB 122 (beginning with “It is apparent that . . .”). It is frequently cited in political question cases.
    • What two provisions of the Constitution did Tennessee’s apportionment scheme arguably violate? Which one presents a political question and which one doesn’t? What is the reason for the difference?
    • Was the state political process in Tennessee likely to be an effective forum for addressing the apportionment issue? Was Justice Frankfurter correct in saying that resolution of the apportionment questions must be resolved not by the courts, but by “[a]ppeal . . . to an informed, civically militant electorate” (CB 125)?
    • Is the Guaranty Clause a meaningless, sham provision? Why or why not?

    With respect to the material in Section II.C.2.c.ii, consider:

    • Imagine you are a federal district court judge hearing a challenge to a state’s districting plan. Plaintiffs have challenged it as violating the 14th Amendment’s equal protection clause, on the ground that it was intended to benefit Democratic candidates at the expense of Republicans. The defendant moves to dismiss, asserting that the claim presents a non-justiciable political question.
      • What does Davis v. Bandemer hold as to whether a claim of partisan gerrymandering is justiciable?
      • Does Davis v. Bandemer hold what the substantive standard is?
      • Does partisan gerrymandering present a justiciable claim after Vieth v. Jubelirer? If it does, what is the standard as set out by the Supreme Court?
      • Does League of United Latin American Citizens v. Perry change the law as set out in Vieth?
      • Is the 18 years too long to come up with a standard (Justice Scalia) or “rather a short period”?
    • How did the District Court approach the issue in Whitford v. Gill? (You do not have the opinion itself, but there is a summary of it at Supp. 294-295.) Did the court adopt the “efficiency gap” standard? In light of the summary, and considering the Helfman and Stephanopolous readings, do you think that standard is justiciable? A correct interpretation of the Constitution?

  • Thursday, October 5: Videotape We completed our discussion of the material in Section II.C.2.c.ii (questions above), and then moved on to Section II.C.2.c.iii.

    With respect to the material in Section II.C.2.c.iii, consider:

    • What was Powell’s claim about the meaning of Art. I § 2 cl. 2 and Art. I § 5? What was the House’s position? If it were up to you, how would you go about deciding the proper interpretation of those sections? What materials or factors would you want to consider?
    • Would the following be political questions:
      • Suppose someone were elected to Congress, and there was a genuine dispute about whether he was 25.
      • Suppose someone were elected to Congress, and there was a genuine dispute about her age, but Congress had a possibly unfair procedural rule that would affect the outcome -- e.g., excluding birth certificates from a foreign country.
      • Suppose Hilary Clinton had run for Congress instead of President in 2016, and was elected, but the House refused to seat her on the ground she was 24 years old.
    • Was Nixon v. United States correctly decided? Is it consistent with Powell?
    • Is Article V a meaningless, sham provision, in light of Coleman (CB 134-135 (Note 4))? Why or why not?

 
Assignments for the week of October 9:

  • Monday, October 9: We covered the material in Sections II.C.2.d and II.C.2.e. Consider:

    • Is the right to vote for president protected in the Constitution?
    • What is the Equal Protection violation found in the per curiam opinion?
    • What would be the strongest argument in favor of finding a political question in Bush v. Gore? Should the Court have applied political question doctrine? Should it have discussed it? Why or why not? Did the Twelfth Amendment constitute a textual commitment of these issues to Congress?
    • Was the Court correct to find standing in Bush v. Gore?
    • What is the Article II argument made in Chief Justice Rehnquist’s plurality opinion?
    • What is a “State Legislature”? Does it refer solely to the collective body in each state that is commonly called the “Legislature,” and which (except in Nebraska) is made up of two chambers? Could it refer more broadly to the parts of the state government that take part in the process of enacting state legislation? In definitively interpreting it? Why might these differences matter in assessing Chief Justice Rehnquist’s plurality opinion?
    • How does the Article II argument made in Chief Justice Rehnquist’s plurality opinion relate to the following hypothetical scenario: Suppose at one time the Florida legislature provided by law that it would select the Electors. (Would this be constitutional?) Then the Florida legislature decided to let the voters elect the Electors, and approved a bill to that effect. The Florida governor, however, vetoed that bill and there were not enough votes to override the veto. Under the plurality opinion, would Florida voters be entitled as a matter of federal constitutional law to vote for the Electors?
    • Would there have been chaos if the Court had not halted the recount ordered by the Florida Supreme Court?
    • Optional Given the Court’s failure even to consider political question doctrine in Bush v. Gore and its treatment of standing, would it be better, in your view, to adopt something like the Canadian doctrine of “public interest standing,“ which supplements a Canadian doctrine of private standing that is roughly analogous to the U.S. law of standing? Public interest standing applies in public law cases (e.g., cases raising issues of rights of widespread importance). In Canadian Council of Churches v. Canada, [1992] 1 S.C.R. 236, the Court reviewed standing doctrine in the U.S., the U.K., and Australia, and concluded that
        The increasing recognition of the importance of public rights in our society confirms the need to extend the right to standing from the private law tradition which limited party status to those who possessed a private interest. . . [But] recognition of the need to grant public interest standing in some circumstances does not amount to a blanket approval to grant standing to all who wish to litigate an issue. . . . The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant.
      It set out three questions which must be asked to determine whether to grant public interest standing:
        First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court?

      In Canada v. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 S.C.R. 524, the Court adopted a ”flexible, discretionary approach” to answering the third question, based on:

        whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality.

      (There is no need to read the Canadian decisions themselves; the links are there just in case you are interested.) Would it be compatible with Article III for the U.S. Supreme Court to adopt such an approach?

    • Note: We will only briefly discuss the material in Section II.C.2.e (Ripeness & Mootness). The main purpose of this reading is to ensure that you have some exposure to the notions of ripeness and mootness. As you can imagine, the distinction between a claim that is not “ripe” and an injury that is not “imminent” or is “purely speculative” (e.g., Lujan, Clapper) is not obvious, especially since they share somewhat similar underlying concerns. There is a real possibility that the challenge to President Trump’s executive order (the “travel ban”) will be deemed moot. See Amy Howe, Justices Take Travel Ban Cases Off October Argument Calendar, Sept. 25, 2017, Scotusblog.com. You may want to read the Court’s per curiam opinion, which you have at Supp. 301-307, but that is optional. Moreover, I won’t hold you responsible for mootness and ripeness on the final exam. To put it another way, there won’t be any question on the final exam for which “the case is/is not ripe [or is/is not moot]” is a good answer.

  • Tuesday, October 10: Please read the material in Sections III.A. and III.B..

    With respect to the material in Section III.A., consider:

    • What does separation of powers mean to Madison? Is it better described as “separation of powers” or “checks and balances”?
    • Madison thought the legislature was the branch that posed the biggest threat of tryanny? What reasons does he cite?
    • Suppose you are a judge who believes that it is very important to follow the framers’ intent in interpreting the constitution. Does that imply that you should be especially worried about legislative expansions of power today?

    With respect to the material in Section III.B., consider:

    • Why did President Truman seize the steel mills? What alternative did he have for dealing with the concern about keeping steel production going?
    • What provisions of the Constitution did the Government cite as authorizing the President to seize the steel mills?
    • What is Justice Black’s approach to answering the question whether Congress, consistent with the constitution, could authorize the seizure of the steel mills? Was the seizure that took place an executive or legislative act? How could one tell? Does Chief Justice Vinson suggest a different characterization from what Justice Black suggests?
    • How does Justice Frankfurter’s approach differ from Black’s? What is the relevance of past practice, in Justice Frankfurter’s view? How did Chief Justice Vinson’s take on past practice differ from Justice Frankfurter’s?
    • How does Justice Jackson’s approach in Youngstown differ from Justice Black’s? What factors does Justice Jackson say should be taken into account in employing his approach? Is one approach (Jackson’s or Black’s) more practical than the other? More true to the text or the framers’ intent?
    • Why did the seizure fall, according to Justice Jackson, in the third category rather than the second?
    • What did Justice Jackson say regarding the textual provisions the Government had cited as authorizing the seizure?
    • Considering all the opinions together, how would you frame the question of the President’s power to seize the steel mills in terms of:
      • Textual issues (including how well a “textual approach” along the lines of Justice Black works)
      • The Framers’ intent, as to how the constitution should be interpreted; which branch was the most dangerous; and whether their intent should be binding
      • Function: how much guidance do functional approaches give?
    • Is foreign constitutional law or international law relevant to the interpretation of the Constitution, in your view? Why or why not?

  • Thursday, October 12: We briefly completed our discussion of the material in Section III.B., and then move on to the material in Sections III.C.1.a and III.C.1.b..

    With respect to the material in Section III.C.1.a, consider:

    • According to Curtiss-Wright (CB 382), what is source of the foreign relations power of the federal government? Is it the Constitution? Something else? What does Curtiss-Wright say about the idea that the federal government has only those powers delegated to it by the Constitution? Is the Court’s holding consistent with the Tenth Amendment? Who, according to the Court, holds the foreign relations power?
    • The following timeline may be helpful in reading Dames & Moore:
      • Nov. 4, 1979 -- U.S. embassy seized.
      • Nov. 14, 1979 -- Iranian assets in U.S. frozen. Can’t attach any property Iran owns unless authorized or licensed.
      • Nov. 26 and Dec. 19, 1979 -- a general license allowing people to have prejudgment attachments.
      • Dec. 19, 1979 -- D&M sues Iran and related entities, and attaches Iranian assets.
      • Jan. 20, 1981 -- Iran-U.S. agreement.
      • Six months to transfer all Iranian assets to England to fund the new Tribunal, and to terminate all legal proceedings in the U.S. courts against Iran.
      • Feb. 24, 1981 -- President Reagan “suspends” claims. That is, he effectively terminates them in U.S. courts, telling them to take them to Iran-U.S. tribunal.
      • Later, he nullifies attachments, and transfers funds to England.
    • In Dames & Moore, did IEEPA authorize the President’s order nullifying the attachments? Ordering the transfer of Iranian funds to England? Suspending claims such as that brought in federal court by Dames & Moore against Iran? Is Dames & Moore consistent with Jackson’s approach in Youngstown?

    With respect to the material in Section III.C.1.b, consider:

    • For Medellin:
      • Make sure you understand that a treaty, if ratified, can be “self-executing” or “non-self-executing.” If the former, it means that the treaty can be applied directly by courts at the behest of individuals, as if it were a federal statute. If the latter, it means that the treaty, while binding on the U.S. as a matter of international law, cannot be applied by the courts; there would be need to be implementing legislation approved by the House and Senate for that to happen.
        • Is this distinction mandated by Article VI of the Constitution? Is it consistent with Article VI of the Constitution?
        • If it is deemed “non-self-executing,” in what sense might a treaty be thought to be law, with respect to:
          • Executive branch agencies
          • Courts
          • Other countries
      • Under Jackson’s three-part schema (Youngstown), what is the significance in Medellin for the President’s power to direct state courts to implement the International Court of Justice’s decision of Congress’ failure to enact legislation implementing the Vienna Convention? Was the Court correct in classifying the President’s action in Medellin as falling within the third, rather than the first or second, category under Youngstown?
      • What does the Court say in response to the argument that the President had Article II authority, apart from Congress, to make the order he did? What might Curtiss-Wright suggest on this?
      • What does Medellin suggest about whether a non-self-executing treaty is “law”?
    • As to Zivotofsky:
      • Recall that in 2012, the Court ruled that the question there was not a political question. (CB 132). What is in the Casebook Supplement (CB Supp. 55) is the follow-up case, on the merits.
      • Precisely which provisions of the text of the Constitution did the Court think were relevant to the question in Zivotofsky? On which ones did it rely? How did it differ from Justice Thomas in this regard? What provisions did the dissent think were relevant?
      • What is the relevance of historical practice to the question before the Court?
      • How did the Court apply Justice Jackson’s Youngstown framework? Was its application of that framework faithful to Youngstown?
      • How did the Court arrive at the conclusion that the president’s power was exclusive?

 
Assignments for the week of October 16:

  • Monday, October 16: We discussed the material in Section III.C.2.

    With respect to the material in Section III.C.2, consider:

    • What if any constitutional authority would the President have to use military force in response to an invasion of U.S. territory by another country? What about a sudden military attack on a close U.S. ally? What about a potentially devastating internet attack on the U.S. or a close ally? What has been the practice of Congress and the president on authorization for the use of force in other countries?
    • Does the resolution of Sept. 18, 2001 (CB 390), constitute a declaration of war under the Constitution (Art. I § 8 cl. 11 (CB xliv)? What about the authorization for the Second Gulf War (CB 391-392)? Does it matter? Why or why not?
    • Consider the following sequence of events in the Persian Gulf Crisis (1990) in light of the War Powers Resolution. Significant dates:
      • Aug. 8, 1990: Initial deployment of 230,000 troops to Saudi Arabia right after the Iraqi invasion of Kuwait, with the announced aim of defending Saudi Arabia from an Iraqi invasion.
      • Nov. 8, 1990: Deployment of over 200,000 additional troops with the announced aim of giving the U.S. an offensive capacity.
      • Nov. 29, 1990: U.N. Security Council resolution setting a Jan. 15, 1991 dead-line for Iraq to leave Kuwait, and authorizing member states to use force if Iraq failed to comply.
      • Jan. 12, 1991: Congressional resolution authorizing use of force.
      • Jan. 17, 1991: Operation Desert Storm begins
    • Did the War Powers Resolution apply to this situation? If so, at what point? What consequences would its application have? What if it does apply but the president does not engage in the required reporting and consulting?
    • Did the president have constitutional authority on his own to use military force in Libya? Why or why not?
    • How did the War Powers Resolution apply, if at all, to the use of force in Libya?
    • Is the War Powers Resolution constitutional? Might parts of it be unconstitutional? Note: with respect to section 1544(c), keep in mind that a “concurrent resolution” is a resolution approved by the House and Senate, with no opportunity for the President to sign or veto. A “joint resolution” is a resolution approved by the House and Senate and presented to the President for signature or veto. Cf. Const., Art. I § 7 (CB xliii). Why does the War Powers Resolution § 1544(c) provide for a concurrent rather than a joint resolution?
    • Consider Art. I § 8 cl. 11 (CB xliv) (the power to declare war). Could a president veto a declaration of war?
    • Suppose Congress were to approve a Syrian AUMF requiring the deployment of ground troops in Syria, but the Trump administration did not want to send ground troops there. Would President Trump have constitutional authority to veto the Syrian AUMF? Suppose he did, and Congress overrode the veto. Would he be constitutionally obliged to send ground troops to fight in Syria?
    • Is the proposed Bill “To Prohibit the Conduct of a First-Use Nuclear Strike Absent a Declaration of War by Congress,” consistent with the Constitution, in your view?
    • Suppose that Congress, instead of requiring prior Congressional authorization of a first-use nuclear strike, required the President to obtain the agreement of another official as well, or agreement from a small group of officials --
      • the Secretary of Defense or the Secretary of State
      • an executive branch official (such as the Secretary of Defense or State) and the Speaker of the House or the Senate majority leader
      Would such a statute be constitutional?

  • Tuesday, October 17: We completed our discussion of the material in Section III.C.2, focusing on the question whether the War Powers Resolution is constitutional. We then moved on to the material in Sections III.C.3.a, and III.C.3.b.

    With respect to the material in Section III.C.3.a (Hamdi v. Rumsfeld (CB 392) (indefinite detention of citizens without trial or access to lawyers)), consider:

    • Was Hamdi being detained for having committed a crime? On suspicion of having committed a crime?
    • On what basis might the president claim authority to detain citizens without trial or access to lawyers:
      • Did Congress authorize such detention? In the 2001 AUMF?
      • Was Congress silent?
      • Did Congress prohibit it? Through the Non-Detention Act, 18 U.S.C. § 4001(a).
      • Does the executive have authority to detain citizens as “enemy combatants” regardless of Congress’ authorization, lack of authorization, or even prohibition thereof?
      • Would your analysis be different as to non-citizens? Should it, in your view?
    • What procedural requirements does the plurality impose on the government if it is to continue to detain Hamdi? What is the source of those requirements? Are they sufficient to satisfy concerns about whether Hamdi was being wrongly detained?
    • What if any time limit did the plurality impose on Hamdi’s detention?
    • What does the plurality say about access to lawyers?
    • How does Justice Souter’s concurring opinion differ from the majority’s? In particular, what is his approach to determining whether the Non-Detention Act’s exception for detention that is “pursuant to an Act of Congress” is satisfied?
    • How does the position that Justice Scalia takes differ from the plurality’s in conclusion and approach?
      • What options would Justice Scalia leave the government?
      • If Congress invoked the Suspension Clause, would it be consistent with Justice Scalia’s approach for the Court to review any conditions placed on access to courts? Might that be a political question?
      • Which approach is more protective of liberty -- and more consistent with the constitution: Justice Scalia’s or the plurality’s?
    • What is Justice Thomas’ approach? What is his criticism of Justice Scalia’s approach?

    With respect to the material in Section III.C.3.b, consider:

    • In contrast to Hamdi, which related to indefinite detention of US citizens, Hamdan (CB 401) and Boumediene (CB 402) concerned the president’s power to create military commissions to try those detained as “enemy combatants” on the ground of having committed war crimes in violation of international law. While this is an interesting question, I do not expect you to know these two cases or the materials about wiretapping and torture in as much detail as Hamdi. Just focus on these basic issues:
      • Hamdan:
        • In Hamdan, the Court said it did not have to reach the issue whether the president had inherent authority under Article II to create military commissions for captured enemy soldiers, because it found that Congress (through the Uniform Code of Military Justice, a federal statute) had in fact authorized him to create them.
          • Suppose there had been no statute relating to military commissions. In light of our study of presidential power, should the President be found to have inherent authority to create military commissions to try, on charges of having committed war crimes, those designated by the President as enemy combatants? Where would such a presidential action fit within Justice Jackson’s tri-partite scheme?
        • Hamdan determined that the way the president had structured the military commissions violated the requirements of the UCMJ. You need not understand exactly in what ways it did so; the general problem was that the UCMJ required certain basic procedural protections (like the right to be present at the hearing; the right to see the evidence against you; the right to have an impartial decision-maker) that the commissions as created by President did not satisfy.
      • Boumediene (CB 402)
        • The Court’s approach in Hamdan was mainly oriented to separation of powers, not individual rights. The Court told the President he did not have statutory authority to create the kind of military commission he wanted to create, and that in fact the commissions he established conflicted with a statute (the UCMJ). As you can see from the reading (CB 402, note 3), in the Military Commissions Act of 2006 (MCA), Congress essentially authorized the military commissions that the president had earlier claimed authority to create on his own or on the basis of existing statutes; these commissions would try individuals charged by the Executive with committing war crimes. The only people who would be tried by the military commissions would be those who had first been determined by a “Combatant Status Review Tribunal” to be an enemy combatant. The Detainee Treatment Act provided for only very limited review of the CSRT’s determination of whether someone was an “enemy combatant.” This review was exclusive, meaning that someone claiming that the CSRT had made a mistake in their case or done something fundamentally unfair could not bring an action for a writ of habeas corpus to challenge its determination. Congress did not say, in this statute, that it was suspending habeas corpus pursuant to Art. I §. 9 cl. 2 (“The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). Since Congress had not suspended habeas, the Court ruled, it must either allow it or provide an adequate substitute. Boumediene held that the very limited review of CSRT determinations allowed under the DTA did not provide a constitutionally adequate substitute for habeas.
          • What procedural protections does the habeas clause (or an adequate substitute for it) require, according to Boumediene (see CB 403, third paragraph of indented quote)?
        • Note that the DTA purported to provide a constitutionally adequate substitute for habeas, and that the Court found in Boumediene that it did not. Under Art. I § 9 cl. 2, could Congress have then responded to Boumediene by passing a statute stating expressly that it was using its Article I § 9 power to suspend habeas? How likely would that have been to happen? If Congress could do away with habeas entirely just by saying so, was there any point in faulting the substitute it had provided for habeas?
      • Surveillance and Torture/Treaties:
        • Should the 2001 AUMF (CB 390) be read to authorize the interception of telephone communications between individuals in the U.S. and individuals outside the U.S., even under circumstances that would be forbidden by the Foreign Intelligence Surveillance Act? (See CB 405). Note, by the way, that while President Obama proposed to repeal the 2002 AUMF (Iraq) (which Congress did not do), he did not submit a proposal to repeal the 2001 AUMF (post-9/11) and it was left in place.
        • Is the President bound by treaties to which the United States is a party? (See the discussion of the torture memos at CB 403-405.) Is there (or should there be) a power in the government to act extra-constitutionally in times of grave crisis or emergency?

  • Thursday, October 19: We will discuss the material in Sections III.D.1.a.i and III.D.1.a.ii.

    With respect to the material in Section III.D.1.a.i, consider:

    • On what constitutional basis does “executive privilege” rest?
      • Is the phrase “executive privilege“ or anything similar in the Constitution? Are there any immunity provisions in the Constitution? In what way might Marshall’s approach to determining whether Congress had the power to create a national bank (McCulloch) be relevant to determining whether the President has “executive privilege”?
      • What kind of structural or functionalist argument could you make for recognizing executive privilege? What dangers does it pose?
    • Assuming there is an “executive privilege,” does it mean:
      • That once the president invokes it, there can be no further judicial review of the claim? Would giving such a meaning to executive privilege be consistent with Marbury? Why or why not?
      • That once the president invokes it, the court makes its own determination whether the invocation is proper? If so, how (by what standard, and by what procedures) should the court make that determination?
    • Why did the Court not uphold the claim of executive privilege in Nixon?

    With respect to the material in Section III.D.1.a.ii, consider:

    • Is the president subject to criminal indictment while in office? Why or why not, in your view?
    • On what did the Court base its immunity holding in Nixon v. Fitzerald? Do you think the Court decided the case correctly?
    • Are Nixon v. Fitzgerald and Clinton v. Jones consistent? What distinctions might be drawn between them? Do you think that Clinton v. Jones was correctly decided?
    • Why shouldn’t the immunity a President may enjoy extend to those advising the President on the matter as to which the President has immunity?
    • What do both Ashcroft v. Al-Kidd (CB 417) and Ziglar v. Abbasi (CB Supp. 59) suggest about the Court’s willingness to hold lower-level officials (i.e., lower than the president) liable for constitutional violations?
    • What are impeachable offenses? Should the standards for impeaching judges and presidents be the same?
    • There was some talk among members of Congress of impeaching President Obama, as has been the case so far with President Trump. As an alternative, would Congress have the power under the Constitution to censure the president?

 
Assignments for the week of October 23:

  • Monday, October 23: We discussed the material in Sections III.D.1.b and III.D.2.

    With respect to the material in Section III.D.1.b, be prepared to argue either side of the following proposition: Under the Constitution, the President may pardon himself. Consider arguments based on the text, the Framers’ intent, and functional or structural considerations. Which answer, yes or no, is the better one in your view? Is this a matter the courts might someday resolve? Why or why not?

    With respect to the material in Section III.D.2, consider:

    • Suppose Congress authorized the Federal Communications Commission (FCC) to “regulate e-commerce in the public interest, convenience and necessity.” Would this statute amount to an unconstitutional delegation to the executive branch of Congress’ legislative powers? Why or why not?
    • What was the delegation issue in United States v. Curtiss-Wright (CB 382)? Would it be a serious issue today?
    • Myers was appointed with the advice and consent of the Senate. Why could the Senate not require its advice and consent for his removal? What provisions did the Court in Myers v. United States (CB 436) think were relevant to its decision?
    • In what way does an appointment to a position like a member of the Federal Trade Commission differ from an appointment to the Cabinet? In what ways does the role of a member of the Federal Trade Commission differ from the role of a Cabinet member? Are those differences consistent with the Constitution? With the framers’ intent regarding separation of powers?
    • What different ways are there to reconcile Humphrey’s Executor (CB 437) with Myers (CB 436)? Consider the differences between:
      • The nature of the powers exercised by a postmaster and those exercised by a member of the Federal Trade Commission;
      • The nature of the restriction on the president’s power to remove the officials.
    • Suppose Congress passed a law providing that the President can fire the Secretary of Agriculture only for cause. What arguments would there be for and against the constitutionality of such a provision?

  • Tuesday, October 24: We completed our discussion of the material in Section III.D.2 (questions above) focusing on the different ways to distinguish Myers and Humphrey’s Executor. Then we moved on to discuss Section III.D.3.a.i.

    With respect to the material in Section III.D.3.a.i, consider:

    • In Chadha, was the House vote taken on 12/12/75 “legislative,” “executive,” or “adjudicatory”? Does the text of the constitution provide an answer? What are the bicameralism and presentment requirements that the majority refers to?
    • How does the majority define “legislative”? What was the nature of the Attorney General’s original action in recommending the suspension of Chadha’s deportation?
    • What result in Chadha would be most consistent with the framers’ intent?
    • What approach does Justice White take in his dissent in Chadha? How does it differ from the majority’s? How does he deal with the bicameralism and presentment requirements?
    • Given that administrative agencies (some fairly independent of the president) engage in activities that look a lot like legislation (or even adjudication), would a legislative veto be a desirable tool for ensuring checks on executive discretion? Would it be consistent with the framers’ intent? Should the Court answer this question or leave it to Congress and the President to work out?

  • Thursday, October 26: We will discuss the material in Sections III.D.3.a.ii and III.D.3.b.i (note the revision to the Syllabus).

    With respect to the material in Section III.D.3.a.ii, consider:

    • How did the Gramm-Rudman Act work in Bowsher? Was the Comptroller General’s role pursuant to it executive or legislative?
    • How does Justice Stevens characterize the Comptroller General’s role? How does his approach differ from the majority’s?
    • What textualist argument does Justice White make? What functionalist argument does he make?
    • What might the approach taken by the Court in Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise about the workability of characterizing actions as “legislative” or “executive”?

    With respect to the material in Section III.D.3.b.i, consider:

    • In Morrison, what was the potential constitutional problem with the appointment of the special prosecutor under Article II § 2 cl. 2?
    • What was the potential problem under Article III with the court’s supervision of the special prosecutor?
    • What was the potential constitutional problem with the provisions regarding removal of the special prosecutor? Why isn’t Humphrey’s Executor dispositive of the issue in Morrison? In what way does it matter how you reconcile Humphrey’s Executor and Myers.
    • How does the Court’s general approach to determining separation of powers differ in Morrison from its general approach in Chadha or Bowsher? How does Scalia approach the issue? Does he take a textualist approach?
    • Who do you think was right in Morrison as to the impact of the special prosecutor on the president? Suppose you think that Justice Scalia was correct. Does it follow that his reading of the Constitution was correct?

 
Assignments for the week of October 30:

  • Monday, October 30: We will discuss the material in Sections III.D.3.b.ii, IV.A, and IV.B.1.

    With respect to the material in Section III.D.3.b.ii, consider:

    • In Mistretta, was there a delegation of power to the judiciary? Was it proper? Given that non-delegation doctrine is largely a dead letter, why would it be at issue in Mistretta? How textualist or formalist would you call the majority’s approach? What is Justice Scalia’s objection to the Sentencing Commission?
    • Free Enterprise Fund v. PCAOB:
      • What were the provisions in the Sarbanes-Oxley Act for appointment of members to the Public Company Accounting Oversight Board (PCAOB)? What were the provisions in the Act for removal of PCAOB members? How can members of the Securities Exchange Commission be removed?
      • What is the constitutional flaw in the removal provision concerning PCAOB members, according to the majority? Does the majority take a textual approach to constitutional interpretation? Originalist? Functionalist?

    With respect to the material in Section IV.A, consider:

    • Given the conflict between the state and federal statutes in Gibbons, why wasn’t the Supremacy Clause (Art. VI) enough to resolve the case?
    • How does Marshall define “commerce”? Do state inspection laws relate to commerce?
    • What is interstate commerce, according to Marshall?
    • What is a “regulation” for purposes of the Commerce Clause, according to Marshall?
    • Which body of the federal government primarily decides what legitimately constitutes a regulation of interstate commerce under Art. I § 8 cl. 3, according to Marshall? Is his view consistent with Hamilton’s view in The Federalist No. 84 (CB 160-161)? Is the Seventeenth Amendment (CB lii) a reason to reconsider Marshall’s view? What about the Fourteenth Amendment (CB li-lii)?
    • Where does Gibbons stand in terms of the forms of federalism (Note 9, CB 164-165)?
    • Would it be contrary to the framers’ intent if the federal government were to come to predominate in relation to the states as a result of a broad exercise of its commerce clause power? What might the excerpt of The Federalist No. 45 (CB 173) suggest? The excerpt of The Federalist No. 46 (CB 173-174)?
    • Does a state have the power under the constitution to declare war or enter into a treaty with another country? To borrow money money on the credit of the United States or constitute lower federal courts? To establish a post off ice system? Why or why not? Do states have the power under the constitution to regulate interstate commerce?
    • In what ways might Gibbons be said to resemble political question doctrine generally? Is it consistent or inconsistent with the taxation holding of McCulloch v. Maryland (CB 53)? How does its approach relate to Madison’s arguments in the Federalist Nos. 45 & 46 (CB 173-174)?
    • Take note of Question (b) at the top of CB 164 (end of note 6): It will be important for the health care cases.
    • How does Marshall’s comment about pretext in McCulloch (CB 59, third ¶) relate to Congress’s commerce clause power?

    With respect to the material in Section IV.B.1, consider:

    • What function, according to the Court during this second period of the interpretation of the commerce clause, did the judicial protection of federalism-based limits on Congressional power serve? Is that view of the judicial function consistent with Fourteenth Amendment?
    • Suppose during the era from the late 19th century up to the New Deal Congress had enacted a law requiring dry cleaning stores to dispose of their toxic chemicals according to federally mandated standards (to prevent them from polluting the ground water), and a dry cleaning shop in the middle of Texas challenged the statute as unconstitutional. How would the Court have analyzed the issue? Suppose Congress instead made it illegal to ship the chemicals that are used in dry cleaning across state lines to dry cleaners unless the purchaser agreed to dispose of the byproducts of dry cleaning in accordance with federal regulations. Note: For an example of the environmental hazards of dry cleaning chemicals, see Bruce Finley, Cancer-Causing Chemical PCE Contaminates Colorado Soil, Water and Homes, Denver Post, 2/9/14 (optional).
    • The following outline may be useful for this material. It doesn’t address the underlying policy issues, but it may be a useful way to organize your thoughts as the issues that would arise under the Court’s approach in the second period:
      1. Is what’s being regulated “commerce”? (E.C. Knight, Carter Coal)
      2. If it’s “commerce,” is what’s being regulated “interstate” commerce?
        • Is it “in” interstate commerce? (Stafford, Schechter)
        • Does it “affect” interstate commerce, and if so, directly or indirectly? (Coronado, Shreveport Rate Cases, Carter, Schechter)
      3. Is the rule on disposing of the toxic wastes a “regulation” of commerce? (Champion)
      4. Could Congress instead ban the shipment across state lines of chemicals used in dry cleaning unless the purchaser agreed to dispose them in accordance with federal regulation? (Hammer v. Dagenhart (Child Labor Case))

  • Tuesday, October 31: We completed our discussion of the material in Section IV.B.1.

  • Thursday, November 2: We will discuss the material in Section IV.B.2. Consider:

    • On what part of the Constitution did the Court rest its holding in Lochner? Why did it not rest it on the Contracts Clause?
    • How did the Court define “freedom of contract” in Allgeyer?
    • Note that prior to Allgeyer, from 1877-1897, the Court had rejected three out of four challenges to the constitutionality of state laws:
      • fixing maximum prices for grain-storage warehouses (Munn v. Illinois-upheld)
      • regulating railroad rates (The Railroad Commission Cases--upheld; The Minnesota Rate Case--struck down)
      • prohibiting the sale of alcoholic beverages (Mugler v. Kansas-upheld)
      Given that state regulation was largely upheld in these cases, why would neither Allgeyer (1897) nor Lochner (1905) come entirely as a surprise?
    • What, according to Lochner, is the legal source of a U.S. state’s power to regulate employers?
    • Would it be legitimate under Lochner for a state to --
      • decide that there is an imbalance in bargaining power between employees and employers, and to impose some limits on working hours?
      • seek to protect the health of the employees?
    • What did the Court hold as to the means New York chose to protect the health of the employees?
    • Does the Court’s holding in Lochner suggest that the Court’s federalism rulings during this period were less about the protection of state power from an overbearing federal government and more about setting limits on the power of government at any level to engage in certain forms of regulation?
    • What arguments does Justice Harlan make in his dissent? What arguments does Justice Holmes make? How do their arguments differ?
    • Was Lochner rightly decided, in your view? Why or why not? If it was wrong, is the problem that
      • as a matter of institutional competence, the Court shouldn’t protect any unenumerated individual rights; or
      • the Court simply got the particular issue wrong; there is no freedom of contract protected in the Constitution, or if there is, the right is not infringed if the state attempts to correct unequal bargaining power?
    • Imagine that Lochner were still valid precedent. Would it have any relevance to the constitutionality of an individual mandate to buy health insurance, imposed by the state of Massachusetts on every Massachusetts citizen?
    • Note that Lochner was a closely decided case. There is, further, some evidence that Justice Harlan’s dissent originally was to be a majority opinion, until one Justice changed his vote. See David E. Bernstein, Lochner v. New York: A Centennial Perspective, 83 Wash. U.L. Rev. 1469, 1496 n.178 (2005) Bernstein argues that Lochner had little impact over the next decade or so, until four appointments by President Harding in the 1920s gave “the more aggressively Lochnerian wing of the Court” control. Id. at 1507.

 
Assignments for the week of November 6:

  • Monday, November 6: Videotape We will discuss the material in Sections IV.C.1, IV.C.2, and IV.C.3.

    With respect to the material in Section IV.C.1, consider:

    • If you were counsel to Jones & Laughlin, and arguing the case before the Supreme Court, what arguments would you have made about why the statute was unconstitutional? Consider also how you would state the facts if you were counsel to the Government.
    • Is the Court’s holding in Jones & Laughlin based on deference to Congress’s judgment, or does the Court itself make the judgment about whether collective bargaining with Jones & Laughlin’s employees falls within interstate commerce?
    • Note that there are two, independently valid grounds on which the minimum wage-related regulations in Darby were upheld. Make sure you understand both of them and how they differ.
    • What does the Court hold in Wickard about the direct/indirect test and the production/commerce distinction it had previously used? Is Wickard a case of pure judicial deference to Congress, or does the Court articulate a test? What relevance might Wickard have to the government’s response to the current economic crisis? Is any activity purely private or purely individual?

    With respect to the material in Section IV.C.2, consider:

    • Does Perez require Congress to make particularized findings of the impact on interstate commerce as a condition for regulating it? Should the Court impose such a requirement?
    • Did Perez’s own activities have any impact on interstate commerce?
    • What is the connection to interstate commerce in Heart of Atlanta Motel and Katzenbach v. McClung? Should the Court have been concerned that Congress might have been motivated in part by a desire to outlaw racial discrimination by private entities, something it lacked the power to do under the Fourteenth Amendment?
    • Note the detailed findings of fact concerning the impact of labor strife on interstate commerce that Congress included in the NLRA (CB 193). In Perez (CB 199), what did the Court say about whether Congress shoudl be required to make particularized findings of the impact of an activity on interstate commerce as a condition for regulating it? Should the Court impose such a requirement?
    • What is the connection to interstate commerce in Heart of Atlanta Motel and Katzenbach v. McClung? Should the Court have been concerned that Congress might have been motivated in part by a desire to outlaw racial discrimination by private entities, something it lacked the power to do under the Fourteenth Amendment?

    With respect to the material in Section IV.C.3, consider:

    • Suppose as a citizen of Oklahoma or Kansas you are convinced that the laws at issue in Williamson v. Lee Optical (CB 771) (OK) and Ferguson v. Skrupa (CB 772) (KS) were simply the products of a well-funded opthalmologist/optometrist (Williamson) or lawyer lobby (Ferguson), with no real regard for the public welfare on the part the legislators who voted for it. Or suppose you believe Miller’s characterization of the federal law at issue in Carolene Products is correct (CB 771). Should you be unhappy that the Supreme Court upheld the laws?
    • How would you analyze the constitutionality of a federal or state requirement that every citizen purchase health insurance during:
      • the second era
      • the third era?
    • Under the law of the hypothetical U.S. state of Cania, only state-licensed funeral directors may sell caskets, and only at state-licensed funeral homes. Funeral homes must meet certain state standards relating to such things as layout and embalming facilities. Funeral directors must have a high school diploma and some college credits, complete an apprenticeship, and pass a licensing exam. Cania law does not regulate the sale of caskets in any other respect. It does not specify construction standards for them; nor does it require that they be used only for burials, or that bodies be buried only in caskets. No Cania law forbids the purchase by a Cania resident of a funeral casket on-line from Amazon (you’ll want to read the reviews) or ebay. Suppose an abbey in Cania decides to produce and sell funeral caskets to make some extra money, but Cania authorities tell the monks they may not do so since they do not have the requisite licenses. The monks bring an action in federal district court alleging that the Cania law violates the 14th amendment. Who would have won in 1930? Who would win today? Who should win under the 14th amendment, in your view?

  • Tuesday, November 7: Videotape We will discuss the material in Sections IV.D.1.a and IV.D.1.b.

    With respect to the material in Section IV.D.1.a, consider:

    • In banning possession of guns in school zones, was Congress regulating a “commercial” activity? Why does that matter?
    • Does the impact of the possession of guns have a “substantial” effect on commerce? Suppose one argues that while Lopez’s own individual possession of a gun in school has no impact on commerce, in the aggregate instances of possession of guns in schools does? In this regard, consider what the majority says in the seventh paragraph of CB 204 (paragraph beginning “Section 922(q) is a criminal statute ...”) in what is deleted in the ellipsis:
        “It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.”
    • Are education and criminal law traditionally state matters? Why does the answer to that question matter, according to the majority? Should it matter to the commerce clause question, in your view? Note that Justice Kennedy takes this question up in his concurrence. In addition, the majority addresses it in a passage not included in the casebook. At CB 205, first full paragraph, what is deleted in the ellipsis is:
        “Under the theories that the Government presents in support of § 922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”
    • Consider the following hypotheticals as a matter of commerce clause doctrine, ignorning any second amendment questions:
      • Would Congress have the constitutional power to ban the shipment of guns across state lines for purchase by minors attending school?
      • Suppose Congress thought that a statute of the kind just mentioned would be difficult to enforce, and instead banned the shipment of a particular type of gun that was popular among high school students (but not favored by many other people). Would it have the constitutional power to do so?
      • If Congress has the power to enact either of these statutes, could it, under Darby, ban the manufacture or sale (or both) of the type of handguns popular with high school students as a way of stopping the interstate shipment of such guns by eliminating the supply?
      • If Congress has the power to enact a statute of the sort just mentioned, could it ban the possession of such guns in schools as a way of eliminating the demand?
    • Is Kennedy correct that the Gun Free Zones Act foreclosed states from enacting the kinds of regulations he discusses at CB 207-208?
    • According to Breyer, is the connection between the activity regulated (possession of guns in schools zones) to economic activity a direct and immediate one, or indirect?
    • Could Congress nationalize divorce law under Breyer’s approach? Would it be bad if it did? What is his answer?

    With respect to the material in Section IV.D.1.b, consider:

    • How would Morrison come out under the Court’s case law from the New Deal era to 1995 (when Lopez was decided)?
    • How would Morrison come out under the governing case law between the late nineteenth century to the New Deal?
    • What connection did Congress see between domestic violence and economic activity? What if any connection did the Court see? Given the disagreement, which institution -- the Court or Congress -- ought to decide the issue. Consider which institution is more competent to decide the issue and which institution has more legitimacy in deciding the issue.
    • Note that Chief Justice Rehnquist rejects Congress’s findings in part because they rest on a “but-for causal chain (CB 213)” between the activity regulated (here, gender-based violence) and the effect on commerce. If a “but-for” link is not sufficient, does that mean that the activity sought to be regulated must have a “proximate” impact on commerce? How, if at all, is this different from the Court”s notion of a “direct” rather than &#indirect” relation on Carter Coal (see top of CB 190)?
    • To what extent do Morrison and Lopez leave Heart of Atlanta and Katzenbach v. McClung untouched? Undermine them? Does it require piling inference upon inference to see a connection between refusals to serve African-Americans at Ollie’s Barbeque and interstate commerce? Why or why not?
    • Was Raich correctly decided in light of Lopez and Morrison? How should it have been decided, in your view? Are the facts of Raich distinguishable from those of Wickard?
    • Does the Necessary and Proper Clause give Congress power that it would otherwise lack under the commerce clause? What does Comstock have to say about this?

  • Thursday, November 9: Videotape We will discuss the material in Sections IV.D.2, IV.E.1.a, and IV.E.1.b.

    With respect to the material in Section IV.D.2, consider:

    • Does Congress have the power under the Commerce Clause to --
      • Regulate the terms of health insurance plans (e.g., forbidding the inclusion in a health insurance policy of a pre-exisiting condition limitation)?
      • Require large employers to provide essential health insurance coverage to their employees?
    • Does the individual mandate provision regulate inactivity?
      • Can we reliably distinguish “activity” or “inactivity” in a constitutional test? Suppose an employee has health insurance through her workplace, and the employer provides that it will be automatically renewed each year unless the employee requests otherwise. If the employee does nothing, and the insurance is renewed, is her purchase of health insurance in that case an “activity”? If she cancels the policy, is her non-purchase of the insurance “inactivity”? What reasons might there be for holding one type of decision beyond Congress’s; power and the other within it?
    • Is the market that Congress is regulating in the Affordable Care Act:
      • the health insurance market?
      • the health care market?
      • both?
    • When the joint dissent refers to Congress as trying to regulate, through the mandate, people who “are not customers of the relevant industry,” does it mean the health insurance insurance industry? The health care industry? Has anyone opted out of the latter?
    • Does the ACA force people into the market? What market?
    • How large or small is the class of individuals who would never need to purchase health care at any point in life? Does the answer to this matter for constitutional analysis? Is there any way to identify them in advance? Is there any difference between:
      • sweeping those individuals up into a mandate to buy health insurance they will turn out never to need, and
      • regulating the wages of some individuals who may not personally produce goods for interstate factory if they work at a factory that mostly does produce for interstate commerce (Darby)?
    • Is the health care market unique in terms of the regulatory challenges it poses? Should it matter to the constitutional analysis whether the health care market is unique? Is the individual mandate unprecedented or a unique exercise of Congressional power? Should it matter to the constitutional analysis whether the mandate is unprecedented or unique?
    • Is the finding of the individual mandate to be beyond the commerce clause power consistent with Wickard? With Raich?
    • What about the alternatives to the mandate -- would these be valid under the commerce clause?
      • Requiring any uninsured individual who individual who purchases health care to pay a surcharge
      • Requiring any uninsured individual who purchases health care to purchase insurance at that time
    • The health care bill contains a provision that allows states (starting in 2017) to opt out from a number of the bill’s requirements, including the individual mandate. To do so, they will have to show that they had some other way of covering as many people with comprehensive and affordable insurance as the federal law provides, and that the state’s approach will not increase the federal deficit. What, if anything, does this say about Congress’s concern for federalism? Does it have any bearing on the constitutionality of the individual mandate?
    • Would Congress have the power to require everyone to be vaccinated against a highly infectious deadly disease (perhaps, as is common with such vaccination requirements, an exemption for those with religious objections)?
    • Does enforcement of a distinction between “activity” and “inactivity” or between regulating commerce versus creating it promote the aim of keeping the federal government from taking on too much power vis-a-vis the states?
    • Could Congress require an individual to --
      • Purchase broccoli?
      • Eat broccoli?
      • Sell land she owned to a developer (as in Kelo)?
    • Could a state require an individual to --
      • Purchase broccoli?
      • Eat broccoli?
      • Buy health insurance?
    • Would Lochner be relevant to your answer to either of the two preceding questions?
    • Does the Necessary and Proper Clause support the mandate? Why or why not?
    • Chief Justice Roberts remarks (CB 222) that a nation in which the individual mandate would be a valid exercise of Congressional power to regulate under the commerce clause “is not the country the Framers of our Constitution envisioned.” Who are the Framers? When did they live?

    With respect to the material in Sections IV.E.1.a and IV.E.1.b, consider:

    • Are Doremus and Bailey v. Drexel Furniture reconcilable? What is the relevance of Hammer v.Dagenhart,? Does the ovveruling of Hammer v. Dagenhart (in Darby) mean that Bailey v. Drexel Furniture should have been treated as overruled? How does NFIB v. Sebelius treat Baily v. Drexel Furniture?
    • In light of Bailey v. Drexel Furniture (CB 295) and Doremus (CB 294), would it be constitutional for Congress to impose a tax on carbon emissions as part of a statute with the expressed aim of reducing carbon emissions as much as possible? Would your analysis of this change in light of NFIB?
    • Does Congress need to call something a “tax” in order for a statute to be upheld as an exercise of the taxing power? Does Congress need to refer expressly to the commerce clause in order for a statute to be upheld as an exercise of the commerce clause power? Should it be required to do so (in either case)? Is it just a matter of “labels” as the Chief Justice says, or is there more at stake in terms of political accountability? If political accountability is at stake, is it the Court’s job to enforce it? The voters’? Both?
    • In arguing that the penalty could not be upheld under the taxing power, the joint dissent (Justices Scalia at al.) accused the majority (including Chief Justice Roberts) of reading “shall” to mean “may” in the ACA provision that says individuals “shall” maintain insurance. “Shall” pay, the joint dissent argues, is inconsistent with the idea that people may choose not to maintain insurance and just pay a tax instead. (The relevant section of the ACA states, “[a]n applicable individual [i.e., a person subject to the individual mandate] shall for each month beginning after 2013 ensure that the individual . . . is covered under minimum essential coverage for such month.”)
    • If a “tax” must raise non-trivial amounts of revenue to be a tax, is $4 billion (annual expected revenue from the penalty by 2017) non-trivial? The Fiscal Year 2016 United States federal budget receipts are estimated to be approximately $3.525 trillion. $4 billion is about one-tenth of one percent of that. Cf. Everett Dirksen, Senate Minority leader (1959-1969) (“A billion here, a billion there, pretty soon, you’re talking real money.”)
    • Does upholding the mandate under the taxing power, as the majority does, (a) leave the mandate in place as enacted, just supported under one power (tax) rather than another (commerce clause), or (b) transform the mandate from a legal requirement to an option the exercise of which occasions a tax? Does it matter practically? Politically? Ethically? Legally?
    • Assuming it’s a tax, is the penalty a direct tax? In terms of the text of the Constitution, why does that matter? Consider this excerpt from the record of the Philadephia Convention, as recorded by James Madison: “‘Mr. King asked what was the precise meaning of direct taxation. No one answered.’” As one scholar noted in 1895, “it most definitely appears that no one then knew what the term ‘direct taxes’ actually meant.” Francis R. Jones, Pollock v. Farmers’ and Loan Trust Company, 98 Harv. L. Rev. 198 (1895). (Jones concludes that the opaque phrase was a way of requiring that any taxes on slaves (as well as on real property) be apportioned, while avoiding an express reference to slavery.)
    • If it’s not constitutional to regulate inactivity why is it constitutional to tax it?
    • In light of this holding, should the Court have simply declined to rule on the commerce clause issue? Why or why not?

 
Assignments for the week of November 13:

  • Monday, November 13: We completed our discussion of the material in Sections IV.E.1.a and IV.E.1.b, and then moved on to Section IV.E.2.

    With respect to the material in Sections IV.E.1.a and IV.E.1.b, consider:

    • Are Doremus and Bailey v. Drexel Furniture reconcilable? What is the relevance of Hammer v.Dagenhart,? Does the ovveruling of Hammer v. Dagenhart (in Darby) mean that Bailey v. Drexel Furniture should have been treated as overruled? How does NFIB v. Sebelius treat Baily v. Drexel Furniture?
    • In light of Bailey v. Drexel Furniture (CB 295) and Doremus (CB 294), would it be constitutional for Congress to impose a tax on carbon emissions as part of a statute with the expressed aim of reducing carbon emissions as much as possible? Would your analysis of this change in light of NFIB?
    • Does Congress need to call something a “tax” in order for a statute to be upheld as an exercise of the taxing power? Does Congress need to refer expressly to the commerce clause in order for a statute to be upheld as an exercise of the commerce clause power? Should it be required to do so (in either case)? Is it just a matter of “labels” as the Chief Justice says, or is there more at stake in terms of political accountability? If political accountability is at stake, is it the Court’s job to enforce it? The voters’? Both?
    • In arguing that the penalty could not be upheld under the taxing power, the joint dissent (Justices Scalia at al.) accused the majority (including Chief Justice Roberts) of reading “shall” to mean “may” in the ACA provision that says individuals “shall” maintain insurance. “Shall” pay, the joint dissent argues, is inconsistent with the idea that people may choose not to maintain insurance and just pay a tax instead. (The relevant section of the ACA states, “[a]n applicable individual [i.e., a person subject to the individual mandate] shall for each month beginning after 2013 ensure that the individual . . . is covered under minimum essential coverage for such month.”)
    • If a “tax” must raise non-trivial amounts of revenue to be a tax, is $4 billion (annual expected revenue from the penalty by 2017) non-trivial? The Fiscal Year 2016 United States federal budget receipts are estimated to be approximately $3.525 trillion. $4 billion is about one-tenth of one percent of that. Cf. Everett Dirksen, Senate Minority leader (1959-1969) (“A billion here, a billion there, pretty soon, you’re talking real money.”)
    • Does upholding the mandate under the taxing power, as the majority does, (a) leave the mandate in place as enacted, just supported under one power (tax) rather than another (commerce clause), or (b) transform the mandate from a legal requirement to an option the exercise of which occasions a tax? Does it matter practically? Politically? Ethically? Legally?
    • Assuming it’s a tax, is the penalty a direct tax? In terms of the text of the Constitution, why does that matter? Consider this excerpt from the record of the Philadephia Convention, as recorded by James Madison: “‘Mr. King asked what was the precise meaning of direct taxation. No one answered.’” As one scholar noted in 1895, “it most definitely appears that no one then knew what the term ‘direct taxes’ actually meant.” Francis R. Jones, Pollock v. Farmers’ and Loan Trust Company, 98 Harv. L. Rev. 198 (1895). (Jones concludes that the opaque phrase was a way of requiring that any taxes on slaves (as well as on real property) be apportioned, while avoiding an express reference to slavery.)
    • If it’s not constitutional to regulate inactivity why is it constitutional to tax it?
    • In light of this holding, should the Court have simply declined to rule on the commerce clause issue? Why or why not?

    With respect to the material in Section IV.E.2, consider:

    • What is your view of Justice Roberts’ account of judicial review in Butler (see CB 301)?
    • Which approach to the “general welfare” clause of Art. I § 8 does Butler (CB 301) say it adopts -- the Hamiltonian or the Madisonian? Does its selection have any impact on its analysis of the challenge to the Agricultural Adjustment Act?
    • Which approach to constitutional analysis do you think is better: (a) Chief Justice Roberts’ argument in NFIB that a hypothetical statute mandating that everyone broccoli is relevant because there must be some limit on Congressional power, or (b) Justice Stone’s caution, in his dissent in Butler (CB 304), against using “extreme examples of reckless congressional spending which might occur if courts could not prevent” them? (See also CB 306 regarding “tortured construction[s]” of the constitution.)
    • In interpreting the general welfare clause of Art. I § 8, how is a court supposed to make the distinction Justice Stone draws between what is “truly national” and what must be “left to state control”? Is this distinction any different from that drawn by Lopez, in interpreting the Commerce Clause, between “what is truly national and what is truly local”?
    • The Agricultural Adjustment Act was held unconstitutional in Butler. On what part of the text of the constitution is the invalidity of the AAA premised? It is not that the Act was beyond the “general welfare of the United States” (Art. I §. 8) (see CB 302, bottom: “We are not now required to ascertain the scope of the phrase ‘general welfare of the United States’ or to determine whether an appropriation in aid of agriculture falls within it.”) Note that the Court identifies the problem as this: “The act invades the reserved rights of the states.” (CB 303, top.) To what part of the text of the Constitution does this refer?
    • Do you agree with the Butler Court’s conclusion that the scheme in the AAA was compulsory? Was that assertion crucial to its holding, or dictum?
    • What is the Butler Court’s response to the assertion that “local conditions throughout the nation have created a situation of national concern,” justifying the exercise of national power (CB 303)?
    • Which is the greater example of coercing a state to enact legislation -- the statute at issue in Steward Machine Co. or competitive pressures from other states that seek to attract business by keeping regulation to a minimum?
    • Consider the following hypotheticals in light of Butler, Steward Machine Co., Lopez, and the tax cases:
      • Congress imposes a tax on all gun sales. The statute also provides that those who sign a statement that they will not carry the gun in a school zone can get a rebate, financed by the gun sales tax. The statute also provides that those who sign the statement and are subsequently found with the gun in a school zone can be prosecuted for a federal criminal violation, with penalties like those in the statute at issue in Lopez.
      • Assume that Congress could not, consistent with the First Amendment, ban the teaching of agricultural methods that rely on chemical fertilizers and pesticides. Suppose Congress appropriates funds for the teaching of organic farming. The University of Cania receives some of these funds; its funding is then cut off when the Secretary of Agriculture discovers that students were taught how to use chemical pesticides in some of the funded courses. Would that action -- or Congress’s program generally -- violate the First Amendment?
      • If someone asks you to embezzle money from your employer and credibly threatens to ruin your credit rating through identity theft if you don’t, is that coercion? Suppose they simply offer to pay you $100 to embezzle money. Is that coercive? What if they credibly offer you $1,000,000 to embezzle the money? Is that coercive? In the last case, suppose your spouse is uninsured and has a life-threatening illness. Does that make the offer coercive?
    • Congress imposes a tax on all gun sales. The statute also provides that in states that have outlawed carrying guns in school zones, the purchaser can get a rebate of the federal tax. Is this program constitutional under the standard laid out in Steward Machine Co.?
    • Consider this hypothetical in light of Dole (CB 309): Congress provides funds to states to build highways, but also provides that no state shall receive funds under the program unless it prohibits all state employees involved in administering highway funds or any other federally funded program from engaging in any partisan political activity (other than voting). Is this within Congress’s power? How crucial is the percentage involved in Dole? (Percentage of what?) How closely must the condition imposed be related to the activity for which there is federal funding? (In this regard note the caution in Steward (CB 308) that a federal condition laid on a state might be invalid if “unrelated in subject matter to activities fairly within the scope of national power,” and the reference to a condition “unrelated to the fiscal need subserved by the [federal] tax in its normal operation, or to any other end legitimately national.”) Note: Dole is an important case, notwithstanding that the excerpts are brief.

  • Tuesday, November 14: We will complete our discussion of the material in Section IV.E.2, focusing on the Dole case (see above) and then move on to discuss the material in Section IV.E.3.

    With respect to the material in IV.E.3, consider:

    • What was the constitutional infirmity with the “take title” provision in the 1985 Low-Level Radioactive Waste Policy Amendments Act, according to the majority in New York v. United States?
    • Does the Court’s holding rest on a functional approach? What is the concern with accountability? Do you agree or disagree with Justice Stevens’s criticism of the majority in Printz (CB 358) on this point?
    • Would Congress have had the power to simply take over the regulation of the disposal of low-level radioactive waste, displacing the states entirely? (Consider: Why doesn’t it constitute an unconstitutional commandeering of states for Congress to make them subject to federal minimum wage statutes?)
    • Consider the process leading up to the Low-Level Radioactive Waste Policy Amendments Act of 1985:
      • In 1980, Congress adopted a statute (the Low Level Radioactive Waste Amendments Act of 1980) that made each state responsible for ensuring the disposal of radioactive waste within its borders, but also authorized states to enter into compacts with one another regarding disposal facilities. This would enable nearby states to come to an agreement for a facility to be located in one of them, with the other states having ensured access for their own waste producers. (Obviously, the receiving state would want something in return as part of the bargain.) The constitution permits Congress to authorize compacts among states (and forbids them from entering into such compacts without Congress consent). See Art. I § 10 cl. 3 (CB xlv).
      • The 1980 Act was regarded as a failure. By 1985 there were only three regional compacts covering 19 states, centered on three states that had operating waste disposal facilities (South Carolina, Nevada, and Washington). This left 31 states without guaranteed access to waste disposal facilities. Under the 1980 Act, the three states with waste disposal facilities were authorized starting in 1986 to refuse to accept waste from the 31 non-Compact members.
      • The National Governors Association drafted a proposal that was largely adopted by Congress in the 1985 Amendments. The three incentives that Justice O’Connor mentions in her opinion (CB 354) were designed to make it more likely that all states would enter a Compact during the next 7 seven years. New York strongly supported passage of the 1985 Amendments.
      • The 1985 Amendments Act passed by a vote of 378 to 0 in the House, and by voice vote in the Senate, and was signed by the President.
      • By the end of the seven year period, Congress had approved 9 compacts covering 42 of the states. New York, which generates a lot of low-level radioactive waste, chose not to enter a compact, planning instead to develop its own site. But resistance at the local level within New York stymied the effort to find an actual site. New York decided instead to challenge the 1985 Act on constitutional grounds.
      Consider that the Low-Level Radioactive Waste Policy Amendments Act of 1985 passed by a margin in the House and Senate far exceeding the 2/3 required to propose a constitutional amendment, and subsequently was the impetus for formal action in the form of compacts by 42 states, well over 3/4 of 50. Cf. Art. V (CB xlviii). Clearly the Act is not a constitutional amendment, but should the Court have been more deferential to Congress’s judgment as to its constitutionality in light of an approval process with some resemblance to that set out in Article V? Why or why not?
    • In what way did the Brady Bill “commandeer” state officials? In what way might the Court have distinguished Printz from New York v. U.S.?
    • In a portion of the Printz opinion not included in the casebook version of Printz, Justice Scalia stated that the statute also posed a federal separation of powers problem:
          We have thus far discussed the effect that federal control of state officers would have upon the first element of the “double security” alluded to by Madison: the division of power between State and Federal Governments. It would also have an effect upon the second element: the separation and equilibration of powers between the three branches of the Federal Government itself. The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, “shall take Care that the Laws be faithfully executed,” Art. II, § 3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the “Courts of Law” or by “the Heads of Departments ” who are themselves presidential appointees), Art. II, § 2. The Brady Act effectively transfers this responsibility to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove). The insistence of the Framers upon unity in the Federal Executive--to insure both vigor and accountability--is well known. That unity would be shattered, and the power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws.
      What implications do Justice Scalia’s remarks about CLEOs and policy-making have for efforts to handle separation of powers issues by categorizing actions or powers as “executive” (or even “purely executive”) versus “legislative”?
    • Suppose a terrorist attack by “dirty bomb” on Washington, D.C., rendered many federal government agencies inoperative for some period of time, including the Department of Homeland Security. Would the federal government have the power to require state agencies to perform security functions under federal direction in the aftermath of the attack? Should it?
    • In what ways might Printz encourage the development of federal bureaucracy? In what ways might New York v. United States encourage Congress to displace states entirely from certain areas?
    • What values are served by permitting Congress to displace states entirely from a regulatory area (by enacting a comprehensive federal statute that precludes the states from regulating), but not permitting it to mandate the involvement of state legislatures or executives in the implementation of the federal regulatory scheme?
    • Gonzales v. Oregon (CB 361) has little to say about the Tenth Amendment, but has interesting implications for the commerce clause. Does Congress have the power to outlaw physician-assisted suicide?
    • In Comstock (CB 362), whose approach -- Justice Breyer’s, Justice Kennedy’s, or Justice Thomas’s -- is most faithful to the constitutional text, in your view? Should the Court be faithful to the text in the case of the Tenth Amendment? If not, why not?
    • In deciding whether civil commitment of the mentally ill is a “traditional state area,” should it be relevant that 29 states filed amici briefs arguing for the constitutionality of the federal civil commitment statute? Why or why not?

  • Thursday, November 16: We will discuss the material in Sections IV.E.4, and IV.E.5.

    With respect to the material in Section IV.E.4, consider:

    • Make sure you understand how Medicaid works, what the Medicaid expansion was, and how it was structured.
    • Note that Chief Justice Roberts’ opinion acknowledges (as does Dole) that Congress may attach conditions to its funding grants to states. Why was it beyond Congress’s spending power to condition continued participation in the Medicaid program on a state’s agreement to expand Medicaid eligibility from pregnant women, children, needy families, the blind, the elderly and the disabled to now (as part of the ACA) include all individuals younger than 65 (when they become eligible for Medicare) who earn incomes below 133 percent of the federal poverty line?
    • The battle of the percentages: in thinking about coercion, which percentage mentioned in Chief Justice Roberts’ opinion is most relevant, in your view: 100%? 90%? 10%? 0.08% Why? Is determining whether the Medicaid expansion as structured by Congress is constitutional a simple matter of figuring which of these to compare to the 5% number in Dole?
    • What is the test for determining whether a new federal program is a “modification” of an existing program or an entirely new program? Why should that matter? Is the test grounded in the constitution?
    • Note Chief Justice Roberts’ argument that the Medicaid expansion involves a “shift in kind, not merely degree.” (CB 314). Is this distinction the same as that drawn by Justice Sutherland in Carter Coal to explain the old direct/indirect distinction (see CB 190) (“distinction between a direct and indirect effect turns, not upon the magnitude of either the cause or the effect, but entirely uon the manner in which the effect has been brought about. . . . It is quite true that rules of law are sometimes qualified by considerations of degree ... [b]ut the matter of degree has not bearing upon the question here.” What about Chief Justice Stone’s assertion in NLRB v. Jones & Laughlin that “the distinction between what is national and what is local . . . is necessarily one of degree” (CB 196). Is the distinction between choice and coercion a matter of degree? A difference in kind?
    • Does Congress’s assumption that 100% of the states would be fine with the expansion if the government picked up 100% (later reduced to 90%) of the costs show that it (a) understood that the expansion was structured in a coercive way, or (b) anticipated that any state concerned with the health of its citizens would accept an offer of expanded coverage funded by the federal government?
    • What is your response to Justice Ginsburg’s assertion that Congress could have avoided the modified program/new program issue simply by repealing the existing Medicaid legislation and immediately (or even in the same bill) enacting a Medicaid program that included the expansion?
    • If the joint dissenters (really, on this issue, concurring) are correct that states (say, Arizona) would be coerced into accepting a 100% federally funded expansion of Medicaid because declining to take part in the expansion would leave Arizona citizens paying federal taxes to fund the expansion in other states, does this mean (as Justice Ginsburg charges) that in the 16-year period in which Arizona declined to participate in the original Medicaid program, the constitution was being violated?
    • Suppose the Medicaid expansion did amount to compulsion of the states. What, in the majority’s view, is wrong with that?
    • Does it matter that states were on notice with the original Medicaid program that its coverage could be expanded by Congress?
    • What would be the impact on state budgets if Congress were to repeal the whole Medicaid program? Would that be coercive? Unconstitutional?

    With respect to the material in Section IV.E.5, consider:

    • Is Woods v. Cloyd W. Miller Co. (CB 322) consistent with Youngstown (CB 370)? Is the reliance on the war powers for the constitutionality of the 1942 statute prohibiting the imposition of a poll tax on military service members voting in federal elections (CB 324-325) consistent with Youngstown?
    • Is there any significance to the fact that Art. VI refers to “Laws of the United States which shall be made in in Pursuance” of the constitution, but to “Treaties made, or which shall be made, under the Authority of the United States”?
    • Is the idea that some treaties are “non-self-executing” consistent with Article VI of the Constitution?
    • Compare Justice Holmes’s statements in Missouri v. Holland (CB 347) about intent (the Framers “called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. . . . The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago”) with the Court’s approach to the Constitution in Chadha (CB 429).
    • Suppose Garcia (CB 352-353; CB 175-177) is overruled, and National League of Cities v. Usery (CB 351) is revived. Then the U.S. enters into a treaty with other countries, under the sponsorship of the International Labor Organization (a U.N. organization), which provides that all employees (government as well as private sector) are to receive overtime pay rather than comp time. If, say, Virginia gives its state employees comp time, can it be forced to provide overtime pay instead?
    • A few more facts behind the Bond case (CB Supp. 50-51): Carole Anne Bond discovered that her best friend Myrlinda Haynes had had a baby by her husband Clifford Bond. She smeared toxic chemicals on Myrlinda’s home and car many times. Local authorities refused to take Mrylinda’s complaints seriously, but the U.S. Postal Service got involved because some of the chemicals were put on her mailbox, and Bond wass caught on surveillance tape. She was prosecuted under 18 U.S.C. § 229(a)(1), which makes it illegal to “develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.” The statute covers any such conduct if it takes place in the U.S.; takes place outside the U.S. but is committed by a U.S. national; is committed against a U.S. national when outside the U.S.; or is committed against any U.S. owned or leased property, wherever located. 18 U.S.C. § 229(c). The statute was passed to carry out the United States’ obligations under the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC), which the United States ratified in 1997. Under the CWC, a “chemical weapon” includes “toxic chemicals.” A toxic chemical is defined as “[a]ny chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.” See CWC, Article II. Article I prohibits states from using chemical weapons. Article VII provides that each state party must “[p]rohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction as recognized by international law from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity.” (You can find information on the CWC at the State Department’s CWC Website.) Bond asserted that her crime was a local one, beyond Congress’s power to regulate; the government responded that Missouri v. Holland controls. Who do you think has the better argument? Note that the Court decided the case on statutory grounds. If the constituIf the substantive issue--whether Congress has the power to make Bond’s actions a federal crime--reaches the Court at some point down the road, how do you think it should rule?
    • Is Reid v. Covert (CB 350) consistent with Missouri v. Holland?

 
Assignments for the week of November 20:

  • Monday, November 20: We will discuss the material in Sections V.A and V.B, and begin our discussion of Section V.C. I don’t expect to get through all of Section V.C but it will be useful to have read it all before Monday’s class.

    With respect to the material in Section V.A, consider:

    • Article I § 8 cl. 13 gives Congress the power to “provide and maintain a Navy.” Do states have the power to provide and maintain a Navy? Why or why not?
    • Article I § 8 cl. 9 gives Congress the power to “constitute Tribunals inferior to the Supreme Court” (i.e., lower federal courts). Do states have the power to constitute lower federal courts? Why or why not?
    • Article I § 8 cl. 3 gives Congress the power to regulate interstate commerce. Do states have the power to regulate interstate commerce? Why or why not?
    • Suppose Rhode Island forbade the importation into the state of any car that did not meet certain state-mandated safety requirements. Would that be constitutional? Would it make any difference if Rhode Island had auto manufacturing plants in-state? Suppose no cases had previously been decided under the commerce clause. What arguments could you make based just on the text of the commerce clause, on the framers’ intent, and on function or structure?

    With respect to the material in Section V.B, consider:

    • In City of Philadelphia v. New Jersey, one possible purpose of the statute was to to keep Philadelphia’s waste out of New Jersey. Why is it wrong for New Jersey to want that? Isn’t it the role of a state to protect its own citizens, not some other state’s?
    • An alternative purpose might be to protect health and safety? Did the Court find that that was the actual purpose? Assume the purpose was to protect health and safety; what rendered the statute unconstitutional?
    • Who exactly benefited from the New Jersey statute, and who was harmed, within New Jersey and within Philadelphia?
    • Could Congress have authorized the statute at issue in Philadelphia v. New Jersey? Why or why not?
    • In the U.S., star fruit is grown in Florida, Puerto Rico, and Hawaii. Suppose Florida bans the importation into the state of star fruit, citing concerns about a star fruit parasite found in Hawaii and Maylaysia, with some reports that it has been found elsewhere as well. How would you analyze the constitutionality of that statute? What would Maine v. Taylor suggest? How is Dean Milk (CB 256) relevant?

    With respect to the material in Section V.C, consider:

    • Could North Carolina ban the import of Washington apples, or impose a tax on apples imported from Washington?
      • Did the North Carolina statute put any special conditions on the import of Washington apples?
      • Was the North Carolina statute motivated by a discriminatory purpose? What did the Court say about this?
      • On what basis did the Court find that the statute discriminates against Washington apples?
      • What legitimate aim did the Court find the statute to be aimed at achieving? In what ways, besides the North Carolina statute, could North Carolina have achieved that aim?
    • What was the intent or purpose of the statute at issue in Minnesota v. Clover Leaf Co. (CB 268 & CB 509-510), according to the district court? What did the Supreme Court say about that issue?
    • Does Kassel involve a facially discriminatory regulation?
    • If a court is to determine the intent or motive of a state regulation, whose intent counts -- the legislature that initially approved a statute? A later legislature that left it in place? A governor who vetoes a statute?
    • Did the plurality in Kassel balance the costs and benefits, or did it simply find no benefit to the state statute?
    • Is protecting the citizens of Iowa a legitimate end for Iowa to seek? In legislating, should Iowa take into account the impact of its regulations on other states?
    • Note that the question of motive or actual purpose comes up in a variety of circumstances relating to economic regulations, for example:
      • Hunt: Whether North Carolina was discriminating against Washington apples
      • Minnesota v. Clover Leaf: Whether Minnesota was favoring the dairy and pulpwood interests over the plastics industry
      • Kassel: Whether Iowa was simply trying to put the burden of big trucks on other states.
      • Moreno: Why Congress excluded households that had a member unrelated to any other member from participation in food stamps.
      • Romer: Why Colorado enacted a state constitutional amendment barring localities from enacting measures prohibiting discrimination on the basis of sexual orientation.
      In all these cases, the Court declined to make a finding about the actual purpose of statute. Similarly, with Darby, the Court rejected challenges to commerce clause regulation based on the claim that Congress was really interested in doing something other than regulating commerce. On the other hand, to take one example (not covered in this course), to show that a state has violated the Fourteenth Amendment’s equal protection guarantee through some racially discriminatory statute, policy, or action, the plaintiff must establish that the state’s discriminatory treatment was intentional. Why should the Court require a showing of intention in some cases but decline to consider it in others?

  • Tuesday, November 21: We will complete our discussion of the material in Section V.C, and then move on to Section V.D.1. Section V.D.2 is optional.

    With respect to Section V.D.1, consider:

    • Be familiar with these types of labels attached to preemption:
      • Express preemption
      • Field preemption
      • Conflict preemption
      • Obstacle preemption
    • Make sure you understand how the requirements of the Illinois and federal regulations differed in Gade (CB 289, note 2, and Supp. 337-345).
      • Did the OSH Act expressly preempt Illinois’ occupational safety regulations? What was the position of:
        • Justice O’Connor?
        • Justice Kennedy?
        • Justice Stevens?
      • Which of these three approaches best respects the federalism values the Court’s holdings in Lopez and New York v. United States seek to protect? How easily, in other words, should a court find field preemption, given that such a finding displaces all state regulation in the area, including state regulation that is not directly in conflict with the federal statute? In the interpretation of federal statutes, should there be a presumption against preemption? Why or why not?
    • What if the preemption issue arises in connection with delicate foreign policy considerations? Compare Crosby (CB 290 note 7) with Justice Scalia’s remarks on the subject (CB 286-87)

    With respect to Section V.D.2 (optional), consider:

    • Why is Justice Kennedy’s discussion of the discretion involved in dealing with undocumented aliens (including the decision to deport) relevant to deciding whether all or part of Arizona S.B. 1070 is preempted by federal law?
    • Did § 3 of S.B. 1070 conflict with federal law? Consider this question in a doctrinal sense, and in a practical sense.
    • If § 5(C) of S.B. 1070 had provided for additional penalties on employers who employ undocumented aliens, how would the Court have ruled? How did the Court rule with respect to what § 5(C) actually provided? Why?
    • What does Justice Scalia say is “the defining characteristic of sovereignty”? Suppose a state (in the international law sense) lost the power to define who is a citizen of that state. Would that state be sovereign? What does the Fourteenth Amendment provide with respect to (say) Arizona’ ability to define who is a citizen of Arizona?
    • Consider international relations. Is the power to enter into treaties with other stats essential to sovereignty? Suppose the U.S. had no power to enter into treaties unless the U.N. approved. Would the U.S. be a sovereign nation under those circumstances? What does Article I § cl. 3 provide on this issue with respect to U.S. states?
    • What did Justice Story say in response to the argument in Martin v. Hunter’s Lessee that Supreme Court review of state court judgments was incompatible with state sovereignty? See in particular CB 40 (last two paragraphs) through CB 41 (through the paragraph beginning, “Nor can such a right be deemed ...”)
    • Justice Scalia states that the “United States is an indivisible ‘Union of sovereign States’ (quoting an earlier case), and a “Union of independent States, who have their own sovereign powers.” How does this compare with Chief Justice Marshall’s account of how the Constitution was adopted (see CB 54). Consider also the disagreement between Justice Stevens and Justice Thomas in U.S. Term Limits (CB 160).
    • Why should there be any implied federal preemption of any sort? Is Justice Thomas right in saying that the Court should just refuse to hold state legislation preempted unless Congress expressly says so in the federal statute?
    • Justice Alito argues that, given Congress’s express preemption of additional state sanctions on employers who hire undocumented aliens in 18 U.S.C. § 1324a(h)(2), and given the absence of a comparable express ban on state sanctions on individual undocumented aliens who work in violation of federal law, § 5(C) of S.B. 1070 is not preempted. Is this a correct interpretation of § 1324a(h)(2), in your view? Why or why not? Consider this in light of the cases discussed in Note 1 (CB 288-289)